Fogo De Chao (Holdings) Inc. v. United States Department of Homeland Security
413 U.S. App. D.C. 39
| D.C. Cir. | 2014Background
- Fogo de Chao operates Brazilian churrascarías in Brazil and the United States; its success relies on gaucho chefs trained in Rio Grande do Sul traditions.
- Fogo de Chao seeks to transfer Brazilian churrasqueiros to U.S. restaurants using L-1B visas for specialized knowledge.
- Gasparetto, a Brazilian churrasqueiro, sought an L-1B visa; the DHS Appeals Office denied based on lack of specialized knowledge.
- Ohata (2004) advised that chefs generally do not have specialized knowledge; Puleo (1994) advised considering special, advanced, and non-typical knowledge.
- The district court granted summary judgment for the government under Chevron; the real dispute centers on whether cultural knowledge can count as specialized knowledge.
- The court reverses and remands, holding the regulatory interpretation insufficiently reasoned and remanding for reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether culturally acquired knowledge can be specialized knowledge | Gasparetto's cultural background is relevant | Gasparetto's culture is not specialized knowledge | Remand to re-evaluate with culture in mind |
| Whether economic inconvenience supports specialization finding | Economic burden of training domestic workers matters | Economic factors do not determine specialized knowledge | Remand to consider economic-inconvenience evidence on remand |
| Whether the Appeals Office erred in its statutory/regulatory interpretation | Agency misapplied Puleo/Ohata guidance | Regulation mirrors statute; deference not necessary | Remand for new agency consideration on the legal standard |
| Whether the court has jurisdiction under 8 U.S.C. §1252(a)(2)(B)(ii) to review | Jurisdiction exists under APA challenge | Section bars review of discretionary decisions | Court has jurisdiction; remand requested |
| Appropriate relief if agency errors occurred | Vacate and remand; potential mandamus | Vacatur not appropriate without clarification | Remand with instructions to vacate and reconsider |
Key Cases Cited
- Jicarilla Apache Nation v. Department of Interior, 613 F.3d 1112 (D.C.Cir. 2010) (arbitrary, capricious standard of review applied to agency action)
- United States v. Mead Corp., 533 U.S. 218 (U.S. 2001) (agency interpretations and deference framework)
- Gonzales v. Oregon, 546 U.S. 243 (U.S. 2006) (parroting regulation vs. interpretation; deferential standards limited)
- Skidmore v. Swift & Co., 323 U.S. 134 (U.S. 1944) (persuasive power of agency judgments (non-Chevron deference))