Family Inc., a Washington Corporation Tae Jung Oh v. Us Citizenship and Immigration Services, an Agency of the United State Government

Tae Jung Oh appeals a summary judgment in favor of the United States Citizenship and Immigration Services (USCIS). 1 In the district court, he sought reversal of a USCIS order denying his petition for a change of status. The question before this court is whether the USCIS decision was arbitrary, capricious, or an abuse of discretion. The district court held that it was not, and we agree.

I. BACKGROUND

A native and citizen of South Korea, Oh first entered the United States as a temporary non-immigrant visitor in 1995. In 1996 his immigration status was changed to “temporary non-immigrant E2 treaty investor,” which was extended to November 1, 2005. Oh is the president of Family, Inc. (Family), a corporation that owns a dry cleaning operation that employs Oh, *1315 his wife, three pressers, and a cashier. In January 2003, the corporation filed a Form 1-140 petition on Oh’s behalf, seeking his reclassification as a “multinational manager” under the Immigration and Nationality Act (INA). The petition described Oh’s duties as (1) managing Family; (2) supervising and controlling the work of other supervisory employees (namely, Family’s manager); (3) managing an essential function of the company (namely, its overall business); (4) exercising the authority to hire and fire all Family employees as well as approving other personnel actions; (5) functioning at a senior level within the organization’s hierarchy; and (6) exercising direction over Family’s day-to-day operations.

Classification as a multinational manager requires, inter alia, that Oh prove he is operating in a “managerial capacity.” 8 U.S.C. § 1153(b)(1)(C). 2 After making findings with respect to Oh’s duties, and requesting and receiving further evidence of the role Oh plays in Family’s operations, the USCIS determined that Oh did not carry his burden of proving that he is acting in a managerial capacity within the meaning of the statute. In particular, the agency determined that in light of all the evidence submitted, including Family’s small size, Oh was likely to “be involved in the performance of routine operational activities of the business” rather than in managing the business. Oh sought judicial review of the agency’s decision, and the district court granted summary judgment to the government. Oh now appeals to this court.

II. DISCUSSION

We review the entry of summary judgment de novo. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). However, the underlying agency action may be set aside only if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir.2001) (citation omitted). The agency’s factual findings are reviewed for substantial evidence. Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003), amended by 339 F.3d 1012 (9th Cir.2003). We will not disturb the agency’s findings under this deferential standard “unless the evidence presented would compel a reasonable finder of fact to reach a contrary result.” Id. at 895 (citation omitted).

Oh’s sole assignment of error is that the USCIS exclusively and improperly relied on Family’s small size to determine that his duties do not come within the statutory meaning of managerial capacity. Oh is correct to the extent that he argues Family’s small size, standing alone, cannot *1316 justify the USCIS’ finding that he is not operating in a managerial capacity. See 8 U.S.C. § 1101(a)(44)(A)(ii) (allowing for supervision of other supervisory employees or management of an essential organizational function to satisfy one element of establishing managerial duties). However, Oh’s broader argument is precluded by the plain language of the agency’s denial of the petition.

Having considered all of the evidence before it, the agency found, as a fact, that Oh was likely to be involved with performing ordinary operational activities rather than engaging primarily in managerial duties. We have considered the record evidence in this case, and it does not compel a contrary conclusion. The company’s organizational chart showed Oh as president, his wife as the manager, and four other employees. The organization included one corporate shareholder in Korea, qualifying this small-scale operation as an international business. However, the facts in the record do not compel the conclusion that Oh was primarily engaged in managerial duties, as opposed to ordinary operational activities alongside Family’s five other employees. Furthermore, the agency did not err by considering Family’s size as one factor in its determination. Other courts faced with this question have determined that the USCIS may properly consider an organization’s small size as one factor in assessing whether its operations are substantial enough to support a manager. See, e.g., Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C.Cir.1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir.1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F.Supp.2d 25, 29 (D.D.C.2003). We agree with these courts, and hold that the agency’s finding that Oh was not engaged primarily in managerial duties is supported by substantial evidence. The agency’s denial of the petition was neither arbitrary or capricious, nor an abuse of discretion. Thus, the district court’s entry of summary judgment in the government’s favor was not error.

AFFIRMED.