Boi Na Braza Atlanta v. Upchurch, et al

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-11363
Summary Calendar
______________
BOI NA BRAZA ATLANTA LLC,
Plaintiff-Appellant,
VERSUS
EVELYN M. UPCHURCH,
DIRECTOR, TEXAS SERVICE CENTER;
MICHAEL CHERTOFF,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:04-CV-2007
_________________________
Before SMITH, GARZA, and PRADO, Circuit
Judges.
PER CURIAM:*
Boi Na Braza Atlanta LLC appeals a judg-
ment that Citizen and Immigration Services
(“CIS”) properly denied its petition on behalf
of twenty meat-specialists, employed at an af-
filiated restaurant in Brazil, for “L-1B” visas
for temporary transfer to its newly-opened At-
lanta franchise. A denial by the CIS of a visa
application may be overturned only if the
plaintiff demonstrates that the ruling was “arbi-
trary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Nat’l
Hand Tool Corp. v. Pasquarell, 889 F.2d
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 22, 2006
Charles R. Fulbruge III
Clerk

-- 1 of 2 --

2
1472, 1475 (5th Cir. 1989).
Agency action is arbitrary or capricious
“only when it is so implausible that it could not
be ascribed to a difference in view or the
product of agency expertise.” Wilson v. Unit-
ed States Dep’t of Agric., 991 F.2d 1211,
1215 (5th Cir. 1993). The decision need only
have a rational basis, and the reviewing court
need not have come to the same conclusion.
Id. The plaintiff bears the burden of proving
eligibility. Nat’l Hand Tool, 889 F.2d at
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
of its meat-specialist transferees. In particular,
the agency could rationally have concluded
that plaintiff did not provide the CIS with suf-
ficient information about the beneficiaries’
skills and abilities, nor did it demonstrate that
the beneficiaries’ knowledge of Brazilian
cooking was sufficiently specialized to merit
L-1B status.
For the above reasons, and for the reasons
stated by the district court in its excellent opin-
ion, we AFFIRM.
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 of 2 --