Kinuthia v. Rosenberg

Decision Date08 March 2017
Docket NumberCivil A. No. 17-10255-LTS
PartiesISAAC GICHURU KINUTHIA, Plaintiff, v. RON ROSENBERG, Chief of the AAO, Honorable JOHN F KELLY, et. al. Defendants.
CourtU.S. District Court — District of Massachusetts
MEMORANDUM AND ORDER

SOROKIN, J.

The plaintiff, Isaac G. Kinuthia, challenges the denial of his I-140 visa petition by Defendants Ron Rosenberg, the Chief of the Administrative Appeals Office ("the AAO"); the Honorable John F. Kelly, Secretary of the Department of Homeland Security; Leon Rodriguez, the Director of the United States Customs and Immigration Service (USCIS); and Mark Hazuda, Director of USCIS Nebraska Service Center, alleging the denial of his petition was arbitrary and capricious, in violation of the USCIS's established rules and procedures and the Administrative Procedure Act ("the APA"), and in violation of the Due Process clause of the Fifth Amendment of the Constitution. Doc. No. 1. Defendants move to dismiss, Doc. No. 11, and Kinuthia opposes. Doc. No. 13.

I. BACKGROUND1

A. Factual Background

Kinuthia, a citizen of Kenya, has resided in the United States since August of 2002. Doc. No. 1 at 10. In 2006, he received a Bachelor of Science degree in Civil Engineering from Michigan Technological University ("Michigan Tech"). Id. at 10. He is an engineer, holding a professional license in civil engineering from the States of Wisconsin and Michigan. Id. at 10-11. He is also a member of the National Society of Professional Engineers ("NSPE"). Id.

During the time that Kinuthia has resided in the United States, he has worked as an assistant engineer at the Wisconsin Department of Transportation ("WisDOT"), where he "provided guidance on environmental and storm water policies, rules, regulations, and guidelines," and performed "environment reviews, analysis, and coordination of transportation improvement projects." Doc. No. 1-2 at 4. He has also worked in Midland County, Michigan as a part of a team that created a model to predict flooding. Id.

In 2016, Kinuthia self-published a book A Preview of Jesus' Seminal Teachings and Leadership, which discusses topics such as "sanctity of life" and "when does life begin." Doc. No. 1 at 26. The book is available for sale on Amazon.com and at Barnes & Noble stores. Id. at 26.

A. Procedural History

On January 5, 2015, Kinuthia filed a petition for an I-140 visa seeking classification as an individual of extraordinary ability in the sciences ("EB-1 extraordinary ability in thesciences classification") with the USCIS Nebraska Service Center. Doc. No. 1 at 9. The USCIS Nebraska Service Center denied Kinuthia's petition on September 21, 2015. Id. Kinuthia appealed the decision to the AAO, which the AAO denied on October 3, 2016. Id. Kinuthia then filed a joint motion to reopen and for reconsideration with the AAO, which, on February 2, 2016, the AAO also denied. Id. The AAO's February 2, 2016 denial of the motion for reconsideration is the final agency determination in this case. Id. The AAO's letter of explanation is attached to the Complaint as exhibit 2. See Doc. No. 1-2.

On February 16, 2017, Kinuthia filed this action challenging the AAO's decision, and asking the Court to vacate the decision and direct the AAO to declare Kinuthia an alien of extraordinary ability. See Id. at 32.

B. The Final Administrative Decision

The EB-1 extraordinary ability in the sciences classification is a designation intended for "priority workers." 8 U.S.C.A. § 1153. The designation is available to an alien who:

has extraordinary ability in the sciences . . . which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation . . . seeks to enter the United States to continue work in the area of extraordinary ability, and . . . will substantially benefit prospectively the United States
8 U.S.C.A. § 1153

Pursuant to 8 C.F.R. § 204.5(h)(3), to be eligible for an EB-1 extraordinary ability in the sciences classification, an alien may present evidence that he or she "sustained national or international acclaim" through a major "one-time achievement," or evidence that he or she meets at least three of the following ten criteria:

1. Receipt of "lesser nationally or internationally recognized prizes or awards for excellence" in the sciences;
2. "[M]embership in associations in [the sciences], which require outstanding achievement of their members";3. "Published material about the alien in professional or major trade publications or other major media, relating to the alien's work" in the sciences;
4. "[P]articipation, either individually or on a panel, as a judge of the work of others" in the sciences;
5. "[O]riginal scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the [sciences]";
6. "[A]uthorship of scholarly articles in the [sciences], in professional or major trade publications or other major media";
7. "[D]isplay of the [his] work in the [sciences] at artistic exhibitions or showcases"
8. Performance of a "leading critical role for organizations or establishments that have a distinguished reputation";
9. Receipt of "high salary or other significantly high remuneration for services, in relation to others" in the sciences;
10. "[C]ommercial 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).

On motion to reopen and for reconsideration to the AAO, Kinuthia argued that he met seven of the ten criteria set forth in 8 C.F.R. § 204.5(h)(3). Doc. No. 1-2 at 2. Specifically, Kinuthia argued that (1) professional engineering licenses in Michigan and Wisconsin constitute "lesser nationally or internationally recognized prizes;" (2) membership in the National Society of Professional Engineers constitutes "membership in associations in [the sciences], which require outstanding achievement of their members;" (3) Midland Daily News articles discussing Kinuthia's alma mater Michigan Technological University is "[p]ublished material about [Kinuthia];" (4) Kinuthia's work with WisDOT, in which he served on compliance review committees, is "participation . . . as a judge of the work of others;" (5) Kinuthia's work in Midland County, Michigan, creating a flood prediction model is an "original scientific . . . contribution[] of major significance;" (6) Kinuthia's role as assistant regional storm water and erosion control engineer for the WisDOT constitutes a "leading critical role for [an] organization;" and (7) Kinuthia's compensation, including his supplemental pay rate, is a "high salary . . . in the sciences." Id. at 2-5. Kinuthia also submitted additional evidence in support ofhis motion to reopen: an article from Wikipedia discussing Midland Daily News, and Kinuthia's self-published book A Preview of Jesus' Seminal Teachings and Leadership. Doc. No. 1-2 at 2.

In denying Kinuthia's joint motion, the AAO officer first considered Kinuthia's motion for reconsideration.2 See id. at 2-5. The officer found that Kinuthia's motion failed to establish that he met any of the criteria set forth in set forth in 8 C.F.R. § 204.5(h)(3). First, the officer found Kinuthia's Michigan and Wisconsin licenses "demonstrate proficiency" but are not "nationally or internationally recognized prizes or awards." Id. at 2-3. Second, the officer found no evidence in the record that NSPE requires "outstanding achievement of its members." Id. at 3. Third, the officer found that Midland Daily News articles discussing Michigan Tech students are not "[p]ublished material about the alien [Kinuthia.]" Id. at 3. Furthermore, the officer found that Midland Daily News is not a major publication. Id. at 4. Fourth, the officer determined that Kinuthia's work at WisDot is not "judging" within the plain language of 8 C.F.R. § 204.5(h)(3)(iv). Fifth, the officer found Kinuthia had not established that his work in in Midland County, Michigan creating a flood prediction model was a contribution of "major significance" within the meaning of 8 C.F.R. § 204.5(h)(3)(iv). Id. at 6. Sixth, the officer determined Kinuthia had not established that his role as assistant regional storm water and erosion control engineer for WisDot was a "leading critical role" or that WisDot has a "distinguished reputation." Id. at 5. Finally, the officer found that, because Kinuthia had not presented evidence of "occupational wage data" or "salary survey results for professional engineers," Kinuthia had not demonstrated that his salary "was high relative to others in his field." Id. at 5. Accordingly, the officer deniedKinuthia's motion for reconsideration. Id. at 5.

The officer next considered Kinuthia's motion to reopen.3 See id. at 6. In addressing the motion to reopen, the officer considered the additional evidence submitted by Kinuthia with his motion: (1) "information from the online encyclopedia Wikipedia stating that Midland Daily News has a circulation of 11,439 on weekdays, 11,855 on Saturdays, and 14,723 on Sundays;" and (2) a copy of A Preview of Jesus's Seminal Teachings and Leadership.

The officer first noted that Wikipedia is an "open, user-edited website," which "makes no guarantee of validity." Id. at 6 (citing Wikipedia: General disclaimer, Wikipedia (Dec. 17, 2015), https://en.wikipedia.org/wiki/Wikipedia:General_disclaimer). Regardless, the officer found the cited readership numbers "do not elevate Midland Daily News to a form of major media" or "affect [the officer's] finding that the articles in question were not about [Kinuthia.]" Id. Finally, the officer also found that, contrary to Kinuthia's contention, A Preview of Jesus's Seminal Teachings and Leadership does not satisfy 8 C.F.R. § 204.5(h)(3) authorship criterion because the book was published in 2016, after the filing of Kinuthia's I-140 form,4 and because Kinuthia did not offer any supporting evidence "indicating his book constitutes an original scientific...

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