900 F. Supp. 2d 363
S.D.N.Y.2012Background
- Just Bagels sought to sponsor Chimbaina Morocho for a skilled worker visa; CIS denied the petition on review.
- Petitioner submitted labor certification from 2001 and various financial documents aiming to prove ability to pay the proffered wage.
- CIS issued an RFE in 2007 requesting W-2/1099 forms, 2000 tax return, and more explanation of 9/11 impact; Just Bagels provided limited additional detail.
- CIS Director denied the petition in 2008 citing lack of evidence showing ability to pay in 2001 and inconsistencies in Chimbaina’s employment history.
- AAO affirmed the denial in 2010, emphasizing inconsistencies and declining to apply a broader 'totality of the circumstances' approach due to lack of requested evidence; Just Bagels filed suit under the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CIS’s denial was supported by substantial evidence | Just Bagels argues depreciation and bank data support ability to pay in 2001. | CIS properly weighed evidence and gave more weight to tax returns; depreciation not cash, bank statements insufficient. | No; CIS's denial upheld as not arbitrary or capricious. |
| Whether depreciation should be added back to net income for ability-to-pay analysis | depreciation is cash-equivalent and should be added back. | depreciation is non-cash and not added; policy rational and consistent. | No; CIS's treatment not arbitrary or capricious. |
| Whether CIS properly rejected bank statements as evidence of ability to pay | bank statements show available cash to pay wages. | net income and current assets provide a fuller picture; bank statements alone are insufficient. | No; rejection upheld as reasonable. |
| Whether the agency should apply a 'totality of the circumstances' standard given 2001 aberration | Sonegawa/totality approach should apply due to 9/11 impact. | Evidence did not satisfy requested standards; no direct link shown; totality not warranted. | No; agency properly declined totality-based relief due to lack of evidence. |
Key Cases Cited
- Construction & Design Co. v. U.S. Citizenship & Immigration Servs., 563 F.3d 593 (7th Cir. 2009) (tax considerations don't reliably determine ability to pay; depreciation not cash)
- Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 1989) (net income figures used to determine ability to pay; depreciation not added back)
- River St. Donuts v. Napolitano, 558 F.3d 111 (1st Cir. 2009) (depreciation represents cost of doing business; not cash available to pay wages)
- Soler v. G. & U., Inc., 833 F.2d 1104 (2d Cir. 1987) (summary judgment standards in administrative review)