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Elgamal v. Bernacke

United States District Court, D. Arizona

July 14, 2016

Ashraf Elgamal, et al., Plaintiffs,
v.
Rebecca Bernacke, et al., Defendants.

          ORDER

          Douglas L. Rayes United States District Judge.

         Plaintiffs are Ashraf Elgamal, an Egyptian citizen, his minor child A.E., and his adult child Amanda.[1] Defendants are Rebecca Bernacke, a United States Citizenship and Immigration Services (USCIS) Fraud Detection National Security Immigration Officer, and Cynthia Harper, an Immigration Services Officer. Before the Court are the parties’ cross-motions for summary judgment.[2] (Docs. 313, 327, 334, 342.) The motions are fully briefed, and the Court heard oral argument on May 31, 2016. On June 21, 2016, the Court announced its rulings from the bench and informed the parties that a written order would follow. For the following reasons, Bernacke and Harper’s motions are granted and Plaintiffs’ motions are denied.

         BACKGROUND

         Because this case arises in the context of Plaintiffs’ efforts to obtain permanent resident status, a brief overview of relevant immigration procedures is necessary for understanding the issues presented.

         I. Overview of Immigration Procedure

         The Immigration and Nationality Act (INA) establishes “a comprehensive federal statutory scheme for regulation of immigration and naturalization.” Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 587 (2011) (internal quotations and citation omitted). Because “thousands of aliens seek immigrant visas to enter the United States, ” the INA “imposes numerical quotas on the number of aliens permitted to immigrate to this country.” Azizi v. Thornburgh, 908 F.2d 1130, 1132 (2d Cir. 1990); 8 U.S.C. § 1151(a). The INA also prioritizes and limits eligibility to certain categories of immigrants, such as those who are family-sponsored or employment-based. See 8 U.S.C. § 1153(a)-(b).

         For employment-based immigrants, adjustment of status is a three-step process. First, the employer seeking to hire the immigrant must file an immigrant labor certification application, known as a Form 9089, with the Department of Labor (DOL). 8 U.S.C. §§ 1153(b)(3)(C), 1182(a)(5)(A). If the Form 9089 is approved, the employer next must file a Form I-140 visa petition (I-140) with USCIS. 8 U.S.C. § 1154(a)(1)(F); 8 C.F.R. § 204.5. Finally, if the I-140 is approved, the immigrant worker may file a Form I-485 application (I-485) with USCIS to adjust his status to lawful permanent resident. 8 U.S.C. § 1255(a); 8 C.F.R. § 245.2.

         This process, however, does not guarantee or entitle an immigrant worker to lawful permanent resident status. USCIS may revoke an approved I-140 “at any time, for what [the Secretary of Homeland Security] deems to be good and sufficient cause[.]” 8 U.S.C. § 1155. Additionally, an employer may withdraw an I-140 for any reason and “at any time until a decision is issued by USCIS or, in the case of an approved petition, until the person is admitted or granted adjustment or change of status, based on the petition.” 8 C.F.R. § 103.2(b)(6). If the employer withdraws the I-140 after it has been approved, the approval is automatically revoked. 8 C.F.R. § 205.1(a)(3)(iii)(C). An immigrant also is ineligible for employment-based adjustment of status if he, among other things, “accepts unauthorized employment prior to filing an application for adjustment of status, ” “is in unlawful immigration status on the date of filing the application for adjustment of status, ” or “seeks [employment-based] adjustment of status . . . and is not in a lawful nonimmigrant status.” 8. U.S.C. §§ 1255(c). Finally, even if an I-140 is approved, not withdrawn, and the immigrant is eligible for adjustment of status, he “is in no way entitled to such relief[.]” Faddah v. Immigration & Naturalization Serv., 580 F.2d 132, 133 (5th Cir. 1978); 8 U.S.C. § 1255(a).

         II. Factual and Procedure History

         In 2002, Fares Alzubidi hired Elgamal to create business cards and a website for Picture Perfect Gallery (Picture Perfect), which operated a store at Arizona Mills Mall in Tempe, Arizona. (Doc. 314, ¶¶ 1-3.) On August 10, 2005, Alzubidi submitted a Form 9089 to DOL requesting approval to hire Elgamal as an Art Director/Web Administrator, which DOL approved on January 6, 2006. (Id., ¶¶ 4, 6.) Alzubidi submitted an I-140 to USCIS on January 24, 2006, which was approved on April 19, 2006. (Id., ¶¶ 7-8.) On July 6, 2007, Plaintiffs submitted I-485 adjustment of status applications.[3] (Id., ¶ 9.)

         On September 27, 2008, Bernacke and Harper visited Picture Perfect to speak with Alzubidi about Elgamal’s connection to marriage fraud allegations.[4] (Id., ¶ 13; Doc. 335 at 12, ¶ 7.) Specifically, Elgamal’s wife, Marcella Mata, had filed a Form I-130 visa petition (I-130)[5] seeking family-sponsored adjustment of status in May 2002, which was denied in August 2007 after USCIS determined that the marriage was fraudulent. (Doc. 314, ¶¶ 14-15.) Alzubidi was unaware that USCIS had investigated Elgamal for marriage fraud, and testified that he “became nervous when [he] found out about [the allegations].”[6] (Id., ¶¶ 17-18.) Bernacke told Alzubidi that his “organization will look bad” if he hired Elgamal, and asked if he was going to withdraw the I-140. (Id., ¶ 19.) Alzubidi said he needed a few days to think it over so he could make an informed decision and told Bernacke that he would call her back. (Id., ¶¶ 20, 33.) Afterward, he called Elgamal and told him about the visit. (Id., ¶ 26.)

         Alzubidi “studied [his] options” and decided to withdraw the I-140. (Id., ¶ 28.) On October 2, 2008, Alzubidi wrote and signed a written withdrawal letter that stated: “I no longer wish to continue to sponsor [Elgamal] to work for Picture Perfect Gallery.” (Id., ¶ 39.)

         The following day, Elgamal sent an email to the Office for Civil Rights and Civil Liberties (CRCL), in which he alleged that Bernacke and Harper coerced and threatened Alzubidi. (Id., ¶¶ 108-09.) That email triggered an internal investigation by CRCL. (Id., ¶ 112.)

         On September 8, 2009, USCIS denied Elgamal’s I-485 because Alzubidi had withdrawn the underlying I-140.[7] (Id., ¶ 42.) On October 6, 2009, Elgamal filed with UCSIS a Motion to Reopen Denied Form I-485 Adjustment of Status Application, pursuant to 8 C.F.R. § 103.5. (Id., ¶ 44.) The motion claimed that Alzubidi’s withdrawal “was unlawfully obtained by falsehoods, coercion, and threats, ” in violation of Elgamal’s Fifth Amendment due process rights. (Id., ¶ 45.) On March 28, 2012, USCIS denied Elgamal’s motion as untimely. (Id., ¶ 47.) The decision noted that, even if timely, the I-485 “would remain denied due to no pending I-140 visa petition.” (Id., ¶ 48.)

         Elgamal brought this action on April 29, 2013, originally raising only a single state law claim. (Id., ¶ 49.) On June 20, 2013, he amended his complaint to add his children as plaintiffs and to allege constitutional claims based on allegations that Bernacke and Harper coerced Alzubidi to withdraw the I-140. (Id., ¶¶ 51-52.)

         On August 13, 2013, USCIS withdrew its September 8, 2009 decision denying Elgamal’s I-485. It concluded that, because the I-485 had been pending for more than 180 days, INA’s “porting” provision afforded Elgamal the opportunity to present evidence of other employment that could serve as the qualifying basis for his application.[8] (Id., ¶¶ 53-54.) Noting its error in denying Elgamal’s motion to reopen, USCIS informed Elgamal that his I-485 remained pending and invited him to offer evidence of qualifying new employment. (Id., ¶ 55.)

         On August 26, 2013, Elgamal submitted evidence that he was employed as an Art Director/Web Administrator for the Arab American Festival Organization (AAFO). (Id., ¶ 56.) On May 20, 2014, USCIS issued a Notice of Intent to Deny Elgamal’s I-485, citing several bases for the intended denial. (Id., ¶ 61.) For example, it concluded that Elgamal’s new employment did not qualify under the porting provision because it was not “in the same or similar occupational classification as the job for which the [labor] certification was issued.”[9] (Id., ¶ 62.) USCIS discovered that Elgamal was AAFO’s founder and president, found no evidence that AAFO had a graphics and web design division, and determined that the job offer was not bona fide because Elgamal had simply created a job offer and hired himself. (Id., ¶¶ 63, 67-69.) Additionally, USCIS determined that Elgamal was not eligible to adjust his status because he did not have lawful immigration status at the time he filed his I-485.[10] (Id., ¶ 74.) It found that Elgamal’s immigration status became unlawful on June 4, 2002, when his previous visitor’s visa had expired, and that Elgamal engaged in unauthorized self-employment. (Id., ¶¶ 75, 76.) USCIS further concluded that, notwithstanding these defects, Elgamal did not merit a favorable adjustment because, among other things, his marriage to Mata was “entered into solely for the purpose of assisting [him] to obtain [his] lawful permanent residence status.” (Id., ¶¶ 77, 83.)

         Elgamal did not respond to USCIS’s Notice of Intent to Deny, and on October 3, 2014, USCIS issued its final decision denying Elgamal’s I-485. (Id., ¶¶ 93-95.) In addition to affirming its prior determinations, USCIS denied Elgamal’s application based on his failure to respond to the Notice of Intent to Deny. (Id., ¶ 96.) Because the application was denied, in part, due to abandonment, USCIS notified Elgamal that he could move to reopen his application within 30 days pursuant to 8 C.F.R. §103.2(b)(15). (Id., ¶ 97.) USCIS also notified Elgamal that he could request a Notice to Appear to place him in removal proceedings and renew his application before an immigration judge. (Id., ¶ 98.) On November 4, 2014, Elgamal filed a Motion to Reconsider the denial of his I-485, which USCIS denied. (Id., ¶¶ 99, 102.)

         Plaintiffs bring two claims against Bernacke and Harper, both under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Id., ¶¶ 103, 105.) They allege that Bernacke and Harper deprived them of their Fifth Amendment rights to substantive and procedural due process by coercing Alzubidi to withdraw the I-140. (Id., ¶ 106.)

         LEGAL STANDARD

         Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When parties submit cross-motions for summary judgment, the court “considers each party’s evidentiary showing, regardless of which motion the evidence was tendered under.” Oakley, Inc. v. Nike, Inc., 988 F.Supp.2d 1130, 1134 (C.D. Cal. 2013) (citing Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136-37 (9th Cir. 2001)).

         Substantive law determines which facts are material and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). The party opposing summary judgment “may not rest upon mere allegations of denials of pleadings, but . . . must set forth specific facts showing that there is a genuine issue for ...


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