FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRICIA HERRERA; and JUGENDSTIL,
INC.,
Plaintiffs-Appellants,
v. No. 08-55493
U.S. CITIZENSHIP AND IMMIGRATION D.C. No.
CV-00871-SGL-RZ
SERVICES; and ROBERT WIEMANN,
Director, Administrative Appeals OPINION
Office, U.S. Citizenship and
Immigration Services,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
May 4, 2009—Pasadena, California
Filed July 6, 2009
Before: John T. Noonan, Diarmuid F. O’Scannlain, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber
8209
HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8211
COUNSEL
John B. Bartos and Charles M. Miller, The Miller Law
Offices, Studio City, California, for the plaintiffs-appellants.
8212 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION
Sherease Pratt, Office of Immigration Litigation, United
States Department of Justice, Washington, D.C., for the
defendants-appellees.
OPINION
GRABER, Circuit Judge:
The United States Citizenship and Immigration Services
(“agency”) may revoke its previous approval of a visa petition
“at any time” for “good and sufficient cause.” 8 U.S.C.
§ 1155. We must determine whether the enactment of 8
U.S.C. § 1154(j) altered the agency’s revocation authority.
We hold that it did not. Because the agency’s decision is oth-
erwise free of legal error and supported by substantial evi-
dence, we affirm the district court’s grant of summary
judgment to Defendants.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff Tricia Herrera is a citizen of the Philippines. In
March 1994, she began working in the Philippines as the Vice
President of Marketing for a Philippine company, Plaintiff
Jugendstil, Inc. At the time, Jugendstil manufactured furniture
and provided interior design services to clients in various
countries, including the United States. Jugendstil sought to
transfer Herrera to its United States branch office and filed an
I-129 Petition for Nonimmigrant Work in L-1A classification
(“L-1A petition”) on her behalf. An approved L-1A petition
allows an alien who has worked for an international company
abroad to work temporarily in the United States for that same
company (or a legally related entity) “in a capacity that is
managerial [or] executive.” 8 U.S.C. § 1101(a)(15)(L); see
also Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063,
1066 (9th Cir. 2008) (discussing different types of L peti-
tions); see generally 8 U.S.C. § 1184 (statutory provisions
HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8213
governing the admission of nonimmigrants); 8 C.F.R.
§ 214.2(l) (regulations governing L petitions). In March 1997,
the agency1 approved Jugendstil’s L-1A petition on behalf of
Herrera, for a period of one year. Herrera moved to the United
States and began working at Jugendstil’s United States branch
office. The agency later approved two extensions of the L-1A
petition: a one-year extension valid through March 10, 1999,
and a two-year extension valid through March 1, 2001. See 8
C.F.R. § 214.2(l)(15) (regulation governing extensions of L
petitions).
In 1999, Jugendstil filed an I-140 Immigrant Petition for
Alien Worker (“I-140 petition”) on Herrera’s behalf, under 8
U.S.C. §§ 1154(a)(1)(F) and 1153(b)(1)(C). Those statutory
provisions allow an employer to file an I-140 petition on
behalf of an alien who, among other things, seeks to work for
the company “in a capacity that is managerial or executive.”
8 U.S.C. § 1153(b)(1)(C); see also 8 U.S.C.
§ 1101(a)(44)(A)-(B) (defining the terms “managerial capaci-
ty” and “executive capacity”). The agency approved the I-140
petition in November 1999.
In February 2000, Herrera filed an I-485 Application to
Adjust Status to Legal Permanent Resident (“I-485 applica-
tion”) under 8 U.S.C. § 1255(a). On April 18, 2001, an officer
at the San Francisco District Office interviewed Herrera
regarding her I-485 application. The interviewing officer took
handwritten notes, which were not provided to Herrera at the
time but eventually were added to the administrative record.
In the interview, Herrera explained that, beginning at some
point in 2000, her employer primarily provided interior design
services and either did not manufacture furniture at all or did
very little furniture manufacturing.2 The interviewer requested
1
At the time, the agency was named the Immigration and Naturalization
Service. See Brazil Quality Stones, 531 F.3d at 1066 & n.2. For ease of
reference, we use “agency” to refer to the present and predecessor entities.
2
Plaintiffs dispute, to some extent, the content of Herrera’s statements
at that interview. But they do not dispute that, at some point in 2000,
Jugendstil shifted its focus to interior design.
8214 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION
certain documentation from Herrera, which she provided two
months later.
On March 13, 2002, the interviewing officer sent an inter-
nal referral memorandum to the California Service Center
(“CSC”). The memorandum concluded that Herrera’s role in
the company was neither managerial nor executive and rec-
ommended that the CSC revoke its prior approval of the I-140
petition. Because it was an internal memorandum, the agency
did not send Plaintiffs a copy.
On April 1, 2002, Herrera sent a notice to the CSC that she
had left her employer and accepted a new position as market-
ing manager with Bay Area Bumpers, an affiliate of Jugends-
til. Her notice stated that she wished to take advantage of the
recently enacted job-portability provision codified at 8 U.S.C.
§ 1154(j) (“Portability Provision”).
On July 25, 2002, the CSC issued a notice of intent to
revoke its previous approval of Herrera’s I-140 petition, pur-
suant to 8 U.S.C. § 1155 and 8 C.F.R. § 205.2. The statutory
provision states that “[t]he Secretary of Homeland Security
may, at any time, for what he deems to be good and sufficient
cause, revoke the approval of any petition approved by him
under section 1154 of this title.” 8 U.S.C. § 1155. The notice
of intent to revoke explained that Herrera did not meet the
approval requirements for an I-140 petition because, as
revealed by her statements in the 2001 interview, her job
duties were not executive or managerial as required by statute.
In particular, the notice mentioned the small size of Jugendstil
(only seven employees) and the nature of Herrera’s job duties
(which included visits to client sites). The notice afforded
Herrera 30 days to offer evidence and argument in rebuttal.
Herrera responded with a five-page letter from Jugendstil
and copies of Jugendstil’s quarterly wage reports. The CSC
was unpersuaded and, on November 12, 2002, it revoked its
previous approval of the I-140 petition. The revocation notice
HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8215
rested on the same reasons stated in the notice of intent to
revoke: the small number of employees and Herrera’s self-
description of her job duties in 2001. The revocation notice
concluded that the evidence “clearly demonstrate[s] that [Her-
rera’s] duties were not and are not managerial or superviso-
ry.”
The next day, the CSC denied Herrera’s I-485 application.
Because Herrera was no longer the beneficiary of an approved
I-140 petition, she did not meet the requirements for approval
of her I-485 application. See 8 C.F.R. § 245.2(a)(2)(i) (listing
the requirements for approval of an I-485 application). Plain-
tiffs do not challenge that downstream decision here; they
challenge only the agency’s revocation of its previous
approval of the I-140 petition.3
Plaintiffs appealed the revocation to the Administrative
Appeals Office (“AAO”). The AAO denied the appeal in a
nine-page, single-spaced, written decision. The AAO con-
cluded that the evidence submitted at the time of the original
petition was insufficient to establish eligibility because of the
small number of employees and because of the AAO’s deter-
mination that Herrera’s primary function was not supervision
of other employees. Additionally, the AAO concluded that the
evidence of her role at the time of the 2001 interview was also
insufficient to establish eligibility for approval of the I-140
petition.
Plaintiffs filed this action in federal district court in 2006,
seeking review of the agency’s action under 5 U.S.C. § 706.
The district court granted summary judgment to Defendants,
and Plaintiffs timely appeal.
3
In December 2002, Bay Area Bumpers filed an I-140 petition on behalf
of Herrera, and Herrera filed a concurrent I-485 application. The agency
denied both, and Plaintiffs do not challenge those denials.
8216 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION
STANDARDS OF REVIEW
We review de novo the district court’s grant of summary
judgment. Love Korean Church v. Chertoff, 549 F.3d 749,
753-54 (9th Cir. 2008).
We have jurisdiction to review a visa revocation decision
under 8 U.S.C. § 1155, notwithstanding the jurisdiction-
stripping provisions of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996. ANA Int’l Inc. v. Way,
393 F.3d 886, 888-89 (9th Cir. 2004); but see id. at 895 (Tall-
man, J., dissenting) (stating that the majority’s holding is con-
trary to congressional intent and creates an intra- and inter-
circuit conflict); Spencer Enters., Inc. v. United States, 345
F.3d 683, 694-95 (9th Cir. 2003) (Beezer, J., dissenting) (stat-
ing that he would hold that this court lacks jurisdiction over
the agency’s discretionary decision to grant or deny a visa
petition). Because the AAO’s decision was the agency’s final
decision, we review the AAO’s decision. See 5 U.S.C. § 704
(granting judicial review over “final agency action” (emphasis
added)); cf. Aguilera-Montero v. Mukasey, 548 F.3d 1248,
1250 (9th Cir. 2008) (“When the [Board of Immigration
Appeals (‘BIA’)] conducts a de novo review and issues its
own decision, we review the BIA’s decision rather than the
[immigration judge’s].” (alteration and internal quotation
marks omitted)).
Under 5 U.S.C. § 706(2)(A), we may set aside the agency’s
decision only if it is “arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law.” See Family
Inc. v. US Citizen & Immigration Servs., 469 F.3d 1313,
1315-16 (9th Cir. 2006) (applying this standard to the agen-
cy’s determination that the plaintiff would not be acting in a
managerial capacity); Spencer Enters., 345 F.3d at 693
(applying this standard to the agency’s denial of a visa peti-
tion). “The agency’s factual findings are reviewed for sub-
stantial evidence. We will not disturb the agency’s findings
under this deferential standard unless the evidence presented
HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8217
would compel a reasonable finder of fact to reach a contrary
result.”4 Family Inc., 469 F.3d at 1315 (citation and internal
quotation marks omitted).
DISCUSSION
Plaintiffs argue that the agency lacked the authority to
revoke its previous approval of the I-140 petition because
Herrera met the requirements of the Portability Provision and
that, in any event, the agency’s revocation was legally errone-
ous and not supported by substantial evidence. We review the
arguments in turn.
A. The Agency’s Revocation Authority
[1] Before the 2000 enactment of the Portability Provision,
the agency’s revocation authority was clear. “The Secretary of
Homeland Security may, at any time, for what he deems to be
good and sufficient cause, revoke the approval of any petition
approved by him under section 1154 of this title [which
includes an I-140 petition].” 8 U.S.C. § 1155 (emphases
added); see also 8 C.F.R. § 205.2 (implementing regulations).
The statute permits revocation “at any time,” so there plainly
was no time constraint on when the agency could revoke the
approval. The statute also permits revocation only “for what
[the agency] deems to be good and sufficient cause.” We have
held that “[t]he [BIA] has reasonably interpreted this statutory
requirement to be satisfied if ‘the evidence of record at the
time the decision was issued . . . warranted . . . [a] denial’ of
the petition.” Love Korean Church, 549 F.3d at 754 n.3 (ellip-
ses and last alteration in original) (quoting In re Estime, 19 I.
& N. Dec. 450, 452 (B.I.A. 1987)); see also In re Ho, 19 I.
& N. Dec. 582 (B.I.A. 1988) (applying the In re Estime stan-
dard). That is precisely the agency’s reason here.
4
Plaintiffs argue that the district court did not apply the correct standard
of review in this regard. Plaintiffs’ arguments are not relevant, because we
review the district court’s decision de novo.
8218 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION
[2] Plaintiffs argue that the Portability Provision changes
that analysis. In 2000, Congress recognized that long delays
by the agency in processing I-485 applications were causing
practical difficulties for some applicants. See, e.g., 146 Cong.
Rec. 8437 (2000), also reported at 146 Cong. Rec. S4191-01,
*S4191 (daily ed. May 18, 2000) (“All of us have heard the
horror stories of the long delays in processing naturalization
and immigration applications. What was once a 6-month pro-
cess has now become a 3- to 4-year ordeal.” (statement of
Sen. Feinstein)). One practical problem concerned aliens, like
Herrera, who were working pursuant to an approved I-140
petition. An I-140 petition is filed by the employer, not by the
employee. Before Congress enacted the Portability Provision,
a beneficiary employee of an I-140 petition could not change
jobs and still receive the benefit of the I-140 petition. As the
title of the Portability Provision states, Congress granted a
certain amount of “[j]ob flexibility for long delayed appli-
cants”:
Job flexibility for long delayed applicants for
adjustment of status to permanent residence
A petition under subsection (a)(1)(D)[5] of this
section [i.e., an I-140 petition] for an individual
whose application for adjustment of status pursuant
to section 1255 of this title [i.e., an I-485 applica-
5
The correct reference here is to subsection (a)(1)(F), not subsection
(a)(1)(D). The error appears to have been caused by an intervening (and
incomplete) renumbering of some subsections. See Perez-Vargas v. Gon-
zales, 478 F.3d 191, 192 n.2 (4th Cir. 2007) (explaining the source of the
error); see also Sung v. Keisler, 505 F.3d 372, 374 (5th Cir. 2007) (quoting
the statute beginning after the typographical error); Matovski v. Gonzales,
492 F.3d 722, 730 (6th Cir. 2007) (quoting the full statutory text, and pro-
ceeding as if there were no typographical error; that is, that the statute
referred to subsection (a)(1)(F)). The agency does not argue that the Porta-
bility Provision is inapplicable for this reason. Like the Fourth, Fifth, and
Sixth Circuits, we proceed on the basis that the statute refers to subsection
(a)(1)(F).
HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8219
tion] has been filed and remained unadjudicated for
180 days or more shall remain valid with respect to
a new job if the individual changes jobs or employ-
ers if the new job is in the same or a similar occupa-
tional classification as the job for which the petition
was filed.
8 U.S.C. § 1154(j).
[3] The effect of the Portability Provision is clear. Whereas
an alien working under an I-140 petition previously could not
change jobs without seeking a new I-140 petition via his or
her new employer, an alien now may change jobs and the
original I-140 petition “shall remain valid with respect to
[the] new job,” subject to certain requirements. Nothing sug-
gests that the Portability Provision altered the agency’s revo-
cation authority.
Plaintiffs disagree. They point out that the agency does not
dispute that Herrera met all the requirements of the Portability
Provision: When she changed jobs (presumably to a qualify-
ing position), her I-485 application had been pending for 180
days.6 Plaintiffs argue that, because the Portability Provision
states that the petition “shall remain valid,” the agency cannot
revoke its previous approval of that petition.
As an initial matter, Plaintiffs’ argument ignores the larger
context of the provision. The Portability Provision states that
6
Three important events occurred in the following order: (1) Herrera
filed her I-485 application; (2) more than 180 days later, she changed jobs
and submitted a letter stating that she believed that she had met the
requirements of the Portability Provision; and (3) the agency issued the
notice of intent to revoke its previous approval of the I-140 petition.
(Internally, the agency began to question its previous approval of the peti-
tion well before Herrera changed jobs, but there is no indication in the
record that Herrera was aware of that fact and, in any event, the agency
did not act formally to revoke its approval of the petition until after Her-
rera changed jobs.)
8220 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION
the petition “shall remain valid with respect to [the] new job”
(emphasis added), not that the petition shall forevermore
remain valid. More to the point, in order for a petition to “re-
main” valid, it must have been valid from the start. The
agency here held that the petition should not have been
approved; in other words, the petition was not, and had never
been, valid. Plaintiffs assert that, to the contrary, a petition is
“valid” for purposes of the Portability Provision as soon as the
agency approves the petition. We are unpersuaded.
[4] We agree with the division of the AAO that addressed
this issue in In re Applicant [Name Redacted by the AAO],
No. WAC 02 282 54013, 2005 WL 1950775 (A.A.O. Jan. 10,
2005). There, the AAO noted that “[t]he term ‘valid’ is not
defined by the statute, nor does the congressional record pro-
vide any guidance as to its meaning.” Id. The AAO reviewed
various dictionary definitions and “the overall design of the
nation’s immigration laws.” Id. In particular, it noted that
“ ‘[a]ny employer desiring and intending to employ within the
United States an alien entitled to classification under [8
U.S.C. § ] . . . 1153(b)(1)(C) . . . may file a petition with the
Attorney General [now Secretary of Homeland Security] for
such classification.’ ” Id. (second bracketed entry added)
(quoting 8 U.S.C. § 1154(a)(1)(F)). The AAO concluded that,
“to be considered ‘valid’ in harmony with the thrust of the
related provisions and with the statute as a whole, the petition
must have been filed for an alien that is ‘entitled’ to the
requested classification.” Id. The AAO reasoned that,
“[c]onsidering the statute as a whole, it would severely under-
mine the immigration laws of the United States to find that a
petition is ‘valid’ when that petition . . . was approved, if it
was filed on behalf of an alien that was never ‘entitled’ to the
requested visa classification.” Id. (emphasis added). We agree
with the AAO’s cogent analysis.7
7
The agency does not argue that we should give Skidmore deference to
the AAO’s branch office decision, so we accord it no special deference.
HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8221
We add that we take Congress’ enactment at face value: It
intended to grant “[j]ob flexibility for long delayed appli-
cants,” 8 U.S.C. § 1154(j) (emphasis added), not to constrain
the agency’s revocation authority. Had Congress intended to
constrain the agency’s revocation authority, it easily could
have expressed that intent clearly. For example, it could have
stated so explicitly in the Portability Provision, or it could
have amended 8 U.S.C. § 1155, which provides that the
agency may revoke its previous approval of a petition “at any
time” for “good and sufficient cause.”
Finally, we add that Plaintiffs’ reading of the Portability
Provision leads to plainly unintended practical consequences.
Congress clearly recognized that long delays were causing
difficulties for certain applicants, and the Portability Provision
afforded job flexibility for those whose I-485 applications had
been pending for 180 days or more. But it is just as clear that
Congress did not intend to grant extra benefits to those who
changed jobs. Under Plaintiffs’ reading, however, just such a
result would occur, for the following reasons.
[5] Consider a person in the same situation as Herrera’s,
except that she did not change jobs while her I-485 applica-
tion was pending. The Portability Provision does not apply,
because she did not change jobs. As discussed above, the
agency can revoke the hypothetical person’s I-140 petition “at
any time.” Under Plaintiffs’ interpretation, however, the
agency could revoke the hypothetical person’s I-140 petition,
but it could not revoke Herrera’s. Nothing in the legislative
history, the statutory text, or common sense suggests that
But see United States v. Mead Corp., 533 U.S. 218, 234 (2001) (giving
Skidmore deference to interpretations contained in agency manuals or
enforcement guidelines); Tablada v. Thomas, 533 F.3d 800, 806 (9th Cir.
2008) (giving Skidmore deference to a Program Statement by the Bureau
of Prisons); Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1014 (9th Cir.
2006) (giving Skidmore deference to unpublished one-member decisions
by the BIA). Nevertheless, we agree with the reasoning in In re Applicant.
8222 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION
Congress intended applicants to have the ability, simply by
changing jobs, to shield from revocation the agency’s errone-
ous previous approval of an I-140 petition. Yet Plaintiffs’
reading would do just that. Furthermore, under Plaintiffs’
interpretation, an applicant would have a very large incentive
to change jobs, in order to guarantee that the agency’s
approval of an I-140 petition could not be revoked. Congress
could not have intended those results.
Plaintiffs urge us to overlook those reasons in favor of their
interpretation of a 2003 internal agency memorandum written
by the Acting Associate Director for Operations, William R.
Yates (“Yates Memorandum”). Plaintiffs direct us to the fol-
lowing passage:
If approval of the Form I-140 is revoked or the
Form I-140 is withdrawn before the alien’s Form I-
485 has been pending 180 days, the approved Form
I-140 is no longer valid with respect to a new offer
of employment and the Form I-485 may be denied.
If at any time the [agency] revokes approval of the
Form I-140 based on fraud, the alien will not be eli-
gible for the job flexibility provisions of [the Porta-
bility Provision] and the adjudicating officer may, in
his or her discretion, deny the attached Form I-485
immediately.
Plaintiffs argue that the foregoing passage requires that, when
an I-485 application has been pending for 180 days, the
agency may revoke its approval of the I-140 petition only in
the case of fraud.
We do not read so much into the Yates Memorandum. The
quoted passage touches on the revocation issue only indirectly
and does not provide a clear directive to those processing
revocations of I-140 petition approvals. Indeed, the memoran-
dum concerns the processing of I-485 applications, not the
conditions under which the agency may revoke its previous
HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8223
approval of an I-140 petition. See also Yates Memorandum at
1 (“The purpose of this memorandum is to provide field
offices with guidance on processing Form I-485, Application
to Register Permanent Residence or Adjust Status [i.e., an I-
485 application].” (emphasis added)). Furthermore, Plaintiffs’
reading of the Yates Memorandum is inconsistent with the
statutory text: Nowhere does the Portability Provision distin-
guish between fraud and other reasons for revocation.
[6] In conclusion, we hold that the Portability Provision
does not affect the agency’s revocation authority, which per-
mits revocation “at any time” for “good and sufficient cause.”
8 U.S.C. § 1155.
B. Challenges to the Notice of Intent to Revoke
[7] The notice of intent to revoke was legally sufficient. It
plainly advised Herrera that she was not, and had never been,
“eligible for the classification sought.” It therefore met the
regulatory requirement that Herrera be given “notice” of the
“ground” on which the agency sought revocation. 8 C.F.R.
§ 205.2(a).
[8] The notice of intent to revoke also met the procedural
requirements described in In re Estime, 19 I. & N. Dec. at
451. A petitioner generally “must be permitted to inspect the
record of proceedings, must be advised of derogatory evi-
dence of which he is unaware, and must be offered an oppor-
tunity to rebut such evidence and to present evidence in his
behalf.” Id. Nothing in the record suggests that those require-
ments were not met. The handwritten notes taken by the CSC
officer at Herrera’s 2001 interview and the officer’s internal
memorandum were not the sort of “derogatory evidence” con-
templated by In re Estime. In any event, Herrera was not “un-
aware” of the content of her 2001 interview because she gave
8224 HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION
the interview. And it was the interview itself, not the internal
summaries of it, that caused the agency to seek revocation.8
C. Challenges to the Revocation
[9] The AAO’s decision is supported by substantial evidence.9
The AAO held that Herrera’s job description did not qualify
as acting in “managerial capacity” or “executive capacity,”
because “[t]he description of the beneficiary’s duties, the
organizational chart, and the position descriptions of two indi-
viduals subordinate to the beneficiary’s position are not suffi-
cient to establish eligibility for this visa classification.”
Plaintiffs dispute the relevance and weight of the factors con-
sidered by the AAO, but the factors are permissible consider-
ations and the AAO’s conclusions are supported by
substantial evidence. See, e.g., Family Inc., 469 F.3d at 1316
(“[T]he [agency] may properly consider an organization’s
small size as one factor in assessing whether its operations are
substantial enough to support a manager.”); id. (holding that
a company’s organizational chart is also a valid factor for
8
Plaintiffs also challenge the admissibility of the documents in federal
court, even though they are in the certified administrative record. We
reject Plaintiffs’ argument. Our review of agency action is limited to the
administrative record. Cent. Elec. Coop., Inc. v. Bonneville Power Admin.,
835 F.2d 199, 204 (9th Cir. 1987). Plaintiffs made a similar argument
before the AAO, challenging the correctness of the information in the doc-
uments. The AAO responded that Plaintiffs had not submitted affidavits
describing her job duties to contradict those described in the notice of
intent to revoke and that they bear the burden of producing such evidence.
We find no factual or legal error in the AAO’s ruling.
9
Plaintiffs occasionally couch this argument in terms that allege proce-
dural violations. For instance, they argue that the AAO did not consider
the record evidence and did not consider the rebuttal evidence that Jugend-
stil submitted. In its decision, the AAO plainly described the record evi-
dence and the rebuttal evidence and stated its reasons for rejecting that
evidence. There is no procedural violation. Plaintiffs essentially are argu-
ing that the AAO could not possibly have reached its conclusion if it had
fully considered the relevant evidence—a “substantial evidence” argu-
ment.
HERRERA v. U.S. CITIZENSHIP AND IMMIGRATION 8225
consideration). As in Family Inc., “[w]e have considered the
record evidence in this case, and it does not compel a contrary
conclusion.” Id.
[10] Finally, the AAO applied the proper legal standard.
The surest way to determine the job duties of a particular
position is to question the person employed in that position,
which is what the agency did here.
AFFIRMED.