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SYSTRONICS CORP. v. I.N.S.

July 2, 2001

SYSTRONICS CORPORATION, PLAINTIFF
V.
IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT.



The opinion of the court was delivered by: Lamberth, District Judge.

MEMORANDUM OPINION

Now before the Court are cross motions summary judgment by the defendant, the Immigration and Naturalization Service, and the plaintiff, Systronics Corporation. Upon consideration of these motions and the supporting documents, the oppositions and replies thereto, the entire record and the relevant law, the Court grants defendant's motion for summary judgment.

BACKGROUND

In 1996 Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which became permanently effective on April 1, 1997. After a transitional period, 8 U.S.C. § 1252 mandated the scope of judicial review for orders removing aliens from the country. 8 U.S.C.A. § 1252 (West 1999); see also Immigration and Nationality Act § 242. In particular, 8 U.S.C. § 1252(a)(2)(B)(ii) prohibited review of any discretionary decision made by the Attorney General in these matters.*fn1

Facts

On March 17, 1997, the plaintiff, Systronics Corporation, filed an I-140 petition (Immigrant Petition for Alien Worker) with the Vermont Service Center ("VSC") of the defendant, the Immigration and Naturalization Service ("INS"), to classify its beneficiary, Eddy C. Tsaur, as a multinational executive or manager under 8 U.S.C. § 1153(b)(1)(C). Systronics alleged that Tsaur was an executive employee and intra-company transferee eligible for an immigrant visa to assume the duties as president and general manager of Systronics. The VSC initially approved the petition on July 1, 1997.

On August 14, 1998, the VSC received a memorandum from the American Institute in Taiwan ("AIT"). The AIT is the quasi-diplomatic United States representative office serving in Taiwan that functions as a full United States consulate in visa issuing matters. AIT's memorandum stated that based on interviews and investigations completed on August 4, 1998, it had developed material information not available to INS at the time the VSC approved Systronics's petition which indicated that Tsaur did not appear to be entitled to status as a multinational manager or executive. In particular, the memorandum stated: (1) Tsaur was a self-employed business man who owned both the parent company in Taiwan, Shaw Fuu Enterprise Co., Ltd., and Systronics, and it appeared that Tsaur founded Systronics as a shell corporation for the sole purpose of facilitating Tsaur's transfer to the United States; (2) Systronics failed to produce a lease for its headquarters in Reston, Virginia, but instead produced a sublease showing it paid $370 per month in rent for offices it shared with its lessor; (3) Shaw Fuu's corporate license in Taiwan was issued in November 1995, several months after Systronics was established in June 1995; (4) Systronics only had two employees, not the four it claimed on its I-140 petition; and (5) Shaw-Fuu would be run by a deputy manager with six months experience if Tsaur left the company. The AIT concluded Tsaur did not intend to manage or be an executive of Systronics, but intended to run Shaw-Fuu instead, and recommended the petition be denied. Based on this information, the VSC served written notice on Systronics of its intent to revoke the approval of the petition, explaining that Systronics was merely a shell company established for the sole purpose of accomplishing Tsaur's transfer to the United States.

The notice cited the AIT's report and stated discrepancies existed concerning: (1) the issues the AIT noted about Systronics's corporate headquarters; (2) Shaw-Fuu incorporation date; (3) the number of employees on Systronics's petition still with the company and Tsaur' role with Systronics; and (4) who would run Shaw-Fuu. The notice did not specifically address Systronics's payroll, Joanna Su-Mei Chang's wages or responsibilities, or Tsaur's job description. The notice also failed to specifically state the VSC was concerned about the time Tsaur spent as a multinational manager or executive and whether Tsaur was employed in a managerial or executive capacity with Shaw-Fuu.

Systronics filed a five page response alleging, among other things: (1) Systronics was incorporated in California, and had not begun operations in the branch office at the time the petition was filed; (2) since the time of the petition, the California office had increased its operations; (3) Chang, the vice president who originally worked in the Virginia office, moved to California to run east and west coast operations; (4) the lease issue has no significance and Systronics had obtained additional space; (5) the issuance of the corporate licence occurred in 1987; (6) any change in the material information listed on a corporate licence in Taiwan required an official registration change and prompted the issuance of a new license, explaining the November 1995 issue date; (7) Systronics's revenue in 1997 illustrates a legitimate multi-national enterprise; (8) the VSC knew two employees resigned, and the records confirm Systronics still had three employees; (9) the deputy manager's experience had no relevance on who would run Shaw-Fuu; (10) the deputy manager has left Shaw-Fuu, but two other employees with experience will manage the company; (11) Systronics had expanded in the United States; (12) Tsaur's family would reside in California, while Tsaur would work in Virginia; (13) Tsaur would indirectly guide Shaw-Fuu, a prosperous company; and (14) Tsaur had not established Systronics as a shell company and the AIT had provided misleading information, and these issues had been previously adjudicated by the VSC.

On June 10, 1999, the VSC responded to Systronics's letter, and revoked the petition, and included numerous reasons to support this decision. The VSC was uncertain why a Virginia company, with two or three employees would use a California mailing address, and noted Systronics's explanation was Chang ran an affiliate office in California. The VSC also felt the date of incorporation was not reflected in the 1995 licensure document. Moreover, the VSC also felt issues remained concerning Tsaur's status as an executive for the statutorily mandated period. The size of the staff raised questions concerning Tsaur's job duties. Furthermore, while the VSC felt Shaw-Fuu's guidance by a deputy manager with six months experience was reasonable, it doubted whether Tsaur was employed in a primarily managerial or executive capacity in Shaw-Fuu. Finally, the VSC stated, "we are not persuaded that the beneficiary's activities in the U.S. [sic] would be primarily managerial or executive, and that he has been employed in a primarily managerial or executive capacity in the Taiwan company." The decision did not explicitly cite Systronics's payroll, Chang's wages or responsibilities (but did state her position with the company), and Tsaur's job description.

ANALYSIS

The determination of "good and sufficient cause" is committed to the discretion of the Attorney General because it lacks precise factual standards for this Court to review.*fn2 Therefore, this Court lacks subject matter jurisdiction to decide the merits of this case, and the case will be dismissed under Fed.R.Civ.P. 12(b)(1).*fn3 Decisions that are specified under the Immigration and Nationality Act to be under the discretion of the Attorney General are not reviewable. 8 U.S.C.A. § 1252(a)(2)(B)(ii); see also Matsuk v. I.N.S., 247 F.3d 999, 1002 (9th Cir. 2001) (unanimous).*fn4 Even if the matter was reviewable, there is substantial evidence, such as the Systronics's lease in Virginia, the location of Systronics in two distinct areas, the size of Systronics, and the exact duties of Tsaur, to support the INS's determination that Systronics is a shell company.

Jurisdiction

This Court lacks subject matter jurisdiction to decide the merits of this case because 8 U.S.C. § 1252(a)(2)(B)(ii) prevents review of the Attorney General's discretionary choices. In Matsuk, the court found 8 U.S.C. § 1231(b)(3)(B)(ii) to be within the discretion of the Attorney General. Id. There, the option "to determine whether an aggravated felony conviction resulting in a sentence of less then 5 years is a particularly serious crime" was discretionary. Id. (citing In re S-S-, Interim Decision 3374, 1999 WL 38822, II.B (no page cite available) (BIA Jan. 21, 1999)). "Thus, Section [sic] 1252(a)(2)(B)(ii) divests this court of jurisdiction to review this issue." Id. See also Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999) (finding that 8 U.S.C. ยง 1231(g) allows the Attorney General discretion to choose where to locate detained aliens and is unreviewable); Chanthanounsy v. I.N.S., No. CIV 01-124-P-C, 2001 WL 617167, at *1 (Me. June 5, 2001) (Magistrate's recommended decision) (same proposition); Avramenkov v. I.N.S., 99 F. Supp.2d 210, 213 ...


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