United States District Court, District of Columbia
ROYCE C. LAMBERTH, UNITED STATES DISTRICT JUDGE
In this case, plaintiff, Shawal, Inc. ("Shawal") brings an action for judicial review of an Administrative Appeals Office ("AAO") decision, which affirmed the denial of plaintiff s petition to classify Basharat Mahmood ("Beneficiary") as an employment-based third preference immigrant under 8 U.S.C § 1153(b)(3) by the United States Citizenship and Immigration Service ("USCIS"). Compl. ¶ 2; Answer 1. Plaintiff brings suit against the United States Attorney General, Secretary of the Department of Homeland Security, and Director of United States Citizenship and Immigration Services ("Defendants"), seeking a declaratory judgment "establishing that the beneficiary meets all the statutory requirements for Form 1-140 Petitioner [sic] for Alien Worker." See Compl. ¶¶ 29-30 (invoking 28 U.S.C. § 1331 (2012)).
Plaintiff also states a claim under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq., asserting that "[t]he denial of the Plaintiffs Form 1-140 Petition for Alien Worker was arbitrary and capricious and contrary to governing statutes and regulations" and arguing that "[t]his Court should order the Defendants to approve the Plaintiffs Form 1-140 Petition for Alien Worker." Compl. ¶¶ 33-34. Finally, the plaintiff claims that it is entitled to attorney's fees and costs under the Equal Access to Justice Act ("EAJA"), 5 U.S.C. § 504 and 28 U.S.C. § 2412. Compl. ¶ 36.
This matter is before the Court on plaintiffs motion for summary judgment  and defendants' motion for summary judgment .
For the following reasons, and after consideration of the parties' briefing and relevant legal standards, Shawal's motion for summary judgment will be DENIED, and the defendants' motion for summary judgment will be GRANTED.
Beneficiary Mahmood's former employer, Pines of Florence, filed a substitution Form I-140 Immigrant Petition for Alien Worker on his behalf in 2002. Compl.¶¶ 10-11. The beneficiary subsequently filed a Form 1-485 Application for Adjustment of Status in 2002, based on the pending 1-140 petition. Id. Pines of Florence's 1-140 petition was approved in 2004. Id.¶ 11. The beneficiary's 1-485 form, however, was denied in 2007 as a result of a previously denied 1-130 petition, filed in 1998 by Angela Rowell, the beneficiary's former wife. Pi's Mot. Summ. J. 1; see also ECF No. 24-1, at 7 (noting that the beneficiary and Rowell were divorced in July 2007). The Immigration and Naturalization Service ("INS") had denied the 1-130 petition in 2001, due to multiple inconsistencies in the alleged couple's interviews and the INS's subsequent determination that their marriage was not bona fide. Compl.¶ 13; ECF No. 24-1, at 5-6. Denial of the 1-130 petition was upheld on appeal in 2003. ECF No. 24-1, at 7.
After denial of the 1-485 petition, the beneficiary was placed into removal proceedings and was given the opportunity to present proof of his previous marriage's validity before the Immigration Court. Compl. ¶ 13. In July 2012, the Immigration Court denied the beneficiary's motion for a continuance and ordered that the beneficiary be removed, but it specifically declined to rule on the issue of marriage fraud underlying the beneficiary's denied 1-130 form. Compl. ¶ 20; ECF No. 24-1, at 12.
In March 2009, upon review of documents related to the beneficiary's eligibility and his rebuttal, the USCIS issued a notice of intent to revoke the beneficiary's previously approved I-140 petition, due to his ineligibility under the Immigration and Nationality Act ("INA") § 204(c), 8 U.S.C. § 1154(c). Compl.¶ 15. The Vermont Service Center revoked the beneficiary's 1-140 petition in May 2009, and in December 2010, the AAO affirmed denial of the petition. Id. ¶¶ 17-18. Subsequently, Pines of Florence filed a second 1-140 petition, which was also denied by the USCIS pursuant to INA § 204(c). PL's Mot. Summ. J. 2.
The plaintiff, a restaurant incorporated in Ohio, filed an Application for Permanent Employment Certification on behalf of the beneficiary in June 2012 and consequently filed another 1-140 petition in June 2013. Compl. ¶¶ 5, 21; PL's Mot. Summ. J. 4. The USCIS issued a Notice of Intent to Deny the plaintiffs 1-140 Petition in July 2013 and denied the petition in September 2013, pursuant to INA § 204(c). Compl. ¶¶ 22, 24.
Plaintiff appealed this decision to the AAO in October 2013, and the AAO affirmed denial of the 1-140 petition in February 2014 after a de novo review of the record, citing INA § 204(c). Compl. ¶¶ 25-26; PL's Mot. Summ. J. 4. The AAO independently determined that the record contained substantial and probative evidence that the beneficiary attempted to enter into marriage in order to evade immigration laws. Def's Mot. Summ. J. 10. In denying the 1-140 petition, the AAO also noted that the Application for Permanent Employment Certification did not state all of the beneficiary's previous employers, as required by the Application, and that the beneficiary's employment history contained discrepancies that he failed to resolve. PL's Mot. Summ. J. 4;Def.'sReply7.
The plaintiff initiated this suit in September 2014, asking the Court to review the AAO's decision to affirm denial of the plaintiffs 1-140 petition. Compl. 2. Both parties have moved for summary judgment under Local Civil Rule 7 and Federal Rule of Civil Procedure 56.
II. LEGAL STANDARD
A. Summary Judgment