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Pizza v. Napolitano

United States District Court, D. Massachusetts

August 6, 2014

COPELAND PIZZA, Plaintiff,
v.
JANET NAPOLITANO, Secretary, U.S. Department of Homeland Security, ALEJANDRO MAYORKAS, Director, U.S. Citizenship and Immigration Services; and DANIEL M. RENAUD, Director, Vermont Service Center, U.S. Citizenship and Immigration Services, Defendants.

MEMORANDUM AND ORDER

DENISE J. CASPER, District Judge.

I. Introduction

Copeland Pizza ("Copeland") has filed this lawsuit against U.S. public officials Janet Napolitano, Alejandro Mayorkas and Daniel Renaud ("Defendants"), seeking reversal of Defendants' denial of an application for an immigrant visa that Copeland filed on behalf of Eleutherios Spirou ("Spirou"). D. 1. Defendants have moved to dismiss the complaint and affirm Defendants' decision denying Copeland's application for a visa. D. 12. For the reasons stated below, the Court ALLOWS the motion.

II. Standard of Review

Under the Administrative Procedure Act ("APA"), a federal court may set aside final agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This Court's review under this standard "is highly deferential, and the agency's actions are presumed to be valid." River St. Donuts, LLC v. Napolitano , 558 F.3d 111, 114 (2009). The court "is not to substitute its judgment for that of the agency"; it should only ensure that the agency "examine[s] the relevant data and articulate[s] a satisfactory explanation for its action." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. , 463 U.S. 29, 43 (1983). The Court must affirm the agency's action as long as it is supported by a rational basis. River St. Donuts , 558 F.3d at 114.

III. Factual Background

Copeland Pizza is a business with a principal place of business in Massachusetts. D. 1 ¶ 2. On April 30, 2001, Copeland filed an Application for Alien Employment Certification with the Department of Labor to petition for Spirou, a citizen of Greece, to be an employee at Copeland. Id . ¶ 9. On December 24, 2002, the Department of Labor approved Copeland's application. Id . ¶ 10. On May 6, 2005, Copeland filed a petition for an "I-140" visa with the United States Citizenship and Immigration Services ("USCIS"), based upon the Department of Labor's certification of Spirou's position at Copeland as a pizza maker. Id . ¶ 11; D. 1-4 at 2.

The administrative record in this case ("R. __") indicates that Spirou began working at Copeland in 1989, R. 108, or 1997, R. 266. Although he began working as a driver, he was later promoted to making pizzas and subs for customers. Id . On his Application for Alien Employment Certification filed with the U.S. Department of Labor, Copeland's application stated that the position Spirou would hold would be "pizza maker" which required two years of high school and no training or experience. R. 244. Copeland indicated that Spirou would "prepare[] and bake[] pizza pies, " and indicated in the "special requirements" section of the form that the job required Spirou to "[e]xercise showmanship in preparation of food, such as tossing pizza dough in the air to lighten texture." Id.

On October 13, 2005, however, Copeland's owners Stergios and Despina Versamis, submitted a letter in support of Spirou, which although it praised him as a worker, stated that Spirou could not "toss pizza dough in the air to lighten texture' as this is a characteristic of Italian specialty pizzas." R. 236.

The USCIS issued a request for evidence including an explanation that Spirou lacked the ability to toss pizza in the air to lighten texture. R. 60. The USCIS noted that a "petition may not be approved if the beneficiary was not qualified at the priority date." Id . (citing Matter of Katigbak, 13 I&N Dec. 45, 49 (Comm. 1971)). In response, Copeland submitted an unsigned affidavit from Despina Varsamis (although her name was spelled "Varsmis" on the affidavit) stating, in relevant part, "Eleftherios Spirou is a pizza maker... and has the ability to toss pizza dough in the air to lighten texture." Id . at 29. Nevertheless, Varsamis did not reconcile this statement with her previous statement that Spirou lacked this skill. Similarly, on the same date, Copeland submitted an unsigned and undated affidavit from Antonio Bandis, former owner of Copeland, which also purported to attest to Spirou's skills in this regard. Id . at 30. Copeland did not submit any independent objective evidence in support of its contention that Spirou had special skill to fulfill the "showmanship" requirement.

On October 27, 2006, Defendants denied the I-140 petition and on April 5, 2013, Defendants denied the administrative appeal of that denial. D. 1 ¶ 12. Defendants provided numerous bases for that denial: (1) that Copeland had not demonstrated by clear and convincing evidence that the marriage between Spirou and his spouse was bona fide, id. ¶ 17; (2) that Copeland did not demonstrate that its offer of employment to Spirou was realistic, because it had not shown that it had the ability to pay his salary, id. ¶ 18; (3) that Copeland had not demonstrated that Spirou had the requisite skills to perform his job at Copeland, id. ¶ 19; (4) I-140 was improperly filed by a previous owner of Copeland Pizza even though it was filed after transfer of ownership of Copeland to the current owner, D. 1-4 at 4; and (5) Spirou's job offer may not be bona fide due to a familial relationship, id. at 10.

Defendants' third ground for denial, i.e., that Copeland had not demonstrated that Spirou had the requisite skills to perform his job at Copeland, is the focus of Defendants' motion to dismiss. The Defendants noted in their denial that the underlying labor certification required that the applicant be able to "[e]xercise showmanship in preparation of food, such as tossing pizza dough in air to lighten texture." D. 1-4 at 8. In concluding that Copeland had not demonstrated that Spirou could meet this requirement, they pointed to the letter dated October 13, 2005, signed by Copeland's owners, that was offered in support of the Spirou's employment:

Although the letter speaks of the beneficiary's ability to multi-task, it does not endorse his showmanship and specifically disclaims the beneficiary's ability to toss pizza dough in the air as "unfortunately, [Spirou] cannot toss pizza dough in the air' to lighten texture, " and that they "have machines that flatten the dough to the required size." It is further noted that an unsigned draft of a statement from Despina "Varsmis" submitted in response to the AAO's request for evidence now states that the beneficiary "has been employed by [Copeland] continuously even prior to filing the LCA [labor certification] in April of 2001, and has the ability to toss pizza dough in the air to lighten texture." In addition to being unsigned, the statement does not clearly document that [Spirou] had any such skills before the priority date. An unsigned statement is not probative of the [Spirou's] abilities. Further, as the priority date of April 30, 2001 is the date that the beneficiary must have obtained such skills, and the prior letter of October 13, 2005 from Despina Varsamis specifically contradicted the claim contained in the unsigned statement, we do not find the statement credible. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. It is incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice.

Id. at 9 (citing Matter of Ho , 19 I&N Dec. 582, 591-592 (BIA 1988)). Defendants also noted that unsigned letters from Antonios Bandis described Spirou's ability to deal with customers, but do not mention Spirou's ability to satisfy the "showmanship" requirement. Defendants ...


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