Healthy & Natural Trading LLC v. U.S. Department of Homeland Security

FILED
NOT FOR PUBLICATION
MAY 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HEALTHY AND NATURAL TRADING No. 15-55030
LLC; MARCELO SALLES PEREIRA DE
LUCENA, Principal Beneficiary, D.C. No. 2:14-cv-02332-PA-E

Plaintiffs-Appellants,
MEMORANDUM*
v.

U.S. DEPARTMENT OF HOMELAND
SECURITY; UNITED STATES
CITIZENSHIP AND IMMIGRATION
SERVICES; CALIFORNIA SERVICE
CENTER; VERMONT SERVICE
CENTER; JEH CHARLES JOHNSON, in
his official capacity as Secretary of the
United States Department of Homeland
Security; LEON RODRIGUEZ, Director
of the U.S. Citizenship and Immigration
Services - Substituted for Alejando
Mayorkas; KATHY BARAN, in her
official capacity as Director of the
California Service Center; CARRIE
SELBY, Acting Director of the Vermont
Service Center - Substituted for Daniel
Renaud,

Defendants-Appellees.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
 Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding

Submitted November 9, 2016**
Pasadena, California

Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges.

Healthy and Natural LLC (Healthy) and Marcelo Salles Pereira de Lucena

(Lucena), appeal a district court decision granting summary judgment in favor of

the United States Citizenship and Immigration Service (USCIS). USCIS denied

Healthy and Lucena’s petition to extend Lucena’s nonimmigrant L-1A visa for

failure to establish Lucena as a qualifying executive or manager under 8 U.S.C. §

1101(a)(15)(L) and 8 U.S.C. § 1101(44)(A)-(B). We have jurisdiction under 28

U.S.C. § 1291 and affirm.

1. The district court did not err in affirming the USCIS’s determination that

Lucena was not primarily employed in an executive or a managerial capacity. See

Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1067 (9th Cir. 2008)

(reviewing under the Administrative Procedures Act). Healthy submitted vague,

conclusory job descriptions that lacked specificity, failed to clarify Lucena’s

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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day-to-day non-supervisory duties, and merely recited the elements of the

regulatory definition of “executive.” See id. at 1070 (requiring “documents

submitted to the agency [to] describe with particularity” the duties of the

employee).

2. USCIS was not bound by its decision granting Healthy’s initial L-1A

petition. See id. at 1066-67, 1071 (affirming the denial of a second petition despite

approval of an initial petition). An L-1A petitioner applying for an extension must

reestablish eligibility under the applicable statute and regulations. See 8 C.F.R. §

214.2(l)(7)(i)(A)(2),(3); see also Brazil Quality, 531 F.3d at 1066-67.

3. USCIS properly considered the size of Healthy’s organization. See Brazil

Quality, 531 F.3d at 1070 (holding that although “an organization’s small size,

standing alone, cannot support a finding that its employee is not acting in a

managerial capacity, . . . size is nevertheless a relevant factor in assessing whether

an organization’s operations are substantial enough to support a manager”)

(citation, alteration, and internal quotation marks omitted).

4. We decline to address the challenge to the evidentiary standard applied

by USCIS because that issue was not sufficiently raised in the district court. See

United States v. Williams, 846 F.3d 303, 311 (9th Cir. 2016).

AFFIRMED.

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