Fogo De Chao Churrascaria (Holdings) LLC v. U.S. Department of Homeland Security
959 F. Supp. 2d 32
D.D.C.2013Background
- Fogo de Chao, a Brazilian restaurant chain, petitioned for an L-1B (intracompany transferee with "specialized knowledge") visa on behalf of a Brazilian churrasqueiro, Rones Gasparetto.
- USCIS issued a Request for Evidence and ultimately denied the petition for insufficient proof that Gasparetto possessed "specialized knowledge" tied to the employer’s product, processes, or procedures; denial was reaffirmed after reconsideration and certified to the AAO.
- The AAO reviewed Fogo’s submissions, found gaps (e.g., lack of corroboration that Gasparetto completed Fogo’s 24-month training and ambiguity about his foreign job title), and concluded he had general cultural/culinary knowledge, not specialized knowledge.
- Fogo sued under the Administrative Procedure Act (APA), arguing USCIS misinterpreted the statute/regulations, resurrected improper evidentiary tests, and acted arbitrarily and capriciously; parties filed cross-motions for summary judgment.
- The district court reviewed deference issues (Chevron/Skidmore/Mead), concluded USCIS’s interpretation of "specialized knowledge"—as informed by agency memoranda and dictionary definitions—was reasonable, and found the AAO’s denial supported by the administrative record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper interpretation of "specialized knowledge" under §1184(c)(2)(B) | Fogo: statute/legislative history broadened L-1B; AAO applied an overly restrictive or obsolete standard | DHS/USCIS: statutory definition is circular/ambiguous; agency interpretation (Puleo/Ohata memos) is reasonable and consistent with statute | Court: statute ambiguous; agency interpretation reasonable and entitled to Chevron (and Skidmore) deference |
| Use of evidentiary tests (e.g., proprietary/uniqueness tests) | Fogo: AAO resurrected improper proprietary/uniqueness tests barred by 1990 Act | DHS: memoranda make clear proprietary uniqueness not required; petition failed on independent evidentiary grounds | Court: even if some language suggested proprietary emphasis, denial rested on independent deficiencies (lack of corroboration), so any error was harmless |
| Reliance on outside precedent (e.g., Boi Na Braza) | Fogo: AAO improperly relied on Fifth Circuit L-1B denials to foreclose grants for churrasqueiros | DHS: AAO used Boi Na Braza only for analogous evidentiary deficiencies; did not announce categorical rule | Court: reliance permissible; AAO considered record-specific problems similar to Boi Na Braza but did not bar all churrasqueiros |
| APA substantive/reasoned decision requirements (including notice-and-comment and consideration of prior approvals) | Fogo: AAO acted arbitrarily, prejudged Fogo petitions, departed from prior approvals and agency practice without explanation, and failed to consider evidence showing training completion | DHS: AAO addressed applicable law, relied on record; prior approvals irrelevant if current record lacks required evidence; agency sought to preserve adjudicatory discretion | Court: AAO’s decision was not arbitrary and capricious; it relied on the record, explained its reasoning, and the lack of corroborating evidence justified denial; no APA violation established |
Key Cases Cited
- Chevron v. Natural Res. Def. Council, 467 U.S. 837 (agency interpretations entitled to deference when statute ambiguous)
- Gonzales v. Oregon, 546 U.S. 243 (deference principles and limits explained)
- United States v. Bestfoods, 524 U.S. 51 (resolving circular statutory definitions by looking beyond text)
- Skidmore v. Swift & Co., 323 U.S. 134 (weight accorded agency interpretations under Skidmore)
- United States v. Mead Corp., 533 U.S. 218 (Chevron deference prerequisites and Skidmore discussion)
- Boi Na Braza Atlanta, LLC v. Upchurch, [citation="194 F. App'x 248"] (5th Cir. 2006) (affirming denial of L-1B petitions for Brazilian churrasqueiros; cited by AAO for analogous evidentiary deficiencies)