Summary
rejecting USCIS's argument that the passage of time has rendered a new office petition moot
Summary of this case from BlueStar Cabinets, Inc. v. JaddouOpinion
CASE NO. 18-24027-CIV-ALTONAGA/Torres
2021-05-07
CANAL A MEDIA HOLDING, LLC; and Erick Archila, Plaintiffs, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.
Edward Fortunato Ramos, Ira Jay Kurzban, Kurzban, Kurzban, Tetzeli and Pratt, P.A., Coral Gables, FL, Ian K. Shaw, Kurzban Kurzban Weinger Tetzeli, Pratt P.A., Miami, FL, for Plaintiffs. Joshua Samuel Press, Aaron S. Goldsmith, DOJ, Civil Division - Office of Immigration Litigation, Washington, DC, for Defendants United States Citizenship and Immigration Services, Department of Homeland Security, Kathy A. Baran. Joshua Samuel Press, DOJ, Civil Division - Office of Immigration Litigation, Washington, DC, for Defendants Kirstjen Nielsen, Francis Cissna.
Edward Fortunato Ramos, Ira Jay Kurzban, Kurzban, Kurzban, Tetzeli and Pratt, P.A., Coral Gables, FL, Ian K. Shaw, Kurzban Kurzban Weinger Tetzeli, Pratt P.A., Miami, FL, for Plaintiffs.
Joshua Samuel Press, Aaron S. Goldsmith, DOJ, Civil Division - Office of Immigration Litigation, Washington, DC, for Defendants United States Citizenship and Immigration Services, Department of Homeland Security, Kathy A. Baran.
Joshua Samuel Press, DOJ, Civil Division - Office of Immigration Litigation, Washington, DC, for Defendants Kirstjen Nielsen, Francis Cissna.
ORDER
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Defendants’ Motion to Dismiss for Mootness [ECF No. 80], filed on April 11, 2021. Plaintiffs, Canal A Media Holding, LLC, and Erick Archila filed a Response [ECF No. 81]; to which Defendants filed a Reply [ECF No. 90]. The Court has carefully considered the Amended Complaint [ECF No. 36], the parties’ submissions, the record, and applicable law. As further explained, the Court denies the Motion.
Defendants are the United States Citizenship and Immigration Services (USCIS) and its Director; the United States Department of Homeland Security and its Secretary; and the Director of the USCIS California Service Center.
This case arises from Defendants’ denial of Canal A Media's petition for a nonimmigrant worker visa on behalf of Archila. (See generally Am. Compl.). The Immigration and Naturalization Act ("INA") permits multinational employers seeking to employ an alien in the United States to file a petition on behalf of the employee to secure for the employee a nonimmigrant "L-1" visa. (See Am. Compl. ¶ 9 (citing 8 U.S.C. §§ 1101(a)(15)(L), 1184(c)(2)(A) )). The INA defines such a nonimmigrant as
[A]n alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge[.]
8 U.S.C. § 1101(a)(15)(L) (alterations added). The L-1 nonimmigrant classification has two subtypes: L-1A for managers and executives, and L-1B for specialized-knowledge workers.
See L Visas (L-1A and L-1B) for Temporary Workers , USCIS (Dec. 1, 2020), https://www.uscis.gov/forms/explore-my-options/l-visas-l-1a-and-l-1b-for-temporary-workers.
The INA's implementing regulations provide further definitions and requirements for employers petitioning for an L-1 visa — such as what business entities have a qualifying parent-subsidiary relationship — including specifying the documentation employers must submit to show they satisfy these requirements. (See Am. Compl. ¶¶ 10–11 (citing 8 C.F.R. § 214.2(l)(1)(ii)(G), (I), (K) ; id. § 214.2(l)(2) ; and id. § 214.2(l)(3)(i) )). There are additional requirements for petitioning employers requesting an L-1 visa for an employee to work in a new office, defined as "an organization which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year." 8 C.F.R. § 214.2(l)(1)(ii)(F) ; see also id. §§ 214.2(l)(1)(v)–(vi) (listing the additional requirements for new-office petitioners).
On November 25, 2016, Canal A Media petitioned the USCIS for an L-1A visa for Archila. (See Am. Compl. ¶ 16). Canal A Media was formed in October 2016 as a wholly owned subsidiary of Canal Antigua, S.A., a Guatemalan media corporation. (See Am. Compl. ¶¶ 13–15). Archila is a former President of Canal Antigua, employed from March 18, 2009 through the date of filing the L-1A visa petition. (See CAR 43). At the time, apparently because of Canal A Media's recent vintage, the petition indicated Archila was coming to the United States to open a new office. (See id. 44).
(See Cert. Admin. Record ("CAR") [ECF Nos. 79-1–79-5] 41). The Court refers to the CAR using the CAR footers’ red pagination.
The USCIS denied Canal A Media's petition. (See id. 1). On September 1, 2017, Plaintiffs filed their original Complaint under the Administrative Procedure Act ("APA"), claiming the USCIS's denial of the petition was arbitrary, capricious, and unlawful, and requesting judicial relief from the denial. (See generally Compl. [ECF No. 1]). Plaintiffs filed the operative Amended Complaint on November 14, 2018, adding a due process claim. (See generally Am. Compl.).
Defendants moved to dismiss for lack of subject matter jurisdiction [ECF No. 37], which the Court granted [ECF No. 57]. The Eleventh Circuit Court of Appeals reversed, determining the Court did have jurisdiction. See Canal A Media Holding, LLC v. USCIS , 964 F.3d 1250, 1258 (11th Cir. 2020). Now, after the parties agreed the case could be resolved on a review of the administrative record and cross-motions for summary judgment (see Joint Notice [ECF No. 77]), Defendants again move to dismiss — this time arguing the case is moot (see generally Mot.).
"A case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Al Najjar v. Ashcroft , 273 F.3d 1330, 1335–36 (11th Cir. 2001) (alteration adopted; internal quotation marks and citation omitted). "If events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give the plaintiff or appellant meaningful relief, then the case is moot and must be dismissed." Id. at 1336 (citation omitted).
Defendants insist the Court cannot provide meaningful relief to Plaintiffs for two reasons: Plaintiffs’ petition requested an L-1A visa for a period ending in November 2017 (which has since passed); and Canal A Media is no longer a "new office," as it has been in existence for five years — rendering meaningless Canal A Media's request for Archila's visa so he can set up the no-longer-new office. (See Mot. 8–10; Reply 1–7). The Court declines to address the first contention; indeed, Defendants appear to abandon it, as they fail to reply to Plaintiffs’ arguments relating to the effective period of L-1 visa petitions. (Compare Resp. 5–13, with Reply 3–7).
The Court refers to Plaintiffs’ filings using those documents’ footers’ pagination.
Turning to the second point, Defendants insist the present case is on all fours with Nyaga v. Ashcroft , 323 F.3d 906 (11th Cir. 2003). (See Mot. 7–8). The Nyaga plaintiffs were eligible for immigrant visas through a diversity visa lottery. See 323 F.3d at 909. The eligibility period for diversity lottery designees was temporally limited to the specific fiscal year for which the beneficiary was designated a lottery winner. See id. at 908–09. Although the plaintiffs filed their visa applications within their eligibility window, no final decision was issued regarding the applications by the conclusion of the statutory eligibility period. See id. at 910. The plaintiffs filed suit three years later, requesting that the court compel the processing of the plaintiff's applications. See id.
The Eleventh Circuit analyzed the statute which gave the Attorney General the authority to grant visas through the diversity lottery, stating the statutory text created a specific time constraint on such visa eligibility: "Aliens who qualify [through the diversity visa program] shall remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected." Id. at 914 (alteration added; original emphasis; quoting 8 U.S.C. § 1154(a)(1)(l)(ii)(II) ). The court determined the statute prevented the Attorney General from issuing visas to diversity lottery winners after the end of the relevant fiscal year; and thus the court could not afford the plaintiffs meaningful relief, because directing the Attorney General to act on the plaintiffs’ applications would result in their mandatory denial. See id. The Eleventh Circuit remanded to the district court with instructions to dismiss the case as moot. See id. at 916.
Nyaga is not helpful to Defendants. Defendants rely almost exclusively on the fact that Canal A Media's U.S. operation is no longer a "new office" — but whether a petitioner is applying for an employee to work in a new office only alters the evidence a petitioner must submit in support of the petition. See 8 C.F.R. § 214.2 (listing evidence a petitioner must submit "[i]f the petition indicates that the beneficiary is coming to the United States as a manager or executive to open or to be employed in a new office in the United States" (alteration added)). L-1 visas are available to employers regardless of the "newness" of their office. See 8 U.S.C. § 1101(a)(15)(L). Unlike in Nyaga , where a statute circumscribed the Attorney General's authority to issue visas in the context of that case, here Defendants do not point to any statutory limits on their power to grant Canal A Media's L-1A visa petition.
(See Mot. 8–10; Reply 3–6).
Accordingly, the Court could grant meaningful relief to Plaintiffs because granting Plaintiffs’ L-1A visa petition is within Defendants’ power. And "[a]s long as [Plaintiffs] have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Campbell-Ewald Co. v. Gomez , 577 U.S. 153, 161, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016) (alteration added; internal quotation marks and citation omitted).
Because the case is not moot, it is ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss for Mootness [ECF No. 80] is DENIED .
DONE AND ORDERED in Miami, Florida, this 7th day of May, 2021.