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Cheeku, Inc. v. Napolitano

United States District Court, Seventh Circuit

January 28, 2014

JANET NAPOLITANO, Secretary, U.S. Department of Homeland Security; ALEJANDRO MAYORKAS, Director, U.S. Citizenship & Immigration Services; and ERIC H. HOLDER, JR., Attorney General of the United States, Defendants.


JOHN W. DARRAH, District Judge.

Plaintiffs, Cheeku, Inc., d/b/a Dunkin' Donuts, ("Cheeku") and Kaushikkumar A. Patel, have challenged the denial of an employment-based immigrant visa petition by the United States Citizenship and Immigration Services ("USCIS"), after the USCIS denied the petition as moot because the employer who filed the petition on Patel's behalf dissolved in bankruptcy while the matter was pending. Plaintiffs have moved for partial summary judgment, arguing that there is no genuine issue of material fact as to the original petitioner's ability to pay the prevailing wage or as to Plaintiffs' standing to challenge the denial of the petition. Defendants have cross-moved for summary judgment, arguing that there are no genuine issues of material fact and that, as a matter of law, the USCIS correctly denied the visa petition. For the reasons discussed below, Defendants' Motion [39] is granted; Plaintiffs' Motion is denied as moot [17, 18, 35]; and the USCIS's decision is affirmed.


The facts in this case are, for the most part, undisputed. Kaushikkumar A. Patel, a native and citizen of India, entered the United States without inspection on or about October 3, 1994 near Brownsville, Texas. (Defendants' Rule 56.1 Statement of Uncontested Facts ("SOF") ¶ 1.) Patel was apprehended by Border Patrol agents on October 5, 1994, at which time Patel stated he had flown from India to Costa Rica, had traveled north to the U.S. border, and was going to Tampa, Florida to seek employment. (SOF ¶ 2.) Patel was placed in deportation proceedings and ordered deported in absentia on January 13, 1995, by an immigration judge in Texas. (SOF ¶ 2.)

On April 30, 2004, Tejany & Tejany, Inc. ("Tejany") filed an I-140 immigrant visa petition (the "visa petition") on Patel's behalf, seeking to employ him as the manager of its Dunkin' Donuts restaurant/bakery in Woodstock, Illinois. (SOF ¶ 3.) The visa petition was filed for the "skilled worker" classification, required the employee to have two years of prior experience, and had a priority date of January 1998, which was established when Tejany filed the labor certification with the Department of Labor. (Pl.'s Rule 56.1 Statement of Uncontested Facts ("PSOF") ¶ 2.) Concurrently with the visa petition, Patel filed an I-485 status adjustment application. (SOF ¶ 3.)

On November 14, 2008, Tejany was dissolved as a business entity. (PSOF ¶ 3.) Patel then began working as a store manager for Cheeku, which is a separate corporation with no connection to Tejany. (PSOF ¶ 3.) On September 25, 2009, the USCIS issued a Request for Evidence to Tejany, relating to Patel's work experience. (PSOF ¶ 5.) On November 6, 2009, the USCIS issued a second Request for Evidence to Tejany, requesting evidence of Tejany's ability to pay Patel's offered wage and documentation of Patel's work experience. (SOF ¶ 4.) The USCIS also questioned the sufficiency of the experience letter submitted by Tejany in support of the visa petition, on the basis that the letter indicated Patel worked as a supervisor at a Dunkin' Donuts restaurant in St. Louis, Missouri, from September 1994 until October 1996. (SOF ¶ 4.) This letter conflicted with immigration records showing Patel first entered the U.S. without inspection on October 3, 1994, one month earlier than he allegedly started work in St. Louis. (SOF ¶ 4.) Tejany, which had been dissolved by this date, did not respond to either Request for Evidence. (SOF ¶ 4.) However, Cheeku and Patel, by their counsel, submitted materials. (SOF ¶ 5.)

On December 31, 2009, the USCIS denied the visa petition, finding that the petitioner, Tejany, had not met its burden of demonstrating the beneficiary, Patel, met the minimum requirements at the time the certification was filed and also that Tejany had failed to establish its ability to pay the proffered wage since filing the visa petition. (SOF ¶ 7; see also Administrative Record ("AR") pp. 369-370.) The USCIS noted, among other things, the discrepancy between Patel's work experience starting in September 1994 and the record of Patel's apprehension on the United States border in October 1994.

On February 1, 2010, Cheeku filed an appeal with the USCIS's Administrative Office ("AAO"). (SOF ¶ 8.) On November 19, 2012, the AAO dismissed the appeal as moot because: (1) Patel and Cheeku lacked standing to appeal; (2) the petitioner, Tejany & Tejany, Inc., was involuntarily dissolved, and a bona fide job offer cannot exist from an employer who is no longer in business; and (3) that Patel was not permitted to port the visa petition to Cheeku. (SOF ¶ 11; see also AR 80-85.) Patel and Cheeku now challenge the denial of the visa petition, arguing that Cheeku should have been substituted as Patel's employer.


Under the Administrative Procedure Act ("APA"), a court reviewing an administrative agency's decision may 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)(A); see also Abraham Lincoln Memorial Hosp. v. Sebelius, 698 F.3d 536, 547 (7th Cir. 2012)). Final decisions of administrative agencies are given deference by district courts. A court must consider whether an agency's decision was "based on a consideration of the relevant factors and whether there has been a clear error of judgment. Nevertheless, the ultimate standard of review is a narrow one, and the district court may not substitute its judgment for that of the agency." Secretary of Labor of U.S. v. Farino, 490 F.2d 885, 889 (7th Cir. 1973) (internal citation and quotation marks omitted); see also Ind. Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851, 858-59 (7th Cir. 2003).



As a threshold matter, it must be determined whether Patel or Cheeku has standing to challenge the denial of the visa petition. The AAO determined that neither Cheeku nor Patel had standing to appeal based on regulatory language found in 8 C.F.R. § 103.3(a)(1)(iii)(B), which provides that only the petitioner, and not the beneficiary, has administrative standing to pursue the appeal of a denial. However, the AAO's decision was based on the ability to appeal a denial of a visa petition within the INS, rather than in federal court. See Ghaly v. INS, 48 F.3d 1426, 1434 n.6 (7th Cir. 1995). In contrast, Section 10 of the APA, 5 U.S.C. § 702, provides any person "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute" has the right to seek federal court review of the agency action. See also Construction and Design Co. v. USCIS, 563 F.3d 593, 597-98 (7th Cir. 2009); Ghaly, 48 F.3d at 1434 n.6; Stenographic Machines, Inc. v. Regional Administrator for Employment & Training, 577 F.2d 521, 527-28 (7th Cir.1978); Taneja v. Smith, 795 F.2d 355, 358 n.7 (4th Cir. 1986); Sanchez-Trujillo v. INS, 620 F.Supp. 1361, 1363 (W.D. N.C. 1985) (noting that "[t]he immigrant beneficiary is more than just a mere onlooker; it is [his] own status that is at stake when the agency takes action on a preference classification petition").

Defendants appear to concede, and this Court agrees, that under 5 U.S.C. § 702 and the line of cases cited above, Patel has standing to contest the denial of the petition. See Defs' Mem. in Supp. of Mot. for Sum. Judgment, at 14. However, Defendants contend that Patel does not have constitutional standing because his alleged injury would not be redressed by a favorable decision in this case because Tejany has dissolved, citing Lujan v. Defenders of Wildlife, 504 U.S. 555 (2012). However, if Patel prevailed on his argument that he could port ...

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