Sixth Circuit Finds Beneficiary Has Standing to Appeal - Articles

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Posted by: Christy Gibson on Dec 16, 2013

By Eliza Epps*

Introduction

In the employment immigration process, one of the underlying questions is who receives the benefit – the employer or the employee?  A prevailing view is that Congress intended a mutual benefit to both the employer and employee.  The U.S. Court of Appeals for the Sixth Circuit held in Patel v. United States Citizenship and Immigration Services, No-12-1962 (Oct.11, 2013), an alien beneficiary of an employment-based immigration petition has prudential and constitutional standing to challenge the USCIS’s denial of such petition as arbitrary and capricious.  This holding follows a trend in standing determinations across circuit courts of appeals, but it has several glaring faults. 

Facts of the Case

The USCIS denied Shasikant Patel’s petition for an employment visa.  Shasikant Patel filed suit against the USCIS in District Court under the Administrative Procedure Act (APA) claiming that the USCIS’s denial was arbitrary and capricious. In their denial, the USCIS cited Patel’s current sponsor’s failure to file their own labor certification application with the Department of Labor (DOL) (while relying on a previous one for another company) as their reason for denial. The District Court determined Patel did not have prudential standing to bring such a challenge to the USCIS’s denial.

The Sixth Circuit detailed the three-step process for obtaining permanent residence based on employment, which include the employer’s application for a labor certification from the DOL, the employer’s petition to the USCIS on behalf of the alien beneficiary, and the alien’s application to adjust status.

Prudential Standing

Standing to bring suit is a fundamental issue in all cases.  Prudential standing is defined in the APA as whether the party is “adversely affected or aggrieved by agency action.”[i]   A party is adversely affected or aggrieved if the interest he seeks to protect is arguably within the zone of interests to be protected or regulated by the statute that he says was violated.[ii]  To determine the zone of interests, courts look at the Congressional purpose and do not deem the test to be demanding on parties arguing that their interest is in the zone of interests intended.

The Sixth Circuit reversed the District Court stating Patel has prudential standing to challenge the USCIS’s decision.  They did this by referencing language in the code that makes employment visas available to the immigrant, rather than his employer. Thus, the alien beneficiary has a direct stake in the outcome of an employment-based petition.

The Sixth Circuit also discussed the trend among other circuits.  It noted decisions from three other circuits that have granted the alien beneficiary prudential standing in similar employment-based cases.  They concluded this analysis by saying that “the alien, ultimately, is the one who is entitled to the employment visa.”  Patel v. USCIS, at *7.  This marks a shift away from mutuality of benefit towards a focus on the alien beneficiary’s benefit.   

Constitutional Standing

The Sixth Circuit also found Patel had constitutional standing to challenge the USCIS. The Court stated Patel’s injury was that he “lost a significant opportunity to receive an immigrant visa,” not merely that his petition was denied.  Id. at *7.  In addition, the Court stated the “lost opportunity is itself a concrete injury – and a favorable decision would redress it.” Id. at *8.  By characterizing the injury as a lost opportunity for consideration, instead of as a denial in the process, the Court embodied a trend towards highlighting the alien beneficiary in employment-based immigration, instead of the employer.

This re-characterization appears faulty because it effectively re-characterizes the immigration process and potentially bypasses the legal steps for employment-based immigration.  It does so by recognizing an injury that could occur before the USCIS actually becomes involved. 

Detriment of Having a Policy Based Legal Standard

This trend among circuits establishes a legal standard that is largely policy based. Having a trend-based appellate standard that grants prudential standing in these types of challenges to the USCIS, the courts demonstrate a disconnect between themselves and the agency law they are interpreting.  While it may be a sound understanding of agency law under the APA, the Court does not recognize just how different immigration law is from other types of agency law.  Or, it recognizes this difference, and bypasses it.

Conclusion

It is not clear that this grant of prudential standing (and also constitutional standing in this case) has a practical function.  There are still several hurdles that Patel must overcome in order to actually prove the USCIS’s denial was arbitrary and capricious.  His ultimate remedy is also not clear.  Even if he proves the USCIS’s denial was arbitrary and capricious, his remedy can only be granted by the USCIS as the denial at issue here is for the first step of the process.  Ultimately, this decision follows a trend among circuits, but this trend is just that – a surface trend that could change depending on a Court’s understanding of the USCIS and immigration law at the time.


i  5 U.S.C. §702

ii  Match-E-Be-Nash-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199, 2210 (2012).

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Eliza Epps is an associate attorney at the Olsen Law Firm in Chattanooga, Tennessee. She is an alumna of William and Mary Law School and Sewanee: The University of the South. Eliza serves as a board member for SETLAW (Southeast Tennessee Lawyers Association for Women). She may be reached at eepps@tlolaw.com or (423) 648-9390.