Mussarova v. Garland

• Decision Date: 02 March 2022
• Docket Number: Case No.: CV 20-9470-CBM-(SKx)
• Citation: 562 F.Supp.3d 837
• Parties: Assem MUSSAROVA et al., Plaintiffs, v. Merrick B. GARLAND, U.S. Attorney General et al., Defendants.
• Court: U.S. District Court — Central District of California

562 F.Supp.3d 837

Assem MUSSAROVA et al., Plaintiffs,

v.Merrick B. GARLAND, U.S. Attorney General et al., Defendants.

Case No.: CV 20-9470-CBM-(SKx)

United States District Court, C.D. California.

Signed March 2, 2022

Sergei Shevchenko, Barshev PC, Woodland Hills, CA, for Plaintiffs.

OIL-DCS Trial Attorney, Joshua Samuel Press, Office of Immigration Litigation, District Court Section, Vanessa Molina, US Department of Justice, Civil Division, Washington, DC, for Defendants William P. Barr, Chad F. Wolf, Kenneth T. Cuccinelli, Susan Dibbins.

ORDER RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

CONSUELO B. MARSHALL, UNITED STATES DISTRICT JUDGE

The matter before the Court is Plaintiff's ‘s Motion for Summary Judgment; and Defendants’ Motion for Summary Judgment. (Dkt. Nos. 20, 21.)

I. BACKGROUND

Plaintiff Assem Mussarova seeks review of the denial of her Form I-140 petition¹ wherein Plaintiff sought classification as an "alien of extraordinary ability" in athletics pursuant to 8 U.S.C. § 1153(b)(1)(A).² The U.S. Citizenship and Immigration Services’ ("USCIS's") denied her petition on December 26, 2018, the Administrative Appeals Office ("AAO") dismissed her appeal on January 7, 2020, and the AAO denied her motion to reopen/reconsider on September 24, 2020. Plaintiff requests that the Court 1) "[a]ccept jurisdiction" and review the USCIS's decision to deny her immigration visa petition; 2) enter a declaratory judgment declaring Defendants’ decision denying her Form I-140 petition was arbitrary, capricious, and not in accordance with the law; 3) enjoin Defendants from denying Plaintiff's Form I-485 applications and related benefits during the pendency of this lawsuit; 4) "[o]rder the defendants to perform public service in accordance of [sic] the pursuant to the APA"; 5) award attorneys’ fees and costs; and 6) "[g]rant other relief as the Court may deem just, equitable and proper." (Compl., Relief Requested.)

II. STATEMENT OF THE LAW

A. Administrative Procedures Act ("APA")

The petitioner may seek review of an agency decision pursuant to the APA. See 5 U.S.C. §§ 701 et seq.³ The APA limits the scope of judicial review to the administrative record. 5 U.S.C. § 706.⁴ Under the APA, a court may set aside an agency's final action if the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This is a "highly deferential" standard under which there is a presumption that the agency's action is valid "if a reasonable basis exists for its decision." Kern Cty. Farm Bureau v. Allen , 450 F.3d 1072, 1076 (9th Cir. 2006).⁵ The district court cannot "substitute [its] judgment for that of the agency." Protect Our Communities Found. v. LaCounte , 939 F.3d 1029, 1043 (9th Cir. 2019).

A motion for summary judgment is the proper mechanism for a reviewing court to decide as a matter of law whether an agency's administrative decision is supported by the administrative record under the APA. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric. , 18 F.3d 1468, 1471-72 (9th Cir. 1994).⁶ In APA cases, "the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." City & Cty. of San Francisco v. United States , 130 F.3d 873, 877 (9th Cir. 1997) (quoting Occidental Eng'g Co. , 753 F.2d at 769 ). Therefore, the Rule 56 standard for summary judgment motions does not apply to cases involving judicial review under the APA because the Court is not required to resolve any facts in review of an administrative proceeding. See Nw. Motorcycle Assoc. , 18 F.3d at 1472 (for cases "involv[ing] review of a final agency determination under the [APA], ... resolution of this matter does not require fact finding on behalf of this court" because "the court's review is limited to the administrative record").⁷ "[W]hile formal findings are not required, the record must be sufficient to support the agency action, show that the agency has considered the relevant factors, and enable the court to review the agency's decision." Beno v. Shalala , 30 F.3d 1057, 1074 (9th Cir. 1994).

B. Extraordinary Ability

8 U.S.C. § 1153 provides that a certain percentage of visas "shall be allotted" to immigrants with "extraordinary ability." The following must be met for an alien to be a qualified immigrant with extraordinary ability: 1) "the alien" must have "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," 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." 8 U.S.C. § 1153(a)(b)(1)(A). "Extraordinary ability" is not defined in the statute. See 8 U.S.C. § 1101(a) (definitions section). The federal regulations, however, 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). "Aliens with extraordinary ability" are "priority workers" and have the first preference. Kazarian v. U.S. Citizenship & Immigr. Servs. , 596 F.3d 1115, 1120 (9th Cir. 2010) (citing 8 U.S.C. § 1153(b)(1) ).

"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." 8 C.F.R. § 204.5(h)(2). "Such evidence shall include evidence of a one-time achievement (that is, a major, international recognized award)," or include evidence of at least three of the following ten criteria:

(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 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)(4).

While "[n]o offer of employment [is] required," and "[n]either an offer for employment in the United States nor a labor certification is required for this classification," "the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise" such as "letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States." 8 C.F.R. § 204.5(h)(5).

If a petitioner has submitted the requisite evidence satisfying at least three of the ten above criteria (commonly referred to as Step 1 or Phase 1 or the evidentiary phase), then 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" (commonly referred to as Step 2, Phase 2, or the merits phase). 8 C.F.R. § 204.5(h)(3) ; see also Kazarian , 596 F.3d at 1119-20 ; 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).

III. DISCUSSION

Plaintiff states she "does not have a one-time achievement." However, Plaintiff contends the USCIS's decision denying her I-140 petition was arbitrary, capricious, and not in accordance with law because she satisfied at least three of the ten criteria set forth in 8 C.F.R. § 204.5(h)(3) for classification as an alien with extraordinary ability. Defendants argue Plaintiff failed to establish at least three of the ten criteria set forth in 8 C.F.R. § 204.5(h)(3) were met for classification as an alien with extraordinary ability, and therefore USCIS's decision denying her I-140 petition was not arbitrary, capricious, or not in accordance with law.

A. Receipt of Lesser Nationally or Internationally Recognized...