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Elgamal v. Bernacke

United States District Court, D. Arizona

July 25, 2016

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

          ORDER

         Plaintiffs are Ashraf Elgamal, an Egyptian citizen, his minor child A.E., and his adult child Amanda. Defendant is Jeffrey Blumberg, Compliance Director for the Office of Civil Rights and Civil Liberties (CRCL). Before the Court are the parties’ cross-motions for summary judgment. (Docs. 308, 320.) 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, Blumberg’s motion is granted and Plaintiffs’ motion is denied.

         BACKGROUND

         This case arises out of Plaintiffs’ efforts to secure employment-based permanent resident status. Under the Immigration and Nationality Act (INA), employment-based adjustment of immigration status is a three-step process. First, an employer seeking to hire the immigrant files an immigrant labor certification application, known as a Form 9089, with the Department of Labor. 8 U.S.C. §§ 1153(b)(3)(C), 1182(a)(5)(A). If the Form 9089 is approved, the employer next files a Form I-140 visa petition (I-140) on behalf of the immigrant with the United States Citizenship and Immigration Service (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. 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 may also be found ineligible for or not deserving of employment-based adjustment of status. 8 U.S.C. § 1255(a), (c).

         In 2006, Fares Alzubidi, owner of Picture Perfect, Inc., submitted an I-140 on behalf of Elgamal, which USCIS approved in April of that year. (Doc. 309, ¶ 1; Doc. 321 at 6, ¶ 1.) Plaintiffs subsequently filed I-485 adjustment of status applications based on the I-140.[1] (Doc. 321 at 6, ¶ 4.)

         In September 2008, USCIS agents Rebecca Bernacke and Cynthia Harper visited Picture Perfect and spoke with Alzubidi. (Doc. 309, ¶ 2; Doc. 321 at 6, ¶ 5.) Bernacke and Harper asked if Alzubidi would withdraw the I-140 because Elgamal was not performing any work for him. (Doc. 321 at 6, ¶ 5.) Alzubidi responded that he did not intend to employ Elgamal until he received his green card. (Id., ¶ 6.) Bernacke and Harper also informed Alzubidi that they suspected Elgamal was involved in marriage fraud, and suggested that Alzubidi’s “organization would look bad” if he hired him. (Doc. 309, ¶¶ 3-4; Doc. 321 at 6-7, ¶¶ 7, 9.)

         On October 2, 2008, Alzubidi contacted Bernacke, told her that he would be withdrawing the I-140, and later signed a written withdrawal form. (Doc. 309, ¶¶ 6-7.) According to Alzubidi, he “wasn’t under any pressure to withdraw” the I-140, he construed Bernacke’s comments as advice, not as a threat, and he reached his decision independently. (Id., ¶¶ 12-14.) Because of the withdrawal, Plaintiffs’ I-485 applications were denied. (Id., ¶ 8.)

         On October 3, 2008-the day after Alzubidi withdrew the I-140-Elgamal sent an email to CRCL Compliance Investigator Sara Lilly accusing Bernacke and Harper of threatening Alzubidi and coercing the I-140 withdrawal. (Id., ¶¶ 15, 18.) The following month, CRCL Acting Director for Review and Compliance William P. McKenney sent a letter to immigration attorney Anita Justin, who was representing Elgamal at the time, acknowledging receipt of Elgamal’s complaint and informing her that the matter had been referred to USCIS for investigation. (Id., ¶¶ 19-20.) The letter also explained that “[u]nder 6 U.S.C. [§] 345 and 42 U.S.C. [§] 2000ee-1, no legal or procedural rights or remedies are provided to individuals. Accordingly, this Office may not obtain any legal remedies, damages or other relief on behalf of an individual.” (Id., ¶ 21.) Elgamal received a copy of this letter, reviewed it with his attorney, and understood it.[2] (Id., ¶ 22.)

         CRCL referred Elgamal’s complaint to USCIS’s Office of Security and Integrity (OSI), which assigned the matter to Special Agent Donna Hoshide. (Id., ¶ 25.) During the course of her investigation, Hoshide interviewed Elgamal, Alzubidi, Bernacke, and Harper. (Id., ¶ 26.) On June 25, 2009, Hoshide summarized her findings in a Report of Investigation (ROI). (Id.) According to the ROI, Bernacke and Harper visited Picture Perfect and asked Alzubidi if he would withdraw the I-140 because Elgamal was not performing any work for him. (Doc. 309-2 at 83, 86.) Alzubidi explained that he did not intend to employ Elgamal until he received his work permit. (Id. at 83.) Bernacke and Harper informed Alzubidi of marriage fraud allegations against Elgamal, and explained that if Alzubidi maintained his I-140 petition on behalf of Elgamal, his business could be scrutinized in the future and “it would not look good for his company.” (Id. at 83, 86.) Alzubidi “described the behavior of [Bernacke and Harper] as professional, ” and denied feeling threatened by them. (Id. at 83-84.) He said he withdrew the I-140 “because he did not want his company associated with someone who was involved in marriage fraud.” (Id. at 84.) He also “he did not want to jeopardize the outcome of any future I-140 petitions[.]” (Id.)

         OSI forwarded the ROI to CRCL in December 2009. (Doc. 321 at 10, ¶ 30.) For roughly two years thereafter, CRCL worked to prepare a “Close Letter” to Elgamal regarding his complaint. (Doc. 309, ¶¶ 33-34; Doc. 321 at 10-11, ¶¶ 32-61.) During this process, Lilly and other CRCL staffers prepared a memorandum (CRCL Memo) that summarized the investigation into Elgamal’s complaint. (Doc. 309, ¶ 30; Doc. 321 at 11, ¶ 43.) The CRCL Memo said it was likely that Bernacke and Harper suggested Alzubidi’s business would be scrutinized more closely in the future if he maintained the I-140 on behalf of Elgamal, but found “no evidence that the conversation was threatening, heated, or harassing.” (Doc. 325-1 at 3.) According to the CRCL Memo, “Alzubidi told . . . USCIS OSI that he did not feel threatened by . . . Bernacke’s remark that his business would be scrutinized if he did not withdraw the I-140 for . . . Elgamal.” (Id.) Instead, “in a sworn statement taken by OSI, . . . Alzubidi said he withdrew his I-140 based on information provided to him by USCIS officers; he did not claim or even mention harassment, intimidation, or threats.” (Id.) Although the CRCL Memo found that “invoking the possibility of extra scrutiny of [Alzubidi’s business], ” would have been inappropriate if it occurred, it nonetheless concluded that Bernacke and Harper’s encounter with Alzubidi did not violated Elgamal’s procedural rights because 8 C.F.R. §103.2(b)(6) allows an I-140 petitioner to withdraw the petition at any time before the beneficiary is granted adjustment of status. (Id. at 4.)

         Blumberg became CRCL’s Compliance Director in 2010, after the completion of USCIS’s investigation of Elgamal’s complaint. (Doc. 309, ¶ 31.) He reviewed the CRCL Memo and at least a portion of ROI, after which he “concluded that [CRCL] couldn’t conclusively substantiate” Elgamal’s allegations because CRCL “had one person saying one thing” and “another person saying another.” (Id., ¶ 33.) On March 2, 2012, Blumberg sent Elgamal a Close Letter that recounted the investigatory steps taken in response to Elgamal’s complaint, explained the resulting policy recommendations CRCL made to USCIS, and informed Elgamal that his complaint was now closed. (Id., ¶¶ 34-35.) Specifically, the Close Letter stated:

In order to resolve your complaint, CRCL attempted to determine whether USCIS personnel pressured your prospective employer to withdraw your I-140 petition using threatening or pressuring tactics, including additional scrutiny of your prospective employer’s business. Although CRCL could not conclusively substantiate your allegation that you were denied due process as a result of the actions of USCIS employees in regard to you or your prospective employer, we had made a recommendation to USCIS that relates to your complaint. Specifically, CRCL recommended that relevant policy should forbid using threats of future enforcement activity to pressure applicants or petitioners. Further, CRCL recommended that USCIS should effectively provide current FDNS officers with guidance on appropriate conduct, and incorporate this guidance into the training curriculum provided to new officers.
As we have stated in prior letters to you, CRCL is not able to obtain any legal remedies or damages on your behalf, and cannot provide individual immigration relief. Our complaint process attempts to analyze potential problems with DHS policy and its implementation. Consequently, we are pleased to inform you that USCIS has concurred with the recommendations stated above.

(Id., ¶¶ 35-36.)

         Elgamal brought this action on April 29, 2013, originally raising only a single state law claim against Bernacke, Harper, and another USCIS employee. (Doc. 1.) 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. (Doc. 9.) On November 18, 2014, Plaintiffs filed a second amended complaint, which, in relevant part, added Blumberg as a defendant. (Doc. 143.) Plaintiffs bring two claims against Blumberg, both under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Id., ¶¶ 140-166.) They allege that Blumberg deprived them of their Fifth Amendment rights to substantive and procedural due process by “condoning and/or covering up the ...


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