Hamal v. U.S Department of Homeland Security ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BIRENDRA BAHADUR HAMAL, :
:
Plaintiff, : Civil Action No.: 19-2534 (RC)
:
v. : Re Document No.: 25
:
U.S. DEPARTMENT OF HOMELAND :
SECURITY, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This case concerns Plaintiff Birendra Bahadur Hamal’s petition asking the United States
Citizenship and Immigration Services (“USCIS”) for classification as an individual of
extraordinary ability in the arts. Plaintiff, a native and national of Nepal, is a director of film and
drama and sought the extraordinary ability in the arts classification based on his
accomplishments in his field. USCIS denied his petition and later denied his appeal and motions
to reconsider. Plaintiff filed suit and seeks review of the agency’s decision under the
Administrative Procedure Act (“APA”), claiming that the decision was arbitrary and capricious.
The Court previously denied Defendants’ motion to dismiss Plaintiff’s APA claim, concluding
that Plaintiff adequately pled the claim and that it could not determine whether the agency’s
decision was reasonable without first reviewing the administrative record. Now before the Court
is Defendants’ motion for summary judgment based on the contents of the certified
administrative record. For the reasons set forth below, the Court concludes that the agency
decision was not arbitrary or capricious and grants Defendants’ motion for summary judgment.
II. BACKGROUND
A. Legal Framework
The Immigration and Nationality Act (“INA”) provides a certain number of visas for
immigrants with an “extraordinary ability in the sciences, arts, education, business, or athletics
which has been demonstrated by sustained national or international acclaim and whose
achievements have been recognized in the field through extensive documentation.” 8 U.S.C. §
1153(b)(1)(A)(i). As the Court has previously explained, “[t]he ‘extraordinary ability’
designation is ‘extremely restrictive.’” Hamal v. U.S. Dep’t of Homeland Security, No. 19-cv-
2534, 2020 WL 2934954, at *1 (D.D.C. June 3, 2020) (quoting Visinscaia v. Beers, 4 F. Supp.
3d 126, 131 (D.D.C. 2013)). USCIS follows a two-step method to determine eligibility for an
extraordinary ability immigrant visa. See Kazarian v. USCIS, 596 F.3d 1115, 1119–20 (9th Cir.
2010). First, a petitioner seeking this particular visa must submit evidence of either a one-time
achievement, such as a major internationally recognized award, or evidence that the petitioner
meets at least three of the ten categories of achievements specified in the regulation. 8 C.F.R. §
204.5(h). If the petitioner makes this initial showing, USCIS then makes a “final merits
determination,” weighing the totality of the evidence to determine “whether the evidence
demonstrates extraordinary ability.” Visinscaia, 4 F. Supp. 3d at 131; see also id. at 131–32
(discussing the two-step method used by USCIS) (citing Kazarian, 596 F.3d at 1120–21).
B. Procedural History
Plaintiff initially petitioned USCIS to be classified as an individual of extraordinary
ability on Form I-140. See Certified Administrative Record (“A.R.”) 2535–40, ECF No. 29-1.1
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The parties submitted a Joint Appendix in accordance with Local Rule 7(n) that
contains the relevant portions of the administrative record. The Court cites the bates numbers
that correspond to the administrative record rather than the Joint Appendix.
2
In response, USCIS issued a Request for Evidence (“RFE”) seeking more information to support
Plaintiff’s petition. See A.R. 2076–84. The RFE explained the two-part analysis that USCIS
uses to determine whether an individual qualifies for the extraordinary ability classification. See
A.R. 2078. The RFE also described the type of evidence that could support Plaintiff’s petition,
including evidence of prizes or awards, membership in exclusive associations, published
materials about his accomplishments, evidence showing major contributions to the field,
scholarly publications, public display of his work, and a high salary. See A.R. 2078–82.
Moreover, the RFE stated that if Plaintiff could make the initial showing under the two-part
analysis, USCIS would evaluate the totality of the evidence to determine “whether or not the
petitioner, by a preponderance of the evidence, ha[d] demonstrated . . . sustained national or
international acclaim and that . . . the beneficiary is one of that small percentage who has risen to
the very top of the field of endeavor.” A.R. 2083.
Although Plaintiff submitted additional evidence, USCIS denied his petition. See A.R.
2070–75. USCIS determined that Plaintiff did “not establish[] by a preponderance of the
evidence that [he] meets at least three of the antecedent evidentiary prongs” outlined by
regulation. A.R. 2074. As such, in its initial decision, USCIS did “not conduct a final merits
determination to determine whether [Plaintiff] has reached a level of expertise indicating that
[he] is one of that small percentage who have risen to the very top of the field of endeavor, and
whether [he] has sustained acclaim.” A.R. 2074. Plaintiff administratively appealed the denial
of his petition. See A.R. 1437–41 (Plaintiff’s Notice of Appeal); see also A.R. 1455–76
(Plaintiff’s Brief in Support of Appeal).
After conducting a de novo review of the submitted materials, the Administrative
Appeals Office (“AAO”) dismissed Plaintiff’s appeal. See A.R. 1431–36. The AAO found that
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Plaintiff had, in fact, put forth sufficient evidence to “satisf[y] three of the ten initial evidentiary
criteria.” A.R. 1432. Upon reviewing the totality of the evidence, however, the AAO concluded
that Plaintiff had not demonstrated his eligibility for the extraordinary ability classification. A.R.
1433–36. Specifically, the AAO found that although Plaintiff provided evidence that he had
received awards from organizations affiliated with the Government of Nepal, he “did not
demonstrate that the field recognizes these as awards for excellence.” A.R. 1433. The AAO
stated that “the record does not document that the competitions included accomplished directors
and artists from throughout [Plaintiff’s] field reflecting that he received awards against
acclaimed competition.” A.R. 1433. Similarly, the AAO found that Plaintiff’s evidence
regarding his membership in particular associations “did not establish that his membership
requires outstanding achievements, as judged by recognized national or international experts.”
A.R. 1433–34. The AAO also considered the newspaper articles, reviews, and books contained
in the record. See A.R. 1434. Despite Plaintiff’s submission, the AAO concluded that he failed
to show “that his press coverage is indicative of a level of success consistent with being among
‘that small percentage who have risen to the very top of the field of endeavor.’” A.R. 1434
(quoting 8 C.F.R. § 204.5(h)(2)). The AAO made similar conclusions after considering the
evidence in the record regarding Plaintiff’s judging of competitions, his contributions to the
field, the display of this work publicly, and his work with other theater organizations in Nepal.
See A.R. 1434–35.
Plaintiff responded to the dismissal of his appeal by filing a motion to reopen and
reconsider. See A.R. 727–60. Plaintiff attached several new letters to his motion from various
organizations that had been mentioned in his original petition, including the Nepal Academy of
Music and Drama, the Nepal Centre of the International Theatre Institute, and the Nepal Cultural
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Corporation. See A.R. 779–85. The letters from the various organizations all list the awards
Plaintiff has received and speak to the importance of the awards in Nepal, though they use
identical language. See A.R. 779 (letter from Nepal Academy of Music and Drama stating “[t]he
awards received by Mr. Hamal have national level recognition and geographical scope of the
award is all over Nepal”); A.R. 781 (letter from Nepal Academy using identical language); A.R.
784 (letter from Nepal Cultural Corporation using identical language). The AAO determined
that Plaintiff failed to demonstrate “that [the] appellate decision was incorrect” as a matter of law
or policy. A.R. 710. Furthermore, the AAO found that the newly submitted materials did not
change the calculus because “the identical language calls into question whether the letters were
independently prepared by the authors,” thereby diminishing their probative value. A.R. 710.
Plaintiff filed another motion to reconsider based on largely the same arguments, A.R. 21–22,
that the AAO denied, A.R. 1–4, before he filed this lawsuit.
Defendants now move for summary judgment based on the contents of the certified
administrative record. See Defs.’ Mem. Supp. Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 25-1.
Plaintiff opposes and maintains that the administrative decisions denying his petition are
arbitrary and capricious because they run counter to the evidence in the record. See Pl.’s Mem.
Opp’n (“Pl.’s Opp’n”), ECF No. 27. The Court has reviewed the parties’ briefing and the
administrative record and Defendants’ motion is ripe for decision. See Defs.’ Reply, ECF No.
28.
III. LEGAL STANDARD
In a typical case, a court may grant summary judgment to a movant who “shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). But when assessing administrative action, at the summary
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judgment stage “the district judge sits as an appellate tribunal,” Am. Bioscience, Inc. v.
Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001), limited to determining whether, as a matter of
law, the evidence in the administrative record supports the agency’s decision, Citizens for Resp.
& Ethics in Wash. v. SEC, 916 F. Supp. 2d 141, 145 (D.D.C. 2013). In such a case, the
complaint “actually presents no factual allegations, but rather only arguments about the legal
conclusion to be drawn about the agency action.” Rempfer v. Sharfstein, 583 F.3d 860, 865
(D.C. Cir. 2009) (quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226
(D.C. Cir. 1993)). Accordingly, the Court’s review “is based on the agency record and limited to
determining whether the agency acted arbitrarily or capriciously.” Id. (citing 5 U.S.C. § 706).
Agency action is arbitrary and capricious if the agency “relied on factors which Congress
has not intended it to consider, entirely failed to consider an important aspect of the problem,
offered explanation for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise.” Agape Church, Inc. v. FCC, 738 F.3d 397, 410 (D.C. Cir. 2013) (quoting Motor
Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). In
performing this “narrow” review, the court “is not to substitute its judgment for that of the
agency.” State Farm, 463 U.S. at 43. Review under this standard is therefore deferential, not de
novo. See Recording Indus. Ass’n of Am. v. Librarian of Congress, 608 F.3d 861, 865 (D.C. Cir.
2010). For a decision to withstand judicial scrutiny, the agency “at least ‘must examine’ the
relevant factors . . . and articulate a ‘rational connection’ between the record and [its] decision.”
AT&T, Inc. v. FCC, 886 F.3d 1236, 1245 (D.C. Cir. 2018) (quoting State Farm, 463 U.S. at 43).
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IV. ANALYSIS
Defendants argue that they are entitled to summary judgment because the agency
considered all the evidence submitted by Plaintiff and reasonably determined that he failed to
establish eligibility for the highly restrictive extraordinary ability visa category. See Defs.’ Mot.
at 13–15. Defendants maintain that Plaintiff’s challenge amounts to a request for this Court to
reweigh the factual evidence presented to the agency—a challenge, they argue, that must fail
under the applicable standard of review. See id. Plaintiff argues in opposition that the agency
decision rejecting his petition was contrary to the evidence in the record and that his submission
satisfied the regulatory standards governing the extraordinary ability visa category. See Pl.’s
Opp’n at 8–9. Furthermore, Plaintiff contends that the agency inappropriately “conflated the
national and international acclaim standards” even though “Plaintiff’s burden before the AAO
was to show only that he was acclaimed nationally.” Id. at 8 (emphasis in original).
Based on a review of the entire record and parties’ briefing, the Court concludes that the
agency’s decision denying Plaintiff’s petition was not arbitrary or capricious. The AAO
decisions reflect careful consideration of all the submitted evidence and articulate a rational
connection between the record and the decision. See AT&T, 886 F.3d at 1245 (quoting State
Farm, 463 U.S. at 43). For example, in the decision dismissing his appeal, the AAO examined
the evidence of Plaintiff’s awards. See A.R. 1433. Acknowledging that Plaintiff had received
the awards, the AAO explained that Plaintiff “did not demonstrate that the field recognizes these
as awards for excellence.” A.R. 1433. The record did “not document that the competitions
included accomplished directors and artists from throughout [Plaintiff’s] field reflecting that he
received awards against acclaimed competition.” A.R. 1433. Because the record did not
contextualize the awards received by Plaintiff throughout his career, it is entirely reasonable to
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conclude that the awards do not, without more, demonstrate sustained national or international
acclaim. The AAO noted a similar failure to contextualize several other categories of evidence
submitted by Plaintiff. See A.R. 1433–34 (“[Plaintiff] did not establish that his membership [in
various associations] requires outstanding achievements, as judged by recognized national or
international experts.”); A.R. 1434 (“[Plaintiff] did not demonstrate that the competitions [he
judged] are considered prestigious or attract significant attention by the field.”); A.R. 1435
(“[Plaintiff] did not establish that his work at [the Mask Art Theatre and Nepal Cultural
Corporation] has been recognized by the field as being significantly important or viewed as
unusually influential.”). The AAO further considered the publications submitted by Plaintiff and
letters vouching for his contributions to the field. See A.R. 1434–35. The agency acknowledged
this evidence but determined that Plaintiff failed to show that “his press coverage is indicative of
a level of success consistent with being” at the top of his field, A.R. 1434, and that the submitted
evidence did not show “that [Plaintiff] has significantly influenced the field,” A.R. 1435. Rather
than “dismissing the extensive record,” Pl.’s Opp’n at 8, the AAO’s decision reflects a searching
review of everything that Plaintiff submitted.2 Under the appropriate standard of review, the
agency’s judgment must stand if it is rationally connected to the record. See State Farm, 463
U.S. at 43. Based on the AAO’s consideration of all the evidence3 and its reasoning underlying
2
Plaintiff contends that “Defendants have not satisfactorily explained the AAO’s
rejection of an extensive record” and that “[o]ne is hard-pressed to think what more evidence
would be required” to establish eligibility for the visa category. Pl.’s Opp’n at 8–9. The Court
disagrees. The AAO explained that much of the evidence submitted by Plaintiff lacked a context
showing that Plaintiff enjoyed sustained national or international acclaim and sat at the top of his
field. See Visinscaia, 4 F. Supp. 3d at 131–32 (citing Kazarian, 596 F.3d at 1120–21).
Persuasive evidence providing that context may have helped Plaintiff’s petition.
3
The Court also finds reasonable the AAO’s conclusion that the identical language in the
letters submitted with Plaintiff’s motion to reconsider and reopen undermined their probative
value. See A.R. 710. The identical language suggests that the letters were all prepared by the
same person and calls into question the persuasive value of the letters’ content.
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the decision, the Court concludes that the denial of Plaintiff’s petition for the “extremely
restrictive” visa category, Visinscaia, 4 F. Supp. 3d at 131, was reasonable and appropriately
supported by the record.4
The Court is not convinced that the AAO inappropriately conflated the national and
international acclaim standards, as suggested by Plaintiff. The AAO repeatedly stated that they
were analyzing whether Plaintiff had achieved “sustained national or international acclaim.”
E.g., A.R. 1433. Therefore, on its face, the AAO was looking for either sustained national
acclaim or sustained international acclaim. There is no indication that the AAO failed to “clearly
distinguish[] between national and international acclaim,” as argued by Plaintiff. Pl.’s Opp’n at
2. The AAO instead merely found that neither type of acclaim was demonstrated.
Plaintiff’s arguments concerning national acclaim also misstate the law. Plaintiff argues
that “[a]chieving national acclaim in Nepal is all that is apparently required under the
regulation.” Pl.’s Opp’n at 2; see also id. at 8 (“Plaintiff’s burden before the AAO was to show
only that he was acclaimed nationally.”). This is incorrect. In addition to the requirement of
demonstrating “sustained national or international acclaim,” Plaintiff was also required to
provide evidence demonstrating “that his or her achievements have been recognized in the field
of expertise.” 8 C.F.R. § 204.5(h)(3). The AAO did not find that this latter requirement was
met, noting, for example, that Plaintiff “did not establish that his work at [certain] organizations
has been recognized by the field as being significantly important or viewed as unusually
4
The Court’s conclusion is not meant as a comment on Plaintiff’s abilities as a director or
his accomplishments throughout his career. Indeed, the record suggests that Plaintiff is a very
talented artist. The Court’s review is limited, however, to determining whether the agency
articulated a rational connection between the record and its decision. The Court may not
substitute its own judgment in place of the agency’s. Given the restrictive nature of the
extraordinary ability visa category and the agency’s consideration of the evidence, the Court
finds that the agency’s decision was reasonable.
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influential.” A.R. 1435. Therefore, even if Plaintiff’s argument about conflating national and
international acclaim were correct, his opposition would still ultimately fail because both acclaim
and recognition must be shown; the AAO did not find either; Plaintiff’s argument concerns only
acclaim; and as the Court explains above, the AAO’s decision was not otherwise arbitrary or
capricious.
Plaintiff’s sole focus on “acclaim” is misguided for another reason. Although “[a]
petition for an alien of extraordinary ability must be accompanied by evidence 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), the ultimate question remains
whether Plaintiff demonstrated extraordinary ability, see Visinscaia, 4 F. Supp. 3d at 131 (“If the
alien satisfies her initial evidentiary burden—that is, if she proves that she has met either of the
requirements of § 204.5(h)(3)—USCIS must then decide, in a ‘final merits determination’ and
weighing the documentation offered, whether the evidence demonstrates extraordinary ability.”).
“Extraordinary ability” is defined as “a level of expertise indicating that the individual is one of
that small percentage who have risen to the very top of the field of endeavor.” Id. § 204.5(h)(2).
Demonstrating sustained national acclaim may in some cases be sufficient to also demonstrate
both recognition and extraordinary ability, but Plaintiff is incorrect that it is necessarily
sufficient. See Pl.’s Opp’n at 2 (“Achieving national acclaim in Nepal is all that is apparently
required under the regulation.”). Therefore, Plaintiff’s argument that the AAO erred merely
because Plaintiff demonstrated “sustained national acclaim and [that he] was at the top of his
field in Nepal,” Pl.’s Opp’n at 2, is incorrect. The AAO repeatedly recounted why Plaintiff’s
evidence failed to show that he was “among ‘that small percentage who have risen to the very
top of the field of endeavor.’” E.g., A.R. 1434 (quoting 8 C.F.R. § 204.5(h)(2)).
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Instead, the AAO reasonably concluded that the submitted evidence failed to demonstrate
sustained national or international acclaim, recognition in the field of expertise, and that Plaintiff
has risen to the very top of his field. For the reasons described above, the evidence Plaintiff
submitted lacked context demonstrating sustained success on either the national or international
levels. Plaintiff contends that the record contained evidence of “top awards and prizes” from
“esteemed and preeminent organizations related to the Nepalese film industry.” Pl.’s Opp’n at 8.
But the issue is that, whether or not that is true, the record before the agency did not establish
that the awards Plaintiff has won are “top awards and prizes” in the field of endeavor and it
failed to show the preeminence of the organizations to which he belongs.5
The extraordinary ability visa category is reserved for a very small percentage of
prospective immigrants. Courts have therefore upheld denials of this restrictive category for
very impressive individuals. See Visinscaia, 4 F. Supp. 3d at 136 (“[The Court] has little doubt
that Svetlana Visinscaia is a very good ballroom dancer. But that is a different question from
whether USCIS acted arbitrarily when it denied her application for an extraordinary-ability
visa.”); see also Kazarian, 596 F.3d at 1122 (upholding denial of petition of a published
theoretical physicist specializing in non-Einsteinian theories of gravitation); Lee v. Ziglar, 237 F.
Supp. 2d 914, 918 (N.D. Ill. 2002) (finding petition of “arguably one of the most famous
baseball players in Korean history” properly denied where petitioner sought to coach baseball).
5
The Court also finds the AAO’s denials of Plaintiff’s motions to reconsider and reopen
were not arbitrary or capricious. The AAO considered the additional evidence submitted by
Plaintiff but explained that he failed to show how the dismissal of his appeal incorrectly applied
the law. A.R. 709. The Court agrees. Similar to his challenge today, Plaintiff’s motions to
reconsider contain a plea to reweigh the evidence rather than a demonstration of legal error. For
this reason, the AAO’s denials of Plaintiff’s motions to reconsider and reopen were also
reasonable.
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Although Plaintiff is also an impressive individual, the Court concludes that the agency’s
decision denying his petition is supported by the record and is, thus, not arbitrary or capricious.
V. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (ECF No. 25) is
GRANTED. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: June 8, 2021 RUDOLPH CONTRERAS
United States District Judge
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