Asse International, Inc. v. Michael Pompeo ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 29 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASSE INTERNATIONAL, INC., No. 18-55979
Plaintiff-Appellant, D.C. No.
8:14-cv-00534-CJC-JPR
v.
MICHAEL POMPEO, Secretary of State of MEMORANDUM*
the United States; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted January 10, 2020
Pasadena, California
Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,** District
Judge.
ASSE International, Inc. argues that the Department of State (the
Department) violated the Administrative Procedure Act (APA) and regulations
implementing the United States Exchange Visitor Program (EVP) when it
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
Page 2 of 5
sanctioned ASSE for conduct involving one of ASSE’s exchange visitors, Noriko
Amari. We reverse on the basis of the APA violation and remand.
1. The Department’s decision to sanction ASSE was arbitrary and
capricious in one critical respect. The Department sanctioned ASSE based in part
on the agency’s finding that ASSE committed acts of omission or commission
which had or could have had the effect of endangering Amari’s health, safety, or
welfare. The Department based that finding, in part, on the decision by the
Department of Homeland Security (DHS) to grant Amari a T visa, a form of relief
available to individuals who have been subjected to human trafficking. See 8
U.S.C. § 1101(a)(15)(T)(i)(I); 22 U.S.C. § 7102(11)(B). But the Department’s
own Bureau of Diplomatic Security conducted a six-month investigation of the
circumstances surrounding Amari’s participation in the EVP, which included at
least one in-person interview with Amari. The Bureau of Diplomatic Security
concluded that she had not been subjected to human trafficking and had instead
conspired to commit visa fraud.
Given those conflicting determinations, the Department was required to
offer a reasoned explanation for why it decided to credit DHS’s determination over
the conclusion reached by the Bureau of Diplomatic Security. Yet the Department
never received or reviewed any of the information underlying DHS’s decision to
grant Amari a T visa. And by its own admission, it never “considered, directly or
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indirectly, the details or results of [the Bureau of Diplomatic Security]’s visa fraud
investigation or evidence pertaining to that investigation.” As a result, the
Department had no basis for concluding that DHS’s determination was more
reliable than the conclusion reached by the Bureau of Diplomatic Security and
accordingly should be given greater weight. The Department’s failure to address
in any respect the results of the Bureau of Diplomatic Security’s investigation
violated the agency’s duty under the APA to “examine the relevant data and
articulate a satisfactory explanation for its action including a rational connection
between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation
marks omitted); see 5 U.S.C. § 706(2)(A).
We cannot be sure that the Department’s violation of the APA was harmless.
See Cal. Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1092 (9th Cir.
2011). Although the Department found multiple regulatory violations, it expressly
based its sanction “upon the fact that DHS considers Ms. Amari to have shown
sufficient evidence of human trafficking while participating in ASSE’s exchange
visitor program.” We have no way of knowing whether the agency would have
imposed the same sanction against ASSE based solely on the remaining violations
it found. Given that the human trafficking violation represented the most serious
allegation of misconduct, we think the most prudent course is to remand this matter
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to the agency so that it may decide whether to maintain the sanction it has imposed
against ASSE.
2. The plain language of 22 C.F.R. § 62.22(g) forecloses ASSE’s argument
that a sponsor may not be held strictly liable for regulatory violations committed
by third parties with whom it partners. Section 62.22(g)(1) allows sponsors like
ASSE to engage third parties “to assist them in the conduct of their designated
training and internship programs.” But it expressly provides that “[a] sponsor’s
use of a third party does not relieve the sponsor of its obligations to comply with
and to ensure third party compliance with Exchange Visitor Program regulations.”
To enforce that command, the provision further provides that “[a]ny failure by any
third party to comply with the regulations set forth in this Part . . . will be imputed
to the sponsors engaging such third party.” By virtue of this imputation rule, any
violations committed by third parties for whom a sponsor like ASSE is responsible
are deemed to be the sponsor’s own violations, and thus may form the basis for
sanctions imposed against the sponsor under 22 C.F.R. § 62.50.1We reverse the district court’s order granting summary judgment to
defendants and remand with instructions to remand the matter to the agency for
further consideration consistent with this disposition.
1
In light of our disposition above, we need not address ASSE’s argument that the
Department improperly imputed to ASSE regulatory violations concerning the
trafficking of Amari committed by third parties for whom it was not responsible.
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REVERSED and REMANDED.