                           NOT FOR PUBLICATION                            FILED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
                                                                           Page 3 of 5

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
                                                                            Page 4 of 5

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. § 62.50.1

      We 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.
                         Page 5 of 5

REVERSED and REMANDED.
