Case: 11-35249    08/10/2011    ID: 7852116   DktEntry: 12   Page: 1 of 41                             No. 11-35249       ...
Case: 11-35249           08/10/2011         ID: 7852116         DktEntry: 12         Page: 2 of 41                        ...
Case: 11-35249   08/10/2011       ID: 7852116          DktEntry: 12         Page: 3 of 41                 B.      Arbitrar...
Case: 11-35249          08/10/2011         ID: 7852116        DktEntry: 12        Page: 4 of 41                           ...
Case: 11-35249          08/10/2011        ID: 7852116         DktEntry: 12       Page: 5 of 41                            ...
Case: 11-35249           08/10/2011          ID: 7852116          DktEntry: 12        Page: 6 of 41Northwest Motorcycle As...
Case: 11-35249            08/10/2011          ID: 7852116          DktEntry: 12         Page: 7 of 41                     ...
Case: 11-35249     08/10/2011     ID: 7852116    DktEntry: 12    Page: 8 of 41                                 INTRODUCTIO...
Case: 11-35249     08/10/2011    ID: 7852116     DktEntry: 12   Page: 9 of 41demonstrate sustained acclaim sufficient to p...
Case: 11-35249     08/10/2011     ID: 7852116    DktEntry: 12    Page: 10 of 41       Specifically, pursuant to 8 U.S.C. §...
Case: 11-35249     08/10/2011     ID: 7852116    DktEntry: 12      Page: 11 of 41expertise indicating that the individual ...
Case: 11-35249      08/10/2011    ID: 7852116     DktEntry: 12    Page: 12 of 41      (vii) Evidence of the display of the...
Case: 11-35249    08/10/2011    ID: 7852116    DktEntry: 12   Page: 13 of 41that their achievements have garnered “sustain...
Case: 11-35249     08/10/2011     ID: 7852116    DktEntry: 12    Page: 14 of 41he had sustained national or international ...
Case: 11-35249     08/10/2011     ID: 7852116    DktEntry: 12    Page: 15 of 41INS, No. 98-C-6132, 2001 WL 11055 (N.D. Ill...
Case: 11-35249     08/10/2011     ID: 7852116    DktEntry: 12    Page: 16 of 41he served as a volunteer professor and a Sc...
Case: 11-35249     08/10/2011     ID: 7852116    DktEntry: 12    Page: 17 of 41‘extraordinary ability’ visa,” and he “fail...
Case: 11-35249      08/10/2011    ID: 7852116     DktEntry: 12    Page: 18 of 412004; several letters of recommendation an...
Case: 11-35249     08/10/2011    ID: 7852116    DktEntry: 12    Page: 19 of 41must clearly demonstrate that you have susta...
Case: 11-35249      08/10/2011    ID: 7852116     DktEntry: 12    Page: 20 of 412001 to support his claim that his accompl...
Case: 11-35249     08/10/2011    ID: 7852116    DktEntry: 12    Page: 21 of 41Administrative Appeals Office (“AAO”). E.R. ...
Case: 11-35249      08/10/2011    ID: 7852116     DktEntry: 12    Page: 22 of 41festivals and opining about Rijal’s abilit...
Case: 11-35249    08/10/2011    ID: 7852116    DktEntry: 12   Page: 23 of 41of Young Asia Television, describing Rijal’s c...
Case: 11-35249    08/10/2011    ID: 7852116    DktEntry: 12   Page: 24 of 41evidence to establish that the decision was ba...
Case: 11-35249      08/10/2011    ID: 7852116     DktEntry: 12    Page: 25 of 41of its conclusions as to Mr. Rijal’s showi...
Case: 11-35249    08/10/2011    ID: 7852116    DktEntry: 12    Page: 26 of 41correct when it held that USCIS did not act a...
Case: 11-35249      08/10/2011   ID: 7852116     DktEntry: 12   Page: 27 of 41        B.    Arbitrary, Capricious Or Abuse...
Case: 11-35249    08/10/2011    ID: 7852116     DktEntry: 12   Page: 28 of 41        In addition, the Homeland Security Ac...
Case: 11-35249     08/10/2011     ID: 7852116    DktEntry: 12    Page: 29 of 41Mr. Rijal asserts that the two awards he wo...
Case: 11-35249     08/10/2011    ID: 7852116     DktEntry: 12   Page: 30 of 41public.” S.E.R. at 17. The AAO noted that “C...
Case: 11-35249      08/10/2011    ID: 7852116      DktEntry: 12   Page: 31 of 41§ 1153(b)(1)(A), contending that he was an...
Case: 11-35249     08/10/2011     ID: 7852116     DktEntry: 12   Page: 32 of 41“contributions of major significance in the...
Case: 11-35249     08/10/2011    ID: 7852116    DktEntry: 12    Page: 33 of 41television and motion picture industry for e...
Case: 11-35249     08/10/2011    ID: 7852116     DktEntry: 12   Page: 34 of 41300 F.3d 1144, 1150 (9th Cir. 2002). Accordi...
Case: 11-35249     08/10/2011     ID: 7852116    DktEntry: 12    Page: 35 of 41            3. Mr. Rijal Failed to Establis...
Case: 11-35249      08/10/2011     ID: 7852116    DktEntry: 12    Page: 36 of 41is not sufficient for meeting the burden o...
Case: 11-35249     08/10/2011     ID: 7852116     DktEntry: 12   Page: 37 of 41acclaim. As the district court held, that c...
Case: 11-35249   08/10/2011   ID: 7852116   DktEntry: 12   Page: 38 of 41August 10, 2011                    Respectfully s...
Case: 11-35249      08/10/2011    ID: 7852116    DktEntry: 12    Page: 39 of 41                        STATEMENT OF RELATE...
Case: 11-35249    08/10/2011    ID: 7852116   DktEntry: 12   Page: 40 of 41                      CERTIFICATE OF COMPLIANCE...
Case: 11-35249    08/10/2011    ID: 7852116     DktEntry: 12   Page: 41 of 41                         CERTIFICATE OF SERVI...
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Uscis brief to Rijal 9th cir I-140 Kazarian analysis

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6 U.S.C. § 522 instead of Chevron deference

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Uscis brief to Rijal 9th cir I-140 Kazarian analysis

  1. 1. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 1 of 41 No. 11-35249 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________________ ANIL RIJAL, Plaintiff-Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant-Appellee. __________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON District Court Case No. 2:10-CV-00709-RAJ ___________________________________________ DEFENDANT-APPELLEE’S ANSWERING BRIEF ___________________________________________TONY WEST JEFFREY M. BAUERAssistant Attorney General Trial AttorneyCivil Division U.S. Department of Justice Civil Division Office of Immigration LitigationSAMUEL GO District Court SectionSenior Litigation Counsel P.O. Box 868, Ben Franklin StationOffice of Immigration Litigation Washington, D.C. 20044District Court Section (202) 532-4786 Attorneys for Defendants-Appellees
  2. 2. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 2 of 41 TABLE OF CONTENTSINTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1STATEMENT OF LEGAL FRAMEWORK.. . . . . . . . . . . . . . . . . . . . . . . . 2 A. The Statutory and Regulatory Framework.. . . . . . . . . . . . . . . . 2 B. USCIS Determinations Involving The “Extraordinary Ability” Visa Category.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C. Federal Courts’ Determinations Involving the “Extraordinary Ability” Category.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7STATEMENT OF RELEVANT FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . 10 I. Administrative Proceedings.. . . . . . . . . . . . . . . . . . . . . 10 A. Mr. Rijal’s Form I-140 Petition. . . . . . . . . . . . . 10 B. USCIS Request For Additional Evidence.. . . . . 11 C. USCIS’s Decision Dated March 21, 2007. . . . . . 13 D. Mr. Rijal’s Appeals.. . . . . . . . . . . . . . . . . . . . . . 13 E. The AAO’s May 28, 2009 Decision. . . . . . . . . . 15 F. Mr. Rijal’s Motion To Reopen And Reconsider. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 II. The District Court Decision.. . . . . . . . . . . . . . . . . . . . . 17SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 I. THE STANDARD OF REVIEW. . . . . . . . . . . . . . . . . 19 A. De Novo Review. . . . . . . . . . . . . . . . . . . . . . . . 19 i
  3. 3. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 3 of 41 B. Arbitrary, Capricious Or Abuse Of Discretion Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 II. THE DISTRICT COURT WAS CORRECT IN UPHOLDING USCIS’ DENIAL OF RIJAL’S VISA PETITION BECAUSE RIJAL FAILED TO DEMONSTRATE THAT HE SATISFIES THE LEGAL CRITERIA De Novo Review. . . . . . . . . . . . . . . . . . . . 21 A. The District Court Was Correct When It Held That USCIS Did Not Act Arbitrarily and Capriciously in Concluding that Mr. Rijal Lacked a Qualifying “One-Time Achievement”. . . . . . . . . . . . . . . . . . 21 B. The District Court Was Correct That USCIS’ Error In Determining That Mr. Rijal Had Not Any of The Alternative Evidentiary Criteria Was Harmless. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 1. Mr. Rijal Failed to Establish That He Had Sustained National or International Acclaim Through Lesser Nationally or Internationally Recognized Prizes or Awards In His Field Of Endeavor. . . . . . . . . . . . . . . . . . . . . . . . . . 25 2. Mr. Rijal Failed to Establish That He Had Sustained National or International Acclaim Through His Participation As A Judge Or the Work Of Others. . . . . . . . . . . . . . . . . . . . . 27 3. Mr. Rijal Failed to Establish That He Had Sustained National or International Acclaim Through Original Contributions To His Field. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 4. Mr. Rijal Failed to Establish That He Had Sustained National or International Acclaim Through The Display Of his Work In Artistic Exhibitions or Showcases. . . . . . . . . . . . . 29 ii
  4. 4. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 4 of 41 5. Mr. Rijal Failed to Establish That He Had Sustained National or International Acclaim Though Performance In A Leading or Critical Role for Organizations or Establishments That Have a Distinguished Reputation Showcases. . . . . . . . . . . . . . . . 30CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30STATEMENT OF RELATED CASESCERTIFICATE OF COMPLIANCECERTIFICATE OF SERVICE iii
  5. 5. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 5 of 41 TABLE OF AUTHORITIES CASESAmerican Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . 20Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 290 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Family Inc. v. USCIS, 469 F.3d at 1315 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20Gifford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F.3d 1059, 1071 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . 23Kazarian v. USCIS, et al., 596 F.3d 1115 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . 1, passimLee v. Ziglar, 237 F. Supp. 2d 914 (N.D. Ill. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . 7Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . 19Lujan v. Pac. Mari. Ass’n, 165 F.3d 738, 741 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Ins. Co., 463 U.S. 29, 43 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Muni v. INS, 891 F. Supp. 440 (N.D. Ill. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 iv
  6. 6. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 6 of 41Northwest Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1478 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 21Pazcoguin v. Radcliffe, 292 F.3d 1209, 1213 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . 5Russell v. INS, No. 98-C-6132, 2001 WL 11055 (N.D. Ill. Jan. 4 2001). . . . . . . . . 7, 8Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir. 2002), cert. denied 538 U.S. 946 (2003).. . . . . . . . . . . . . . . . . . . 20, 26, 27, 30 ADMINISTRATIVE DECISIONSMatter of Price, 20 I. & N. Dec. 953 (BIA 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Matter of Soffici, 22 I. & N. Dec. 158, 165 (Comm’r 1998). . . . . . . . . . . . . . . . . . . . . 6, 7 STATUTES5 U.S.C. § 706(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 U.S.C. § 522 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 U.S.C. § 1153(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 U.S.C. § 1153(b)(1)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, passim8 U.S.C. § 1153(b)(1)(A)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 25, 298 U.S.C. § 1153(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 U.S.C. § 1182(a)(5).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 v
  7. 7. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 7 of 41 HOMELAND SECURITY ACTPub. L 107-296, 116 Stat. 2135 (Nov. 25, 2002).. . . . . . . . . . . . . . . . . . . . . 21 IMMIGRATION ACT OF 1990Pub. L. No. 101-649, 101 Stat. 4978 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . 2 REGULATIONS8 C.F.R. § 103.3(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 C.F.R. § 204.5(h)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 58 C.F.R. § 204.5(h)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, passim8 C.F.R. § 204.5(h)(3)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 C.F.R. § 204.5(h)(3)(i)-(x). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 C.F.R. § 204.5(h)(3)(iv). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 C.F.R. § 204.5(h)(3)(v).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 C.F.R. § 204.5(h)(3)(vii).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 C.F.R. § 204.5(k)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 vi
  8. 8. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 8 of 41 INTRODUCTION Plaintiff-Appellant Anil Rijal (“Rijal”) a filmmaker who is a native andcitizen of Nepal, seeks to overturn the decision of United States Citizenship andImmigration Services (“USCIS”) denying his Form I-140 petition for animmigration visa preference as an alien “of extraordinary ability.” USCIS deniedRijal’s petition after determining that Rijal was unable to sufficiently demonstratethat he was an alien of extraordinary ability as required by 8 U.S.C. §1153(b)(1)(A). Specifically, USCIS concluded that Rijal failed to establish that hehad sustained national or international acclaim through evidence of a one-timeachievement (that is, a major, internationally recognized award) and failed toestablish that he had sustained national or international acclaim through evidenceof at least three of the regulatory criteria set forth at 8 C.F.R. § 204.5(h)(3). Thedistrict court subsequently granted summary judgment in favor of USCIS.Although the district court found that USCIS erred by not following the analyticalframework set forth in Kazarian v. USCIS, et al., 596 F.3d 1115 (9th Cir. 2010) –which was decided after USCIS adjudicated Rijal’s petition – but also found thatUSCIS’s error was harmless, because it was made with an eye toward the ultimatemerits determination. The district court concluded that USCIS appropriatelyevaluated Rijal’s evidence, and its conclusion that the evidence did not 1
  9. 9. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 9 of 41demonstrate sustained acclaim sufficient to prove Rijal’s “extraordinary ability”was neither arbitrary nor capricious. This Court should affirm the district court’sholding. STATEMENT OF THE LEGAL FRAMEWORK A. The Statutory and Regulatory Framework. Generally, aliens coming to work in the United States must have a specificjob offer from a U.S. employer, and that employer must demonstrate that theDepartment of Labor has certified that there are not sufficient United Statesworkers who are able, willing, and qualified to perform the alien’s proposed job,and that the employment of the alien will not adversely affect the wages andworking conditions of similarly employed United States workers. See 8 U.S.C. §1182(a)(5). Unlike other employment-based visa categories, however, an “alien ofextraordinary ability” is exempted from the job offer requirement, and is alsotherefore exempted from the need to obtain an individual labor certification whichcan be challenged by United States workers.11 The “extraordinary ability” visa was created by the passage of the ImmigrationAct of 1990 (“IMMACT”), Pub. L. No. 101-649, 101 Stat. 4978 (1990).IMMACT created thousands of employment-based visas according to threeemployment preferences. “Aliens with extraordinary ability” are considered“priority workers” and have the first preference. 8 U.S.C. § 1153(b)(1). As thestatute makes clear, “extraordinary ability” is distinct from “exceptional ability,”which receives second preference. Aliens of “exceptional ability” are judged by alesser standard than aliens of “extraordinary ability.” Compare 8 U.S.C. §1153(b)(1)(A) with 8 U.S.C. § 1153(b)(2); see also 8 C.F.R. § 204.5(k)(2) 2
  10. 10. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 10 of 41 Specifically, pursuant to 8 U.S.C. § 1153(b)(1)(A), an alien may obtain anemployment-based visa as an “alien of extraordinary ability” if “alien hasextraordinary ability in the sciences, arts, education, business, or athletics whichhas been demonstrated by sustained national or international acclaim and whoseachievements have been recognized in the field through extensive documentation.”8 U.S.C. § 1153(b)(1)(A) (emphasis added). The classification of an alien as one of “extraordinary ability” is reserved forthat small percentage of individuals who have risen to the very top of their fields ofendeavor. H. R. Rep. No. 723, 101st Cong., 2d Sess., reprinted in 1990U.S.C.C.A.N. 6710, 6739 (September 19, 1990). One who seeks such aclassification is required to submit extensive documentation in support of hisclaim. Id. at 6749; see also 8 U.S.C. 1153(b)(1)(A)(i). The language of the HouseReport limiting the issuance of “extraordinary ability” visas to the “smallpercentage of individuals who have risen to the very top of their fields ofendeavor” is repeated in the “extraordinary ability” regulation, 8 C.F.R. §204.5(h)(2). The regulations further demonstrate the narrow scope of the “alien ofextraordinary ability” visa preference category as an alien who has “a level of(“exceptional ability in the sciences, arts, or business means a degree of expertisesignificantly above that ordinarily encountered in the sciences, arts, or business”). 3
  11. 11. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 11 of 41expertise indicating that the individual is one of that small percentage who haverisen to the very top of the field of endeavor.” 8 C.F.R. § 204.5(h)(2) (emphasisadded). The regulations further state that a petition for an alien of extraordinaryability “must 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.” 8 C.F.R. § 204.5(h)(3) (emphasis added). “Such evidence shallinclude evidence of a one-time achievement (that is, a major, internationalrecognized award), or 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; (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; 4
  12. 12. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 12 of 41 (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). Once an applicant meets his evidentiary threshold by submittingevidence of at least three of the criteria set forth in 8 C.F.R. § 204.5(h)(3),USCIS determines whether the evidence provided demonstrates both a“level of expertise indicating that the individual is one of that smallpercentage who have risen to the very top of the[ir] field of endeavor,” andthat “the alien has sustained national or international acclaim and that his orher achievements have been recognized in the field of expertise.” Kazarian,596 F.3d at 1119-20 (quoting 8 C.F.R. §§ 204.5(h)(2) & (3)). The alienbears the burden of proving eligibility for the immigrant classification. 8U.S.C. § 1361; see also Pazcoguin v. Radcliffe, 292 F.3d 1209, 1213 (9thCir. 2002). Only those aliens who have met their burden of demonstrating 5
  13. 13. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 13 of 41that their achievements have garnered “sustained national or internationalacclaim” are eligible for an “extraordinary ability” visa. Kazarian, 596 F.3dat 1120 (citing 8 U.S.C. § 1153(b)(1)(A)(i)). B. USCIS Determinations Involving The “Extraordinary Ability” Visa Category. In evaluating the evidence proffered by an alien seeking classification as oneof “extraordinary ability,” USCIS officers are bound by published decisions of theAAO. 8 C.F.R. § 103.3(c). The only AAO precedent decision involving the“extraordinary ability” visa category is Matter of Price, 20 I. & N. Dec. 953 (BIA1994). In that case, the professional golfer Nick Price was found to have met theexacting “extraordinary ability” standard based on his overall world ranking (10thout of 600 playing professionals); numerous articles in Golf Digest and GolfMagazine regarding his ability; and his winning several “Player of the Year”awards, all of which were supported by the affidavits submitted by world-renowned golfers such as Jack Nicklaus, Lee Trevino, Hale Irwin, Craig Stadler,and Tom Kite, and the Commissioner of the PGA Tour. Id. The then-INScommissioner discussed the significance of each accomplishment and concludedthat Mr. Price demonstrated that he was within the small percentage of individualswho had risen to the very top of the field of golf. Id. Mr. Price demonstrated that 6
  14. 14. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 14 of 41he had sustained national or international acclaim and that his achievements hadbeen recognized in the field. Id. C. Federal Courts’ Determinations Involving The “Extraordinary Ability” Visa Category. The high standard of eligibility set forth in the Matter of Price has beenconfirmed by federal courts that have considered the “extraordinary ability” visacategory. For example, in Lee v. Ziglar, 237 F. Supp. 2d 914 (N.D. Ill. 2002), theU.S. District Court for the Northern District of Illinois affirmed the former INS’sdenial of Man Soo Lee’s “extraordinary ability” visa application. That caseinvolved Man Soo Lee, one of the most famous baseball players in Korean history.Lee, 237 F. Supp. 2d at 915. Mr. Lee held the career home run record in Korea formany years, had numerous All Star Game appearances, the Triple Crown Title (forleading the league in batting average, home runs, and runs batted in all in the sameseason), season MVP and five Golden Glove awards. Id. at 916. The court found,however, that INS did not abuse its discretion in denying “extraordinary ability”status to Mr. Lee because he could not show that he had ever achieved acclaim as acoach, the position for which he sought classification. Id. at 918-19. The courtopined that, because the “visa classification for extraordinary ability is anextremely restrictive one,” absent an abuse of discretion, the court must defer tothe agency’s reasonable interpretation of the statute. Id. at 919; see also Russell v. 7
  15. 15. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 15 of 41INS, No. 98-C-6132, 2001 WL 11055 (N.D. Ill. Jan. 4, 2001) (INS denial of“extraordinary ability” petition was not an abuse of discretion); but see Muni v.INS, 891 F. Supp. 440 (N.D. Ill. 1995) (holding that the former INS abused itsdiscretion in denying “extraordinary ability” classification to NHL defensemanCraig Muni who won 3 Stanley Cups with the Edmonton Oilers, was named one ofthe top ten hitting defensemen by Hockey Digest, had an annual salary above theleague average, and submitted affidavits from eight veteran NHL players stating hewas one of the best defensemen in hockey). After USCIS initially denied Rijal’s petition and administrative appeal, thisCourt decided Kazarian v. USCIS, et al., 596 F.3d 1115 (9th Cir. 2010), the onlyreported case from the U.S. Courts of Appeal addressing the “extraordinaryability” visa classification. In Kazarian, this Court affirmed the district court’sgrant of summary judgment in favor of the Government finding that USCIS’sdenial of an “extraordinary ability” visa was not arbitrary, capricious, or contraryto law. Id. at 1117. In that case, the plaintiff, a theoretical physicist from Armenia,sought to be classified as an “alien of extraordinary ability” to obtain permanentresidence in the United States. Id. Plaintiff had obtained a Ph.D in TheoreticalPhysics from Yerevan State University (“YSU”) in Yerevan, Armenia (where healso served as a research assistant for three years), and for approximately 9 years, 8
  16. 16. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 16 of 41he served as a volunteer professor and a Science Lecture Series speaker at GlendaleCommunity College (“GCC”). Id. In support of his application, Plaintiffsubmitted evidence that he authored a textbook titled “Concepts in Physics:Classical Mechanics” that, according to a colleague, was “certain to be requiredreading in many secondary schools, colleges and universities throughout thecountry;” that he authored many scholarly articles, including six publications inAstrophysics and one e-print published in the public web archives of the LosAlamos National Laboratory; and that he presented lectures, in addition to hisregular lecture series at GCC, at the 17th and 20th Pacific Coast Gravity Meetings,the Conference on Strong Gravitational Fields at UC Santa Barbara, the 8thInternational Symposium on the Science and Technology of Light Sources, and theFoundations of Gravitation and Cosmology, International School Seminar. Id. at1118. Plaintiff also submitted letters from colleagues describing, inter alia, hisoutstanding contributions to theoretical physics, his high-caliber research, hisdiligence, his professionalism, and his scientific qualifications. Id. at 1117-18.Nevertheless, USCIS denied the petition. The district court granted USCIS’smotion for summary judgment, and this Court affirmed, stating that “[a]lthoughKazarian appears to be a well-respected, promising physicist, who may well havebeen able to qualify for an ‘exceptional ability’ visa, he instead applied for an 9
  17. 17. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 17 of 41‘extraordinary ability’ visa,” and he “failed to establish his eligibility for an‘extraordinary ability’ visa.” Id. at 1122. STATEMENT OF RELEVANT FACTSI. Administrative Proceedings A. Mr. Rijal’s Form I-140 Petition Mr. Rijal was born in Nepal in 1962. Compl. ¶ 1. On or around October 11,2005, Plaintiff filed a Form I-140, Petition for Alien Worker, seeking permanentresidence in the U.S. classified under 8 U.S.C. 1153(b)(1)(A) as an “alien ofextraordinary ability.” Excerpts of Record (“E.R.”) at 747-49. Rijal’s petitioncontained documentation indicating his work as a television producer, director, andcameraman in Nepal. E.R. at 750-51. The petition included exhibits indicatingthat Rijal won two prizes: the Japan Prize Contest 2001 United Nations Children’sFund (“UNICEF”) Prize for his documentary “Four Years in Hell” (“UNICEFPrize”) and Grand Prize at the 1997 New York International Children’s FilmFestival (“NYICFF Prize”) for his movie “Kumari, The Living Goddess.” E.R. at753-766. The exhibits also included: several articles from various internet andprint publications that mention, inter alia, Rijal or his work; several lettersindicating that Rijal was selected to sit on a jury for two Nepalese awardpresentations – the Crity Advertising Awards 2060 in 2003 and the Image Awards 10
  18. 18. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 18 of 412004; several letters of recommendation and appreciation from colleagues,coworkers, and acquaintances, within and outside of the media industry; andseveral other invitations, including invitations to attend the 2002 Prix JeunesseInternational Festival and the 2002 North-South Media Festival. E.R. 776-817. B. USCIS Request For Additional Evidence USCIS concluded that “the documentation submitted [was] not sufficient towarrant favorable consideration of [Rijal’s] petition/application.” E.R. at 740.Rather than dismiss Mr. Rijal’s petition outright, however, on August 22, 2006,USCIS issued a Request for Evidence (“RFE”) asking Rijal to provide additionalevidence to support his petition. In the RFE, USCIS requested further evidenceabout Rijal’s two awards. E.R. at 741. Specifically, for both awards, USCISrequested additional evidence describing the “nature of the [awarding]organization, the scope of the contest, the criteria used to select the recipient of theaward, and the significance of receiving such an award.” Id. USCIS alsorequested further evidence regarding, inter alia, any material published about Mr.Rijal or his work in professional or major trade publications, the nature of the CrityAdvertising and Image awards and the criteria used to select the jury members forthose awards, and the significance of the various invitations Rijal submitted withhis application. E.R. 741-43. USCIS further informed Rijal that “the evidence 11
  19. 19. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 19 of 41must clearly demonstrate that you have sustained national or international acclaimand that your achievements have been recognized as extraordinary by others in thefield.” E.R. at 743. In response to the RFE, Rijal submitted additional information in support ofhis petition, and argued that the attached evidence “clearly demonstrates” that he“has risen to the very top of the television direction/production industry.” E.R. at594. Rijal generally described the UNICEF Prize and the NYICFF prize. E.R. at597-598. Rijal attached several articles from local internet and print media sourcesdescribing the NYICFF Prize. E.R. at 642-53. Rijal also submitted several articlesfrom Nepalese publications dated in or around November and December 2001,discussing “Four Years in Hell” and Rijal’s work on the documentary. E.R. at611-40. In the response, Rijal also described the Crity Advertising Awards 2060and the Image Awards 2004, for which he was chosen as a jurist, stating that theawards were “an initiative of the Advertising Agencies Association of Nepal(AAAN) to recognize the talent of advertising agencies and to acknowledge thecontribution of advertising agencies to the advertising sector, Nepali business, andthe economy as a whole.” E.R. at 599. Rijal also pointed to several articles fromvarious internet and media publications in or around August 1998 and December 12
  20. 20. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 20 of 412001 to support his claim that his accomplishments as a televisiondirector/producer were published in “major media.” Id. C. USCIS’s Decision Dated March 21, 2007 On March 21, 2007, USCIS determined that the evidence submitted did notestablish that Rijal qualified for the requested visa classification – the “alien ofextraordinary ability” classification – and denied the petition. E.R. at 590. USCISstated that Rijal was “an active and successful television producer,” but found that“fact alone does not establish eligibility” as an alien of extraordinary ability. E.R.at 592. USCIS concluded that Rijal’s petition lacked “evidence of receipt of amajor, international award or, in the alternative, of sustained national orinternational acclaim [meeting] at least three of the regulatory criteria. 8 C.F.R. §204.5(h)(3).” E.R. at 592. Thus, USCIS reasoned that Mr. Rijal was not “one ofthat small percentage who have risen to the very top of their field of endeavor.” Id. D. Mr. Rijal’s Appeals On April 18, 2007, Rijal filed an appeal, including a written brief, whichincluded the same arguments and the same documents that he submitted inresponse to the RFE. E.R. at 450-589. On June 14, 2007, USCIS denied theappeal for the same reasons it had stated in its March 21, 2007 decision. E.R. at446-49. On July 10, 2007, Rijal, through counsel, appealed the denial to USCIS’s 13
  21. 21. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 21 of 41Administrative Appeals Office (“AAO”). E.R. at 437-45. In the appeal, Rijalargued that USCIS’s decision to deny his visa application was arbitrary andcapricious. Mr. Rijal offered no specific USCIS finding-of-fact or legal conclusionthat he claimed was in error. Rather, Rijal stated that USCIS failed to “properlyconsider the evidence previously submitted.” Id. Yet, Rijal’s brief containedlargely the same arguments and the same evidence that was previously consideredby USCIS. Id. While Rijal’s appeal was pending before the AAO, on December 12, 2007, anew attorney entered an appearance on behalf of Rijal, and filed a supplementalbrief in support of Rijal’s appeal. E.R. at 175-240. In the brief, Rijal argued forthe first time that his two awards constituted “major international awards.” E.R.185. With the supplemental brief, Rijal also submitted several new letters insupport of his application. Specifically, Rijal submitted a letter from Frode HojerPedersen, a Danish filmmaker and producer who is a friend and colleague of Mr.Rijal. E.R. at 198-200. The letter discusses Mr. Rijal’s work on his two films,“Four Years in Hell” and “Kumari - The Living Goddess,” and the author’sopinion about Rijal’s work and abilities in the industry. Id. Rijal also submittedletters from Eric Beckman, Director of the NYICFF, and Kirsten Schneid, FestivalCoordinator of the 2002 Prix Jeunesse Festival, each describing their respective 14
  22. 22. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 22 of 41festivals and opining about Rijal’s abilities as a director and producer. E.R. 215-16, 222-23. Lastly, Rijal submitted a letter from the managing director of KantipurPublications Pvt. Ltd., describing the role played by Rijal in establishing thetelevision industry in Nepal. E.R. 303-04. E. The AAO’s May 28, 2009 Decision On May 28, 2009, after considering the evidence contained in theadministrative record, the AAO affirmed the March 21, 2007 decision denying thepetition, finding that Mr. Rijal had not met the regulatory criteria necessary forclassification as an “alien of extraordinary ability.” E.R. at 165-174. The AAOfound that “the evidence indicates that [Mr. Rijal] has obtained a measurable levelof success in his field,” but that the record evidence did not “establish that [Mr.Rijal] has distinguished himself . . . to such an extent that he may be said to haveachieved sustained national or international acclaim or to be within the smallpercentage at the very top of his field.” E.R. at 174. F. Mr. Rijal’s Motion To Reopen And Reconsider On June 24, 2009, Rijal filed dual Motions to Reopen and to Reconsider.E.R. at 21-54. He attached to the motions a legal brief, a declaration, severaladditional internet articles and press releases, and two additional letters – a letterdated June 17, 2009 from Hilmy Ahamed, Chairman and Chief Executive Officer 15
  23. 23. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 23 of 41of Young Asia Television, describing Rijal’s contributions to founding thetelevision industry in Nepal and establishing Young Asia Television in 1985 and1986, E.R. 55-57, and a supplemental supporting letter dated June 1, 2009 fromFrode Pedersen, reemphasizing Rijal’s work on “Four Years in Hell” and “Kumari-The Living Goddess” and reasserting his opinion regarding Rijal’s qualifications.E.R. at 59-61. On March 25, 2010, USCIS denied both the Motion to Reopen and theMotion to Reconsider. E.R. at 18-20. With respect to the Motion to Reopen,USCIS concluded that “all of the evidence submitted was previously available andcould have been discovered or presented in the previous proceeding,” and wasspecifically requested by USCIS in its August 22, 2006 RFE. E.R. at 19.Accordingly, the “new” evidence was not “a proper basis for a motion to reopen.”Id. With respect to the Motion to Reconsider, USCIS stated that a “motion toreconsider should flow from new law or a de novo legal determination reached inits decision that may not have been addressed by the party,” and that a party maynot “submit the same brief presented on appeal and seek reconsideration bygenerally alleging error in the prior decision.” E.R. at 20. USCIS concluded thatRijal “failed to support his motion with any precedent decisions or other such 16
  24. 24. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 24 of 41evidence to establish that the decision was based on an incorrect application of lawor USCIS policy.” Id.II. The District Court Decision On April 22, 2010, Rijal filed a complaint in the United States District Courtfor the Western District of Washington, seeking judicial review under theAdministrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). The parties filedcross-motions for summary judgment. On February 22, 2011, the district courtgranted USCIS’s motion. The Court first held that USCIS did not act arbitrarily orcapriciously in concluding that the awards Rijal obtained were not “major,international recognized award[s]” as required by the regulations. Rather,according to the district court, in coming to its conclusion, USCIS considered the“relevant factors and articulated a rational connection between the facts it foundand the choice it made.” Supplemental Excerpts of Record (“S.E.R.”) at 7. With respect to the other regulatory criteria, the Court held that USCIS erredin its evaluation of the criteria, but that USCIS’s error was harmless. S.E.R. at 8.Specifically, the Court found that, by evaluating the evidence submitted by Rijal insupport of the regulatory evidentiary criterion in view of the requirement that Rijaldemonstrate sustained international acclaim, USCIS “heightened the evidentiarythreshold.” Id. The district court concluded that, “[a]lthough USCIS erred in some 17
  25. 25. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 25 of 41of its conclusions as to Mr. Rijal’s showing on the threshold evidentiary criteria,”USCIS’s error did not prejudice Rijal, because “it is apparent that [USCIS] madethose errors with an eye toward the ultimate merits determination.” Id. As thedistrict court noted, “[i]n each instance, USCIS sought evidence that demonstratedsustained acclaim.” Id. According to the district court, “USCIS concluded thatMr. Rijal’s evidence demonstrated distinction, but not sustained acclaim sufficientto demonstrate ‘extraordinary ability,’” and that conclusion was “not theresult of [USCIS’s] erroneous determination about Rijal’s threshold evidentiaryshowings, but rather a holistic determination about whether Mr. Rijal’s evidence,taken as a whole, sufficed.” Id. The district court held that, “in the course ofreviewing each evidentiary criterion, USCIS articulated rational reasons that Mr.Rijal’s evidence did not demonstrate “extraordinary ability.” Id. According to thedistrict court, USCIS “finished that review with the conclusion that theevidence, taken together, did not satisfy the standard.” That decision, the districtcourt held, was not arbitrary or capricious. Id SUMMARY OF ARGUMENT The district court correctly held that USCIS lawfully denied Rijal’s petitionbased on Rijal’s failure to establish that he qualified for visa preferenceclassification as an alien of extraordinary ability. First, the district court was 18
  26. 26. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 26 of 41correct when it held that USCIS did not act arbitrarily or capriciously inconcluding that the awards Rijal obtained were not “major, internationalrecognized award[s]” as required by the regulations. Second, the district court wascorrect when it held that, although USCIS did not employ the appropriateanalytical framework for evaluating the threshold evidentiary criteria, that errorwas harmless, because USCIS was evaluating the evidence with an eye toward theultimate merits determination. ARGUMENTI. THE STANDARD OF REVIEW. A. De Novo Review. This Court has reviewed the merits of I-140 immigration petition denialsunder the APA. See Kazarian, 596 F.3d at 1117. The Court reviews district courtgrants of summary judgment de novo. See Family Inc. v. U.S. Citizenship &Immigration Services, 469 F.3d 1313, 1315 (9th Cir. 2006) (citing Lopez v. Smith,203 F.3d 1122, 1131 (9th Cir. 2000) (en banc)). The district court’s decision maybe affirmed “on any ground supported by the record, even if the ground is notrelied on by the district court.” Lujan v. Pac. Mari. Ass’n., 165 F.3d 738, 741 (9thCir. 1999). 19
  27. 27. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 27 of 41 B. Arbitrary, Capricious Or Abuse Of Discretion Standard. Pursuant to the APA, agency decisions may be set aside only if “arbitrary,capricious, an abuse of discretion, or otherwise not in accordance with law.” 5U.S.C. § 706(2)(A); Family Inc., 469 F.3d at 1315 (citing Ariz. Cattle Growers’Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001)). The arbitraryand capricious standard affords its “greatest deference” to an agency when theagency exercises its “special competence” in the subject matter committed to itsregulation. American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316 (1965). Review under the arbitrary and capricious standard is narrow, and thereviewing court may not substitute its judgment for that of the agency. See Marshv. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989); Safari Aviation Inc. v.Garvey, 300 F.3d 1144, 1150 (9th Cir. 2002), cert. denied, 538 U.S. 946 (2003).Agency action may be reversed under the arbitrary and capricious standard only ifthe agency has relied on factors that Congress has not intended it to consider,entirely failed to consider an important aspect of the problem, offered anexplanation for its decision that runs counter to the evidence before the agency, oris so implausible that it could not be ascribed to a difference in view of the productof agency expertise. See Marsh, 490 U.S. at 378; Safari Aviation, 300 F.3d at1150. 20
  28. 28. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 28 of 41 In addition, the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat.2135 (Nov. 25, 2002), provides that “judicial deference [is owed] to regulations,adjudications, interpretations, orders, decisions, judgments, or any other actions ofthe Secretary of Homeland Security or the Attorney General.” 6 U.S.C. § 522(2002). Consequently, an agency’s findings should be upheld even if they are “ofless than ideal clarity if the agency’s path may reasonably be discerned.”Northwest Motorcycle Ass’n. v. U.S. Dep’t. of Agric., 18 F.3d 1468, 1478 (9th Cir.1994) (citing Motor Vehicle Mfrs. Assn. v. State Farm Mut. Ins. Co., 463 U.S. 29,43 (1983)). Thus, if this Court can discern a “rational basis” for the agency’s“treatment of the evidence,” that is sufficient; “the ‘arbitrary and capricious’ testdoes not require more.” See Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,Inc., 419 U.S. 281, 290 (1974).II. THE DISTRICT COURT WAS CORRECT IN UPHOLDING USCIS’S DENIAL OF RIJAL’S VISA PETITION BECAUSE RIJAL FAILED TO DEMONSTRATE THAT HE SATISFIES THE LEGAL CRITERIA. A. The District Court Was Correct When It Held That USCIS Did Not Act Arbitrarily and Capriciously in Concluding that Mr. Rijal Lacked a Qualifying “One-Time Achievement.” The district court did not err in upholding USCIS’s conclusion that Rijalfailed to demonstrate that he had attained a “major international recognized award”to satisfy the threshold evidentiary requirement set forth in 8 C.F.R. § 204.5(h)(3). 21
  29. 29. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 29 of 41Mr. Rijal asserts that the two awards he won – the NYICFF Prize in 1997 and theUNICEF Prize in 2001 – are major, internationally recognized awards and that hequalifies for a visa preference classification as an “alien with extraordinary ability”based on those awards. As the District Court noted, however, “Congress namedthe Nobel Prize as its sole example of a major, internationally recognized awardthat would by itself demonstrate ‘extraordinary ability.’” S.E.R. at 7 (citingKazarian, 596 F.3d at 1119 (citing 1990 U.S.C.C.A.N. 6710, 6739). The DistrictCourt further noted that law provides no clear answer as to “[w]hat awards lessprestigious and recognized than the Nobel Prize qualify as major, internationalawards.” Id. Rather, according to the District Court, Congress “entrusted thatdecision to the administrative process.” Id. A review of that process reflects that, in concluding that the record did notsupport the assertion that either the UNICEF Prize or the NYICFF Prizeconstituted “major, internationally recognized awards,” USCIS considered the“relevant factors and articulated a rational connection between the facts it foundand the choice it made.” Id.; S.E.R. at 17-18. USCIS specifically considered thetwo awards, and evaluated those awards in light of the evidence submitted by Rijal.The AAO found that there was insufficient evidence to establish that the UNICEFPrize was “reported in the top international media” or “recognized by the general 22
  30. 30. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 30 of 41public.” S.E.R. at 17. The AAO noted that “Congress’s example of a one-timeachievement is a Nobel Prize,” and that the evidence did not demonstrate that theNYICFF Prize was “familiar to the general public such as with the Nobel Prize orthe Oscars.” Id. at 17-18. The AAO ultimately concluded that the record did notsupport the claim that either the UNICEF Prize or the NYICFF Prize constituted“major, internationally recognized awards.” Id. Accordingly, the District Courtcorrectly concluded that USCIS did not act arbitrarily or capriciously. B. The District Court Was Correct That USCIS’ Error In Determining That Mr. Rijal Had Not Satisfied Any of the Alternate Evidentiary Criteria Was Harmless. The District Court did not err when it concluded that, although USCIS’sanalytical framework was flawed, Rijal suffered no prejudice as a result. As thedistrict court noted, “[i]t is not enough to demonstrate errors in an agency’sdecision, the petitioner must also establish that the errors prejudiced him.” Orderat 7 (citing Kazarian, 596 F.3d at 1119, 1122). The court can overlook errors onlywhen they “clearly had no bearing on the procedure used or the substance of thedecision reached.” Id. at 1119 (quoting Gifford Pinchot Task Force v. UnitedStates Fish & Wildlife Serv., 378 F.3d 1059, 1071 (9th Cir. 2004)) (emphasis inGifford Pinchot). As the district court held, there is no prejudice here. In Kazarian, the plaintiff had filed an application for an employment-basedimmigrant visa for “aliens of extraordinary ability” pursuant to 8 U.S.C. 23
  31. 31. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 31 of 41§ 1153(b)(1)(A), contending that he was an alien with extraordinary ability as atheoretical physicist. Id. at 1118. This Court held that although the agency erredby reading additional requirements into two of the ten regulatory criteria types ofevidence set forth at 8 C.F.R. § 204.5(h)(3)(i)-(x), the errors were harmlessbecause plaintiff nonetheless failed to establish his eligibility for an “extraordinaryability” visa. Id. at 1122. This Court also concluded that, even if plaintiff hadestablished his eligibility for an “extraordinary ability” visa by demonstrating thathe met the minimum number of regulatory criteria, the agency retained the powerto ultimately decide whether an alien had demonstrated that his or her abilities areindeed extraordinary. Id. Thus, even though the AAO’s analysis was inconsistentwith the regulatory criteria, this Court determined that the AAO’s errors wereharmless because, notwithstanding the errors, the plaintiff failed to establish hiseligibility for an “extraordinary ability” visa. Id. The same analysis should yield the same result here. Although USCIS erredin some of its conclusions as to Rijal’s showing on the threshold evidentiarycriteria, as in Kazarian, those errors were harmless. Rijal asserts that he satisfiesfive of the ten criteria listed at 8 C.F.R. § 204.5(h)(3). They are: receipt of “lessernationally or internationally recognized prizes or awards” (§ 204.5(h)(3)(i)),participation as a judge of the work of others in the field (§ 204.5(h)(3)(iv)), 24
  32. 32. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 32 of 41“contributions of major significance in the field” (§ 204.5(h)(3)(v)), “display of thealien’s work . . . at artistic exhibitions or showcases” (§ 204.5(h)(3)(vii)), and“perform[ing] in a leading or critical role for organizations or establishments thathave a distinguished reputation” (§ 204.5(h)(3)(viii)). USCIS concedes in thisappeal that Mr. Rijal submitted evidence in support of each of the five criteria setforth above. However, even assuming, as the district court did, that by virtue ofsubmitting such evidence Rijal met his threshold evidentiary burden, Rijal failed todemonstrate that the evidence he submitted demonstrates “sustained national orinternational acclaim” as required by 8 U.S.C. § 1153(b)(1)(A)(i)). Kazarian at1120. Therefore, as the District Court correctly concluded, USCIS’s decision todeny Rijal’s visa petition as an “alien of extraordinary ability” was not arbitrary orcapricious. 1. Mr. Rijal Failed to Establish That He Had Sustained National or International Acclaim Through Lesser Nationally or Internationally Recognized Prizes or Awards In His Field Of Endeavor. Mr. Rijal asserted before the agency and the district court that his sustainedclaim is demonstrated by being awarded the UNICEF Prize and the NYICFF Prize.E.R. at 46. In support of his claim regarding the NYICFF Prize is nationally orinternationally known, Rijal submitted a letter from Frode Pederson claiming thatthe NYICFF Prize “is a prize nationally and internationally recognized within the 25
  33. 33. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 33 of 41television and motion picture industry for excellence in the field of endeavor.”Contrary to Rijal’s assertion in this appeal, the AAO specifically considered Mr.Pederson’s letter and other evidence, and concluded that “[g]oing on recordwithout supporting documentary evidence is not sufficient for meeting the burdenof proof in these proceedings.” S.E.R. at 18. The AAO also found that Rijalsubmitted no evidence that the NYICFF Prize was nationally or internationallyrecognized in 1997, the inaugural year in which Rijal won the prize. Id. Thus, theAAO reasoned that “the evidence does not establish that [Mr. Rijal’s] receipt of the1997 Grand Prize at the NYICFF was receipt of [a] nationally or internationallyrecognized award.” Id. The AAO further determined that, although the evidence demonstrated thatthe UNICEF Prize was an internationally recognized award of excellence in Rijal’sfield, that prize did not demonstrate sustained national or international acclaim asrequired by 8 C.F.R. § 204.5(h)(3). S.E.R. at 19. The AAO reasoned that “[a]single prize, awarded four years prior to the filing of the appeal on October 24,2005, does not provide evidence of sustained acclaim and is not sufficient toestablish that [Mr. Rijal] meets this criterion.” Id. The AAO’s conclusions werebased on the relevant factors and were reasonable. Safari Aviation, Inc. v. Garvey, 26
  34. 34. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 34 of 41300 F.3d 1144, 1150 (9th Cir. 2002). Accordingly, the conclusions were notarbitrary, capricious, an abuse of discretion, or otherwise unlawful. 2. Mr. Rijal Failed to Establish That He Had Sustained National or International Acclaim Through His Participation As A Judge Or The Work Of Others. The AAO correctly concluded that Rijal cannot demonstrate the requisitesustained national or international acclaim simply by being asked to judge CrityAdvertising Awards 2060 in 2003 and the Image Award 2004. As the AAOreasoned, the “selection and participation process” for Rijal to serve as a judge inthe field must “be indicative of national or international acclaim in the field.” E.R.at 171. The AAO noted that the invitation for Rijal to judge the Crity Awardsindicated that he “was selected because of his ‘commendable contributions’ to hisfield,” and concluded that an undefined “‘commendable contribution’ is notautomatically the equivalent of national or international acclaim.” Id. Moreover,the AAO found no evidence about the selection process or criteria on which Rijalwas selected to judge the Image Awards. Thus, the AAO concluded that theevidence did not establish that Rijal demonstrated sustained national orinternational acclaim by virtue of his selection to judge those competitions. Thatconclusion was based upon relevant factors, and was reasonable. Safari Aviation,300 F.3d at 1150. Accordingly, the conclusion was not arbitrary, capricious, anabuse of discretion, or otherwise unlawful. 27
  35. 35. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 35 of 41 3. Mr. Rijal Failed to Establish That He Had Sustained National or International Acclaim Through Original Contributions To His Field. Mr. Rijal also asserts that his sustained acclaim in the television industry issupported by contributions of major significance in his field. The evidenceinitially submitted by Rijal in support of that assertion included: letters fromindividuals addressing Rijal’s work in the field and his invitations to participate inthe 2002 Prix Jeuness International Film Festival and the 2002 North-SouthFestival. The AAO evaluated that evidence, and correctly concluded that suchevidence did not demonstrate that Mr. Rijal had sustained national acclaim in hisfield. E.R. at 172. In his appeal to the AAO, Rijal’s argued for the first time – as he argues inthis appeal – that his sustained acclaim is demonstrated by “his critical role inestablishing the television industry in Nepal.” E.R. at 175-197; App. Br. 22. Insupport of his appeal to the AAO, Rijal attached a letter from the managingdirector of Kantipur Publications Pvt. Ltd., a company that operates newspapersand television stations in Nepal. E.R. at 303-04. That letter discussed the roleplayed by the petitioner in establishing the television industry in Nepal in 1985.Id. That letter was not specifically addressed by the AAO in its decision, but thatfact is not fatal to the AAO’s ultimate conclusion that Rijal is not an alien ofextraordinary ability. Mere statements, without supporting documentary evidence 28
  36. 36. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 36 of 41is not sufficient for meeting the burden of proof in visa proceedings. Matter ofSoffici, 22 I & N Dec. at 165. Even if the statements in the letter were sufficient tomeet Rijal’s burden, the relevant statements set forth in those letters refer to Rijal’spast role in founding the television industry in Nepal in 1985 and Young AsiaTelevision. Such information would not be sufficient to demonstrate “sustainedinternational acclaim” as required by 8 C.F.R. 250.5(h)(3) sufficient to deem himan “alien of extraordinary ability.” When the letter is considered in the context ofall the evidence, Rijal has still failed to satisfy the statutory requirement that hesupport his claim by “extensive documentation.” 8 U.S.C. § 1153(b)(1)(A)(i). 4. Mr. Rijal Failed to Establish That He Had Sustained National or International Acclaim Through The Display Of His Work In Artistic Exhibitions or Showcases. Rijal asserts that his sustained national and international acclaim isdemonstrated by the presentation of his movies at several film festivals. E.R. at50; App. Br. 23-24. The AAO evaluated the evidence submitted by Rijal, andreasoned that “the evidence does not indicate that [Mr. Rijal’s] work was the mainfocus of the competitions or festivals” or that his work was “featured moreprominently than” the work of others in the competitions. Id. As a result, theAAO concluded that Rijal has failed to meet his burden to establish that he meetsthat the showing of his films demonstrates sustained national or international 29
  37. 37. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 37 of 41acclaim. As the district court held, that conclusion was neither arbitrary,capricious, an abuse of discretion, nor otherwise unlawful. 5. Mr. Rijal Failed to Establish That He Had Sustained National or International Acclaim Through Performance In A Leading or Critical Role for Organizations or Establishments That Have a Distinguished Reputation. Rijal claimed before the agency and the district court that his sustainedacclaim was demonstrated by “perform[ing] in a leading critical capacity formultiple organizations and establishments with excellent, world renownedreputations.” E.R. at 315. In reviewing the totality of the documentary evidencesubmitted by Rijal, the AAO was unable to find evidence demonstrating sustainednational or international acclaim. The AAO’s were based on the relevant factorsand were reasonable. Safari Aviation, 300 F.3d at 1150. Therefore, thatconclusion were not arbitrary, capricious, an abuse of discretion, or otherwiseunlawful. Thus, it should not be disturbed. CONCLUSION For the foregoing reasons, the Court should affirm the January 12, 2010decision of the district court finding that the Government did not abuse itsdiscretion in finding that Rijal failed to meet his burden of establishing that he isentitled to an immigrant visa as an “alien of extraordinary ability.” 30
  38. 38. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 38 of 41August 10, 2011 Respectfully submitted, TONY WEST Assistant Attorney General Civil Division SAMUEL GO Senior Litigation Counsel District Court Section Office of Immigration Litigation /s/ Jeffrey M. Bauer JEFFREY M. BAUER Trial Attorney, District Court Section Office of Immigration Litigation Civil Division, Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 532-4786 ATTORNEYS FOR DEFENDANTS- APPELLEES 31
  39. 39. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 39 of 41 STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, I hereby certify that I am aware of nopending case in this Court that is related to, or presents the same or related partiesas, the instant case.August 10, 2011 /s/ Jeffrey M. Bauer JEFFREY M. BAUER Trial Attorney, District Court Section Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 532-4786 Facsimile: (202) 616-8962 ATTORNEYS FOR DEFENDANTS- APPELLEES 32
  40. 40. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 40 of 41 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and NinthCircuit Rule 32-1, I certify that Defendants-Appellees’ Brief: (1) was prepared using 14-point Times New Roman font; (2) is proportionally spaced; and (3) contains 6834 words.August 10, 2011 /s/ Jeffrey M. Bauer JEFFREY M. BAUER Trial Attorney, District Court Section Office of Immigration Litigation Civil Division U.S. Department of Justice
  41. 41. Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 41 of 41 CERTIFICATE OF SERVICE I hereby certify that on August 10, 2010, I electronically filed the foregoingBrief for Defendants-Appellees with the Clerk of the Court using the CM/ECFsystem which will send notification of such filing to the following CM/ECFparticipants:Robert O. Wells, Jr.Lafcadio H. DarlingMikkelborg, Broz, Wells & Fryer PLLC1001 Fourth Avenue, Suite 3600Seattle, WA 98154 I further certify that I have mailed by United States Postal Service theforegoing document to the following, addressed as follows:N/A /s/ Jeffrey M. Bauer Jeffrey M. Bauer Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation-DCS P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 532-4786 Facsimile: (202) 616-8962 Email: jeffrey.bauer@usdoj.gov

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