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Elgamal v. Bernacke

United States District Court, D. Arizona

July 25, 2016

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



         Plaintiffs are Ashraf Elgamal, an Egyptian citizen, his minor child A.E., and his adult child Amanda. Defendants are Secretary of Homeland Security Jeh Johnson, Director of United States Citizen and Immigration Services (USCIS) Leon Rodriguez, and USCIS Phoenix Field Office Director John Ramirez, sued in their official capacities. Before the Court are the parties’ cross-motions for summary judgment. (Docs. 332, 347.) 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, Defendants’ motion is granted and Plaintiffs’ motion is denied.


         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 (DOL). 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 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 with USCIS to adjust his status to lawful permanent resident.[1] 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 2005, Fares Alzubidi agreed to sponsor Elgamal for employment with Alzubidi’s company, Picture Perfect, Inc. (Doc. 333, ¶ 8.) Alzubidi filed a Form 9089 with DOL, which was approved in January 2006. (348 at 4, ¶¶ 1-2.) Thereafter, Picture Perfect filed an I-140 on behalf of Elgamal, which USCIS approved in April 2006. (Doc. 333, ¶ 9; Doc. 348 at 5, ¶¶ 4, 6.) In July 2006, Plaintiffs filed I-485 adjustment of status applications based on the approved I-140. (Doc. 348 at 5, ¶ 7.) Alzubidi withdrew the I-140 in October 2008. (Doc. 333, ¶ 16.) Pursuant to 8 C.F.R. § 205.1(a)(3)(iii)(C), USCIS automatically revoked its approval of the I-140 and, consequently, denied Plaintiffs’ I-485 adjustment of status applications. (Id., ¶ 18.) In October 2009, Plaintiffs filed a motion to reconsider the denial of their I-485 applications, which was denied. (Doc. 348 at 10-11, ¶ 40.)

         In August 2013, USCIS withdrew its decision denying Elgamal’s adjustment application and allowed him to apply for adjustment based on new qualifying employment pursuant to 8 U.S.C. § 1154(j).[2] (Doc. 333, ¶ 19.) Elgamal then filed a request to change his employment-based visa petition from the Picture Perfect position to a job as art director/web administrator for the Arab American Festival (AAF), an organization that Elgamal founded and for which he acts as President and Chief Executive Officer. (Id., ¶¶ 20-21.) In May 2014, USCIS issued a Notice of Intent to Deny (NOID) Elgamal’s re-opened adjustment of status application. (Id., ¶ 23.) Ultimately, USCIS issued a decision in October 2014 denying Plaintiffs’ re-opened adjustment applications. (Id., ¶ 25.)

         Elgamal brought this action on April 29, 2013, originally raising only a state law claim against several USCIS employees. (Doc. 1.) On June 20, 2013, he amended his complaint to add his children as plaintiffs and to allege, as relevant here, a claim against Defendants under the Administrative Procedures Act (APA), 5 U.S.C. § 706. (Doc. 9.) On November 18, 2014, Plaintiffs filed a second amended complaint, which is the operative complaint in this lawsuit. (Doc. 143.) Plaintiffs do not challenge USCIS’s October 2014 decision denying their re-opened adjustment applications. (Doc. 333, ¶ 26.) Instead, Plaintiffs challenge the earlier, withdrawn denial, and allege that Defendants (1) failed to advise them of the INA’s porting provisions and to give them notice and opportunity to rebut the reason for the original denial of their adjustment applications, (2) unlawfully denied their October 2009 motion to reconsider the denial of their adjustment applications, and (3) are unlawfully delaying or withholding approval of their adjustment applications. (Doc. 143, ¶¶ 167-173.) For this, Plaintiffs seek damages, relief under the Declaratory Judgments Act (DJA), 28 U.S.C. § 2201, and nunc pro tunc relief. (Id., ¶¶ 174-198.) The parties now cross-move for summary judgment on Plaintiffs’ APA claim and corresponding requests for relief. (Docs. 332, 347.)


         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 trial.” Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995); see also Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).


         Under the APA, this Court is authorized to review final ...

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