United States District Court, D. Arizona
DOUGLAS L. RAYES UNITED STATES DISTRICT JUDGE.
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.
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. 8 U.S.C. § 1255(a); 8 C.F.R.
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).
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.)
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). (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.)
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.)
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)).
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).
the APA, this Court is authorized to review final ...