                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 19 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TAIYANG FOODS INC., a Washington                 No. 10-35942
corporation,
                                                 D.C. No. 2:10-cv-00109-JLR
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, an agency
of the United States government,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                             Submitted July 15, 2011 **
                               Seattle, Washington

Before: GILMAN,*** CLIFTON, and N.R. SMITH, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
               The Honorable Ronald Lee Gilman, Senior Circuit Judge for the Sixth
Circuit, sitting by designation.
      Taiyang Foods Inc. appeals the district court’s summary judgment in favor

of the United States Citizenship and Immigration Service (USCIS) in Taiyang

Foods’ Administrative Procedure Act case arising from the USCIS’s denial of

Taiyang Foods’ Form I-140 petition for alien worker. The district court held that

the record did not show that USCIS’s decision was arbitrary and capricious. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1.    The USCIS decision, finding that Taiyang Foods did not meet its burden of

proof that it had the ability to pay the proffered wage at the time the priority date

was established (2002), was not arbitrary and capricious. Taiyang Foods admitted

that it could not show that it was able to pay the proffered wage for 2002. Because

Taiyang Foods was newly created at that time and did not have a record of

profitable performance in prior years, it could not demonstrate that 2002 was

anomalous. Thus, the USCIS was not required to address whether Matter of

Sonegawa, 12 I. & N. Dec. 612 (BIA 1967), was applicable. Sonegawa is

applicable to this case only if the failure of Taiyang Foods to pay the proffered

wage was an anomaly amongst profitable years.

2.    The USCIS’s decision to disregard the loans by Taiyang Foods to its sole

shareholder as assets available for payment of the proffered wage to the I-140


                                           2
beneficiary in 2003 and 2004 was also not arbitrary and capricious. We agree with

the assessment of the district court:

              Even if Taiyang Foods had established an ability to pay in
      2002, however, USCIS would not have considered the loans to Mr.
      Shin because (1) they were not evidenced by any formal documents;
      (2) there was no evidence, other than Mr. Shin’s own statements, that
      the loans were payable on demand—which would be required for the
      loans to be considered a current asset; and (3) there was no evidence
      that if Taiyang Foods called the loans, Mr. Shin would have the ability
      to pay them. Based on the arguments set forth by USCIS, the court
      cannot find that it abused its discretion by failing to consider Taiyang
      Foods’s loans to Mr. Shin.

      AFFIRMED.




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