Rijal v. United States Citizenship & Immigration Serv.

• Decision Date: 22 February 2011
• Docket Number: Case No. C10–709RAJ.
• Citation: 772 F.Supp.2d 1339
• Court: U.S. District Court — Western District of Washington
• Parties: Anil RIJAL, Plaintiff,v.UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Defendant.

772 F.Supp.2d 1339

Anil RIJAL, Plaintiff,

v.UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Defendant.

Case No. C10–709RAJ.

United States District Court, W.D. Washington,at Seattle.

Feb. 22, 2011.

Lafcadio H. Darling, Robert Oscar Wells, Jr., Mikkelborg Broz Wells & Fryer, Seattle, WA, for Plaintiff.

Jeffrey Michael Bauer, U.S. Department of Justice, Washington, DC, Robert Patrick Brouillard, U.S. Attorney's Office, Seattle, WA, for Defendant.

ORDER

RICHARD A. JONES, District Judge.

I. INTRODUCTION

This matter comes before the court on the parties' cross-motions for summary judgment. Dkt. 17, 18. No party requested oral argument. As the court's review is limited to the administrative record, the court finds oral argument unnecessary. For the reasons stated below, the court GRANTS Defendant's motion, DENIES Plaintiff's motion, DISMISSES this action, and directs the clerk to enter judgment for Defendant.

II. BACKGROUND

Plaintiff Anil Rijal is a citizen of Nepal. He entered the United States on a visitor visa in May 2005. While lawfully in the United States in October 2005, he submitted an I–140 Immigrant Petition for Alien Worker application to the Defendant, United States Citizenship and Immigration Services (“USCIS”). In that application, he sought a visa available only to aliens of “extraordinary ability.” As the court will soon discuss, an “extraordinary ability” visa comes with substantial benefits.

Mr. Rijal claims extraordinary ability as a producer of film and television programming. The record establishes that Mr. Rijal has had a long and distinguished career in that field. He has worked as a cameraman, director, and producer since at least the mid 1980s. His efforts helped establish the television industry in Nepal, and he remained active in that endeavor at least until his entry into the United States in 2005. He has been involved in the development of Young Asia TV, a television network that now reaches millions of people. He has produced numerous documentaries. Two of them: Kumari—The Living Goddess and Four Years in Hell were awarded prizes, and are recognized even today as important works. There is no dispute that Mr. Rijal has achieved substantial success over nearly three decades of work in the television and film industry. To be an “alien of extraordinary ability,” however, there is also no dispute that merely achieving success is insufficient.

Section 203 of the Immigration and Nationality Act assigns aliens of “extraordinary ability” the highest priority among employment-based visa applicants. 8 U.S.C. § 1153(b)(1)(A). In addition to statutory visa priority, an alien of “extraordinary ability” does not need a job offer from a United States employer. Kazarian v. USCIS, 596 F.3d 1115, 1120 (9th Cir.2010).

The INA does not define “extraordinary ability.” Abilities in the “sciences, arts, education, business, or athletics” qualify. 8 U.S.C. § 1153(b)(1)(A)(i). “Sustained national or international acclaim” is a hallmark of extraordinary ability, as are achievements that “have been recognized in the field through extensive documentation.” Id. Federal regulations explain that “extraordinary ability” is “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 seeking to prove his or her extraordinary ability must meet one of two threshold evidentiary burdens. First, the alien can rely on evidence of “a one-time achievement (that is, a major, international recognized award).” 8 C.F.R. § 204.5(h)(3). Alternatively, an alien can provide at least three of the following types of evidence:

(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.

Id. If an alien satisfies this initial evidentiary burden, the USCIS must then consider whether the evidence demonstrates extraordinary ability. Kazarian, 596 F.3d at 1119–20. Only where the evidence demonstrates “sustained national or international acclaim” is the alien eligible for the “extraordinary ability” designation. Id. at 1120 (quoting 8 U.S.C. § 1153(b)(1)(A)(i)). By design, the “extraordinary ability” designation is “extremely restrictive.” Id. (quoting Lee v. Ziglar, 237 F.Supp.2d 914, 918 (N.D.Ill.2002)).¹

Mr. Rijal began his quest to prove his extraordinary ability in response to a request for evidence from USCIS in August 2006. Administrative Record (“AR”) (Dkt. # 13) at 740–43. He responded to that request with a variety of evidence, which the court will address in more detail later.

USCIS first denied his petition in March 2007 (AR 460–63) and again in June 2007 (AR 441–44). Mr. Rijal sought review of that decision in USCIS's Administrative Appeals Office (“AAO”). AR 437. He submitted additional evidence in support of his petition in December 2007.

The AAO denied Mr. Rijal's appeal on May 28, 2009. AR 165–74. Mr. Rijal filed motions to reopen and reconsider in June 2009. The AAO denied both motions on March 25, 2010. AR 18–20.

Mr. Rijal contends that both the May 2009 and March 2010 decisions violate applicable law. He asks the court to vacate those decisions, and direct the USCIS to declare him an alien of extraordinary ability. The parties have filed cross-motions for summary judgment, to which the court now turns.

III. ANALYSIS

Mr. Rijal relies on the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701–706, as the basis for challenging USCIS's denial of his application. The APA does not permit plenary review of an agency decision. With certain exceptions not applicable here, the court can set aside agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard is deferential to the agency. It is not enough that the court would have come to a different conclusion than the agency. Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir.2003). Instead, the court reviews the agency's decision to determine if it “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Id. The court's review is limited to the administrative record. Id. (“[T]he basis for the agency's decision must come from the record.”).

The parties have chosen to rely on summary judgment motions. On a motion for summary judgment, the court must draw all inferences from the admissible evidence in the light most favorable to the non-moving party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party must initially show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party must then show a genuine issue of fact for trial. Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party must present probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir.1991). The court defers to neither party in resolving purely legal questions. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999). Because the court typically makes no finding of fact in determining if an agency's decision is arbitrary or capricious, APA disputes are usually amenable to resolution by summary judgment.

A. The USCIS Did Not Act Arbitrarily and Capriciously in Concluding that Mr. Rijal Lacked a Qualifying “One–Time Achievement.”

Mr. Rijal has won two awards that he contends are “one-time achievements” that demonstrate his extraordinary ability. In 1997, his documentary Kumari: The Living Goddess won the grand prize at the New York International Children's Film Festival. In 2001, another of his documentaries, Four Years in Hell, won the UNICEF Prize, one of the awards distributed as part of the Japan Prize Contest. In addition to evidence that he won the awards, Mr. Rijal submitted statements from people in the industry addressing the prestige associated with each award. He also attached press clippings indicating that each award received some...