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AAO was struggling to correctly apply Kazarian all the way through time of Amicus Brief request

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  • See the USCIS Response to the Ombudsman at: http://www.uscis.gov/sites/default/files/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20Formal%20Recommendations/Response%20to%20CISOMB51.pdf that came out on Aug. 31, 2012.
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  • 1. AAO Was Struggling To Correctly Apply Kazarian All The Way Through Time of Amicus Brief Request By Joseph P. Whalen (June 15, 2012)In reviewing the posted AAO non-precedential dismissal of an appeal of the denialof an extraordinary ability visa petition dated July 11, 2011 1, it is becoming clearerto me that AAO was really struggling to deal with the fallout from the NinthCircuit Court of Appeals’ second decision in Kazarian v. USCIS, 596 F.3d 1115(9th Cir. 2010) (March 4, 2010) 2. The first Kazarian decision of September 4,2009 3, which was later withdrawn and replaced with one that adopted much of thedissent’s reasoning might have lulled them into a false sense of security for awhile. There was however another court case that could have helped AAO applythe reasoning from Kazarian available as of February 22, 2011. Rijal v. UnitedStates Citizenship & Immigration Servs., 772 F.Supp. 2d 1339 (W.D. Wash. 2011)applied the reasoning from Kazarian and was itself later adopted by the NinthCircuit without changing one word. We now have two U.S. Circuit Court ofAppeals Precedents and the single administrative Precedent, Matter of Price, 20 I.& N. Dec. 953 (Acting Assoc. Comm’r 1994)4 that should probably bedistinguished and clarified or modified by a new AAO Precedent on topic.Nick Price’s eligibility for this visa classification was so “over-the-top” that it wastoo easy to approve and in my opinion made for a poor choice as a Precedent. Veryfew other petitions could ever possibly be that easy to decide. I equate Matter ofPrice’s worth as a Precedent as having the same value as Congress’ single exampleof a major award being the Nobel Prize.A sole example that is too unique and scarce is of little value. The petitioningprocess for this visa application is progressive. There is a first step requiring one tomeet an initial threshold or as described in Kazarian and Rijal, the petition andaccompanying evidence must answer an antecedent procedural question. Theinitial evidentiary showing or prima facie case in the process of applying for thisvisa classification may be met in one of three ways.1 See: http://www.uscis.gov/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2011/Jul112011_01B2203.pdf2 See: http://www.ca9.uscourts.gov/datastore/opinions/2010/03/04/07-56774.pdf3 See: http://www.ca9.uscourts.gov/datastore/opinions/2009/09/04/07-56774.pdf4 See: http://www.justice.gov/eoir/vll/intdec/vol20/3241.pdf Page 1 of 4
  • 2. The petition may be accompanied by evidence of: 1) Receipt of a one-time major internationally recognized award such as Congress’ example, i.e., the Nobel Prize, see 8 CFR § 204.5(h)(3); or 2) At least three of the ten listed possibilities at 8 CFR § 204.5(h)(3)(i)-(x); or 3) “Comparable evidence” but only if none of the above apply to the beneficiary’s occupation and/or extraordinary ability.The first way to meet the initial threshold is by submitting “evidence of a one-timeachievement (that is, a major, international recognized award).” 8 C.F.R. §204.5(h)(3). The single example discussed by Congress was the Nobel Prize. Thisvisa is not really restricted only to Nobel Prize Winners. This one example fromCongress is an oversimplification.A very significant one-time achievement is not truly defined and is likely to changeover time. The Oscar is another example frequently thrown about. Officiallyknown as the Academy Awards, “Oscars” were first handed out on May 16, 1929,to 15 recipients. The variety and number of categories change and usually growover time. Few people have probably ever thought about those changes over time,or the “How” or “Why” of such changes. The Academy Award® for SpecialEffects was added in 1939, and was first won by Fred Sersen and E. H. Hansen of20th Century-Fox for “The Rains Came.” I would never have known if I didn’tneed to look it up to bolster my Amicus Brief 5to AAO on this topic.In 1963, the Special Effects award was split into two: Sound Effects and SpecialVisual Effects, in recognition of the fact that the best sound effects and best visualeffects did not necessarily come from the same film. The genre of special effects asan example has grown from the stop-motion of King Kong (1933) which was notrecognized as the innovation that is was, to the superb make-up of the Planet of theApes (1968) to Star Wars (1977) and beyond.Achievements in any given area or field of endeavor, and how we as a society viewand value such achievements changes in unpredictable ways so, the evidence isfluid. By “fluid” I mean that the evidence categories are dynamic and subject tosubstantial change over time. If the evidence of great achievement were static andunchanging then it could be more easily spelled out and codified in a list. The bestone can hope to list are broad categories which may themselves change over timeand are subject to reinterpretations.5 Amicus Brief on Final Merits Determination (Brief 5) (1KB PDF) or,http://www.uscis.gov/USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/Brief%205.PDF Page 2 of 4
  • 3. The next step in adjudicating the extraordinary ability visa classification petitionmay only proceed if the the first step has been successfully achieved. In otherwords, there is no need to attempt to answer questions that don’t require an answer.AAO has made some mistakes in proceeding with its full de novo reviews of theentire record of proceeding beyond the point at which it should stop. Oncedetermining that the evidence fails to meet the initial required showing, why havethey insisted on continuing to say anything after that point?AAO’s early post-Kazarian decisions seem to have missed that point. There isabsolutely no need to move on to a qualitative analysis and evaluation or “finalmerits determination” if the “antecedent procedural question” has not beensatisfactorily answered or in other words the case fails on the preliminaryquantitative aspect with insufficient evidence. To proceed to the more in-depthevaluation in the second step of the Kazarian analysis of evidence that does notmeet the initial threshold is a waste of resources. In addition, it lays the agencyopen to unnecessary criticism by a reviewing court. There is an inherent danger incontinuing to say something that does not need to be said in the first place. USCISin general is too engrained in tearing down the evidence offered.For example, the twenty (20) page non-precedent of July 11, 2011, noted above,contains some unnecessary analysis and negative criticism. On page seventeen(17), after painstakingly parsing and dissecting the evidence in order to decide thatthe evidence offered did not meet the initial threshold, there was no need tocontinue. AAO did not stop where it should have stopped. Instead they proceededto go through the motions of performing an irrelevant qualitative analysis andevaluation. They stated that they “must” conduct a final merits determinations andtheta they “must” look at the totality of the evidence. I say they were wrong in thatassertion. In order to consider the “totality of the evidence” as part of a “finalmerits determination” the case must be developed to the point that such aqualitative analysis is actually required. Here is an excerpt that shows themisunderstanding [underlining added for emphasis]. “C. Final Merits Determination In accordance with the Kazarian opinion, the AAO must next conduct a final merits determination that considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one Page 3 of 4
  • 4. 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 (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. § 1153(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1115. The petitioner established that he met the plain language of the regulation for one of the criteria, in which at least three are required under the regulation at 8 C.F.R. § 204.5(h)(3). In this case, many of the deficiencies in the documentation submitted by the petitioner have already been addressed in the preceding discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). In evaluating the final merits determination, the AAO must look at the totality of the evidence to conclude the petitioners eligibility pursuant to section 203 (b)(1)(A) of the Act. ....”I agree that if a case is worthy of the effort, that the approach outlined above issound. However, if the case has not progressed to the point of requiring any in-depth analysis there is no value in shredding the evidence any further than italready has been. In read one line in the quote above as an unfinished dig : “manyof the deficiencies in the documentation submitted by the petitioner have alreadybeen addressed in the preceding discussion” but we are going to point out evenmore deficiencies. I have to ask: “Why bother?”As noted in Rijal by District Judge Jones, “Although USCIS erred in some of its conclusions as to Mr. Rijal’s showing on the threshold evidentiary criteria, it is apparent that it made those errors with an eye toward the ultimate merits determination. In each instance, USCIS sought evidence that demonstrated sustained acclaim. There is no threshold requirement that the evidence demonstrate that acclaim, but ultimately, USCIS must determine whether the evidence demonstrates “sustained national or international acclaim.” 8 U.S.C. § 204.5(h)(3); see also Kazarian, 596 F.3d at 1121 (noting that evidence submitted to meet threshold criteria must support a “final merits determination” that the “petitioner is at the very top of his or her field of endeavor”). USCIS concluded that Mr. Rijal’s evidence demonstrated distinction, but not sustained acclaim sufficient to demonstrate “extraordinary ability.” Its May 2009 decision makes clear that this conclusion is not the result of its erroneous determination about Mr. Rijal’s threshold evidentiary showings, but rather a holistic determination about whether Mr. Rijal’s evidence, taken as a whole, sufficed:....” Rijal, 772 F. Supp. 2d. 1339, 1347-1348.If AAO can reign itself in in those cases where it determines that the initialthreshold has not been met then perhaps under an APA review cases would beremanded for a proper analysis when reviewing court finds that the bar washeightened. That should block a reviewing court from making a finding that AAOacted in a manner that was arbitrary and capricious. Such an approach should forcea court to remand the case for full analysis instead. That’s my two-cents, for now. Page 4 of 4

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