Boi Na Braza Atlanta LLC v. Upchurch

United States Court of Appeals
In the Fifth Circuit
FILED
United States Court of Appeals August 22, 2006
for the Fifth Circuit Charles R. Fulbruge III
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Clerk
m 05-11363
Summary Calendar
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BOI NA BRAZA ATLANTA LLC,
Plaintiff-Appellant,
VERSUS
EVELYN M. UPCHURCH,
DIRECTOR, TEXAS SERVICE CENTER;
MICHAEL CHERTOFF,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
m 3:04-CV-2007
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Before SMITH, GARZA, and PRADO, Circuit ment that Citizen and Immigration Services
Judges. (“CIS”) properly denied its petition on behalf
of twenty meat-specialists, employed at an af-
PER CURIAM:* filiated restaurant in Brazil, for “L-1B” visas
for temporary transfer to its newly-opened At-
Boi Na Braza Atlanta LLC appeals a judg- lanta franchise. A denial by the CIS of a visa
application may be overturned only if the
plaintiff demonstrates that the ruling was “arbi-
*
Pursuant to 5TH CIR. R. 47.5, the court has trary, capricious, an abuse of discretion, or
determined that this opinion should not be pub- otherwise not in accordance with law.” Nat’l
lished and is not precedent except under the limited Hand Tool Corp. v. Pasquarell, 889 F.2d
circumstances set forth in 5TH CIR. R. 47.5.4.
1472, 1475 (5th Cir. 1989). of its meat-specialist transferees. In particular,
the agency could rationally have concluded
Agency action is arbitrary or capricious that plaintiff did not provide the CIS with suf-
“only when it is so implausible that it could not ficient information about the beneficiaries’
be ascribed to a difference in view or the skills and abilities, nor did it demonstrate that
product of agency expertise.” Wilson v. Unit- the beneficiaries’ knowledge of Brazilian
ed States Dep’t of Agric., 991 F.2d 1211, cooking was sufficiently specialized to merit
1215 (5th Cir. 1993). The decision need only L-1B status.
have a rational basis, and the reviewing court
need not have come to the same conclusion. For the above reasons, and for the reasons
Id. The plaintiff bears the burden of proving stated by the district court in its excellent opin-
eligibility. Nat’l Hand Tool, 889 F.2d at ion, we AFFIRM.
1475.1
To establish eligibility for an “L-1B,” or
non-immigrant intra-company transferee visa,
the transferee must serve his employer, or a
subsidiary or affiliate thereof, in a capacity that
is “managerial, executive, or involves spe-
cialized knowledge.” 8 U.S.C. § 1101-
(a)(15)(L). The issue before the CIS was
whether the meat-specialists employed by
plaintiff’s parent company possess “specialized
knowledge” as defined in the statute, and the
applicable regulations, adjudicatory decisions,
and memoranda of the agency.
We agree with the district court that we
need not resolve the issue whether Chevron
deference applies to agency decisions respect-
ing L-1B visa applications, because even under
the less deferential Skidmore standard, the
agency’s decision plainly passes muster. After
an independent review of the briefs and the
record, we agree that CIS did not abuse its
discretion or act in an arbitrary or capricious
manner by concluding that plaintiff had failed
to show “specialized knowledge” on the part
1
See also 8 U.S.C. § 1361 (“Whenever any
person makes application for a visa . . . the burden
of proof shall be upon such person to establish that
he is eligible to receive such visa”).
2