Kazarian v. U.S. Citizenship and Immigration

• Citation: 596 F.3d 1115
• Decision Date: 04 March 2010
• Docket Number: No. 07-56774.,07-56774.
• Parties: Poghos KAZARIAN, Plaintiff-Appellant, v. US CITIZENSHIP AND IMMIGRATION SERVICES, a Bureau of the Department of Homeland Security; John Does, 1 through 10, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

596 F.3d 1115

Poghos KAZARIAN, Plaintiff-Appellant, v. US CITIZENSHIP AND IMMIGRATION SERVICES, a Bureau of the Department of Homeland Security; John Does, 1 through 10, Defendants-Appellees.

No. 07-56774.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2008.

Filed March 4, 2010.

Bernard P. Wolfsdorf, Cynthia Lucas, Andrew Stevenson, Wolfsdorf Immigration Law Group, Santa Monica, CA, for plaintiff-appellant Poghos Kazarian.

Craig W. Kuhn and Elizabeth J. Stevens, Office of Immigration Litigation, Department of Justice, Washington, D.C.; for defendant-appellee U.S. Citizenship & Immigration Services.

Nadine Wettstein, American Immigration Council, Washington, DC, for Amici Curiae American Immigration Council, NAFSA: Association of International Educators.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. CV-07-03522-R-E.

Before HARRY PREGERSON, DOROTHY W. NELSON and DAVID R. THOMPSON, Circuit Judges.

ORDER

The opinion with dissent filed on September 4, 2009, and published at 580 F.3d 1030 (9th Cir.2009), is withdrawn and superceded by the opinion filed concurrently herewith.

With the filing of the new opinion, appellant's pending petition for rehearing/petition for rehearing en banc is DENIED as moot, without prejudice to refiling a subsequent petition for rehearing and/or petition for rehearing en banc. See 9th Cir. G.O. 5.3(a).

OPINION

D.W. NELSON, Senior Circuit Judge:

Poghos Kazarian appeals the District Court's grant of summary judgment to the United States Citizenship and Immigration Service ("USCIS"), finding that the USCIS's denial of an "extraordinary ability" visa was not arbitrary, capricious, or contrary to law. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 31, 2003, Poghos Kazarian, a thirty-four-year-old native and citizen of Armenia, filed an application for an employment-based immigrant visa for "aliens of extraordinary ability" (Form I-140) contending that he was an alien with extraordinary ability as a theoretical physicist.

Kazarian received a Ph.D in Theoretical Physics from Yerevan State University ("YSU") in Yerevan, Armenia, in 1997. From 1997 to 2000, he remained at YSU as a Research Associate, where, among other things, he "reviewe[d][the] diploma works of the Department's graduates."

At YSU, Kazarian specialized in non-Einsteinian theories of gravitation. According to a colleague, "[t]his work offered a mechanism for the control of solutions' accuracy, which guarantees the accuracy of calculations in many theories of gravitation." Kazarian "solve[d][the] more than 20 year[ ] old problem of construction of the theory, satisfying the cosmogony conception of worldwide acknowledged scientist, academician V.A. Hambartsumian."

Since 2000, Kazarian has served as a Physics/Math/Programming Tutor, an Adjunct Physics and Mathematics Instructor, and a Science Lecture Series speaker at Glendale Community College ("GCC"). Between 2000 and 2004, Kazarian's work at GCC was on a volunteer basis.

In support of his application, Kazarian submitted several letters of reference. The first reference was a letter from Dr. Kip S. Thorne, the Feynman Professor of Theoretical Physics at California's Institute of Technology. Dr. Thorne, who worked in the same research group as Kazarian, stated that he had "formed a good opinion of Dr. Kazarian's research. It is of the caliber that one would expect from a young professor at a strong research-oriented university in the United States." Kazarian also provided letters from professors at YSU, stating that Kazarian "possesse[d] great ability and considerable potency in science," was "a young scientist with enough scientific potential," had "high professionalism," and had "displayed himself as exceptionally diligent, hard-working, [and] highly qualified." Finally, Kazarian submitted three letters from colleagues at GCC praising his hard work and active participation at GCC.

Kazarian also noted that he had authored a self-published textbook, titled "Concepts in Physics: Classical Mechanics." According to one of his colleagues at GCC, the book "is certain to be required reading in many secondary schools, colleges and universities throughout the country." Kazarian, however, presented no evidence that the book was actually used in any class. Kazarian also submitted two scholarly articles where the authors acknowledged him for his useful scientific discussions. Kazarian also submitted his resume, which listed six publications in Astrophysics that he had authored or co-authored, as well as one e-print published in the public web archives of the Los Alamos National Laboratory.

Finally, Kazarian presented evidence of his Science Lecture Series at GCC. His resume also listed lectures at the 17th and 20th Pacific Coast Gravity Meetings, the Conference on Strong Gravitational Fields at UC Santa Barbara, the 8th International Symposium on the Science and Technology of Light Sources, and the Foundations of Gravitation and Cosmology, International School-Seminar.

In August 2005, the USCIS denied the petition. Kazarian appealed the denial to the Administrative Appeals Office ("AAO"). The AAO dismissed the appeal, finding that Kazarian failed to satisfy any of the evidentiary criteria set forth in the relevant "extraordinary ability" visa regulations. Having exhausted his administrative remedies, Kazarian filed a complaint in the Central District of California. The District Court granted the USCIS's motion for summary judgment, and Kazarian timely appealed to this court.

STANDARD OF REVIEW

This court "review[s] the entry of summary judgment de novo." Family Inc. v. U.S. Citizenship & Immigration Servs., 469 F.3d 1313, 1315 (9th Cir.2006). "However, the underlying agency action may be set aside only if `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Id. (quoting 5 U.S.C. § 706(2)(A)). "We have held it an abuse of discretion for the Service to act if there is no evidence to support the decision or if the decision was based on an improper understanding of the law." Tongatapu Woodcraft Hawaii Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir.1984) (internal quotations omitted).

"In circumstances where an agency errs, we may evaluate whether such an error was harmless." Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1071 (9th Cir.2004); see 5 U.S.C. § 706. "In the context of agency review, the role of harmless error is constrained. The doctrine may be employed only `when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached.'" Gifford Pinchot, 378 F.3d at 1071 (citing Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir.1982)) (emphasis added by the Gifford Pinchot court). "We will not usually overturn agency action unless there is a showing of prejudice to the petitioner." Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir.2002).

DISCUSSION

A. THE "EXTRAORDINARY ABILITY" VISA

Pursuant to 8 U.S.C. § 1153(b)(1)(A), aliens may apply for a visa on the basis of "extraordinary ability." An alien can prove an extraordinary ability in one of two ways. The first is "evidence of a one-time achievement (that is, a major, international recognized award)." 8 C.F.R. § 204.5(h)(3). Receipt of the Nobel Prize is the quintessential example of a major award. H.R.Rep. No. 101-723(I & II) (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6739. Kazarian concedes that he has won no such prize.

The second way to prove extraordinary ability is to provide evidence of at least three of the following:

(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;

(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;

(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

8 C.F.R. § 204.5(h)(3). If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence demonstrates both a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. § 204.5...