Krasniqi v. Dibbins

• Decision Date: 01 September 2021
• Docket Number: Civ. 20-06188 (KM)
• Parties: MRIKA KRASNIQI and ANIL ZOGJANI, Plaintiffs, v. SUSAN DIBBINS, in her official capacity as Chief, Administrative Appeals Office, U.S. Citizenship and Immigration Service; TRACY L. RENAUD, in her official capacity as Acting Director, U.S. Citizenship and Immigration Services; ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Security; and LOREN MILLER, in her official capacity as Director, Nebraska Service Center, U.S. Citizenship and Immigration Services, Defendants.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

MRIKA KRASNIQI and ANIL ZOGJANI, Plaintiffs, v. SUSAN DIBBINS, in her official capacity as Chief, Administrative Appeals Office, U.S. Citizenship and Immigration Service; TRACY L. RENAUD, in her official capacity as Acting Director, U.S. Citizenship and Immigration Services; ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Security; and LOREN MILLER, in her official capacity as Director, Nebraska Service Center, U.S. Citizenship and Immigration Services, Defendants.

Civ. No. 20-06188 (KM)

United States District Court, D. New Jersey

September 1, 2021

OPINION

Hon Kevin McNulty United States District Judge.

Federal immigration law allocates visas for non-citizens with “extraordinary ability” in the arts. Mrika Krasniqi, a Kosovar filmmaker, petitioned for such a visa, as well as for permanent resident status for herself and her son, Anil Zogjani. The U.S. Citizenship and Immigration Service (the “Service”) denied her petition. So Ms. Krasniqi and Zogjani sued the government officials responsible (collectively, “the Government”) ^[1] alleging violations of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and procedural due process. The parties cross-moved for summary judgment. (DE 21, 22.)^[2] For the following reasons, Plaintiffs' motion (DE 21) is DENIED, and the Government's motion (DE 22) is GRANTED.

I. BACKGROUND

A. Statutory and Regulatory Background

Immigration visas are available for aliens “with extraordinary ability.” 8 U.S.C. § 1153(b)(1)(A). To qualify, (1) the alien must have “extraordinary ability in the 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”; (2) the alien must “seek[] to enter the United States to continue work in the area of extraordinary ability”; and (3) the alien's “entry into the United States will substantially benefit prospectively the United States.” Id. § 1153(b)(1)(A)(i)-(iii). Implementing regulations further explain that “[e]xtraordinary ability 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).

An alien may petition the Service for an extraordinary ability visa and must include supporting evidence. Id. § 204.5(h)(3). In considering petitions, the Service uses a two-step inquiry. U.S. Citizenship & Immigration Services Policy Manual, Vol. 6, Pt. F, Ch. 2, https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2 (hereinafter “Policy Manual”). The petitioner bears the burden of proof and must establish eligibility by a preponderance of the evidence. 8 C.F.R. § 103.2(b)(1); Matter of Chawathe, 25 I. & N. Dec. 369, 375 (AAO 2010); see also Soni v. United States, Civ. No. 11-2431, 2016 WL 4154137, at *3 (D.N.J. Aug. 2, 2016).

At the first step, the petitioner can make either of two showings: For one, she^[3] may present “evidence of a one-time achievement (that is, a major, international recognized award).” 8 C.F.R. § 204.5(h)(3). Alternatively, instead of a major award, the Service lists ten other types of evidence in subsection (h)(3), and the petitioner can satisfy step one if she can present at least three of these. 8 C.F.R. § 204.5(h)(3). The subsection (h)(3) criteria include, for example, “lesser nationally or internationally recognized prizes, ” and “[p]ublished material about the alien in professional or major trade publications.” Id. § 204.5(h)(3)(i), (iii).

If the petitioner makes a minimum showing at step one, then at step two, the Service makes a “final merits determination” in which it considers “the quality of the evidence” and “evaluate[s] the evidence together.” Policy Manual, supra. In other words, step one simply asks whether the petitioner has produced the minimum evidence satisfying the (h)(3) criteria, but step two involves the merits inquiry of whether all the evidence shows “extraordinary ability.” Id.; Rijal v. U.S. Citizenship & Immigr. Servs., 772 F.Supp.2d 1339, 1346 (W.D. Wash. 2011), aff'd, 683 F.3d 1030 (9th Cir. 2012) (Mem).

If granted an extraordinary ability visa, the alien may also have her status adjusted to a lawful permanent resident. 8 U.S.C. § 1255(a); 8 C.F.R. § 245.1(a). Likewise, her child may qualify for adjustment of status. 8 U.S.C. § 1153(d).

B. Proceedings

1. Submissions

Ms. Krasniqi and Zogjani are natives and citizens of Kosovo who were admitted to the U.S. as temporary visitors. (K.A.R. at 640, 642; Z.A.R. at 47, 49.) Ms. Krasniqi petitioned for an extraordinary ability visa due to her work as a director, producer, and screenwriter for documentary films. (K.A.R. at 3, 68, 90.) With that petition, she also applied to adjust her and Zogjani's status to that of lawful permanent residents. (Id. at 627-57; Z.A.R. at 34-63.)

In support of her petition, she stated that she won a “Certificate of Honor” from the Marché du Film (“Market of Film” in French) associated with the Cannes Film Festival. (K.A.R. at 70.) Held annually on the Côte d'Azur, the festival previews films from around the world and awards prizes, the most prestigious being the Palme d'Or (“Golden Palm”) for best picture. (Id. at 119, 124.) An American might say that Cannes is the French version of the Oscars, although the French question the validity of the comparison. See Festival de Cannes, The Festival in 2021, Interview with Thierry Frémaux, https://www.festival-cannes.com/en/qui-sommes-nous/festival-de-cannes-1 (last visited Aug. 31, 2021) (describing the Festival as “certainly the most important film festival in terms of worldwide impact”).

In conjunction with the Festival there occurs the Marché du Film, a meeting of film-industry professionals. (K.A.R. at 129.) The Marché includes a “Producers Network” which “hosts more than 500 producers from around the world for a series of meetings and unique events specifically designed to stimulate international co-production and optimize networking.” (Id.) Producers may show their films, and “special gratitude awards are given such as [the] Certificate of Honor” for projects that garner “interest by a great number of producers and distributors.” (Id.)

Ms. Krasniqi showed a film which she produced and directed, Soldier, and received a Certificate of Honor. (Id. at 117, 130.) As evidence of that award, she submitted, among other things, (a) a copy of the Certificate (id. at 117); (b) a photo of her in front of a step-and-repeat display^[4] with the Marché logo (id. at 118); (c) a Wikipedia entry for the Cannes Film Festival (id. at 119-28); (e) part of the Marché 's webpage (id. at 129); and (f) an article from Bota Press reporting that her film would screen at the Marché (id. at 130).

Besides this award, Ms. Krasniqi provided other evidence to support her petition:

• evidence of awards from other film festivals and organizations: (a) Prize of the Organizer at the One World Human Rights Documentary Film Festival, (b) Best International Social Documentary at the New York International Independent Film Festival, (c) Best Human Artist given by the European Jewish Communities in Paris, and (d) a certificate of appreciation from the Sarajevo Film Festival (id. at 70);

• articles from foreign newspapers and online publications about her work and awards (id. at 6);

• evidence that she founded Albanian Film Week, a film festival held in New York City showing films from Albanian filmmakers (id. at 8);

• evidence of her membership in two organizations for Kosovar filmmakers (id. at 77); and

• a “Woman of the Year” Award from the United States Senate for her work promoting Albanian culture in the United States (id. at 1193-1200).

2. Decision, Appeal, and this Case

The Service denied Ms. Krasniqi's petition. (K.A.R. at 68-73.) She appealed to the Service's Administrative Appeals Office (“AAO”), an administrative appellate body that hears appeals from petition denials. (Id. at 2.) Upon de novo review, the AAO dismissed the appeal in a written opinion, finding that she had not satisfied any criteria. (Id. at 2-10.)^[5] Because Ms. Krasniqi could not obtain a visa, her application and the derivative application for Zogjani for adjustment of status were denied. (Z.A.R. at 24.)

They sued the Government in this Court, alleging that (1) the denial of the petition for an extraordinary ability visa and the accompanying denials of adjustment of status violated the APA; (2) the denials violated their right to procedural due process under the Fifth Amendment; and (3) they are entitled to mandamus relief compelling the Service to grant their petitions. (Compl. ¶¶ 33- 43.) The parties cross-moved for summary judgment. (DE 21, 22.)

II. STANDARD OF REVIEW

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). “When a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The entire case on review is a question of law.” Neto v. Thompson, 506 F.Supp.3d 239, 243-44 (D.N.J. 2020) (quoting Am. Biosci., Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)). In such a case, “the district court does not need to determine whether there are disputed facts to resolve at trial since the administrative agency is the finder of fact. Instead, my task is to review the administrative record and determine whether, as a matter of law, the Service's action complied with the APA.” Id. at 244 (quotation marks and citation omitted).

III. DISCUSSION

The APA empowers courts to review agency actions and set them aside if they are “arbitrary, capricious, an abuse of discretion, or...