USCA Case #12-5168   Document #1397073          Filed: 09/28/2012   Page 1 of 57              UNITED STATES COURT OF APPEA...
USCA Case #12-5168        Document #1397073          Filed: 09/28/2012    Page 2 of 57   CERTIFICATE AS TO PARTIES, RULING...
USCA Case #12-5168                Document #1397073                     Filed: 09/28/2012            Page 3 of 57         ...
USCA Case #12-5168                Document #1397073                    Filed: 09/28/2012           Page 4 of 57        VII...
USCA Case #12-5168                Document #1397073                     Filed: 09/28/2012           Page 5 of 57          ...
USCA Case #12-5168                  Document #1397073                       Filed: 09/28/2012            Page 6 of 57Secre...
USCA Case #12-5168                 Document #1397073                       Filed: 09/28/2012            Page 7 of 57REGULA...
USCA Case #12-5168      Document #1397073         Filed: 09/28/2012   Page 8 of 57                                  GLOSSA...
USCA Case #12-5168       Document #1397073          Filed: 09/28/2012    Page 9 of 57                       JURISDICTIONAL...
USCA Case #12-5168       Document #1397073            Filed: 09/28/2012    Page 10 of 57                STATEMENT OF FACTS...
USCA Case #12-5168       Document #1397073          Filed: 09/28/2012    Page 11 of 57      On December 3, 2010, the IIP f...
USCA Case #12-5168      Document #1397073           Filed: 09/28/2012    Page 12 of 57license period has expired in light ...
USCA Case #12-5168      Document #1397073           Filed: 09/28/2012     Page 13 of 57      On September 8, 2009, the VSC...
USCA Case #12-5168      Document #1397073           Filed: 09/28/2012    Page 14 of 57       establishes that program part...
USCA Case #12-5168       Document #1397073          Filed: 09/28/2012     Page 15 of 57On February 4, 2010, the VSC sent t...
USCA Case #12-5168      Document #1397073           Filed: 09/28/2012   Page 16 of 57      The AAO went on to hold, howeve...
USCA Case #12-5168      Document #1397073           Filed: 09/28/2012    Page 17 of 57214.2(q)(4)(i)(D). The AAO acknowled...
USCA Case #12-5168       Document #1397073         Filed: 09/28/2012     Page 18 of 57      Relying on 8 C.F.R. § 214.2(q)...
USCA Case #12-5168      Document #1397073            Filed: 09/28/2012    Page 19 of 57      In addition, the AAO explaine...
USCA Case #12-5168      Document #1397073            Filed: 09/28/2012    Page 20 of 57      Since there are paid teacher ...
USCA Case #12-5168      Document #1397073           Filed: 09/28/2012    Page 21 of 57      On November 16, 2010, the VSC ...
USCA Case #12-5168     Document #1397073           Filed: 09/28/2012    Page 22 of 57      In its denial the VSC acknowled...
USCA Case #12-5168        Document #1397073          Filed: 09/28/2012    Page 23 of 57       The IIP Program Fee Schedule...
USCA Case #12-5168       Document #1397073            Filed: 09/28/2012     Page 24 of 57      The IIP, since the inceptio...
USCA Case #12-5168       Document #1397073            Filed: 09/28/2012    Page 25 of 57support. Both the USCIS and the Tr...
USCA Case #12-5168       Document #1397073          Filed: 09/28/2012   Page 26 of 57receives none of these funds. Finally...
USCA Case #12-5168      Document #1397073            Filed: 09/28/2012   Page 27 of 57some of the USCIS claims are moot, o...
USCA Case #12-5168        Document #1397073           Filed: 09/28/2012   Page 28 of 5791 S.Ct. 814, 823-24, 28 L.Ed.2d 13...
USCA Case #12-5168      Document #1397073           Filed: 09/28/2012    Page 29 of 57      Thus, as to USCIS decisions, t...
USCA Case #12-5168      Document #1397073            Filed: 09/28/2012   Page 30 of 57titles and job descriptions did not ...
USCA Case #12-5168      Document #1397073          Filed: 09/28/2012   Page 31 of 57      DEAs interpretation of its own s...
USCA Case #12-5168       Document #1397073           Filed: 09/28/2012     Page 32 of 57011331_H-1B_Neufeld.pdf , P. 1; ht...
USCA Case #12-5168      Document #1397073          Filed: 09/28/2012    Page 33 of 57III. The Statute and Regulation      ...
USCA Case #12-5168       Document #1397073          Filed: 09/28/2012    Page 34 of 572095, App. CAR 2527-2718 Initially, ...
USCA Case #12-5168      Document #1397073          Filed: 09/28/2012   Page 35 of 57      Noting the IIP’s argument that t...
USCA Case #12-5168        Document #1397073          Filed: 09/28/2012    Page 36 of 57        by the petitioners program ...
USCA Case #12-5168       Document #1397073            Filed: 09/28/2012     Page 37 of 57      The AAO’s determination is ...
USCA Case #12-5168      Document #1397073            Filed: 09/28/2012   Page 38 of 57accept as adequate to support the AA...
USCA Case #12-5168       Document #1397073           Filed: 09/28/2012     Page 39 of 57      One need not be a statutory ...
USCA Case #12-5168       Document #1397073           Filed: 09/28/2012    Page 40 of 57states that the policy behind this ...
USCA Case #12-5168       Document #1397073           Filed: 09/28/2012    Page 41 of 57without presenting contrary evidenc...
USCA Case #12-5168      Document #1397073           Filed: 09/28/2012     Page 42 of 57absolutely nothing to the IIP-US, t...
USCA Case #12-5168       Document #1397073           Filed: 09/28/2012    Page 43 of 57      Of course. the USCIS could ri...
USCA Case #12-5168      Document #1397073          Filed: 09/28/2012    Page 44 of 57the determinations of the USCIS descr...
USCA Case #12-5168      Document #1397073           Filed: 09/28/2012    Page 45 of 57      It is clear as well that this ...
USCA Case #12-5168       Document #1397073          Filed: 09/28/2012    Page 46 of 57rulemaking” was not required. The US...
USCA Case #12-5168      Document #1397073            Filed: 09/28/2012    Page 47 of 57be substituted after notice to the ...
USCA Case #12-5168      Document #1397073           Filed: 09/28/2012    Page 48 of 573d 939, 951 (D.C. Cir. 2005). But, h...
USCA Case #12-5168      Document #1397073           Filed: 09/28/2012   Page 49 of 57second prison term and rejected on th...
USCA Case #12-5168         Document #1397073        Filed: 09/28/2012   Page 50 of 57      All visa petitions, indeed almo...
USCA Case #12-5168      Document #1397073            Filed: 09/28/2012    Page 51 of 57      In any event, the Trial Court...
IIP v. USCIS re cultural exchange Q-1 appellants brief 9-28-12
IIP v. USCIS re cultural exchange Q-1 appellants brief 9-28-12
IIP v. USCIS re cultural exchange Q-1 appellants brief 9-28-12
IIP v. USCIS re cultural exchange Q-1 appellants brief 9-28-12
IIP v. USCIS re cultural exchange Q-1 appellants brief 9-28-12
IIP v. USCIS re cultural exchange Q-1 appellants brief 9-28-12
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Transcript of "IIP v. USCIS re cultural exchange Q-1 appellants brief 9-28-12"

  1. 1. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 1 of 57 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT __________ No. 12-5168 ___________ INTERNATIONAL INTERNSHIP PROGRAM Plaintiff-Appellant v. JANET NAPOLITANO. et al. Defendants-Appellees _________________________________________________ On Appeal from the United States District Court For The District of Columbia _________________________________________________ APPELLANT’S BRIEF (CORRECTED) Frederic W. Schwartz, Jr. 1055 Thomas Jefferson St., NW Suite M-100 Washington, D.C. 20007 (202) 463-0880 197137
  2. 2. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 2 of 57 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Counsel for plaintiff-appellant makes the following certification pursuant toD.C. Circuit Rule 28(a)A. Parties and Amici The following parties appeared before the District Court; there were noamici or intervenors:Plaintiff: INTERNATIONAL INTERNSHIP PROGRAMSDefendants: JANET NAPOLITANO, SECRETARY, U.S. DEPARTMENT OFHOMELAND SECURITY; ALEJANDRO MAYORKAS, DIRECTOR, U.S.CITIZENSHIP AND IMMIGRATION SERVICES; PERRY RHEW, CHIEF,U.S.C.I.S. ADMINISTRATIVE APPEALS OFFICE, DANIEL M. RENAUD,DIRECTOR, VERMONT SERVICE CENTER; U.S.C.I.S.; UNITED STATESATTORNEY GENERAL ERIC HOLDER, UNITED STATES OF AMERICAB. Rulings Under Review The ruling under review, granting summary judgment for defendants,denying summary judgment for plaintiffs, and dismissing plaintiff’s Complaintwas issued by the Hon. Richard J. Leon on March 29, 2012 and is reproduced inthe Appendix at 45.C. Related Cases This case was previously before the Court on the appellant’s motion to stayproceedings in the District Court pending this appeal and on the appellant’sinterlocutory appeal of the Trial Court’s denial of its motion for injunctive relief.The motion was denied and the appeal was found to be moot. App. 43 This casehas not been before any other court previously except the District Court whichissued the Order under appeal. Counsel know of no other related case.
  3. 3. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 3 of 57 TABLE OF CONTENTSGLOSSARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viJURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1STATEMENT OF ISSUES TO BE RAISED ON APPEAL. . . . . . . . . . . . . . . . . . 1STATEMENT OF FACTS AND OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. Relevant USCIS Decisions on Appeal .. . . . . . . . . . . . . . . . . . . . . . . . . . 4SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 I. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 II. The Limitations on Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 III. The Statute and Regulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 IV. The IIP Cultural Visitors Were To Be Employed under the same wage and working conditions as domestic workers. . . . . . . . . . . . . . 25 A. The IIP Cultural Visitors Were Not Teacher Assistants. . . . . . . . 25 B. The IIP Cultural Visitors Were comparable to unpaid interns or volunteers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 C. The Fees The Cultural Visitors Pay To The IIP Affiliates in Asia for Their Selection, Testing, Training, Monitoring and Other Services Need Not Be Reimbursed by the IIP. . . . 33 V. The new and novel interpretations of the Q-1 statute and regulation violate the requirements of the Regulatory Flexibility Act... . . . . . . 35 VI. The IIP Claims are not moot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 VII. Even if Some of the Requested Relief was Mooted Out, Other Relief was Not.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 i
  4. 4. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 4 of 57 VIII. The decision of the USCIS to limit IIP programs to 9 months instead of the statutory and regulatory limitations of 15 months was improper.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 IX. The IIP may furnish cultural visitors to schools solely as part of the schools established curriculum to a limited number of students enrolled in the classes and for programs which charge a fee.. . . . . . 47 X. The new and novel interpretations of the Q-1 statute and regulation violate the notice and comment requirements of the Administrative Procedures Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 ii
  5. 5. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 5 of 57 TABLE OF AUTHORITIESCASESBabbitt v. United Farm Workers National Union, 442 U.S. 289 (1979). . . . . . . . 43Beethoven Com LCC v. Librarian of Congress, 194 F. 3d 939 (D.C. Cir. 2005). 39Better Government Assn v. Department of State, 780 F.2d 86 (D.C. Cir. 1986).. 43*Butte County v. Hogen, 613 F.3d 190 (D.C. Cir. 2010):. . . . . . . . . . . . . . . . . . . 33Case of Proclamation (1611) 12 Co. Rep. 74 (UK). . . . . . . . . . . . . . . . . . . . . . . . 15Celotex v. Catrett, 477 U.S. 317 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20*Chevron U.S.A. Inc. v. National Res. Def Council, Inc.,467 U.S. 837 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 22, 24Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). . . . . . . . . . . . 19*Del Monte Fresh Produce Co. v. United States,570 F.3d 316 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 39*Friedman v. Sebelius, 686 F. 3d 813 (2012).. . . . . . . . . . . . . . . . . . . . . . . . . . 3, 39Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.,528 U.S. 167 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Honeywell International, Inc. v. Nuclear Regulatory Commission,628 F.3d 568 (D.C. Cir 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40Ivanov v. Sunset Pools Management, Inc., 567 F. Supp. 2d 189, (D.D.C. 2008). . 3John Doe Inc. v. DEA, 484 F.3d 561(D.C. Cir. 2007). . . . . . . . . . . . . . . . . . . . . . 34Medimmune, Inc. v. Genetech, Inc., 549 U.S. 118 (2007). . . . . . . . . . . . . . . . . . . 22Orengo Caraballo v. Reich, 11F. 3d 186, 195 (D.C. Cir. 1993). . . . . . . . . . . . . . 43Republic of Transkei v. INS, 923 F.2d 175 (D.C.Cir.1991). . . . . . . . . . . . . . . . . . 37Richards v. Immigration & Naturalization Service,554 F.2d 1173 (D.C.Cir.1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Richardson v. Perales, 402 U.S. 389 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 iii
  6. 6. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 6 of 57Secretary of State v. Pankina,[2010] EWCA Civ 719; [2010] All ER (D) 196 (Jun)(UK). . . . . . . . . . . . . . . . . . 21Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974). . . . . . . . . . . . . . 15Thompson v. Clark, 741 F.2d 401 (D.C. Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . 42*U.S. Telecom Assn. v. FCC, 400 F.3d 29 (D.C. Cir. 2005).. . . . . . . . . . . . . . 36, 37United States v. Philip Morris USA Inc., 686 F.3d 832 (D.C. Cir 2012). . . . . . . . 36Wisconsin Electric Power Co. v Department of Energy,778 F.2d 1(D.C. Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40* Authorities upon which we chiefly rely are marked with asterisks.STATUTES5 U.S.C. § 551. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 475 U.S.C. § 601. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 U.S.C. § 611. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 U.S.C. §701.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 U.S.C. § 706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 U.S.C. § 1101(a)(15)(Q).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 25, 30, 318 U.S.C. § 1252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 3628 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 U.S.C. § 1361. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 U.S.C. § 2201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 U.S.C. § 2412. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 U.S.C. § 203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 iv
  7. 7. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 7 of 57REGULATIONS8 C.F.R. §103.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 58 C.F.R. § 214.1(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388 C.F.R. § 214.2(q). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10, 22, 25, 38, 4522 C.F.R. §62.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45OTHER AUTHORITIESDepartment of Labors Occupational Outlook Handbook (OOH),2010-11 Edition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 23Department of Labor Dictionary of Occupational Titles. . . . . . . . . . . . . . . . . . . . 23Fed.R.Civ.P. 56(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20H.R. REP. 101-723(I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). . . . . . . . . . . . . . . . . . . . 20, 21USCIS Adjudicators Manual § 14.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 v
  8. 8. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 8 of 57 GLOSSARYAAO–Administrative Appeals Office, the highest level reviewing office for the USCISAPA–Administrative Procedures ActDOL–Department of LaborINA–Immigration and Naturalization ActINS–Immigration and Naturalization Service, the predecessor to the USCISRFA–Regulatory Flexibility ActRFE–USCIS “Request for Further Information”USCIS--United States Citizenship and Immigration ServicesVSC–Vermont Service Center, the first level reviewing office for the Q-1 visa vi
  9. 9. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 9 of 57 JURISDICTIONAL STATEMENT This appeal challenges the refusal of the District Court to grant relief toappellant International Internship Program. The suit was brought under theImmigration and Nationality Act (INA), as amended, 8 U.S.C. §§ 1101, et seq.;statutes relating to agency actions (APA), 5 U.S.C. §§ 551, et seq. and 5 U.S.C.701, et seq.; 28 U.S.C § 1361 relating to mandatory injunctive relief against anofficer of the United States; the declaratory judgments provisions of 28 U.S.C2201 et seq.; and 28 U.S.C. § 2412 relating to the Equal Access to Justice Act. . Jurisdiction of the District Court was based upon 28 U.S.C. § 1331 (Federalquestion) and 28 U.S.C. § 1361 (Federal mandamus). Jurisdiction of this Court isbased on 28 U.S.C. § 1291 (appeal from the District Court). STATEMENT OF ISSUES TO BE RAISED ON APPEAL 1. Did the USCIS correctly and appropriately reinterpret the Q-1 visastatute and its own Q-1 visa regulations? 2. Did the Trial Court correctly and appropriately review the USCIS’reinterpretation of the Q-1 visa statute and its own Q-1 visa regulations? 3. Does the Regulatory Flexibility Act apply to the USCIS’ reinterpretationof its Q-1 visa regulations? 1
  10. 10. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 10 of 57 STATEMENT OF FACTS AND OF THE CASE1I. Procedural History The appellant/plaintiff, International Internship Program (IIP), is an I.R.C.§ 501(c)(3) non-profit which has sponsored, for the past 30 years, a culturalexchange program in which visitors from Japan, Korea, Thailand, and China cometo the United States and are placed in host schools where they share with studentsand the local community the history, culture, and traditions of their homeland.For most of this period these cultural visitors have obtained “Q-1” visas under 8U.S.C. § 1101(a)(15)(Q), which established the cultural visitors program, as wellas the USCIS/INS’ implementing regulations at 8 C.F.R. § 214.2(q). Beginning in October 2009, despite its long history of approvals, theUSCIS, issued a series of decisions which essentially barred the IIP fromcontinuing its activities as it had in the past. The IIP filed suit for injunctive andother relief on July 21, 2010. App. 2 On November 24, 2010, the IIP filed aSupplemental Complaint to incorporate a decision on November 16, 2010 inwhich the USCIS’ Vermont Service Center (VSC) denied the IIP’s visa petitionfor eleven of its cultural exchange participants. App. 7 Abstracted from the Supplemental Complaint (App. 7) if not denied in the1/Answer (App. 42-A), the District Court decisions (App. 45, 71), the prior decisionof this Court (App. 43), the docket (App. 1), or as indicated. 2
  11. 11. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 11 of 57 On December 3, 2010, the IIP filed a Motion for Temporary RestrainingOrder and/or Preliminary Injunctive Relief to require the VSC to approve the visapetition which it had denied in November. A hearing on the request forpreliminary injunctive relief was held on December 21, 2010. The District Courttook the matter under advisement, but stated that he anticipated issuing a ruling bythe end of January 2011. App. 181 On July 20, 2011, almost seven months afterthe projected date for a decision, the District Court denied the IIP’s request forpreliminary injunctive relief. App. 71 The IIP brought an interlocutory appeal of the denial of injunctive relief andmoved in both the District Court and later this Court for a stay of the DistrictCourt action until the appeal in this Court could be resolved. Both motions weredenied. No. 11-5197 On February 21, 2012, this Court dismissed theinterlocutory appeal as moot noting that the injunctive relief requested had relatedto a period which had expired. Thus, this Court concluded that no effective reliefcould be offered. The Court also noted specifically that it expressed no opinion onthe merits of the IIP’s claims. The IIP petitioned for a rehearing On March 27, 2012. It pointed out that avisa is very much like a driver’s license as it can be easily renewed and is subjectto recrafting in other ways. Equally important, this Court had not addressed theexception to mootness where “the claim for relief...[is] capable of repetition butevading review.” See, e.g., Honeywell International, Inc. v. Nuclear RegulatoryCommission, 628 F.3d 568, 576 (D.C. Cir 2010)(claim not moot even though 3
  12. 12. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 12 of 57license period has expired in light of probable future license.) The IIP expressedconcern that by not distinguishing decisions like Honeywell, the District Courtmight, on the authority of this Court’s dismissal, determine that all of the IIP’sclaims were moot since effective injunctive relief could no longer be provided andno exceptions to mootness applied. On March 28, 2012, the next day, the TrialCourt dismiss a significant part of the IIP’s suit as moot as discussed below. ThisCourt denied the petition without opinion on April 12, 2012.II. Relevant USCIS Decisions on Appeal The initial IIP Q-1 petition was submitted to the USCIS Vermont ServiceCenter (VSC). The USCIS Service Centers make the initial decision to approve,deny, or certify the petition (with or without a preliminary decision) to the USCISAdministrative Appeals Office (AAO), the USCIS appellate body. 8 C.F.R.103.(4)(a) If the Service Center denies the petition, the petitioner may appeal tothe AAO. 8 C.F.R. § 103.3 Alternatively, the petitioner may appeal to theappropriate U.S. District Court. 8 U.S.C. § 1252(a)(2)(B)(ii) On August 4, 2009, the IIP filed with the VSC an I-129 petition for eighteenQ-1 cultural exchange visitors and requested premium processing, a 10-business-day service which is available with the payment of an additional $1,000.00 fee.App. CAR 2 On August 13, 2009, the VSC sent to the IIP a Request for FurtherInformation (RFE). App. CAR 31 The IIP responded to each point raised in theRFE. App. CAR 33 4
  13. 13. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 13 of 57 On September 8, 2009, the VSC issued a decision which it certified to theAAO, a procedure followed in matters of significant complexity. 8 C.F.R.103.(4)(a). App. 131 The decision of the VSC stated: After a complete review of the record, it is concluded the petitioner has established its program qualifies for designation as an international cultural exchange program pursuant to the provisions of found at 8 C.F.R. § 214.2 (q) (3) . The record of proceeding establishes the cultural exchange visitors will be engaged in an internship program of which the essential element is the sharing of the culture of the aliens country of nationality. USCIS has further determined that the work component of the petitioners program would not be operated independently from the cultural component objectives of the IIP program. The evidence establishes the petitioner has described an international cultural exchange program satisfying all the required components prescribed in 8 CFR § 214.2(q) (3) (iii); specifically, the cultural component and the work component. The record establishes the beneficiaries are eligible for classification within the meaning of Section 101(a) (15) (Q) of the Act. * * * * * The Service Center Director recommends this instant petition be approved. App. 136 On October 6, 2009, the AAO approved the VSC certified decision. App.127 The approval stated, in pertinent part: The petitioner operates a program whereby it recruits cultural exchange visitors from Japan, China and Korea for internships at United States primary and secondary schools that seek to supplement their curricular offerings with Asian cultural and language classes. The details of the program are arranged by the host school and the cultural exchange visitor based on the needs of the school and the cultural interests of the visitor, thus the exact structure of the program varies from host school to host school. However, the petitioner has submitted sufficient evidence related to past program participants to establish that the cultural activities are carried out in a structured manner according to the petitioners guidelines. The participating interns present instructional activities designed to enrich or supplement the schools existing curricula with age-appropriate cultural and language lessons and courses. The substantial evidence in the record further 5
  14. 14. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 14 of 57 establishes that program participants are utilized by the schools solely or primarily to assist teachers with cultural and language lessons, or to provide supplemental enrichment lessons, and not to perform general instructional or other non-cultural duties unrelated to the programs cultural component. The petitioner has demonstrated that the participating interns document their activities and accomplishments in a monthly report submitted to the petitioners U.S. and overseas offices to ensure program quality and compliance. Upon review of the record of proceeding in its entirety, the AAO concurs with the directors determination that the petitioner operates an international cultural exchange program satisfying all the required components prescribed at 8 C.F.R. § 214.2(q)(3)(iii). According, the directors decision will be affirmed and the petition will be approved. App. 129 Nonetheless, the AAO concluded: Also, given that the petitioners program takes place in elementary and secondary schools which traditionally have a two to three-month break between academic years, it has not been established that the beneficiaries would be performing services consistent with the program during the summer months. Therefore, the director is instructed to carefully review the actual intended dates of program participation rather than granting the requested 15-month period of Q-1 classification. App. 130 On December 4, 2009 The VSC approved the IIP petition after the IIPagreed for that group of cultural visitors to modify the duration to conform to theschool year and to withdraw the request for participants and institutions who couldnot or would not accept the limitation of a 5-month program. App. CAR 13752 On January 29, 2010, the IIP filed with the VSC a petition for four Q-1cultural exchange visitors and again requested premium processing. App. CAR1362 For the convenience of the Court, those portions of the CAR reproduced in the2/Appendix are designated “App. CAR ___.” Those portions not reproduced aredesignated “CAR____.” 6
  15. 15. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 15 of 57On February 4, 2010, the VSC sent to the IIP an RFE which was identical with theRFE dated August 13, 2009, but with one additional evidentiary request. (App.CAR PP 1377 That additional request was: • Submit evidence to clearly establish the requested validity period for this petition. The record needs to establish what the beneficiaries will be doing during the summer break period if the validity extends during those months and how these activities would relate to your cultural programs with the host schools. App. CAR 1380 The IIP responded to each point raised in the RFE. App. CAR 1381 On February 16, 2010, the VSC, contrary to its prior decision, denied theIIP) petition on a number of grounds and certified its decision to the AAO. App.121 The IIP filed a brief with the AAO opposing the VSC denial of its petition.On April 22, 2010, the AAO issued its decision withdrawing (reversing) most ofthe VSC decision, but sustaining the denial of the petition. App. 107 The AAOdecision held, in pertinent part: The petitioner has established that the beneficiaries proposed activities satisfy the accessibility to the public requirement set forth at 8 C.F.R. § 214.2(q)(3)(iii)(A). The regulation uses examples to set the limits of what is acceptable and unacceptable with respect to public access. As an example of sufficient public access, the regulation specifically mentions that the cultural exchange program may take place in a school. As examples of insufficient public access, the regulation cites "[a]ctivities that take place in a private home or an isolated business setting." Id. The petitioners program involves a level of public access that surpasses these negative examples. App. 111 7
  16. 16. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 16 of 57 The AAO went on to hold, however: The AAO emphasizes, however, that the mere fact that the program takes place in a school is insufficient to establish eligibility under this requirement. For example, a beneficiary coming to the United States solely to teach classes that are part of a schools established curriculum, such as Intermediate and Advanced Japanese, to a limited number of students enrolled in the classes, would not be engaged in cultural sharing activities which could be considered sufficiently accessible to the public or a segment of the public. App. 111 Concerning the work component of the IIP program, the AAO found: The director determined that the petitioner "has not established that the work component would not be operated independently from the cultural component." The directors certified decision does not contain any further discussion regarding the work component of the petitioners program or why the evidence fails to establish eligibility. The AAO will withdraw the directors determination. The petitioner has established that its program participants are utilized by the host schools solely or primarily to assist teachers with cultural and language lessons, or to provide supplemental enrichment lessons, and not to perform general instructional or administrative duties unrelated to the programs cultural component. While the petitioner acknowledges that participants will occasionally be asked to assist teachers with non-cultural activities, the AAO finds sufficient evidence to establish that such non-cultural activities are in fact occasional and not the basis for the program. App. 105 The AAO, however, did sustain the VSC in two ways. First, as to theduration of the program, the AAO held that because the IIP formal program isschool based, it is appropriate to limit the period of approval to the academicschool year. App. 105 The AAO also concluded that the IIP had not established that it would offerthe interns wages and working conditions comparable to those accorded localdomestic workers similarly employed, as required by the INA and 8 C.F.R. § 8
  17. 17. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 17 of 57214.2(q)(4)(i)(D). The AAO acknowledged that the IIP had certified that theinterns would receive a stipend of $100.00 per month, as well as room, meals,incidentals and local transportation, but questioned the truth of the statement thatthe interns received an additional $200.00 per month from the IIP for thesepurposes. App. 116-117 Rejecting the IIP’s argument that there are no "culturalexchange visitors" in the domestic work force and that the nearest comparisons tothe interns would be either Americorp or similar workers who receive a stipendwhich allows them to obtain room and board at a minimal level or interns who,even though performing highly complex work, are almost never paid, the AAOheld that the Americorp workers receive more than the $8,500.00 per year whichthe IIP asserted was the value of its payment. In addition, noting that the participants paid the recruiting and trainingagency in their home country a "registration fee," "program fees," and"accommodation fees" in order to participate in the program, the AAO determinedthat the program participants may well have a greater financial obligation to theIIP than did the IIP to the interns which negated these payments by the IIP. App.App. 118 The AAO held as well that unpaid internships such as those which form thebasis of the IIP program are contrary to law, citing U.S. Department of Labor,Wage and Hour Division, Opinion Letter FLSA2002-8,http://www.dol.gov/whd/opinion/FLSA/2002/2002 09 05 8_FLSA.pdf (Sept. 5,2002) and an Inc. Magazine article. (Rec. 1206, fn. 4) 9
  18. 18. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 18 of 57 Relying on 8 C.F.R. § 214.2(q)(4)(i)(D), the AAO held that it wasreasonable to conclude that the IIP was required to pay the interns “actual wagescommensurate with their duties.” App. 119 Finding that this did not occur for thereasons discussed above, the AAO sustained the VSC’s denial of the petition andvisa request. App. 120 The IIP moved to reopen and reconsider the AAO decision. App. CAR 106On June 21, 2010, the AAO held that the evidence submitted on reconsiderationwas sufficient to demonstrate that the interns would be carrying out their culture-sharing activities during the summer academic recess, but affirmed itsdetermination that the interns must be paid monetary wages, adding more detail toits rationale and identifying the local domestic workers similarly employed whichit had in mind. The AAO noted “that the petitioners program participants areassigned to elementary and secondary host schools to assist teachers with culturaland language lessons, or to provide supplemental enrichment lessons, in theclassroom, and may occasionally be asked to perform general teaching assistantduties,” App. 91 The AAO then considered the duties that the interns perform, finding them“similar” to those performed by a teacher assistant. App. 99 In this regard, theAAO relied upon the Department of Labors Occupational Outlook Handbook(OOH), 2010-11 Edition, as discussed fully below. 10
  19. 19. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 19 of 57 In addition, the AAO explained: Furthermore, while the AAO acknowledges that some U.S. schools seek volunteers to assist in classrooms without compensation, the level of time commitment, lesson preparation, teacher involvement and evaluation criteria present in the petitioners program make the position directly comparable to a paid teaching assistant rather than to those of a volunteer who offers services as a tutor or classroom helper on an informal basis. The Q-1 nonimmigrant classification is an employment-based visa that requires the petitioner to pay beneficiarys wages comparable to those received by domestic workers. Thus, it is reasonable to compare the beneficiaries compensation to those who perform similar duties in exchange for wages as opposed to those who perform similar duties as volunteers. App. 99-100 The AAO explained its legal rationale this way: While the Q-1 classification does not have a prevailing wage requirement, the purpose of the language at section 101(a)(15(Q)(i) of the Act, requiring the Q-1 beneficiary "be employed under the same wages and working conditions as domestic workers," is similar to the H-1B employers wage and working condition attestation requirement at section 212(n)(1) of the Act. The petitioner is not relieved from the statutory requirement by simply asserting that the position is for volunteers or that it has no equivalent in the domestic workforce. The statute governing the Q nonimmigrant classification states without ambiguity that the beneficiary must "be employed under the same wages and working conditions as domestic workers." Section 101(a)(15)(Q)(i) of the Act. As stated in the supplementary information to the current regulations at 8 C.F.R. § 214.2(q), published at 57 Fed. Reg. 55056, 55059 (November 24, 1992): The Service selected the term "comparable" in order to implement Congresss wish that cultural exchange visitors receive wages and working conditions that are the "same" as those of similarly situated domestic workers. Section 214.2(q)(4)(iii)(B) requires the petitioner to certify compliance with this requirement. * * * The key issue is whether the cultural exchange visitor will work under conditions and for wages that are comparable to those accorded to domestic workers similarly employed in the same geographical area. 11
  20. 20. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 20 of 57 Since there are paid teacher assistants in the domestic workforce who are similarly employed, the petitioner is required to establish that it will offer the beneficiaries wages and working conditions comparable to those accorded to such domestic workers. App. 100 In this regard, the AAO considered the value of the room, board,transportation and other benefits provided to the intern irrelevant, stating: Furthermore, the relevant comparison is whether the beneficiaries are receiving wages that are comparable to domestic workers similarly employed, not whether the beneficiaries are receiving room and board or other non- wage compensation comparable to a person living at or slightly below the poverty line. The regulations at 8 C.F.R. § 214.2(o)(4)(i)(D) and § 214.2(11)(ii) refer specifically to "wages" and not to "wages and/or other compensation." App. 103-104 The AAO concluded: [O]ur findings should not be construed as a conclusion that the participating schools are merely seeking, or that the petitioner is seeking to provide, free or inexpensive labor to fill positions within American schools. The AAO recognizes the value of the petitioners cultural exchange program and does not doubt the intentions of the parties involved or their commitment to the objectives of the program. However, we affirm our finding that the petitioners decision to structure the program as an "unpaid internship" with the majority of the financial responsibility falling on the participants themselves, is contrary to the statutory and regulatory requirements that must be adhered to by qualified employers. App. 106 On October 8, 2010, the IIP filed with the (VSC) a petition for eleven Q-1cultural exchange visitors and requested premium processing. App. CAR 2261 OnOctober 20, 2010, the VSC faxed to the IIP a Request for Further Evidence. App.CAR 2497 On November 1, 2010, the IIP responded. App. CAR 2502 12
  21. 21. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 21 of 57 On November 16, 2010, the VSC denied the IIP Petition. App. 87 In itsdenial the VSC found that the non-technical job description which the IIPprovided for the beneficiaries states that the beneficiaries will visit classrooms andcommunity centers in order to share their culture with students and com0munities,and serve as a foreign resource person for students, staff; parents and the generalpublic. App. 88-89 In its denial the VSC acknowledged that the beneficiaries are not to takepart in any activity which might normally be carried out by a teacher assistant or toassist the teacher in any task which might be carried out by a teacher assistant.App. 88 In its denial the VSC acknowledged that the proffered purpose of thebeneficiaries participation in the IIP program was to further their vocational andprofessional development by experiencing life in the United States, as well asimproving their English speaking skills. App. 88 In its denial the VSC acknowledged that the beneficiaries will not bereceiving any compensation from the schools while here and they will not be paida wage from the IIP. App. 88 The beneficiaries will only receive $100 per monthas an allowance and $200 per month will be given by the IIP through the intern tothe host family for accommodations and meals. Id. In its denial the VSC acknowledged that the agreements between theschools and the beneficiaries state that the beneficiaries will be unpaid interns.App. 88-89 In its denial the VSC acknowledged receiving a copy of the activitiescarried out by IIP interns in the United States during the Summer of 2010. App.89 13
  22. 22. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 22 of 57 In its denial the VSC acknowledged that the IIP concludes that theDepartment of Labor would designated its interns as the equivalent of thedomestic worker “volunteer” and that volunteers are exempt under the Departmentof Labor administered Fair Labor Standard Act (FLSA) from being paid any[wages or salary]. App. 89 In its denial the VSC also acknowledged receiving andreviewing the Department of Labor Wage and Hour Division Fact Sheet #71,Internship Programs under the Fair Labor Standards Act (April 2010). App. 89,App. CAR 2526, et seq. In its denial the VSC agreed that the Department of Labor has an exception[for wages] for individuals who volunteer their time, freely and withoutanticipation of compensation to non-profit organizations. App. 89 In its denial theVSC acknowledged receiving and reviewing as part of the IIP response to theRequest for Evidence information concerning other internship/volunteer programs,but found that information was not relevant to the Q-1 program. App. 89 In its denial the VSC concluded that: participants are responsible for paying the accommodations fee directly to their home stay provider, that these fees are coming from the participants registration payment that was taken during the registration in his/her home country and that other costs, such as airfare, insurance, personal expenses and return airfare are personally paid by the participants. Also, the participants are responsible for arranging for their own accommodations during the summer months or extended school breaks. App. 89 In its denial the VSC states that it derived these conclusions from the IIPProgram Fee Schedule. App. 89 14
  23. 23. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 23 of 57 The IIP Program Fee Schedule provides, inter alia, that the program fee“includes orientation materials, placement monitoring, home stay accommodationand three meals daily, transportation to and from school, a US$100 per month, andairport pick up on arrival.” App. CAR 2477-2478 In its denial, the VSC states that it “is concluded that the regulations requirethat you pay the beneficiaries actual wages commensurate with their duties.” App.89 In its denial the VSC states, without further justification than stated above:“Therefore, your petition is denied.” App. 89 SUMMARY OF ARGUMENT The issues before this Court are not unique to either this Country or torecent centuries. As Lord Justice Sedley wrote in Secretary of State v. Pankina,[2010] EWCA Civ 719; [2010] All ER (D) 196 (Jun), citing Case of Proclamation(1611) 12 Co. Rep. 74: Although the issue which each of these appeals raises looks on its face marginal almost to the point of triviality, it is an issue of constitutional importance and of real difficulty. The issue is whether the executive, in rules which are required, subject to parliamentary oversight, to set out how it proposes to exercise its statutory functions, can lawfully reserve to itself the power to add or to modify those rules. It raises questions about the constitutional status of the immigration rules and about their relation to departmental policy and human rights.This appeal is little different. 15
  24. 24. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 24 of 57 The IIP, since the inception of the Q visa program decades ago, has filedwith the USCIS visa petitions for Asian cultural exchange visitors to come to thiscountry under the auspices of the IIP Q-1 program. Until 2009, these petitionshave all been approved. The USCIS has now re-imagined its Q-1 regulation andaltered its view of the regulation’s import. Consequently, the USCIS hasimproperly denied in whole or in part the three most recent IIP Q-1 visa petitions. Wages was the primary sticking point. The first step in both statutory andregulatory analysis is to determine what the statute actually says. The statute hereis clear. It says the Q-1 beneficiary shall: be employed under the same wages and working conditions as domestic workers similarly employed §101(a)(15)(Q)(1)Not so says the USCIS, seconded by the Trial Court. In their view, the statutereally says that the cultural visitor must: be employed and receive some wagesThey take this view even though their interpretation eliminates the statutorymodifier that the wages must be the “same...as domestic workers similarlyemployed” and is contrary to statutory policy as found in the legislative history.For his part, the Trial Court claims his hands are tied under Chevron. Whileacknowledging that he is applying second step Chevron deference, the Trial Courtconcludes that if any part of a statute is left to the agency’s interpretation all of thestatute is subject to second step Chevron deference. The USCIS’ statutoryinterpretation is contrary to the customary canons, and the Trial Court’s novelview of when second step Chevron deference is necessary finds no authoritative 16
  25. 25. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 25 of 57support. Both the USCIS and the Trial Court improperly conclude that the culturalvisitors are actually teacher assistants even though their position descriptiondiffers significantly from the position description established by the DOL forteacher assistants. The USCIS–with the approval of the Trial Court--also requires the IIP to actin ways which are specifically contrary to the statute or which ignore the statute.The statute requires that the IIP afford the cultural visitors the same workingconditions as domestic workers similarly employed. Consequently, the IIP permitssome cultural visitors to engage in complimentary summer activities since theworking conditions of non-administrative domestic school workers, be theysalaried or volunteer, provide these same extended breaks and summer holidays.The USCIS has refused, however, to authorize visas which extend beyond theschool year even if the cultural visitor is to resume his or her school activities inthe Fall. Similarly, since the statute requires that the cultural visitor receive thesame wages and working conditions of domestic workers, the IIP-US affiliates inAsia have been utilizing part of the fees the participant pay to fund their room,board and incidental expenses. This is because comparable domestic workers donot receive employer-provided room, board and incidental expenses. The USCISconsiders this improper, however, and requires that these sums be reimbursed tothe cultural visitor or be added to the appropriate salary. Justified payments toforeign (and domestic) organizations to select, train and monitor interns andvolunteers are commonplace, but the USCIS forbids them even though the IIP-US 17
  26. 26. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 26 of 57receives none of these funds. Finally, while its own regulations provide that theactivities of the cultural visitor can take place in schools, the USCIS now hasdecided that schools which charge tuition are not schools, and that the culturalvisitors do not belong there. The etiology of this new tack cannot be found ineither the statute or the regulation as written. In light of the enormous projected financial impact on the IIP from theUSCIS’ new requirements and restrictions, the IIP argues that a RegulatoryFlexibility Act analysis is required. While the USCIS’ previous understanding ofthe statute and its own regulations imposed no economic hardship, thus justifyingthe previous finding that there was none, that is clearly not the case now.Consequently, the IIP concluded that the USCIS needed to carry out an RFAanalysis before imposing these added expenses. Congress could not have intendedto authorize an agency to subsequently alter the financial impact of a rule and yetrely on its outdated finding that there was no financial impact. Even with ever-smaller numbers of Q-1 visas issued, 1,589 in 2010, the impact on small entitiesseems clear. The Trial Court also failed to understand the mechanics of resolution ofagency appeals. First, it considered the action moot because the requested periodsof visa viability had passed. There are exception to mootness, however, whenthe claim attacks an ongoing agency policy and when the claim for relief iscapable of repetition but evading review. Both exceptions apply. Further, even if 18
  27. 27. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 27 of 57some of the USCIS claims are moot, others seeking, for example, a declaratoryjudgment are not. The Trial Court did not appear to appreciate the niceties of APA review andthe subtleties of substantial evidence. Substantial evidence is evidence whichwould be sufficient to convince a reasonable bureaucrat–using the standard he orshe is charged with utilizing--that a proposition is true. The Court merelydetermines whether that quantum of evidence exists without regard to contraryevidence. In the case of the USCIS, the adjudicator was charged with utilizing thepreponderance of the evidence test, and the substantial evidence test must reflectthat standard. The Trial Court, however, determined that the USCIS adjudicatorcould utilize in his or her review the substantial evidence test, was not required toconsider contrary evidence, and certainly was not required to demonstrate that theevidence he or she relied upon rationally led to the conclusions reached. ARGUMENTI. Standard of Review The general standard of review of agency action is well known to this Court.Republic of Transkei v. INS, 923 F.2d 175, 176-177 (D.C.Cir.1991) It may vacatethe USCIS’ decision only if it is "arbitrary, capricious, an abuse of discretion, orotherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Consequently, thisCourt will examine the administrative record to ensure that the agencys decision"was based on a consideration of the relevant factors" and that the decision wasnot "a clear error." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 19
  28. 28. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 28 of 5791 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); see Richards v. Immigration &Naturalization Service, 554 F.2d 1173, 1177 (D.C.Cir.1977). Summary judgment,as was the case here, is appropriate if the pleadings and the record, when viewedin the light most favorable to the nonmoving party, demonstrate that "there is nogenuine issue as to any material fact and that the moving party is entitled tojudgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317,323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986) To the extent the District Courtsdecision hinges on questions of law, however, this Court’s review is essentially denovo. There is a novel complication to the customary standard of review in thisappeal. The USCIS has bound itself to the preponderance of the evidence testgenerally rejected in agency cases. In a precedent decision, the AAO reminded inMatter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010): Except where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought. * * * The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicants claim is "probably true," where the determination of "truth" is made based on the factual circumstances of each individual case. Matter of E-—, 20 I&N Dec. 77, 79-80 (Commr 1989). * * * * * Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is "more likely than not" or "probably" true, the applicant or petitioner has satisfied the standard of proof. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). * * * 20
  29. 29. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 29 of 57 Thus, as to USCIS decisions, this Court must find that there is substantialevidence that the USCIS reached its decision utilizing a preponderance of theevidence test. This is because the "substantial evidence" requirement mandatesthat the Agency’s findings be supported by "such relevant evidence as areasonable mind might accept as adequate to support a conclusion." Richardson v.Perales, 402 U.S. 389, 401 (1971) (internal citation and quotation marks omitted).This “relevant evidence” must therefore be preponderant in USCISdeterminations. The Trial Court was singularly unimpressed with this analysis, consideringit inapposite since the decision of the service center under review in Chawathedealt with naturalization and not a Q visa. Chawathe, however, made clear at 375that the preponderance of evidence standard applies throughout the agency unlessa different standard is specified by law. It is difficult to understand how the TrialCourt, having served as a Trial Attorney with the legacy Immigration andNaturalization Service, does not understand the unity of that agency’s decisionmaking process. Even utilizing the ordinary substantial evidence test, the Trial Court failedto apply it properly. As the Trial Court correctly pointed out, under ordinarycircumstances any relevant and reasonable evidence in support of the agency’sposition is sufficient to carry the day despite the existence of contrary (and evenweightier) evidence to the contrary. This principle does not rescue the USCISdetermination that the IIP cultural visitors were teacher assistants when their job 21
  30. 30. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 30 of 57titles and job descriptions did not match that of teacher assistants since thedetermination was not reasonable and the evidence was not relevant. While low,there is a level to which substantial evidence must rise. More telling, there was noevidence in the record of the final USCIS determination to contradict the IIP’sevidence that the cultural visitors were unpaid interns/volunteers prohibited fromcarrying out teacher assistant duties. The USCIS cannot acknowledge the IIP’sevidence and simply ignore it.II. The Limitations on Review The Trial Court, throughout his decision, limited his scope of review in lightof Chevron U.S.A. Inc. v. National Res. Def Council, Inc., 467 U.S. 837, 843(1984). Under Chevron, judicial deference to agency interpretation is appropriateon two grounds. First, Chevron deference is paid when the intent of Congress isnot clear. Chevron, supra at 842-843. As discussed below, however, the intent ofCongress could not have been clearer. Further, Chevron deference, even if it wasto be paid, is only be paid to the agency’s articulation and interpretation of its ownstatutory mandate. In this regard, while it altered the statutory language slightly(and to the better), USCIS’ regulatory language at 8 C.F.R. 214.2(q)(4)(i)(D)successfully followed the statutory language and it is the new gloss–not theregulation–which is at issue. The first flaw perceived by the IIP, however, is the USCIS’ departure fromthe plain meaning of its own regulation. As to this issue, the Court in John DoeInc. v. DEA, 484 F.3d 561, 570 (D.C. Cir. 2007) explained: 22
  31. 31. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 31 of 57 DEAs interpretation of its own scheduling regulations is controlling unless "plainly erroneous or inconsistent with the regulation." We review the DEAs rationale for denying Does permit under the APAs familiar arbitrary and capricious standard. In conducting our judicial review, we focus on the administrative record that formed the basis for the agencys decision, unless "there was such a failure to explain administrative action as to frustrate effective judicial review." (citation omitted). Likewise, changes in policy and interpretation, while permitted, must beexplained to avoid being arbitrary and capricious. Friedman v. Sebelius, 686 F. 3d813, 826 (2012) The second flaw, as discussed below, is the USCIS’ interpretation, or moreprecisely contradiction, of the Department of Labor’s regulation. The IIP agreesthat the USCIS administers the Q-1 program. Thus, the USCIS must ensure thatthe Q-1 visa holder is being employed under the same wages and workingconditions as comparable domestic workers. This does not mean, however, thatthe USCIS must author the position description for the comparable domesticworker and calculate the prevailing wage for that position. The USCIS and Congress acknowledge that determining the actual wagesand working conditions of comparable domestic workers is within the province ofthe Department of Labor which administers the Fair Labor Standards Act (seeparticularly 29 U.S.C. § 203(e)(4)(A)(i) and publishes the Dictionary ofOccupational Titles and the Occupational Outlook Handbook. See, e.g., USCISAdjudicators Manual § 14.6 The almost all USCIS labor determinations requirecertification by DOL.http://www.uscis.gov/USCIS/Resources/Congress/Testimonies/2011/testimony_2 23
  32. 32. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 32 of 57011331_H-1B_Neufeld.pdf , P. 1; http://www.flcdatacenter.com/CaseH1B.aspx;http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebbdb1a97a53f210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The Trial Court points out that there is no pre-approval DOL certificationrequired by the Q-1 statutory provision, but wrongly concludes that this precludesany reliance on DOL expertise in resolving the question of the appropriatecomparable domestic worker and the prevailing wage (if any) for the position.Regardless of the views of the Trial Court, the USCIS recognized in the Q-1context the expertise of the DOL and cited the DOL definition when it comparedthe IIP’s cultural visitors to teacher assistants. Thus, despite his contrary view, theTrial Court owes Chevron and regulatory deference to the Department of Laborwith regard to the definition of the comparable domestic worker and the prevailingwage, if any, for that worker, not to the USCIS. Further, the Trial Court seems to take a sui generis approach to Chevron.While acknowledging that the Congress spoke directly to many issues in relationto the Q-1 visa, its failure to resolve all Q-1 issues requires in the Trial Court’sview Chevron deference to all USCIS Q-1 determination whether or not addressedby Congress in the statute . App. 62 24
  33. 33. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 33 of 57III. The Statute and Regulation In 1990 the Congress enacted section 101(a)(15)(Q) of the INA, 8 U.S.C.§ 1101(a)(15)(Q), which established a new “Q” nonimmigrant visa category forcertain participants in cultural exchange programs. The new category provided,inter alia, that nonimmigrant Q visa holders must “be employed under the samewages and working conditions as domestic workers.” The Q-1 implementing regulations were issued as an interim rule by the INSon August 22, 1991, and as a final rule on November 24, 1992, and are codified at8 C.F.R. § 214.2(q). 57 FR 55056 The USCIS succeeded the INS, but did notalter the regulation. The regulations provide, inter alia, that the employer mustsubmit proof that it ‘[w]ill offer the alien(s) wages and working conditionscomparable to those accorded local domestic workers similarly employed,” 8C.F.R. 214.2(q)(4)(I)(D).IV. The IIP Cultural Visitors Were To Be Employed under the same wageand working conditions as domestic workers.A. The IIP Cultural Visitors Were Not Teacher Assistants The first question to answer is whether the IIP Cultural Visitors wereTeacher Assistants. The IIP submitted considerable evidence and explanatorynarrative demonstrating that on a national and local level the domestic workeranalog for the IIP cultural visitors would be unpaid interns or volunteers. See,e.g., CAR 72-74, 618-633, 875-1061, 1131-1194, 1209-1327, 1533-1535, 2079- 25
  34. 34. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 34 of 572095, App. CAR 2527-2718 Initially, the AAO and the VSC determined that thepayments which the IIP made to the cultural visitors was appropriate, and did notsuggest that their position was the equivalent of a teacher assistant. Indeed, justthe opposite. In a decision issued on October 6, 2009, the AAO concluded: The participating interns present instructional activities designed to enrich or supplement the schools’ existing curricula with age-appropriate cultural and language lessons and courses. The substantial evidence in the record further establishes that program participants are utilized by the schools solely or primarily to assist teachers with cultural and language lessons, or to provide supplemental enrichment lessons, and not to perform general instructional or other non-cultural duties unrelated to the program’s cultural component. App. 130 Similarly, in its second decision (on the successor IIP petition) the AAOconcluded on April 22, 2010: The petitioner has established that its program participants are utilized by the host schools solely or primarily to assist teachers with cultural and language lessons, or to provide supplemental enrichment lessons, and not to perform general instructional or administrative duties unrelated to the program’s cultural component. While the petitioner acknowledges that participants will occasionally be asked to assist teachers with non-cultural activities, the AAO finds sufficient evidence to establish that such non- cultural activities are in fact occasional and not the basis for the program. App. 115Nonetheless, the AAO subsequently concluded that the IIP was not paying thecultural visitors appropriate wages because (1) it had not met its burden of provingthat it had actually paid the monies it claimed to have paid and further had notshown how it calculated the value of the payments. App. 116, et seq. In addition,the AAO noted that the participants paid a fee to the IIP’s foreign affiliates fortheir selection, testing, training and other services which exceeded the cashactually paid to them. 26
  35. 35. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 35 of 57 Noting the IIP’s argument that the appropriate measure was the legion ofunpaid volunteers and interns documented in the record, the AAO concluded: The AAO acknowledges the petitioner’s claim that many “internships” throughout the United States are unpaid, even in situations in which interns may perform complex duties similar to those performed by a salaried employee. However, the Q-1 regulations specifically require the petitioning employer “to offer the alien(s) wages and working conditions comparable to those accorded local domestic workers similarly employed.” 8 C.F.R. § 214.2(q)(4)(i)(D) Therefore, it is reasonable to conclude that the regulations require that the petitioner to [sic] pay the beneficiaries actual wages commensurate with their duties.(footnote omitted)3 App. 119 The IIP moved to reopen and reconsider, pointing out, in this regard, thatthe AAO had failed to state what it considered to be an analogous domestic workerand appropriate wage. In response on June 21, 2010, the AAO sustained its priordecision and provided its specific rationale. A review of the host school applications, participant evaluations and host school evaluations suggests that the tasks performed by the petitioners program participants fall within the occupation of teacher assistant. They work as assistants to language, art, music, physical education and general classroom teachers, provide enrichment classes for small groups of students, and lead students in preparing special projects and demonstrations. While the petitioner emphasizes that general teaching assistant duties should not be the main purpose of the program, it appears that many participants may support staff teaching general classes not related to their native language or culture, such as working with the school band, helping younger students with reading, or supervising children at recess. Some prior participants who entered the program with prior teaching experience indicate that they have independently taught high-school level language and culture courses. All of these are duties that could be performed by a paid teaching assistant. While the typical domestic worker would not be able to provide a lesson in Japanese calligraphy, he or she may possess specialized skills not possessed The AAO also dropped a footnote which suggested that the DOL and Inc.3/Magazine had opined that unpaid internships were illegal under the Fair LaborStandards Act and the minimum wage laws. In fact, this determinationmisconstrues the law and regulation. 27
  36. 36. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 36 of 57 by the petitioners program participants and be capable of assisting teachers in other areas. That does not make the role of the petitioners teaching assistants entirely different from the roles filled by domestic teaching assistants. App. 99 In support of its view, the AAO cited and quoted as authority Department ofLabors Occupational Outlook Handbook (OOH), 2010-11 Edition, which statesthe following regarding the occupation of teacher assistant: Teacher assistants provide instructional and clerical support for classroom teachers, allowing teachers more time for lesson planning and teaching. They support and assist children in learning class material using the teachers lesson plans, providing students with individualized attention. Teacher assistants also supervise students in the cafeteria, schoolyard, and hallways, or on field trips; they record grades, set up equipment, and help prepare materials for instruction. Teacher assistants also are called teacher aides or instructional aides. Some assistants refer to themselves as paraprofessionals or paraeducators. Some teacher assistants perform exclusively non-instructional or clerical tasks, such as monitoring nonacademic settings. Playground and lunchroom attendants are examples of such assistants. Most teacher assistants, however, perform a combination of instructional and clerical duties. They generally provide instructional reinforcement to children, under the direction and guidance of teachers. They work with students individually or in small groups—listening while students read, reviewing or reinforcing class lessons, or helping them find information for reports. At the secondary school level, teacher assistants often specialize in a certain subject, such as math or science. Teacher assistants often take charge of special projects and prepare equipment or exhibits, such as for a science demonstration.However, the AAO did not repudiate its prior conclusion that the non-culturalduties were a small part of the duties of the cultural visitor and discouraged by theIIP.4 In fact, most host school application forms did not permit the selection of teacher4/assistant duties for the cultural visitor, and the more recent material precluded thisfunction. See, e.g., CAR 320, 1781, 1931, App. CAR 2278, 2289; See also App.CAR 2433 Nonetheless, cultural visitors were occasionally called upon to carryout what could be considered teacher assistant duties in furtherance of theirexposure to the American educational system. 28
  37. 37. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 37 of 57 The AAO’s determination is not supported by either the position title or theposition description. “Teacher assistants provide instructional and clerical supportfor classroom teachers, allowing teachers more time for lesson planning andteaching. They support and assist children in learning class material using theteachers lesson plan.... * * * They generally provide instructional reinforcementto children, under the direction and guidance of teachers.” (Emphasis supplied) Inshort, they do precisely what the job title says they do; they support the teacher incarrying out the teacher’s duty. This is made even cleared by the Department ofLabor, the author and publisher of the OOH on which the AAO properly relied,which defines the position of “teacher assistant” as follows: Perform duties that are instructional in nature or deliver direct services to students or parents. Serve in a position for which a teacher or another professional has ultimate responsibility for the design and implementation of educational programs and services. O-NET 25-9041-00 (Emphasis supplied) The IIP cultural visitor does not utilize the teachers lesson plans, nor carryout his or her program responsibility under the direction and guidance of teachers.It is the cultural visitor, with the training and guidance of the IIP, not a teacher oranother professional, who has ultimate responsibility for the design andimplementation of the program to share knowledge of their home country. Indeed,it is because of the inability of the school and its teachers to provide the resourceswhich are the responsibility of the cultural visitor that the cultural visitor isassigned to the school. No plain reading of the DOL definition of teacher assistantwould lead to the conclusion reached by the AAO, and no reasonable mind would 29
  38. 38. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 38 of 57accept as adequate to support the AAO’s conclusion a position description whichdiffers so significantly from the role of the IIP cultural presenter. Rather, the onlyrelevant evidence in the record as to the parallel domestic position and wages, asdefined by the DOL and as discussed above, is that they are unpaid volunteers orinterns. As will be discussed below, the Trial Court did not address this issue directly.B. The IIP Cultural Visitors Were comparable to unpaid interns or volunteers. In submissions leading to the four USCIS determinations under appeal, theIIP submitted considerable evidence and explanatory narrative demonstrating thaton a national and local level the domestic worker analog for the IIP cultural visitorswould be unpaid interns or volunteers.5 See CAR 72-74*, 618-633, 875-1061,1131-1194, 1209-1327, 1533-1535, 2079-2095, 2527-2718* (*Repr. in App)In response, as set out above, the USCIS initially took the position that unpaidinternships were illegal. App. It later abandoned that position and conclu0ded thatthe IIP cultural visitors were teacher assistants. App. When the IIP precluded theircultural visitors from performing any tasks which related to those of a teacherassistant, the USCIS, as the Trial Court approvingly put it, “construed ‘samewages,’ 8 U.S.C. § 1101(a)(15)(Q), to presuppose the payment of some wages torecipients under Q-1 visas, CAR at 1207.” (Emphasis in original) App. 65 The IIP had initially likened the cultural visitors to Americorp workers as well,5/but abandoned that analogy early on as too difficult to explain. 30
  39. 39. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 39 of 57 One need not be a statutory originalist to understands how thisinterpretation violates both the plain language and the congressional intent of thestatute. The INA says the Q-1 beneficiary shall: be employed under the same wages and working conditions as domestic workers similarly employed §101(a)(15)(Q)(1)The statute does not say that the Q-1 beneficiary shall: be employed and receive some wagesThe USCIS interpretation advanced by the Trial Court renders superfluous andeliminates the statutory modifier that the wages must be the “same...as domesticworkers similarly employed.” Statutes are to be interpreted to give effect to all thelanguage contained therein. See, e.g., Wisconsin Electric Power Co. v Departmentof Energy, 778 F.2d 1, 3-4 (D.C. Cir. 1985)(DOE’s elimination of two words fromstatute obliterates express statutory language “in contravention of long-settledprinciples of statutory construction”) The statutory language plainly means that the cultural exchange visitor shallreceive the same wage and be allowed the same working conditions as theequivalent or paradigm domestic worker. To ensure that this occurs, the USCISwas required to engage in a two-part exercise. 1. Identify the equivalent or paradigm domestic worker, and 2. Identify the wages and working conditions of that equivalent or paradigm domestic worker.The English language permits no other meaning to this unusually lucid statementof statutory intent. Further, if there was any doubt at all, the legislative history 31
  40. 40. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 40 of 57states that the policy behind this phrase is to provide safeguards in terms of wagesand working conditions. H.R. REP. 101-723(I) at 81 (1998), reprinted in 1990U.S.C.C.A.N. 6710, 6751 By requiring parity between the pay and workingconditions received by the cultural visitor and the domestic worker, the Congresssought to ensure that cultural visitors would not replace domestic workers becausethey were cheaper. This is a leitmotif of immigration legislation. The USCIS initially said no different. In its own regulatory history, itcautions that it will not approve a petition if the employer (1) pays the visitor lessthan it pays its own domestic employees who perform similar work or (2) pays itsown domestic workers wages which are “significantly” less than the wages paid toother domestic worker similarly employed in the locality, thereby suggesting asubterfuge. 56 FR 41623 This Court is faced with the quintessential APA question: was theresubstantial evidence in the record to support the USCIS’ decision and did thatevidence lead rationally to that conclusion. The IIP submitted considerableevidence relating to the role and importance of unpaid interns and volunteers inthis Country as well as the acknowledgment by the DOL that they were notrequired to be paid wages. If accepted by the USCIS, this evidence would havebeen considered “substantial” within the APA context. As discussed above, theUSCIS concluded incorrectly that the IIP cultural visitors were teacher assistants.When that determination was foreclosed, the USCIS simply rejected this evidence 32
  41. 41. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 41 of 57without presenting contrary evidence. This was a violation of the APA asexplained in Butte County v. Hogen, 613 F.3d 190 (D.C. Cir. 2010): [A]n agencys refusal to consider evidence bearing on the issue before it constitutes arbitrary agency action within the meaning of § 706. This proposition may be deduced from case law applying the substantial evidence test, under which an agency cannot ignore evidence contradicting its position. "The substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Although we are dealing with the question whether agency action is arbitrary or capricious, "in their application to the requirement of factual support the substantial evidence test and the arbitrary or capricious test are one and the same." (Cit. omitted)C. The Fees The Cultural Visitors Pay To The IIP Affiliates in Asia for TheirSelection, Testing, Training, Monitoring and Other Services Need Not BeReimbursed by the IIP. The USCIS concludes that the fees which the participants pay to the IIP’sforeign affiliates for their selection, testing, training, monitoring and other servicesso diminish the “wages” paid (whatever they should be) that the wages are primafacie less than the appropriate wages. It does costs the cultural visitors/internsmore to participate in the IIP program than they receives in cash back. Indeed, justtheir airplane flights exceeds the $100 per month stipend the cultural visitorsreceive.6 Further, the participants pays fees to the organizations in their homecountry which chooses them, trains them, prepares them for their visit, andprovides cultural materials for their use when here. However, the participants pay Utilizing the calculus which the IIP furnished to the USCIS to derive the value of6/the room,. board and transportation furnished to the cultural visitors would resultin a value exceeding any payment made to the IIP affiliate abroad. App. CAR 811The AAO has concluded, however, that only the cash paid to the intern may becounted as discussed above. 33
  42. 42. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 42 of 57absolutely nothing to the IIP-US, the US 501(c)(3) petitioner, and the IIP-USexists through donations as well as unsalaried and uncompensated staff. As a threshold matter, it would be irrelevant if the fees which theparticipants paid were for accommodations, board and other incidental expenses(which appears to be the USCIS’ major complaint) because the equivalentdomestic worker (whoever that is) does not receive accommodations, board andother living expenses. These expenses are paid by the domestic worker and, toensure parity with the domestic worker, should be paid by the IIP cultural visitoras well. Nor is the payment of fees unusual. Material relating to unpaid internshipsfor which an entity receives fees from the intern was well documented before theAAO. See, e.g., App. CAR 2538-2718; CAR 1247-1327 The IIP-US utilizes affiliates and contractors in Asia to supply culturalvisitors who meet the demanding requirements of the statute and regulations, whoare sufficiently well trained to perform in a manner which is consistent with thespirit and purpose of the statutory mandate, and who have been recruited andvetted in their country of origin by individuals who speak the culturalvisitor’s/intern’s native language. There is nothing in the statute or regulationswhich authorizes the USCIS to disqualify a petitioner because a fee is charged tothe Q-1 program participants. The payment of a pre-employment fee has neverbeen part of the FLSA or minimum wage equation. Ivanov v. Sunset PoolsManagement, Inc., 567 F. Supp. 2d 189, (D.D.C. 2008) 34
  43. 43. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 43 of 57 Of course. the USCIS could rightly be concerned if the payment of the feewas a0 sham transaction. In this case, however, the IIP affiliate which receives thefee locates, chooses, trains, and monitors the cultural visitor. This is a highlycomplex task, as demonstrated by the interview process and curricular materialsprovided to the cultural visitors. App. CAR 2030-2055 (interview materials), App.CAR 2430-2496, CAR 635-786, CAR 1346-1352, CAR 2098-2248 (curricularmaterials). Under the circumstances, the requirement that the monies paid to thecultural visitors be discounted by any fees they pay to the IIP affiliates forselection services rendered was arbitrary, capricious, and unsupported byregulation or statute.V. The new and novel interpretations of the Q-1 statute and regulationviolate the requirements of the Regulatory Flexibility Act. The Regulatory Flexibility Act (RFA), 5 U.S.C. § 601, et seq., requires ananalysis of and certification that the regulation being promulgated would not havea significant economic impact on a substantial number of small entities. Both theQ-1 implementing regulations and the Q-1 final rule were published following apreliminary analysis under the RFA and a certification that the implementingregulation and final rule would not have a significant economic impact on asubstantial number of small entities. This conclusion was likely correct based upon the plain language of theregulation and the decades-long approval of the IIP programs. Nonetheless, 35
  44. 44. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 44 of 57the determinations of the USCIS described above repudiate, are irreconcilablewith, and amend the Q-1 regulation in a manner which have a significanteconomic impact on a substantial number of small entities. The IIP’s programended as a result of the reinterpretation imposed in 2010, and the total number ofQ-1 visas issued has decreased from 2,444 in 2008 to 1,626 in 2009 to 1,589 in2010 to 1,412 in 2911. http://www.travel.state.gov/pdf/MultiYearTableXVI.pdf Relying solely on just the three IIP petitions in the Appendix at 2, 1362, and2258, the IIP’s annual out of pocket expenditures for the 33 cultural visitors wouldrise from $118,800.00 to approximately $1,000,000.00 under the USCIS’redetermination that the prevailing wages for teacher assistants and reimbursementfor selection and training costs must be paid to each cultural exchange visitor.This is clearly a significant economic impact. It is clear that the USCIS was required to carry out a new RFA inassociations with its changed views, and that the remedies provided in the RFAshould be applied. U.S. Telecom Assn. v. FCC, 400 F.3d 29, 42 (D.C. Cir. 2005)The Congress could not have intended that an initial RFA analysis would besufficient despite significant changes in the regulation, whether throughinterpretation or not. Indeed, the salutary effects of the RFA would be upended ifthis was true. Id.; cf. Thompson v. Clark, 741 F.2d 401, 405 (D.C. Cir. 1984) The USCIS should have carried out and published the appropriate economicanalysis of its newly-interpreted regulations prior to imposing them. 36
  45. 45. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 45 of 57 It is clear as well that this Court has the authority to review the USCIS’compliance with the RFA, and, if defective, provide statutory relief. 5 U.S.C. § 611. Judicial review (a)(1) For any rule subject to this chapter, a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of sections 601, 604, 605(b), 608(b), and 610 in accordance with chapter 7. Agency compliance with sections 607 and 609(a) shall be judicially reviewable in connection with judicial review of section 604. * * * * * (4) In granting any relief in an action under this section, the court shall order the agency to take corrective action consistent with this chapter and chapter 7, including, but not limited to — (A) remanding the rule to the agency, and (B) deferring the enforcement of the rule against small entities unless the court finds that continued enforcement of the rule is in the public interest.See, also, U.S. Telecom Assn. v. FCC, supra at 43 The Trial Court took the opposite view, advancing Orengo Caraballo v.Reich, 11F. 3d 186, 195 (D.C. Cir. 1993). Orengo dealt with the reviewability ofan agency decision under the APA. While the APA precludes review of“interpretive rules, general statements of policy, or rules of agency organization,procedure, or practice, ” the RFA has no such preclusion. Compare 5 U.S.C.553(b)(A) and 5 U.S.C. 601(2) The Trial Court also sought RFA support from U.S. Telecom Assn. v. FCC,supra at 42. U.S. Telecom, held that the RFA required an economic analysis if anNPRM was required, and the USCIS has never argued that an NPRM (and final 37
  46. 46. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 46 of 57rulemaking” was not required. The USCIS argued below, and the Trial Courtagreed, that it avoids the RFA because its new interpretation is not new. Becauseof the enormous impact of the revisionist interpretation of the regulationdocumented above, this argument is irrelevant. If the unarticulated impact of theregulation has always been present, then the INS was obligated to do an economicanalysis at that time. (This seems unlikely, however, in view of the decades ofapprovals of the IIP visa petitions containing the provisions the USCIS nowrejects.) If the revisions are newly minted, as the IIP argues, an RFA analysismust be carried out as provided by statute. Finally, the Trial Court determined that there were not sufficient smallentities affected by the regulation to invoke the RFA. There is no evidence in therecord to support this determination, however, and even today there are more than1,400 Q-1 visas issued annually as discussed above. Further, the statute givesstanding to one small entity to seek judicial relief as also discussed above.VI. The IIP Claims are not moot. The USCIS argued and the Trial Court agreed that the IIP’s request forrelief in relation to the denials of its Q-1 visa petitions has been mooted becausethe requested program approval periods have passed and consequently thejudiciary is powerless to offer relief. Fortunately, the USCIS Q-1 petitioning process allows for more flexibilitythan the USCIS has suggested. New participants can be substituted after advisingthe appropriate consular office by letter. 8 C.F.R. § 214.2 (q)(6) New schools can 38
  47. 47. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 47 of 57be substituted after notice to the USCIS as the employer–the IIP–remainsunchanged. 8 C.F.R. § 214.2(q)(5)(iv) A petition and motion to extend theduration of the program cab also be filed. 8 C.F.R. § 214.2(q)(10); 8 C.F.R. §214.1(c) A matter is moot if the passage of time deprives the plaintiff of effectiverelief. There are, however, exceptions to the doctrine if the claim attacks anongoing agency policy or if “the claim for relief...[is] capable of repetition butevading review.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316,321 (D.C. Cir. 2009) Under the first exception, a claim is not moot when it seeksrelief as to an ongoing agency policy. Id. This is clearly such a case as the USCISmade clear in its decisions. In addition, there is a second exception if the suspectpolicy can be applied to future IIP petitions, but the duration of the programperiods (at most a 10-month school year for the IIP) is not sufficiently long to testthe policy in the Courts. Del Monte at 321. The Trial Court acknowledged these exceptions, but in a departure fromlogic and common agency experience circumvented them. The Trial Court agreedthat the future petition denials could evade review, in fact were likely to do sounder the standard set out in Beethoven Com LCC v. Librarian of Congress, 194 F. 39
  48. 48. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 48 of 573d 939, 951 (D.C. Cir. 2005). But, held the Trial Court, the IIP failed todemonstrate that the USCIS would in the future deny new IIP petitions for thesame reasons it denied the three visa petitions under review here. The TrialCourt’s proposed syllogism: All three of IIP’s most recent visa petitions were denied by the USCIS All of IIP’s visa petitions prior to the three most recent petitions were approved by the USCIS All future IIP petitions will be approved by the USCIS App. 59Consequently, the Trial Court held it was not reasonable to expect that the USCISwould continue to deny future IIP petitions. Considering the ferocity of theUSCIS’ support of its denials before the Trial Court, it is impossible to see howthe Trial Court could reasonably expect the USCIS to revert to a position it had soclearly abandoned. Even if the USCIS had admitted error, as this Court noted inUnited States v. Philip Morris USA Inc., 686 F.3d 832, 836 (D.C. Cir 2012), “adefendant claiming that its voluntary compliance moots a case bears theformidable burden of showing that it is absolutely clear that the allegedlywrongful behavior could not reasonably be expected to recur.”, quoting Friends ofthe Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 190 (2000). In support of his view that there was no reasonable possibility that thefuture IIP petitions would be denied, the Trial Court cited Spencer v. Kemna, 523U.S. 1 (1998). Spencer considered whether the end of a prison term mootedreview of the revocation of the parole granted during that term. Justice Scalia heldthat the possibility that Mr. Spencer would be considered for parole during a 40
  49. 49. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 49 of 57second prison term and rejected on the grounds of his prior parole revocation wassimply too remote to be considered a “reasonable expectation.” Spencer at 17-18Spencer’s circumstances are far different than those before this Court where theIIP for decades has petitioned for Q-1 visas and has affirmed that it intends to doso in the future if the impediment inflicted by the USCIS is removed. App. 140 As to the second exception to the mootness doctrine–an attack on anongoing agency policy–the trial Court dropped a footnote to suggest that theUSCIS denial of the IIP petitions had nothing to do with an ongoing agencypolicy, but rather was based on the facts presented in the petition “and was notreflective of an agency-wide policy.” App 58 In support of his view that there was no reasonable possibility that thefuture IIP petitions would be denied, the Trial Court cited Spencer v. Kemna, 523U.S. 1 (1998). Spencer considered whether the end of a prison term mootedreview of the revocation of the parole granted during that term. Justice Scalia heldthat the possibility that Mr. Spencer would be considered for parole during asecond prison term and rejected on the grounds of his prior parole revocation wassimply too remote to be considered a “reasonable expectation.” Spencer at 17-18Spencer’s circumstances are far different than those before this Court where theIIP for decades has petitioned for Q-1 visas and has affirmed that it intends to doso in the future if the impediment inflicted by the USCIS is removed. App.137-140 41
  50. 50. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 50 of 57 All visa petitions, indeed almost all agency petitions, are decided on thefacts set out in the petition and the agency’s understanding of the statute andregulations which govern it consideration of the petition. It appears that the TrialCourt is suggesting that the adjudication of the IIP petitions was based on adiscretionary flight of fancy of the examiner who made no effort to apply thestatute and the agency regulations. This cannot be correct. It would be thequintessential example of arbitrary and capricious. Just as the APA wouldprohibit an agency from deviating from its own regulation, the APA would beturned on its head if the agency could entirely ignore its own regulations. In anyevent, throughout the denials of the IIP petitions the USCIS referred to the statuteand published regulations as authority. Nowhere in the denials did the USCIS say“better luck next time.” The Trial Court referred us to Super Tire Engineering Co. v. McCorkle, 416U.S. 115 (1974) in support of his position. Super Tire, however, held that a suitfor a declaratory judgment was not moot (although the request for injunctive reliefwas) if the “litigant can show the existence of an immediate and definitegovernmental action or policy that has adversely affected and continues to affect apresent interest.” Super Tire at 125-126 (emphasis supplied) If this was not true,as the Supreme Court pointed out, a significant number of governmental actswould have no judicial remedy. 42
  51. 51. USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 51 of 57 In any event, the Trial Court was wrong in its basic premise that the USCISpolicy was unarticulated. First of all, it is the codified regulation which theUSCIS believes foreclosed approval. Second, the AAO, as it puts it, “producesappellate decisions that provide fair and legally supportable resolutions ofindividual applications and petitions for immigration benefits. These decisionsprovide guidance to applicants, petitioners, practitioners and government officialsin the correct interpretation of immigration law, regulations and policy.”http://www.uscis.gov/portal/site/uscis/menuitem.2540a6fdd667d1d1c2e21e10569391a0/?vgnextoid=0609b8a04e812210VgnVCM1000006539190aRCRD&vgnextchannel=0609b8a04e812210VgnVCM1000006539190aRCRD&path=%2FD10+-+International+Cultural+Exchange+Visitor+%28Q%29 These decisions arepublished, and two of the three denials under review here were published by theAAO on the internet. Seehttp://www.uscis.gov/err/D10%20-%20International%20Cultural%20Exchange%20Visitor%20%28Q%29/Decisions_Issued_in_2010/Apr222010_01D10101.pdfandhttp://www.uscis.gov/err/D10%20-%20International%20Cultural%20Exchange%20Visitor%20%28Q%29/Decisions_Issued_in_2009/Oct062009_01D10101.pdfUnder these circumstances, the requirements of Better Government Assn v.Department of State, 780 F.2d 86 (D.C. Cir. 1986), cited by the Trial Court, weremet. This Court has not changed its view concerning mootness described above. Thus, the matter is not moot. 43

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