Opinion
No. 05-35279.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed February 12, 2007.
Russell W. Pritchett, Esq., Bellingham, WA, for Plaintiff-Appellant.
Kristin Johnson, Esq., USSE-Office of the U.S. Attorney, Seattle, WA, for Defendants-Appellees.
Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, Chief District Judge, Presiding. D.C. No. CV-04-00212-JCC.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The agency did not abuse its discretion in denying the visa petition under the first three criteria set forth in 8 C.F.R. § 214.2(h)(4)(iii)(A). The agency provided legitimate reasons, and those reasons are supported by substantial evidence. But, the agency provided no explanation as to why the evidence was insufficient to qualify for an H-1B visa under the fourth criterion. Nor did the agency indicate what additional evidence would satisfy this criterion. The agency thus abused its discretion by failing to articulate specific and legitimate reasons for denying relief. See Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156-57 (9th Cir. 2006) ("The agency . . . must articulate a rational connection between the facts found and the conclusions reached."); see also Fred 26 Importers, Inc. v. U.S. Dep't of Homeland Sec., 445 F.Supp.2d 1174, 1180-81 (C.D.Cal. 2006) (remanding on the fourth criterion).
The district court shall remand the case to the agency, so that it can adequately articulate its reasons for denying the petition and, if appropriate, serve plaintiff with a request for evidence that details the additional evidence needed to satisfy the fourth criterion. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
REVERSED and REMANDED.