Bolero, Inc. et al v. Johnson et al

MOTION for summary judgment

M.D. Fla.April 30, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION BOLERO, INC., et al., Case No. 8:15-cv-01900-CEH Plaintiffs, vs. Re: Judicial Review and Declaratory Judg- ment JEH CHARLES JOHNSON, et al., Defendants. ____________________________________/ PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE COURT: BOLERO, INC. and CARLOS ALBERTO OSAMBELA (collectively, “Plaintiffs”), by their undersigned counsel, respectfully STATE and PRAY: Summary Judgment in favor of Plaintiffs is warranted on the grounds that the decision of the U.S. Department of Homeland Security's agency, U.S. Citizenship and Immigration Ser- vices (“USCIS”) is not supported by substantial evidence and is arbitrary, capricious or an abuse of discretion. See 5 U.S.C.S. § 706(2)(A), (E) (LexisNexis 2017). This action presents purely questions of law based on a review of the administrative record under the Administrative Procedure Act, 5 U.S.C.S. § 551 et seq., and there is no genuine issue of material fact in dispute. This Court should review the evidence considered in the adminis- trative process and contained in the Certified Administrative Record (“CAR”) filed under seal with the Court, and grant the Plaintiffs’ Motion for Summary Judgment. Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 1 of 14 PageID 251 - 2 - I. NATURE AND STAGE OF THE PROCEEDINGS This case arises under the Immigration and Nationality Act (“INA”), 8 U.S.C.S. 1182(a)(6)(C)(i) (LexisNexis 2017). On February 23, 2015, the Administrative Appeals Office of USCIS (“AAO”) rendered a decision, finding, inter alia, that the defendant Carlos Osambela had committed willful misrepresentation because he “knowingly misrepresented material facts in an effort to mislead USCIS on elements material to … [visa] eligibility…” (See CAR at 494- 515) The AAO further held that its finding of willful misrepresentation would be considered in any future immigration petition or proceeding where admissibility is an issue. (CAR at 515.) Bolero requested reconsideration by motion (CAR at 476-489). On July 13, 2015, the AAO rendered its decision on Bolero’s motion for reconsideration. In this decision the AAO “dismissed” the motion for reconsideration, affirmed its own deci- sion and the finding of misrepresentation against Osambela. (CAR at 466-470.) This civil ac- tion for review followed. II. SUMMARY OF THE ARGUMENT 1. Plaintiffs are entitled to summary judgment because there are no disputed material facts and the AAO’s decision (which is incorrect on the legal issue of misrepresentation) should be set aside. 2. This case, which involves review under INA’s inadmissibility of aliens provision, 8 U.S.C.S. § 1182, and such review is governed by the Administrative Procedure Act (“APA”). Under the APA the AAO’s decision must be set aside if not supported by substantial evidence or is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.S. § 706(2)(A), (E). Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 2 of 14 PageID 252 - 3 - 3. Further, the case is before this Court for review of the agency determination, and, in accordance with the APA, this Court’s review is limited to the record made before the agency. See Pres. Endangered Areas of Cobb’s History v. United States Army Corps of Eng'rs, 87 F.3d 1242 (11th Cir. 1996). 4. Because the facts are those as they arise from Administrative Record, which was relied upon by the AAO, there are no factual issues to be resolved, and Plaintiffs are entitled to summary judgment based upon the undisputed facts. 5. Plaintiff Carlos Osambela’s misstatements as to his marital status and who completed the Department of State form DS-156 are not material. Nor where Mr. Osambela’s misstate- ments as to his marital status willful. 6. The misrepresentations found by the AAO to have been made by Bolero and Osambela regarding his job position with Bolero are not material because Plaintiff Bolero, Inc.’s I-140 application is resolved against it on the findings of lack of eligibility for the classi- fication sought, and the subsequent findings of misrepresentation are not material as they did not tend to lead the AAO to an erroneous adjudication of the I-140 application. III. RELEVANT FACTS 1. On August 9, 2005 Mr. Osambela executed a U.S. Department of State Nonimmigrant Visa Application, Form DS-156, specifically seeking the granting of a B1/B2 visitor visa. (CAR at 461-462.) 2. On May 18, 2006 Mr. Osambela executed a second U.S. Department of State Nonim- migrant Visa Application, Form DS-156 for the purpose of securing the issuance of a B1/B2 visitor visa. (CAR at 457-458.) Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 3 of 14 PageID 253 - 4 - 3. In both DS-156 forms Mr. Osambela answered “no” to Line Item No. 39’s question “Was this Application Prepared by Another Person on Your Behalf?” (CAR at 458, 462.) He also checked off the “Married” box appearing in Line Item No. 17 in both forms and listed Blanca Isabel Aguilar Osambela as his spouse. (CAR at 457, 461.) 4. On January 28, 2008 Mr. Osambela executed an Affidavit in support of his then pend- ing application for permanent residence in the United States. (CAR at 217-218.) In his sworn statement, he retracted his prior statements about marriage that he had made in the DS-156 forms and clarified that he has only been married once, to his then current wife, Wendy Can- ning. He further explained that the confusion regarding his statement about marriage arose from his status under Peruvian law as the father of his niece’s daughter: Blanca Isabel Aguilar Osambela. He also explained that he did not personally complete the DS-156 form, that it was his employer in Perú who filled it out for him and he just merely signed it as is. Lastly, he also reiterated that he had complied with the authorized periods of entry into the United States under the visitors visa by departing the United States before expiration of his stay. He attached documentation to his affidavit as evidence and support for his sworn statement. (CAR at 219- 250.) 5. On or about March 14, 2008, Carlos Osambela applied for a waiver of grounds of inadmissibility, USCIS Form I-601. (CAR at 177-188, 191-194.) Along with I-601 application, Mr. Osambela included with his I-601 application a completed USCIS Form G-325A signed by him on March 12, 2008, wherein he indicated that he had been employed as an Office Manager by Fred Astaire, Bolero’s “doing business as” at the time. (CAR at 197-200.) Also, Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 4 of 14 PageID 254 - 5 - attached to the I-601 application was a February 28, 2008 letter form Bolero confirming Mr. Osambela’s employment at the time as Office Manager. (CAR at 352.) 6. On or about January 11, 2010 and December 17, 2010, Bolero, Inc. submitted Petitions for Alien Worker, USCIS Form I-140, along with supporting documentation to have Mr. Car- los Osambela declared an alien of extraordinary ability for purposes of securing an employ- ment visa. (CAR at 12-17, 22-59, 836-982.). Among the documents submitted was a labor certification, ETA Form 9089, Application for Permanent Employment Certification executed by Bolero where it is indicated in Section K that Mr. Osambela is employed as a Dance In- structor/Choreographer. (CAR 841-849, 852-869.) 7. Both of Bolero’s I-140 applications were denied by the USCIS. (CAR at 152, 836). IV. DISCUSSION AND APPLICABLE LAW A. Mr. Osambela’s misstatements as to his marital status and who completed the form DS-156 are not material. Moreover, Mr. Osambela’s misstatements as to his marital status were not willful. According to the AAO, Osambela made two “willful misrepresentations”, in two separate instances, in completing form DS-156, Non-Immigrant Visa: (i) answering “no” to the ques- tion “Was this Application Prepared by Another Person on Your Behalf?” when the answer should have been “yes”; and (ii) stating that he was married and listing a spouse in the form, when in fact he had no spouse at all at the time. The U.S. Supreme Court in the case of Kungys v. U.S., 485 U.S. 759 (1988), set forth a four- part analysis to determine whether a misrepresentation is material: (i) the applicant must have misrepresented or concealed a fact; (ii) the misrepresentation or concealment must have been Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 5 of 14 PageID 255 - 6 - willful; (3) the facts must have been material; and (4) the applicant must have procured a ben- efit. 485 U.S. at 767. USCIS policies instruct adjudicating officers to follow the test for mate- riality provided by the U.S. Supreme Court in Kungys. USCIS Policy Manual, 8 USCIS-PM J.3(E)(2). Materiality is a fact that would make an alien excludable or shut off a line of inquiry that may result in exclusion. Matter of S--- & B--- C---, 9 I & N. Dec. 436 (BIA 1960). The Eleventh Circuit Court of Appeals determined in the case of Ali v. Att’y Gen. of the U.S., 443 F.3d 804, 812 (11th Cir. 2006), that materiality requires disclosure of a kind that would make inadmissibility “apparent” and would have adversely affected the application for an immigra- tion benefit. 443 F.3d at 812. In the present case, Osambela’s answer of “no” to the question of who prepared the DS- 156 forms is immaterial. Even if he had answered “yes” instead, the result would have been the same: visitor visa granted. It is immaterial because it would not have shut off a line of inquiry that would have resulted in exclusion. It is also immaterial because the question of who prepared the form has no bearing on the question of: “is Osambela inadmissible into the United States?” The questions of “who” completed the application has nothing to do with the agency’s decision making process for purposes of deciding whether he should be granted a visa or not, especially when he gave indication that his wife was in Perú. Nor, does the agency explain how it is that Osambela would be excluded on the answer to that question alone or what line of questioning was foreclosed. Likewise, on the marital status question, Mr. Osambela’s erroneous disclosure on the DS- 156 that he was married when in fact he was not is also not material to the granting of a non- immigrant visa in his particular case. From the AAO’s own narration of the facts it appears Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 6 of 14 PageID 256 - 7 - that Mr. Osambela was only seeking to enter the United States as a non-immigrant for himself alone and no one else. That being the case, whether or not he was married would not make any difference on the Department of State’s (DOS) adjudication process associated with the nonimmigrant visa, as Mr. Osambela was not intending to bring a spouse with him to the United States nor was he procuring a non-immigrant visa or other benefit for a spouse under that DS-156 applications. There is no line of questioning then that was shut off by dint of having stated the wrong marital status, nor would he had been deemed inadmissible on his marital status alone. The only explanation the AAO furnished as to how it is that acknowledg- ing marriage in the DS-156 form was material to the adjudication of a non-immigrant, visitor visa application, was to say that marriage “demonstrated strong ties to Perú.” However, mar- riage, in and of itself, says little to nothing about a person’s intention to immigrate or not to the U.S., or stated differently, it does not make significantly more likely that a person has an intention of returning to his home country. An alien applying for a visa can certainly harbor the intention of returning to his country, whether he is married or not and for a multitude of reasons. Consequently, because there is no relationship between marriage (or lack thereof) and an intention to immigrate to the U.S. when applying for a visitor visa, a determination of misrepresentation on the basis of an alien’s mere statement that he is married, without more, is clearly arbitrary and capricious. The agency can say many things but what is important for a finding misrepresentation. At the end of the day, what matters is a showing how it is material. That has not been done. A naked statement that a line of questioning related to “nonimmigrant intent” was shut off as result of the misstatement as to marital status is simply not enough. To the contrary, the only Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 7 of 14 PageID 257 - 8 - logical conclusion one can make is that had he answered that he was unmarried, the result would have been the same (visitor visa granted), as his unmarried status has no bearing on his nonimmigrant intent. More importantly, being single is not grounds for excluding someone from a visitor visa. If that were the case, unmarried persons would never be able to visit the United States. Only under the most strained interpretation could one reach the opposite con- clusion. It should be noted that the AAO and the U.S. Citizenship and Immigration Services (USCIS), as the government, have the burden by clear and convincing evidence, to prove misrepre- sentation. Matter of Tijam, 22 I & N Dec. 408 (BIA 1998). There is no clear or convincing evidence that marital status was material. Also, as it pertains to the misstatement of his marital status on the DS-156 forms, there is no willfulness associated therewith. In his January 28, 2008 affidavit and the March 10, 2008 letter from his counsel in support of his then application for a waiver of inadmissibility, Mr. Osambela explained in great detail that his indication that he was married was the result of a mistake associated with how laxly the term spouse is used in his country, Perú. Specifically, he explained that he had listed his sister along with his niece and his niece’s daughter as his de- pendents in his Peruvian tax returns and social security. Further on he explains, in so many words, that he viewed his niece as someone akin to his spouse due to the support and family- based responsibilities he had towards her and her daughter, not because of some malevolent intent to deceive the U.S. Government. To be willful, a misrepresentation must not be accidental, inadvertent or based on an hon- est mistaken belief. U.S. Department of State’s Foreign Affairs Manual, 9 FAM 40.63. Osambela’s misstatement as to his marital status is nothing more than that: an honest mistaken Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 8 of 14 PageID 258 - 9 - belief that his niece was somehow his “spouse.” See, Emokah v. Mukasey, 523 F.3d 110, 117 (2d Cir. 2008) (innocent mistake, negligence or inadvertence cannot support willfulness). It is a misunderstanding based on a semantical difference on how family is defined in his country and which he has clearly retracted. Based on the above, one must necessarily conclude that misrepresentation has been not been proven. Simply because a statement made was not “true and correct” when made is insufficient, without more, to find that misrepresentation has occurred. Misrepresentations must be material and willfully made. For the foregoing reasons these elements have not been proven. B. Any misrepresentation found to have been made specifically by Bolero, cannot be imputed to Osambela. In its February 23, 2015 decision, the AAO based its findings of misrepresentation against Osambela, on misstatements regarding Osambela’s employment with Bolero, Osambela’s role as choreographer for four of Bolero’s shows and Osambela’s role with the Sarasota Opera. (CAR at 494-515.) These misstatements were not made by Osambela, but rather by Bolero. The Petition for Alien Worker, USCIS Form I-140, was signed solely by Bolero. (CAR at 152- 154.) The labor certification and its related documentation was submitted solely by Bolero. (CAR 841-849, 852-869.) The appearances that have been made by the undersigned and prior counsel regarding Form I-140, have been made on behalf of Bolero. (CAR at 151, 471-474, 626-627, 664-665, 775, 835.) The requests for evidence and other correspondence from the USCIS and the AAO were directed to Bolero. (CAR at 60-66.) The responses to those requests for evidence and other correspondence were made by Bolero. (CAR at 67-148.) Other than signing a few letters submitted in support of the I-140 application, Osambela did not sign Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 9 of 14 PageID 259 - 10 - Form I-140 nor did he submit himself personally any of the evidence in support of the I-140 application. Therefore, any misrepresentation that may appear in the I-140 application, the responses to the request for evidence under I-140 application and evidence submitted in sup- port thereof (other than that specifically signed by Osambela) cannot constitute a misrepre- sentation made by Osambela. Because Osambela is not responsible for the statements that Bolero made pertaining to the I-140 applications and his employment, the discrepancy between the characterization of his employment by Bolero as “Dance Instructor/Choreographer, versus his characterization of his employment in his G-325A form as an “Office Manager” in no way shape or form can it be construed as a misrepresentation by Mr. Osambela. It is well established that for a misrepresentation to be deemed as such it must be made on the person’s own application. Kurzban, I., Kurzban’s Immigration Law Sourcebook 134 (14th Ed. 2014). (“[a] misrepresentation made in connection with some other person’s application does not make the alien inadmissible for a material misrepresentation”) citing the USCIS’s Adjudica- tor’s Field manual, AFM at 40.6.2(c)(1)(B)(v) and Matter of M-R-, 6 I & N Dec. 259 (BIA 1954). C. “New” misrepresentations found by the agency to have been made by Bolero and Osambela are not material because Bolero’s I-140 application is resolved against it on the findings of lack of eligibility for the classification sought, and the subse- quent findings of misrepresentation are not material as they did not tend to lead the agency to an erroneous conclusion. The decision to deny Bolero’s I-140 application had been made long ago, as far back as September 12, 2011, and then again on April 3, 2014. (CAR at 638-655, 786-789.) The basis for denial on grounds of misrepresentation in those two cases, was strictly limited to the mis- statements Osambela had given in the DS-156 (as discussed above) and nothing else. It was Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 10 of 14 PageID 260 - 11 - not until the case came before the AAO upon appeal that the AAO, of its own accord, went beyond the findings of the Director to find grounds for denial of the application based on additional misrepresentations, namely: (1) the employment of Osambela with Bolero; (2) Osambela’s role as choreographer for four shows; (3) Osambela’s role with the Sarasota Opera; and (4) ETA form 9089, the labor certification. The denial of the I-140 based on Bolero’s failure to prove the exceptional ability of Osambela, to meet the requirements for exceptional ability, and to establish the financial ability to pay the proffered wage, were more than enough to support that denial. Nothing more was needed to achieve that goal. The latter discovery by the AAO of additional grounds for denial based on other misrepresentations is therefore unnecessary, to such an extent that the addi- tional misrepresentations found cannot be said to be material. They cannot be material once the USCIS had found that Osambela was ineligible for the classification sought (i.e., alien of exceptional ability), as that, by itself, was sufficient to deny the I-140. The line of inquiry ended with that denial and all other additional findings of misrepresentation presumptively made by Bolero or Osambela became immaterial. See, 12 USCIS-PM B.6(C)(1) (evidence that was not material to the issue of eligibility for an immigration benefit and which lead to denial, is cause for reopening the case); 9 FAM 40.63 N6.3-1(1) (where visa eligibility has been resolved against applicant, a subsequent discovery that he lied is not material).1 1 The example given by the Foreign Affairs Manual is analogous to the procedural history in the present case: For example, an applicant for a nonimmigrant visa (NIV) falsifies the visa application by claim- ing to have a well-paying job in order to show that the applicant has a residence abroad, but before the misrepresentation was discovered, the visa was refused because the alien could not, on the known facts, qualify as a nonimmigrant. The subsequent ascertainment of the false statement would not support a finding of materiality because it had no objective significance to the finding that the alien was not a nonimmigrant. Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 11 of 14 PageID 261 - 12 - Consequently, because the new findings of misrepresentation that the AAO independently made against Bolero and Osambela are not material, they cannot form the basis for a finding of misrepresentation, as materiality is an indispensable element of misrepresentation. Finally, before concluding, it should be remembered that an adjudication of misrepresen- tation should never be made lightly. It is permanent bar to entry into the United States. The Department of State warns consular officers (and other immigration officers should also take heed) to consider the severe and permanent nature of this ground of inadmissibility when deciding that misrepresentation has occurred. 9 FAM 40.63 N1.3. It should never be used as “a devise for entrapment of aliens whom [the officer] might suspect to be ineligible on some other ground(s) for which there is sufficient evidence.” 9 FAM 40.63 N1.2. In this case, the denial of any immigration benefit, at this time, to Osambela, was more than enough to dispose of the I-140 application. That’s enough for him and Bolero to deal with. There was no need or reason to go beyond that to make additional findings of misrep- resentation which serve no purpose other than to destroy their chances of securing future immigration benefits. D. Standard of review for summary judgment. Summary judgment is proper when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the Court must look to the substantive law that supports the movant’s claims to determine which facts are “material” and whether a “genuine issue” exists. 9 FAM 40.63 N6.3-1(1). Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 12 of 14 PageID 262 - 13 - Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The purpose of the rule is to isolate, and then terminate, claims and defenses that are factually unsupported. Celotex Corp. v. Catrett, 477 US 317, 327 (1986). In this case, in the administrative process, a record was created that contains the facts. Further, the case is before the Court for review of the agency determination pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C.S. § 551 et seq. APA review is limited to the record made before the agency. 5 U.S.C.S. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”); see Loggerhead Turtle v. Cty. Council, 120 F. Supp. 2d 1005, 1011-1012 (M.D. Fla. 2000). Accordingly, there is no dispute regarding the material facts. E. Judicial Review of Agency Proceedings. Judicial review of a finding of misrepresentation is governed by the APA. The USCIS’s deci- sion must be set aside if it is unsupported by substantial evidence and/or is “arbitrary, capri- cious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 706(2)(A), (E). See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,414 (1971) (“[i]n all cases[,] agency action must be set aside if the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or if the action failed to meet statutory, procedural, or constitutional requirements”). V. CONCLUSION WHEREFORE, the plaintiffs, BOLERO, INC. and CARLOS ALBERTO OSAMBELA respectfully pray that this Court GRANT the instant motion for summary judgment and, consequently, SET ASIDE the U.S. Citizenship and Immigration Services’ Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 13 of 14 PageID 263 - 14 - finding of willful misrepresentation against Carlos Osambela as not supported by substantial evidence or as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. RESPECTFULLY SUBMITTED. /s/ JASON P. RAMOS (Trial Counsel) Fla. Bar No. 70388 LAW OFFICES OF JASON P RAMOS PLLC 950 S Tamiami Trail, Suite 100 Sarasota, Florida 34236 Tel. (941) 306-2384 / Fax (727) 592-8923 E-mail: jason@jasonpramos.com Attorney for Bolero, Inc. and Carlos Alberto Osambela CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 30th day of April, 2016, I electronically filed the foregoing writing with the Clerk of the Court using CM/ECF. I also certify that the foregoing writing is being served this day on all counsel of record, including John F. Rudy, Esq., 400 North Tampa Street, Suite 3200, Tampa, Florida 33602 (john.rudy@usdoj.com) via transmis- sion of Notice of Electronic Filing generated by the CM/ECF system or in some other au- thorized manner for those counsel or parties who are not authorized to receive, electronically, Notices of Electronic Filing. /s/ JASON P. RAMOS (Trial Counsel) Fla. Bar No. 70388 4852-6339-4631, v. 1 Case 8:15-cv-01900-CEH-MAP Document 30 Filed 04/30/17 Page 14 of 14 PageID 264