              Case: 19-11511    Date Filed: 04/01/2020   Page: 1 of 11



                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 19-11511
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 0:16-cv-62522-WPD



MARLLANTAS, INC.,
US MAR INVESTMENTS, LLC,
OSCAR ORLANDO MAYORGA RAMOS,

                                                              Plaintiffs-Appellants,


                                       versus


DIRECTOR LEON RODRIGUEZ,
U.S. Citizenship and Immigration Services, in his official capacity,

                                                               Defendant-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (April 1, 2020)
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Before WILLIAM PRYOR, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM:

      Marllantas, Inc. (“Marllantas”), a Guatemalan company, US Mar

Investments, LLC (“Mar”), a United States-based subsidiary of Marllantas, and

Oscar Orlando Mayorga Ramos, an employee of Marllantas and Guatemalan

citizen, appeal (1) the district court’s summary judgment order upholding the

United States Citizenship and Immigration Services’s (“USCIS”) denial of a visa

for Ramos and (2) the district court’s denial of their cross-motion to set aside

USCIS’s order denying the visa. On appeal, the plaintiffs (collectively

“Marllantas”) first argue that the certified administrative record (“CAR”) was

incomplete and that the district court erred in failing to order USCIS to supplement

the record with documents pertaining to its decision to reopen the visa petition

after initially denying it. Marllantas further argues that USCIS’s denial of its visa

petition was arbitrary and capricious under the Administrative Procedures Act

(“APA”), 5 U.S.C. § 706(2)(A), and that USCIS violated the Due Process Clause

by holding it to a higher burden of proof than permitted by statute. We will

address each point in turn.

                                          I

      We review a district court’s discovery determinations regarding expansion

of an administrative record for abuse of discretion. See Preserve Endangered


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Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1246–

47 (11th Cir. 1996) (“PEACH”) (holding that the district court “did not abuse its

discretion by granting a protective order prohibiting any discovery” beyond the

administrative record); see also Alabama-Tombigbee Rivers Coal. v. Kempthorne,

477 F.3d 1250, 1262 (11th Cir. 2007) (holding that the “district court did not abuse

its discretion in disallowing . . . discovery” beyond the administrative record).

      “The focal point for judicial review of an administrative agency’s action

should be the administrative record.” PEACH, 87 F.3d at 1246. The agency must

produce a complete record for the court to review. See Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 419–20 (1971), abrogated on other

grounds by Califano v. Sanders, 430 U.S. 99, 104–07 (1977).

       “Though certain circumstances may justify the district court going beyond

the administrative record, it is not generally empowered to do so.” Kempthorne,

477 F.3d at 1262. This “principle reflects the recognition that further judicial

inquiry into executive motivation represents a substantial intrusion into the

workings of another branch of Government and should normally be avoided.”

Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2573 (2019) (quotation marks

and quotation omitted). “[I]f the reviewing court simply cannot evaluate the

challenged agency action on the basis of the record before it, the proper

course . . . is to remand to the agency for additional investigation or explanation.”


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Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). The district court

may order discovery beyond the administrative record only where there is “a

strong showing of bad faith or improper behavior” by the agency. Dep’t of

Commerce v. New York, 139 S. Ct. at 2573–74 (quotation marks and quotation

omitted).

      The district court did not err by failing to order USCIS to supplement the

record. See PEACH, 87 F.3d at 1246–47. Ordering USCIS to supplement the

record with documents pertaining to its reopening of the visa petition would have

amounted to ordering discovery beyond the CAR. Such “inquiry into executive

motivation” would be justified only if Marllantas made a strong showing of bad

faith. See Dep’t of Commerce v. New York, 139 S. Ct. at 2573 (quotation marks

and quotation omitted). Marllantas did not make a showing of bad faith in the

district court. Nor has Marllantas, on appeal, pointed to anything in the CAR

indicating that USCIS acted in bad faith. Accordingly, the district court properly

declined to order USCIS to produce the documents regarding its decision to reopen

the visa petition.

      Marllantas does not even attempt to explain how it made the required

“strong showing of bad faith or improper behavior.” Id. at 2574. Instead, it makes

two inapposite arguments. First, it argues that the district court necessarily found

the administrative record incomplete when it ordered USCIS to produce a privilege


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log. But the district court ultimately concluded just the opposite. It ordered the

production of a privilege log only “in an abundance of caution,” and once it had

the privilege log it was plainly satisfied that the record was complete.

Accordingly, Marllantas’s first argument fails.

      Marllantas’s second argument—that USCIS waived any claim of privilege

“by putting its mindset” at issue in its answer where it claimed that it undertook the

decision-making process in good faith—fairs no better. This argument is

unavailing because the district court denied discovery not only on privilege

grounds but also on the independently adequate ground that discovery outside the

record is normally unavailable in APA cases. As a result, even if the agency has

somehow waived privilege, the documents in the privilege log are still

undiscoverable, and the district court was right to deny Marllantas’s motion to

compel. Accordingly, we affirm that court’s ruling.

                                          II

      We review the district court’s grant of summary judgment de novo,

“apply[ing] the same legal standards that bound the district court.” Shuford v. Fid.

Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).


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      Under the APA, we may “set aside [an] agency action” that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A). Our review “is exceedingly deferential” and limited “to

ensur[ing] that the agency came to a rational conclusion.” Sierra Club v. Van

Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (quotation omitted). We may not

“conduct [our] own investigation [or] substitute [our] own judgment for the

administrative agency’s decision.” Id. (quoting PEACH, 87 F.3d at 1246). Rather,

we must consider whether the agency’s decision “was based on a consideration of

the relevant factors and whether there has been a clear error of judgment.” Sierra

Club v. Johnson, 436 F.3d 1269, 1273–74 (11th Cir. 2006) (quoting Fund for

Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996)). An agency action is

entitled to such deference “even in the context of summary judgment.” PEACH,

87 F.3d at 1246.

      Pursuant to 8 U.S.C. § 1153, certain “employment-based immigrants” are

given preference for visas. 8 U.S.C. § 1153(b)(1). For instance, the United States

gives preference to “multinational executives and managers” of companies who

seek to enter the United States to act as an executive or manager for the same

company or a subsidiary of the company. Id. § 1153(b)(1)(C). To obtain a visa on

that basis, the applicant must present evidence showing, in relevant part, that (1)

the visa “beneficiary has been employed for [at least] one continuous year in the


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three year period preceding the filing of the petition in an executive or managerial

capacity,” and (2) the new office, “within one year of the approval of the petition,

will support an executive or managerial position.” 8 C.F.R. § 214.2(l)(3)(v)(B)–

(C). An employee acts in a “managerial capacity” when he primarily:

      (i) manages the organization, or a department, subdivision, function,
      or component of the organization; (ii) supervises and controls the
      work of other supervisory, professional, or managerial employees, or
      manages an essential function within the organization, or a department
      or subdivision of the organization; (iii) if another employee or other
      employees are directly supervised, has the authority to hire and fire or
      recommend those as well as other personnel actions (such as
      promotion and leave authorization) or, if no other employee is
      directly supervised, functions at a senior level within the
      organizational hierarchy or with respect to the function managed; and
      (iv) exercises discretion over the day-to-day operations of the activity
      or function for which the employee has authority.

8 U.S.C. § 1101(a)(44)(A). Note that—somewhat counterintuitively—“[a] first-

line supervisor is not considered to be acting in a managerial capacity merely by

virtue of the supervisor’s supervisory duties unless the employees supervised are

professional.” Id. A beneficiary works in an “executive capacity” when he

primarily:

      (i) directs the management of the organization or a major component
      or function of the organization; (ii) establishes the goals and policies
      of the organization, component, or function; (iii) exercises wide
      latitude in discretionary decision-making; and (iv) receives only
      general supervision or direction from higher level executives, the
      board of directors, or stockholders of the organization.




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Id. § 1101(a)(44)(B). The burden of proof is on the petitioner to make the requisite

showing by a preponderance of the evidence. 8 U.S.C. §1361; Matter of Martinez-

Gonzalez, 21 I. & N. Dec. 1035, 1036 (B.I.A. 1997).


      The district court did not err in granting summary judgment in favor of

USCIS because the agency’s visa denial was not “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see

Shuford, 508 F.3d at 1341. Specifically, a review of the CAR shows that

Marllantas failed to provide concrete examples of (1) Ramos’s managerial or

executive role at Marllantas in the three years prior to its filing of the visa petition,

or (2) how Mar would support a primarily managerial or executive position within

one year after the grant of the visa petition. 8 U.S.C. § 1101(a)(44)(A)–(B); see

also 8 C.F.R. § 214.2(l)(3)(v)(B)–(C). USCIS relied on both grounds in denying

Marllantas’s petition, and they are both independently adequate reasons to deny a

petition. We consider each in turn.


      USCIS was unconvinced that Ramos had worked in a qualifying capacity for

at least one year during the last three years in part because Marllantas failed to

present evidence that Ramos’s managerial and executive duties were his primary

duties. USCIS noted that many of his duties did not qualify as either managerial or

executive and that Marllantas presented no evidence that would allow USCIS to


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determine how Ramos’s time was divided between his managerial (or executive)

and non-managerial duties. Marllantas does not dispute its failure to present any

such evidence. Instead, it merely insists—without citation to authority—that it

should not have been required provide evidence about the “numerical percentage”

of Ramos’s time that his various duties occupied. But in the absence of such

evidence USCIS had little or no reason to conclude Ramos engaged primarily in

qualifying managerial and executive duties as required by the statute. Certainly,

the agency’s opposite determination could not fairly be called arbitrary or

capricious. Accordingly, we must affirm on these grounds alone.

      But USCIS’s decision also rest on another independently sufficient ground.

USCIS was not convinced that Mar would support a managerial or executive

employee within a year largely because it saw no evidence that Ramos would be

relieved of his non-qualifying duties within that time. Although the agency noted

that the first proposed organizational chart submitted by Marllantas included a

lawyer and an accountant—who would count as professionals under the statute—it

further noted that there was no evidence of how Ramos “would be supervising and

controlling their work.” Moreover, a subsequently submitted organizational chart

excluded these professionals. And, following Board of Immigration Appeals

precedent, USCIS properly placed the burden on “the petitioner to resolve any

inconsistencies in the record by independent objective evidence.” See Matter of


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Ho, 19 I. & N. Dec. 582, 591 (B.I.A. 1988). USCIS therefore did not act

improperly in discounting Marllantas’s mere assertion that Ramos would be

relived from non-qualifying duties and be able to focus on executive work within a

year—evidence which was neither independent nor objective. See id.

      On appeal, Marllantas does not point to any particular evidence ostensibly

overlooked by USCIS or the district court which would tend to establish that

Ramos would be working primarily as a manager or executive within a year.

Marllantas merely claims that it offered evidence of the managerial and executive

duties to be entrusted to Ramos. The only concrete duty that Marllantas says it

proved was the ability of Mr. Ramos to “open, close, and administer bank

accounts.” But the mere fact that Ramos would have a qualifying duty does

nothing to prove that he would be engaged primarily in qualifying duties. Hence,

nothing in the record suggests that USCIS decision was not “based on a

consideration of the relevant factors” or that it committed any “clear error of

judgment.” Johnson, 436 F.3d at 1273–74.

      Finally, we note that Marllantas has abandoned its due process claim by

raising it in a perfunctory manner in its brief, without accompanying citations to

the record or legal authority. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d

678, 681, 683 (11th Cir. 2014) (explaining that “an appellant abandons a claim




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when he either makes only passing references to it or raises it in a perfunctory

manner without supporting arguments and authority”).

      We find no reason to upset the agency’s reasoned decision. Accordingly, we

conclude that the district court properly granted summary judgment to USCIS, and

we affirm.

      AFFIRMED.




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