Agor v. Lynch, 276 F. Supp. 3d 7

Background

Agor, a Nigerian physician, entered the U.S. on a B-2 visa in 1998, overstayed, and later completed U.S. medical residency and board certification.
In 1999 Agor filed an I-140 petition (classifying him as an “outstanding professor or researcher”) that listed Columbia University and an employer address but was signed and submitted as a self-petition; no bona fide U.S. employer sponsorship or employment offer existed.
INS issued a Notice of Intent to Deny in October 2000 requesting an employer-signed I-140; Agor did not respond, and INS denied the 1999 I-140 in November 2000.
Agor applied to adjust status in 2004 and again in 2009, claiming grandfathering under INA §245(i) based on the 1999 I-140; USCIS denied adjustment because the 1999 I-140 was not “approvable when filed” (not properly filed, meritorious, and non-frivolous).
Agor alleged he was a victim of fraud by his representative (William Smart), and that he never received the 2000 notices; USCIS treated the 2000 denial as a denial on the merits and denied reopening. Agor sued under the APA seeking review of USCIS’s eligibility determination.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction to review USCIS denial of adjustment based on eligibility (grandfathering)	Agor: eligibility is a nondiscretionary legal question reviewable in district court	Gov: §1252 generally strips district courts of review of discretionary adjustment decisions, but nondiscretionary eligibility questions remain reviewable	Court: District court has jurisdiction to review nondiscretionary eligibility determinations (statutory eligibility), but cannot order discretionary approval
Whether the 1999 I-140 was “approvable when filed” (specifically meritorious in fact)	Agor: the I-140 was properly filed (signed/fee), he was credentialed and could have qualified, and failed notices were due to representative’s fraud	Gov: I-140 was not meritorious because it was self-filed for a category requiring employer sponsorship and contained false employer assertions	Court: 1999 I-140 was not meritorious—it lacked employer sponsorship and a bona fide offer; USCIS’s determination was not arbitrary or capricious
Whether alleged fraud by Agor’s representative or nonreceipt of notices invalidates the 1999 denial for grandfathering purposes	Agor: fraud prevented him from responding and pursuing other filings before the cutoff	Gov: fraud allegations do not cure the facial deficiencies of the petition; record shows petitioner knew no employer sponsored the filing	Court: Fraud claims and nonreceipt do not change the non-discretionary legal conclusion that the petition as filed was not meritorious
Whether evidence of Agor’s later-approved NIW I-140 or other classifications retroactively makes the 1999 petition approvable when filed	Agor: his later national interest waiver and credentials show merit; alternative classifications could have applied	Gov: eligibility must be judged based on circumstances at the time and on the petition actually filed	Court: Later approvals or alternative theories irrelevant; review is confined to the actual 1999 petition and its merits at filing; petition failed that test

Key Cases Cited

Henley v. Food & Drug Admin., 77 F.3d 616 (2d Cir. 1996) (standard for arbitrary and capricious review)
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency action review framework)
Karpova v. Snow, 497 F.3d 262 (2d Cir. 2007) (deference to agency and requirements for reasoned explanation)
Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005) (distinguishing nondiscretionary eligibility review from discretionary relief precluded by §1252)
Rodriguez v. Gonzales, 451 F.3d 60 (2d Cir. 2006) (two-step adjustment process: eligibility then discretion)
Ogundipe v. Mukasey, 541 F.3d 257 (4th Cir. 2008) (meritorious-in-fact assessed by whether beneficiary qualified at filing)
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (court’s independent obligation to examine jurisdiction)