Royal Siam Corp. v. Chertoff

United States Court of Appeals
For the First Circuit

No. 06-1947

ROYAL SIAM CORP. AND SURASAK SRISANG,

Plaintiffs, Appellants,

v.

MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF
HOMELAND SECURITY,* ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, Senior U.S. District Judge]

Before

Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lynch, Circuit Judge.

Patrick D. O'Neill, with whom O'Neill & Gilmore, P.S.C. was on
brief, for appellants.
Sheldon Gisser, Office of Chief Counsel, United States
Citizenship and Immigration Services, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa,
Assistant United States Attorney (Chief, Appellate Division), and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on
brief, for appellees.

April 27, 2007

__________
*We have substituted Michael Chertoff as the lead defendant in
place of Tom Ridge, his predecessor in office. See Fed. R. App.
P. 43(c).
 SELYA, Senior Circuit Judge. After the Department of

Homeland Security (DHS), through its division of Citizenship and

Immigration Services (CIS), denied a petition for renewal of a

nonimmigrant specialty occupation visa, the petitioner, Royal Siam

Corporation (RSC), together with the affected worker, Surasak

Srisang, brought a civil action in the United States District Court

for the District of Puerto Rico in hopes of reversing CIS's

decision. Those hopes were never realized. After some procedural

backing and filling, the district court granted summary judgment in

favor of the defendants (all government agencies or actors). See

Royal Siam Corp. v. Ridge, 424 F. Supp. 2d 338 (D.P.R. 2006). Upon

careful consideration of the plaintiffs' appeal, we affirm.

I. BACKGROUND

We assume the reader's familiarity with the district

court's opinion and, thus, content ourselves with a sketch of the

pertinent facts and travel of the case.

RSC owns and operates an upscale Thai restaurant in

Carolina, Puerto Rico. On a petition filed by RSC's predecessor in

interest in 1999, Srisang — a Thai national who purportedly

possessed the equivalent of a bachelor's degree in business

administration — received a specialty occupation visa (colloquially

known as an H-1B visa). This nonimmigrant visa allowed him to

enter the United States for a three-year period in order to work as

a restaurant manager. Srisang availed himself of the opportunity.

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 In 2002, with Srisang's visa due to expire, RSC sought

its renewal. During the course of its review, CIS advised RSC of

its doubts about the petition. On October 24, 2002, the agency

issued a request for additional proof, noting that the "evidence

submitted is not sufficient to establish that the job is specialty

in scope." Although RSC made a supplemental submission, CIS

eventually denied the petition. On administrative review, CIS's

appeals office upheld the denial.1

RSC and Srisang thereupon commenced this action,

posturing it as a request for review of a final agency decision

under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706.

In their complaint, they sought declaratory and injunctive relief.

The district court stayed removal proceedings against Srisang. In

due course, the court, while retaining jurisdiction, remanded the

case to CIS for a fuller explanation of its decision. The district

court found the cryptic quality of the original decision especially

troubling in light of the agency's 1999 approval of an H-1B visa

petition for what the court deemed to be an "equivalent position."

On remand, CIS reaffirmed its previous denial of the 2002

petition. In explaining its decision, CIS observed that it now

1
The authority to grant or deny petitions for specialty
occupation visas, formerly exercised by the Attorney General and
the Immigration and Naturalization Service, now resides with DHS.
See Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005); Lattab v.
Ashcroft, 384 F.3d 8, 13 n.2 (1st Cir. 2004). For clarity of
exposition, we refer to the appropriate bureau within DHS — CIS —
regardless of when agency action occurred.

-3-
regarded its grant of the 1999 petition (which rested on similar

data) as plainly erroneous because the job, as described by RSC's

predecessor in interest, did not qualify as a specialty occupation.

See 8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1184(i); 8 C.F.R. § 214.2(h)(4)(iii)(A).

A job does not qualify as a specialty occupation unless it

satisfies an amalgam of criteria that relate to educational

requirements, complexity of the work, the specialized nature of the

duties to be performed, and the like. See 8 C.F.R. § 214.2(h)(4)(iii)(A).

In this case, the agency concluded that the proof submitted did not

establish that the restaurant manager position — either in 1999 or

in 2002 — constituted a specialty occupation within the purview of

these criteria.

CIS's explanation did not stop there. The agency noted

that its approval of the earlier petition had been erroneous for

another reason as well. In 1998, CIS had found Srisang's marriage

to a United States citizen fraudulent, that is, entered into for

the purpose of circumventing the immigration laws. Citing 8 U.S.C.

§ 1154(c), CIS expressed the view that because Srisang had engaged

in marriage fraud, he was "statutorily ineligible" for a specialty

occupation visa.

The circumstances attendant to this alternate ground of

decision are not in dispute. The marriage occurred in 1995. As a

result, Srisang was conditionally granted lawful permanent resident

status. In 1997, Srisang sought to make that status unconditional.

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Following an investigation, however, CIS found the marriage

fraudulent (a finding that Srisang does not now contest). Withal,

the government's left hand obviously did not appreciate what the

right hand was doing. Although the marriage fraud finding was

brought to CIS's attention in connection with the 1999 specialty

occupation visa petition, the agency had, in an apparent oversight,

approved that petition.2

With CIS's detailed amplification of the binary grounds

for rejection of the 2002 visa petition in hand, the district court

ruled that the denial was neither arbitrary nor capricious. See

Royal Siam, 424 F. Supp. 2d at 343. Accordingly, the court entered

summary judgment in the defendants' favor. This timely appeal

ensued.

II. DISCUSSION

On appeal, RSC and Srisang attack both of the reasons

advanced by CIS in support of its decision. First, they maintain

that the restaurant manager position qualifies as a specialty

occupation and that CIS, in failing to reach this conclusion, acted

arbitrarily. Second, they posit that the marriage fraud bar does

not apply in cases involving nonimmigrant visas. As a fallback,

2
This comedy of errors allowed Srisang to depart voluntarily
from the United States on January 23, 2000 (thus mooting the
removal proceedings that had been brought in consequence of his
sham marriage) and return three weeks later (pursuant to the
specialty occupation visa petition that CIS had approved in
November of 1999).

-5-
they exhort us to find that the government forfeited any right to

invoke either rationale by approving the 1999 visa petition

notwithstanding full disclosure, at that time, of both the job

description and the marriage fraud.

The government rejoins that we lack jurisdiction to

entertain this appeal under the Immigration and Nationality Act

(INA), as amended by the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(B)(ii).

Its second line of defense is that both grounds of decision were

well-taken; that neither was waived; and that, therefore, the

district court's decision is bulletproof on the merits.

Given the sprawling nature of this asseverational array,

we begin at the beginning and address the jurisdictional question.

We then move to the merits.

A. The Jurisdictional Question.

Under 28 U.S.C. § 1291, we have jurisdiction over appeals

from final decisions and orders of the district courts within this

circuit. The case before us comprises an appeal from a decision of

one such district court — a decision that is final inasmuch as it

ends the litigation pending in that court, leaving nothing to be

done but to execute the judgment. Consequently, we have

jurisdiction over this appeal. See Jilin Pharm. USA, Inc. v.

Chertoff, 447 F.3d 196, 199 n.4 (3d Cir. 2006); El-Khader v.

Monica, 366 F.3d 562, 565-66 (7th Cir. 2004).

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 That is not the end of the jurisdictional issue. The

real import of the government's jurisdictional exegesis relates to

whether the district court had subject-matter jurisdiction. We

must consider that aspect of the argument despite the government's

awkward phrasing of it. After all, it normally is incumbent upon

an appellate court to satisfy itself both of its own subject-matter

jurisdiction and of the subject-matter jurisdiction of the trial

court before proceeding further. See Bender v. Williamsport Area

Sch. Dist., 475 U.S. 534, 541 (1986); Irving v. United States, 162

F.3d 154, 160 (1st Cir. 1998) (en banc).

In this instance, there may be reason to think that the

jurisdiction of the district court seems suspect. The INA, in its

current iteration, is littered with jurisdiction-stripping

provisions. Of particular pertinence here, the law provides (with

exceptions not relevant to this case) that:

Notwithstanding any other provision of
law (statutory or nonstatutory) . . . and
regardless of whether the judgment, decision,
or action is made in removal proceedings, no
court shall have jurisdiction to review —

. . . .

(ii) any . . . decision or action of
the Attorney General or the Secretary of
Homeland Security the authority for which is
specified under [8 U.S.C. §§ 1151-1381] to be
in the discretion of the Attorney General or
the Secretary of Homeland Security, other than
the granting of relief under [certain asylum
provisions].

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8 U.S.C. § 1252(a)(2)(B)(ii). The government suggests that, under

this provision, no court has jurisdiction to review CIS's denial of

an H-1B visa petition because such a determination is fully

committed to agency discretion. See id. § 1184(a)(1) (stating that

"[t]he admission to the United States of any alien as a

nonimmigrant shall be for such time and under such conditions as

the Attorney General may by regulations prescribe").

The cogency of this argument is not self-evident. Even

though the jurisdiction-stripping provisions of section 1252 apply

outside the removal context, see Zhu v. Gonzales, 411 F.3d 292, 294

(D.C. Cir. 2005); El-Khader, 366 F.3d at 567; CDI Info. Servs.,

Inc. v. Reno, 278 F.3d 616, 620 (6th Cir. 2002); Van Dinh v. Reno,

197 F.3d 427, 432 (10th Cir. 1999), the question remains whether

the statutory scheme places the authority to grant H-1B visa

petitions sufficiently within CIS's discretion as to engage the

gears of the jurisdictional bar.

The answer to this question is freighted with

uncertainty, in part because the courts of appeals have disagreed

about how to approach the matter of when a statute can be said to

"specify" discretionary authority. See, e.g., Zhu, 411 F.3d at 295

(describing various approaches). To illustrate, the Sixth Circuit

determined that it lacked jurisdiction to review the denial of an

H-1B visa because the regulations, rather than the pertinent

statute itself, commit the matter to agency discretion. See CDI

-8-
Info. Servs., 278 F.3d at 619. But other circuits have rejected

that interpretive model. See, e.g., Zafar v. U.S. Atty. Gen., 461

F.3d 1357, 1361 (11th Cir. 2006); Zhao v. Gonzales, 404 F.3d 295,

303 & n.6 (5th Cir. 2005). We, too, recently have rejected it,

insisting that the relevant commitment to agency discretion must be

found in the statute itself. See Alsamhouri v. Gonzales, ___ F.3d

___, ___ (1st Cir. 2007) [No. 05-2800, slip op. at 9-10]. There

is, moreover, a further problem. The text of the statute upon

which the government relies here, 8 U.S.C. § 1184(a)(1), is

considerably less definitive in its commitment of authority to

agency discretion than other statutes that have been found to

animate the jurisdictional bar.

In the face of these concerns, we believe that this is a

case in which we may — and should — bypass the jurisdictional

question. We recognize, of course, that federal courts cannot

ordinarily exercise hypothetical jurisdiction; that is, a federal

court ordinarily may not assume the existence of jurisdiction in

order to decide the merits of a case or controversy. Sinochem

Int'l Co. v. Malay. Int'l Shipping Corp., 127 S. Ct. 1184, 1191

(2007); Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 94

(1998). But that principle admits of an area of elasticity.

In mapping the contours of this narrow crevice, we have

distinguished between Article III jurisdiction (which may never be

bypassed) and statutory jurisdiction (which may occasionally be

-9-
bypassed). See, e.g., Universal Communic'n Sys., Inc. v. Lycos,

Inc., 478 F.3d 413, 426 & n.11 (1st Cir. 2007); Nisselson v.

Lernout, 469 F.3d 143, 150-51 (1st Cir. 2006); Parella v. Ret. Bd.

of R.I. Employees' Ret. Sys., 173 F.3d 46, 54 (1st Cir. 1999); see

also McBee v. Delica Co., 417 F.3d 107, 127 (1st Cir. 2005) ("[W]e

have consistently interpreted the rule [against hypothetical

jurisdiction] as applying in its strict form only to issues going

to Article III's requirements."). In the immigration context, we

have bypassed enigmatic jurisdictional questions in circumstances

in which precedent clearly adumbrates the result on the merits.

See, e.g., Rivera-Martinez v. Ashcroft, 389 F.3d 207, 209 n.7 (1st

Cir. 2004); Seale v. INS, 323 F.3d 150, 152, 157 (1st Cir. 2003).3

This case fits within that crevice. On the one hand, the

jurisdictional question is not only thorny but also a matter of

statutory, not constitutional, dimension; and its proper resolution

is uncertain. On the other hand, the outcome on the merits is

foreordained. Consequently, we bypass the jurisdictional question

and proceed directly to the heartland of the plaintiffs' appeal.

3
The language that we have used in immigration cases is not
identical to the language that we have used in non-immigration
matters. See Restoration Pres. Masonry, Inc. v. Grove Eur. Ltd.,
325 F.3d 54, 59-60 (1st Cir. 2003) (describing the different
formulations). At bottom, however, the approaches are entirely
consistent with one another. See id. at 60.

-10-
 B. The Merits.

We are bound by the same ground rules as the district

court in assessing agency decisions. S. Shore Hosp., Inc. v.

Thompson, 308 F.3d 91, 97 (1st Cir. 2002). Thus, the district

court's decision in this case engenders de novo review. See id.

Seeking a foothold, RSC and Srisang start by pointing out

that an agency's unexplained departure from a prior course of

action may raise arbitrariness concerns. See, e.g., Saint Fort v.

Ashcroft, 329 F.3d 191, 203-04 (1st Cir. 2003); Davila-Bardales v.

INS, 27 F.3d 1, 5 (1st Cir. 1994). That doctrine, however, does

not shed any light here. At this stage of the litigation, we are

not dealing with an unexplained departure: on remand from the

district court, the agency carefully laid out the reasoning that

underpinned its repudiation of the 1999 specialty occupation visa

under which Srisang had been allowed to enter the country. CIS

said that the earlier petition had been approved in error — and

accordingly, the 2002 petition should be denied — because (i) the

restaurant manager position failed to qualify as a specialty

occupation and (ii) Srisang's marriage fraud rendered him

statutorily ineligible for the requested largesse. Each of these

grounds floats on its own bottom; if either passes muster, the

district court's grant of summary judgment must be upheld.

Rising to this challenge, RSC and Srisang contest both

grounds. They argue that CIS misconstrued the administrative

-11-
record, misapplied the regulations pertaining to specialty

occupations, and incorrectly invoked the marriage fraud bar. In

our view, CIS's determination that RSC's restaurant manager

position was not a specialty occupation is dispositive here.

We do not write on a pristine page. Congress has laid

out eligibility standards for the granting of H-1B specialty

occupation visas. See 8 U.S.C. § 1101(a)(15)(H)(i)(b). Under

these standards, a specialty occupation requires: "(A) theoretical

and practical application of a body of highly specialized

knowledge, and (B) attainment of a bachelor's or higher degree in

the specific specialty (or its equivalent) as a minimum for entry

into the occupation in the United States." Id. § 1184(i)(1). The

statute also sets forth requirements pertaining to licensure (not

applicable here) and providing for due recognition of experience

and expertise. See id. § 1184(i)(2). Agency regulations flesh out

these requirements. See 8 C.F.R. § 214.2(h). The regulations

define a specialty occupation as:

an occupation which requires theoretical and
practical application of a body of highly
specialized knowledge in fields of human
endeavor including, but not limited to,
architecture, engineering, mathematics,
physical sciences, social sciences, medicine
and health, education, business specialties,
accounting, law, theology, and the arts, and
which requires the attainment of a bachelor's
degree or higher in a specific specialty, or
its equivalent, as a minimum for entry into
the occupation in the United States.

-12-
Id. § 214.2(h)(4)(ii). To satisfy this definition, a position must

touch at least one of four overlapping bases. See id. § 214.2(h)(4)(iii)(A).

These bases are set out in the margin.4 The burden of proving that

a particular position comes within this taxonomy (and, thus,

qualifies as a specialty occupation) is on the applicant. See 8

U.S.C. § 1361.

Against this backdrop, we examine what transpired here.

CIS, relying in part on the United States Department of Labor's

occupational outlook handbook (the Handbook), determined that the

plaintiffs failed to show that the restaurant manager position

touched any of the four specified bases. In that regard, the

agency found that the duties of the position were not more complex

4
The bases are:
(1) A baccalaureate or higher degree or its equivalent is
normally the minimum requirement for entry into the
particular position;

(2) The degree requirement is common to the industry in
parallel positions among similar organizations or, in the
alternative, an employer may show that its particular
position is so complex or unique that it can be performed
only by an individual with a degree;

(3) The employer normally requires a degree or its
equivalent for the position; or

(4) The nature of the specific duties are so specialized
and complex that knowledge required to perform the duties
is usually associated with the attainment of a
baccalaureate or higher degree.

8 C.F.R. § 214.2(h)(4)(iii)(A).

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than those associated with similar (non-specialty) positions in the

general economy.

The plaintiffs attack CIS's analysis on several fronts.

First, they take aim at the agency's use of the Handbook, which

recounts the particulars of numerous occupations. This array

includes "food service managers," and CIS placed RSC's restaurant

manager position within that niche. Doing so was an error, the

plaintiffs claim, because that placement lumped RSC's establishment

with less toney establishments (such as fast-food and chain

restaurants). Relatedly, the plaintiffs argue that slavish

devotion to the Handbook led CIS to ignore evidence demonstrating

RSC's uniquely complex and specialized needs. We address these

arguments in the ensemble.

When Congress has entrusted an agency with rulemaking and

administrative authority, courts ordinarily afford considerable

deference to the agency's interpretation of the regulations that it

has promulgated under that authority. See Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410, 414 (1945); S. Shore Hosp., 308 F.3d at

97. Courts should withhold this deference only if the agency's

interpretation is "plainly erroneous or inconsistent with the

regulation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512

(1994) (quoting Seminole Rock, 325 U.S. at 414). We find no

indication that CIS forfeited its entitlement to deference here.

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 In its review of petitions for nonimmigrant work visas,

CIS frequently — and sensibly — consults the occupational

descriptions collected in the Handbook. Subject only to caveats at

the outer fringes, the choice of what reference materials to

consult is quintessentially within an agency's discretion — and,

thus, courts routinely have approved CIS's practice of consulting

the Handbook. See, e.g., Blacher v. Ridge, 436 F. Supp. 2d 602,

609 (S.D.N.Y. 2006); Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151,

1165 (D. Minn. 1999); Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095,

1101 n.2 (S.D.N.Y. 1989); cf. Defensor v. Meissner, 201 F.3d 384,

387 n.2 (5th Cir. 2000) (consulting the Handbook for a similar

purpose).

Here, moreover, CIS's characterization of the restaurant

manager position as a species of the generic food service manager

position appears entirely reasonable. Based on the evidence before

it, the agency fairly summarized the duties of RSC's restaurant

manager position as follows:

[The restaurant manager] would be in charge of
all operations, and he will perform duties
that entail, in part: hiring, firing, and
supervising employees; contacting suppliers
and ordering supplies; promoting the
restaurant; designing the layout of the
restaurant and its equipment; estimating food
and beverage costs and requisitions;
conferring with food preparation and other
personnel to plan menus and related
activities; investigating and resolving food
quality and service complaints; and handling
all financial matters.

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These tasks appear a good match for the duties of a food service

manager, which the 2004-05 Handbook describes, in pertinent part,

as follows:

Food service managers are responsible
for the daily operations of restaurants and
other establishments that prepare and serve
meals and beverages to customers. Besides
coordinating activities among various
departments, such as kitchen, dining room, and
banquet operations, food service managers
ensure that customers are satisfied with their
dining experience. In addition, they oversee
the inventory and ordering of food, equipment,
and supplies and arrange for the routine
maintenance and upkeep of the restaurant, its
equipment, and facilities. Managers generally
are responsible for all of the administrative
and human-resource functions of running the
business, including recruiting new employees
and monitoring employee performance and
training.

The positions coincide in two other salient respects as

well. First, RSC has singled out fluency in English and Thai as an

important asset for its position. Correspondingly, the Handbook

notes that food service managers "need to speak well, often in

several languages, with a diverse clientele and staff." Second,

RSC projected an annual salary of $40,000 for the restaurant

manager position. This is roughly comparable to the median annual

earnings of a food service manager for a full-service restaurant in

2002 as per the Handbook ($37,280).

The plaintiffs' attempt to pass off the Handbook

classification as suitable only for fast-food and chain restaurants

is unavailing. A fair reading makes clear that the Handbook

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contemplates that the food service manager heading is to cover both

full-service restaurants and less upscale operations. To cinch

matters, the plaintiffs identify no other Handbook classification

that is more apropos. We conclude, therefore, that it was well

within the realm of the agency's discretion to seek guidance from

the Handbook and, having done so, to refer to the food service

manager heading.

We also uphold the agency's determination that the

restaurant manager position is not one that by its nature demands

a bachelor's degree or its equivalent in a specific specialty. The

Handbook makes pellucid that, in hiring restaurant managers,

employers seek candidates with a wide variety of backgrounds and

credentials, including graduates of hospitality management programs

(some of which confer bachelor's degrees and some of which do not),

persons trained in-house, and those with hands-on experience gained

elsewhere. There is nothing in the record that compels, or even

strongly supports, a conclusion that a bachelor's degree or its

equivalent is a necessary credential for a restaurant manager.

In urging a contrary finding, the plaintiffs argue that

there is evidence in the record to the effect that a bachelor's

degree is the industry standard. That argument is disingenuous.

The only "evidence" to which the plaintiffs point comprises, in its

entirety, a one-paragraph statement furnished by a single

restauranteur at RSC's request. The statement asserts that every

-17-
applicant for a managerial position at that particular eatery is

expected to have a degree in business administration. As CIS

reasonably concluded, however, a bald assertion about the practices

of a lone competitor, by itself, does not suffice to prove an

industry-wide standard.

The plaintiffs have another shot in their sling. They

contend that, even if a bachelor's degree is not generally required

for restaurant managers, RSC is in need of a restaurant manager

with a degree in business administration and related work

experience. That argument does not withstand scrutiny.

The courts and the agency consistently have stated that,

although a general-purpose bachelor's degree, such as a business

administration degree, may be a legitimate prerequisite for a

particular position, requiring such a degree, without more, will

not justify the granting of a petition for an H-1B specialty

occupation visa. See, e.g., Tapis Int'l v. INS, 94 F. Supp. 2d

172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-66; cf.

Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (BIA 1988)

(providing frequently cited analysis in connection with a

conceptually similar provision). This is as it should be:

elsewise, an employer could ensure the granting of a specialty

occupation visa petition by the simple expedient of creating a

generic (and essentially artificial) degree requirement.

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 We hasten to emphasize that a degree requirement in a

specific specialty — one that relates directly to the duties and

responsibilities of a particular position — is given more weight by

the agency than a requirement for a generic degree. See 8 C.F.R.

§ 214.2(h)(4)(ii). This gloss is mandated by the language of the

statute itself. See 8 U.S.C. § 1184(i)(1). Given this

distinction, we cannot fault CIS's determination that RSC's

requirement for a free-floating degree in business administration

was insufficient, without some compelling connection to the

responsibilities of the restaurant manager position, to require a

finding of a specialty occupation here.5

The rejection of these legal arguments brings us to the

question of whether the agency, on the record as a whole, made a

reasonable decision. The record reveals that CIS considered all

the relevant facts and produced a closely reasoned judgment as to

the nature of the work involved in the restaurant manager position.

In the absence of an error of law — and we see none here — this

case comes down to straight abuse-of-discretion review. Under that

standard, the outcome is foreordained. While the APA authorizes a

reviewing court to set aside an agency's "action, findings, [or]

5
The plaintiffs make a veiled suggestion that the combined
requirements of a bachelor's degree in business administration plus
work experience transform its degree requirement into the
"equivalent" of a specialized degree. Assuming, for argument's
sake, that this suggestion has been sufficiently developed, we
think that the facts here afforded CIS ample discretion to reject
it.

-19-
conclusions" if they are "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), an

agency's decision does not trigger that provision as long as it

correctly explicates the governing law and turns on a plausible

rendition of the facts in the record.6 See Granite State Concrete

Co. v. Surface Transp. Bd., 417 F.3d 85, 92 (1st Cir. 2005). In

determining that the position in question did not warrant the

granting of a petition for a specialty occupation visa, CIS has not

operated outside the wide margins of this discretion.

Of course, the plaintiffs also ask us to factor into the

mix CIS's earlier granting of the 1999 specialty occupation visa

petition. We have taken that circumstance into account and

conclude that it does not compel a reversal here.

The mere fact that the agency, by mistake or oversight,

approved a specialty occupation visa petition on one occasion does

not create an automatic entitlement to the approval of a subsequent

petition for renewal of that visa. See, e.g., Savoury v. U.S.

Atty. Gen., 449 F.3d 1307, 1317-18 (11th Cir. 2006); Sussex Eng'g,

Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987); see also

8 C.F.R. § 214.1(a)(3)(i) (requiring nonimmigrant aliens applying

6
This is a highly deferential standard of review — and where,
as here, an agency is called upon both to interpret regulations
that it has promulgated and to find the facts, deference is doubly
desirable.

-20-
for extensions of stay to establish either that they are admissible

or that inadmissibility has been waived).

Along the same lines, this prior history does not justify

the plaintiffs' claim of estoppel. We have reiterated, with a

regularity bordering on the echolalic, that estoppel rarely will be

invoked against the federal government. See, e.g., Frillz, Inc. v.

Lader, 104 F.3d 515, 518 (1st Cir. 1997); United States v. Ven-

Fuel, Inc., 758 F.2d 741, 761 (1st Cir. 1985). That principle

holds fast in immigration cases. See, e.g., Costa v. INS, 233 F.3d

31, 38 (1st Cir. 2000) (requiring, among other things, a showing of

"affirmative government misconduct"); see also Andrade v. Gonzales,

459 F.3d 538, 545 n.2 (5th Cir. 2006); Savoury, 449 F.3d at 1318-

19. In the absence of affirmative government misconduct — and we

descry none here — there is no room for invocation of the estoppel

doctrine.

III. CONCLUSION

We end with a succinct summary. For the reasons

elucidated above, we bypass the jurisdictional question. On the

merits, the ultimate decision about whether to grant a petition for

a specialty occupation visa lies within the discretion of the

agency. See 8 U.S.C. § 1184(a)(1). Because CIS's exercise of

discretion here is untainted by either legal or factual error, we

discern no basis for disturbing its denial of RSC's petition.

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Finally, we reject out of hand the plaintiffs' entreaty that

estoppel should carry the day.

We need go no further.7 We hold, without serious

question, that the district court did not err in granting summary

judgment for the defendants.

Affirmed.

7
The conclusions we have reached render it unnecessary for us
to consider whether the agency, in arriving at its decision,
correctly applied the marriage fraud bar contained in 8 U.S.C. § 1154(c) to
this petition for a nonimmigrant work visa. By like token, we have
no need to address either the soundness or the applicability of the
government's suggestion that the APA itself (specifically, 5 U.S.C.
§ 701(a)(2)) may foreclose judicial review of a nonimmigrant
visitor's request for an extension of stay.

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