Lee v. Ziglar, 02 C 2386.

• Decision Date: 24 December 2002
• Docket Number: No. 02 C 2386.,02 C 2386.
• Citation: 237 F.Supp.2d 914
• Parties: Man Soo LEE, Plaintiff, v. James W. ZIGLAR, Commissioner of the Immigration and Naturalization Service, Defendant.
• Court: U.S. District Court — Northern District of Illinois

237 F.Supp.2d 914

Man Soo LEE, Plaintiff, v. James W. ZIGLAR, Commissioner of the Immigration and Naturalization Service, Defendant.

No. 02 C 2386.

United States District Court, N.D. Illinois, Eastern Division.

December 24, 2002.

MEMORANDUM OPINION AND ORDER

CASTILLO, J.

Plaintiff Man Soo Lee ("Lee") brings this action against James W. Ziglar, Commissioner of the Immigration and Naturalization Service (INS), challenging the INS' denial of Lee's application for an immigrant visa. Lee is an acclaimed baseball player from Korea and is currently part of the coaching staff of the Major League Baseball team, the Chicago White Sox. Lee petitioned the INS for an immigrant visa, claiming that he was a worker with extraordinary ability, who therefore deserved priority treatment under § 203(b)(1)(A) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1153(b)(1)(A). Lee's petition was denied. Both parties now move for summary judgment. (R. 7-1; 12-1.) After careful consideration, we deny Lee's motion for summary judgment, (R. 7-1), and grant the INS' motion for summary judgment, (R. 12-1).

RELEVANT FACTS

Lee, a citizen of Korea, currently resides in Illinois. (R. 1-1, Compl.¶ 3.) Lee is arguably one of the most famous baseball players in Korean history. (R. 7-2, Pl.'s Facts ¶ 2.) He played for sixteen seasons as a catcher for the Samsung Lions from 1982-1997. (R. 9, Admin. R. at 005, 069.) During that time Lee hit a total of 252 home runs with a career batting average of .297.¹ (Id.) Until 1999, he held the Korean record for the most career home runs. (Id.) Lee's other achievements as a Korean baseball player include All Star Game appearances, the Triple Crown Title, season MVP and five Golden Glove awards. (Id.) Lee secured a coaching position with the Chicago White Sox for the 2000 season and a temporary visa in the P-1 category. (R. 9, Admin. R. at 006, 011-12.)

On April 17, 2000, Lee filed a petition with the INS Nebraska Service Center, seeking an immigrant visa as a professional baseball coach pursuant to § 203(b)(1)(a) of the INA. 8 U.S.C. § 1153(b)(1)(a). (R. 7-2, Pl.'s Facts ¶ 1.) In July 2000, the INS sent Lee a request for additional evidence to establish that Lee is "an alien of extraordinary ability" and "is one of that small percentage who have risen to the very top of the field of endeavor." (Id. at ¶ 3.) Lee responded by providing evidence of his great success as a baseball player. (Id. at ¶ 4; R. 9, Admin. R. at 018-053.) The INS sent Lee a letter in September 2000 requesting additional evidence that he sustained national or international acclaim as a coach. (R. 72, Pl.'s Facts ¶ 5.) Lee responded by arguing that under the statute he was not required to submit evidence that he is an acclaimed coach. (Id. at ¶ 6.) Lee contended that he need only establish his extraordinary ability as a baseball player and his intention to continue to work in the "area of his extraordinary ability." (Id.) Lee also submitted letters from White Sox Manager Jerry Manuel and White Sox Pitcher Bob Howry to support his argument that his experience as a baseball player is relevant to the experience and skills needed to coach major league baseball. (Id., Ex. A & B.)

The Director of the INS Northern Service Center denied Lee's petition, noting that although Lee appeared to have been an accomplished baseball player, he had not achieved national or international acclaim as a coach. (Id. at ¶ 9.) The Director observed that Lee, as an ex-player, might be well-suited for a coaching position, but that the visa classification demands a much higher showing than simply being well-equipped for a given occupation. (R. 9, Admin. R. at 070.) On appeal, the INS Administrative Appeals Office (AAO) sustained the denial of Lee's petition. (Id. at 068-071.) The AAO observed that Lee never offered evidence that he received national or international acclaim as a coach, or that he was within the small percentage at the very top of the field of coaching. (Id.) The AAO further noted that even though Lee will be working in the field of baseball, he will not be doing so as a player, which is the only area in which Lee has demonstrated extraordinary ability. (Id. at 070.) Lee's appeal is now before this Court.

LEGAL STANDARDS

The Court is bound by an abuse of discretion standard in reviewing the INS' decision to deny Lee's visa petition. Bal v. Moyer, 883 F.2d 45, 47 (7th Cir.1989); Achacoso-Sanchez v. INS, 779 F.2d 1260, 1264 (7th Cir.1985); Russell v. INS, No. 98 C 6132, 2001 WL 11055, *3 (N.D.Ill. Jan. 4, 2001); Grimson v. INS, 934 F.Supp. 965, 967 (N.D.Ill.1996); Muni v. INS, 891 F.Supp. 440, 444 (N.D.Ill.1995); Racine v. INS, No. 94 C 2548, 1995 WL 153319, *3 (N.D.Ill. Feb. 27, 1995); Garcia-Lopez v. INS, 923 F.2d 72, 74 (7th Cir.1991). Therefore, we must defer to the INS' decision unless it: 1) is made without a rational explanation, 2) inexplicability departs from established policies, or 3) rests on an impermissible basis. Bal, 883 F.2d at 46; Achacoso-Sanchez, 779 F.2d at 1265.

Moreover, the Court is not permitted to conduct a de novo review of the INS' construction of the relevant sections of the INA. Our inquiry is limited to whether the agency's interpretation is "based on a permissible construction of the statute." Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Thus, even though we might disagree with the INS' statutory construction, we "may not substitute [our] own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Id. at 844, 104 S.Ct. 2778.

ANALYSIS

Lee attempts to gain permanent residence in the United States as an "alien of extraordinary ability" under § 203(b)(1)(A). 8 U.C.S § 1153(b)(1)(A). To obtain an immigrant visa under this classification, the applicant must show that:

(i) the alien has 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,

(ii) the alien seeks to enter the United States to continue to work in the area of extraordinary ability, and

(iii) the alien's entry to the United States will substantially benefit prospectively the United States.

8 U.S.C. § 1153(b)(1)(A). The INS regulations interpreting § 203(b)(1)(A) define extraordinary ability as "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). The regulations further specify the type of evidence which may be presented to support a finding of "extraordinary ability," including documentation of nationally or internationally recognized awards, documentation of membership in associations in the field for which classification is sought and publications about the alien's work in the field. 8 C.F.R. § 204.5(h)(3).

In support of his petition for a visa as a coach of extraordinary ability, Lee offered evidence that he was an outstanding foreign professional baseball player. Lee presented letters from top officials in the Korean Baseball Organization ("KBO") supporting his claim, a certificate from the KBO confirming Lee's career statistics and receipt of national awards and newspaper articles relating to Lee's baseball career. (R. 9, Admin. R. at 005, 017.) The INS does not dispute that Lee might qualify as an alien of extraordinary ability as a baseball player. The INS argues, however, that Lee failed to establish extraordinary ability as a baseball coach.

The INS' determination that Lee was not an alien of extraordinary ability as a baseball coach was reasonable. Our review of the record reveals that Lee has not distinguished himself as a coach to such an extent that he has achieved national or international acclaim or risen to the very top of the baseball coaching profession. In fact, the record only shows Lee's achievements as a player, not a coach, which are markedly different roles. Lee even admits that he does not claim to be a coach who has risen to the top of the field. (R. 9, Admin. R. at 066.) The INS' distinction between extraordinary ability as a coach and a player is a reasonable one, entitled to deference. As such, the INS did not abuse its discretion in determining that Lee was not an alien of extraordinary ability under 8 U.S.C. § 1153(b)(1)(A)(i).

The INS also found that Lee failed to establish that he was "seeking to enter the United States to continue to work in the area of extraordinary ability." 8 U.S.C. § 1153(b)(1)(A)(ii). The INS contends that because Lee is coaching, rather than playing, he is not continuing to work in the "area of extraordinary ability."² Lee argues that because he is coaching a major league baseball team, he is thus continuing to work in his "area" of extraordinary ability — baseball.

Once again, the INS' interpretation of "area of extraordinary ability" is a reasonable one and thus binding on this Court. Muni, 891 F.Supp. at 442. It is reasonable to interpret continuing to work in one's "area of extraordinary ability" as working in the same profession in which one has extraordinary ability, not necessarily in any profession in that field. For example, Lee's extraordinary ability as a baseball player does not imply that he also has extraordinary ability in all positions or professions in the baseball industry such as a manager, umpire or coach. The regulations regarding this preference classification are extremely restrictive, and not expanding "area" to include everything within a particular field cannot be considered unreasonable. See, e.g., In re X, 1998 WL 2027170 (AAU May 14, 1998) (denying § 203(b)(1)(A) petition of acclaimed soccer player as a soccer coach because the occupations of player and coach are "significantly different"); In re Y, No. EAC 97 156 53387, 1998 WL 34022189...