1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 FABIAN ERNESTO GUIDA, Case No. 20-cv-01471-LB
12 Plaintiff, ORDER GRANTING THE DEFENDANT’S MOTION FOR 13 v. SUMMARY JUDGMENT DENYING THE DEFENDANT’S MOTION FOR 14 LOREN K. MILLER, et al., SUMMARY JUDGMENT 15 Defendants. Re: ECF No. 31, 33 16 17 INTRODUCTION 18 The plaintiff, a citizen of Argentina and an equestrian vaulting coach, had an O-1A 19 nonimmigrant work visa for immigrants of extraordinary ability, enabling him to work in the United 20 States lawfully. Because he wants to remain here permanently, he applied for an EB-1 visa, also 21 known as an “extraordinary ability” visa.1 The U.S. Citizenship and Immigration Service (UCIS) 22 denied his application on the ground that the plaintiff established only two (and not the required 23 three) regulatory criteria. The plaintiff challenges that decision as arbitrary and capricious.2 The 24 parties both moved for summary judgment. The court grants the government’s motion and denies 25 26 27 1 Am. Compl. – ECF No. 28. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 the plaintiff’s motion because the plaintiff did not establish eligibility for a third criterion by a 2 preponderance of the evidence. The agency’s action was thus not arbitrary and capricious. 3 4 STATUTORY FRAMEWORK 5 The Immigration and Nationality Act (INA) has an employment-based immigration preference 6 — in the form of an EB-1 visa — for aliens of “extraordinary ability in the sciences, arts, education, 7 business, or athletics which has been demonstrated by sustained national or international acclaim 8 and whose achievements have been recognized in the field through extensive documentation.” 8 9 U.S.C. § 1153(b)(1)(A). The alien also must show that he “seeks to enter the United States to 10 continue work in the area of extraordinary ability” and that his “entry into the United States will 11 substantially benefit prospectively the United States.” Id. Unlike other employment-based 12 preferences, the EB-1 visa does not depend on an offer of employment in the United States, and it is 13 exempt from the requirement that employers must first look for qualified domestic workers. 8 14 C.F.R. 204.5(h)(5); Kazarian v. USCIS, 596 F.3d 1115, 1119–20 (9th Cir. 2010). 15 “Extraordinary ability” is defined as “a level of expertise indicating that the individual is one of 16 that small percentage who have risen to the very top of the field of endeavor.” 8 C.F.R. § 17 204.5(h)(2). An alien’s petition for an EB-1 visa “must be accompanied by evidence that the alien 18 has sustained national or international acclaim and that his or her achievements have been 19 recognized in the field of expertise.” Id. § 204.5(h)(3). “Such evidence shall include evidence of a 20 one-time achievement (that is, a major, international recognized award), or at least three of the 21 following: 22 (i) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; 23 (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 24 judged by recognized national or international experts in their disciplines or fields; 25 (iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is 26 sought. Such evidence shall include the title, date, and author of the material, and 27 any necessary translation; (iv) Evidence of the alien’s participation, either individually or on a panel, as a judge of 1 the work of others in the same or an allied field of specification for which 2 classification is sought; (v) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business- 3 related contributions of major significance in the field; 4 (vi) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media; 5 (vii) Evidence of the display of the alien’s work in the field at artistic exhibitions or 6 showcases; (viii) Evidence that the alien has performed in a leading or critical role for organizations or 7 establishments that have a distinguished reputation; 8 (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 9 (x) Evidence of commercial successes in the performing arts, as shown by box office 10 receipts or record, cassette, compact disk, or video sales. 11 Id. § 204.5(h)(3)(i)–(x). 12 If an alien meets his initial evidentiary burden (either that he received a “major, international 13 recognized award” or, relevantly here, satisfied three or more of the other criteria), then the USCIS 14 determines — in a “final merits determination” — whether the evidence demonstrates 15 extraordinary ability. Kazarian, 596 F.3d at 1119–21. The agency “determines whether the 16 evidence demonstrates both a ‘level of expertise indicating that the individual is one of that small 17 percentage who have risen to the very top of their field of endeavor,’ and ‘that the alien has 18 sustained national or international acclaim and that his or her achievements have been recognized 19 in the field of expertise.’” Id. at 1119 (cleaned up) (quoting 8 C.F.R. § 204.5(h)(2)–(3)). 20 21 STATEMENT 22 The plaintiff — a citizen of Argentina — has worked for over 20 years coaching equestrian 23 vaulting, which “is most often described as gymnastics and dance on horseback [and] can be 24 practiced both competitively or non-competitively.”3 The USCIS granted him an O-1A visa to 25 work in the United States as a vaulting coach.4 On July 30, 2018, the plaintiff applied for an EB-1 26
27 3 Administrative Record (AR) 297. 1 visa.5 The agency denied the application on May 3, 2019, but after the plaintiff filed this lawsuit, it 2 reopened the case and asked for more evidence before ultimately denying the plaintiff’s 3 application.6 The next sections summarize the evidence that the plaintiff submitted to the USCIS, 4 the agency decision, and the procedural history. 5 6 1. Evidence Submitted to the USCIS 7 The plaintiff submitted the following evidence in support of the relevant criteria under 8 8 C.F.R. § 204.5(h)(3). 9 To support the criterion at 8 C.F.R. § 204(h)(3)(vii), evidence of the display of the alien’s 10 work or showcases, he provided articles and photographs from the 2010 “Virada Esportiva” in Sao 11 Paolo, Brazil, a 24-hour uninterrupted sports event attended by over three million people.7 12 To support the criterion at 8 C.F.R. § 204.5(h)(3)(viii), evidence that the alien has performed 13 in a leading or critical role for organizations or establishments that have a distinguished reputation, 14 he submitted (1) a letter from the co-chair of the board of directors for the Woodside Vaulters, 15 discussing the winning reputation of the organizations and the plaintiff’s critical role in coaching 16 them to success,8 and (2) a 2018 letter from Yanina Alvarez, the Chair of Vaulting Committee of 17 the Argentine Equestrian Foundation, confirming that the Foundation selected him to be the 18 team’s official lunger at the 2018 World Equestrian Games and confirming that he was the 19 National Coach at the 1994 World Games, where the teamy won fifth place.9 20 To support the criterion at 8 C.F.R. § 204.5(h)(3)(iv), evidence of the alien’s participation, 21 either individually or on a panel, as a judge of the work of others in the same field of 22 specialization for which classification is sought, he submitted (1) a letter from Yanina Alvarez 23 confirming that the plaintiff was a vaulting judge for two major vaulting competitions (one in 24
25 5 AR 14, 297. 26 6 AR 14. 7 AR 224–44. 27 8 AR 374–75 (letter), 376–91 (awards). 1 September 1995 and the other in November 1995), and (2) confirmation from the Argentinian 2 Equestrian Federation that that the plaintiff passed a 130-hour national vaulting-judge course.10 3 To support the criterion at 8 C.F.R. § 204.5(h)(3)(ii), documentation of the alien’s membership 4 in associations requiring outstanding achievements, as judged by recognized national or 5 international experts, the plaintiff — contending that his selection to coach the Brazilian National 6 Equestrian Vaulting and the Argentinian National Equestrian Vaulting teams were the equivalent 7 of this criterion — submitted (1) a letter from Vera Ceschin, the vaulting director for the Brazilian 8 National Equestrian Federation, stating that the plaintiff was the national coach for the Brazilian 9 vaulting team from 2000 to 2004, that position is awarded to the coach of the first-place team in 10 Brazil (here, the plaintiff), and during his tenure, the plaintiff’s team placed ninth at the “FEI 11 World Equestrian Games” in Spain,11 and (2) a 2020 letter from Ms. Alvarez listing the criteria for 12 selection of the national coach by the Argentinian Equestrian Federation, including certified 13 professional training, international awards, an innovative work project in the medium and long 14 term, and demonstrated leadership ability.12 15 To support the criterion at 8 C.F.R. § 204.5(h)(3)(i), documentation of the alien’s receipt of 16 lesser nationally or internationally recognized prizes or awards for excellence, the plaintiff 17 submitted (1) a letter from Romeu Leite, the president of a premier equestrian facility in Brazil, 18 verifying that while the plaintiff was the head vaulting coach from 2004 to 2010, his team was the 19 Brazilian national and regional champion for five years in a row,13 (2) the 2018 letter from Ms. 20 Alvarez describing how — based on his career and experience — the Federation chose the 21 plaintiff to be the team’s official lunger for 2018 World Games and confirming that he was 22 national coach for the national team in 1994, where they placed fifth at the Games,14 and (3) the 23 24
25 10 AR 40–46. 26 11 AR 58. 12 AR 59–60. 27 13 AR 54–57. 1 letter from Ms. Ceschin about his tenure as Brazil’s national coach from 2000 to 2004 and placed 2 ninth at the World Games.15 3 To support the criterion at 8 C.F.R. § 204.5(h)(3)(iii), published material about the alien, the 4 plaintiff submitted (1) an excerpt from an article in an American Vaulting Association publication 5 titled AVA Summer Camp 2011, discussing the camp and featuring “the international coaching 6 phenoms Fabian and Flavia Guida,” and (2) an excerpt from the 2012 American Vaulting 7 Association regional newsletter discussing vaulting clinics led by the plaintiff and his wife.16 8 To support the criterion at 8 C.F.R. § 204.5(h)(3)(v), evidence of the alien’s original scientific 9 scholarly, artistic, athletic, or business-related contributions of major significance, the plaintiff 10 submitted a letter from Kai Vorberg, an international award-winning professional vaulter, that said 11 the following about the plaintiff’s coaching: 12 I do remember very clearly how [Plaintiff] was being coach and lunger of the Brazilian team at the FEI World Equestrian Games in Jerez de la Frontera/Spain in the 2002 season. 13 Their freestyle was remarkable innovative showing exercises in their routine which people in the world of vaulting have never seen before. Due to the fact that until that point Brazil 14 has never been a strong nation in equestrian vaulting, it was clear for all of us in the 15 vaulting community that there was a coach with extraordinary ability and talent and outstanding coaching skills making his way into the international top level sport and 16 supporting his team to make it to the finals for the first time ever in Brazilian vaulting history. . . . It is fair to say that the experience of having been working together with [Mr. 17 Guida] is still influencing my work as a coach and his advice means a lot to me even until today. In March 2018 I have just met [Mr. Guida] again at the annual Education 18 Symposium of the American Vaulting Association (AVA) in Las Vegas at the South Point 19 Hotel and Arena from 1st until 4th of march, where I could clearly see that his influence as a coach is already visible in his vaulters, the way they vault and the way they try to become 20 better athletes. Also especially with his skills as a lunger, Fabian is one of a few who reached the top of this field in the US Vaulting Community. Even by that short period of 21 time, he has made significant contributions to the development of the sport of US 22 Equestrian Vaulting.17 23 As further evidence that he is considered to be at the top of his field, the plaintiff submitted 24 letters from other award-winning vaulting coaches and vaulting athletes attesting to his expertise: 25 26 15 AR 58. 27 16 AR 413–14, 416–17. 1 (1) Isabelle Bibbler Parker, the current Vaulting Director of performance for the U.S. Equestrian 2 Federation, an equestrian medalist, an American Vaulting Association judge, and an American 3 Vaulting Association Hall of Fame coach;18 (2) Devon Maitozo, president and founder of Free 4 Artists Creative Equestrians, with two gold medals, dozens of national titles, and a long-time 5 vaulting coach;19 (3) Megan Benjamin Gulmarin, a vaulter, a multiple medal winner at the World 6 Games, and an American Vaulting Hall of Fame recipient;20 (4) Emmy Seely, head coach at the 7 Mt. Eden Vaulting Club, Board member of the American Vaulting Association, and former 8 national and individual vaulting champion;21 (5) Priscila Botton, former coach of the Brazilian 9 national team, former member of the International Equestrian Foundation, and a member of the 10 Foundation’s 2013 Vaulting Judges Supervisory Panel;22 and (6) Akiko Yamazaki, a former 11 competitive equestrian, an advisory board member of the U.S. Equestrian Team Foundation, and 12 parent to two Woodside Vaulters athletes coached by the plaintiff.23 13 14 2. Agency Decision 15 On September 23, 2020, following its reopening of the case after the petitioner filed this 16 lawsuit, the agency denied the plaintiff’s application. It held that at step one, the plaintiff met two 17 of the required three criteria under 8 C.F.R. § 204.5(h)(3): (1) evidence of the display of the 18 alien’s work in the field at artistic exhibitions or showcases, 8 C.F.R. § 204.5(h)(3)(vii); and (2) 19 evidence that the alien has performed in a leading or critical role for organizations or 20 establishments that have a distinguished reputation, id. § 204.5(h)(3)(viii).24 In reaching its 21 decision, it determined that the plaintiff failed to establish the other regulatory criteria: (1) receipt 22 23 18 AR 428. 24 19 AR 433–34. 25 20 AR 436–38. 26 21 AR 440–43. 22 AR 445–46. 27 23 AR 448–52. 1 of lesser nationally or internationally recognized prizes or awards for excellence in the field of 2 endeavor, id. § 204.5(h)(3)(i);25 (2) membership in associations in the field for which 3 classification is sought, id. § 204.5(h)(3)(ii);26 (3) published material about the alien in 4 professional or major trade publications or other major media, id. § 204.5(h)(3)(iii);27 (4) 5 participation, either individually or on a panel, as a judge of the work of others in the same or an 6 allied field of specialization for which classification is sought, id. § 204.5(h)(3)(iv);28 and (5) 7 original scientific, scholarly, artistic, athletic, or business-related contribution of major 8 significance in the field, id. § 204.5(h)(3)(v).29 9 First, as to the plaintiff’s receipt of lesser nationally or internationally recognized prizes or 10 awards, id. § 204.5(h)(3)(i), the agency listed the alleged prizes and awards (spanning more than 11 half a single-spaced page), said much of the documentation was not primary evidence of the 12 claimed awards (and instead was comprised of letters, documents of unknown origin, and 13 coverage from websites of unknown authority), and was not in English (and when it was, the 14 translations were not certified as required by USCIS regulations, 8 C.F.R. § 103.2(b)(3)). Also, the 15 documentation did not establish that the claimed awards were awards (e.g., whether placing fifth 16 or ninth in the World Games was an award). It said that qualifying to compete was not a prize or 17 award. For cases where the claimed award was where students and teams won competitions, the 18 record lacked evidence that the wins were “nationally or internationally recognized.” The agency 19 gave other examples of the deficiencies: the 2008 championship was shown only by a computer 20 printout, the 2009 championship was shown by a foreign blog (with no certified translation) and 21 no information about the award, and the record did not have evidence that the qualifying events 22 actually were nationally or internationally recognized prizes or awards. The agency notified the 23 plaintiff of the deficiencies in June 2020, advising him that he needed to provide a copy of the 24
25 25 AR 3–6. 26 26 AR 6–8. 27 AR 8–10 27 28 AR 11. 1 awards or prizes, a clear photograph of them, or a public announcement. It gave him instructions 2 on how to establish that the prices were nationally or internationally recognized (such as 3 submitting the criteria or other evidence). The plaintiff submitted some evidence (an article, the 4 letter from Mr. Leite, and the letter from Ms. Ceschin), but the agency concluded that the record 5 did not establish that an event open to international competition was a nationally or internationally 6 recognized prize or award for excellence in the field. After reviewing all of the evidence, the 7 agency concluded that the plaintiff did “not meet the plain language of the criterion.”30 8 Second, as to membership in associations, id. § 204.5(h)(3)(ii), the agency said that the 9 plaintiff’s assertion — being selected as coach of the Argentinian and Brazilian national teams 10 was comparable evidence that he met this criterion — was not sufficient. While “[t]he record does 11 indicate that the petitioner acted as coach for these two teams[,] . . . [it] lacks sufficient 12 documentation to suggest that his employment as a coach is comparable to membership in an 13 organization requiring outstanding achievement of their members as judged by recognized 14 national or international experts in the field.” The agency noted that “election to a national all-star 15 or Olympic team might serve as comparable evidence for evidence of membership in 8 C.F.R. § 16 204.5(h)(3)(ii) [under the applicable Adjudicator’s Field Manual, but the same section of the 17 manual provides that]. . . the petitioner should explain why it has not submitted evidence that it 18 would satisfy at least three of the criteria set forth in 8 C.F.R. § 204.5(h)(3) as well as why the 19 evidence it has submitted is comparable to that required under 8 C.F.R. § 204.5(h)(3).” In any 20 event, the agency said, the record did not establish comparable evidence of this criterion. It gave 21 him an opportunity to submit more evidence, and he submitted the Leite, Ceschin, and Alvarez 22 letters. But he did not explain “why the regulatory criteria are not applicable to his occupation . . . 23 or demonstrate[] how his evidence is comparable to the regulatory requirement.” The record also 24 lacked evidence to support his claim that he coached for teams that are the equivalent of Olympic 25 teams or that his employment as a coach was comparable to membership in an organization 26 requiring outstanding achievements. There was no corroborating evidence for the Alvarez letter 27 1 about the requirements for head coach (such as bylaws or a constitution). The record did not 2 establish any awards to the petitioner. After reviewing all of the evidence, the agency concluded 3 that the plaintiff did not “meet the plain language of the criterion.”31 4 Third, as to published material about the plaintiff, 8 C.F.R. § 204.5(h)(3)(iii), the agency listed 5 the plaintiff’s submissions and found they did not meet the plain language of the criterion on 6 grounds that included the following: (1) one article was about the plaintiff but there was no 7 evidence that it was published or was major media; (2) another article did not list the author (in 8 violation of the requirements of 8 C.F.R. § 204.5(h), which requires the author’s name), and 9 primarily was about someone that the plaintiff trained; (3) another article similarly did not list the 10 author and was about the AVA Summer Camp, not the plaintiff; (4) another article was about the 11 plaintiff and his wife, but was a short article in a regional newsletter, not a professional or trade 12 publication or other major media; (5) another article from the Vaulting website was about the 13 plaintiff, and the author was identified (albeit only by screen name), but there was no 14 documentation about the nature of the website and whether it was “commensurate with 15 professional or other major media;” (6) another article was published in 2019, after the petition 16 was filed, and in any event was not about the plaintiff; (7) the 2011 video interview by a Brazilian 17 journalist had no transcript, and the English translation of the Wikipedia page (not a reliable 18 source) was not certified in accordance with 8 C.F.R. § 103.2(b) and in any event shows only 19 participation in the video interview; also, there was no documentation of the interview itself, and 20 no evidence about broadcast in major media; and (8) another article also was from Wikipedia and 21 thus was not a reliable source. The agency advised the plaintiff of the issues and gave an 22 opportunity to provide more information. The plaintiff did not. Thus, the agency concluded, the 23 plaintiff did “not meet the plain language of the criterion.”32 24 Fourth, as to participation on a panel as a judge of the work of others, id. § 204.5(h)(3)(iv), the 25 agency noted that the plaintiff relied only on his resume, the Botton letter (which said only that he 26
27 31 AR 6–8 (cleaned up). 1 gave clinics in countries such as the U.S., Canada, Peru, and Argentina), and other documentation 2 about training as a vaulting judge in 1995 (without reference to the events judged). Thus, the 3 agency concluded, the plaintiff did “not meet the plain language of the criterion.”33 4 Fifth, as to evidence of the plaintiff’s original scientific, scholarly, artistic, athletic, or 5 business-related contribution of major significance in the field, id. § 204.5(h)(3)(v), the plaintiff 6 claimed that his work met that criterion, as substantiated by the Vorberg letter, the alleged awards 7 discussed above, and certificates for lectures in 2007 and 2013. The agency said that the record 8 suggested that the plaintiff made original contributions to the field, but there was no evidence that 9 the contributions were of “major significance.” “For instance, Mr. Vorberg references the 10 [plaintiff’s] work at the 2002 [World Games], stating that their freestyle was remarkably 11 innovative, showing exercises in their routine which people in the world have never seen before, 12 but does not explain how this innovation was of significance in the field.” Similarly, the agency 13 said, the plaintiff contended that his vaulters were “top athletes,” with awards showing original 14 contributions, comparable to an Olympic sport. But, the agency said, vaulting was not 15 commensurate with an Olympic sport, and it noted that the plaintiff’s teams never placed higher 16 than fifth place. It also said at the plaintiff’s “couple of lectures at universities” were not — on the 17 record — contributions of major significance in the field. It advised the plaintiff of the deficiencies 18 and how to cure them (through, for example, documents about contributions to the field), but the 19 plaintiff did not provide new evidence. Thus, the agency concluded, the plaintiff did “not meet the 20 plain language of the criterion.”34 21 The agency thus determined that because the plaintiff showed only two (and not three) criteria 22 by a preponderance of the evidence, it would not conduct its final merits determination. 23 24 25 26
27 33 AR 11. 1 3. Procedural History 2 The plaintiff filed a complaint and then a first amended complaint after USCIS denied his 3 petition on September 23, 2020.35 The parties each moved for summary judgment.36 The court 4 held a hearing on February 11, 2021. All parties consented to magistrate-judge jurisdiction.37 5 6 STANDARD OF REVIEW 7 Under the APA, “[a] person suffering legal wrong because of agency action, or adversely 8 affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to 9 judicial review thereof.” 5 U.S.C. § 702. The challenged agency action (if not made reviewable by 10 statute) must be a “final agency action for which there is no other adequate remedy in a court[.]” 5 11 U.S.C. § 704; see Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144, 1171 (9th Cir. 2017). 12 “The reviewing court shall . . . hold unlawful and set aside agency action, findings, and 13 conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in 14 accordance with law[.]” 5 U.S.C. § 706(2). “‘Review under the arbitrary and capricious standard is 15 deferential[.]’” Friends of the Santa Clara River v. U.S. Army Corps of Eng’rs, 887 F.3d 906, 920 16 (9th Cir. 2018) (quoting Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 17 (2007)). “[A court’s] proper role is simply to ensure that the agency made no clear error of 18 judgment that would render its action arbitrary and capricious, and [courts] require only a rational 19 connection between facts found and conclusions made by the defendant agencies.” Id. (cleaned up 20 and quotations omitted). 21 “Accordingly, [courts] will not vacate an agency’s decision unless the agency ‘has relied on 22 factors which Congress has not intended it to consider, entirely failed to consider an important 23 aspect of the problem, offered an explanation for its decision that runs counter to the evidence 24 before the agency, or is so implausible that it could not be ascribed to a difference in view or the 25 26 35 Compl. – ECF No. 1; Am. Compl. – ECF No. 28. 27 36 Mot. – ECF No. 31 at 16–24; Cross-Mot. – ECF No. 33 at 16–28. 1 product of agency expertise.’” Id. at 921 (cleaned up) (quoting Nat’l Ass’n of Home Builders, 551 2 U.S. at 658); accord Sierra Club v. Bosworth, 510 F.3d 1016, 1022 (9th Cir. 2007) (“[Courts] are 3 not empowered to substitute [their] judgment for that of the agency.”) (quoting Citizens to 4 Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (cleaned up)). 5 “Nevertheless, to withstand review[,] ‘the agency must articulate a rational connection between 6 the facts found and the conclusions reached.’” Sierra Club, 510 F.3d at 1023 (internal brackets 7 omitted) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156–57 (9th Cir. 2006), 8 abrogated on other grounds by Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7 (2009). “[Courts] 9 will defer to an agency’s decision only if it is ‘fully informed and well-considered,’ and [they] will 10 disapprove of an agency’s decision if it made ‘a clear error of judgment.’” Id. (cleaned up) (quoting 11 Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988); West v. Sec’y of the Dep’t of 12 Transp., 206 F.3d 920, 924 (9th Cir. 2000)). “Furthermore, when an agency has taken action without 13 observance of the procedure required by law, that action will be set aside.” Id. (citation omitted). 14 “When a party seeks review of agency action under the APA before a district court, the district 15 judge sits as an appellate tribunal.” Herguan Univ. v. Immigr. & Customs Enf’t, 258 F. Supp. 3d 16 1050, 1063 (N.D. Cal. 2017) (cleaned up) (quoting Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. 17 Cir. 2009)). “In APA cases the administrative record is ‘the whole record,’ which ‘consists of all 18 documents and materials directly or indirectly considered by agency decision-makers.’” Id. at 19 1063–64 (quoting Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989); Portland 20 Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993). 21 A motion for summary judgment may be used to seek judicial review of agency administrative 22 decisions. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471–72 (9th Cir. 1994). 23 24 ANALYSIS 25 The plaintiff challenges the USCIS’s determination about the following regulatory criteria: (1) 26 evidence of the alien’s participation, either individually or on a panel, as a judge of the work of 27 others in the same or an allied field of specialization for which classification is sought, 8 C.F.R. § 1 recognized prizes or awards for excellence in the field of endeavor, id. § 204.5(h)(3)(i); (3) 2 documentation of the alien’s membership in associations in the field for which classification is 3 sought, which require outstanding achievements of their members, id. § 204.5(h)(3)(ii); and (4) 4 evidence of original scientific, scholarly, artistic, athletic, or business-related contribution of major 5 significance in the field, id. § 204.5(h)(3)(v).38 His main argument is that the agency erred — and 6 was arbitrary and capricious — because it did not apply the preponderance-of-the-evidence 7 standard when it weighed the plaintiff’s evidence.39 He does not ask for a reweighing of the 8 evidence and instead asks for a determination that the agency did not apply the appropriate 9 standard.40 The court denies summary judgment. 10 The plaintiff had the burden of proof to establish by a preponderance of the evidence that he 11 met three of the relevant criteria.41 The government does not contest that the standard is 12 preponderance of the evidence, meaning, whether the plaintiff established his claims are “more 13 likely than not.”42 Nothing in the record suggests that the agency did not apply this standard. 14 Instead, the plaintiff’s argument effectively is that the agency erred in its discounting of his 15 evidence. The issue thus is whether the agency action was arbitrary and capricious when it rejected 16 his claim that he met the four relevant regulatory criteria: (1) judge of the work of others, 8 C.F.R. 17 § 204.5(h)(3)(iv); (2) receipt of lesser nationally or internationally recognized prizes or awards for 18 excellence, id. § 204.5(h)(3)(i); (3) membership in associations that require outstanding 19 achievements of their members, id. § 204.5(h)(3)(ii); and (4) original scientific, scholarly, artistic, 20 athletic, or business-related contributions of major significance in the field, id. § 204.5(h)(3)(v).43 21 22 23
24 38 Pl. Reply and Opp’n – ECF No. 34 at 2. 25 39 Id. at 6. 26 40 Id. 41 Gov’t Reply – ECF No. 35 at 2. 27 42 Id. at 2–3. 1 First, as to judge of the work of others, id. § 204.5(h)(3)(iv), the agency provided a detailed 2 explanation of the deficiencies in the plaintiff’s evidence.44 Particularly, it rejected the plaintiff’s 3 training certificate from the Argentinian Equestrian Federation and the Alvarez letter saying that the 4 plaintiff was a vaulting judge at two different events. The agency said that there were no details 5 about what event the plaintiff was judging, who he was judging, or the basis for Ms. Alvarez’s 6 knowledge of or the Federation’s authority regarding the plaintiff’s judging history.45 Cf. Buletini v. 7 INS, 860 F. Supp. 1222, 1231 (E.D. Mich. 1994) (agency’s denial was arbitrary and capricious 8 where the plaintiff provided specific evidence that he was the chairman of a scientific council that 9 “is responsible for directing the research and scientific work that is done at the Korce Hospital and 10 for judging the work of all doctors engaged in such work” there). That the plaintiff may disagree 11 with the agency’s interpretation of the evidence does not make its decision arbitrary or a legal error. 12 Cf. Victorov v. Barr, No. CV 19-6948-GW-JPRx, 2020 WL 3213788, at *7 (C.D. Cal. Apr. 9, 2020) 13 (“the Court cannot substitute its judgment for that of the agency in weighing the evidence . . . . [Its] 14 role is limited to determining if the agency considered the relevant factors and articulated a rational 15 connection between the facts found and the choice made”). 16 Second, as to receipt of lesser nationally or internationally recognized prizes or awards for 17 excellence, 8 § C.F.R. § 204.5(h)(3)(i), the agency’s denial also was not arbitrary and capricious. 18 Among other things, the agency said that (1) there was no “primary” evidence of the awards (and 19 only letters describing receipt of awards), (2) many documents either were not in English or had 20 uncertified translations, (3) evidence of the plaintiff’s team’s placing fifth or ninth in a 21 competition or qualifying to compete in another event was not evidence of “awards,” and (4) while 22 there was evidence of awards, there was no evidence that the awards were nationally or 23 internationally recognized.46 24 25 26 44 See Statement. 27 45 AR 11. 1 The plaintiff contends that the agency did not consider the Leite letter (saying that he coached 2 the team to five national and regional champions) or an article showing the international wins by 3 the plaintiff’s students.47 To the contrary, the agency rejected the letter because the pictures of the 4 actual awards attached to the letter were illegible or had no English translations.48 The article 5 describing the students’ wins was not accompanied by the certified English translation required by 6 the regulations. 8 C.F.R. § 103.2(b)(3) (“Any document containing foreign language submitted to 7 USCIS shall be accompanied by a full English language translation which the translator has 8 certified as complete and accurate, and by the translator’s certification that he or she is competent 9 to translate from the foreign language into English”). 10 The plaintiff also contends that the agency did not provide “a reason to discount” the 2007 11 Gold Medal win at the CVI Latin American Vaulting Competition.49 To the contrary, the agency 12 observed that the CVI wins are “qualifying events to allow for participation in a larger competition 13 later.” But it concluded that it was unclear that those wins were “in and of themselves, nationally 14 or internationally recognized prizes or awards.”50 When the agency invited the plaintiff to cure the 15 deficiency, the plaintiff noted only that the “I” in “CVI” stands for “international.” The agency 16 determined that an event that is open to international participants does not establish its 17 international or national significance or recognition.51 18 Third, as to membership in associations that require outstanding achievements of their 19 members, 8 C.F.R. § 204.5(h)(3)(ii), the agency rejected the plaintiff’s evidence. The plaintiff’s 20 main argument is that the agency erred when it required him to first show that none of the 21 regulatory criteria applied to his field. See id. § 204.5(h)(4) (“if the above standards do not readily 22 apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish 23
24 47 Mot. – ECF No. 31 at 19. 25 48 AR 6. 49 Pl. Reply and Opp’n – ECF No. 34 at 12. 26 50 AR 4, 114 (noting that CVI competitions are “vaulting competitions at which vaulters can earn 27 qualifying points for the next world championships. They are also a way for advanced vaulters to experience the honor of representing their country at an international level”). 1 the beneficiary’s eligibility”). Instead, he contends that because the analogous O-1 visa — a 2 temporary nonimmigrant visa for a person of “extraordinary ability” — allows for comparable 3 evidence without showing that “all or a majority of the criteria” do not readily apply, the same 4 analysis should apply here.52 The plaintiff cites no authority holding that the agency must assess 5 EB-1 and O-1 visas in the same way. Moreover, as the Ninth Circuit has recognized, the EB-1 visa 6 is unique in that its recipients are “priority workers,” and the applicable regulations “regarding this 7 preference classification are extremely restrictive.” Kazarian, 596 F.3d at 1120 (cleaned up). Also, 8 contrary to the plaintiff’s contention, the agency explained its rejection of the Ceschin letter. It 9 noted that the plaintiff was the national coach for the Brazilian Vaulting Team (a position awarded 10 to the coach of the first-place team in Brazil), but the record lacked other information “to suggest 11 [that the plaintiff’s] employment as a coach was commensurate with membership in an association 12 requiring outstanding achievements.”53 The court cannot weigh the evidence in place of the 13 agency’s assessment. Cf. Victorov, 2020 WL 3213788 at *7 (agency appropriately denied EB-1 14 application where it identified deficiencies in the comparable evidence). 15 Fourth, as to original scientific, scholarly, artistic, athletic, or business-related contributions of 16 major significance in the field, 8 C.F.R. § 204.5(h)(3)(v), the agency’s decision also was not 17 arbitrary and capricious. The plaintiff argues that (1) the agency prematurely conducted a final 18 merits determination by requiring him to show that his original contributions were “of major 19 significance,” and (2) the agency failed to consider the letters of recommendations he submitted.54 20 These contentions are not supported by the record. First, it is appropriate for the agency to assess 21 whether the evidence shows the plaintiff’s major significant contribution. Cf. Visinscaia v. Beers, 4 22 F. Supp. 3d 126, 134–35 (D.D.C. 2013) (at step one, the agency did not act arbitrarily when it 23 concluded that “none of the[] letters provided specific information relating to the impact of 24
25 52 Mot. – ECF No. 31 at 20–21 (citing USCIS, Policy Manual, vol. 6, pt. M ch. 4 (“A petitioner is not required to show that all or a majority of the criteria does not readily apply to the beneficiary’s 26 occupation before USCIS will accept comparable evidence”)); Pl. Reply and Opp’n – ECF No. 34 at 13–14. 27 53 AR 7–8. ] [applicant’s] dance technique on the field as a whole”). Second, that the agency did not list the 2 || letters of recommendation does not mean that its rejection of them is legal error. Cf Najmabadi v. 3 || Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“[T]he [agency] does not have to write an exegesis on 4 || every contention. What is required is merely that it consider the issues raised, and announce its 5 decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought an 6 || not merely reacted.”) (cleaned up). After the plaintiff submitted his application and supporting 7 || letters, the agency told him that the letters “must provide as much detail as possible about [his] 8 contributions and must explain in detail how the contributions are original (not merely replicating 9 || the work of others) and of major significance.”* It also noted that statements about original 10 || contributions that are not supported by “independent, corroborating evidence are insufficient.”°° 11 || The plaintiff did not address the agency’s concerns.*’ In any event, the agency may reject a 12 supporting letters that lack “specific evidence” about how the plaintiffs contribution was a major
13 || contribution. Cf Visinscaia, 4 F. Supp. 3d at 134-35.
14 In sum, the agency’s denial of the plaintiff's EB-1 visa was not arbitrary and capricious.
A 16 CONCLUSION
17 The court denies the plaintiffs motion and grants the government’s cross-motion. This Z 18 disposes of ECF No. 31 and 33. 19 IT IS SO ORDERED. LAE 20 Dated: February 16, 2020 LAUREL BEELER 21 United States Magistrate Judge 22 23 24 25
AR 84, 104. 27 || 6 AR 104. 28 |) 12.