Integrity Gymnastics & Pure Power Cheerleading, LLC v. United States Citizenship & Immigration ServicesIntegrity Gymnastics & Pure Power Cheerleading, LLC v. United States Citizenship & Immigration Services
OPINION & ORDER
This matter is before the Court on Defendant United States Citizenship and Immigration Services’ Motion for Summary Judgment, (Doc. 37), and Plaintiff Integrity Gymnastics & Pure Power Cheerleading, • LLC’s ■ Cross-Motion for Summary Judgment, (Doc. 38). Plaintiff Integrity Gymnastics & Pure Power Cheerleading, LLC (“Integrity Gymnastics” or “Plaintiff’) brings this action against United States Citizenship and Immigration Services (“USCIS”), challenging the agency’s denial of an 1-140 immigrant visa petition that Plaintiff filed on behalf of Natalia Vasilievna Laschonava.
I. BACKGROUND
A. Factual Background
Plaintiff, Integrity Gymnastics, is a gymnastics and cheerleading training facility
In 1988, Laschonava was a gymnast on the Soviet Union national team, for which she received an Olympic gold medal in women’s gymnastics. (Id. at 1719-27). Laschonava has not competed as a gymnast since 1991. (Id. at 1139). In 1999, Laschonava entered the United States in H-1B non-immigrant (temporary) status to work as a gymnastics coach for Southern Tier Gymnastics in Endwell, New York. (Id. at 1141, 1907, 1913), In 2004, Laschonava extended her H-1B status and began working as a gymnastics coach, for Camden Gymnastics Inc. in Brunswick, Georgia. (Id. at 1910-11). In 2006, Laschonava again extended her H-1B status-and began working for Plaintiff Integrity Gymnastics as the “Optional Girls Team” gymnastics coach. (Id. at 1668-69,1909).
B. Plaintiffs 1-140 Petition
On June 12, 2007, seeking to permanently employ Laschonava as a gymnastics coach, Plaintiff filed a Form 1-140 Immigrant Petition for Alien Worker (“1-140 petition”) on her behalf. The 1-140 petition requested a visa allowing Laschonava permanent residence in the United States as an “alien of extraordinary ability” pursuant to § 203(b)(1)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1153(b)(1)(A). (Id. at 586-89). Plaintiff maintains that it filed its petition based on Laschonava’s extraordinary ability “in gymnastics.” Defendant, on the other hand, contends that Plaintiff sought Laschonava’s certification as an alien of extraordinary ability based on her extraordinary ability “as a gymnastics coach.” The letter attached to Plaintiffs position states that “[Integrity Gymanstics] wish[es] to sponsor Ms. Laschonava (sic) for permanent .residence in the position of Optional Girls Team Coach,” and goes on to discuss the reasons it believes Laschonava is “well qualified to fill this position.” (Id. at 1670-71).
In support of their 1-140 petition, Plaintiff submitted: (1) evidence of Laschonava’s 1988 team Olympic gold medal; (2) media articles about Laschonava’s awards and achievements as a gymnast; (3) Lasehonava’s resume; (4) evidence of Laschonava’s gymnastics coaching experience in Belarus; (5) media articles about Laschonava as a gymnastics .coach; (6) evidence of the accomplishments of some of the gymnasts coached’by Laschonava; and, (7) letters in súpport of her 1-140 petition from various people in the field of gymnastics. (Id. at 1718-1905).
On October 1, 2008, USCIS issued to Integrity Gymnastics a request for evidence (“RFE”) on the 1-140 petition. (Id. at 1558-59), The RFE first noted that the 1-140 Petition indicated that a visa was sought for Laschonava “to come to the United States to function as a coach of gymnastics.” It • then' requested that the company provide additional evidence of Laschohava’s eligibility for classification as an alien of extraordinary ability, specifically: that she “has sustained national or international acclaim as a coach of gymnasts.” (Id. at 1559). On November 11, 2008, in response to the RFE, Plaintiff submitted additional evidence to USCIS Laschonava’s behalf. (Id. at 1560-1655). On January 20, 2009, after a timely response to the request for additional evidence, the Director of the Nebraska Service Center
On May 19, 2010, Integrity Gymnastics filed the present action in this Court, seeking review of the AAO’s decision under the Administrative Procedure Act (“APA”). (See Convpl., Doc. 1). On June 23, 2010, however, the AAO re-opened its initial administrative decision denying the 1-140 petition, pursuant to 8 C.F.R. § 103.5(a)(5(ii). (Doc. 24 at PagelD 1108). On August 21, 2010, Integrity Gymnastics submitted briefing and additional evidence of Laschonava’s claimed eligibility for classification as an alien of extraordinary ability to the AAO. (Id. at 1114-1324). On January 26, 2011, after conducting a de novo review of all of the evidence before it, the AAO affirmed its initial decision and upheld denial, for thé second time, of Plaintiffs I-140 petition. (Id. at 1077-1104). On February 28, 2011, Plaintiff filed an Amended Complaint before this Court seeking APA review of the AAO’s latest 1-140 denial decision. (See PI. ’s Am. Compl., Doc. 19). Plaintiff asserts that the AAO’s January 26, 2011 decision constitutes the agency’s final decision and, accordingly, is the decision subject to judicial review. (Id.).
C. Present Procedural Posture
Both parties move the Court for summary judgment in their favor. In Defendant’s motion, it asks this Court to affirm the agency’s denial of Plaintiffs 1-140 petition on behalf of Laschonava. (Doc. 37). Plaintiffs, on the other hand, request summary judgment reversing the agency’s decision. (Doc. 38). This matter is briefed and ripe for review.
II. STANDARD OF REVIEW
A. Summary Judgment
Federal Rule of Civil Procedure 56 provides, in relevant part,- that summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together-with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party 'is entitled to judgment as a matter of law.” The nonmoving party must then present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc.,
B. Review under the Administrative Procedure Act
Under the Administrative Procedure Act (“APA”), when a district court is reviewing final agency action, the usual rules governing summary judgment do not apply. See City of Cleveland v. Ohio,
Review under the arbitrary and capricious standard is narrow; the reviewing court may not substitute its judgment for that of the agency even if the court might otherwise disagree with the agency’s decision. Marsh v. Oregon Natural Resources Council,
the agency has relied on factors which . Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Assoc. v. State Farm Mutual Auto. Ins. Co.,
The Court’s task is not to substitute its judgment for that of the agency. Natural Res. Def. Council v. United States,
An agency’s factual findings are reviewed under the ‘substantial evidence’ standard. See Steeltech, Ltd. v. United States E.P.A.
In sum, in order to survive summary judgment under the APA, the party seeking judicial review must point to facts or factual failings in the administrative record that indicate that the agency’s decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. If the plaintiffs cannot do so, then the agency’s decision stands. See Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv.,
III. APPLICABLE STATUTE & REGULATIONS
Plaintiff challenges Defendant’s denial of an 1-140 immigrant visa petition filed under § 203(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1153(b), filed by Plaintiff on behalf of Natalia Vasilievna Laschonava, seeking Laschonava’s classification as an alien of extraordinary ability. Section 203(b) governs preference visas for aliens of “extraordinary ability.” It states, in pertinent part:
(b) Preference allocation for employment-based immigrants
(1) Priority workers
Visas shall first be made available.. .to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):
(A) Aliens with extraordinary ability
An alien is described in this subparagraph if—
(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
(ii) the alien-seeks to enter the United States to continue work in the area of extraordinary ability, and
(iii) the alien’s entry into the United States will substantially benefit prospectively the United States.
8 U.S.C.A. § 1153. The statute itself does not define “extraordinary ability”; regulations promulgated by USCIS, however, define the term 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).
- An 1-140 petition for an alien of extraordinary ability under § 203(b) “must be accompanied by evidence that the alien has sustained national or international acclaim and that his ■ or her achievements have been recognized in- the field of expertise.” 8 C.F.R. § 204.5(h)(3). The alien can meet this requirement by providing “evidence of a one-time achievement,” defined as “a major, international recognized award.” Id. Alternatively, the alien can meet this requirement by providing qualifying evidence in at least three of the, following ten evidentiary categories:
(i) Doeumentation- 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 interna- ' tiorial 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 per- ■ formed in a leading or critical role for organizations or establish- . ments 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).
Moreover, a threshold requirement for classification as an alien of extraordinary ability is that the alien worker must demonstrate will continué working in the area of her extraordinary ability in the United States. 8 U.S.C. 1153(b)(l)(A)(II); 8 C.F.R. 204.5(h)(5).
IV. ANALYSIS
Defendant argues it is entitled to summary judgment because USCIS’s decision to deny Plaintiffs 1-140 petition properly interpreted the relevant statute “consistent with the governing regulations and Congress’s intent to establish the [alien of extraordinary ability] immigrant visa category as highly restrictive.” Thus, Defendant argues the Court should uphold the agency’s determination.
Plaintiff, on the other hand, argues that it presented sufficient evidence to demonstrate, that Laschonava. “meets and exceeds” the statutoiy requirements for receipt of an extraordinary ability visa and that the USCIS erred when it denied Plaintiffs petition by employing an “analysis of. the law that was arbitrary and capricious.” Accordingly, Plaintiff insists that it is entitled to. summary judgment reversing the agency’s final decision and granting the 1-140 visa to it on behalf of Laschonava.
A. AAO’s January 26, 2011 decision
In its January 26, 2011 decision, the AAO, for the second time, upheld the director’s decision that the petitioner had not established Laschonava’s 'requisite extraordinary ability, and failed to submit extensive documentation of her sustained national or international acclaim as a coach. (Doc. 24-1 at 2). AAO began its decision by noting that “Congress' set a
AAO first discussed the requirement under § 203(b)(l)(A)(ii) and 8 C.F.R. § 204.5(h)(5) that an alien seeking an ex-, traordinary ability visa .must continue to work in her area of expertise in the United States. (Id. at 3). Because the record reflected that Laschonava had worked as a gymnastics coach since her arrival in the United States in 1999, and because Integrity Gymnastics sought the employment visa on her behalf in order to employ her “in the position of Optional Girls Team Coach,” AAO determined that Laschonava intended to work in the area of gymnastics coaching. Correspondingly, the area of gymnastics coaching was the “area” in which her expertise and “extraordinary ability” needed to be demonstrated.
The AAO recognized that “a competitive gymnast and a coach may share knowledge of the sport,” but also found that “the two rely on very different sets of basic skills,” and thus concluded that “competitive athletics and coaching are not the same area of expertise.” (Id. (citing Lee v. I.N.S.,
In its analysis, AAO discussed first the evidence Integrity Gymnastics put forward of & “major, internationally recognized award,” under 8 C.F.R. § 204.5(h)(3): Laschonava’s Olympic team gold medal, won at the 1988 Olympics when she competed as a member of the U.S.S.R.’s women’s gymnastics team. (Id. at 6). In light of its previous interpretation of the governing statute and regulations as requiring the alien’s national or international acclaim to be sustained in the area of expertise in which she sought to continue working, AAO concluded that “the Olympic team told medal that [Laschonava] earned as a gymnast is not evidence of her sustained national or international acclaim as a coach, the occupation and area of expertise in which she seeks to continue work in the United States.” (Id. (emphases added)).
■AAO went on to consider evidence submitted by Integrity Gymnastics of Laschonava’s eligibility for an extraordinary ability visa under certain subsections of 8 C.F.R. § 204.5(h)(3) as alternative evidence that she had sustained national or international acclaim in the area of gymnastics coaching. Specifically, AAO considered evidence Integrity Gymnastics presented under the following evidentiary categories: § 204.5(h)(3)© (nationally oí internationally recognized prizes or awards for excellence in the field of endeavor); § 204.5(h)(3)(h) (membership in associations fequiring outstanding achievements in the field of endeavor); § 204.5(h)(3)(iii) (published material about the alien relating to the alien’s work in the field); . § 204.5(h)(3)(vii) (display of alien’s work in thé field at'artistic exhibí
AAO also noted that on appeal Plaintiff did not claim that Laschonava met the evidentiary criterion under 8 C.F.R. § 204.5(h)(3)(iv) (participation as judge of the work of others in the field of endeav- or), nor did it challenge any of AAO’s findings on that criteria in the AAO’s initial decision filed on January 12, 2010. Despite that, AAO still reviewed its initial decision on Plaintiffs evidence presented under § 204.5(h)(3)(iv) and ultimately agreed with the prior determination that Plaintiff failed to submit any primary, contemporaneous evidence supporting this criteria or the requisite documentation supporting the use of secondary evidence (allowed in certain instances where primary evidence does not exist). (Id at 13 (citing evidentiary standards under 8 C.F.R. §§ 103.2(b)(1), (b)(2)(i)).
For these reasons, AAO ultimately found that Integrity Gymnastics failed to demonstrate by a preponderance of the evidence that Laschonava seeks to enter the United States to continue work in her area of extraordinary ability, has achieved sustained national or international acclaim as a gymnastics coach, and that she is one of the small percentage who has risen to the very top of the field of endeavor. (Id at 2). AAO then concluded that the 1-140 petition was properly denied. . .
B. Whether the Agency’s Decision was Arbitrary, Capricious, an Abuse of Discretion, or Otherwise Not in Accordance with Law
As discussed, see Part II.B supra, under the APA, this Court may only reverse final agency action when it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, defined as: reliance on factors that Congress has not intended the agency to consider, failure to consider an important facet of the problem or offering reasoning for the decision that runs counter to the evidence before it, making a decision that is so implausible that it could not be ascribed to a difference in view or the product of the agency expertise, or making'a decision that is in conflict with the language of the statute relied upon by the agency. See 5 U.S.C. § 706; Motor Vehicle Mfrs. Assoc.,
1. Area of Extraordinary Ability
Plaintiff first challenges USCIS’s decision to review its petition as seeking to certify Laschonava as an alien of extraordinary ability in, and seeking to continue working in, the area of gymnastics coaching, instead of in the area of gymnastics, generally. Plaintiff argues that USCIS’s distinction “between workers entering the country to compete in athletics and workers entering the country to coach in athletics is so narrow [that it rises] to the level of an abuse of discretion.” How the “area” of extraordinary ability is defined is of central importance because a party seeking an extraordinary .ability classification must present extensive evidence of sustained national or international acclaim in that area in order' to qualify for a visa. In
After a thorough review of the AAO’s reasoning and relevant law, this Court finds that UCSIS’s interpretation of “area of extraordinary ability” was hot an abuse of discretion and therefore, is binding on this Court.
USCIS’s finding that Plaintiff must prove national or international acclaim as in the area of gymnastics coaching, instead of the area of gymnastics generally, was based largely on: (1) USICIS’s view that “Congress set a very high benchmark for aliens of extraordinary ability,” the starting point of the agency’s analysis; and (2) its determination that “competitive athletics and coaching are not the same area of expertise,” citing Lee v. I.N.S.,
In Lee, The Northern District of Illinois court upheld USCIS’s distinction between extraordinary ability as a coach and competitor as reasonable and entitled to deference, finding that the distinction is consistent with Congress’s intent to establish the extraordinary ability visa category as extremely restrictive. See
The Northern District of Illinois rejected this argument and held that, consistent with the “extremely restrictive” nature of the extraordinary ability classification, the agency had reasonably interpreted the threshold requirement of 8 U.S.C. § 1153 (b)(1) (A.) (ii) to mean that the alien worker must “work[ ] in the same profession in which [he or she] has extraordinary ability, [which is] not necessarily in any profession in that field,” Id. (emphasis added).
In the present ease, similar to Lee, Integrity Gymnastics cannot dispute that it sought to employ Laschonava as a gymnastics coach — specifically, as the Optional Girls Team- Coach. (See Doc. 24 at PagelD 1668-69, 1909). -Although Lee may not be binding on USCIS, it is certainly persuasive given the similarity of the facts. Moreover, Plaintiff fails to identify any binding case precedent-or'other law that demonstrates that the agency’s interpretation relied on factors that Congress did not intend it to consider, failed to consider an important facet of the problem,' offered reasoning for its' decision counter to the evidence before it, or conflicted with the language 'of the statute at issue.
Accordingly, based on this Court’s review- of the agency’s reasoning, .and of the relevant statutory and regulatory language and ease precedent, this Court cannot say that the agency’s determination that Plaintiff is required to demonstrate extraordinary ability as a gymnastics coach was arbitrary, capricious,; or otherwise not in accordance with law.
Plaintiffs argument fails. First, the AAO stated that it would, and did, consider evidence related to Laschonava’s skill as a gymnastics competitor in reviewing the-totality of the circumstances. (See Doc. 24-1 at 3-4 (recognizing “that there exists a nexus between playing and coaching a given sport” necessitating “a balanced approach ... when reviewing the evidence in the aggregate in the final merits determination.” (Id. at 3-4)). Moreover, although Plaintiff strives to distinguish Lee,.none of the distinctions identified demonstrates to •this Court that the agency’s interpretation, relied on factors that • Congress did not intend it to consider, failed to consider an important facet of the problem, offered reasoning for its decision counter to the evidence before it, or conflicted with the language of the statute at issue. At bést, Plaintiff points to an alternate avenue of decision-making that may also be reasonable .within the context of the statutory scheme of the INA. Such evidence is insufficient to overturn agency action under the APA. Therefore, the Court cannot find that the agency abused its discretion on this issue.
2. National or International Acclaim in the Field of Expertise
Plaintiff next argues that the agency abused its discretion in finding that Plaintiff did not demonstrate by a preponderance of the evidence that Laschonava had received national or international acclaim as a gymnastics coach.
a. One-Time Major International Recognized Award under 8 C.F.R. § 204.5(h)(3)
Plaintiff argues that evidence of Laschonava’s Olympic team gold medal, received in 1988 while she was a member of the Soviet Union Olympic team, qualifies as major internationally recognized award under 8 C.F.R. § 204.5(h)(3)' and therefore the agency abused its discretion by denying its 1-140 visa petition. For reasons' similar to those stated in Part IV.B.l, supra, however, USCIS did not abuse its discretion or act arbitrarily and capriciously in making this determination.
As discussed, the agency reasonably determined, based on statutory interpretation, supported by legislative history and case precedent, that the.‘area’ of extraordinary ability for which Plaintiff seeks to qualify Laschonava is the area of gymnastics coaching, rather than gymnastics broadly. Therefore, it was reasonable for the agency to determine.that evidence of a major international award Laschonava received as a gymnastics competitor was insufficient under 8 C.F.R. § 204.5(h)(3). Such an interpretation was upheld by the Lee court and it was not an abuse of discretion for USCIS to employ similar reasoning here.
This Court is not persuaded that US-CIS’s decision to deny Plaintiffs 1-140 petition on behalf of Laschonava ■ was arbitrary, capricious, an abuse of discretion, or otherwise- not in accordance with law. Again here, Plaintiff advances essentially the same arguments. and relies on the
b. Alternative Evidentiary Requirements Demonstrating Sustained National or International Acclaim, under 8 C.F.R. § 204.5(h)(3)(i)-(x)
Likewise, the agency did not abuse its discretion in finding that Plaintiff did not present sufficient evidence under at least three of the ten evidentiary categories listed in 8 C.F.R: § 204.5(h)(3)(i)-(x).
Plaintiff asserts that USCIS did not give proper weight to the “overwhelming evidence” it submitted in support of its petition that it claims demonstrated Laschonava’s sustained national and international acclaim in the area of expertise under the criteria listed in 8 C.F.R. § 204.5(h)(3)(i)-(x). In support of its petition, Plaintiff submitted evidence of: (1) evidence of Laschonava’s 1988 team Olympic gold medal; (2) media articles about Laschonava’s awards and achievements as a gymnast; (3) Laschonava’s resume; (4) evidence of Laschonava’s gymnastics coaching experience in Belarus; (5) media articles about Laschonava as a gymnastics coach; (6) evidence of the accomplishments of some of the gymnasts coached by Laschonava; and, (7) letters in support of her 1-140 petition from various, people in the field of gymnastics. She, now argues that this evidence was sufficient to meet, the criterion of •§§.204.5(h)(i), (ii),.(iii), (vii), and.(viii).
This Court has' conducted a comprehensive review of the underlying evidence submitted by Plaintiff contained in the administrative record below and of AAO’s reasoning in its final- decision. Based on that comprehensive review, this Court cannot conclude' that USCIS relied on factors that Congress did not intend it to consider, failed to consider an important facet of the problem, offered reasoning for its decision counter to the evidence before it, or conflicted with the language of the statute at issue. See Motor Vehicle Mfrs. Assoc.,
A careful reading of the AAO’s January 26, 2011 decision reveals that the
Further, Plaintiff has not met its burden to demonstrate any abuse of discretion; Plaintiff largely argues that it disagrees with the agency’s outcome.. To be sure, there appears to be some legal support that would have justified the agency granting. Plaintiffs visa petition. But it would be inappropriate for this Court to substitute its judgment for the agency’s without a showing that the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See Natural Res. Def. Council,
y. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment, (Doc. 37), is GRANTED; Plaintiffs Cross-Motion for Summary Judgment, (Doc. 38), is DENIED. This case is DISMISSED.
IT IS SO ORDERED.
. AAO considered Plaintiff’s evidence under §§ 204.5(h)(3)(vii) and (viii) despite the fact that it had not previously claimed eligibility under either criterion in the previous administrative proceedings. (Doc. 24-1 at 12-14).
. Plaintiff contends that the agency should have followed the reasoning of Buletini v. INS,