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Confluence Internat'l, Inc. v. Holder: US District Court : CIVIL PROCEDURE | IMMIGRATION - judgment on pleadings regarding denial of I-140; failure to prosecute (non-admitted lawyer, timelines ignored)

1 Eric Holder is substituted for his predecessor, Michael
Mukasey, as Attorney General pursuant to Federal Rule of Civil
Procedure 25(d).
2 In addition to the Attorney General, the complaints caption
identifies the following defendants: the United States Department
of Justice; Department of Homeland Security; District Director,
Bureau of Citizenship and Immigration Service, Nebraska Service
Center[; and] Director, Administrative Appeals Office. The body
of the complaint omits the Department of Justice but includes as a
defendant the Commissioner of the [Bureau of Citizenship and
Immigration Service as] its Chief Executive Officer. (Compl.
Civil No. 08-2665(DSD/JJG)
Confluence International,
Eric Holder, Attorney General
of the United States,1 United
States Department of Justice,
Department of Homeland Security,
District Director, Bureau of
Citizenship and Immigration
Service, Nebraska Service Center,
Administrative Appeals Office,
Marcus A. Jarvis, Esq. and Jarvis & Associates, PC, 13630
Oakwood Curve, Burnsville, MN 55337, counsel for
Erik R. Quick, U.S. Department of Justice, P.O. Box 868,
Ben Franklin Station, Washington, D.C. 20044; Robyn A.
Millenacker, Assistant U.S. Attorney, 300 South Fourth
Street, Minneapolis, MN 55415, counsel for defendants.
This matter is before the court on defendants2 motions for
14.) This order applies to all defendants intended to be covered
by the complaint.
judgment on the pleadings, or in the alternative for summary
judgment, and to dismiss for failure to prosecute. Based upon a
review of the file, record and proceedings herein, and for the
reasons stated, the court grants defendants motions.
Plaintiff Confluence International, Inc. (Confluence) is a
software development and consulting company. This immigration
dispute arises out of the denial of Confluences I-140 petition for
preference visa classification of Sanjay Raj (Raj) for his
services as a professional software engineer under 8 U.S.C.
Before filing the I-140 petition, Confluence requested the
required certification from the United States Department of Labor
that there were not sufficient software engineers in the United
States and that Rajs employment would not affect the wages and
working conditions of similarly employed workers in the United
States (labor certification). (Admin. R. at 186.) See 8 C.F.R.
204.5(l)(3). Confluences application (certification
application) indicated that the job required a minimum of four
years of college and a bachelors degree in computer science,
mathematics, engineering or science and listed a ,482 annual
salary. (Id.) Confluence obtained the labor certification on
October 21, 2003. (Id. at 185.)
On July 13, 2005, Confluence filed the I-140 petition with the
United States Department of Homeland Securitys Bureau of
Citizenship and Immigration Services (USCIS). On September 21,
2005, USCIS requested additional evidence of Rajs qualifications
and Confluences ability to pay the offered salary. (Id. at 22-
23.) Confluence responded with evidence that Raj obtained a threeyear
bachelor of science degree in mathematics from the University
of Delhi, India in 1991, a master of business administration from
the University of Poona, India in 1993 and various certificates for
computer software courses. (Id. at 34-43.) In addition,
Confluence submitted its corporate tax returns from 2002 through
2004, which showed net incomes of ,252, ,890 and 1,293,
respectively. (Id. at 83, 95, 105.) USCIS denied Confluences
petition on February 18, 2006, because Confluence had not
established that Raj met the minimum requirement of a four-year
baccalaureate degree or its foreign equivalent in one of the
specified areas. (Id. at 127.) Confluence timely appealed to
USCISs Administrative Appeals Office (AAO). (Id. at 117.)
On August 23, 2007, the AAO noted a discrepancy between the
certification applications requirement of a four-year bachelors
degree and Confluences argument before the AAO that the
combination of Rajs three-year degree and his other education and
experience satisfied that requirement. As a result, the AAO
requested evidence of Confluences intent concerning the actual
minimum requirements of the position as that intent was explicitly
and specifically expressed to the U.S. Department of Labor while
that agency oversaw the labor market test and determination of the
actual minimum requirements set forth on the [certification
application]. (Id. at 148.) Confluence denied any discrepancy
and submitted two reports from education consultants opining that
Rajs mathematics degree was the equivalent of a four-year
bachelors degree in the United States. (Id. at 157, 167.)
After a de novo review, the AAO affirmed the denial of
Confluences petition in a written order on March 6, 2008. The AAO
determined that Rajs three-year degree from the University of
Delhi, India, was not the foreign equivalent of a United States
baccalaureate degree. (Id. at 6, 13.) Moreover, even if Rajs
degree was a foreign equivalent degree, the AAO concluded that the
labor certification did not permit an equivalent to a four-year
bachelors degree. (Id. at 13.) Therefore, the AAO denied the I-
140 petition because Raj did not qualify for preference visa
classification under 1153(b)(3) or meet the job requirements of
the labor certification. (Id.) The AAO alternatively noted that
Confluences petition should have been denied because it had not
establish[ed] its ability to pay the [positions] proffered wage.
(Id. at 16.)
Confluence filed the instant action on June 20, 2008, alleging
that the denial of its I-140 petition was arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law,
and violated its Fifth Amendment due process rights. (Compl. 1,
41, 45, 50.) The complaint seeks declaratory relief and an
injunction vacating the March 6, 2008, order, reopening the
immigration proceedings, adjudicating Confluences I-140 petition
and awarding additional relief. (Id. 52-54.)
Santosh Kalra Pawar (Pawar), an attorney who is not admitted
to practice in this court, signed and filed Confluences complaint.
The magistrate judge addressed Pawars status at the October 3,
2008, scheduling conference. The pretrial scheduling order issued
on October 6, 2008, required Pawar to file the necessary documents
to be admitted pro hac vice in this court on or before October 31,
2008. (Doc. No. 9.) Pawar did not comply. On November 12, 2008,
the magistrate judge ordered Pawar to show cause why the court
should not entertain a sanction and/or dispositive motion by the
defense, and warned that failure to comply with the order within
twenty days may result in a sanction and/or a dispositive motion,
which may include dismissal of this action. (Doc. No. 10.) Pawar
again did not comply.
On November 24, 2008, defendants moved for judgment on the
pleadings or, alternatively, for summary judgment. Confluence did
not respond. On December 10, 2008, defendants moved to dismiss for
Confluences failure to prosecute the action. Confluence did not
respond. At a January 9, 2009, hearing on defendants motions,
Confluences president, Shankar Tyagi (Tyagi), attempted to
appear on behalf of Confluence. The court informed Tyagi that a
corporation cannot appear pro se and ordered him to retain an
attorney and file a response to defendants motions by January 23,
2009. The court also counseled that failure to comply with its
order would result in dismissal. Confluences new counsel filed a
notice of appearance on January 20, 2009. On January 27, 2009,
Confluence filed a memorandum in opposition to defendants first
motion. Defendants replied on February 2, 2009. Confluence
responded to defendants motion to dismiss on March 22, 2009, and
defendants replied four days later. The court now addresses
defendants motions.
I. Failure to Prosecute
A court may dismiss an action under Federal Rule of Civil
Procedure 41(b) if a plaintiff fails to prosecute or to comply
with [the Federal Rules] or a court order. Fed. R. Civ. P. 41(b).
Dismissing an action with prejudice under Rule 41(b) is an extreme
sanction [that] should be used only in cases of willful
disobedience of a court order or continued or persistent failure to
prosecute a complaint. Smith v. Gold Dust Casino, 526 F.3d 402,
405 (8th Cir. 2008) (quotation omitted). Bad faith is not required
to warrant dismissal under Rule 41(b). Doe v. Cassel, 403 F.3d
986, 990 (8th Cir. 2005) (citation omitted). Rather, a plaintiff
must only have acted intentionally as opposed to accidentally or
involuntarily. Id. A defendants failure to abide by a courts
order despite a warning from the district court that [he] is
skating on the thin ice of dismissal evinces willfulness. Rodgers
v. Curators of Univ. of Mo., 135 F.3d 1216, 1221 (8th Cir. 1998)
(citing First Gen. Res. Co. v. Elton Leather Corp., 958 F.2d 204,
206 (8th Cir. 1992)). Moreover, a defendant is generally bound by
the actions (or inaction) of his attorney when his attorney acts in
her representational capacity. Id. at 1220.
In this case, Confluence had express notice beginning on
October 3, 2008, that Pawar was not properly admitted to appear
before this court. Nevertheless, Pawar did not file the pro hac
vice materials required by the scheduling order and Confluence did
not retain local counsel. Thereafter, Confluence and Pawar ignored
the magistrate judges order to show cause despite its warning that
the action may be dismissed. Moreover, in contravention of the
Federal and Local Rules, Confluence failed to respond to
defendants motions until Tyagi attended the January 9 hearing.
Finally, Confluence did not timely respond to defendants motions
despite the courts express admonition that failure to do so would
result in dismissal of this action. These repeated failures by
3 Defendants argue that the court lacks subject matter
jurisdiction to review the denial of Confluences I-140 petition.
A court lacks jurisdiction to review any other decision of the
Attorney General or the Secretary of Homeland Security the
authority for which is specified under [8 U.S.C. 1151 et seq.] to
be in the[ir] discretion, other than the granting of relief under
[8 U.S.C. 1158(a)]. 8 U.S.C. 1252(a)(2)(B)(ii); Onyinkwa v.
Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004). Section
1153(b)(3)(A)(ii) provides that preference employment visas shall
be made available, in a number not to exceed 28.6 percent of such
worldwide level, plus any [employment-based visas with a higher
preference, to] qualified immigrants who hold baccalaureate degrees
and who are members of the professions. 8 U.S.C.
1153(b)(3)(A)(ii). The plain language of the statute requires
the admission of a fixed percentage of qualified immigrants.
Therefore, such admissions are not committed to agency discretion
by statute, and 1252(a)(2)(B)(ii) does not divest the court of
jurisdiction over Confluences claims. Cf. Soltane v. U.S. Dept
of Justice, 381 F.3d 143, 146-48 (3d Cir. 2004) (no jurisdictional
bar to courts consideration of a preference visa determination
under 1153(b)(4)); Sabhari v. Frazier, Civ. No. 06-196, 2007 U.S.
Dist. LEXIS 6686, at *19-33 (D. Minn. Jan. 30, 2007) (court has
jurisdiction over denial of I-130 petition to adjust immigration
status based on familial relationship); see also Tamenut v.
Mukasey, 521 F.3d 1000, 1003 (8th Cir. 2008) (presumption of
judicial review over administrative actions). For the same reason,
the Administrative Procedures Act permits judicial review of the
AAOs decision. See 5 U.S.C. 701(a) (judicial review generally
available unless precluded by another statute or agency action is
committed to agency discretion by law).
Confluence and its counsel establish that they intentionally failed
to prosecute this action and follow the courts orders. Therefore,
the court grants defendants motion, and dismisses this action with
prejudice pursuant to Rule 41(b).
II. Judgment on the Pleadings
Even if dismissal was not warranted under Rule 41(b), the
court would grant defendants motion for judgment on the
pleadings.3 A court will grant a motion for judgment on the
4 The court has considered the administrative record, but does
not convert defendants motion to a motion for summary judgment
because that record contains public records, materials that do not
contradict the complaint, [and] materials that are necessarily
embraced by the pleadings. Noble Sys. Corp. v. Alorica Cent., LLC,
543 F.3d 978, 982 (8th Cir. 2008) (citation and quotation omitted).
5 Section 706 also requires a court to set aside agency action
that is contrary to constitutional right, power, privilege, or
immunity. 5 U.S.C. 706(2)(B). Confluence, however, has waived
its due process claim by not pursuing the claim in its opposition
memorandum. See Graham v. Rosemount, Inc., 40 F. Supp. 2d 1093,
1101 (D. Minn. 1999) (failure to respond to defendants arguments
resulted in waiver of claims) Moreover, the claim fails on the
merits because Confluence has not shown fundamental unfairness or
procedural irregularities [that] prejudiced [its] case. Dukuly v.
Mukasey, 551 F.3d 756, 758 (8th Cir. 2008) (citing Salkeld v.
Gonzales, 420 F.3d 804, 810 (8th Cir. 2005)).
pleadings pursuant to Federal Rule of Civil Procedure 12(c) when
there is no dispute as to any material facts and the moving party
is entitled to judgment as a matter of law.4 Ashley County v.
Pfizer, 552 F.3d 659, 665 (8th Cir. 2009) (quotation omitted). A
court will reverse the denial of a petition for preferential
immigration classification if the decision was arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law. Gipson v. INS, 284 F.3d 913, 916 (8th Cir. 2002)
(quoting 5 U.S.C. 706(2)(A)).5 An agency acts arbitrarily and
capriciously only if it provides no rational explanation for its
decision. Henry v. U.S. Dept of Navy, 77 F.3d 271, 272 (8th Cir.
An aliens employer may file an I-140 petition to obtain
preference visa status for the alien pursuant to 8 U.S.C.
1153(b). See 8 C.F.R. 204.5(a); see also Masih v. Mukasey, 536
F.3d 370, 373-74 (5th Cir. 2008) (describing three-step process for
obtaining legal status based on employment). Professionals qualify
for third preference employment visas. 8 U.S.C. 1153(b)(3).
Professionals are qualified immigrants who hold baccalaureate
degrees and who are members of the professions. Id.
1153(b)(3)(A)(ii). A baccalaureate degree includes a United
States baccalaureate degree or a foreign equivalent degree. 8
C.F.R. 204.5(l)(2).
The AAO interpreted foreign equivalent degree to require a
single foreign degree rather than a combination of multiple lesser
degrees. (Admin. R. at 4, 6.) The court defers to this
interpretation because it is not contrary to the unambiguous
meaning of the statute or regulation. See Ballanger v. Johanns,
495 F.3d 866, 872 (8th Cir. 2007) (court defers to agencys
interpretation of statute it is charged with implementing and its
regulations); see also 8 U.S.C. 1103(a)(1) (Secretary of Homeland
Security charged with administering and enforcing immigration
laws). Accordingly, the courts inquiry is whether the AAOs
decision that Rajs mathematics degree was not a foreign
equivalent degree was arbitrary and capricious.
The AAO acknowledged the two reports submitted by Confluence
indicating that Rajs mathematics degree was the foreign equivalent
of a four-year bachelors degree in the United States. (Admin. R.
9-10.) The AAO, however, rejected the reports analogous treatment
of contact hours in the Indian education system and credit
hours in the United States system. (Id. at 11-12.) Instead, the
AAO relied on information provided by the American Association of
Collegiate Registrar and Admissions Officers, which indicated that
a bachelors degree awarded in India represents the attainment of
a level of education comparable to two or three years of university
study in the United States. (Id. at 10-11.) Based on that
information, the AAO concluded that Rajs mathematics degree was
not a foreign equivalent degree, and affirmed the denial of his
I-140 petition. (Id. at 13.) Although this decision is subject to
reasonable dispute, the AAO provided a rational explanation.
Therefore, the denial of Confluences I-140 petition because Raj
did not have a foreign equivalent degree was not arbitrary and
capricious, and the court need not consider the AAOs alternative
bases for denial. Accordingly, judgment on the pleadings in favor
of defendants is warranted.
Based on the above, IT IS HEREBY ORDERED that:
1. Defendants motion for judgment on the pleadings, or
alternatively for summary judgment, [Doc. No. 11] is granted; and
2. Defendants motion to dismiss for lack of prosecution
[Doc. No. 16] is granted.
Dated: March 27, 2009
s/David S. Doty
David S. Doty, Judge
United States District Court


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