Muni v. INS, 94 CV 2557.

• Decision Date: 19 May 1995
• Docket Number: No. 94 CV 2557.,94 CV 2557.
• Citation: 891 F. Supp. 440
• Parties: Craig MUNI, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE and Doris Meissner, Commissioner, Defendants.
• Court: U.S. District Court — Northern District of Illinois

891 F. Supp. 440

Craig MUNI, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE and Doris Meissner, Commissioner, Defendants.

No. 94 CV 2557.

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

May 19, 1995.

Richard James Puchalski, Sklodowski, Franklin, Puchalski & Reimer, Chicago, IL, for plaintiff.

U.S. Attorney's Office, Chicago, IL, for defendants.

MEMORANDUM AND ORDER

MORAN, Chief Judge.

Plaintiff Craig Muni brings this action against the Immigration and Naturalization Service (INS or the Service) and its commissioner, Doris Meissner, challenging the Service's denial of his visa petition.¹ In June or July 1993 Muni, a player in the National Hockey League (NHL), petitioned the INS for an immigrant visa, claiming that he was a worker with extraordinary ability and therefore deserved priority treatment under § 203(b)(1)(A) of the Immigration and Naturalization Act, 8 U.S.C. § 1153(b)(1)(A).² The director of the INS' Northern Service Center³ denied his petition, and the Administrative Appeals Unit (AAU) affirmed. Muni now appeals that decision to this court. Both parties have moved for summary judgment. For the reasons set forth below, Muni's motion is granted and the INS' motion is denied.

FACTS⁴

Muni was born in Canada on July 19, 1962 and is a Canadian citizen. In 1980, he was drafted by the Toronto Maple Leafs, an NHL team, and he began his career as a defenseman for that team in the 1981-82 season. In October 1986 he was traded to the Edmonton Oilers, where he stayed for seven years. In the 1986-87, 1987-88, and 1989-90 seasons, the Oilers won the Stanley Cup, the NHL's championship trophy. At that time Muni was a regular player and had one of the best plus-minus ratios⁵ on the team. In the 1988-89 season he had the fourth best plus-minus ratio in the entire NHL. A poll taken by Goal magazine (an NHL publication) rated him the "most underrated defenseman" in the League in 1990, and in 1991 Hockey Digest named him one of the top ten hitting defensemen.

In March 1993 Muni was traded to the Chicago Blackhawks. He now plays for the Buffalo Sabres, whom he joined in October 1993. Muni presently earns $550,000 per year; in the 1992-93 season, when his petition was filed, his annual salary was $400,000. The average salary for an NHL defenseman in 1992-93 was $387,914.

In addition to salary information, Muni submitted to the INS numerous magazine and newspaper articles purporting to establish his stature in the hockey world. He also submitted affidavits from eight veteran NHL players stating that he is highly regarded by other players and is one of the best defensemen in hockey. Finally, Muni alleged that other NHL players of comparable ability — Steve Smith, Rob Brown, and Brent Sutter — have received immigrant visas under § 203(b)(1)(A).

The director of the INS's Northern Service Center denied Muni's petition. She found that there was no evidence that Muni's salary is high compared with what other NHL players receive; that he failed to explain the reputation, significance, or selection criteria of the awards from Hockey Digest and Goal; that the newspaper articles established only his improvement as a player after joining the Oilers, his contributions to the Oilers' Stanley Cup victories, and the fact that he is remembered for playing while sutures on his face were leaking; and that the affidavits showed that Muni was an excellent, hard-hitting defenseman. The director concluded that

while Muni appears to enjoy a noteworthy career as a professional hockey player, there is no evidence that he has been selected to all-star teams or received official recognitions as an extraordinary hockey player. The evidence submitted does not establish that he is one of the few who have risen to the very top of his field of endeavor.

(Admin.Rec. at 86.)

The AAU affirmed. In addition to reiterating the arguments made by the regional director in her initial decision, the AAU found that Muni had not established his role in the Oilers' Stanley Cup victories; that his extended membership in the NHL was not sufficient in itself to establish extraordinary ability; and that he had not presented enough evidence comparing the experience, abilities, and salaries of players who have already received immigrant visas with his own qualifications. The AAU rejected Muni's argument that anyone who plays in the NHL for an extended period of time has extraordinary ability. Instead, because Muni was not "within the small percentage at the very top of the players in the NHL," the AAU concluded that he was not an alien of extraordinary ability and affirmed the director's decision to deny his petition.

DISCUSSION

Section 203(b)(1) provides in part as follows:

(1) Priority workers

Visas shall first be made available in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (4) and (5), to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):

(A) Aliens with extraordinary ability

An alien is described in this subparagraph if —

(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 work in the area of extraordinary ability, and

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

The INS does not contend that Muni has failed to meet the latter two requirements. Therefore, the only issue before this court is whether the INS properly concluded that Muni is not an alien of extraordinary ability under subsection (b)(1)(A)(i).

A. Definition of Extraordinary Ability

As an initial matter, we reject Muni's contention that we should treat the definition of extraordinary ability as a question of statutory construction subject to de novo review. It is well established that "a court reviewing an agency's interpretation of a statute must first look to the statute in question: if the statute addresses the precise question at issue and its meaning is clear, the text controls. But if `the court determines Congress has not directly addressed the precise question at issue,' then `the question for the court is whether the agency's answer is based on a permissible construction of the statute.'" Inman v. Shalala, 30 F.3d 840, 843 (7th Cir.1994) (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984)) (citations omitted). Section 203(b)(1)(A) does not address the precise question at issue here: how to define extraordinary ability. Therefore, the INS definition of that term is binding unless it is unreasonable.

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). As further clarification, the regulations explain as follows:

(3) Initial evidence. A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award), or 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 to 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.

(4) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

8 C.F.R. § 204.5(h)(3), (4). Under the INS' view, membership on a major league team does not by itself qualify an athlete as one having extraordinary ability, though it may help to establish that the athlete meets several of the criteria listed. In the INS' words, "Not all athletes, particularly those new to major league competition, would be able to meet the sustained national or international acclaim standard. A blanket rule for all major league athletes would...