[DO NOT PUBLISH]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)

Case: 19-11511 Date Filed: 04/01/2020 Page: 1 of 11
2

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 

Case: 19-11511 Date Filed: 04/01/2020 Page: 2 of 11
3

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.” 

Case: 19-11511 Date Filed: 04/01/2020 Page: 3 of 11
4

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 

Case: 19-11511 Date Filed: 04/01/2020 Page: 4 of 11
5

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). 

Case: 19-11511 Date Filed: 04/01/2020 Page: 5 of 11
6

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 

Case: 19-11511 Date Filed: 04/01/2020 Page: 6 of 11
7

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] firstline 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.

Case: 19-11511 Date Filed: 04/01/2020 Page: 7 of 11
8

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 MartinezGonzalez, 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 

Case: 19-11511 Date Filed: 04/01/2020 Page: 8 of 11
9

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 

Case: 19-11511 Date Filed: 04/01/2020 Page: 9 of 11
10

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 

Case: 19-11511 Date Filed: 04/01/2020 Page: 10 of 11
11

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.

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