UNITED STATES COURT OF APPEALS              FOR THE NINTH CIRCUIT                ANIL RIJAL, Individually                 ...
Case: 11-35249            08/22/2011           ID: 7866055           DktEntry: 18          Page: 2 of 13                  ...
Case: 11-35249            08/22/2011          ID: 7866055          DktEntry: 18         Page: 3 of 13                     ...
Case: 11-35249    08/22/2011    ID: 7866055   DktEntry: 18   Page: 4 of 13 I.     The issue is whether the Plaintiff-Appel...
Case: 11-35249   08/22/2011    ID: 7866055    DktEntry: 18    Page: 5 of 13is thus whether the Plaintiff is a person of ex...
Case: 11-35249     08/22/2011    ID: 7866055    DktEntry: 18   Page: 6 of 13films relating to children and adverse conditi...
Case: 11-35249    08/22/2011      ID: 7866055   DktEntry: 18   Page: 7 of 13letter is once again a mere statement without ...
Case: 11-35249      08/22/2011     ID: 7866055     DktEntry: 18   Page: 8 of 13   In the instant case, the District Court ...
Case: 11-35249     08/22/2011     ID: 7866055    DktEntry: 18   Page: 9 of 13IV.      The rationale set forth in Muni v IN...
Case: 11-35249     08/22/2011    ID: 7866055    DktEntry: 18   Page: 10 of 13   evidence of an alien’s extraordinary abili...
Case: 11-35249     08/22/2011   ID: 7866055   DktEntry: 18   Page: 11 of 13V.      Appellant Sustained National and Intern...
Case: 11-35249    08/22/2011    ID: 7866055    DktEntry: 18   Page: 12 of 13Appellant’s motion to reconsider that decision...
Case: 11-35249     08/22/2011   ID: 7866055    DktEntry: 18   Page: 13 of 13                     VII.    CERTIFICATE OF SE...
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Anil Rijal reply brief to USCIS in 9th circuit appeal

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Transcript of "Anil Rijal reply brief to USCIS in 9th circuit appeal"

  1. 1. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ANIL RIJAL, Individually Petitioner - Appellant, vs.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Respondent - Appellee. APPELLANT’S REPLY BRIEF ON APPEAL FROM THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON MIKKELBORG, BROZ, WELLS & FRYER PLLC ROBERT O. WELLS, JR., WA. NO. 02320 LAFCADIO H. DARLING, WA. NO. 29963 1001 FOURTH AVENUE, SUITE 3600 SEATTLE, WASHINGTON 98154 TEL: (206) 623-5890
  2. 2. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 2 of 13 TABLE OF CONTENTSI. The issue is whether the Plaintiff-Appellant is a person of extraordinary ability “in his field of endeavor.” 8 C.F.R. § 204.5(h)(2). He must provide evidence that his achievements “. . . have been recognized in the field of expertise.” 8 C.F.R. § 204.5(h)(3)..........................................................................................................1II. The AAO either totally ignored or erroneously rejected clearly probative evidence strongly supporting appellant’s entitlement to an immigrant visa based upon his extraordinary ability. The District Court erred by concluding that the AAO “explicitly” considered all the evidence Appellant offered in deciding the case. (S.E.R. 11). ....................2III. Based upon this Court’s holding in Kazarian v. USCIS, et al., 596 F.3d 1059 (9th Cir. 2010), the AAO committed far more than harmless error in concluding that the Appellant had not satisfied the required objective criteria set forth in 8 C.F.R. § 204.5(h)................................4IV. The rationale set forth in Muni v INS, 891 F.Supp. 440 (N.D. Ill. 1995), holding that the former INS abused its discretion in denying “extraordinary ability” classification to a National Hockey League defenseman, is directly applicable to the instant case........................................6V. Appellant Sustained National and International Acclaim Through Performance In a Leading and Critical Role For Organizations Or Establishments With Distinguished Reputations. ..............................................8VI. CONCLUSIONS ................................................................................................8VII. CERTIFICATE OF SERVICE ........................................................................10 i
  3. 3. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 3 of 13 TABLE OF AUTHORITIESCasesKazarian v. USCIS, et al., 596 F.3d 1059 (9th Cir. 2010) ......................................4, 9Muni v INS, 891 F.Supp. 440 (N.D. Ill. 1995) .......................................................6, 7Safari Aviation Inc v Garvey, 300 F.3d 1144 (9th Cir 2002) .....................................5Other Authorities8 no. 19 BENDER’S IMMIGRATION BULLETIN 1574 (Oct. 1, 2003) .............................18 no. 5 BENDER’S IMMIGRATION BULLETIN 605 (April 1, 2003) ...............................180 no. 6 INTERPRETER RELEASES 215-217 (Feb. 10, 2003); ......................................180 no. 8 INTERPRETER RELEASES 276 (Feb. 24, 2003)...............................................1Regulations8 C.F.R. § 204.5(h) ................................................................................................1, 48 C.F.R. § 204.5(h)(2)................................................................................................18 C.F.R. § 204.5(h)(3)............................................................................................1, 6Administrative DecisionsMatter Of Price, 20 I. & N. Dec. 953 (BIA 1994).....................................................1 ii
  4. 4. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 4 of 13 I. The issue is whether the Plaintiff-Appellant is a person of extraordinary ability “in his field of endeavor.” 8 C.F.R. § 204.5(h)(2). He must provide evidence that his achievements “. . . have been recognized in the field of expertise.” 8 C.F.R. § 204.5(h)(3). The Appellee’s Administrative Appeals Office (AAO) has determined thatindividuals engaged in many diverse endeavors are qualified as persons ofextraordinary ability. In addition to Matter Of Price, 20 I. & N. Dec. 953 (BIA1994) cited by the Appellee herein, representative examples include the following: (1) A market researcher specializing in the emotional needs and reactions of users of various commercial products (AAO 8/29/2002) reported in 8 no. 5 BENDER’S IMMIGRATION BULLETIN 605 (April 1, 2003); (2) A Chinese artist who the AAO specifically determined was required to meet only three and not all of the criteria set forth in 8 C.F.R. § 204.5(h) - (AAO 10/08/2002) reported in 80 no. 6 INTERPRETER RELEASES 215-217 (Feb. 10, 2003); (3) Editor and Chief/Journalist of Chinese newspaper (AAO 3/11/2003) reported in 8 no. 19 BENDER’S IMMIGRATION BULLETIN 1574 (Oct. 1, 2003); (4) A marathon runner (AAO 12/10/2002) reported in 80 no. 8 INTERPRETER RELEASES 276 (Feb. 24, 2003). The enumerated cases are representative of persons in a variety of walks of lifedeemed by the AAO to be persons of extraordinary ability. Other examplesinclude a mountain climber, a Chinese folk dancer, and a skeet shooter. The issue 1
  5. 5. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 5 of 13is thus whether the Plaintiff is a person of extraordinary ability in his “field ofendeavor,” which is the production and direction of documentaries specificallyaddressed to the international exploitation of children.II. The AAO either totally ignored or erroneously rejected clearly probative evidence supporting appellant’s entitlement to an immigrant visa based upon his extraordinary ability. The District Court erred by concluding that the AAO “explicitly” considered all the evidence Appellant offered in deciding the case. (S.E.R. 11). Reference is first made to pages 24-28 of Appellant’s Opening Brief for a moredetailed analysis. In reply to Appellee’s Answering Brief, Appellee’s counsel (atpage 26) refers to the AAO specifically considering a letter from Frode Pedersenconcluding that “going on record without supporting documentary evidence is notsufficient for meeting the burden of proof in these proceedings.” That denigrating remark is representative of the AAO’s disregard of clearlyprobative evidence substantiating that the Appellant has sustained acclaimcontinually from 1997 and 2001, to the present time, for his direction andproduction of two major documentary films relating to the plight of children, eachof which continues to be presented annually at film festivals of prestigiousorganizations in many countries of the world dedicated to the suffering of children.(E.R. 59-61; E.R. 280-282). The “supporting documentation” of the statements made by Mr. Pedersen is acareer spanning almost 50 years in the direction and production of documentary 2
  6. 6. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 6 of 13films relating to children and adverse conditions affecting them. His statements offact are entitled to acceptance and consideration as solid substantive evidence. Thedismissive attitude expressed by the AAO is truly appalling. Further reference is made to the AAO’s rejection (S.E.R. 19) of an articleappearing in Himal Magazine published in Nepal in its edition dated 16-30 2001entitled “Well Done Mr. Anil Rijal” (E.R. 793-794) describing in detail the plot of“Four Years In Hell” and the Appellant’s direction and production of the filmwhich was selected for the UNICEF award from 175 documentaries exhibited by110 television stations in that competition. The rejection by the AAO of the article was erroneously based upon alleged“handwritten notations purporting to show the publication and date of the articles.”The article is clearly dated in print and is accompanied by a certificate of accuracysigned by the translator dated September 30, 2005 (E.R. 792). The AAO’sdismissive rejection of the article on erroneous grounds is representative of itsarbitrary, capricious, and erroneous review of the evidence presented. Appellee’s Answering Brief concedes (pages 28-29) that the AAO’s decisiondoes not specifically address a letter from Kantipur Publications Pvt. Ltd., a majorcompany with long experience in newspaper publication and the televisionindustry in Nepal, describing Mr. Rijal’s critical role in establishing the televisionindustry in Nepal (E.R. 175-177). However, Appellee’s counsel asserts that this 3
  7. 7. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 7 of 13letter is once again a mere statement without supporting documentary evidence.The letter, submitted by the managing editor of a major media concern, is basedupon the writer’s substantial experience in the television industry. The statementsof fact made in the letter, based upon the writer’s personal knowledge, are entitledto substantial weight. In summary, the AAO did not, explicitly or otherwise, consider all the evidenceAppellant offered in making its decision.III. Based upon this Court’s holding in Kazarian v. USCIS, et al., 596 F.3d 1059 (9th Cir. 2010), the AAO committed far more than harmless error in concluding that the Appellant had not satisfied the required objective criteria set forth in 8 C.F.R. § 204.5(h). The regulations cited provide that a petition for an alien of extraordinary abilitymust be accompanied by evidence that the alien has sustained national orinternational acclaim and that his or her achievements have been recognized in thefield of expertise. The evidence required must show the petitioner has eitherreceived a major internationally recognized award, or that he or she satisfies atleast three of ten objective criteria. In the Kazarian case, the AAO concluded that the petitioner did not satisfy anyof the enumerated objective criteria. This Court determined that the petitioner hadclearly satisfied two of the objective criteria and held that the AAO erred, but thatsuch error was harmless because there was no evidence that the Appellant satisfiedthe three required criteria. 4
  8. 8. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 8 of 13 In the instant case, the District Court held that the AAO had erred in concludingthat the petitioner had not satisfied any of the enumerated objective criteria. Thecourt affirmatively found that Appellant had, in fact, satisfied four of the statedcriteria but reasoned that such was harmless error because the AAO used a holisticapproach in determining that the Appellant had not demonstrated “sustainednational or international acclaim.” (S.E.R. 10). Appellant respectfully disagrees with the District Court’s conclusion. Basedupon the rationale of this Court’s decision in Kazarian, the AAO here erred inrepeatedly heightening the evidentiary threshold in holding that Appellant had notsatisfied at least four of the ten objective regulatory criteria. Appellant submits that the AAO’s egregious misapplication of its ownregulations constitutes prejudicial error. Those repetitive errors reflect an arbitraryand capricious approach to deciding this case. Combined with the AAO’serroneous disregard and/or rejection of strong probative evidence presented by theAppellant, the disregard by the AAO of its own regulations demonstratesentitlement to reversal under the arbitrary and capricious standard enunciated bythis Court in Safari Aviation Inc v Garvey, 300 F.3d 1144 (9th Cir 2002), to whichAppellee’s Answering Brief refers at page 20. 5
  9. 9. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 9 of 13IV. The rationale set forth in Muni v INS, 891 F. Supp. 440 (N.D. Ill. 1995), holding that the former INS abused its discretion in denying “extraordinary ability” classification to a National Hockey League defenseman, is directly applicable to the instant case. In Muni, the district court held that the Immigration and Naturalization Serviceabused its discretion when it acted without rationale explanation by its failure to “.. . weigh important factors and to state its reasons for denying relief.” The courtstated: We find that the INS abused its discretion here because it failed to consider several facts that supported Muni’s petition and failed to explain why the facts it did consider were . . . insufficient to establish Muni’s extraordinary ability. The Muni court listed five examples of the abuse by INS of its discretion. Thefollowing statements by the court are clearly pertinent to the present case: Fourth, the INS gave short shrift to the articles Muni submitted to support his petition. These articles do not establish that Muni is one of the stars of the NHL, but that is not the applicable standard. Under the INS’ own regulations, all Muni need show is that there is “published material about [him] in professional or major trade publications or other major media, relating to [his] work in the field for which classification is sought.” 8 C.F.R. § 204.5(h)(3)( iii). ***** Finally, the INS completely ignored the eight affidavits Muni submitted. Those affidavits, sworn to by veteran NHL players of considerable renown, described Muni as “an excellent defenseman,” “one of the best defenseman in professional hockey,” “a prominent hockey player in the NHL with great skating and defensive abilities,” “one of the better defenders in the game,” and “one of the premier defensemen in the NHL” (Admin. Rec. at 105, 107, 109, 111, 113). The INS’ failure even to consider these affidavits is clear evidence that it did not adequately evaluate the facts before it. The affidavits establish that Muni is, at minimum, an above-average player whose peers - - the world’s best hockey players - - respect his athletic abilities. Better 6
  10. 10. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 10 of 13 evidence of an alien’s extraordinary ability would be difficult to find, yet the INS did not even mention it in its decision.Muni 891 F. Supp. at 444 (emphasis added). In the Muni case, INS completely ignored the affidavits of veteran NFL hockeyplayers attesting to the appellant’s superior status as a hockey player. In the instantcase, the AAO disregarded factual evidence presented by highly accredited majorpersonages within the television and film industry in Nepal, Greater Asia, Demark,the U.S., Switzerland, and Germany, as outlined in substantial detail in Appellant’sOpening Brief (see pages 18-21 with respect to the major internationallyrecognized status of the awards received by Appellant for “Kumari – The LivingGoddess” and “Four Years In Hell”; and pages 22-24 relating to the sustainedacclaim of the Appellant based upon his critical role in establishing the televisionindustry in Nepal and more broadly within Asia, and his direction and productionof the two major documentaries). In summary, as in the Muni case, the Appellee’s AAO abused its discretion indeciding the instant case by completely ignoring or cavalierly dismissing strongfactual evidence presented by persons of vast experience within that segment of thetelevision and film industry focused upon the Appellant’s field of endeavor – thedirection and publication of documentary films depicting the exploitation ofchildren. 7
  11. 11. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 11 of 13V. Appellant Sustained National and International Acclaim Through Performance In a Leading and Critical Role For Organizations Or Establishments With Distinguished Reputations. Appellee’s Answering Brief (page 30) is erroneously dismissive of thedocumentary evidence submitted by Appellant relating to the major work he hasperformed on behalf of international organizations of renown. That evidenceincludes Frode Pedersen’s letter dated October 27, 2007 (E.R. 280-282), whichstates in pertinent part: Based upon his (Appellant’s) international reputation and mine it was not difficult to obtain support from international organizations like UNICEF, CARE, and Save The Children for international productions the two of use developed together.(E.R. 280). Further reference is made to Mr. Pedersen’s 2009 letter stating inpertinent part (E.R. 60): Because of the support of UNICEF and the international standards of the two films, UNICEF has honored us by distributing the films worldwide in celebration of International Children’s Day of Broadcasting on the second Sunday in each September. That practice continues to this date. UNICEF, CARE, and Save The Children are undeniably world renownedorganizations steadfastly engaged in efforts to eradicate the internationalexploitation of children. VI. CONCLUSIONS The AAO arbitrarily, capriciously and erroneously concluded in its May 28,2009 decision that the evidence presented by the Appellant was not probative. 8
  12. 12. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 12 of 13Appellant’s motion to reconsider that decision was timely filed before theKazarian decision was issued. The motion to reopen pointedly provided anopportunity for the AAO to rectify the errors inherent in its May 28, 2009 decision. The AAO declined the opportunity to reconsider, erroneously dismissing themotion to reconsider as improper. Accordingly, Appellant once again submits thatthe record clearly supports a decision by this Court reversing the District Court anddirecting the Appellee to approve the Immigrate Visa Petition submitted by theAppellant. RESPECTFULLY SUBMITTED this _22nd_day of August, 2011. _/s/ Robert O. Wells, Jr. Robert O. Wells, WSBA No.02320 Lafcadio H. Darling, WSBA No. 29963 Counsel for Appellant Anil Rijal 1001 Fourth Avenue, Suite 3600 Seattle, WA 98154-1115 206-623-5890 9
  13. 13. Case: 11-35249 08/22/2011 ID: 7866055 DktEntry: 18 Page: 13 of 13 VII. CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing with the Clerk of Court for the UnitedStates Court of Appeals for the Ninth Circuit by using the CM/ECF System. I further certify that I have mailed the foregoing document by U.S. Mail, postageprepaid, to the following: Robert D. Brouillard 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 Jeffrey Michael Bauer U.S. Department of Justice PO Box 868 Washington, D.C. 20044 Dated this 22nd day of August, 2011 _/s/ Robert O. Wells, Jr. ROBERT O. WELLS, Jr., WSBA # 02320Counsel appears to have taken the approach of defining the visaapplicant’s occupational “field of endeavor” in a similarmanner as defining the asylum applicant’s membership in a“particular social group”. I want to see how that plays out. 10

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