Decor Team LLC v. McAleenan

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Decor Team LLC, et al., No. CV-19-05346-PHX-MTL 10 Plaintiffs, ORDER 11 v. 12 Kevin K McAleenan, et al., 13 Defendants. [14] 15 Pending before the Court is Plaintiffs’ Motion to Compel Additional Discovery 16 (Doc. 27). Defendants filed a Response in Opposition (Doc. 33). No Reply was filed. For 17 reasons that follow the Motion is denied. 18 I. BACKGROUND 19 Plaintiffs Décor Team, LLC and Shai Avisira filed a Complaint for Declaratory 20 Relief under the Administrative Procedure Act (“APA”), challenging the United States 21 Citizenship and Immigration Services’ (“USCIS”) denial of their Immigrant Petition for 22 Alien Worker (“I-140 petition”). (Doc. 1.) In the I-140 petition, Décor Team, on Mr. 23 Avisira’s behalf, applied to have Mr. Avisira classified as an employment-based immigrant 24 under section 203(b)(1)(C) of the Immigration and Nationality Act. (Doc. 20 at 2.) Filing 25 an I-140 petition is a preliminary step in obtaining an EB-1C immigrant visa (permanent 26 residence or “green card” visa), which may be issued to “[c]ertain multinational executives 27 and managers” who serve “in a capacity that is managerial or executive.” (Doc. 1 at 2, ¶ 2); 28 (Doc. 33 at 12.) 1 Prior to and after the filing of the I-140 petition, Mr. Avisira sought and obtained 2 numerous L-1A visas (temporary non-immigrant status), the most recent of which expires 3 on May 8, 2020. (Doc. 1 at 2-3, ¶¶ 3, 4, 23); (Doc. 28 at 7, ¶ 9.) An L-1A visa may be 4 issued to “an alien who within the preceding three years has been employed abroad for one 5 continuous year by a qualifying organization” and who will be employed by that employer 6 in the United States “in a capacity that is managerial, executive, or involves specialized 7 knowledge . . . .” 8 U.S.C. § 1101 (a)(15)(L); 8 C.F.R. § 214.2 (l). 8 On July 30, 2019, USCIS denied Plaintiffs’ I-140 petition because it found that 9 Plaintiffs failed to establish that the position here and the position abroad qualified as 10 managerial and/or executive positions. (Doc. 33 at 12) (citing CAR at 1-10.) Plaintiffs 11 allege in the Complaint that the denial of Mr. Avisira’s I-140 petition was arbitrary, 12 capricious, or an abuse of discretion because USCIS previously granted him temporary L13 1A visas, which have the same “managerial and executive capacity” criterion as the I-140 14 classification. (Doc. 1 at 3, ¶ 50.) 15 Defendants filed the certified administrative record (“CAR”) in this Court on 16 February 21, 2020. (Docs. 20-26.) After receiving the record, Plaintiffs moved to compel 17 discovery of the previously filed and approved L-1A petitions. (Doc. 27.) Plaintiffs argue 18 that the L-1A petitions are part of the administrative record and should therefore be 19 produced by Defendants. (Doc. 27 at 2.) Plaintiffs alternatively urge the Court to compel 20 additional discovery beyond the administrative record. (Id. at 3.) Defendants respond that 21 the L-1A petitions are not part of the administrative record because USCIS did not rely on 22 them when it denied Mr. Avisira’s I-140 petition. (Doc. 33 at 6.) Defendants additionally 23 argue that Plaintiffs have not carried the heavy burden to show that the L-1A petitions are 24 necessary for the Court to adequately address the agency’s final decision. (Doc. 33 at 11.) 25 II. LEGAL STANDARDS 26 Generally, judicial review of agency action is confined to the administrative record. 27 Animal Defense Council v. Hodel, 840 F.2d 1432, 1438 (9th Cir. 1988). A party wishing 28 to conduct discovery or add to the administrative record must overcome the presumption 1 that the agency properly designated the record. McCrary v. Gutierrez, 495 F. Supp. 2d 2 1038, 1041 (N.D. Cal. 2007) (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th 3 Cir. 1993)). The Ninth Circuit has established four narrow exceptions to the general rule 4 that discovery and expansion of judicial review are not generally permitted in APA 5 proceedings. Southwest Center for Biological Diversity v. United Sates Forest Service, [6] 100 F.3d 1443 , 1450 (9th Cir. 1996). The expansion of judicial review and discovery may 7 be allowed where: (1) it is necessary to determine whether the agency has considered all 8 relevant factors and has explained its decision, (2) when the agency has relied on 9 documents not in the record, (3) where it is necessary to explain technical terms or complex 10 subject matter, or (4) when plaintiffs make a showing of bad faith by the agency. Id. 11 (internal citations and quotations omitted). Whether limited discovery should be permitted 12 under the APA is a separate question from whether the administrative record should be 13 expanded to include documents produced in discovery. See Public Power Council v. 14 Johnson, 674 F.2d 791, 794-95 (9th Cir. 1982). But the same four exceptions apply to 15 both. Animal Defense Council, 840 F.2d at 1438 (addressing certain circumstances that 16 may justify expanding review beyond the record or permitting discovery). 17 III. DISCUSSION 18 The only exception to the rule raised by Plaintiffs is the second. They argue that the 19 L-1A applications are part of the administrative record because they were either directly or 20 indirectly considered by USCIS when it denied their I-140 petition. (Doc. 27 at 5); (Doc. 21 33 at 11.) Plaintiffs claim, without citation to the record, that USCIS “must have” 22 considered the L-1A applications because Plaintiffs referenced them in their response to 23 the Defendants’ Request for Evidence. (Doc. 27 at 5.) As Defendants point out, however, 24 the agency decision makes no reference to the L-1A applications or the materials submitted 25 in furtherance thereof. (CAR at 1-11.) Plaintiffs’ passing reference to the L-1A 26 applications in their I-140 petition (see CAR at 672-74) does not mean that USCIS 27 considered them when it denied the petition, particularly since the agency denied the I-140 28 petition in spite of the L-1A approvals. Because the agency action must be upheld, if at 1 || all, based on the basis articulated by the agency, see Motor Vehicle Mfrs. Ass’n of U.S. v. 2|| State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983)—and because there is no evidence that the agency considered the L-1A applications and approvals—Plaintiffs’ request to 4|| supplement the administrative record is denied. 5 Turning to Plaintiffs’ alternate request for discovery, Plaintiffs do not explain why 6|| they no longer possess their own prior L-1A applications and approvals.! Nor do they 7\|| argue that discovery is appropriate under any of the other three exceptions articulated by 8 || the Ninth Circuit. Because the Court does not agree that USCIS relied on the L-1A 9|| applications and approvals when it denied Plaintiffs’ I-140 petition, discovery on that basis 10 || is not appropriate. Plaintiffs’ request for discovery is denied. 11} I. CONCLUSION 12 IT IS ORDERED denying Plaintiffs’ request to supplement the administrative 13 || record (part of Doc. 27). 14 IT IS FURTHER ORDERED denying Plaintiffs’ request for discovery (part of □□ Doc. 27). 16 Dated this 23rd day of March, 2020. Michael T. Liburdi 19 United States District Judge [27] 1 Plaintiffs admit that they previously filed a Complaint in this district, challenging the denial of his most recent L-1A application. (Doc. 1 at 3, § 4.) -4-