Opinion
Civ. No. 98-2855, SECTION "L" (1).
March 15, 2000.
ORDER AND REASONS
Before the Court is the motion to dismiss by defendant Immigration and Naturalization Service ("INS") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the defendant's motion is GRANTED.
I. BACKGROUND
On November 27, 1995, the LPO filed a form I-129, Petition for Nonimmigrant Worker, on behalf of violinist Lingyiang Zhao, seeking to classify her as an H-1B alien. 8 U.S.C. § 1101(a)(15)(H). An H-1B alien is one who comes temporarily to the United States to perform services in a "specialty occupation." See id. A "specialty occupation" by definition requires a bachelor's degree or higher, or some equivalent thereof. See id. Because a bachelor's degree is not an absolute prerequisite to employment within the "orchestra industry," the INS requested that the LPO submit additional evidence to demonstrate that the violinist position met one of four regulatory criteria for qualifying as a specialty occupation.
These criteria include:
1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; 2) the degree requirement is common to the industry in parallel positions among similar organizations, or in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; 3) the employer normally requires a degree or its equivalent for the position; or 4) the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.8 C.F.R. § 214.2(h)(4)(iii)(A).
The LPO submitted evidence, including statements from orchestra directors around the country, that typically a very high percentage (often 90-95%) of their members possessed bachelor degrees or higher, although this was not an absolute prerequisite to employment. See Pl.'s Mot. Summ. J., at 4-8. The INS Nebraska Service Center ("NSC") denied the LPO petition. The INS concluded that the position did not meet the fourth criterion of a specialty occupation because orchestra positions were often filled through blind auditions without regard to educational credentials. The INS concluded that the LPO's evidence failed to establish that the duties involved with playing as a violinist were so specialized that the knowledge required to perform them is usually associated with a bachelor's degree or higher.
The Administrative Appeals Unit ("AAU") of the INS upheld the NSC decision upon appeal. The LPO then filed suit in this court seeking judicial review of the agency determination under the applicable provisions of the Administrative Procedure Act ("APA"). See 5 U.S.C. § 701 et seq. The LPO argued on summary judgment that the decision was arbitrary and capricious and constituted an abuse of discretion under the appropriate standard of review. Specifically, the LPO insisted that the INS abused its discretion in denying the petition because it had granted three previous H-1B petitions to individuals that the LPO sought to hire.
On April 6, 1999, the Court granted the LPO's motion for summary judgment because the INS had abused it discretion by denying the LPO's petition without articulated reasons after having granted three H-1B petitions to similar LPO petitioners. See Louisiana Philharmonic Orchestra v. Immigration and Naturalization Serv., 44 F. Supp.2d 800 (1999). The Court remanded the case to the AAU with instructions to either: (1) grant the LPO's petition for Zhao; or (2) articulate a rational basis for its inconsistent treatment of the petition.
On May 3, 1999, the AAU issued a ruling denying the petition and an explanation for the denial. The AAU stated that decisions by service centers were not binding precedent on the AAU and that substantial evidence supported the ruling. The LPO filed an amended complaint for judicial review contending that the AAU decision was "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law" because of the AAU's articulated reasons for the inconsistent treatment of H-1B petitioners. The LPO further maintains that substantial evidence does not support the AAU's decision. In response, the INS moved to dismiss the LPO claim.
II. ANALYSIS
A. Standard of Review
A defendant may move to dismiss a plaintiff's complaint if it fails to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). If, on a motion asserting this defense, matters outside the pleadings are presented, the court shall treat the motion as one for summary judgment as provided by Rule 56 of the Federal Rules of Civil Procedure. See id.
The INS enjoys broad discretion in deciding whether to grant or deny visa preference classifications. See Omni Packaging, Inc. v. United States Immigration and Naturalization Servs., 733 F. Supp. 500, 502 (D.P.R. 1990). Under the Administrative Procedure Act, an INS decision is reviewed solely to determine whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See 5 U.S.C. § 706(2)(A); Defensor v. Meissner, 2000 WL 29420, * 1 (5th Cir. Jan 17, 2000). The standard is a highly deferential one that presumes an agency's action is valid. See Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981). Even if the court might otherwise disagree with an agency's decision, a court is forbidden from substituting its judgment for that of the agency if a rational basis exists for the agency's decision. See id.
B. Inconsistent Rulings
The LPO first argues that the INS abused its discretion because it issued inconsistent decisions concerning similar petitioners. While evidence of inconsistent treatment of petitions may be an abuse of discretion, it does not necessarily constitute an abuse of discretion. See Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). The Fifth Circuit has held that an agency is not necessarily bound to follow its prior decisions; "[a]n agency must either confirm to its prior precedent or explain its reasoning for departure from that precedent." Laclede Gas Co. v. Fed. Energy Regulatory Comm'n, 722 F.2d 272, 275 (5th Cir. 1984).
In response to this Court's April 5, 1999 order, the INS has provided a rational basis for its departure from precedent in this case. The AAU explained that its decision concerning the LPO's application on behalf of Zhao was not controlled by earlier decisions concerning similar petitioners made by the service centers. The AAU stated that the approval notices in the other cases were not the "precedent" of the AAU. (May 3, 1999 decision). These other approval notices were entered by the NSC and involved requests for visas on behalf of two violinists and an assistant principal violinist. The AAU explained that these decisions were not precedent because they were decided by service centers and not by the AAU. While the service centers have authority to decide H-1B visa petitions initially, the AAU considers appeals of decisions regarding H-1B visa applications made by the service centers. See 8 C.F.R. § 214.2(h)(2)(I)(A); 8 C.F.R. § 103.1(f)(3)(iii)(J) and 103.3(a)(1)(iv).
The AAU's authority over the service centers is comparable to the relationship between the court of appeals and the district court. Just as district court decisions do not bind the court of appeals, service center decisions do not control the AAU. The INS Commissioner may require all service centers to follow the decisions of the AAU by designating certain AAU decisions as precedent. 8 C.F.R. § 103.3(c). Therefore, the AAU is not bound to follow the rulings of service centers that contradict the AAU decision in this case.
The INS further explains that the prior H-B1 petitions inconsistent with the AAU ruling in this case were mistakenly approved. The AAU states that the beneficiaries in these prior cases did not qualify for the speciality occupations visas for the same reasons that Zhao did not. Moreover, the AAU never reviewed these cases and if it had, the AAU could have also denied these visas. See Shanti, Inc. v. Reno, 36 F. Supp.2d 1151 (D.Minn, 1999) (holding that the INS did not abuse discretion in denying visa when INS found two similar prior visa petitions to have been approved in error). Thus, the INS has articulated a rational basis for its decision to explain the inconsistent treatment of the LPO petition.
C. Substantial Evidence
The LPO secondly contends that the INS abused its discretion by issuing a ruling not supported by substantial evidence. When questions of fact are presented, the court reviews the basis of an agency's decision to determine whether its findings are supported by substantial evidence. See Silwany-Rodriguez v. United States Immigration and Naturalization Servs., 975 F.2d 1157, 1160 (5th Cir. 1992). "The substantial evidence standard requires only that the [agency's] conclusion be based upon the evidence presented and be substantially reasonable." Id. Substantial evidence is a deferential standard, meaning a court cannot reverse the agency's decision simply because the court disagrees with the agency's apprehension of the facts. Id. To obtain a reversal of the agency's decision under this standard, it must be shown that the evidence presented was so compelling that no reasonable fact-finder could fail to arrive at a different conclusion. See id. at 1160.
The record suggests that substantial evidence supports the INS decision in the case. The AAU considered all of the evidence presented by the LPO, including the letters from various orchestra directors from around the country, in reaching its decision to deny the petition. While the evidence may support a conclusion different from the one by the AAU, it does not compel it. See American Textile Mfr. Ins., Inc. v. Donovan, 452 U.S. 490, 523 (1981) (noting that "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence"). The INS was within its discretion in defining a speciality occupation in such a way that a position qualifies only if it requires knowledge that is always or nearly always associated with a bachelor's degree or higher rather than knowledge that is usually associated with such a degree. See Louisiana Philharmonic Orchestra, 44 F. Supp at 803.
The Court finds that the factual basis underlying the AAU's ruling is supported by substantial evidence and there is no compelling indication that the AAU's interpretation of the applicable statute is arbitrary or capricious. Therefore, the INS has not abused its discretion in denying the LPO's petition. Because the INS has articulated a rational basis for its inconsistent treatment of the petition and substantial evidence exists to support its decision, the LPO has failed to state a claim upon which relief can be granted.
III. CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss pursuant to Rule 12(b)(6) is hereby GRANTED.
Done this 13 day of March, 2000. New Orleans, Louisiana.