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

No. 11-35249 ____________________________________________

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

____________________________________________

ANIL RIJAL,

Plaintiff-Appellant,

v.

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,

Defendant-Appellee.__________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTWESTERN 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 DivisionOffice of Immigration Litigation

SAMUEL 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

Case: 11-35249 08/10/2011 ID: 7852116 DktEntry: 12 Page: 1 of 41

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT 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 “ExtraordinaryAbility” Category.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATEMENT 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.. . . . . . . . . . . . . . . . . . . . . 17

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

I. THE STANDARD OF REVIEW. . . . . . . . . . . . . . . . . 19 A. De Novo Review. . . . . . . . . . . . . . . . . . . . . . . . 19

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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 TODEMONSTRATE THAT HE SATISFIES THE LEGALCRITERIA 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 AcclaimThrough Lesser Nationally or InternationallyRecognized Prizes or Awards In His Field OfEndeavor. . . . . . . . . . . . . . . . . . . . . . . . . . 25

2. Mr. Rijal Failed to Establish That He HadSustained National or International AcclaimThrough His Participation As A Judge Or theWork Of Others. . . . . . . . . . . . . . . . . . . . . 27

3. Mr. Rijal Failed to Establish That He HadSustained National or International AcclaimThrough Original Contributions To His

Field. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

4. Mr. Rijal Failed to Establish That He HadSustained National or International AcclaimThrough The Display Of his Work In ArtisticExhibitions or Showcases. . . . . . . . . . . . . 29

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5. Mr. Rijal Failed to Establish That He HadSustained National or International AcclaimThough Performance In A Leading orCritical Role for Organizations orEstablishments That Have a DistinguishedReputation Showcases. . . . . . . . . . . . . . . . 30

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

iii


TABLE OF AUTHORITIES

CASES

American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . 20

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc.,419 U.S. 281, 290 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Family Inc. v. USCIS,469 F.3d at 1315 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Gifford Pinchot Task Force v. United States Fish & Wildlife Serv.,378 F.3d 1059, 1071 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . 23

Kazarian v. USCIS, et al.,596 F.3d 1115 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . 1, passim

Lee v. Ziglar,237 F. Supp. 2d 914 (N.D. Ill. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . 7

Lopez v. Smith,203 F.3d 1122, 1131 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . 19

Lujan v. Pac. Mari. Ass’n,165 F.3d 738, 741 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Marsh v. Oregon Natural Res. Council,490 U.S. 360, 378 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Ins. Co.,463 U.S. 29, 43 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Muni v. INS,891 F. Supp. 440 (N.D. Ill. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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Northwest Motorcycle Ass’n v. U.S. Dep’t of Agric.,18 F.3d 1468, 1478 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Pazcoguin v. Radcliffe,292 F.3d 1209, 1213 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Russell v. INS,No. 98-C-6132, 2001 WL 11055 (N.D. Ill. Jan. 4 2001). . . . . . . . . 7, 8

Safari Aviation Inc. v. Garvey,300 F.3d 1144, 1150 (9th Cir. 2002), cert. denied 538 U.S. 946 (2003).. . . . . . . . . . . . . . . . . . . 20, 26, 27, 30

ADMINISTRATIVE DECISIONS

Matter of Price,20 I. & N. Dec. 953 (BIA 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Matter of Soffici,22 I. & N. Dec. 158, 165 (Comm’r 1998). . . . . . . . . . . . . . . . . . . . . 6, 7

STATUTES

5 U.S.C. § 706(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

6 U.S.C. § 522 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

8 U.S.C. § 1153(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

8 U.S.C. § 1153(b)(1)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, passim

8 U.S.C. § 1153(b)(1)(A)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 25, 29

8 U.S.C. § 1153(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

8 U.S.C. § 1182(a)(5).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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HOMELAND SECURITY ACT

Pub. L 107-296, 116 Stat. 2135 (Nov. 25, 2002).. . . . . . . . . . . . . . . . . . . . . 21

IMMIGRATION ACT OF 1990

Pub. L. No. 101-649, 101 Stat. 4978 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . 2

REGULATIONS

8 C.F.R. § 103.3(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

8 C.F.R. § 204.5(h)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 5

8 C.F.R. § 204.5(h)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, passim

8 C.F.R. § 204.5(h)(3)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

8 C.F.R. § 204.5(h)(3)(i)-(x). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

8 C.F.R. § 204.5(h)(3)(iv). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

8 C.F.R. § 204.5(h)(3)(v). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

8 C.F.R. § 204.5(h)(3)(vii).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

8 C.F.R. § 204.5(k)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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INTRODUCTION

Plaintiff-Appellant Anil Rijal (“Rijal”) a filmmaker who is a native and

citizen of Nepal, seeks to overturn the decision of United States Citizenship and

Immigration Services (“USCIS”) denying his Form I-140 petition for an

immigration visa preference as an alien “of extraordinary ability.” USCIS denied

Rijal’s petition after determining that Rijal was unable to sufficiently demonstrate

that 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 he

had sustained national or international acclaim through evidence of a one-time

achievement (that is, a major, internationally recognized award) and failed to

establish that he had sustained national or international acclaim through evidence

of at least three of the regulatory criteria set forth at 8 C.F.R. § 204.5(h)(3). The

district court subsequently granted summary judgment in favor of USCIS.

Although the district court found that USCIS erred by not following the analytical

framework 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 that

USCIS’s error was harmless, because it was made with an eye toward the ultimate

merits determination. The district court concluded that USCIS appropriately

evaluated Rijal’s evidence, and its conclusion that the evidence did not

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demonstrate sustained acclaim sufficient to prove Rijal’s “extraordinary ability”

was neither arbitrary nor capricious. This Court should affirm the district court’s

holding.

STATEMENT OF THE LEGAL FRAMEWORK

A. The Statutory and Regulatory Framework.

Generally, aliens coming to work in the United States must have a specific

job offer from a U.S. employer, and that employer must demonstrate that the

Department of Labor has certified that there are not sufficient United States

workers 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 and

working conditions of similarly employed United States workers. See 8 U.S.C. §

1182(a)(5). Unlike other employment-based visa categories, however, an “alien of

extraordinary ability” is exempted from the job offer requirement, and is also

therefore exempted from the need to obtain an individual labor certification which

can be challenged by United States workers.1

1 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)

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Specifically, pursuant to 8 U.S.C. § 1153(b)(1)(A), an alien may obtain an

employment-based visa as an “alien of extraordinary ability” if “alien has

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) (emphasis added).

The classification of an alien as one of “extraordinary ability” is reserved for

that small percentage of individuals who have risen to the very top of their fields of

endeavor. H. R. Rep. No. 723, 101st Cong., 2d Sess., reprinted in 1990

U.S.C.C.A.N. 6710, 6739 (September 19, 1990). One who seeks such a

classification is required to submit extensive documentation in support of his

claim. Id. at 6749; see also 8 U.S.C. 1153(b)(1)(A)(i). The language of the House

Report limiting the issuance of “extraordinary ability” visas to the “small

percentage of individuals who have risen to the very top of their fields of

endeavor” 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 of

extraordinary 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


expertise indicating that the individual is one of that small percentage who have

risen to the very top of the field of endeavor.” 8 C.F.R. § 204.5(h)(2) (emphasis

added). The regulations further state that 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) (emphasis added). “Such evidence shall

include evidence of a one-time achievement (that is, a major, international

recognized award), or at least three” of the following ten criteria:

(i) Documentation of the alien’s receipt of lesser nationally orinternationally recognized prizes or awards for excellence in the fieldof endeavor;

(ii) Documentation of the alien’s membership in associations in thefield for which classification is sought, which require outstandingachievements of their members, as judged by recognized national orinternational experts in their disciplines or fields;(iii) Published material about the alien in professional or major tradepublications or other major media, relating to the alien’s work in thefield for which classification is sought;

(iv) Evidence of the alien’s participation, either individually or on apanel, as a judge of the work of others in the same or an allied field ofspecification for which classification is sought;

(v) Evidence of the alien’s original scientific, scholarly, artistic,athletic, or business-related contributions of major significance in thefield;

(vi) Evidence of the alien’s authorship of scholarly articles in thefield, in professional or major trade publications or other major media;

4


(vii) Evidence of the display of the alien’s work in the field at artisticexhibitions or showcases;

(viii) Evidence that the alien has performed in a leading or critical rolefor organizations or establishments that have a distinguishedreputation;

(ix) Evidence that the alien has commanded a high salary or othersignificantly high remuneration for services, in relation to others inthe field; or

(x) Evidence of commercial successes in the performing arts, asshown by box office receipts or record, cassette, compact disk, orvideo sales.

8 C.F.R. § 204.5(h)(3).

Once an applicant meets his evidentiary threshold by submitting

evidence 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 small

percentage who have risen to the very top of the[ir] field of endeavor,” and

that “the alien has sustained national or international acclaim and that his or

her 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 alien

bears the burden of proving eligibility for the immigrant classification. 8

U.S.C. § 1361; see also Pazcoguin v. Radcliffe, 292 F.3d 1209, 1213 (9th

Cir. 2002). Only those aliens who have met their burden of demonstrating

5


that their achievements have garnered “sustained national or international

acclaim” are eligible for an “extraordinary ability” visa. Kazarian, 596 F.3d

at 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 one

of “extraordinary ability,” USCIS officers are bound by published decisions of the

AAO. 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 (BIA

1994). In that case, the professional golfer Nick Price was found to have met the

exacting “extraordinary ability” standard based on his overall world ranking (10th

out of 600 playing professionals); numerous articles in Golf Digest and Golf

Magazine 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-INS

commissioner discussed the significance of each accomplishment and concluded

that Mr. Price demonstrated that he was within the small percentage of individuals

who had risen to the very top of the field of golf. Id. Mr. Price demonstrated that

6


he had sustained national or international acclaim and that his achievements had

been recognized in the field. Id.

C. Federal Courts’ Determinations Involving The “ExtraordinaryAbility” Visa Category.

The high standard of eligibility set forth in the Matter of Price has been

confirmed by federal courts that have considered the “extraordinary ability” visa

category. For example, in Lee v. Ziglar, 237 F. Supp. 2d 914 (N.D. Ill. 2002), the

U.S. District Court for the Northern District of Illinois affirmed the former INS’s

denial of Man Soo Lee’s “extraordinary ability” visa application. That case

involved 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 for

many years, had numerous All Star Game appearances, the Triple Crown Title (for

leading the league in batting average, home runs, and runs batted in all in the same

season), 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 a

coach, the position for which he sought classification. Id. at 918-19. The court

opined that, because the “visa classification for extraordinary ability is an

extremely restrictive one,” absent an abuse of discretion, the court must defer to

the agency’s reasonable interpretation of the statute. Id. at 919; see also Russell v.

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INS, 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 its

discretion in denying “extraordinary ability” classification to NHL defenseman

Craig Muni who won 3 Stanley Cups with the Edmonton Oilers, was named one of

the top ten hitting defensemen by Hockey Digest, had an annual salary above the

league average, and submitted affidavits from eight veteran NHL players stating he

was one of the best defensemen in hockey).

After USCIS initially denied Rijal’s petition and administrative appeal, this

Court decided Kazarian v. USCIS, et al., 596 F.3d 1115 (9th Cir. 2010), the only

reported case from the U.S. Courts of Appeal addressing the “extraordinary

ability” visa classification. In Kazarian, this Court affirmed the district court’s

grant of summary judgment in favor of the Government finding that USCIS’s

denial of an “extraordinary ability” visa was not arbitrary, capricious, or contrary

to 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 permanent

residence in the United States. Id. Plaintiff had obtained a Ph.D in Theoretical

Physics from Yerevan State University (“YSU”) in Yerevan, Armenia (where he

also served as a research assistant for three years), and for approximately 9 years,

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he served as a volunteer professor and a Science Lecture Series speaker at Glendale

Community College (“GCC”). Id. In support of his application, Plaintiff

submitted evidence that he authored a textbook titled “Concepts in Physics:

Classical Mechanics” that, according to a colleague, was “certain to be required

reading in many secondary schools, colleges and universities throughout the

country;” that he authored many scholarly articles, including six publications in

Astrophysics and one e-print published in the public web archives of the Los

Alamos National Laboratory; and that he presented lectures, in addition to his

regular lecture series at GCC, 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 Light Sources, and the

Foundations of Gravitation and Cosmology, International School Seminar. Id. at

1118. Plaintiff also submitted letters from colleagues describing, inter alia, his

outstanding contributions to theoretical physics, his high-caliber research, his

diligence, his professionalism, and his scientific qualifications. Id. at 1117-18.

Nevertheless, USCIS denied the petition. The district court granted USCIS’s

motion for summary judgment, and this Court affirmed, stating that “[a]lthough

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

9


‘extraordinary ability’ visa,” and he “failed to establish his eligibility for an

‘extraordinary ability’ visa.” Id. at 1122.

STATEMENT OF RELEVANT FACTS

I. 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 permanent

residence in the U.S. classified under 8 U.S.C. 1153(b)(1)(A) as an “alien of

extraordinary ability.” Excerpts of Record (“E.R.”) at 747-49. Rijal’s petition

contained documentation indicating his work as a television producer, director, and

cameraman in Nepal. E.R. at 750-51. The petition included exhibits indicating

that Rijal won two prizes: the Japan Prize Contest 2001 United Nations Children’s

Fund (“UNICEF”) Prize for his documentary “Four Years in Hell” (“UNICEF

Prize”) and Grand Prize at the 1997 New York International Children’s Film

Festival (“NYICFF Prize”) for his movie “Kumari, The Living Goddess.” E.R. at

753-766. The exhibits also included: several articles from various internet and

print publications that mention, inter alia, Rijal or his work; several letters

indicating that Rijal was selected to sit on a jury for two Nepalese award

presentations – the Crity Advertising Awards 2060 in 2003 and the Image Awards

10


2004; several letters of recommendation and appreciation from colleagues,

coworkers, and acquaintances, within and outside of the media industry; and

several other invitations, including invitations to attend the 2002 Prix Jeunesse

International 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 to

warrant 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 additional

evidence to support his petition. In the RFE, USCIS requested further evidence

about Rijal’s two awards. E.R. at 741. Specifically, for both awards, USCIS

requested additional evidence describing the “nature of the [awarding]

organization, the scope of the contest, the criteria used to select the recipient of the

award, and the significance of receiving such an award.” Id. USCIS also

requested further evidence regarding, inter alia, any material published about Mr.

Rijal or his work in professional or major trade publications, the nature of the Crity

Advertising and Image awards and the criteria used to select the jury members for

those awards, and the significance of the various invitations Rijal submitted with

his application. E.R. 741-43. USCIS further informed Rijal that “the evidence

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must clearly demonstrate that you have sustained national or international acclaim

and that your achievements have been recognized as extraordinary by others in the

field.” E.R. at 743.

In response to the RFE, Rijal submitted additional information in support of

his 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. at

594. Rijal generally described the UNICEF Prize and the NYICFF prize. E.R. at

597-598. Rijal attached several articles from local internet and print media sources

describing the NYICFF Prize. E.R. at 642-53. Rijal also submitted several articles

from Nepalese publications dated in or around November and December 2001,

discussing “Four Years in Hell” and Rijal’s work on the documentary. E.R. at

611-40. In the response, Rijal also described the Crity Advertising Awards 2060

and the Image Awards 2004, for which he was chosen as a jurist, stating that the

awards were “an initiative of the Advertising Agencies Association of Nepal

(AAAN) to recognize the talent of advertising agencies and to acknowledge the

contribution of advertising agencies to the advertising sector, Nepali business, and

the economy as a whole.” E.R. at 599. Rijal also pointed to several articles from

various internet and media publications in or around August 1998 and December

12


2001 to support his claim that his accomplishments as a television

director/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 not

establish that Rijal qualified for the requested visa classification – the “alien of

extraordinary ability” classification – and denied the petition. E.R. at 590. USCIS

stated 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 a

major, international award or, in the alternative, of sustained national or

international 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 of

that 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, which

included the same arguments and the same documents that he submitted in

response to the RFE. E.R. at 450-589. On June 14, 2007, USCIS denied the

appeal for the same reasons it had stated in its March 21, 2007 decision. E.R. at

446-49. On July 10, 2007, Rijal, through counsel, appealed the denial to USCIS’s

13


Administrative Appeals Office (“AAO”). E.R. at 437-45. In the appeal, Rijal

argued that USCIS’s decision to deny his visa application was arbitrary and

capricious. Mr. Rijal offered no specific USCIS finding-of-fact or legal conclusion

that he claimed was in error. Rather, Rijal stated that USCIS failed to “properly

consider the evidence previously submitted.” Id. Yet, Rijal’s brief contained

largely the same arguments and the same evidence that was previously considered

by USCIS. Id.

While Rijal’s appeal was pending before the AAO, on December 12, 2007, a

new attorney entered an appearance on behalf of Rijal, and filed a supplemental

brief in support of Rijal’s appeal. E.R. at 175-240. In the brief, Rijal argued for

the first time that his two awards constituted “major international awards.” E.R.

185. With the supplemental brief, Rijal also submitted several new letters in

support of his application. Specifically, Rijal submitted a letter from Frode Hojer

Pedersen, 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’s

opinion about Rijal’s work and abilities in the industry. Id. Rijal also submitted

letters from Eric Beckman, Director of the NYICFF, and Kirsten Schneid, Festival

Coordinator of the 2002 Prix Jeunesse Festival, each describing their respective

14


festivals 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 Kantipur

Publications Pvt. Ltd., describing the role played by Rijal in establishing the

television 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 the

administrative record, the AAO affirmed the March 21, 2007 decision denying the

petition, finding that Mr. Rijal had not met the regulatory criteria necessary for

classification as an “alien of extraordinary ability.” E.R. at 165-174. The AAO

found that “the evidence indicates that [Mr. Rijal] has obtained a measurable level

of 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 have

achieved sustained national or international acclaim or to be within the small

percentage 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, several

additional internet articles and press releases, and two additional letters – a letter

dated June 17, 2009 from Hilmy Ahamed, Chairman and Chief Executive Officer

15


of Young Asia Television, describing Rijal’s contributions to founding the

television industry in Nepal and establishing Young Asia Television in 1985 and

1986, E.R. 55-57, and a supplemental supporting letter dated June 1, 2009 from

Frode 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 the

Motion 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 and

could have been discovered or presented in the previous proceeding,” and was

specifically 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 to

reconsider should flow from new law or a de novo legal determination reached in

its decision that may not have been addressed by the party,” and that a party may

not “submit the same brief presented on appeal and seek reconsideration by

generally alleging error in the prior decision.” E.R. at 20. USCIS concluded that

Rijal “failed to support his motion with any precedent decisions or other such

16


evidence to establish that the decision was based on an incorrect application of law

or USCIS policy.” Id.

II. The District Court Decision

On April 22, 2010, Rijal filed a complaint in the United States District Court

for the Western District of Washington, seeking judicial review under the

Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). The parties filed

cross-motions for summary judgment. On February 22, 2011, the district court

granted USCIS’s motion. The Court first held that USCIS did not act arbitrarily or

capriciously 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 found

and 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 erred

in 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 in

support of the regulatory evidentiary criterion in view of the requirement that Rijal

demonstrate sustained international acclaim, USCIS “heightened the evidentiary

threshold.” Id. The district court concluded that, “[a]lthough USCIS erred in some

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of 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] made

those errors with an eye toward the ultimate merits determination.” Id. As the

district court noted, “[i]n each instance, USCIS sought evidence that demonstrated

sustained acclaim.” Id. According to the district court, “USCIS concluded that

Mr. Rijal’s evidence demonstrated distinction, but not sustained acclaim sufficient

to demonstrate ‘extraordinary ability,’” and that conclusion was “not the

result of [USCIS’s] erroneous determination about Rijal’s threshold evidentiary

showings, 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 of

reviewing each evidentiary criterion, USCIS articulated rational reasons that Mr.

Rijal’s evidence did not demonstrate “extraordinary ability.” Id. According to the

district court, USCIS “finished that review with the conclusion that the

evidence, taken together, did not satisfy the standard.” That decision, the district

court held, was not arbitrary or capricious. Id

SUMMARY OF ARGUMENT

The district court correctly held that USCIS lawfully denied Rijal’s petition

based on Rijal’s failure to establish that he qualified for visa preference

classification as an alien of extraordinary ability. First, the district court was

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correct when it held that USCIS did not act arbitrarily or capriciously in

concluding that the awards Rijal obtained were not “major, international

recognized award[s]” as required by the regulations. Second, the district court was

correct when it held that, although USCIS did not employ the appropriate

analytical framework for evaluating the threshold evidentiary criteria, that error

was harmless, because USCIS was evaluating the evidence with an eye toward the

ultimate merits determination.

ARGUMENT

I. THE STANDARD OF REVIEW.

A. De Novo Review.

This Court has reviewed the merits of I-140 immigration petition denials

under the APA. See Kazarian, 596 F.3d at 1117. The Court reviews district court

grants 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 may

be affirmed “on any ground supported by the record, even if the ground is not

relied on by the district court.” Lujan v. Pac. Mari. Ass’n., 165 F.3d 738, 741 (9th

Cir. 1999).

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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.” 5

U.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 arbitrary

and capricious standard affords its “greatest deference” to an agency when the

agency exercises its “special competence” in the subject matter committed to its

regulation. American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316 (1965).

Review under the arbitrary and capricious standard is narrow, and the

reviewing court may not substitute its judgment for that of the agency. See Marsh

v. 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 if

the agency has relied on factors that Congress has not intended it to consider,

entirely failed to consider an important aspect of the problem, offered an

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 of the product

of agency expertise. See Marsh, 490 U.S. at 378; Safari Aviation, 300 F.3d at

1150.

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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 of

the 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 “of

less 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. Ass'n. 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’ test

does 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’SDENIAL OF RIJAL’S VISA PETITION BECAUSE RIJAL FAILEDTO DEMONSTRATE THAT HE SATISFIES THE LEGALCRITERIA.

A. The District Court Was Correct When It Held That USCIS DidNot 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 Rijal

failed 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).

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Mr. Rijal asserts that the two awards he won – the NYICFF Prize in 1997 and the

UNICEF Prize in 2001 – are major, internationally recognized awards and that he

qualifies for a visa preference classification as an “alien with extraordinary ability”

based on those awards. As the District Court noted, however, “Congress named

the Nobel Prize as its sole example of a major, internationally recognized award

that would by itself demonstrate ‘extraordinary ability.’” S.E.R. at 7 (citing

Kazarian, 596 F.3d at 1119 (citing 1990 U.S.C.C.A.N. 6710, 6739). The District

Court further noted that law provides no clear answer as to “[w]hat awards less

prestigious and recognized than the Nobel Prize qualify as major, international

awards.” Id. Rather, according to the District Court, Congress “entrusted that

decision to the administrative process.” Id.

A review of that process reflects that, in concluding that the record did not

support the assertion that either the UNICEF Prize or the NYICFF Prize

constituted “major, internationally recognized awards,” USCIS considered the

“relevant factors and articulated a rational connection between the facts it found

and the choice it made.” Id.; S.E.R. at 17-18. USCIS specifically considered the

two 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 UNICEF

Prize was “reported in the top international media” or “recognized by the general

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public.” S.E.R. at 17. The AAO noted that “Congress’s example of a one-time

achievement is a Nobel Prize,” and that the evidence did not demonstrate that the

NYICFF Prize was “familiar to the general public such as with the Nobel Prize or

the Oscars.” Id. at 17-18. The AAO ultimately concluded that the record did not

support the claim that either the UNICEF Prize or the NYICFF Prize constituted

“major, internationally recognized awards.” Id. Accordingly, the District Court

correctly concluded that USCIS did not act arbitrarily or capriciously.

B. The District Court Was Correct That USCIS’ Error InDetermining That Mr. Rijal Had Not Satisfied Any of theAlternate Evidentiary Criteria Was Harmless.

The District Court did not err when it concluded that, although USCIS’s

analytical framework was flawed, Rijal suffered no prejudice as a result. As the

district court noted, “[i]t is not enough to demonstrate errors in an agency’s

decision, the petitioner must also establish that the errors prejudiced him.” Order

at 7 (citing Kazarian, 596 F.3d at 1119, 1122). The court can overlook errors only

when they “clearly had no bearing on the procedure used or the substance of the

decision reached.” Id. at 1119 (quoting Gifford Pinchot Task Force v. United

States Fish & Wildlife Serv., 378 F.3d 1059, 1071 (9th Cir. 2004)) (emphasis in

Gifford Pinchot). As the district court held, there is no prejudice here.

In Kazarian, the plaintiff had filed an application for an employment-based

immigrant visa for “aliens of extraordinary ability” pursuant to 8 U.S.C. 23


§ 1153(b)(1)(A), contending that he was an alien with extraordinary ability as a

theoretical physicist. Id. at 1118. This Court held that although the agency erred

by reading additional requirements into two of the ten regulatory criteria types of

evidence set forth at 8 C.F.R. § 204.5(h)(3)(i)-(x), the errors were harmless

because plaintiff nonetheless failed to establish his eligibility for an “extraordinary

ability” visa. Id. at 1122. This Court also concluded that, even if plaintiff had

established his eligibility for an “extraordinary ability” visa by demonstrating that

he met the minimum number of regulatory criteria, the agency retained the power

to ultimately decide whether an alien had demonstrated that his or her abilities are

indeed extraordinary. Id. Thus, even though the AAO’s analysis was inconsistent

with the regulatory criteria, this Court determined that the AAO’s errors were

harmless because, notwithstanding the errors, the plaintiff failed to establish his

eligibility for an “extraordinary ability” visa. Id.

The same analysis should yield the same result here. Although USCIS erred

in some of its conclusions as to Rijal’s showing on the threshold evidentiary

criteria, as in Kazarian, those errors were harmless. Rijal asserts that he satisfies

five of the ten criteria listed at 8 C.F.R. § 204.5(h)(3). They are: receipt of “lesser

nationally 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)),

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“contributions of major significance in the field” (§ 204.5(h)(3)(v)), “display of the

alien’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 that

have a distinguished reputation” (§ 204.5(h)(3)(viii)). USCIS concedes in this

appeal that Mr. Rijal submitted evidence in support of each of the five criteria set

forth above. However, even assuming, as the district court did, that by virtue of

submitting such evidence Rijal met his threshold evidentiary burden, Rijal failed to

demonstrate that the evidence he submitted demonstrates “sustained national or

international acclaim” as required by 8 U.S.C. § 1153(b)(1)(A)(i)). Kazarian at

1120. Therefore, as the District Court correctly concluded, USCIS’s decision to

deny Rijal’s visa petition as an “alien of extraordinary ability” was not arbitrary or

capricious.

1. Mr. Rijal Failed to Establish That He Had Sustained Nationalor International Acclaim Through Lesser Nationally orInternationally Recognized Prizes or Awards In His Field OfEndeavor.

Mr. Rijal asserted before the agency and the district court that his sustained

claim 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 or

internationally known, Rijal submitted a letter from Frode Pederson claiming that

the NYICFF Prize “is a prize nationally and internationally recognized within the

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television 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 record

without supporting documentary evidence is not sufficient for meeting the burden

of proof in these proceedings.” S.E.R. at 18. The AAO also found that Rijal

submitted no evidence that the NYICFF Prize was nationally or internationally

recognized in 1997, the inaugural year in which Rijal won the prize. Id. Thus, the

AAO reasoned that “the evidence does not establish that [Mr. Rijal’s] receipt of the

1997 Grand Prize at the NYICFF was receipt of [a] nationally or internationally

recognized award.” Id.

The AAO further determined that, although the evidence demonstrated that

the UNICEF Prize was an internationally recognized award of excellence in Rijal’s

field, that prize did not demonstrate sustained national or international acclaim as

required 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 to

establish that [Mr. Rijal] meets this criterion.” Id. The AAO’s conclusions were

based on the relevant factors and were reasonable. Safari Aviation, Inc. v. Garvey,

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300 F.3d 1144, 1150 (9th Cir. 2002). Accordingly, the conclusions were not

arbitrary, capricious, an abuse of discretion, or otherwise unlawful.

2. Mr. Rijal Failed to Establish That He Had Sustained Nationalor International Acclaim Through His Participation As AJudge Or The Work Of Others.

The AAO correctly concluded that Rijal cannot demonstrate the requisite

sustained national or international acclaim simply by being asked to judge Crity

Advertising Awards 2060 in 2003 and the Image Award 2004. As the AAO

reasoned, the “selection and participation process” for Rijal to serve as a judge in

the 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 Awards

indicated that he “was selected because of his ‘commendable contributions’ to his

field,” and concluded that an undefined “‘commendable contribution’ is not

automatically the equivalent of national or international acclaim.” Id. Moreover,

the AAO found no evidence about the selection process or criteria on which Rijal

was selected to judge the Image Awards. Thus, the AAO concluded that the

evidence did not establish that Rijal demonstrated sustained national or

international acclaim by virtue of his selection to judge those competitions. That

conclusion was based upon relevant factors, and was reasonable. Safari Aviation,

300 F.3d at 1150. Accordingly, the conclusion was not arbitrary, capricious, an

abuse of discretion, or otherwise unlawful.

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3. Mr. Rijal Failed to Establish That He Had Sustained Nationalor International Acclaim Through Original Contributions ToHis Field.

Mr. Rijal also asserts that his sustained acclaim in the television industry is

supported by contributions of major significance in his field. The evidence

initially submitted by Rijal in support of that assertion included: letters from

individuals addressing Rijal’s work in the field and his invitations to participate in

the 2002 Prix Jeuness International Film Festival and the 2002 North-South

Festival. The AAO evaluated that evidence, and correctly concluded that such

evidence did not demonstrate that Mr. Rijal had sustained national acclaim in his

field. E.R. at 172.

In his appeal to the AAO, Rijal’s argued for the first time – as he argues in

this appeal – that his sustained acclaim is demonstrated by “his critical role in

establishing the television industry in Nepal.” E.R. at 175-197; App. Br. 22. In

support of his appeal to the AAO, Rijal attached a letter from the managing

director of Kantipur Publications Pvt. Ltd., a company that operates newspapers

and television stations in Nepal. E.R. at 303-04. That letter discussed the role

played 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 that

fact is not fatal to the AAO’s ultimate conclusion that Rijal is not an alien of

extraordinary ability. Mere statements, without supporting documentary evidence

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is not sufficient for meeting the burden of proof in visa proceedings. Matter of

Soffici, 22 I & N Dec. at 165. Even if the statements in the letter were sufficient to

meet Rijal’s burden, the relevant statements set forth in those letters refer to Rijal’s

past role in founding the television industry in Nepal in 1985 and Young Asia

Television. Such information would not be sufficient to demonstrate “sustained

international acclaim” as required by 8 C.F.R. 250.5(h)(3) sufficient to deem him

an “alien of extraordinary ability.” When the letter is considered in the context of

all the evidence, Rijal has still failed to satisfy the statutory requirement that he

support his claim by “extensive documentation.” 8 U.S.C. § 1153(b)(1)(A)(i).

4. Mr. Rijal Failed to Establish That He Had Sustained Nationalor International Acclaim Through The Display Of His WorkIn Artistic Exhibitions or Showcases.

Rijal asserts that his sustained national and international acclaim is

demonstrated by the presentation of his movies at several film festivals. E.R. at

50; App. Br. 23-24. The AAO evaluated the evidence submitted by Rijal, and

reasoned that “the evidence does not indicate that [Mr. Rijal’s] work was the main

focus of the competitions or festivals” or that his work was “featured more

prominently than” the work of others in the competitions. Id. As a result, the

AAO concluded that Rijal has failed to meet his burden to establish that he meets

that the showing of his films demonstrates sustained national or international

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acclaim. 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 Nationalor International Acclaim Through Performance In A Leadingor Critical Role for Organizations or Establishments ThatHave a Distinguished Reputation.

Rijal claimed before the agency and the district court that his sustained

acclaim was demonstrated by “perform[ing] in a leading critical capacity for

multiple organizations and establishments with excellent, world renowned

reputations.” E.R. at 315. In reviewing the totality of the documentary evidence

submitted by Rijal, the AAO was unable to find evidence demonstrating sustained

national or international acclaim. The AAO’s were based on the relevant factors

and were reasonable. Safari Aviation, 300 F.3d at 1150. Therefore, that

conclusion were not arbitrary, capricious, an abuse of discretion, or otherwise

unlawful. Thus, it should not be disturbed.

CONCLUSION

For the foregoing reasons, the Court should affirm the January 12, 2010

decision of the district court finding that the Government did not abuse its

discretion in finding that Rijal failed to meet his burden of establishing that he is

entitled to an immigrant visa as an “alien of extraordinary ability.”

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August 10, 2011 Respectfully submitted,

TONY WESTAssistant Attorney GeneralCivil Division

SAMUEL GOSenior Litigation CounselDistrict Court SectionOffice of Immigration Litigation

/s/ Jeffrey M. Bauer JEFFREY M. BAUERTrial Attorney, District Court SectionOffice of Immigration LitigationCivil Division, Department of JusticeP.O. Box 868, Ben Franklin StationWashington, D.C. 20044(202) 532-4786

ATTORNEYS FOR DEFENDANTS-APPELLEES

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STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, I hereby certify that I am aware of no

pending case in this Court that is related to, or presents the same or related parties

as, the instant case.

August 10, 2011 /s/ Jeffrey M. Bauer JEFFREY M. BAUER

Trial Attorney, District Court SectionOffice of Immigration LitigationCivil DivisionU.S. Department of JusticeP.O. Box 868, Ben Franklin StationWashington, D.C. 20044Phone: (202) 532-4786Facsimile: (202) 616-8962

ATTORNEYS FOR DEFENDANTS-APPELLEES

32


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. BAUERTrial Attorney, District Court SectionOffice of Immigration LitigationCivil DivisionU.S. Department of Justice


CERTIFICATE OF SERVICE

I hereby certify that on August 10, 2010, I electronically filed the foregoing

Brief for Defendants-Appellees with the Clerk of the Court using the CM/ECF

system which will send notification of such filing to the following CM/ECF

participants:

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 the

foregoing document to the following, addressed as follows:

N/A

/s/ Jeffrey M. Bauer Jeffrey M. BauerTrial Attorney United States Department of JusticeCivil DivisionOffice of Immigration Litigation-DCSP.O. Box 868, Ben Franklin StationWashington, D.C. 20044Phone: (202) 532-4786Facsimile: (202) 616-8962Email: [email protected]


mailto:[email protected]

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

Education

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