Chu Investment, Inc. v. Mukasey

concurring in part and dissenting in part:

I find no fault with the majority’s analysis of the Director’s decision regarding the 1-140 visa. However, the decision of the Administrative Appeals Office (“AAO”) with respect to the closely related 1-129 visa application is also relevant to the outcome of this case. So too is the fact that Chu failed to exhaust its administrative remedies with respect to the 1-140 visa.

Both the 1-129 and the 1-140 visa applications involve the details of Yu’s proposed work for Chu as general manager of the Burger King restaurant in Canoga Park, California, and the legal relationship of Chu to Julong. Chu submitted essentially the same job description for Yu for each application, and basically the same documentation of the relationship between Chu and Julong. The exhibit lists attached to Chu’s 1-140 application and 1-129 application, although not identical, are for the most part duplicative. 1 Moreover, at oral *938 argument when asked if the two visas involved the same underlying facts, Chu did not contest that the underlying facts are the same. The legal standards for the two visas are in substantial part identical.

With respect to the 1-129…

*936 MEMORANDUM ***

Ze-Qiang Yu (“Yu”) owns a Chinese company, Julong Enterprises (“Julong”). Julong bought a fifty percent interest in Chu Investment (“Chu”), which owns a Burger King restaurant in Canoga Park, California. Chu sought both an 1-140 visa and an 1-129 visa for Yu to allow him to come to the United States as an international manager to manage the Burger King restaurant. The 1-140 immigrant visa would have entitled Yu to seek permanent residence in the United States, while the 1-129 non-immigrant intracompany transfer visa would have permitted Yu to work in the United States for only a limited period of time. The Director of the California Sendee Center of the Immigration and Naturalization Service, now the Citizen and Immigration Services, denied first the 1-140 visa and subsequently the 1-129 visa.

Chu chose to seek judicial review of the denial of the 1-140 visa in the United States District Court for the Central District of California pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 , alleging that the denial was arbitrary and capricious. The APA permits judicial review of agency decisions when, as here, no law or regulation requires…