Kazarian v. US Citizenship ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
POGHOS KAZARIAN, 
Plaintiff-Appellant,
No. 07-56774
v.
D.C. No.
US CITIZENSHIP AND IMMIGRATION  CV-07-03522-R-E
SERVICES, a Bureau of the
ORDER AND
Department of Homeland Security;
OPINION
JOHN DOES, 1 through 10,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
December 9, 2008—Pasadena, California
Filed March 4, 2010
Before: Harry Pregerson, Dorothy W. Nelson and
David R. Thompson, Circuit Judges.
Opinion by Judge D.W. Nelson;
Concurrence by Judge Pregerson
3429
3432 KAZARIAN v. USCIS
COUNSEL
Ruben N. Sarkisian, Glendale, California, for plaintiff-
appellant Poghos Kazarian.
Craig W. Kuhn and Elizabeth J. Stevens, Office of Immigra-
tion Litigation, Department of Justice, Washington, D.C.; for
defendant-appellee U.S. Citizenship & Immigration Services.
ORDER
The opinion with dissent filed on September 4, 2009, and
published at 580 F.3d 1030 (9th Cir. 2009), is withdrawn and
superceded by the opinion filed concurrently herewith.
With the filing of the new opinion, appellant’s pending
petition for rehearing/petition for rehearing en banc is
DENIED as moot, without prejudice to refiling a subsequent
petition for rehearing and/or petition for rehearing en banc.
See 9th Cir. G.O. 5.3(a).
KAZARIAN v. USCIS 3433
OPINION
D.W. NELSON, Senior Circuit Judge:
Poghos Kazarian appeals the District Court’s grant of sum-
mary judgment to the United States Citizenship and Immigra-
tion Service (“USCIS”), finding that the USCIS’s denial of an
“extraordinary ability” visa was not arbitrary, capricious, or
contrary to law. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 31, 2003, Poghos Kazarian, a thirty-four-
year-old native and citizen of Armenia, filed an application
for an employment-based immigrant visa for “aliens of
extraordinary ability” (Form I-140) contending that he was an
alien with extraordinary ability as a theoretical physicist.
Kazarian received a Ph.D in Theoretical Physics from
Yerevan State University (“YSU”) in Yerevan, Armenia, in
1997. From 1997 to 2000, he remained at YSU as a Research
Associate, where, among other things, he “reviewe[d] [the]
diploma works of the Department’s graduates.”
At YSU, Kazarian specialized in non-Einsteinian theories
of gravitation. According to a colleague, “[t]his work offered
a mechanism for the control of solutions’ accuracy, which
guarantees the accuracy of calculations in many theories of
gravitation.” Kazarian “solve[d] [the] more than 20 year[ ] old
problem of construction of the theory, satisfying the cosmog-
ony conception of worldwide acknowledged scientist, acade-
mician V.A. Hambartsumian.”
Since 2000, Kazarian has served as a Physics / Math / Pro-
gramming Tutor, an Adjunct Physics and Mathematics
Instructor, and a Science Lecture Series speaker at Glendale
3434 KAZARIAN v. USCIS
Community College (“GCC”). Between 2000 and 2004,
Kazarian’s work at GCC was on a volunteer basis.
In support of his application, Kazarian submitted several
letters of reference. The first reference was a letter from Dr.
Kip S. Thorne, the Feynman Professor of Theoretical Physics
at California’s Institute of Technology. Dr. Thorne, who
worked in the same research group as Kazarian, stated that he
had “formed a good opinion of Dr. Kazarian’s research. It is
of the caliber that one would expect from a young professor
at a strong research-oriented university in the United States.”
Kazarian also provided letters from professors at YSU, stating
that Kazarian “possesse[d] great ability and considerable
potency in science,” was “a young scientist with enough sci-
entific potential,” had “high professionalism,” and had “dis-
played himself as exceptionally diligent, hard-working, [and]
highly qualified.” Finally, Kazarian submitted three letters
from colleagues at GCC praising his hard work and active
participation at GCC.
Kazarian also noted that he had authored a self-published
textbook, titled “Concepts in Physics: Classical Mechanics.”
According to one of his colleagues at GCC, the book “is cer-
tain to be required reading in many secondary schools, col-
leges and universities throughout the country.” Kazarian,
however, presented no evidence that the book was actually
used in any class. Kazarian also submitted two scholarly arti-
cles where the authors acknowledged him for his useful scien-
tific discussions. Kazarian also submitted his resume, which
listed six publications in Astrophysics that he had authored or
co-authored, as well as one e-print published in the public
web archives of the Los Alamos National Laboratory.
Finally, Kazarian presented evidence of his Science Lecture
Series at GCC. His resume also listed lectures at the 17th and
20th Pacific Coast Gravity Meetings, the Conference on
Strong Gravitational Fields at UC Santa Barbara, the 8th
International Symposium on the Science and Technology of
KAZARIAN v. USCIS 3435
Light Sources, and the Foundations of Gravitation and Cos-
mology, International School-Seminar.
In August 2005, the USCIS denied the petition. Kazarian
appealed the denial to the Administrative Appeals Office
(“AAO”). The AAO dismissed the appeal, finding that
Kazarian failed to satisfy any of the evidentiary criteria set
forth in the relevant “extraordinary ability” visa regulations.
Having exhausted his administrative remedies, Kazarian filed
a complaint in the Central District of California. The District
Court granted the USCIS’s motion for summary judgment,
and Kazarian timely appealed to this court.
STANDARD OF REVIEW
This court “review[s] the entry of summary judgment de
novo.” Family Inc. v. U.S. Citizenship & Immigration Servs.,
469 F.3d 1313, 1315 (9th Cir. 2006). “However, the underly-
ing agency action may be set aside only if ‘arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.’ ” Id. (quoting 5 U.S.C. § 706(2)(A)). “We have
held it an abuse of discretion for the Service to act if there is
no evidence to support the decision or if the decision was
based on an improper understanding of the law.” Tongatapu
Woodcraft Hawaii Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th
Cir. 1984) (internal quotations omitted).
“In circumstances where an agency errs, we may evaluate
whether such an error was harmless.” Gifford Pinchot Task
Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1071
(9th Cir. 2004); see 5 U.S.C. § 706. “In the context of agency
review, the role of harmless error is constrained. The doctrine
may be employed only ‘when a mistake of the administrative
body is one that clearly had no bearing on the procedure used
or the substance of decision reached.’ ” Gifford Pinchot, 378
F.3d at 1071 (citing Buschmann v. Schweiker, 676 F.2d 352,
358 (9th Cir. 1982)) (emphasis added by the Gifford Pinchot
court). “We will not usually overturn agency action unless
3436 KAZARIAN v. USCIS
there is a showing of prejudice to the petitioner.” Safari Avia-
tion Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir. 2002).
DISCUSSION
A. THE “EXTRAORDINARY ABILITY” VISA
[1] Pursuant to 8 U.S.C. § 1153(b)(1)(A), aliens may apply
for a visa on the basis of “extraordinary ability.” An alien can
prove an extraordinary ability in one of two ways. The first
is “evidence of a one-time achievement (that is, a major, inter-
national recognized award).” 8 C.F.R. § 204.5(h)(3). Receipt
of the Nobel prize is the quintessential example of a major
award. H.R. Rep. No. 101-723(I & II) (1990), reprinted in
1990 U.S.C.C.A.N. 6710, 6739. Kazarian concedes that he
has won no such prize.
The second way to prove extraordinary ability is to provide
evidence of at least three of the following:
(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 profes-
sional or major trade publications or other major
media, relating to the alien’s work in the field for
which classification is sought. Such evidence shall
include the title, date, and author of the material, and
any necessary translation;
(iv) Evidence of the alien’s participation, either indi-
vidually or on a panel, as a judge of the work of oth-
KAZARIAN v. USCIS 3437
ers in the same or an allied field of specification for
which classification is sought;
(v) Evidence of the alien’s original scientific, schol-
arly, artistic, athletic, or business-related contribu-
tions of major significance in the field;
(vi) Evidence of the alien’s authorship of scholarly
articles in the field, in professional or major trade
publications or other major media;
(vii) Evidence of the display of the alien’s work in
the field at artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a
leading or critical role for organizations or establish-
ments 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 per-
forming arts, as shown by box office receipts or
record, cassette, compact disk, or video sales.
8 C.F.R. § 204.5(h)(3). If a petitioner has submitted the requi-
site evidence, USCIS determines whether the evidence dem-
onstrates both a “level of expertise indicating that the
individual is one 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 “that the alien has sustained national or
international acclaim and that his or her achievements have
been recognized in the field of expertise.” 8 C.F.R.
§ 204.5(h)(3). Only aliens whose achievements have garnered
“sustained national or international acclaim” are eligible for
an “extraordinary ability” visa. 8 U.S.C. § 1153(b)(1)(A)(i).
3438 KAZARIAN v. USCIS
The “extraordinary ability” visa can be better understood in
context. Under the Immigration Act of 1990, thousands of
employment-based visas were created according to three
employment preferences. Pub. L. No. 101-649, 101 Stat.
4978. “Aliens with extraordinary ability” are “priority work-
ers” and have the first preference. 8 U.S.C. § 1153(b)(1).
“Extraordinary ability” is distinct from “exceptional abili-
ty,” however, which receives second preference. Compare id.
§ 1153(b)(1)(A) (emphasis added), with id. § 1153(b)(2)
(emphasis added).1 To qualify for the “exceptional ability”
visa, a petitioner must make a lesser showing of ability, and
need only show three of the following:
(A) An official academic record showing that the
alien has a degree, diploma, certificate, or similar
award from a college, university, school, or other
institution of learning relating to the area of excep-
tional ability;
(B) Evidence in the form of letter(s) from current or
former employer(s) showing that the alien has at
least ten years of full-time experience in the occupa-
tion for which he or she is being sought;
(C) A license to practice the profession or certifica-
tion for a particular profession or occupation;
(D) Evidence that the alien has commanded a salary,
or other remuneration for services, which demon-
strates exceptional ability;
(E) Evidence of membership in professional associa-
tions; or
1
Skilled workers, professionals, and “other workers” make up the third
preference. Id. § 1153(b)(3).
 KAZARIAN v. USCIS 3439
(F) Evidence of recognition for achievements and
significant contributions to the industry or field by
peers, governmental entities, or professional or busi-
ness organizations.
8 C.F.R. § 204.5(k)(3)(ii).
[2] To qualify for an “exceptional ability” visa, however,
the alien must also provide evidence that his services are
sought by a United States employer. Id. The “extraordinary
ability” visa thus has considerable advantages. Unlike the
“exceptional ability” visa petition, the “extraordinary ability”
petition is not dependent on an actual offer for employment
in the United States, and is exempt from the time-consuming
labor certification process, which requires that employers first
test the marketplace for existing qualified domestic workers.
Compare id. § 204.5(h)(3)(5), with id. § 204.5(k)(4).
[3] Interpretation of the statutory and regulatory require-
ments for the “extraordinary ability” visa presents a question
of first impression for this court. The scant caselaw indicates
that “[t]he regulations regarding this preference classification
are extremely restrictive.” Lee v. Ziglar, 237 F. Supp. 2d 914,
918 (N.D. Ill.2002) (finding that “arguably one of the most
famous baseball players in Korean history” did not qualify for
the visa as a baseball coach for the Chicago White Sox
because his acclaim was limited to his skills as a player and
not as a coach); cf. Grimson v. INS, 934 F. Supp. 965, 969
(N.D. Ill. 1996) (finding denial arbitrary and capricious where
NHL hockey enforcer was one of the top three players in the
world and agency improperly discounted the importance of
the enforcer position); Muni v. INS, 891 F. Supp. 440 (N.D. Ill.
1995) (finding the agency improperly discounted evidence for
an NHL hockey player who won the Stanley Cup three times,
won “most underrated defenseman,” was paid more than the
average NHL player, submitted numerous articles establishing
his stature in the hockey world, and provided affidavits from
eight renowned hockey players stating that he was highly
3440 KAZARIAN v. USCIS
regarded); Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich.
1994) (finding denial was arbitrary and capricious where
Albanian physician won a national award, published a medi-
cal dictionary and numerous articles, was responsible for gen-
eral health projects, and served as an adjunct professor);
Matter of Price, 20 I. & N. Dec. 953, 955-56 (BIA 1994)
(granting the visa petition to a professional golfer who won
the 1983 World Series of Golf and the 1991 Canadian Open,
ranked 10th in the 1989 PGA Tour, collected $714,389 in
1991, provided numerous affidavits from well-known and cel-
ebrated golfers, and received widespread major media cover-
age).
B. APPLICATION TO KAZARIAN
The AAO found that Kazarian did not meet any of the reg-
ulatory criteria. Only four of the ten are at issue in this appeal.
We find that the AAO erred in its consideration of two of
these issues.
1. Authorship of Scholarly Articles in the Field of
Endeavor
Pursuant to 8 C.F.R. § 204.5(h)(3)(vi), Kazarian submitted
proof of his six articles in Astrophysics and his e-print in the
Los Alamos National Laboratory archives, but did not demon-
strate that other scholars had cited to his publications. The
AAO held that without evidence of such citations, Kazarian’s
articles did not meet the regulatory definition of evidence,
because “publication of scholarly articles is not automatically
evidence of sustained acclaim” and “we must consider the
research community’s reaction to these articles.”
[4] The AAO’s conclusion rests on an improper under-
standing of 8 C.F.R. § 204.5(h)(3)(vi). Nothing in that provi-
sion requires a petitioner to demonstrate the research
community’s reaction to his published articles before those
articles can be considered as evidence, and neither USCIS nor
KAZARIAN v. USCIS 3441
an AAO may unilaterally impose novel substantive or eviden-
tiary requirements beyond those set forth at 8 C.F.R. § 204.5.
Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir.
2008). While other authors’ citations (or a lack thereof) might
be relevant to the final merits determination of whether a peti-
tioner is at the very top of his or her field of endeavor, they
are not relevant to the antecedent procedural question of
whether the petitioner has provided at least three types of evi-
dence. 8 C.F.R. § 204.5(h)(3). “If the agency intended to
impose [peer citations] as a threshold requirement, we have
little doubt that such records would have been included
among the detailed substantive and evidentiary requirements
set forth at 8 C.F.R. § 204.5[(h)(3)(i)-(x)].” Love Korean
Church, 549 F.3d at 758.
2. Participation as a Judge of the Work of Others
Pursuant to 8 C.F.R. § 204.5(h)(3)(iv), Kazarian submitted
proof that he was a judge of graduate-level diploma works at
Yerevan State University. The AAO held that “reviewing
‘diploma works’ for fellow students at one’s own university
is not persuasive evidence of acclaim beyond that university,”
and that absent “evidence that the petitioner served as an
external dissertation reviewer for a university with which he
is not otherwise affiliated,” Kazarian’s submission did not
meet the regulatory definition of evidence.
[5] The AAO’s conclusion rests on an improper under-
standing of 8 C.F.R. § 204.5(h)(3)(iv). Nothing in that provi-
sion suggests that whether judging university dissertations
counts as evidence turns on which university the judge is
affiliated with. Again, while the AAO’s analysis might be rel-
evant to a final merits determination, the AAO may not uni-
laterally impose a novel evidentiary requirement. Love
Korean Church, 549 F.3d at 758.
3442 KAZARIAN v. USCIS
3. Evidence of Original Scientific or Scholarly
Contributions of Major Significance in the Field of
Endeavor
[6] Pursuant to 8 C.F.R. § 204.5(h)(3)(v), Kazarian submit-
ted letters from physics professors attesting to his contribu-
tions in the field. The AAO found that his contributions were
not major, and thus did not meet the regulatory definition of
evidence. The AAO’s analysis here is consistent with the rele-
vant regulatory language, and the AAO’s determination that
Kazarian did not submit material that met the regulatory defi-
nition of evidence set forth at 8 C.F.R. § 204.5(h)(3)(v) is nei-
ther arbitrary, capricious, nor an abuse of discretion.
4. Display of the Alien’s Work at Artistic Exhibitions or
Showcases
[7] Pursuant to 8 C.F.R. § 204.5(h)(3)(vii), Kazarian sub-
mitted proof that he had self-published a textbook, had given
lectures at a community college, and had made presentations
at conferences. The AAO found that none of these activities
were displays at artistic exhibitions or showcases. The AAO’s
analysis here is again consistent with the relevant regulatory
language, and the AAO’s determination that Kazarian did not
submit evidence as defined at 8 C.F.R. § 204.5(h)(3)(vii) is
neither arbitrary, capricious, nor an abuse of discretion.
C. HARMLESSNESS
Having found that the AAO erred by unilaterally introduc-
ing new evidentiary requirements into 8 C.F.R.
§ 204.5(h)(3)(iv) and (vi), we must now determine whether
these errors were prejudicial. 5 U.S.C. § 706; Tucson Herpe-
tological Soc. v. Salazar, 566 F.3d 870, 879-80 (9th Cir.
2009). They were not.
The AAO held that Kazarian provided zero of the ten types
of evidence set forth at 8 C.F.R. § 204.5(h)(3)(i)-(x). The
KAZARIAN v. USCIS 3443
AAO should have held that Kazarian presented two types of
evidence. The regulation requires three types of evidence. 8
C.F.R. § 204.5(h)(3).
[8] Whether an applicant for an extraordinary visa presents
two types of evidence or none, the proper procedure is to
count the types of evidence provided (which the AAO did),
and the proper conclusion is that the applicant has failed to
satisfy the regulatory requirement of three types of evidence
(as the AAO concluded). 8 C.F.R. § 204.5(h)(3). Here,
although the AAO committed clear legal error, that error
“clearly had no bearing” on either “the procedure used or the
substance of decision reached.” Gifford Pinchot, 378 F.3d at
1071 (quotations omitted).
CONCLUSION
[9] Although Kazarian appears to be a well-respected,
promising physicist, who may well have been able to qualify
for an “exceptional ability” visa, he instead applied for an
“extraordinary ability” visa, and presented only two of the
types of evidence set forth at 8 C.F.R. § 204.5(h)(3)(i)-(x),
and the “extraordinary ability” visa regulations require three.
The AAO’s conclusion that Kazarian presented zero types of
evidence was in error, but the error was harmless. Kazarian
failed to establish his eligibility for an “extraordinary ability”
visa, and the District Court correctly granted USCIS’ sum-
mary judgment motion.
AFFIRMED.
PREGERSON, Circuit Judge, concurring:
I am pleased to concur in Judge Nelson’s opinion. I write
separately, however, to emphasize the injustice perpetrated by
our immigration laws and system in this case. Dr. Poghos
3444 KAZARIAN v. USCIS
Kazarian received his Ph.D. in the field of theoretical physics
from Yerevan State University and, since arriving in the
United States, has continued to research and teach in this
challenging field. Starting around 2000, Dr. Kazarian partici-
pated in a research group headed by Dr. Kip Thorne at the
California Institute of Technology. Dr. Thorne, among others,
submitted a letter in support of Dr. Kazarian’s visa applica-
tion. Dr. Kazarian volunteers his teaching services at Glendale
Community College and has authored and published his own
physics textbook. Dr. Kazarian has received strong words of
praise from colleagues at Yerevan State University, Glendale
Community College, and the California Institute of Technol-
ogy. Dr. Kazarian’s contributions in the United States have
been undoubtedly valuable. Forcing Dr. Kazarian to depart
from our country would be undoubtedly wasteful and make
one think that there is something haywire in our system.
Although, as the opinion points out, Dr. Kazarian did not sub-
mit three of the types of evidence required for the “extraordi-
nary visa,” he would have been an excellent candidate for an
“exceptional ability” visa. Indeed, it was likely the error of an
ineffective lawyer that led Kazarian to apply for the wrong
visa in the first place.1
1
At oral argument, Dr. Kazarian’s current counsel represented to the
court that the attorney who started Dr. Kazarian on the path of applying
for this “extraordinary ability” visa was George Verdin. Verdin is listed
as being indefinitely suspended from practice before the Immigration Ser-
vice, the Immigration Courts, and the Board of Immigration Appeals.
Executive Office for Immigration Review, Office of General Counsel, List
of Currently Disciplined Practitioners (Aug. 11, 2009),
http://www.usdoj.gov/eoir/profcond/chart.htm. Verdin has also been dis-
barred by the Supreme Court of Hawai’i. Office of Disciplinary Counsel
v. Verdin, No. 22349 (Haw. Sept. 27, 2001). It is distressing how many
good people—including the highly educated and the minimally educated
—fall prey to disreputable lawyers known to the immigration system.