Bolero, Inc. et al v. Johnson et al

Cross MOTION for summary judgment

M.D. Fla.June 14, 2017

1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION BOLERO, INC. and ) CARLOS ALBERTO OSAMBELA ) ) Plaintiffs, ) ) vs. ) Case No. 8:15-cv-1900-T-36MAP ) JOHN FRANCIS KELLY1, Secretary ) of the Department of Homeland Security ) of the United States; ET AL. ) ) Defendants. ) DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT The Defendants cross move for summary judgment under Fed. R. Civ. P. 56, based on the evidence in the Certified Administrative Record (“CAR”). Dkt. 26. The basis for this motion is that the Defendants’ decision is supported by substantial evidence and is not arbitrary, capricious or an abuse of discretion. Additionally, as this is an APA review, the APA standard of review only requires the agency to articulate a rational relationship between the record evidence and its decision, which the Defendants will be able to prove. Accordingly, Defendants are entitled to judgment as a matter of law. INTRODUCTION This immigration case arises as an Administrative Procedure Act (“APA”) 1 Under Federal Rule of Civil Procedure 25(d), John Francis Kelly is substituted for Jeh Johnson, as his successor in office. Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 1 of 35 PageID 270 2 challenge to the United States Citizenship and Immigration Services’ (“USCIS”)2 denial of a Form I-140, Petition for Alien Worker (“Petition”) filed by Plaintiffs. Dkt. 1. Ultimately, USCIS denied the Petition after completely reviewing the record. Dkt. 1, ¶ 15; CAR at 638-655. Upon administrative review, the Administrative Appeals Office (AAO) affirmed the USCIS decision on February 23, 2015 (CAR at 494-515; See Dkt 11, Attachment A) finding that Plaintiffs had failed to establish their eligibility for the I-140. Specifically, the AAO found that (1) the petitioner failed to establish its ability to pay the proffered wage, (2) the petitioner failed to establish that the beneficiary has a degree of expertise significantly above that ordinarily encountered, (3) the petitioner failed to establish that the beneficiary met the job requirements set forth on the labor certification, (4) the petitioner failed to establish that the beneficiary’s work experience during the past twelve months required, and the beneficiary’s intended work in the United States would require exceptional ability, (5) the petitioner failed to establish that the job requires an alien of exceptional ability, and (6) the petitioner failed to establish that the beneficiary was qualified for Schedule A, Group II designation. CAR at 514-515; See Dkt. 11, Attachment A; Dkt. 1, ¶ 19. The decision affirmed the Director’s finding of willful misrepresentation with regard to Bolero’s previous Form DS-156, Nonimmigrant Visa Applications. CAR at 497-498. The AAO also made a separate finding of fraud or willful misrepresentation in relation to representations the Plaintiffs made in 2 The Administrative Appeals Office (AAO), the Board of Immigration Appeals (BIA) and the Texas Service Center (TSC) are all apart of USCIS. Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 2 of 35 PageID 271 3 connection to the Petition. CAR at 501. The AAO concluded that, “[T]he record shows that the petitioner and the beneficiary misrepresented (1) the beneficiary’s employment with the petitioner, (2) the beneficiary’s role as a choreographer for four of the petitioner’s shows and (3) the beneficiary’s role with the Sarasota Opera House…By filing the instant petition and providing false information, the petitioner and the beneficiary have sought to procure a benefit provided under the Act through willful misrepresentation of a material fact. CAR at 501-502. Plaintiffs filed a subsequent motion to reconsider the February 23, 2015 AAO Decision with the AAO, contesting only the misrepresentation portion of the February 23, 2105 AAO Decision. Dkt. 1, ¶ 20, CAR at 476-488. In that motion, Plaintiff’s argued the exact issues and law presented in their Motion for Summary Judgment. See CAR at 478-488 (Subheadings A, B and D); Dkt. 30. The AAO dismissed the motion to reconsider on July 13, 2015. CAR at 466-470. On August 14, 2015, Plaintiffs filed the instant Complaint. Dkt. 1. In that Complaint, Plaintiffs only contest that the finding of misrepresentation by the AAO was unsupported by substantial evidence or was arbitrary and capricious. Id. Thus, the motions for Summary Judgment only address the limited issue of misrepresentation. Dkt. 30. The APA’s exceedingly deferential standard of review requires only that the agency articulate a rational relationship between the record evidence and its decision. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996); see 5 U.S.C. §§ 702, 704; infra Standard of Review, § B. As it relates to the finding of misrepresentation, Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 3 of 35 PageID 272 4 the Defendants provided a rational, thorough, detailed and example specific explanation, supported by substantial evidence, as to why they were denying Plaintiffs’ application based upon misrepresentation. CAR at 732-734, 654-55, 605- 609; 494-515, 466-470. The AAO affirmed the Director’s finding of willful misrepresentation regarding Bolero’s Form DS-156; and made a separate finding of willful misrepresentation as it related the Plaintiffs Petition. CAR at 497-498, 501. Specifically, the AAO concluded that, “[T]he record shows that the petitioner and the beneficiary misrepresented (1) the beneficiary’s employment with the petitioner, (2) the beneficiary’s role as a choreographer for four of the petitioner’s shows and (3) the beneficiary’s role with the Sarasota Opera House…By filing the instant petition and providing false information, the petitioner and the beneficiary have sought to procure a benefit provided under the Act through willful misrepresentation of a material fact. CAR at 501-502. Because Defendants have articulated a rational relationship between the evidence and the decision denying Plaintiffs’ Petition and Defendants decision is supported by substantial evidence, the decision is entitled to deference. Unless this Court concludes the evidence compels a reasonable factfinder to reach a contrary result – that no reasonable factfinder would have reached the same decision – the Court must grant summary judgment in Defendants’ favor. ISSUE PRESENTED AND JURISDICTION Whether the AAO acted reasonably, in accordance with 8 U.S.C. § 1182, and with its own precedent, in affirming the Director’s April 3, 2014 Decision and Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 4 of 35 PageID 273 5 making its own separate fining of fraud or willful misrepresentation. This Court has subject matter jurisdiction because this case raises a federal question, under 28 U.S.C. § 1331, over whether the denial of a visa petition was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law under section 706(2)(A) of the APA. 5 U.S.C. § 702, 706(2)(A), (E); see Viraj, LLC v. Mayorkas, 578 Fed. Appx. 907, 909 (11th Cir. 2014). Although the Plaintiffs' petition was denied on numerous grounds, Plaintiffs, in their Motion for Summary Judgment, only contest the AAO’s finding of “misrepresentation.” Dkt. 30. FACTUAL BACKGROUND 1. On August 9, 2005, Plaintiff, Carlos Alberto Osambela (“Plaintiff,” “Osambela” or “Beneficiary”), filed Form DS-156, Nonimmigrant Visa Application (“Form DS- 156”), with the Department of State, seeking a B1/B2 nonimmigrant visa. CAR at 461-462. On the Form DS-156, Osambela indicated that he was married to Blanca Isabel Aguilar Osambela. CAR at 461. Osambela further indicated that the Form DS-156 was not prepared by someone other than himself. CAR at 462. Osambela signed the DS-156 certifying that he read and understood all of the questions set forth in the application, that all of the answers he furnished on the form were true and correct to the best of his knowledge and he understood that providing false information could permanently bar him from getting a visa3. Id. 3 “I certify that I have read and understood all the questions set forth in this application and the answers I have furnished on this form are true and correct to the best of my knowledge and belief. I understand that any false or misleading statement may result in the permanent refusal of a visa or denial of entry into the United States.” (Emphasis added). Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 5 of 35 PageID 274 6 2. During his consular interview on August 9, 2005, Osambela stated that he was married, lived in a good area, and that his wife was a housewife. CAR at 463. 3. On May 18, 2006, Osambela filed another Form DS-156 with the Department of State. CAR at 457-458. Again, on the Form DS-156, Osambela indicated that he was married to Blanca Isabel Aguilar Osambela. CAR at 457. Osambela again indicated that the Form DS-156 was not prepared by someone other than himself. CAR at 458. However, Osambela did make numerous other changes to the Form. Compare CAR at 461-462 with CAR at 457-458. Osambela signed the DS-156 certifying that he read and understood all of the questions set forth in the application, that all of the answers he furnished on the form were true and correct to the best of his knowledge and he understood that providing false information could permanently bar him from getting a visa. Id. 4. During his consular interview on May 18, 2006, Osambela used a similar story to his previous consular interview. CAR at 459. 5. On June 15, 2007, Plaintiff’s United States Citizen spouse, Wendy Jean Canning, filed a Form I-130, Petition for Alien Relative (“Form I-130”) on behalf of Osambela. CAR at 436-439. Osambela concurrently filed a Form I-485, Application to Register Permanent Residence or Adjust Status. CAR at 164. On the Form G-325A, Biographic Information (Form G-32A) Osambela submitted in support of his Form I-485, he did not list any prior spouses. CAR at 168. 6. On January 30, 2008, U.S. Citizenship and Immigration Services issued a Request for Evidence (“RFE”) requesting that Osambela file a Form I-601, Application for Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 6 of 35 PageID 275 7 Waiver of Grounds of Inadmissibility (“Form I-601”). CAR at 175-176. 7. On March 14, 2008, Osambela filed a response to the RFE, including a Form I-601. CAR at 177-184. 8. Plaintiff’s attorney of record indicated in a letter in support of the Form I-601 that, “Although Mr. Osambela’s application for a nonimmigrant visa stated that he was married with two children, he did not think twice about it since he is legally responsible for his niece and her two children as they all three appear as family responsibilities on his documents in Peru.” CAR at 177. Plaintiff’s attorney of record also stated that, “Mr. Osambela’s nonimmigrant visa application was completed by his employer at the time, Contacto Telefonico. The company filled out the nonimmigrant visa forms for his nonimmigrant visas…” CAR at 178. In Osambela’s statement in support of the Form I-601, Osambela stated that, “When the company I worked for begun [sic] the visa process, they filled out the documents using the data off my tax returns and documents listing family responsibilities. They thought my niece was my wife and that her two children were my children.” CAR at 212. 9. On July 15, 2009, USCIS denied the Form I-130. CAR at 431-435. The denial noted that Osambela had previously testified to a consular officer, in relation to his nonimmigrant visa applications, “that he was married, his wife was a housewife, and that he had two children.” CAR at 434. The denial was based on the petitioner’s failure to provide evidence of the termination of Osambela’s prior marriage to Blanca Isabel Aguilar Osambela as required by the regulations at 8 C.F.R. § 204.2. CAR at Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 7 of 35 PageID 276 8 434. 10. On December 17, 2010, Bolero, Inc. (Petitioner and Fred Astaire Dance Studios) filed a Form I-140, Immigrant Petition for Alien Relative (“Form I-140”), on behalf of Osambela, seeking classification for Osambela as an alien of exceptional ability. CAR at 836-840. 11. On June 14, 2011, USCIS issued a Notice of Intent to Deny (“NOID”) Form I-140. CAR at 802-804. The NOID indicated that USCIS intended to deny the Form I-140 based on Section 204(c) of the Immigration and Nationality Act which prohibits the approval of an immigrant visa petition if “(1) the alien has previously been accorded or has sought to be accorded an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.” CAR at 803-804. The NOID also noted the discrepancies in the record related to Osambela’s marital history. CAR at 802-803. The NOID noted that, “[W]hen he applied for non- immigrant visas at the American Consulate in Lima, Peru on August 9, 2005 and May 18, 2006, Carlos Osambela stated on both applications that he was married to Blanca Isabel Aguilar Osambela. Carlos Osambela also testified during his interviews with U.S. Consulate Officers that he was married and had two children.” CAR at 802. USCIS also noted that Osambela submitted an affidavit to rebut the Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 8 of 35 PageID 277 9 information related to his previous marriage. CAR at 803. However, USCIS concluded that, “The explanation for the marital status discrepancy is not credible. Carlos Osambela signed the visa applications, attesting to the veracity of the information provided. A reasonable person would expect that he, Carlos Osambela, would have reviewed the applications and would have noticed this ‘mistake’ on at least one of the applications…Based on the information provided on the visa applications and the verbal testimony to the consular officer, a visitor visa was granted to Carlos Osambela, Carlos Osambela’s testimony that he was married cannot be attributed to an employer’s error.” CAR at 803. 12. On July 14, 2011, Bolero responded to the NOID. CAR at 794-801. 13. On September 12, 2011, USCIS denied the Form I-140. CAR at 786-792. USCIS concluded that approval of the Form I-140 was precluded under Section 204(c) of the Immigration and Nationality Act which prohibits the approval of an immigrant visa on behalf of individuals “who have attempted to enter into a marriage for the purposes of evading the immigration laws”. CAR at 788. 14. On October 18, 2011, Bolero filed an appeal of the Form I-140 denial to the Administrative Appeals Office of USCIS (“AAO”). CAR at 776-783. 15. On November 3, 2012, the AAO rejected Bolero’s appeal as untimely filed. CAR at 773-774. 16. On May 24, 2013, USCIS reopened the Form I-140 on its own motion to consider the petition on its merits, ordering that the previous decision denying the Form I-140 be withdrawn and that the petitioner be issued a Notice of Intent to Deny the Form Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 9 of 35 PageID 278 10 I-140. CAR at 745. 17. On June 27, 2013, USCIS issued a Notice of Intent to Deny the Form I-140. CAR at 732-744. The NOID concluded that (1) Osambela did not meet the requirements of exceptional ability under Section 203(b)(2)(A) of the INA, (2) Bolero, the petitioner, had not established that the beneficiary met the requirements of Schedule A Group II, and (3) Bolero failed to establish its ability to pay the proffered wage. CAR at 743. The NOID also made a finding of fraud or willful misrepresentation against Osambela under Section 212(a)(6)(C)(i) of the INA. Id. The NOID concluded that, “The beneficiary did not provide true and correct information on two separate occasions on visa application and to interviewing officers. There is a discrepancy in who exactly completed the visa application. The beneficiary’s credibility has been called into question. The beneficiary, by not providing true and correction information on the visa applications and to interviewing officers, has stunted a line of inquiry. The beneficiary has willfully misrepresented a material fact.” Id. 18. On September 30, 2013, Bolero responded to the NOID. CAR at 657-731. Bolero’s attorney of record drafted a letter in response to the NOID. CAR at 657- 663. In the letter, Bolero’s attorney stated that, Osambela “was unsure how to classify his complicated family situation wherein he served as head of household to his niece and her children, and claimed responsibility for them, as permitted under Peruvian law, by adding his name to the children’s birth certificates to legitimize them. Mr. Osambela did not correct the error of marital status by providing the Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 10 of 35 PageID 279 11 complicated distinctions of his family relations, and instead chose to confirm the information initially contained in the first DS-156 and prepared and submitted by his employer, as well as the second DS-156.” CAR at 663. 19. On April 3, 2014, USCIS denied Form I-140, and certified the denial to AAO for review. CAR at 638-655. The Director of the Texas Service Center of USCIS, after considering Bolero’s response to the NOID, concluded that (1) Osambela did not meet the requirements of exceptional ability under Section 203(b)(2)(A) of the INA, (2) the petitioner had not established that the beneficiary qualifies for Schedule A, Group II, and (3) the petitioner had not established its ability to pay the proffered wage. CAR at 455. Moreover, the denial made a finding of fraud or willful misrepresentation against Osambela under Section 212(a)(6)(C)(i) of the INA. CAR at 654-655. The denial stated that: [U]pon review of two of the beneficiary’s Form DS-156, the beneficiary indicated on both that he was married and listed a spouse. The beneficiary made statements to interviewing officers. That he was married and had two children in Peru. However, at a later point in time, the beneficiary stated that he was never married in Peru and had no children. By signing the Form DS- 156 on two separate occasions indicating he was married, yet knowing that was not true, the beneficiary submitted those applications with false or misleading information.” CAR at 654. The NOID further stated that: If the beneficiary had provided true and correct information of his marital status, the interviewing officer may have continued a line of questioning to verify the beneficiary’s nonimmigrant intent…As the beneficiary did not provide his true and correct marital status on the Forms DS-156, the interviewing officer did not have the accurate information to evaluate the beneficiary’s nonimmigrant intent…The beneficiary, by not providing true and correct information on the visa applications and to interviewing officers, stunted a line of inquiry. Therefore, the beneficiary willfully misrepresented a Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 11 of 35 PageID 280 12 material fact.” Id. 20. On May 5, 2014, Bolero filed their written statement in support of the certified review of the denial of Form I-140. CAR at 626-636. In this statement, Bolero argued that USCIS failed to provide clear, convincing and unequivocal evidence that Osambela stated that his employer completed the Forms DS-156, and that Osambela’s statements as to his marital status and offspring were not willful. CAR at 629-630. Bolero requested that the April 3, 2014 denial be reversed, and the Form I-140 approved, or in the alternative, that the April 3, 2014 denial be modified to find that Osambela had not committed fraud or willful misrepresentation. CAR at 635. 21. On July 14, 2014, the AAO issued a Notice of Derogatory Information (“NDI”) advising Bolero of new information that was adverse to its claim of eligibility and separate from the Director’s finding of willful misrepresentation. CAR at 605-609. The NDI notified Bolero that the AAO intended to dismiss the appeal and reaffirm the director’s finding of misrepresentation. Id. The AAO noted that there were several inconsistencies in the record, including inconsistencies related to Osambela’s previous work as a choreographer and his employment experience. CAR at 606. Specifically, the AAO noted that in response to the June 27, 2013 NOID, Bolero submitted a letter from Jim Reid, Director of Theater Operations at the Sarasota Opera, and a signed letter from Bolero. Id. The AAO noted that both of these letter stated that Osambela choreographed four different operas. Id. However, upon review of public information, the AAO determined that Osambela was not the Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 12 of 35 PageID 281 13 choreographer for any of the four claimed shows. Id. The NDI also noted inconsistencies between a letter from Bolero, dated September 5, 2013, which stated that their studio had signed a 10-year contract with the Opera House to do their choreograph work, and a letter from Jim Reid indicating that Bolero’s studio only had a rental agreement with the Opera House. Id. Additionally, the AAO noted that the record contained several inconsistencies related to Osambela’s employment experience. CAR at 606-607. Specifically, the AAO noted inconsistencies in the record related to Osambela’s position at Fred Astaire Dance Studios (Bolero). CAR at 607. The AAO noted that in section K of the ETA Form 9089; the Form G- 325A, dated January 5, 2010; and Bolero’s letter, dated February 28, 2008, Osambela’s position with Fred Astaire Dance Studios was identified as Dance Instructor/Choreographer. Id. However, Bolero’s letter, dated February 28, 2008, and the Form G-325A, dated March 12, 2008, both indicated that Osambela was an officer manager for Fred Astaire Dance Studios. Id. The NDI also stated that there were further inconsistencies related to Osambela’s claimed work experience. CAR at 607-608. The NDI concluded that based on Bolero’s filing of the Form I-140 and its submission of the evidence described in the NDI, it appeared that Bolero sought to procure an immigration benefit through misrepresentation. CAR at 609. Finally, the NDI stated that it appeared that Osambela had also sought to procure an immigration benefit through misrepresentation. Id. 22. On September 15, 2014, Bolero responded to the NDI. CAR at 537-597. 23. On February 23, 2015, the AAO issued its final decision on the appeal. CAR at Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 13 of 35 PageID 282 14 494-515. The decision affirmed the Texas Service Center Director’s April 13, 2014 denial, entered a separate finding of willful misrepresentation of a material fact, and found that, “[T]he petitioner and beneficiary knowingly misrepresented material facts in an effort to mislead USCIS on elements material to the beneficiary’s eligibility for a benefit sought under the immigration laws of the United States.” CAR at 515. The decision affirmed the director’s finding of willful misrepresentation with regard to Osambela’s previous Form DS-156, Nonimmigrant Visa Applications. CAR at 497-498. The AAO concluded that, “[T]he beneficiary signed Form DS-156 on two separate occasions which contained information that was not ‘true and correct.’ Specifically, either the information regarding his marital status or the information regarding who had completed the form was incorrect.” CAR at 497. Additionally, the AAO stated that Bolero’s response to the NDI regarding its representation that Osambela choreographed four different operas was insufficient to overcome the noted inconsistencies. CAR at 499. The AAO also stated that Bolero’s response to the NDI was insufficient to resolve inconsistencies related to Osambela’s role with the Sarasota Opera House. CAR at 499. The AAO indicated that Bolero’s response to the NDI was insufficient to overcome the inconsistencies related to Osambela’s employment history, including his employment with Bolero. CAR at 499-501. The AAO concluded that, “[T]he record shows that the petitioner and the beneficiary misrepresented (1) the beneficiary’s employment with the petitioner, (2) the beneficiary’s role as a choreographer for four of the petitioner’s shows and (3) the beneficiary’s role with the Sarasota Opera House.” Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 14 of 35 PageID 283 15 CAR at 501. The AAO further concluded that, “The documentation submitted has not established that (1) the petitioner has the ability to pay the proffered wage, (2) that the beneficiary has a degree of expertise significantly above that ordinarily encountered, (3) that the beneficiary meets the job requirements set forth on the ETA Form 9089, (4) that the beneficiary’s work experience during the past twelve months did require, and the beneficiary’s intended work in the United States will require exceptional ability, (5) that the job requires an alien of exceptional ability, or (6) that the beneficiary is qualified for Schedule A, Group II designations. Thus, the petitioner has not established that the beneficiary is qualified for the benefit sought.” CAR at 514. 24. On March 27, 2015, Osambela filed a Motion to Reconsider4 the AAO’s February 23, 2015 decision. CAR at 476-488. In this Motion, Plaintiffs raise the same issues presented in their Motion for Summary Judgment, plus one additional issue regarding Hearsay. Id. 25. On July 13, 2015, the AAO dismissed the Motion to Reconsider. CAR at 466-470. The AAO affirmed the February 23, 2015 decision of the AAO, and stated that, “the petition remains denied with a finding of misrepresentation.” CAR at 470. The AAO determined that 1). Osambela’s “misstatements” on his Form DS-156 were material and willful misrepresentations; 2) that Bolero misrepresentations cannot be imputed to Osambela, but that Plaintiffs misrepresentations were separately listed; 3) as it relates to any hearsay information, USCIS followed the law by providing all 4 The equivalent of a Motion for Summary Judgment at the Administrative level. Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 15 of 35 PageID 284 16 derogatory information to Plaintiffs and gave them an opportunity to rebut, which they did and 4) the subsequent findings of misrepresentation were material. CAR at 468-470. STANDARD OF REVIEW A. Summary Judgment. Ordinarily, Rule 56 of the Federal Rules of Civil Procedure governs the Court’s review of a motion for summary judgment. Under that standard, “[t]he court shall grant summary judgment if the movant shows 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). However, “when a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal,” and “[t]he ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001). Thus, in deciding a motion for summary judgment challenging a final agency action, the function of the reviewing court is to determine whether, as a matter of law, the evidence in the administrative record permitted the agency to make the decision it did. See Defenders of Wildlife v. U.S. Dep’t of Navy, 733 F.3d 1106, 1115 (11th Cir. 2013). The standard of review set forth in Fed. R. Civ. P. 56 is not applicable; instead, “when an agency action is challenged [,] [t]he entire case on review is a question of law, and only a question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C.Cir.1993). Because a district court does not resolve any facts when reviewing an administrative record, “[s]ummary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 16 of 35 PageID 285 17 and otherwise consistent with the APA standard of review.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C.2006)). B. The legal standard of review under the APA is narrow and exceedingly deferential to the agency’s judgment. A claim for judicial review of an agency’s final determination falls within the “exceedingly deferential” review standards of the APA. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996); see 5 U.S.C. §§ 702, 704. Under the APA, a court may hold unlawful and set aside an agency action only if it finds the action to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” or “unsupported by substantial evidence.” 5 U.S.C. § 706(2)(A), (E); Black Warrior Riverkeeper v. U.S. Army Corp of Engineers, 781 F.3d 1281, 1288 (11th Cir. 2015). “The court’s role is to ensure that the agency came to a rational conclusion, ‘not to conduct its own investigation and substitute its own judgment for the administrative agency’s decision.’” Defenders of Wildlife, 733 F.3d at 1115 (citations omitted). Such review is necessarily based on the administrative record before the agency at the time the agency’s decision was made. Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam). While a court’s review under the APA should be “searching and careful,” it is not de novo. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989). “To determine whether an agency decision was arbitrary or capricious, the reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there had been a clear error of judgment.” Fund for Animals, Inc., 85 F.3d at 541. Thus, a court may reverse agency action only if “the agency has relied on factors that Congress has not intended it to consider, entirely failed to consider an Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 17 of 35 PageID 286 18 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 of the product of agency expertise.” Id. “[T]he arbitrary and capricious standard gives an appellate court the least latitude in finding grounds for reversal,” and the administrative decision “should be set aside in this context only for substantial procedural or substantive reasons as mandated by statute, . . . not simply because the court is unhappy with the result reached.” North Buckhead Civic Ass’n. v. Skinner, 903 F.2d 1533, 1538-39 (11th Cir. 1990). The “substantial evidence” standard is “no more than a recitation of the application of the ‘arbitrary and capricious’ standard to factual findings.” Fields v. U.S. Dep’t of Labor Admin. Review Bd., 173 F.3d 811, 813 (11th Cir. 1999) (per curiam). Under this standard, a court may “ ‘reverse such findings only when the record compels a reversal; the mere fact that the record may support a contrary conclusion is not enough.” Indrawati v. U.S. Att'y Gen., 779 F.3d 1284, 1304 (11th Cir. 2015). “Even when an agency explains its decision with ‘less than ideal clarity,’ a reviewing court will not upset the decision on that account ‘if the agency's path may reasonably be discerned.’ ” Alaska Dep't of Envtl. Conservation v. E.P.A., 540 U.S. 461, 497 (2004) (quoting Bowman Transp., Inc. v. Arkansas–Best Freight System, Inc., 419 U.S. 281, 286 (1974)). Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 18 of 35 PageID 287 19 ARGUMENT A. Defendants are entitled to summary judgment in their favor because USCIS based its misrepresentation finding on substantial and probative evidence, and the record does not compel a contrary conclusion. Under the exceedingly deferential review afforded by the APA, this Court should uphold the agency’s finding of misrepresentation. Plaintiffs have failed to demonstrate that USCIS (AAO) acted arbitrarily, capriciously, or contrary to law; that the denial of the visa petition violated Plaintiffs’ due process rights or was not supported by substantial evidence. The record demonstrates that USCIS, on four separate occasions, provided Plaintiffs’ with a rational, thorough, detailed and legal explanation as to why they made a finding of willful misrepresentation. CAR at 732-744, 654-655, 605-609, 494-515. These explanations were supported by substantial evidence. Id. USCIS disclosed the derogatory evidence in the record (CAR at 732-744, 654-655, 605-609, 494- 515), offered Plaintiffs’ an opportunity to rebut that evidence (CAR at 657-673, 626-636, 637-597, 476-488) and thoroughly and thoughtfully analyzed Plaintiffs’ responses (CAR at 494-515). Thus, these explanations were supported by substantial evidence. Additionally, the same arguments Plaintiffs make in their Motion for Summary Judgment, (See CAR at 478-488 (Subheadings A, B and D) and Dkt. 30), were rationally, legally and succinctly rebutted by USCIS (AAO). CAR at 466-470. Additionally, USCIS provided specific details of the misrepresentations, along with legal authority. Id. Again, Plaintiffs are hard pressed to say that Defendants did not follow the law; their decision was unsupported by substantial evidence; was arbitrary or capricious or that Plaintiffs’ substantive rights were violated. Additionally, as to the Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 19 of 35 PageID 288 20 Agency’s decisions, they [did not]rel[y] on factors that Congress has not intended [them] 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 of the product of agency expertise. Marsh, 490 U.S. at 378. The agency cited substantive and controlling case law, considered the record as a whole and all the probative evidence in it; thus making multiple rational decisions. CAR at 732-734, 654-655, 605-609, 494-515 USCIS’s decision, and the AAO’s affirmance of that decision, articulates a rational basis between the evidence and the determination that Plaintiffs’ willful misrepresentations prohibits approval of Plaintiffs Petition. Additionally, substantial evidence supports the USCIS’s decision, and the AAO’s affirmance of that decision. Therefore, Defendants are entitled to judgment as a matter of law. B. Willful Misrepresentations As it relates to Immigration matters, the Eleventh Circuit has found that a misrepresentation is willful5 “if the statement was deliberate and the alien had 5 Plaintiffs argue that another legal definition of willful misrepresentation should be applied. Dkt. 30 at 8 (citing the Department of State’s Foreign affairs manual). First, the Eleventh Circuit has already defined that a statement is a “willful misrepresentation” if it “was deliberate and the alien had knowledge of the statements falsity.” Azim, 314 Fed. Appx. 193, 195 (11th Cir. 2008). Second, the Department of State manual is not binding on the USCIS. 8 C.F.R. § 103.3(c) and 103.9(a) provide that only USCIS precedent is binding on USCIS. Third, if the Plaintiffs are attempting to argue a new definition or cause of action based on a manual, the Court has held that a field manual does not have the force of law. Bradley v Sebelius, 621 F.3d 1330, 1338 (11th Cir. 2010)(holding that a field manual or other internal administrative guidance that has not been promulgated in accordance with APA notice-and-comment rule making procedures does not have the force and effect of law). When Plaintiffs attempt to raise a cause of action on the basis of such internal guidance, the Court has held that the manual does not create enforceable, substantive federal rights. U.S. v. Harvey, 659 F.2d 62, 65–66 (5th Cir. 2007; see also Bright v. Nimmo, 756 F.2d 1513, 1515–17 (11th Cir.1985). Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 20 of 35 PageID 289 21 knowledge of the statement’s falsity.” Azim v. U.S. Attorney General, 314 Fed. Appx. 193, 195 (11th Cir. 2008) (internal citations omitted). If the Court finds the statement was a willful misrepresentation, the Court then looks to see if those misrepresentations were material. Id. at 196. A misrepresentation is material if it was predictably capable of affecting, i.e., had a natural tendency to influence the decisions of an immigration official. Kungys v. U.S., 485 U.S. 759, 772 (1988); Azim, 314 Fed. Appx. at 196. Although Plaintiffs have cited a “four-part analysis” for a material misrepresentation, their legal analysis and standard is misplaced. Dkt. 30, p. 5. Plaintiffs are citing the four-part misrepresentation standard for 8 U.S.C. 1451(a) and a denaturalization proceeding. Kungys, 485 U.S. at 767 (emphasis added). The Supreme Court specifically held that the misrepresentation standard does not apply to visa applications. Kungys, 485 U.S. at 773 (holding “Procurement of other benefits, including visas, is not covered.”). Thus, Plaintiffs’ assertion that the Court use the Kungys four-part analysis for misrepresentation is misplaced. For a visa or entry into the United States, the BIA, the Attorney General and the Eleventh Circuit have found that a misrepresentation is material6 if either 1) the alien is excludable on the true facts, or 2) [a] the misrepresentation tends to shut off a line of inquiry which is relevant to the 6 Citing Ali v. Att’y Gen of U.S., 443 F.3d 804, 812 (11th Cir. 2006), Plaintiffs argue that materiality requires an “apparent” showing of inadmissibility. Dkt. 30 at 6. However, as cited above, the Eleventh Circuit has already defined the definition of materiality as it relates to visas and entry into the United States. The materiality proposition Plaintiffs suggest relates to deportation and removal proceedings, see Ali v. Att’y Gen. of U.S., 443 F.3d 804, and this Court should not follow it. Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 21 of 35 PageID 290 22 alien’s eligibility and [b] which might well have resulted in a proper determination that he be excluded. Azim, 314 Fed. Appx. at 196, Matter of Kai Hing Hui, 15 I. & N. Dec. 288, 289 (BIA 1975) quoting the Attorney General’s Opinion in Matter of S-and B-C-, 9 I. & N. Dec. 436, 447-49); Cf. Kungys v. U.S., 485 U.S. 759, 772 (1988)(holding that a concealment or misrepresentation is material if it has “a natural tendency to influence the decisions of the Immigration and Naturalization Service”); CAR at 178. As the Eleventh Circuit has noted The important factor is how the case would have appeared to the consul had he been in possession of all the facts at the time application was made. If having been in possession of all the facts, it would have appeared probable to the consul that respondent was inadmissible, then concealment of those facts was a material matter. Azim, 314 Fed. Appx. at 196 (citations omitted); Cf Kungys, 485 U.S. at 772. Plaintiffs do not dispute that they made misstatements in their forms, petitions and applications, but refute these misstatements were misrepresentations or were material. Dkt. 30. a. Osambela’s misrepresentations on his DS-156 and marital status. It is without a doubt that Osambela made five willful misrepresentations: twice regarding his marital status and two children on two of his Form DS-156 (signed by Osambela under penalty of perjury) (CAR at 461-462, 457-458), twice in person to the consular officer (CAR at 463, 459) and again as it related to his marital status when he filed for adjustment of marital (Forms I-485 – also under penalty of perjury - and I-130) (CAR at 164, 168). Interestingly, Osambela wants to have his cake and eat it too. He first Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 22 of 35 PageID 291 23 claimed that when he filled out his DS-156, he “did not think twice about it….” CAR at 177. He then stated that someone else filed out his DS-156s. CAR at 178, 212. He can’t simultaneously claim the he filled out the DS-156s, but also that someone else filled out his DS-156s. In response to the I-130 NOID he stated that he at least filled out the second NIV application, and left the second one the same based on his employer’s prior application. CAR at 662. His attorney’s statement is located on p. 633 of the CAR where he claims that he kept his answers the same as the previous NIV application. Either way, Osambela claims all this was an “honest mistaken belief” that his niece was somehow his wife, a semantical7 difference and not willful. Dkt. 30 at 8. Moreover, even assuming arguendo that the Court accept Osambela’s story that he did not know how to classify his niece (i.e. he marked her as his spouse on the NIV), then the questions begs: why didn’t he also list her on his G-325A in support of his Form I-130 as a former spouse. CAR at 606-607. Plaintiff is changing his story from response to response, to wit: a) On the NIV applications, Osambela listed them as his spouse and children, and indicated that no one else filled them out. CAR at 461- 462, 457-458. In fact, he significantly changed his answers, except his marital status, on his second DS-156. CAR at 457-458. He made these same assertions to the consular officers during his interviews 7 In Spanish, wife and niece are not even pronounced or phonetically similar as wife is “esposa” and niece is “sobrina.” Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 23 of 35 PageID 292 24 (CAR at 463, 459); these are misstatements that cannot be attributed to anyone but him. b) Osambela failed to correct the consular twice about his “spouse” niece. CAR at 463, 459. c) On the G-325A filed in support of his Form I-485/I-130, he was not similarly confused, as he failed to list any former spouse there. CAR at 168. d) When questioned about his failure to list the formerly claimed spouse, in the I-485/I-130 response, he provided an affidavit which stated that his former employer filled out the NIV applications, that they incorrectly listed his niece and her children as his spouse and children, and that he did not know the way to classify his family relationships. CAR 211-212 (emphasis added). e) Now, in the motion for summary judgment, Osambela is arguing that he had “an honest mistaken belief” that his niece was somehow his “spouse.” Dkt. 30 at 8. However, it is hard to imagine that someone who so desperately wanted a nonimmigrant visa to the United States (he applied and was interviewed twice) would not take the time to read the applications thoroughly and carefully before signing them -under penalty of perjury and with a warning that providing false information could result in a permanent refusal of a visa- or at least correct the consular when he was interviewed. In essence, Osambela gave five blatant Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 24 of 35 PageID 293 25 statements to immigration officials which he knew were deliberately false. See CAR at 177, 178, 212. Thus these five statements were willful misrepresentations which had the natural tendency to influence the decisions of immigration officials as they tended to shut off a line of inquiry relevant to his eligibility and “which might well” have resulted in his exclusion. Kungys v. U.S., 485 U.S. 759, 772 (1988); see Azim, 314 Fed. Appx. at 196; Matter of Kai Hing Hui, 15 I. & N. Dec. 288, 289 (BIA 1975)(emphasis added). Additionally, as to the misrepresentations on the two DS-156s – CAR at 461- 462, 457-458, 802-803- two in-person consular interviews- CAR at 463, 459) and the Form I-485 (CAR at 164), Plaintiffs claim that whatever answer Osambela put in the marriage box or told the consular officer about his marriage would have resulted in “visitor visa granted” (Dkt. 30 at 6), did not shut off a line of questioning (Dkt. 30 at 8) and in and of itself did not deem him inadmissible (Dkt. 30 at 7)8. In essence, they are saying the question of marriage is not relevant to an alien’s eligibility. However, Plaintiffs argument misses the mark. The inquiry has two parts: shutting off a line of questioning to admissibility and whether the misrepresentations “might well have resulted” in a refusal of Osambela’s application. By misrepresenting Osambela’s marital status and who actually filled out the Forms, immigration officials were first shut off from a line of inquiry into Osambela’s true intentions to 8 Under the INA, the test is (1) did he make a material misrepresentation, and (2) did he seek to procure a benefit under the Act. In order to establish eligibility for the visa, he had to establish that he had no intention of abandoning his foreign residence. INA 101(a)(15)(B). Here, Osambela made misrepresentations regarding whether he was married and had two kids in Peru in order to establish his nonimmigrant intent, that he did not intend to abandon his foreign residence as required by statute. It was material under Kungys, because it had a tendency to affect the consular officer’s decision regarding whether he was eligible for the B1/B2 visa Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 25 of 35 PageID 294 26 enter the United States on a nonimmigrant visa. Second, this line of inquiry that was shut off might have resulted in Osambela’s applications being denied. Because of these misrepresentations, the consular and immigration officials could not probe Osambela’s nonimmigrant intent, his ties to Peru, his reasons for visiting the United States, etc., all of which are important factors that may be taken into consideration when determining whether to issue an individual a visitor visa Consular and immigration officials might well have denied Osambela’s visa applications had they known that he was unmarried with no strong ties to Peru and his intentions to enter the United States. Thus, the misrepresentations made by Osambela may have resulted in a denial of his nonimmigrant visa application, were material, were willful, and are supported by substantial evidence9 in the record, and, thus, do not require the Court to set aside the finding of misrepresentation b. Misrepresentations based upon a third party. Plaintiffs claim that any misrepresentations made by Bolero in the February 23, 2015 AAO decision (CAR at 494-515) cannot be imputed on Osambela, Dkt. 30 at 9, and the undersigned agrees. Based upon a review of the CAR and the February AAO decision, however, Defendants decisions do not find any evidence of Bolero’s misrepresentations being imputed on Osambela. See CAR at 494-515. All 9 Plaintiffs cite Matter of Tijam, 22 I. & N. Dec. 408 (BIA 1998) for the proposition that the AAO and USCIS must prove misrepresentation by clear and convincing evidence. Dkt 30 at 8. However, the case cited is for deportation, not visa application cases and the substantial evidence standard still applies. Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 26 of 35 PageID 295 27 the notices (CAR at 732-744, 638-655, 605-609) and decisions (CAR at 802-804, 786- 792, 494-515, 466-470) discuss the misrepresentations of Bolero and Osambela separately, including the February 23, 2015 AAO decision (CAR at 494-515). In December 2010, Bolero filed a petition on behalf of Osambela for an immigrant visa based upon exceptional ability. CAR at 836-840. In June 2013, USCIS issued a NOID. CAR at 732-744. Bolero’s petition was eventually denied for attempting to evade the immigration laws. CAR at 788. Bolero appealed the decision, which was rejected and eventually reopened. CAR at 776-783, 773-774, 745. In June 2013, USCIS issued another NOID for Bolero’s petition based upon the record and responses. CAR at 732-744. In that NOID, two separate findings were made: one for Bolero (petition) and another for Osambela. As Bolero (petition), USCIS found that 1) Bolero did not meet its burden of proving that Osambela met the requirements of exceptional ability; 2) Osambela did not meet the requirements of Schedule A Group II and 3) Bolero failed to establish its ability to pay the proffered wage. CAR at 743. As to Osambela, USCIS found that he had made willful misrepresentations. CAR at 742-743. The USCIS found that based upon the evidence in the record, Osambela provided false information on his two DS-156s despite signing those forms under penalty of perjury and with the caveat that “any false or misleading statement may result in the permanent refusal of a visa . . .” (CAR at 462, 458); he misrepresented who actually filed out the two DS-156 Forms (Id.) and he reiterated the false statements regarding being married to consular Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 27 of 35 PageID 296 28 interviewing officers (CAR at 463, 459). CAR at 742-743. Nowhere in the decision are any misrepresentations by Bolero imputed to Osambela. In September 2013, Bolero responded to the June 2013 NOID. CAR at 657- 731. In April 2014, USCIS again denied Bolero’s petition and certified the decision to the AAO. CAR at 638-655. In that denial, USCIS made two separate findings: one against Bolero regarding the eligibility for the classification sought and one against Osambela. CAR at 654-655. These findings are similar to the June 2013 NOID findings. Id., see CAR at 742-744. In the decision, the Director noted that, “On previous entries into the United States, the beneficiary filed the Form DS-156 Nonimmigrant Visa Application…upon review of two of the beneficiary’s Form DS- 156, the beneficiary indicated that he was married and listed as a spouse. The beneficiary made statements to interviewing officers indicating that he was married and had two children in Peru. However, at a later point in time, the beneficiary stated that he was never married in Peru and had no children. By signing the Form DS-156 on two separate occasions indicating he was married, yet knowing that was not true, the beneficiary submitted those applications with false or misleading information…If the beneficiary had provided true and correct information of his marital status, the interviewing officer may have continued a line of questioning to verify the beneficiary’s nonimmigrant intent…As the beneficiary did not provide his true and correct marital status on the Forms DS-156, the interviewing officer did not have accurate information to evaluate the beneficiary’s nonimmigrant intent…Therefore, the beneficiary willfully misrepresented a material fact.” CAR at Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 28 of 35 PageID 297 29 654. (emphasis added). Again, nowhere in this NOID are any misrepresentations by Bolero imputed to Osambela. In May 2014, Bolero filed a written statement in support of the review of the denial. CAR at 626-636. In July 2014, the AAO issued a NDI. CAR at 605-609. In that NDI, the AAO, having reviewed the records and submissions by Bolero, noted the discrepancies in the record as they related to Bolero and separately to Osambela. CAR at 606-608. One glaring inconsistency that was noted was related to Osambela’s work experience for Bolero. CAR at 606-607. The AAO found, based upon separate evidence, that Bolero and Osambela had sought to procure an immigration visa based on misrepresentation. CAR at 609. The AAO found Bolero was responsible for following misrepresentations: (1) his Form I- 140, including a letter from Jim Reid claiming Bolero choreographed 4 shows and signed a 10-year contract and (2) misrepresented Osambela’s work history. CAR at 605-609. The AAO found that Osambela was responsible for the following misrepresentations: (1) his work history on the Form ETA 9089; (2) his work history on the Form G-325A; (3) a letter he signed January 5, 2010 regarding his employment and (4) his nonimmigrant visas. CAR at 606-607. Again, nowhere in this NDI are any misrepresentations by Bolero imputed to Osambela. In February 2015, the AAO issued its final decision on the appeal. CAR at 494-515. They affirmed the April 13, 2014 decision (CAR at 638-635) and, based upon the voluminous record and evidence presented to it, found that Bolero and Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 29 of 35 PageID 298 30 Osambela knowingly misrepresented material facts to mislead USCIS so Osambela could gain a benefit under US immigration laws. CAR at 515. They delineated Bolero’s misrepresentations and Osambela’s misrepresentations separately. CAR at 494-515. Nowhere in the February 23, 2015 decision are any misrepresentations by Bolero imputed to Osambela. In the February 23, 2015 AAO decision, the AAO explains separately the misrepresentations of both Bolero and Osambela. CAR at 494-515. Regarding Osambela, the AAO states their findings were based on Osambela’s misrepresentations and lack of veracity in the two DS-156, his misrepresentations as to who actually filled out the two DS-156 and his marital status (Osambela signed, under penalty of perjury, the ETA-9089). CAR at 496-497, 508, 510. The AAO also delineated the material misrepresentations made during the Form I-140 proceedings as well. The AAO then goes on to explain their findings as it relates separately to Bolero and Osambela. CAR at 497-501, 510-513. Finally, the AAO lays out the reasons it denied the petition by incorporating Bolero’s and Osambela’s inconsistencies and contradictory statements. CAR at 503-508. As such, nowhere in the record does the AAO impute any of Bolero’s misrepresentation on Osambela. The AAO explains how Osambela’s misrepresentations are inconsistent with both information from Bolero and his own previously submitted information and how Osambela’s misrepresentations affected Bolero’s petition for him. CAR at 494-515. Thus, the separate, non –imputed findings of misrepresentation do not require the Court to set aside the USCIS’s and the AAO’s findings of misrepresentation. Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 30 of 35 PageID 299 31 c. “New” and subsequent misrepresentations found by agency are material. Plaintiffs claim, without any case law or binding support10, that the Defendants, and in particular the AAO, cannot go “beyond the findings of the Director to find grounds for denial of the application based on additional misrepresentations.” Dkt. 30 at 10-11; Dkt. 30, fn. 1. Plaintiffs further argue, without case law, that the additional evidence of misrepresentation found by the AAO is not material. Dkt. 30 at 11. First, the AAO conducts its appellate review of the record on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 3d Cir. 2004); Spencer Enterprises Inc. v. US., 229 F. Supp. 2d 1025, 1043 E.D. Cal. 2001) aff’d 345 F.3d 683 (9th Cir. 2003). Based on that ability to review de novo, the AAO made additional findings of fraud and material misrepresentation against Osambela based on the fraud he perpetrated in the Form I-140 regarding his employment history with the petitioner. CAR at 743, 654-658, 497-498. Moreover, it doesn’t really matter that the AAO made this finding. Even if the AAO had not made this finding, if any officer reviewed a subsequent adjustment of status application and thought based on the evidence that he was inadmissible under 212(a)(6)(C)(i), it wouldn’t matter. Any officer can review this evidence in additional petitions and come to the same conclusion. 10 Again. the Department of State manual is not binding on the USCIS. 8 C.F.R. § § 103.3(c) and 103.9(a). The C.F.R. and case law provide that only USCIS precedent is binding on USCIS. 8 C.F.R. § § 103.3(c) and 103.9(a); Bradley, 621 F.3d at 1338. Second, if the Plaintiffs are attempting to argue a new definition or cause of action based on a manual, the Court has held that a field manual does not have the force of law. Bradley, 621 F.3d at 1338. When Plaintiffs attempt to raise a cause of action on the basis of such internal guidance, the Court has held that the manual does not create enforceable, substantive federal rights. Harvey, 659 F.2d at 65–66; see also Bright, 756 F.2d at 1515–17. Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 31 of 35 PageID 300 32 Second, Title 8, United States Code, Section 1361 places on the visa applicant the burden of establishing eligibility to receive a visa. 8 U.S.C. § 1361. Osambela’s willful misrepresentations occurred when he applied for two Form DS-156 (2005 and 2006), two consular interviews, the 9089 form signed by both Bolero and Osambela, a Form G- 325A signed by Osambela indicating his employment with Bolero as an “Instructor/Choreographer” and “Office Manager” as of November 2007, and his submission of a letter signed by Bolero stating Osambela was an officer manager. CAR at 607. Osambela entered the United States on a nonimmigrant visa procured by willful misrepresentations. CAR at 461-463, 457-459. He married a United States citizen and attempted to change his immigrant status. CAR at 436-439, 164. When that was denied, Osambela attempted to have his employer procure a visa for him. CAR at 836- 840. Plaintiffs both misstated and misrepresented information on that petition. Misstatements and misrepresentations follow Osambela on his applications for entry into the United States. They do not wash away like a treatable stain in the laundry. To allow such would give those seeking entry into the United States the ability to unjustly “cleanse” their past (which is implicit lying or lying by omission) to make them seem more palatable for entry and would defeat the immigration laws. Either way, the Defendants scrutinized the record and noticed all the misrepresentations, all of which were material and willful to their finding of a denial of the immigrant petition filed by Bolero on Osambela’s behalf. Where the agency relies on relevant evidence that a reasonable mind might accept as adequate to support a conclusion, substantial evidence supports its decision. Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 32 of 35 PageID 301 33 Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071, 1076 (9th Cir. 2003). As Plaintiffs’ supplied a majority of the record evidence and continually attempted to gain access to the United States, any information they provided or was found by USCIS is relevant to the Defendant’s findings. Additionally, all of the evidence USCIS and the AAO relied upon was provided to Plaintiffs prior to Bolero’s Complaint. CAR at 607. Thus, the findings of misrepresentation after the initial denial does not require the Court to set aside the findings of misrepresentation. CONCLUSION Based upon a review of the administrative record, the Court should find that the Agencies came to a rational conclusion of willful misrepresentation based upon the substantive evidence before it. Lastly, based upon the substantive evidence replete in the record, the Court should also find that the Agencies decision was not arbitrary, capricious or not based upon the law. Nothing in the record compels a different conclusion. See, Family Inc., 469 F.3d at 1315. As it relates to the finding of misrepresentation, the Defendants provided a rational, thorough, detailed and example specific explanation, supported by substantial evidence, as to why they were denying Plaintiffs’ petition based, in part, upon misrepresentation. Because Defendants have articulated a rational relationship between the evidence and the decision denying Plaintiffs’ Petition and Defendants decision is supported by substantial evidence, the decision is entitled to deference WHEREFORE, Defendants respectfully request that the Court grant the Cross Motion for Summary Judgment. Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 33 of 35 PageID 302 34 Respectfully submitted, W. STEPHEN MULDROW United States Attorney By: s/ John F. Rudy, III JOHN F. RUDY, III Kristy L. Blumeyer-Martinez Assistant United States Attorney Associate Counsel FBN: 0136700 U.S. Dept. of Homeland Security 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: (813) 274-6000 Facsimile: (813) 274-6200 E-mail: John.rudy@usdoj.gov Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 34 of 35 PageID 303 35 CERTIFICATE OF SERVICE I hereby certify that on June 14, 2107, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system that will send a notice of electronic filing to the following: Jason Ramos, Esq. s/ John F. Rudy, III JOHN F. RUDY, III Assistant United States Attorney Case 8:15-cv-01900-CEH-MAP Document 34 Filed 06/14/17 Page 35 of 35 PageID 304