                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 04 2011

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




                            FOR THE NINTH CIRCUIT



TRI-V’S HOMES, INC.; VICTORIO                    No. 09-56494
GUICO; REGINA GUICO; CLIEN
LESTER GUICO; LESLLYN GUICO;                     D.C. No. 2:08-cv-06954-RGK-JC
LIEZEL GUICO; VIC GUICO, Jr.,

              Plaintiffs - Appellants,           MEMORANDUM *

  v.

UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                      Argued and Submitted February 7, 2011
                               Pasadena, California

Before: D.W. NELSON, REINHARDT, 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.
      Appellants Tri-V’s Homes et al. (collectively, “Tri-V”) appeal the order and

judgment issued against them and in favor of Defendants-Appellees U.S.

Department of Homeland Security et al. (collectively, “Defendants”). Tri-V’s suit

arises out of the United States Citizenship and Immigration Services’ (“USCIS”)

and the Administrative Appeals Office’s (“AAO”) rejection of Tri-V’s petition to

extend L-1 visa status for an employee, Victorio Guico (“Guico”). The district

court found that Tri-V had failed to show that, under the Administrative Procedure

Act (“APA”), the administrative agency’s denial of its extension petition was

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

the law.” We affirm.

      “In examining a district court’s decisions after a bench trial, we review the

district court’s findings of fact for clear error and its conclusions of law de novo.”

Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1067 (9th Cir. 2008). The

underlying agency decision may not be set aside “unless it is ‘arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with the law.’” Id. (quoting

5 U.S.C. § 706(2)(A)). “The agency’s factual findings are reviewed for substantial

evidence.” Family Inc. v. USCIS, 469 F.3d 1313, 1315 (9th Cir. 2006) (citations

omitted).



                                           2
      1.     We agree with Tri-V that USCIS erred in treating Tri-V’s Form I-

290B as an appeal rather than a motion to reopen or reconsider. Tri-V’s Form I-

290B was clearly marked as a motion to reopen or reconsider. USCIS was

required to issue a written decision on the motion pursuant to its regulations. 8

C.F.R. § 103.5(a)(7). Instead, USCIS did not issue a written decision and

forwarded the matter as an appeal to AAO.

      We conclude, however, that USCIS’s error was harmless. City of Sausalito

v. O’Neill, 386 F.3d 1186, 1220 (9th Cir. 2004) (“In reviewing agency action, the

APA requires that ‘due account shall be taken of the rule of prejudicial error.’”

(quoting 5 U.S.C. § 706)). On appeal, AAO did consider the amended tax return

submitted by Tri-V in its motion to reopen, and found that it failed to establish that

Tri-V and its foreign parent company were “qualifying organizations” for the

purposes of the L-1 visa extension. Because that finding alone would have been

sufficient to deny the motion to reopen, the agency’s failure to treat the motion as

such was harmless.

      2.     USCIS and AAO did not abuse their discretion in denying Tri-V’s L-1

extension application. The company’s corporate tax return failed to show that it

had foreign ownership. Further, the AAO determined that the company’s amended

tax return did not resolve the question as to why the company had filed a tax form


                                           3
“which [was] inappropriate for its purported ownership structure and which

contain[ed] averments which directly contradict[ed] its claim to be 70% owned by

the foreign employer.” The AAO found that the amended tax return was not to be

given serious weight, because it was prepared after the denial of the petition by

USCIS.

         Further, Tri-V failed to submit a copy of its Notice of Transaction Pursuant

to Corporations Code Section 25102(f), as requested by USCIS. Finally, Tri-V

failed to provide any evidence that the $10,000 cash investment originated with the

foreign parent company, even after the agency specifically requested documentary

proof.

         On this record, we cannot say that the agency’s conclusion that Tri-V failed

to meet the “qualifying organizations” requirement was arbitrary or capricious.

Because this was an independent and sufficient ground for the agency’s denial of

Tri-V’s L-1 extension application, we need not consider the agency’s two separate

grounds for denial.

         AFFIRMED.




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