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Especial v. Napolitano

March 15, 2010

TACO ESPECIAL AND PROSPERO GALEANA, PLAINTIFFS,
v.
JANET NAPOLITANO, SECRETARY OF HOMELAND SECURITY; AND ALEJANDRO MAYORKAS, DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Hon: Avern Cohn

MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DISMISSING CASE

I. INTRODUCTION

This is an Administrative Procedures Act (APA) case arising out of the United States Citizenship and Immigration Services's (USCIS) denial of an Immigrant Petition for Alien Worker. Plaintiff Taco Especial is a Mexican restaurant located in Ecorse, Michigan. It is registered as a C-corporation. Taco Especial filed a Form I-140, Immigrant Petition for Alien Worker, on behalf of Prospero Galeana (Galeana), an illegal immigrant who it sought to employ as a chef. The petition was denied by the USCIS. Defendant Janet Napolitano is the Secretary of the Department of Homeland Security, the agency in which the USCIS is housed. Alejandro Mayorkas is the director of the USCIS.*fn1 Taco Especial has appealed the USCIS decision on grounds that it was arbitrary and capricious in violation of the APA.

Now before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, the government's motion for summary judgment will be granted and Taco Especial's motion for summary judgment will be denied.

II. FACTS

The following facts are taken from the Administrative Record.

Galeana is a Mexican citizen who entered the United States illegally in 1989. Prior to entering the United States, Galeana worked at La Cabana del Pescador,*fn2 a restaurant in Mexico. His former employer stated that he "worked in the kitchen area providing support in activities related to this department as a cook." Galeana began working at Taco Especial in 1992.*fn3

On April 16, 2001 Taco Especial filed a Form ETA-750 -- Application for Permanent Employment Certification -- with the United States Department of Labor (DOL) for the position of Chef. This position required 3.8 years of experience as a chef. The proffered wage was $25.00 per hour or $52,000 per year (based on a 40-hour work week). After finding that there were no qualified, able, and willing US workers to fill the position and that employing an alien would not have an adverse impact on American workers, the DOL granted Taco Especial's application on May 25, 2005.

On July 18, 2006 Taco Especial filed a Form I-140 -- Immigrant Petition for Alien Worker -- with the USCIS on behalf of Galeana.

On August 23, 2006 the USCIS sent a request for evidence (RFE) to Taco Especial asking for the restaurant's annual reports, prepared federal income tax returns, and/or audited financial statements for the years 2001-05. It also asked for W2s evidencing wages earned by Galeana while working for Taco Especial. Taco Especial responded by providing federal income tax returns with the following information:*fn4

YearGross Income ($)Net Income ($)Net Current Assets ($)Salaries Paid ($)Officer's Salary ($) 2001240,677-12,7277,41695,83567,750 2002226,977-5,6277,78081,98557,200 2003206,0105,11810,00682,51537,075 2004194,646-6,5296,48569,73242,400 2005198,613-3,5956,72385,14528,500 2007191,673-3,819N/A81,32026,200

Taco Especial also included Galeana's W2 forms for the following years: 1992 ($5,9982.27), 1997 ($13,412.03), 2000 ($18,173.28), and 2001 ($17,450.00).

On January 30, 2007 USCIS denied Taco Especial's Form I-140 petition on grounds that Taco Especial failed to show an ability to pay the proffered wage of $25.00 per hour. Specifically, the USCIS found that (1) Taco Especial did not currently pay Galeana the proffered wage, (2) the proffered wage exceeded Taco Especial's net income for each year in question, and (3) the proffered wage exceeded the difference between Taco Especial's current assets and liabilities for each of the years in question.

On February 27, 2007 Taco Especial appealed the USCIS decision to the Administrative Appeals Office (AAO). It asserted that it could demonstrate the ability to pay the proffered wage if the correct accounting principles were used. Taco Especial included a report from an accountant to who stated that (1) depreciation should be added back into Taco Especial's net income, (2) because Taco Especial was a C-corporation and was subject to double taxation, it was unlikely to ever show a profit, and (3) in his opinion, Taco Especial was a viable business. The AAO affirmed the USCIS decision, finding that Taco Especial had not proved an ability to pay the proffered wage.

On January 22, 2009 Taco Especial and Galeana (collectively plaintiffs) filed this action claiming that the denial of the Form I-140 petition violated the APA. The plaintiffs alleged that the government erroneously applied the regulation requiring proof of ability to pay the proffered wage.

On April 27, 2009 the AAO reopened Taco Especial's Form I-140 petition on its own motion. Taco Especial was given 30 days to submit additional evidence concerning its ability to pay the proffered wage and of the applicability of Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967) to its petition. Taco Especial submitted its 2007 Federal Income Tax Return in support of its ability to pay the proffered wage. In support of its argument regarding the applicability of Sonegawa, Taco Especial submitted a 2009 employment summary for the metro Detroit area, evidence of the prevailing wage for "cooks" in metro Detroit, ...


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