Arbor Home, LLC v. Alejandro Mayorkas

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2023
• Docket: 22-16081
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARBOR HOME, LLC; FARSHAD No. 22-16081 TAHERI, D.C. No. 5:21-cv-03737-BLF Plaintiffs-Appellants,

v. MEMORANDUM * 0F

ALEJANDRO N. MAYORKAS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Argued and Submitted July 13, 2023 San Francisco, California

Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges.

Arbor Home, LLC and Farshad Taheri appeal from the district court’s order

granting summary judgment in favor of the government in this O-1, “extraordinary

ability,” visa proceeding. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

1. The district court correctly determined that the United States

Citizenship and Immigration Services (USCIS) did not err in using a two-step test

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. to assess whether Arbor Home’s O-1 visa application for Taheri met the statutory

and regulatory requirements for Taheri to merit an O-1 classification. Contrary to

Arbor Home’s argument, this test is not a new, unlawful rule, but is well-

established in the applicable visa regulations, legislative rules, and case law. See,

e.g., Matter of Chawathe, 25 I. & N. Dec. 369, 376 (AAO 2010); 8 C.F.R.

§ 214.2(o)(3)(iii)(B), (o)(6)(i); Temporary Alien Workers Seeking H-1B, O, and P

Classifications Under the Immigration and Nationality Act, 59 Fed. Reg. 41,818,

41,818–20 (Aug. 15, 1994).

2. The district court correctly determined that USCIS’ denial of the visa

application was not arbitrary and capricious, an abuse of discretion, or otherwise

unlawful. See 5 U.S.C. § 706(2)(A). Once Arbor Home satisfied the initial

evidentiary step, it had to persuade the agency that Taheri has “extraordinary

ability . . . which has been demonstrated by sustained national or international

acclaim” and that his “achievements have been recognized in the field.” See 8

U.S.C. § 1101(a)(15)(O)(i). Pursuant to the totality of the evidence standard, the

agency evaluated all of the documentation submitted and its resulting decision was

not arbitrary and capricious, an abuse of discretion, or otherwise unlawful.

AFFIRMED.