http://media.ca11.uscourts.gov/opinions/pub/files/201911193.pdf

CANAL A MEDIA HOLDING, LLC v. USCIS, 11th Cir., 07-09-20, published

PANEL: MARTIN and NEWSOM, Circuit Judges, and WATKINS,* District Judge.

MARTIN, Circuit Judge:

• Honorable W. Keith Watkins, United States District Judge for the Middle District of Alabama, sitting by designation.

OPINION BY: Judge Martin

CONCURRING OPINION: Judge Newsom

KEY QUOTE: 

Plaintiffs Canal A Media Holding, LLC (“Canal A Media”) and Erick Archila appeal the District Court’s dismissal of their amended complaint for lack of subject-matter jurisdiction. They seek to challenge the decision by the United States Citizenship and Immigration Services (“USCIS”) to deny Canal A Media’s petition for a work visa for Mr. Archila. Having carefully reviewed this case, and with the benefit of oral argument, we have decided that the denial of Canal A Media’s visa petition was final agency action under the Administrative Procedure Act (“APA”). Also, we hold that 8 U.S.C. § 1252(b)(9) and (g) do not bar the Plaintiffs’ challenge to the visa petition denial. In keeping with these decisions, we reverse the District Court’s dismissal of the Plaintiffs’ claims.

JUDGE NEWSOM’S FULL CONCURRING OPINION:

I join the Court’s opinion in full. I write separately only to emphasize (what is to me, anyway) the obvious correctness of the Court’s holding that USCIS’s denial of Canal A Media’s Form I-129 visa petition constituted “final agency action” within the meaning of § 704 of the Administrative Procedure Act. See 5 U.S.C. § 704.

In determining whether agency action is “final” for APA purposes, the Supreme Court has emphasized, first and foremost, that “the action must mark the consummation of the agency’s decisionmaking process,” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (emphasis added) (quotation omitted), or, alternatively, that “the agency has completed its decisionmaking process,” Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (emphasis added). Those formulations tee up an important—and here, apparently dispositive—question: What is the relevant “agency”? It seems to me self-evident—and so far as I can tell, all agree—that the “agency” whose “decisionmaking process” we have to evaluate here is USCIS, the instrumentality of the federal government responsible for evaluating I-129 petitions. See 8 C.F.R. § 214.2(l).

The government contends here—and the district court held—that USCIS’s denial of Canal A Media’s I-129 petition didn’t constitute “final agency action” because Mr. Archila, on whose behalf Canal A Media sought the I-129, was still in

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the middle of removal proceedings before an immigration judge. That is triply wrong—and, it seems to me, at the most basic level(s).

First, the government asks us to agency-jump. USCIS’s decisionmaking process hasn’t run its course, the government says, because an immigration judge is still working. But USCIS and the immigration court are altogether different “agenc[ies].” Cf. 5 U.S.C. § 701(b)(1) (defining “agency” to mean “each authority of the Government of the United States, whether or not it is within or subject to review by another agency”). More than that, they are housed in altogether different departments—USCIS exists within the Department of Homeland Security,1 whereas the immigration court operates under the auspices of the Department of Justice.2 The executive branch has an architecture—granted, not always perfectly elegant, but an architecture nonetheless—and the government’s position defies it.

Second, not only are the agencies themselves different, the participants in the proceedings before them are different. The only party properly before USCIS was Canal A Media, the visa petitioner; Mr. Archila, although the petition’s intended beneficiary, was not a party to the I-129 proceedings. See 8 C.F.R.

1 See Operational and Support Components, U.S. Dep’t of Homeland Sec., https://www.dhs.gov/operational-and-support-components (last visited July 7, 2020).

2 See Executive Office for Immigration Review, U.S. Dep’t of Justice, https://www.justice.gov/eoir (last visited July 7, 2020).

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§ 103.2(a)(3). Conversely, in the ongoing removal proceedings before the IJ, Mr. Archila is the lone participant; Canal A Media has no right to appear.

Finally, not only are the agencies different, and the parties before them different, but their respective jurisdictions—for purposes of this case, anyway—are different, as well. While USCIS and immigration courts share jurisdiction over a limited range of issues—for instance, eligibility for Temporary Protected Status, see, e.g., Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562 F.3d 1137, 1140 (11th Cir. 2009)—only USCIS has authority to decide Canal A Media’s I-129 visa petition, see 8 C.F.R. § 214.2(l)(1)(i); Matter of Aurelio, 19 I. & N. Dec. 458, 460 (BIA 1987). The IJ handling Mr. Archila’s removal proceedings has no jurisdiction to consider, grant, or deny Canal A Media’s petition, let alone to review USCIS’s denial.

At 30,000 feet, then, the government’s position just can’t be right. USCIS’s rejection of Canal A Media’s I-129 petition is not non-“final” simply because a different agency that is housed in a different executive-branch department and is vested with jurisdiction over different issues and is presiding over a different proceeding involving a different party hasn’t finished its different business.

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My take:

• Congrats to Ira Kurzban one of the true giants of modern U.S. immigration law (and someone with whom I did battle numerous times during my 12 years in the “Legacy INS” Office of General Counsel);
• It’s hard to beat the Government on an immigration case in the normally pro-Government 11th Cir.;
• The Government has consistently been losing APA cases under the Trump regime all the way up to the Supremes;
• Is it really THAT hard to read the APA and comply?
• Judge Newsom’s concurring opinion points out that the Government’s position in this case is misleading at best, dishonest at worst, and totally frivolous in any event. 
• So where are the sanctions, warnings, or rebukes of DOJ attorneys for frivolous litigation and/or lack of candor to tribunals, both of which are violations of basic ethical requirements?
• Frivolous litigation has become a staple of the Trump Administration. It’s used for dilatory purposes and to wear down, discourage, and punish private parties.
• What’s wrong with Federal Courts that allow this type of unprofessional and unethical conduct by DOJ litigators to continue unabated?
• For the Federal Courts to treat this lawless and contemptuous gang of scofflaws and thugs known as the “Trump Administration” as “normal” when it is nothing of the sort is both a dis-service to the public and a threat to our nation’s continued existence!

Due Process Forever!

PWS

07-10-20