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ElectroMedical Technologies Inc. v. Nielsen

United States District Court, D. Arizona

April 16, 2019

ElectroMedical Technologies Incorporated, et al., Plaintiffs,
v.
Kirstjen Nielsen, et al., Defendants.

          ORDER

          G. Murray Snow, Chief United States District Judge.

         Pending before the Court is ElectroMedical Technologies Inc.'s appeal of two administrative determinations by the United States Citizenship and Immigration Services (“CIS”). For the following reasons, the Court will affirm the decisions of CIS.

         BACKGROUND

         To become a lawful permanent resident of the United States, applicants must follow a series of steps. An employer can file a I-129 petition with CIS requesting an H1-B visa for a qualified employee. This visa is typically valid for three years. Employers can later request an extension of the visa, but typically H1-B visas do not last for more than six years. Once an H-1B visa is issued, the employer can then file a for a Labor Certificate Provision from the Department of Labor and an I-140 petition with CIS. Once the I-140 petition is approved, then the person can apply for adjustment to legal permanent resident status by filing a I-485 application.

         Peter Gajic and ElectroMedical challenge two decisions by CIS in this lawsuit. First, they challenge CIS's decision to reject Plaintiffs' I-129 request for an extension of Gajic's H-1B visa. This was the third I-129 application ElectroMedical filed after their lawsuit in the District of Arizona challenging a separate decision of CIS was dismissed in 2013. Plaintiffs argued to CIS that Gajic is eligible for a retroactive extension of his H-1B visa-even though it expired years ago in 2009-because the delay was caused by ineffective assistance of counsel. To support its argument, ElectroMedical attached a letter from Attorney Salmon, who represented the company until 2012. In its decision, CIS found that the delay may have been initially caused by ineffective assistance of counsel, but the delay was not commensurate with the circumstances, and denied the application.

         Plaintiffs also challenge an April 2017 decision by CIS denying an I-485 application for an adjustment of status for Peter Gajic, his wife, and son. CIS denied this application because Gajic and his family were unlawfully present in the United States for many years without a valid H-1B visa, and the agency found that the explanation for their extended unlawful presence was not commensurate with the circumstances.

         The two issues before the Court are (1) whether the Court has jurisdiction to review the two CIS decisions and, if so, (2) whether the agency's decisions were arbitrary, capricious, unsupported by substantial evidence or otherwise unlawful.

         DISCUSSION

         I. Standard of Review

         When reviewing of agency actions under the Administrative Procedure Act, courts must “hold unlawful and set aside agency actions, findings and conclusions” that are “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2). Courts must also set aside final agency actions that are “unsupported by substantial evidence.” Id.

         This inquiry is “narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 30 (1983). Instead, a court must determine whether the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. at 43 (internal citations and quotation marks omitted). An agency's action is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id.

         “Although [the] inquiry must be thorough, the standard of review is highly deferential; the agency's decision is entitled to a presumption of regularity, and [a court] may not substitute [its] judgment for that of the agency.” San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (internal citations and quotation marks omitted). “Where the agency has relied on relevant evidence such that a reasonable mind might accept as adequate to support a conclusion, its decision is supported by substantial evidence.” Id. “Even if the evidence is susceptible of more than one rational interpretation, the court must uphold the agency's findings.” Id.

         II. Analysis

         A. ...


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