Opinion
Case No.: CV 20-9470-CBM-(SKx)
2022-03-02
Assem MUSSAROVA et al., Plaintiffs, v. Merrick B. GARLAND, U.S. Attorney General et al., Defendants.
Sergei Shevchenko, Barshev PC, Woodland Hills, CA, for Plaintiffs. OIL-DCS Trial Attorney, Joshua Samuel Press, Office of Immigration Litigation, District Court Section, Vanessa Molina, US Department of Justice, Civil Division, Washington, DC, for Defendants William P. Barr, Chad F. Wolf, Kenneth T. Cuccinelli, Susan Dibbins.
Sergei Shevchenko, Barshev PC, Woodland Hills, CA, for Plaintiffs.
OIL-DCS Trial Attorney, Joshua Samuel Press, Office of Immigration Litigation, District Court Section, Vanessa Molina, US Department of Justice, Civil Division, Washington, DC, for Defendants William P. Barr, Chad F. Wolf, Kenneth T. Cuccinelli, Susan Dibbins.
ORDER RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
CONSUELO B. MARSHALL, UNITED STATES DISTRICT JUDGE
The matter before the Court is Plaintiff's ‘s Motion for Summary Judgment; and Defendants’ Motion for Summary Judgment. (Dkt. Nos. 20, 21.)
I. BACKGROUND
Plaintiff Assem Mussarova seeks review of the denial of her Form I-140 petition wherein Plaintiff sought classification as an "alien of extraordinary ability" in athletics pursuant to 8 U.S.C. § 1153(b)(1)(A). The U.S. Citizenship and Immigration Services’ ("USCIS's") denied her petition on December 26, 2018, the Administrative Appeals Office ("AAO") dismissed her appeal on January 7, 2020, and the AAO denied her motion to reopen/reconsider on September 24, 2020. Plaintiff requests that the Court 1) "[a]ccept jurisdiction" and review the USCIS's decision to deny her immigration visa petition; 2) enter a declaratory judgment declaring Defendants’ decision denying her Form I-140 petition was arbitrary, capricious, and not in accordance with the law; 3) enjoin Defendants from denying Plaintiff's Form I-485 applications and related benefits during the pendency of this lawsuit; 4) "[o]rder the defendants to perform public service in accordance of [sic] the pursuant to the APA"; 5) award attorneys’ fees and costs; and 6) "[g]rant other relief as the Court may deem just, equitable and proper." (Compl., Relief Requested.)
Based on her Form I-140 petition, Plaintiff also filed an I-485 application for Application for Adjustment of Status.
The certified administrative record (Dkt. No. 15) is hereinafter referred to as "CAR."
II. STATEMENT OF THE LAW
A. Administrative Procedures Act ("APA")
The petitioner may seek review of an agency decision pursuant to the APA. See 5 U.S.C. §§ 701 et seq. The APA limits the scope of judicial review to the administrative record. 5 U.S.C. § 706. Under the APA, a court may set aside an agency's final action if the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This is a "highly deferential" standard under which there is a presumption that the agency's action is valid "if a reasonable basis exists for its decision." Kern Cty. Farm Bureau v. Allen , 450 F.3d 1072, 1076 (9th Cir. 2006). The district court cannot "substitute [its] judgment for that of the agency." Protect Our Communities Found. v. LaCounte , 939 F.3d 1029, 1043 (9th Cir. 2019).
5 U.S.C. § 702 provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."
See also Camp v. Pitts , 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ; Lands Council v. Powell , 395 F.3d 1019, 1030 (9th Cir. 2005) (citation omitted); Portland Audubon Soc. v. Endangered Species Comm. , 984 F.2d 1534, 1548 (9th Cir. 1993).
See also Herrera v. U.S. Citizenship & Immigration Servs. , 571 F.3d 881, 885 (9th Cir. 2009) ; Monjaraz-Munoz v. I.N.S. , 327 F.3d 892, 895 (9th Cir. 2003), amended by , 339 F.3d 1012 (2003) ; Indep. Acceptance Co. v. Cal. , 204 F.3d 1247, 1251 (9th Cir. 2000).
A motion for summary judgment is the proper mechanism for a reviewing court to decide as a matter of law whether an agency's administrative decision is supported by the administrative record under the APA. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric. , 18 F.3d 1468, 1471-72 (9th Cir. 1994). In APA cases, "the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." City & Cty. of San Francisco v. United States , 130 F.3d 873, 877 (9th Cir. 1997) (quoting Occidental Eng'g Co. , 753 F.2d at 769 ). Therefore, the Rule 56 standard for summary judgment motions does not apply to cases involving judicial review under the APA because the Court is not required to resolve any facts in review of an administrative proceeding. See Nw. Motorcycle Assoc. , 18 F.3d at 1472 (for cases "involv[ing] review of a final agency determination under the [APA], ... resolution of this matter does not require fact finding on behalf of this court" because "the court's review is limited to the administrative record"). "[W]hile formal findings are not required, the record must be sufficient to support the agency action, show that the agency has considered the relevant factors, and enable the court to review the agency's decision." Beno v. Shalala , 30 F.3d 1057, 1074 (9th Cir. 1994).
Accord. Occidental Eng'g Co. v. INS , 753 F.2d 766, 770 (9th Cir. 1985) ; Gill v. Dep't of Justice , 246 F. Supp. 3d 1264, 1268 (N.D. Cal. 2017).
Accord. Occidental Eng'g Co. , 753 F.2d at 769 ; Gao v. U.S. Citizenship & Immigration Servs. , 2020 WL 3104916, at *8 (C.D. Cal. Apr. 3, 2020) ; Scholl v. Mnuchin , 494 F.Supp.3d 661, 671-72 (N.D. Cal. 2020) ; San Joaquin River Grp. Auth. v. Nat'l Marine Fisheries Serv. , 819 F. Supp. 2d 1077, 1083-84 (E.D. Cal. 2011).
B. Extraordinary Ability
8 U.S.C. § 1153 provides that a certain percentage of visas "shall be allotted" to immigrants with "extraordinary ability." The following must be met for an alien to be a qualified immigrant with extraordinary ability: 1) "the alien" must have "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," 2) the alien must "seek[ ] to enter the United States to continue work in the area of extraordinary ability;" and 3) "the alien's entry into the United States will substantially benefit prospectively the United States." 8 U.S.C. § 1153(a)(b)(1)(A). "Extraordinary ability" is not defined in the statute. See 8 U.S.C. § 1101(a) (definitions section). The federal regulations, however, define "extraordinary ability" as "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). "Aliens with extraordinary ability" are "priority workers" and have the first preference. Kazarian v. U.S. Citizenship & Immigr. Servs. , 596 F.3d 1115, 1120 (9th Cir. 2010) (citing 8 U.S.C. § 1153(b)(1) ).
"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)(2). "Such evidence shall include evidence of a one-time achievement (that is, a major, international recognized award)," or include evidence of at least three of the following ten criteria:
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(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 judged by recognized national or international experts in their disciplines or fields;
(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 sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
(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
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
8 C.F.R. § 204.5(h)(3). "If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility." 8 C.F.R. § 204.5(h)(4). While "[n]o offer of employment [is] required," and "[n]either an offer for employment in the United States nor a labor certification is required for this classification," "the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise" such as "letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States." 8 C.F.R. § 204.5(h)(5).
If a petitioner has submitted the requisite evidence satisfying at least three of the ten above criteria (commonly referred to as Step 1 or Phase 1 or the evidentiary phase), then USCIS determines whether the evidence 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," 8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise" (commonly referred to as Step 2, Phase 2, or the merits phase). 8 C.F.R. § 204.5(h)(3) ; see also Kazarian , 596 F.3d at 1119-20 ; Rijal v. U.S. Citizenship & Immigr. Servs. , 772 F. Supp. 2d 1339, 1346 (W.D. Wash. 2011), aff'd , 683 F.3d 1030 (9th Cir. 2012).
III. DISCUSSION
Plaintiff states she "does not have a one-time achievement." However, Plaintiff contends the USCIS's decision denying her I-140 petition was arbitrary, capricious, and not in accordance with law because she satisfied at least three of the ten criteria set forth in 8 C.F.R. § 204.5(h)(3) for classification as an alien with extraordinary ability. Defendants argue Plaintiff failed to establish at least three of the ten criteria set forth in 8 C.F.R. § 204.5(h)(3) were met for classification as an alien with extraordinary ability, and therefore USCIS's decision denying her I-140 petition was not arbitrary, capricious, or not in accordance with law.
A. Receipt of Lesser Nationally or Internationally Recognized Prizes or Awards for Excellence in the Field (Criterion i)
Under 8 C.F.R. § 204.5(h)(3)(i), the petitioner must submit "[d]ocumentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor." Plaintiff argues she met this criterion because she "presented evidence of her extraordinary ability as a coach along with evidence of her ability as a swimmer" (citing CAR 294-300).
Defendants contend Plaintiff provided photocopies of plastic cards purporting to be a credential for a "Master of Sport," photocopies of medals, a certificate of recognition and appreciation in the 2016 10th Asian Swimming Championships, and a photograph of a 2007 plaque to the best player of the competition to satisfy this criterion. (CAR 207-37.) Defendants argue USCIS then issued a request for evidence ("RFE") to Plaintiff, noting that her attempt to use the awards she earned as a swimmer could not be used to prove her extraordinary ability in coaching and requesting that she submit additional evidence describing how the prizes or awards related to excellence in the field of swimming/water polo coaching, documentary evidence about the significance of the prizes, who is considered for the prizes, how many prizes or awards are given each year, and information on previous winners. Defendants contend Plaintiff did not submit any additional evidence for this criterion, and USCIS found in denying her petition that Plaintiff failed to satisfy this criterion because the record only contained evidence that she earned awards as an athlete, but the "roles of an athlete and coach are markedly different." (CAR 100-87.)
During her administrative appeal, Plaintiff submitted additional evidence including background information and an order of the Kazakhstan Minister of Culture and Sport detailing the standards and requirements for assignment of sports titles (CAR 70-73). While Defendants contend the AAO credited such evidence (CAR 21-23), the AAO found although the sport titles Plaintiff received were issued by the Kazak government, Plaintiff failed to demonstrate the titles were for recognition for excellence by the field of water polo coaching, a participant would be able to obtain a Kazakhstan government ranking without receiving a nationally or internationally recognized prize, and the photographs of medals in the record did not show whom they were awarded to nor show the rankings they represented.
In her opposition, Plaintiff notes there is a letter in the record from the Swimming Federation of the Republic of Kazakhstan dated December 11, 2017, the letter states that Plaintiff was "offered a job of team coach/player for preparation of water polo team of Republic of Kazakhstan for 2018 Championship of Asia in August 2018" (CAR 300), and argues that statement in the letter regarding the job offer as team coach/player demonstrates she meets Criterion i. However, a job offer as a coach is not "[d]ocumentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of [water polo coaching]." 8 C.F.R. § 204.5(h)(3)(i). Moreover, the 2019 plaque which was awarded two years after the filing of Plaintiff's immigration petition cannot be credited as an award satisfying this criterion because a petitioner must establish eligibility for the requested benefit at the time of the filing of the request. See 8 U.S.C. § 1361 ; Matter of Brantigan , 11 I. & N. Dec. 493 (BIA 1966) ; 8 C.F.R. § 103.2(b)(1).
Accordingly, the record demonstrates the medals, certificate, plaque, and sports titles were awarded to Plaintiff as a water polo player, and not awarded for excellence in the field of water polo coaching. See Lee v. Ziglar , 237 F. Supp. 2d 914, 918 (N.D. Ill. 2002) (finding "arguably one of the most famous baseball players in Korean history" did not qualify as an alien with extraordinary ability as a professional baseball coach because his achievements and acclaim were limited to his role as a baseball player and not as a coach); id. at 918-19 (citing to four administrative cases denying a petition upon finding that excellence in athletics was insufficient to establish extraordinary ability as a coach); Kazarian , 596 F.3d at 1120 (quoting the Lee decision in noting that the "extraordinary ability" designation is "extremely restrictive.") (quoting Lee , 237 F. Supp. 2d at 918 ). Therefore, the Court finds USCIS's determination that Plaintiff did not satisfy Criterion i regarding receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of water polo coaching was not arbitrary, capricious, or contrary to law.
See also USCIS Policy Manual, Volume 6, Part F, Chapter 2, available at https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2 (last visited Sep. 2, 2021) ("[C]ompetitive athletics and coaching rely on different sets of skills and in general are not in the same area of expertise."). This interpretation is persuasive and nothing in the regulation's plain language compels an alternative interpretation. See Bassiri v. Xerox Corp. , 463 F.3d 927, 931 (9th Cir. 2006) ("[W]e defer to [an] agency's interpretation of its regulation unless an alternative reading is compelled by the regulation's plain language ...." (internal quotation marks omitted)); Rios v. United States Citizenship & Immigr. Servs. , 2021 WL 4860686, at *5 (C.D. Cal. Feb. 26, 2021) ("[I]nterpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron -style deference. Instead, [such] interpretations are entitled to respect under [the Supreme Court's] decision in Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but only to the extent that those interpretations have the power to persuade.").
B. Membership in Associations Requiring Outstanding Achievements of Their Members (Criterion ii)
Under 8 C.F.R. § 204.5(h)(3)(ii), the petitioner must submit "[d]ocumentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields." Plaintiff argues she satisfied this criterion through her membership in a National and/or Olympic team (citing CAR 54-65, 103, 158-78).
Defendants argue Plaintiff initially attempted to satisfy this criterion by providing a letter describing her membership in the FINA and Aysha Bibi water polo clubs (CAR 229-53), but USCIS advised her in its RFE that the record did not include evidence that FINA or Aysha Bibi required outstanding achievements from their members (CAR 95). This determination by USCIS was not arbitrary, capricious, or contrary to law. See, e.g., Guida v. Miller , 2021 WL 568850, at *9 (N.D. Cal. Feb. 16, 2021) (finding the agency's determination that plaintiff's evidence did not demonstrate membership in associations that requiring outstanding achievements of their members was not arbitrary or capricious where the agency noted the plaintiff was the national coach for the Brazilian Vaulting Team (a position awarded to the coach of the first-place team in Brazil), but the record lacked other information "to suggest [that the plaintiff's] employment as a coach was commensurate with membership in an association requiring outstanding achievements."); IK Sch. of Gymnastics v. Nielson , 2018 WL 5312190, at *5 (D.D.C. Oct. 26, 2018) ("As USCIS stated in its decision, the School submitted no evidence to show that Ukrainian National Rhythmic Gymnastics membership and a "Master of Sports" designation require outstanding achievements, as judged by national or international experts in their fields. In any event, it appears that she was only a reserve member of the National Rhythmic Gymnastics team. Without more detail about the requirements for membership, it was reasonable for USCIS to conclude that the School did not satisfy this criterion.").
Defendants contend that in response to the RFE, Plaintiff submitted a letter to establish that she was selected on the Olympic Women Water Polo Team of Kazakhstan and copies of the AAO decisions in Matter of EAC 06 092 52754 (AAO Aug. 27, 2008) and Matter of K-S-Y- , ID 14269 (AAO Mar. 9, 2016) (CAR 109, 110-37, 159-78), but "USCIS discounted the new letter seeking to meet this criterion as a member of the Kazakhstan Olympic swim team explaining that a petitioner could rely on affidavits only if she could demonstrate that primary evidence did not exist or could not be obtained by the petitioner" (CAR 109, 110-137, 159-178) (citing 8 C.F.R. § 103.2(b)(2)(i) ). Defendants contend that during her administrative appeal, Plaintiff nevertheless relied on affidavits to meet this criterion by submitting additional letters and information on the criteria for selection to the Olympic team and a letter discussing her role on the National Water Polo Team of Kazakhstan (CAR 70-73). 8 C.F.R. § 103.2(b)(2) provides that "[s]econdary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence." Therefore, USCIS's discounting of the letters as evidence to satisfy this criterion based on Plaintiff's failure to demonstrate primary evidence did not exist or could not be obtained was not arbitrary, capricious, or contrary to law.
Defendants also argue USCIS's determination that Plaintiff did not meet this criterion should not be disturbed because Plaintiff concedes her participation was as a swimmer and an Olympic athlete, but Plaintiff never participated in the Olympics as an Olympic water polo coach and never coached an Olympic team. This determination was not arbitrary, capricious, or contrary to law. See Lee , 237 F. Supp. 2d at 918 (finding "arguably one of the most famous baseball players in Korean history" did not qualify as an alien with extraordinary ability as a professional baseball coach because his achievements and acclaim were limited to his role as a baseball player and not as a coach); id. at 918-19 (citing to four administrative cases denying a petition upon finding that excellence in athletics was insufficient to establish extraordinary ability as a coach); Kazarian , 596 F.3d at 1120 (quoting Lee decision in noting that the "extraordinary ability" designation is "extremely restrictive") (quoting Lee , 237 F. Supp. 2d at 918 ).
See also USCIS Policy Manual, Volume 6, Part F, Chapter 2, available at https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2 (last visited Sep. 2, 2021) ("[C]ompetitive athletics and coaching rely on different sets of skills and in general are not in the same area of expertise.").
Accordingly, the Court finds USCIS’ determination that Plaintiff failed to satisfy Criterion ii regarding membership in associations in the field which require outstanding achievements of their members was not arbitrary, capricious, or contrary to law.
C. Published Material In Professional or Major Trade Publications or other Major Media (Criterion iii)
Under 8 C.F.R. § 204.5(h)(3)(iii), the petitioner must submit "[p]ublished 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 sought. Such evidence shall include the title, date, and author of the material, and any necessary translation." Plaintiff contends she submitted sufficient evidence to satisfy this criterion by submitting articles from major media relating to her work in the field for which classification was sought (citing CAR 246-49; 280-89).
Defendants argue Plaintiff submitted copies of internet articles from www.ztgzt.kz, www.kazpravda.kz, and www.visualrian.ru reporting the results of water polo team games that Plaintiff played in in Kazakhstan to meet this criterion (CAR 279-289), but USCIS advised Plaintiff that the articles were about the team and not about Plaintiff as required by the regulations, and there was no independent evidence in the record showing the internet websites that published the articles were considered a major trade publication or major media (CAR 279-89). Defendants argue without independent corroboration or an explanation of the standing or reputation of the proffered websites, it is not possible to determine whether they are the type of "major media" contemplated by the regulations. The articles included in CAR 246-249 are as follows:
Compare Strategati, LLC v. Sessions , 2019 WL 2330181, at *6 (S.D. Cal. May 31, 2019) (concluding USCIS's decision that the petitioner did not meet the evidentiary requirements for Criterion iii was "not arbitrary, capricious, or otherwise improper" where USCIS found "not all material found on internet sites such as the HuffPost blog ‘may be equivalent to material with stringent vetting and high standards for publication’ " and "listed issues inherent with internet publishing that make internet sources such as the HuffPost blog ‘less probative than documents published by a publishing house or major news organization’ "), with Zizi v. Cuccinelli , 2021 WL 2826713, at *6 (N.D. Cal. July 7, 2021) (finding the AAO acted arbitrarily, capriciously, and contrary to law when it found the plaintiff had failed to establish any of the websites represented professional or major trade publications or other major media based on the lack of "[i]ndependent evidence, such as website traffic figures from third parties, demonstrating the websites’ standing as major media," reasoning "[e]vidence of the type demanded by the AAO—such as independent website traffic figures—would shed little light on whether a publication is a ‘professional or major trade publication’ within the meaning of the regulation because "[e]ven if a professional journal is read by every member of that profession, the circulation would be small if the profession itself is small"). This Court, however, need not reach the issue of whether USCIS's decision that the internet publications did not meet the evidentiary requirements for Criterion iii was arbitrary, capricious, or contrary to law, since Plaintiff fails to demonstrate she satisfied at least two other criteria in 8 C.F.R. § 204.5(h)(3).
1. a Wikipedia entry regarding the Kazakhstan women's national water polo team which includes a single reference to Plaintiff as the "Captain" (CAR 246) and no evidence is provided demonstrating Wikipedia constitutes a "professional or major trade publications or other major media" under 8 C.F.R. § 204.5(h)(3)(iii) ;
2. an article dated "2017.07.01" and titled "Water polo: Kazakh ladies striving to become best Asian team" does not make any reference to Plaintiff and does not identify the source of the publication nor demonstrate the publication is "professional or major trade publications or other major media" under 8 C.F.R. § 204.5(h)(3)(iii) (CAR 247);
3. an "article" which is undated and discusses the "Kazakhstan's women's team," and states the "roster two years ago" includes various persons including Plaintiff who is listed as "team leader, but does not identify the source of the publication nor demonstrate the publication is "professional or major trade publications or other major media" under 8 C.F.R. § 204.5(h)(3)(iii) (CAR 248); and
4. an "article" which is untitled, undated, discusses the "Kazakh women's team" but makes no reference to Plaintiff, and does not identify the source of the publication nor demonstrate the publication is "professional or major trade publications or other major media" under 8 C.F.R. § 204.5(h)(3)(iii) (CAR 249).
These "articles" in CAR 246-249 do not satisfy 8 C.F.R. § 204.5(h)(3)(iii) ’s requirement that evidence of "[p]ublished 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 sought" for Criterion iii "shall include the title, date, and author of the material, and any necessary translation." Therefore, USCIS’ determination that these "articles" in CAR 246-249 did not satisfy Criterion iii was not arbitrary, capricious, or contrary to law. See 8 C.F.R. § 204.5(h)(3)(iii) ; Noroozi v. Napolitano , 905 F. Supp. 2d 535, 545 (S.D.N.Y. 2012) (plaintiff "did nothing to establish that the publications in which these articles appeared had the requisite level of circulation to qualify as either "a major trade publication or major media publication. Accordingly, CIS's judgment that Noroozi did not satisfy this criterion had a basis in evidence and was well within its discretion.") (citing 8 C.F.R. § 204.5(h)(3)(iii) ); IK Sch. of Gymnastics , 2018 WL 5312190, at *5 ("Without more information about the sources of the articles submitted, USCIS reasonably concluded that the School did not satisfy this criterion.").
As to the publication in www.visualrian.ru, contrary to Defendants’ contention, the article reports about Plaintiff (not her team only). (See CAR 288, 289 (the article includes a photograph and caption stating "Assem Musarova (Kazakhstan) and Roser Tarrango (Spain) in the match of the first preliminary round of women's water polo between the national teams of Kazakhstan and Spain at the XVI World Aquatics Championships in Kazan," and an athlete profile for Plaintiff). However, although the record includes information regarding the frequency of the publication ("daily, 24 hours a day"), the record does not include other information based upon which it could be determined whether the publication constitutes a "professional or major trade publications or other major media" under 8 C.F.R. § 204.5(h)(3)(iii). Therefore, USCIS's determination that this publication in www.visualrian.ru did not satisfy Criterion iii was supported by the record and was not arbitrary, capricious, or contrary to law. See Noroozi , 905 F. Supp. 2d at 545 (finding determination that the petitioner did not satisfy this criterion was within the agency's discretion where there was no evidence regarding the "level of circulation" of the publications).
As to the article in www.kazpravda.kz, the record demonstrates the publication is a nationwide daily newspaper, the circulation of the daily newspaper "exceeds 100 thousand copies," and the newspaper originated in 1920. (CAR 286). The article from www.kazpravda.kz reported on the first match of the sixth round for the Russian water polo championships for the women's teams, and mentioned that the team Aisha-Bibi lost 11-12 to the Khanty-Mansiysk "Ugra" team, and reported that Plaintiff scored one goal during the match. (CAR 284.) Therefore, contrary to Defendants’ contention, information was included regarding the circulation and frequency and history of the newspaper so that USCIS could make a determination as to whether it constituted a "professional or major trade publications or other major media" under 8 C.F.R. § 204.5(h)(3)(iii). Cf. Noroozi , 905 F. Supp. 2d at 545 (agency's determination that the petitioner did not satisfy Criterion iii "had a basis in evidence and was well within its discretion" where the petitioner "did nothing to establish that the publications in which these articles appeared had the requisite level of circulation " to qualify as either "a major trade publication or major media publication") (emphasis added). However, while the article referenced Plaintiff, it was reporting on the event in which Plaintiff participated and only mentioned Plaintiff once when identifying all the players who had scored goals during the game. Thus, USCIS's determination that this article did not satisfy Criterion iii was not arbitrary, capricious, or contrary law. See Kinuthia v. Rosenberg , 2018 WL 1243955, at *5 (D. Mass. Mar. 8, 2018) (finding Defendants determination that the petitioner did not satisfy Criterion iii was not arbitrary, capricious, an abuse of discretion, a clear error in judgment or otherwise not in accordance with the law, where the publication discussed Michigan Tech students and not the petitioner specifically, despite the fact that the publication contained a photograph of the petitioner with students and a caption naming the individuals photographed including the petitioner), aff'd sub nom. Kinuthia v. Velarde , 2019 WL 11671989 (1st Cir. July 3, 2019) ; Noroozi , 905 F. Supp. 2d at 545 (upholding USCIS's determination that the submitted articles did not satisfy the third criterion because "[m]any of the articles submitted are about the Iranian Table Tennis Team and briefly mention the beneficiary"); Victorov v. Barr , 2020 WL 3213788, at *8 (C.D. Cal. Apr. 9, 2020) (there was a rational basis for the AAO's determination that the plaintiff did not satisfy Criterion iii regarding published materials about the applicant in a major publication where the articles submitted by the plaintiff were "about events in which he completed" but were "not about [him]").
As to the www.ztgzt.kz publication, the record includes the following information regarding www.ztgzt.kz: It is "one of the oldest newspapers in Kazakhstan, published since 1919," has 65456 subscribers, has a circulation of 10853 copies, and is issued 3 times a week. (CAR 283.) Therefore, contrary to Defendants’ contention, information was included regarding the circulation, subscriptions, frequency, and history of the publication so that USCIS could make a determination as to whether it constituted a "professional or major trade publications or other major media" under 8 C.F.R. § 204.5(h)(3)(iii). Cf. Noroozi , 905 F. Supp. 2d at 545 (finding determination the petitioner did not satisfy Criterion iii was supported by the record and within the agency's discretion where there was no evidence regarding the "level of circulation" of the publications). Moreover, contrary to Defendants’ contention, the article did reference Plaintiff specifically and include her picture. (See CAR 282 (article includes a photograph of Plaintiff with the caption "Musarova attacking opponents’ goal").) However, published material that is not specifically about the petitioner or is reporting on an event in which the petitioner participated does not satisfy Criterion iii, despite the fact that the publication includes references to or photographs of the petitioner. See Kinuthia , 2018 WL 1243955, at *5, aff'd sub nom. Kinuthia v. Velarde , 2019 WL 11671989 (1st Cir. July 3, 2019) ; Noroozi , 905 F. Supp. 2d at 545 ; Victorov , 2020 WL 3213788, at *8.
Defendants also argue Plaintiff's attempt to meet this criterion based on a monument that was erected in 2019 recognizing her "rising status" as an athlete in Taraz City, Kazakhstan, cannot be used to establish her eligibility because it was erected almost two years after her I-140 petition was filed. 8 C.F.R. § 103.2 provides that "[a]n applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication." (Emphasis added.) Therefore, Plaintiff could not have relied on the monument which was erected after her I-140 petition was filed in 2018 as evidence to satisfy Criterion iii. See id. ; see also George v. United States , 694 F. App'x 600, 601 (9th Cir. 2017) ("a petitioner must establish eligibility for the I-140 at the time of filing") (citing 8 C.F.R. § 103.2(b)(1)").
Even if USCIS should have credited the internet articles that referenced Plaintiff when reporting on a competition/event or the water polo team of which Plaintiff was a member, Plaintiff failed to satisfy at least three of the ten criteria in 8 C.F.R. § 204.5(h)(3). (See supra & infra.) Therefore, any error by USCIS as to Criterion iii regarding published material in professional or major trade publications or other major media would not change the outcome of the denial of Plaintiff's I-140 petition. See 8 C.F.R. § 204.5(h)(3) (requiring evidence of at least three of the ten criteria); Visinscaia v. Beers , 4 F. Supp. 3d 126, 136 (D.D.C. 2013) ("It need not decide the question, however, as even if Visinscaia were to satisfy this sole criterion, she would still fall short of the three necessary to reach the second phase of the Kazarian analysis. In fact, this is true even if the Court were to hold that USCIS erred on two of the four contested criteria.").
D. Participation as a Judge of the Work of Others (Criterion iv)
8 C.F.R. § 204.5(h)(3)(iv), the petitioner must submit "[e]vidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought."
Plaintiff argues she satisfied Criterion iv because of the following:
1. A letter dated November 13, 2018 from The Chairman of the Water Polo Committee of Swimming Federation of the Republic Kazakhstan in official stating: "I confirm Ms. Mussarova and Mr. Sazykin, on behalf of Water Polo Federation regularly participated as judges to select future water polo players from the school all over Kazakhstan for Club Aisha Bibi" (CAR 180, 187);
2. A letter dated November 19, 2017 from Mr. Sazykin, "honorary coach of Republic Kazakhstan," who writes: "I ... verify that Mrs. Mussarova judged in selection of the team candidates and alternative candidates for the club Aisha Bibi in September 2016-2017" (CAR 294-95); and
3. A letter dated January 14, 2019 from the Chairman of the Water Polo Committee of Swimming Federation of the Republic Kazakhstan stating: "Ms. Mussarova was authorized by this Water Polo Federation to select future water polo players attending selected control games to choose remarkable and prospective athletes" (CAR 54).
Defendants argue Plaintiff's evidence failed to demonstrate she helped judge other coaches which was her field of claimed expertise, as opposed to simply demonstrating her participation in selecting water polo players and her role as a water polo team captain. (CAR 47, 88, 96, 138-47, 202-03.)
The letters evidence Plaintiff was acting as a "judge" in selecting water polo players. Defendants argue the judging of other water polo players in her role as team captain does not satisfy this criterion. Courts have rejected similar arguments by USCIS that Criterion iv cannot be satisfied where judging is a part of the individual's job. See Kazarian , 596 F.3d at 1121 (affirming AAO erred in concluding that petitioner was required to show he acted as a dissertation reviewer for a university other than the one with which he was affiliated); MRC Energy Co. v. U.S. Citizenship & Immigr. Servs. , 2021 WL 1209188, at *11 (N.D. Tex. Mar. 31, 2021) (Criterion iv "does not require that the petitioner show he judge the work of others outside of his or her job" nor "require that the petitioner was invited to judge the work of others" and thus finding USCIS's decision that plaintiff did not satisfy Criterion iv was arbitrary and capricious where the plaintiff submitted evidence that Ludick served as a co-examiner and chief examiner of the joint examination committee for several years examining prospective hunters and guides trying to obtain their Zimbabwe Professional Hunger and Guide License); Kinuthia , 2018 WL 1243955, at *5 (finding the plaintiff established a legal error based on Defendants’ imposition of a requirement that the plaintiff serve as judge of others outside of his job, reasoning that the regulation "imposes no requirement that a petition serve as judge of others outside of his or her job" and "Defendants "may not unilaterally impose a novel evidentiary requirement"), aff'd sub nom. Kinuthia v. Velarde , 2019 WL 11671989 (1st Cir. July 3, 2019).
However, evidence of judging other water polo players while Plaintiff was a water polo player (rather than evidence of judging other water polo coaches while she was acting as a water polo coach) cannot satisfy this criterion. See Lee v. Ziglar , 237 F. Supp. 2d at 918 (finding "arguably one of the most famous baseball players in Korean history" did not qualify as an alien with extraordinary ability as a professional baseball coach because his achievements and acclaim were limited to his role as a baseball player and not as a coach); see also Kazarian , 596 F.3d at 1120 (noting the "extraordinary ability" designation is "extremely restrictive") (quoting Lee , 237 F. Supp. 2d at 918 ). Furthermore, participating as a "judge" in selecting future water polo players for a club does not rise to the extraordinary ability level contemplated by the regulations for Criterion iv. See Yassar v. USCIS , 2006 WL 778623, at *8-*9 (S.D. Tex. Mar. 24, 2006) ("[A]ssisting a private job placement agency [to] rate candidates for job placement is not professional service of the prestigious character that is the focus of category four, such as being on a review panel for a peer-reviewed scientific journal or a member of an expert jury in a juried art show."). Therefore, the Court finds USCIS's determination that Plaintiff failed to satisfy Criterion iv regarding participation as a judge of work of others in the same or an allied field of specification for which classification is sought was not arbitrary, capricious, or contrary to law.
E. Performance in a Leading or Critical Role for Organizations or Establishments that Have a Distinguished Reputation (Criterion viii)
8 C.F.R. § 204.5(h)(3)(viii), the petitioner must submit "[e]vidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation." Plaintiff argues she satisfied this criterion by serving as the captain of the water polo team, but Defendants found her role as a team captain did not meet this criterion (citing CAR 16, 82, 102, 103).
Defendants contend that to satisfy this criterion, Plaintiff submitted printouts purporting to be from the Swimming Federal website (CAR 256-66) and argued she satisfied this criterion "by virtue of her role as a captain for an internationally recognized team" (CAR 202-03), but USCIS found the website printouts did not contain details or probative information addressing how Plaintiff's role was leading or critical (CAR 97). Defendants contend Plaintiff supplemented her initial evidence with three AAO unpublished cases: Matter of C-C-A-M, LLC, ID # 16205 (AAO Apr. 13, 2016); Matter of EAC06082518725 , (AAO Jun. 5, 2009); and Matter of SRC0415452829 (AAO Oct. 21, 2005), but Plaintiff merely stated that the cases were persuasive. (CAR 100-87.) Defendants also argue USCIS found Plaintiff failed to explain how her role was leading or critical within the team, or how the team has a distinguished reputation within water polo, and noted a letter submitted by Plaintiff from the director of Aisha Bibi (the team on which Plaintiff played) stated the team did not go beyond the qualifying rounds for the Olympics. (CAR 88-89, 100-87.)
While the record demonstrates Plaintiff was a team captain of the Kazakhstan women's water polo team, there was a basis in the record for USCIS to conclude the team did not have a distinguished reputation based on the team's failure to proceed beyond the qualifying round of the Olympics. See Victorov , 2020 WL 3213788, at *9 (finding "no reason to disturb the agency's finding" that the plaintiff did not satisfy Criterion viii where the agency found "[w]hile the Beneficiary's position as captain and player-coach [of a tennis team] ... may be in a critical or essential capacity for his team, the Petitioner has not established that the team is an organization with a distinguished reputation. The record contains no evidence that the team has achieved any measurable success in ... competition," noting that there was no evidence that the team in which the plaintiff served as team captain had a "distinguished reputation" and the team's rankings during the four most recent seasons at the time of the plaintiff's application did not support a finding of a distinguished reputation relative to other teams within the league).
See also IK Sch. of Gymnastics , 2018 WL 5312190, at *6 ("it is reasonable to conclude that documentation of Ms. Savelieva's success as a collegiate athlete at the Odessa National Economics University does not establish that she was an essential employee of an organization with a distinguished reputation."); Visinscaia , 4 F.Supp.3d at 135 (the fact that a "club may have a distinguished reputation in one country does not necessarily mean that its renown spreads much beyond the country's borders").
Therefore, the Court finds USCIS's determination that Plaintiff's evidence failed to satisfy Criterion viii regarding performance in a leading or critical role for organizations or establishments that have a distinguished reputation was not arbitrary, capricious, or contrary to law.
F. High Salary or Other Significantly High Remuneration for Services (Criterion ix)
8 C.F.R. § 204.5(h)(3)(ix), the petitioner must submit "[e]vidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field." Plaintiff contends she provided evidence of significantly high remuneration for her services:
Plaintiff also cites to briefs filed by her attorney but those briefs do not constitute evidence. (See CAR 103, 203.)
1. a letter dated January 18, 2019 signed by the Senior Accountant and Director of the KGKO Water Polo Club Aisha Bibi, which states "[t]here is no official statistics of salaries in Water Polo Sport sportsmen at all. Rather, Ministry of National Economy of the Republic of Kazakhstan publishes only general data on average monthly nominal wage ... Ms. Mussarova's salary is equal to the salary of the principal coach, which in its turn is about three times higher than the salary of ordinary coaches. In other words, out of six available coaches in Women Water Polo, Ms. Mussarova received the highest salary in her profession." (CAR 66-67);
2. a letter dated January 22, 2019 signed by the Deputy Senior Accountant of RGKP Direction of Sports Development, who wrote that in his professional capacity he has "access and knowledge of salaries of sports coaches employed by Directorate of Sports Development of Republic of Kazakhstan," "there are only six coaches in the field of Women Polo in Kazakhstan and all of the are in our payroll system," and "Ms. Mussarova's salary is equal to the salary of the principal coach, which in its turn is about three times higher than the salary of ordinary coaches," and "out of six available coaches in Women Water Polo, Ms. Mussarova received the highest salary in her profession." (CAR 68-69);
3. a letter dated November 13, 2018 from the Chairman of the Water Polo Committee of the Swimming Federation of the Republic Kazakhstan, and Director of Sports Club Aisha Bibi who writes: "I confirm that Ms. Mussarova was paid on average 300,000 tenge a month for being a coach which is about 3 times more than a coach received in Kazakhstan." (CAR 149);
4. a certificate of income from RGKP Direction of Sports Development issued to Plaintiff reflecting monthly income paid to Plaintiff from January 2017 through September 2017 (CAR 150-52);
5. a certificate of income from RGKP Water Polo Club Aisha Bibi issued to Plaintiff reflecting monthly income paid to Plaintiff from February 2017 through July 2017 (CAR 153-54); and
6. a document from the Ministry of National Economy of the Republic of Kazakhstan, Committee on Statistics regarding the average nominal wage of employees in Kazakhstan by region in the first quarter of 2018 (CAR 155-56).
Plaintiff also cites to CAR 292 as evidence she submitted demonstrating her high salary. According to the brief filed in administrative proceedings by Plaintiff's counsel, CAR 292 is purportedly a letter from the Kazakh bank (see CAR 203), but CAR 292 is illegible.
Defendants argue Plaintiff initially submitted an illegible copy of a letter from a bank to satisfy this criterion (citing CAR 292), but USCIS requested a legible copy of the bank's letter and other documentation such as foreign tax returns in its FRE (CAR 97-98). Defendants contend Plaintiff did not submit a legible copy of the bank letter and instead included wage statements and statistical wage data surveys in response to the FRE. USCIS gave less weight to the wage surveys because they showed average local salaries and did not permit USCIS to compare Plaintiff's salary to the salaries of top coaches in the water polo field. (CAR 89). The Court finds USCIS's determination to give less weight to the wage surveys because they did not compare salary information comparing Plaintiff's salary to other water polo coaches was not arbitrary, capricious, or contrary to law. See Skokos v. DHS , 420 Fed. Appx. 712, 713-14 (9th Cir. 2011) (finding the applicant failed to demonstrate he received a high salary in relation to others in the field by submitting salary information of "security guards" to compare with his position as a "security consultant"); Muni v. I.N.S. , 891 F. Supp. 440, 444-45 (N.D. Ill. 1995) (finding the appropriate comparison for evaluating a NHL defenseman's salary was to compare his salary to other NHL defenseman); Victorov , 2020 WL 3213788, at *9 (finding USCIS's decision that the plaintiff failed to satisfy Criterion ix "had a basis in the evidence" where the plaintiff did not submit evidence to allow a comparison of salaries of others in the same field (i.e., handball athletes)).
As discussed supra n.13, CAR 292 is illegible.
During the administrative appeal, Plaintiff submitted evidence of a 2018 letter from the Chairman of the Water Polo Committee of the Swimming Federation of the Republic of Kazakhstan stating Plaintiff received the highest salary as a coach in comparison to other coaches’ salaries in Kazakhstan (CAR 87, 149). Defendants argue notwithstanding the 2018 letter from the Chairman of the Water Polo Committee of the Swimming Federation of the Republic of Kazakhstan (CAR 149), Plaintiff failed to submit evidence permitting a comparison of Plaintiff's salary with the salary of other coaches with extraordinary ability. However, nothing in 8 C.F.R. § 204.5(h)(3)(ix) requires evidence that the salary received by Plaintiff be higher than other coaches with "extraordinary ability"—rather, the regulation requires submission of "[e]vidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field ." (Emphasis added.) USCIS cannot unilaterally impose new evidentiary requirements that are not required in the regulations. See Kazarian , 596 F.3d at 1121 ("[N]either USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5."); Rijal v. U.S. Citizenship & Immigr. Servs. , 772 F. Supp. 2d 1339, 1346–47 (W.D. Wash. 2011) ("The USCIS may not conclude that evidence does not satisfy an evidentiary criterion by looking beyond that criterion to the final merits determination" of "whether the evidence demonstrates extraordinary ability"), aff'd , 683 F.3d 1030 (9th Cir. 2012) ; Zizi , 2021 WL 2826713, at *5 (finding the AAO improperly conflated "step 1 (evidentiary) and step 2 (merits) inquiries," and concluding "[t]he USCIS may not conclude that the evidence does not satisfy and evidentiary criterion by looking beyond that criterion to the final merits determination").
The AAO did not reach the merits of this criterion because it found Plaintiff had not met the first criterion and therefore it would have been impossible for Plaintiff to meet three of the ten necessary criteria for a final merits determination (CAR 22-23).
Defendants also argue Plaintiff submitted supplementary evidence contained in letters with "little or no probative value on this point because they were conclusory assertions," and did not provide independent evidence that USCIS had requested such as foreign tax records or a legible copy of the bank letter However, Plaintiff submitted certificates of income demonstrating her monthly salary. (See CAR 150-54.)
Notwithstanding USCIS's errors regarding Criterion ix, Plaintiff failed to demonstrate she submitted evidence satisfying at least two other criteria set forth in 8 C.F.R. § 204.5(h)(3). Therefore, any error by USCIS regarding Criterion ix would not change the outcome of the denial of Plaintiff's I-140 petition. See 8 C.F.R. § 204.5(h)(3) (requiring evidence of at least three of the ten criteria); Visinscaia , 4 F. Supp. 3d at 136 ("[E]ven if Visinscaia were to satisfy this sole criterion, she would still fall short of the three necessary to reach the second phase of the Kazarian analysis. In fact, this is true even if the Court were to hold that USCIS erred on two of the four contested criteria.").
IV. CONCLUSION
Accordingly, the Court finds USCIS's denial of Plaintiff's I-140 petition for failing to demonstrate she met at least three of the ten criteria under 8 C.F.R. § 204.5(h)(3) to be classified as an "alien of extraordinary ability" was not arbitrary, capricious, or contrary to law. Therefore, the Court DENIES Plaintiff's Motion for Summary Judgment; and GRANTS Defendants’ Motion for Summary Judgment.