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Case: 10-1517       Document: 006111126756            Filed: 11/10/2011      Page: 1            (1 of 5)                NO...
Case: 10-1517        Document: 006111126756           Filed: 11/10/2011       Page: 2            (2 of 5)                 ...
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Case: 10-1517       Document: 006111126762          Filed: 11/10/2011      Page: 1            (5 of 5)                    ...
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Taco Especial v Napolitano or USCIS I-140 ATP denial 6th cir

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How can you "pay" someone more than your business actually makes? AAO did not buy it and neither did the 6th Circuit or District Court.

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Taco Especial v Napolitano or USCIS I-140 ATP denial 6th cir

  1. 1. Case: 10-1517 Document: 006111126756 Filed: 11/10/2011 Page: 1 (1 of 5) NOT RECOMMENDED FOR FULL-TEXT PUBLICATION No. 10-1517 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILEDTACO ESPECIAL; PROSPERO GALEANA, ) Nov 10, 2011 ) Plaintiffs-Appellants, ) LEONARD GREEN, Clerk )v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FORJANET NAPOLITANO, Secretary of ) THE EASTERN DISTRICT OFHomeland Security; ALEJANDRO ) MICHIGANMAYORKAS, Director, U.S. Citizenship and )Immigration Services, ) ) Defendants-Appellees. ) ORDER Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges. The plaintiffs, Taco Especial and Prospero Galeana, appeal from a grant of summaryjudgment in favor of the defendants in this action challenging the administrative denial of anImmigrant Petition for Alien Worker as a Skilled Worker or Professional, filed under 8 U.S.C.§ 1153(b)(3). The parties have waived oral argument, and this panel unanimously agrees that oralargument is not needed. Fed. R. App. P. 34(a). Taco Especial is a Mexican restaurant located in Ecorse, Michigan. Galeana, a Mexicancitizen, began working for Taco Especial as a dishwasher in the 1990s. In 2001, Taco Especial filedan Application for Permanent Employment Certification with the United States Department of Labor(DOL), seeking to employ Galeana permanently as a chef in the United States. The proffered wagewas $25.00 per hour, or $52,000 per year. In 2005, upon finding that there were no qualified, able,
  2. 2. Case: 10-1517 Document: 006111126756 Filed: 11/10/2011 Page: 2 (2 of 5) No. 10-1517 -2-and willing United States workers to fill the chef position and that employing an alien would nothave an adverse impact on American workers, the DOL granted Taco Especial’s application. In 2006, Taco Especial filed an Immigrant Petition for Alien Worker with the United StatesCitizenship and Immigration Services (USCIS). The USCIS denied the petition on the ground thatTaco Especial failed to show an ability to pay the proffered wage. Specifically, the USCISdetermined that the proffered wage exceeded both Taco Especial’s net income for the tax years inquestion, 2001-2005, and the difference between Taco Especial’s current assets and liabilities foreach of the tax years. Taco Especial appealed, and the Administrative Appeals Office (AAO)dismissed the appeal. This lawsuit followed. After the suit was filed, the AAO reopened the administrative case sua sponte and gave TacoEspecial 30 days to submit additional evidence concerning its ability to pay the proffered wage. TheAAO also directed Taco Especial to address the applicability of Matter of Sonegawa, 12 I. & N.Dec. 612 (BIA 1967), to its petition. Again, the AAO dismissed Taco Especial’s appeal. The parties then moved for summary judgment in the district court case. The district courtgranted the defendants’ motion. We review a district court’s grant of summary judgment de novo. Ziegler v. Aukerman, 512F.3d 777, 781 (6th Cir. 2008). When the district court’s decision concerns an administrativeagency’s final decision under the Administrative Procedures Act, 5 U.S.C. §§ 551–559; 701–706,we review the summary judgment de novo and review the agency’s decision under the arbitrary-and-capricious standard. Coal. for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 457 (6thCir. 2004). Under this standard, we will set aside the agency’s decision “only if it is arbitrary,capricious, an abuse of discretion, or otherwise not in accordance with the law.” Sierra Club v.Slater, 120 F.3d 623, 632 (6th Cir. 1997). The plaintiffs first argue, citing Construction & Design Co. v. United States Citizenship &Immigration Services, 563 F.3d 593 (7th Cir. 2009), that the AAO erred in relying on net income todetermine Taco Especial’s ability to pay the proffered wage. They point out that many profitablecorporations show no taxable income because they transfer their profits into other accounting
  3. 3. Case: 10-1517 Document: 006111126756 Filed: 11/10/2011 Page: 3 (3 of 5) No. 10-1517 -3-categories, such as salaries. Thus, the plaintiffs maintain, gross income is more indicative of cashflow. Although the court in Construction & Design Co. agreed that income tax returns are not areliable basis for determining whether a company can pay a proffered wage, the court also noted thatthe Department of Homeland Security looks at other factors when the income tax returns and balancesheet fail to make clear that the alien’s salary will not imperil the company’s solvency. Id. at 596.Here, the district court considered Construction & Design Co. and concluded that the AAO’sdecision was not arbitrary and capricious because it based its decision on other factors besides TacoEspecial’s income tax returns. Specifically, the AAO addressed Taco Especial’s argument thatdepreciation should be added back to net income. Next, the AAO considered that the total wagespaid by Taco Especial during the relevant time period was $69,000. Additionally, the officer’scompensation ranged from $26,200 to $67,750 and was less than $52,000 in all but two of therelevant years. Thus, the AAO concluded that a salary of $52,000 was unrealistic. Finally, thedistrict court noted that the AAO rejected Taco Especial’s argument about gross profits because theytend to overstate an employer’s ability to pay. Taco Especial cites no authority for its proposition that the AAO should have relied on grossprofits. Moreover, although the plaintiffs insist that Taco Especial’s gross profits were in thehundreds of thousands of dollars for the relevant tax years, they do not offer evidence ofexpenditures other than salaries. Therefore, gross profits are, indeed, an incomplete financialassessment. The AAO considered other factors in addition to the income tax returns, and we cannotsay that the AAO’s decision was arbitrary or capricious or an abuse of discretion. The plaintiffs also argue that the AAO misapplied Sonegawa. In that case, an immigrationofficial rejected an alien-worker petition filed by the owner of an oriental dress boutique on theground that the proffered wage, $6,240, exceeded the petitioner’s net business profit of $280 for the1966 tax year. The BIA reversed, concluding that the petitioner had a reasonable expectation offuture profits. 12 I. & N. Dec. at 615. The BIA noted that 1966 was a particularly bad year for thepetitioner and that her financial statement showed a net profit of $4,774 from January 1, 1967, to
  4. 4. Case: 10-1517 Document: 006111126756 Filed: 11/10/2011 Page: 4 (4 of 5) No. 10-1517 -4-May 31, 1967. Id. at 614. The BIA also noted that the petitioner’s shop was well-recognized inPasadena, California, and was the subject of a news article in a fashion magazine. Id. Additionally,the BIA noted that the petitioner’s designs had been published in Time and Look magazines, that herclients included movie actresses and society matrons, that she was in demand as a designer, and thatshe received appearance fees that were not included in the store’s income. Id. at 614–15. In distinguishing Sonegawa from the plaintiffs’ case, the AAO explained that the newspaperarticles submitted by the plaintiffs in support of Galeana’s reputation mainly addressed the plaintiffs’lawsuit, rather than Galeana’s culinary skills or reputation in the community. The AAO also notedthat the plaintiffs’ reliance on difficult economic conditions in the Detroit metropolitan area–basedon United States Bureau of Labor Statistics for June 3, 2009–failed to show how Taco Especial wasaffected, in light of the restaurant’s history of declining gross profits from the year 2000 onward.We agree with the district court that the AAO provided a reasoned comparison of the plaintiffs’ caseto Sonegawa and that its decision was neither arbitrary nor capricious. We have considered the plaintiffs’ remaining arguments and find that they lack merit or aretoo cursory to permit meaningful review. We conclude that the district court did not err in grantingsummary judgment to the defendants and, therefore, we affirm the district court’s order. ENTERED BY ORDER OF THE COURT Clerk
  5. 5. Case: 10-1517 Document: 006111126762 Filed: 11/10/2011 Page: 1 (5 of 5) UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 100 EAST FIFTH STREET, ROOM 540 Leonard Green POTTER STEWART U.S. COURTHOUSE Tel. (513) 564-7000 Clerk CINCINNATI, OHIO 45202-3988 www.ca6.uscourts.gov Filed: November 10, 2011Ms. Caridad Pastor CardinalePastor & Associates525 E. Big Beaver RoadSuite 206Troy, MI 48083 Re: Case No. 10-1517, Taco Especial, et al v. Janet Napolitano, et al Originating Case No. : 09-10625Dear Sir or Madam, The Court issued the enclosed (Order/Opinion) today in this case. Sincerely yours, s/Bryant L. Crutcher Case Manager Direct Dial No. 513-564-7013cc: Mr. William Charles Silvis Ms. Derri T. Thomas Mr. David J. WeaverEnclosureMandate to issue

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