Hamal v. U.S. Dep't of Homeland Sec.
| Decision Date | 03 June 2020 |
| Docket Number | Civil Action No.: 19-2534 (RC) |
| Parties | BIRENDRA BAHADUR HAMAL, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
This case concerns Plaintiff's petition asking the United States Citizenship and Immigration Services ("USCIS") for classification as an individual of extraordinary ability in the arts. Plaintiff is a native and national of Nepal who sought this classification through Form I-140 based on his accomplishments and career as a director of drama and film. Compl. ¶¶ 16-18. USCIS denied Plaintiff's petition and later denied an appeal and successive motions to reconsider and reopen. Id. at ¶¶ 27-30. Plaintiff filed suit on June 21, 2019 seeking review of the denial under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and the U.S. Constitution, claiming the denial constitutes arbitrary and capricious agency action and a violation of Plaintiff's right to Due Process. Compl. ¶¶ 31-39. Defendants now move to dismiss under Rule 12(b)(6), arguing that the Complaint fails to state a plausible claim for relief. See Defs.' Mot. Dismiss ( ), ECF No. 10; Defs.' Mem. Supp. Mot. Dismiss ( ), ECF No. 10-1. For the reasons set forth below, the Court grants in part and denies in part Defendants' motion.
The Immigration and Nationality Act ("INA") allocates a certain number of visas for immigrants possessing "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." 8 U.S.C. § 1153(b)(1)(A)(i). The "extraordinary ability" designation is "extremely restrictive." Visinscaia v. Beers, 4 F. Supp. 3d 126, 131 (D.D.C. 2013) (quoting Lee v. Ziglar, 237 F. Supp. 2d 914, 919 (N.D. Ill. 2002). While the INA does not define "extraordinary ability," under federal regulations, the term "means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). Perhaps unsurprisingly, courts have found that even highly accomplished individuals fail to win this designation. See Kazarian v. USCIS, 596 F.3d 1115, 1122 (9th Cir. 2010) (); Lee, 237 F. Supp. 2d at 918 ().
A petitioner seeking this designation must first submit evidence of either a one-time achievement, such as a major internationally recognized award, 8 C.F.R. § 204.5(h)(3), or evidence of at least three of the ten other types of achievements specified by regulation, 8 C.F.R. § 204.5(h)(3)(i)-(x). After an initial showing, USCIS then makes a "final merits determination," weighing the totality of the evidence to determine if the petitioner has demonstrated extraordinary ability. See Visinscaia, 4 F. Supp. 3d at 131-32 () (citing Kazarian, 596 F.3d at 1120-21). While the D.C. Circuit has notdiscussed the substance of this two-step approach, the method has been adopted by USCIS. See USCIS, Policy Mem. 602-0005.1, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update AD11-4 (2010).1
Plaintiff's Complaint does not specify the exact procedural history of his petition's denial and subsequent appeals, but the Administrative Appeals Office ("AAO") Decisions attached to the Complaint and Defendants' Motion to Dismiss provide some context.2
The Director of the Nebraska Service Center denied Plaintiff's initial petition based on a finding that Plaintiff did not "satisfy the initial evidentiary criteria applicable to individuals of extraordinary ability, either a major, internationally recognized award or at least three of ten possible forms of documentation." AAO Decision at 1 (Oct. 1, 2018), ECF No. 10-3. Plaintiff appealed, submitting additional documentation and arguing that he did, in fact, meet at least three of the ten criteria. AAO Decision at 1 (Mar. 6, 2018), ECF No. 10-2. After a de novo review of the record, the AAO determined that "the record supports a finding that the Petitionermeets three criteria, but it does not demonstrate that he has sustained national or international acclaim or is among the small percentage at the top of his field." Id. at 2. Specifically, the AAO found that Plaintiff had established the artistic display criterion, 8 C.F.R. 204.5(h)(3)(vii), the judging criterion, 8 C.F.R. 204.5(h)(3)(iv), and the high salary criterion, 8 C.F.R. 204.5(h)(3)(ix). Id. However, after considering and analyzing the totality of the evidence submitted by Plaintiff, the AAO dismissed the appeal. Id. at 2-6.
Plaintiff then filed motions to reconsider and to reopen his case. See AAO Decision at 2 (Oct. 1, 2018). In support of this second appeal, Plaintiff submitted additional evidence relating to awards he had received alongside copies of his previously submitted evidence. Id. After another de novo review of the record, the AAO concluded that Plaintiff had "not established that [the] previous decision was incorrect based on the record . . . nor [did] his new evidence on motion demonstrate his eligibility for the benefit sought." Id. at 5. The AAO considered a third appeal on a motion to reconsider but denied the motion after Plaintiff "present[ed] a nearly identical brief with previously submitted documentation." AAO Decision at 2 (May 15, 2019), ECF No. 10-4. Plaintiff filed suit on June 21, 2019, shortly after the third AAO decision issued. At present, the full administrative record is not before the Court.
The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim" in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) "tests the legal sufficiency of a complaint" under that standard; it asks whether the plaintiff has properly stated a claim. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). "To survive a motion to dismiss, acomplaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555-56 (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555. However, a court considering a motion to dismiss presumes that the complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).
Under the APA, a plaintiff challenging agency action can prevail if a court finds that the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). This standard of review encourages courts to defer to the agency's expertise. See Motor Vehicle Mfrs. Ass'n of United States, Inc., v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Agency action is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C.Cir. 2014) (quoting State Farm, 463 U.S. at 43). Rather than resolving factual issues, the district court's role in reviewing agency action "is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Bates v. Donley, 935 F. Supp. 2d 14, 22-23 (D.D.C. 2013) (quoting Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007)). To state a proper claim under the APA, a plaintiff must allege facts that, if true, plausibly establish that the agency action is arbitrary and capricious. See Akpan v. Cissna, 288 F. Supp. 3d 155, 165 (D.D.C. 2018); XP Vehicles, Inc. v. Dep't of Energy, 118 F. Supp 3d 38, 78 (D.D.C. 2015); James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 284 (D.C. Cir. 2000).
Defendants argue that the Complaint should be dismissed because Plaintiff offers no factual allegations that show the agency "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Defs.' Mem. at...
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