Noroozi v. Napolitano

• Citation: 905 F.Supp.2d 535
• Decision Date: 14 November 2012
• Docket Number: No. 11 Civ. 8333(PAE).,11 Civ. 8333(PAE).
• Parties: Afshin NOROOZI and John Assadi, Plaintiffs, v. Janet NAPOLITANO, et al., Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

905 F.Supp.2d 535

Afshin NOROOZI and John Assadi, Plaintiffs,

v.Janet NAPOLITANO, et al., Defendants.

No. 11 Civ. 8333(PAE).

United States District Court, S.D. New York.

Nov. 14, 2012.

Rakhel Speyer Milstein, Assadi & Milstein LLP, New York, NY, for Plaintiffs.

Patricia L. Buchanan, U.S. Attorney Office, New York, NY, for Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiffs Afshin Noroozi and John Assadi (together, “Noroozi”) bring this declaratory judgment action under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq, challenging the decision of the United States Citizenship and Immigration Services (“USCIS” or “CIS”) to deny Noroozi an EB–1 “extraordinary ability” visa. The defendants, all of whom are federal government officials (“the Government”), now move for summary judgment. For the reasons below, the Court grants that motion.

I. Background¹A. The Parties

Noroozi is an Iranian table-tennis player. Compl. ¶ 4. Assadi is an immigration attorney who specializes in employment-based immigration visas and who represented Noroozi in petitioning CIS, in February 2010 and June 2011, for an extraordinary ability visa. Id. ¶ 5.

The defendants to this action are federal officials sued in their official capacities. They are: Janet Napolitano, Secretary of the Department of Homeland Security; Eric Holder, Attorney General of the United States; Preet Bharara, United States Attorney for the Southern District of New York; Alejandro Mayorkas, Director of CIS; and David Roark, Director of the CIS Texas Service Center.

B. The “Extraordinary Ability” Visa

In the Immigration Act of 1990, Pub.L. 101–649 (1990), Congress created five “preference” categories for employment-based visas. See8 U.S.C. § 1153(b). An alien qualifying for a “first preference” visa need not have an offer of employment. 8 C.F.R. § 204.5(h)(5) (“Neither an offer for employment in the United States nor a labor certification [from the Department of Labor] is required for this classification.”).

One type of first preference visa is for aliens of “extraordinary ability.” An alien, or a person on his or her behalf, may petition CIS to grant an immigration visa on this basis.

§ 204.5(h)(1). An alien seeking to obtain a visa based on extraordinary ability bears the burden of demonstrating three criteria:

(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.

8 U.S.C. § 1153(b)(1)(A)(i)-(iii).

As to the requirement of “sustained national or international acclaim,” under CIS's regulations, a petitioner may demonstrate such acclaim in one of two ways. First, an alien may provide “evidence of a one-time achievement (that is, a major, international [sic] recognized award).” 8 C.F.R. § 204.5(h)(3); see also Kazarian v. U.S. Citizenship and Immigration Servs., 596 F.3d 1115, 1119 (9th Cir.2010) (“Receipt of the Nobel Prize is the quintessential example of a major award.”). Alternatively, an alien may satisfy at least three of the following 10 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)(i)-(x).

To satisfy the burden of demonstrating “extraordinary ability,” the petitioner must also show “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.” § 204.5(h)(2).

C. Noroozi's First Petition

On February 11, 2010, Assadi filed an extraordinary ability visa petition with CIS on Noroozi's behalf. The petition asserted that Noroozi was a person of extraordinary ability in the field of athletics—namely, table tennis. Compl. ¶ 11; AR 00311.

In attempting to establish the requirement of “sustained national or international acclaim,” Assadi's February 2010 petition argued that Noroozi met four of the 10 criteria in § 204.5(h)(3).² Specifically, Noroozi put forward what he claimed was satisfactory evidence of “nationally or internationally recognized prizes or awards” ( § 204.5(h)(3)(i)); “membership in associations” ( § 204.5(h)(3)(ii)); “published material” ( § 204.5(h)(3)(iii)); and a “leading or critical role” ( § 204.5(h)(3)(viii)). Compl. ¶¶ 13–17; AR 00315–19.

On May 6, 2010, CIS wrote Noroozi, seeking additional evidence. Compl. ¶ 19; AR 00383–84. On June 2, 2012, Assadi responded, providing additional information. Compl. ¶ 20; AR 00388.

On June 9, 2010, CIS approved Noroozi's EB–1 petition. The notice of approval did not contain any written analysis or explanation—it merely indicated that the petition had been approved. Compl. ¶ 20; AR 00032. As a result, as counsel for the Government acknowledged at argument, the administrative record does not reveal which of the § 204.5(h)(3) criteria the CIS reviewing officer initially determined that Noroozi had satisfied. See Transcript of Oral Argument (“Tr.”) (Dkt. 19) at 3–5.

In June 2010, after Noroozi's petition had been approved, his case was referred to CIS's Texas Service Center's Fraud Detection Operations unit (“CFDO”). The administrative record reflects that the referral was made because “[t]he attorney of record[,] John Assadi[,] has recently had an abundance of E–11 Aliens of Extraordinary Ability filings from Iran. Some of these filings have appeared to have boilerplate documents and therefore, Exams is referring these cases to CFDO for review.” AR 00542. Notwithstanding the referral, on June 28, 2010, CFDO determined that there was “no evidence of fraud with [Noroozi's] petition.” It recommended that the petition “be judged on its own merits.” Id. at 00541.D. Kazarian and the Revocation of Noroozi's Visa

In March 2010, while Noroozi's first petition was pending, the United States Court of Appeals for the Ninth Circuit decided Kazarian v. United States Citizenship and Immigration Services, 596 F.3d 1115 (9th Cir.2010), involving a challenge to a denial by CIS of an extraordinary ability petition. As relevant here, Kazarian held that CIS's process for adjudicating extraordinarily ability visas was procedurally flawed.³ As the Ninth Circuit explained, CIS's process for reviewing these applications impermissibly enabled its reviewers to weigh the overall credibility of a petitioner's evidence at the same time they determined whether the petitioner had satisfied three of the § 204.5(h)(3) criteria. Kazarian, 596 F.3d at 1121. This one-step, or collapsed, approach was flawed, because the strength of a petitioner's evidence is “not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence [to satisfy the § 204.5(h)(3) criteria].” Id.

On August 18, 2010, consistent with Kazarian, and “[i]n order to promote consistency in decision-making,” CIS issued an interim policy memorandum. The memorandum put in place a new, two-step approach to the adjudicative process for extraordinary ability petitions. See Buchanan Decl. Ex. A. According to the two-step, or Kazarian, approach, “[t]he [reviewer] must first evaluate all the evidence on an individual basis to determine if it meets the [section 204.5(h)(3) ] criteria, and then must consider all of the evidence in totality[,] making the final merits determination.” Id. at 3. Under this approach, a reviewing officer may determine that a petitioner has satisfied three of the 204.5(h)(3) criteria, yet may nonetheless determine that the petitioner failed the final merits determination and thus does not qualify. ⁴

In late August 2010, after implementation of the Kazarian two-step approach, CIS sent Noroozi a Notice of Intent to Revoke his visa (“the Notice” or “NOIR”). See AR 00543–49. The Notice did not mention the newly-implemented Kazarian framework, but it stated that Noroozi failed to satisfy any of the 10 criteria set forth in § 204.5(h)(3). Id. CIS also stated that Noroozi had failed to establish that he “seeks to enter the United States to continue work in the area of extraordinary ability, and...