KRASNIQI v. DIBBINS

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MRIKA KRASNIQI and ANIL

ZOGJANI,

Plaintiffs,

v.

SUSAN DIBBINS, in her official

capacity as Chief, Administrative

Appeals Office, U.S. Citizenship and Civ. No. 20-06188 (KM)

Immigration Service; TRACY L.

RENAUD, in her official capacity as OPINION

Acting Director, U.S. Citizenship and

Immigration Services; ALEJANDRO

MAYORKAS, in his official capacity

as Secretary of Homeland Security;

and LOREN MILLER, in her official

capacity as Director, Nebraska

Service Center, U.S. Citizenship and

Immigration Services,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Federal immigration law allocates visas for non-citizens with

“extraordinary ability” in the arts. Mrika Krasniqi, a Kosovar filmmaker,

petitioned for such a visa, as well as for permanent resident status for herself

and her son, Anil Zogjani. The U.S. Citizenship and Immigration Service (the

“Service”) denied her petition. So Ms. Krasniqi and Zogjani sued the

government officials responsible (collectively, “the Government”),1 alleging

1 Pursuant to Fed. R. Civ. P. 25(d), when a public official is a party to an action

and subsequently leaves office, that official’s successor may be substituted as a party.

Accordingly, Susan Dibbins should be substituted for Barbara Velarde as the Chief of

the Administrative Appeals Office; Tracy L. Renaud should be substituted for Kenneth

T. Cuccinelli II as the Acting Director of the Service; Alejandro Mayorkas should be

substituted for Chad Wolf as the Secretary of Homeland Security; and Loren Miller

should be substituted for Gregory A. Richardson as the Director of the Nebraska

violations of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and

procedural due process. The parties cross-moved for summary judgment. (DE

21, 22.)2 For the following reasons, Plaintiffs’ motion (DE 21) is DENIED, and

the Government’s motion (DE 22) is GRANTED.

I. BACKGROUND

A. Statutory and Regulatory Background

Immigration visas are available for aliens “with extraordinary ability.” 8

U.S.C. § 1153(b)(1)(A). To qualify, (1) the alien must have “extraordinary ability

in the 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.” Id. § 1153(b)(1)(A)(i)–(iii). Implementing

regulations further explain that “[e]xtraordinary ability means a level of

Service Center. The accompanying order will direct the clerk of the court to amend the

docket and caption accordingly.

2 Certain citations to the record are abbreviated as follows:

DE = docket entry

Compl. = Complaint (DE 1)

Pl. Br. = Plaintiffs’ Brief in Support of their Motion for Summary Judgment (DE

21-1)

Pl. Opp. = Plaintiffs’ Brief in Opposition to the Government’s Motion for

Summary Judgment (DE 33) (Plaintiffs filed their opposition brief late but move for the

Court to accept the untimely filing. (DE 34.) The Government took no position on this

request. (Id.) The Court will grant the motion to file the opposition brief out of time.)

Gov’t Br. = The Government’s Brief in Support of its Motion for Summary

Judgment (DE 22)

K.A.R. = Krasniqi Administrative Record (pin citations refer to the consecutive

Bates numbers at the bottom of each page) (DE 17)

Z.A.R. = Zogjani Administrative Record Krasniqi Administrative Record (pin

citations refer to the consecutive Bates numbers at the bottom of each page) (DE 18)

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 alien may petition the Service for an extraordinary ability visa and

must include supporting evidence. Id. § 204.5(h)(3). In considering petitions,

the Service uses a two-step inquiry. U.S. Citizenship & Immigration Services

Policy Manual, Vol. 6, Pt. F, Ch. 2, https://www.uscis.gov/policy-

manual/volume-6-part-f-chapter-2 (hereinafter “Policy Manual”). The petitioner

bears the burden of proof and must establish eligibility by a preponderance of

the evidence. 8 C.F.R. § 103.2(b)(1); Matter of Chawathe, 25 I. & N. Dec. 369,

375 (AAO 2010); see also Soni v. United States, Civ. No. 11-2431, 2016 WL

4154137, at *3 (D.N.J. Aug. 2, 2016).

At the first step, the petitioner can make either of two showings: For one,

she3 may present “evidence of a one-time achievement (that is, a major,

international recognized award).” 8 C.F.R. § 204.5(h)(3). Alternatively, instead

of a major award, the Service lists ten other types of evidence in subsection

(h)(3), and the petitioner can satisfy step one if she can present at least three of

these. 8 C.F.R. § 204.5(h)(3). The subsection (h)(3) criteria include, for example,

“lesser nationally or internationally recognized prizes,” and “[p]ublished

material about the alien in professional or major trade publications.” Id.

§ 204.5(h)(3)(i), (iii).

If the petitioner makes a minimum showing at step one, then at step two,

the Service makes a “final merits determination” in which it considers “the

quality of the evidence” and “evaluate[s] the evidence together.” Policy Manual,

supra. In other words, step one simply asks whether the petitioner has

produced the minimum evidence satisfying the (h)(3) criteria, but step two

involves the merits inquiry of whether all the evidence shows “extraordinary

ability.” Id.; 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) (Mem).

3 Because the petitioner here is female, for convenience I use female pronouns to

refer to a generic petitioner.

If granted an extraordinary ability visa, the alien may also have her

status adjusted to a lawful permanent resident. 8 U.S.C. § 1255(a); 8 C.F.R.

§ 245.1(a). Likewise, her child may qualify for adjustment of status. 8 U.S.C.

§ 1153(d).

B. Proceedings

Submissions

Ms. Krasniqi and Zogjani are natives and citizens of Kosovo who were

admitted to the U.S. as temporary visitors. (K.A.R. at 640, 642; Z.A.R. at 47,

49.) Ms. Krasniqi petitioned for an extraordinary ability visa due to her work as

a director, producer, and screenwriter for documentary films. (K.A.R. at 3, 68,

90.) With that petition, she also applied to adjust her and Zogjani’s status to

that of lawful permanent residents. (Id. at 627–57; Z.A.R. at 34–63.)

In support of her petition, she stated that she won a “Certificate of

Honor” from the Marché du Film (“Market of Film” in French) associated with

the Cannes Film Festival. (K.A.R. at 70.) Held annually on the Côte d’Azur, the

festival previews films from around the world and awards prizes, the most

prestigious being the Palme d’Or (“Golden Palm”) for best picture. (Id. at 119,

124.) An American might say that Cannes is the French version of the Oscars,

although the French question the validity of the comparison. See Festival de

Cannes, The Festival in 2021, Interview with Thierry Frémaux,

https://www.festival-cannes.com/en/qui-sommes-nous/festival-de-cannes-1

(last visited Aug. 31, 2021) (describing the Festival as “certainly the most

important film festival in terms of worldwide impact”).

In conjunction with the Festival there occurs the Marché du Film, a

meeting of film-industry professionals. (K.A.R. at 129.) The Marché includes a

“Producers Network” which “hosts more than 500 producers from around the

world for a series of meetings and unique events specifically designed to

stimulate international co-production and optimize networking.” (Id.) Producers

may show their films, and “special gratitude awards are given such as [the]

Certificate of Honor” for projects that garner “interest by a great number of

producers and distributors.” (Id.)

Ms. Krasniqi showed a film which she produced and directed, Soldier,

and received a Certificate of Honor. (Id. at 117, 130.) As evidence of that award,

she submitted, among other things, (a) a copy of the Certificate (id. at 117);

(b) a photo of her in front of a step-and-repeat display4 with the Marché logo (id.

at 118); (c) a Wikipedia entry for the Cannes Film Festival (id. at 119–28);

(e) part of the Marché’s webpage (id. at 129); and (f) an article from Bota Press

reporting that her film would screen at the Marché (id. at 130).

Besides this award, Ms. Krasniqi provided other evidence to support her

petition:

• evidence of awards from other film festivals and organizations: (a) Prize of

the Organizer at the One World Human Rights Documentary Film

Festival, (b) Best International Social Documentary at the New York

International Independent Film Festival, (c) Best Human Artist given by

the European Jewish Communities in Paris, and (d) a certificate of

appreciation from the Sarajevo Film Festival (id. at 70);

• articles from foreign newspapers and online publications about her work

and awards (id. at 6);

• evidence that she founded Albanian Film Week, a film festival held in

New York City showing films from Albanian filmmakers (id. at 8);

• evidence of her membership in two organizations for Kosovar filmmakers

(id. at 77); and

• a “Woman of the Year” Award from the United States Senate for her work

promoting Albanian culture in the United States (id. at 1193–1200).

Decision, Appeal, and this Case

The Service denied Ms. Krasniqi’s petition. (K.A.R. at 68–73.) She

appealed to the Service’s Administrative Appeals Office (“AAO”), an

4 Sometimes known as a “press wall,” a step-and-repeat display has a repeating

pattern of images, such as logos.

administrative appellate body that hears appeals from petition denials. (Id. at

2.) Upon de novo review, the AAO dismissed the appeal in a written opinion,

finding that she had not satisfied any criteria. (Id. at 2–10.)5 Because Ms.

Krasniqi could not obtain a visa, her application and the derivative application

for Zogjani for adjustment of status were denied. (Z.A.R. at 24.)

They sued the Government in this Court, alleging that (1) the denial of

the petition for an extraordinary ability visa and the accompanying denials of

adjustment of status violated the APA; (2) the denials violated their right to

procedural due process under the Fifth Amendment; and (3) they are entitled to

mandamus relief compelling the Service to grant their petitions. (Compl. ¶¶ 33–

43.) The parties cross-moved for summary judgment. (DE 21, 22.)

II. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). “When a party seeks review of agency

action under the APA, the district judge sits as an appellate tribunal. The entire

case on review is a question of law.” Neto v. Thompson, 506 F. Supp. 3d 239,

243–44 (D.N.J. 2020) (quoting Am. Biosci., Inc. v. Thompson, 269 F.3d 1077,

1083 (D.C. Cir. 2001)). In such a case, “the district court does not need to

determine whether there are disputed facts to resolve at trial since the

administrative agency is the finder of fact. Instead, my task is to review the

administrative record and determine whether, as a matter of law, the Service’s

action complied with the APA.” Id. at 244 (quotation marks and citation

omitted).

III. DISCUSSION

The APA empowers courts to review agency actions and set them aside if

they are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). Plaintiffs claim that the Service and

5 For easier reading, I discuss the AAO’s specific findings on each criterion in the

context of Ms. Krasniqi’s challenges.

AAO violated the APA by the manner in which they viewed the evidence and

found the facts to deny Ms. Krasniqi’s petition. (Pl. Br. at 24.) They thus

present an arbitrary-and-capricious challenge. See, e.g., Visinscaia v. Beers, 4

F. Supp. 3d 126, 133 (D.D.C. 2013) (analyzing similar arguments under an

arbitrary-and-capricious standard); Rijal, 772 F. Supp. 2d at 1345 (same).

Arbitrary-and-capricious review requires me to assess whether the

decision was “reasonable and reasonably explained.” FCC v. Prometheus Radio

Project, 141 S. Ct. 1150, 1158 (2021). My review “is deferential, and a court

may not substitute its own policy judgment for that of the agency.” Id.

(citations omitted). This “review also encompasses review of whether an

agency’s factual judgments are supported by substantial evidence.” Sequretek,

Inc. v. Cuccinelli, Civ. No. 20-05462, 2021 WL 1660871, at *4 (D.N.J. Apr. 28,

2021) (cleaned up). “Substantial evidence means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Taransky

v. Sec’y of U.S. Dep’t of Health & Human Servs., 760 F.3d 307, 313 (3d Cir.

2014) (quotation marks and citation omitted). At bottom, in matters like this

one, the question is not whether the agency reached the best conclusion, but

only whether the conclusion it did reach had support. Visinscaia, 4 F. Supp. 3d

at 133; see Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 223 (3d Cir. 2003)

(“An action will not be deemed arbitrary, capricious, or an abuse of discretion

simply because one may happen to think it ill-considered, or to represent the

less appealing alternative solution available . . . .” (citation omitted)).

I only review the grounds invoked by the agency when it made its

decision. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891,

1907 (2020). Here, the decision that is the focus of my review is the AAO

opinion because it constitutes the “final agency action.” Embassy of the

Blessed Kingdom of God for All Nations Church v. Att’y Gen. U.S., 591 F. App’x

161, 165 (3d Cir. 2014) (citations omitted); see also, e.g., Kazarian v. U.S.

Citizenship & Immigr. Servs., 596 F.3d 1115, 1121 (9th Cir. 2010); Visinscaia, 4

F. Supp. 3d at 133.

IV. DISCUSSION

The crux of this case is that the AAO’s decision affirming the Service’s

denial of Ms. Krasniqi’s petition for an extraordinary ability visa was arbitrary

and capricious. I discuss that issue first in Section III.A and then discuss the

remaining claims in Section III.B.

A. Petition

Ms. Krasniqi argues that the AAO erred in concluding that she failed to

meet her burden for either showing at step one.6 I review the major award

showing in Section III.A.2 and the (h)(3) criteria showing in Section III.A.3, but

first I clarify the proper standard to apply to the AAO’s application of the

regulations in Section III.A.1.

AAO Interpretation of Regulations

The regulations use broad terms not readily susceptible of objective

definitions in outlining the visa criteria—for example, “contributions of major

significance” and “distinguished reputation.” 8 C.F.R. § 204.5(h)(3)(v), (viii). The

statute itself uses similar, subjective-seeming terms, like “extraordinary

ability.” 8 U.S.C. § 1153(b)(1)(A). It appears, then, that Congress and the

Service “felt it unnecessary and perhaps inadvisable to define” the criteria with

utmost specificity and instead “entrusted that decision to the administrative

process.” Rijal, 772 F. Supp. 2d at 1345; see also Visinscaia, 4 F. Supp. 3d at

133. Accordingly, the Government asks that the Court defer to the AAO’s

interpretation and application of the criteria here. (Gov’t Br. at 14, 19, 24.)

The regulations do give the AAO wide scope, but it is not free to apply the

criteria however it chooses. At a minimum, its interpretation and application

must be found to be based in the text of 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.”); Soltane v. U.S. Dep’t of Justice, 381 F.3d 143, 149 (3d Cir. 2004)

6 Although this case is also brought by Zogjani, the key decision under review

relates to Ms. Krasniqi, so I refer hereon only to her for simplicity.

(Alito, J.) (vacating a visa denial when “the AAO’s analytic approach is

inconsistent with the text of the regulation”).

Indeed, courts have recently been signaled to scale back deference to

agencies’ interpretation and application of regulations. United States v. Perez, 5

F.4th 390, 394–94 (3d Cir. 2021) (citing Kisor v. Wilkie, 139 S. Ct. 2400 (2019)).

Courts previously deferred to “agencies’ interpretations of an ambiguous

regulation unless those interpretations [were] ‘plainly erroneous or inconsistent

with the regulation.’” Soltane, 381 F.3d at 148 (quoting Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410 (1945)). Now, however, courts are directed to

defer to agencies’ interpretations only after determining that (1) the regulation

is truly ambiguous, (2) the agency’s interpretation is reasonable, and (3) the

“character and context” of the agency’s interpretation “entitle[] it to controlling

weight.” Perez, 5 F.4th at 395 (citing Kisor, 139 S. Ct. at 2414–17). Thus,

deference “often doesn’t” apply, leaving room for “a strong judicial role in

interpreting rules.” Kisor, 139 S. Ct. at 2418.

I turn first to the third Perez consideration, and find that deference is not

appropriate here. Cf. Perez, 5 F.4th at 396 (considering the third prong out of

order). To merit deference, a regulatory interpretation must, among other

things, “be the agency’s authoritative or official position” and “implicate its

substantive expertise.” Kisor, 139 S. Ct. at 2416–17 (quotation marks and

citations omitted). Non-precedential opinions by the AAO do not qualify as

authoritative agency positions, because they are the product of informal

adjudication and do not bind other parties. See Fogo De Chao (Holdings) Inc. v.

U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1136–37 (D.C. Cir. 2014) (applying

standards similar to those used in Kisor); see also Sequretek, 2021 WL

1660871, at *4 n.3; Mutasa v. U.S. Citizenship & Immigr. Servs., --- F. Supp. 3d

----, ----, Civ. No. 20-09321, 2021 WL 1207482, at *9 (D.N.J. Mar. 31, 2021);

InspectionXpert Corp. v. Cuccinelli, No. 19cv65, 2020 WL 1062821, at *25 (Mar.

5, 2020), report & recommendation adopted by 2020 WL 3470341 (M.D.N.C.

Mar. 31, 2020). Thus, the Government cannot rely on a resort to deference

here.

Where, then, does that leave us? Certainly, the court’s affirmance of the

AAO’s findings on each criterion could not be based on mere deference to the

agency’s interpretation. Still, the regulatory text is broadly written and does not

narrowly constrict agency decision making, so the AAO enjoys some leeway in

applying the regulations. Accordingly, I will determine whether the AAO’s

application is consistent with the regulatory text and does not exceed “the

outer bounds of permissible interpretation” “as informed by the text, structure,

history, and so forth.” United States v. Nasir, 982 F.3d 144, 158 (3d Cir. 2020)

(en banc) (cleaned up); see Soltane, 381 F.3d at 149. If the AAO’s interpretation

is not “so implausible that it could not be ascribed to a difference in view,” I will

affirm it. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983).

Major Award

Ms. Krasniqi argues that the AAO erred in concluding that her Certificate

of Honor from the Marché du Film did not qualify as a major award.

There is nothing in the statute or regulations defining a “major” award.

Visinscaia, 4 F. Supp. 3d at 133. The House Judiciary Committee, in amending

and reporting favorably on the bill, listed the Nobel Prize as one example. H.R.

Rep. 101-723, at 59 (Sept. 19, 1990), reprinted in 1990 U.S.C.C.A.N. 6710,

6739; see also Visinscaia, 4 F. Supp. 3d at 133. The AAO noted this citation

and stated that the Nobel Prize “is reported in the top media internationally

regardless of the nationality of the awardees, reflects a familiar name to the

public at large, and includes a large cash prize.” (K.A.R. at 3–4.) While these

“elements” are not necessary, the AAO took them as a guide to the

characteristics which Congress deemed relevant and sufficient in defining an

award as “major.” (Id. at 4.)

Ms. Krasniqi, the AAO found, had not presented evidence sufficient to

explain “the nature of the [] Certificate of Honor.” (Id.) At most, the record

showed that “the Marché du Film is the business counterpart to the Cannes

Film Festival and is one of the largest film markets in the world.” (Id.) Still, the

film festival and its awards “appear completely distinct from the Marché du

Film.” (Id.) Accordingly, the AAO concluded that “[w]ithout corroborating

evidence verifying the certificate’s status and international recognition,” Ms.

Krasniqi had not shown that “her Certificate of Honor qualifies as a one-time

achievement.” (Id.)

The AAO’s conclusion was reasonable, and it has good support in the

record.7 See Prometheus, 141 S. Ct. at 1160 (upholding agency decision that

considered the record evidence and drew a reasonable conclusion from it). The

evidence speaking to the nature of the Certificate amounted to the Marché’s

webpage and a foreign article tersely noting that Ms. Krasniqi received the

Certificate. (K.A.R. at 129–30.)8 But, as the AAO explained, what can be

7 Ms. Krasniqi does not take issue with the AAO’s interpretation of “major,

international award” that relied on comparisons to a Nobel Prize. (K.A.R. at 4.) Still, I

agree with the courts that have found a risk of error when the AAO requires that a

petitioner’s award share specific characteristics with a Nobel Prize. Braga v. Poulos,

No. CV 06-5105, 2007 WL 9229758, at *4 (C.D. Cal. July 6, 2007), aff’d, 317 F. App’x

680 (9th Cir. 2009). The Nobel Prize example is contained in the legislative history, not

in the statute itself. Braga, 2007 WL 9229758, at *3; see Christ the King Manor, Inc. v.

Sec’y U.S. Dep’t of Health & Human Servs., 730 F.3d 291, 305 (3d Cir. 2013) (“An

agency action may be arbitrary and capricious if the agency has relied on factors

which Congress has not intended it to consider . . . .” (quotation marks and citation

omitted)).

Relatedly, not all “major, international awards” resemble the Nobel Prize in their

scope or notoriety. For example, the highest prize in mathematics is the Fields Medal,

which “is not a name known in most households.” Braga, 2007 WL 9229758, at *3. If

the AAO were to require that an award, to be major, must “reflect[] a familiar name to

the public at large,” like the Nobel Prize (K.A.R. at 3–4), “then no alien mathematician

could qualify for an extraordinary achievement visa,” Braga, 2007 WL 9229758, at *3.

Here, while the AAO did cite the Nobel Prize as a comparator, its ultimate

conclusion was based on the lack of evidence presented by Ms. Krasniqi. Accordingly,

any arguable misinterpretation by the AAO of a “major, international award” does not

impugn its bottom-line conclusion. Braga, 2007 WL 9229758, at *5.

8 Although Ms. Krasniqi submitted other evidence related to the Certificate, such

evidence only spoke to whether she received the Certificate, which is not at issue.

gleaned from these is simply that the Marché “offers a networking opportunity

for film professionals,” while its awards “appear completely distinct” from the

awards at Cannes, like the Palme d’Or. (K.A.R. at 4.) The AAO could reasonably

require evidence regarding the specific criteria for the Certificate, and it

correctly found that such evidence was largely lacking. Strategati, LLC v.

Sessions, No. 18-cv-1200, 2019 WL 2330181, at *3 (S.D. Cal. May 31, 2019).

Further, the Marché’s webpage describes the award as a “gratitude”

award, suggesting that it is not awarded based on merit or artistic value, like

awards at Cannes. (K.A.R. at 129.) Ms. Krasniqi argues that the Certificate “by

its very nature” is major and international, because of its association with the

Cannes festival. (Pl. Br. at 26) The AAO, however, could and did rationally

conclude that the Marché was not the same thing as the Cannes festival itself.

And regardless, it rationally found that more evidence of the Certificate’s own

criteria was needed. See Braga v. Poulos, No. CV 06-5105, 2007 WL 9229758,

at *4 (C.D. Cal. July 6, 2007) (counsel’s assertions about the nature of an event

require an “evidentiary foundation”), aff’d, 317 F. App’x 680 (9th Cir. 2009).

Nor did Ms. Krasniqi give the AAO evidence of how the Certificate is

perceived outside the Marché itself. The single foreign article cited did not

suffice, because the AAO had no basis to discern, e.g., the reach and

circulation of that publication. See Visinscaia, 4 F. Supp. 3d at 133 (AAO

rationally “discounted the media coverage of the award, which amounted to one

mention in a newspaper whose circulation is unknown”); Rijal, 772 F. Supp. 2d

at 1345 (AAO rationally discounted “news coverage appear[ing] to be of a local

or national nature”). Accordingly, the AAO did not act arbitrarily and

capriciously when it concluded that Ms. Krasniqi’s Certificate from the Marché

du Film was not a “major, international award.”

Subsection (h)(3) Criteria

Alternatively, Ms. Krasniqi argues that the AAO erred in concluding that

she did not make a sufficient showing as to three subsection (h)(3) criteria. I

discuss in turn each criterion which she argues she satisfied.9 Her burden is

high here: Because the regulation requires evidence of three criteria, 8 C.F.R.

§ 204.5(h)(3), she must show, to warrant a remand, that the AAO erred in its

findings for three criteria. Kazarian, 596 F.3d at 1122; Visinscaia, 4 F. Supp.

3d at 136; see Del. Riverkeeper Network v. Sec’y Pa. Dep’t of Env’t Prot. (Del.

Riverkeeper I), 833 F.3d 360, 377 (3d Cir. 2016) (“[W]e apply a ‘harmless error’

analysis to any administrative action we review; mistakes that have no bearing

on the substantive decision of an agency do not prejudice a party.” (footnotes

and citations omitted)).

a. Lesser Awards

As an (h)(3) factor, petitioner may show that she received “lesser

nationally or internationally recognized prizes or awards for excellence in the

field of endeavor.” 8 C.F.R. § 204.5(h)(3)(i). The AAO found that, as to the

Marché Certificate and Ms. Krasniqi’s other awards, her evidence did not

(1) show that the awards “receive national or international recognition,” or (2)

provide a basis to “determine whether she received these awards for excellence

in her field.” (K.A.R. at 5.)10

9 The AAO opinion made findings on criteria which neither the Complaint nor Ms.

Krasniqi’s briefs challenge. Accordingly, I confine my analysis to those findings

challenged by Ms. Krasniqi.

10 Before the Service, Ms. Krasniqi submitted her Woman of the Year Award from

the U.S. Senate as “comparable evidence” under 8 C.F.R. § 204.5(h)(4). She expressly

argued that this award “does not directly fit into any of the regulatory specific

categories.” (K.A.R. at 88.) The AAO thus analyzed that award under § 204.5(h)(4),

discussed in Section III.A.3.f, infra.

Likewise, I will not consider this award under the lesser awards criterion or any

other criteria. As explained more fully in Section III.A.3.e, courts reviewing agency

actions follow principles of preservation used by appellate courts in reviewing trial

courts. Carr v. Saul, 141 S. Ct. 1352, 1358 (2021). One such principle is that when a

party intentionally abandons a known right, or “clearly chooses a particular path, it

will be respected and generally not further reviewed.” United States v. James, 955 F.3d

336, 344–45 (3d Cir. 2020). Applying that principle here, Ms. Krasniqi presented her

Woman of the Year Award as “comparable evidence” under § 204.5(h)(4) and

affirmatively disclaimed any reliance on the award for the other criteria. The AAO’s

analysis followed suit, and it should not be faulted now for not considering the

I will affirm the AAO in this regard because its reasoning was supported

by the text of the regulation. See Del. Riverkeeper Network v. U.S. Army Corps of

Eng’rs (Del. Riverkeeper II), 869 F.3d 148, 161 (3d Cir. 2017) (agency did not

act arbitrarily and capriciously when its reasoning was supported by

regulations); Mutasa, --- F. Supp. 3d at ----, 2021 WL 1207482, at *7–8 (same).

The text requires that the petitioner provide evidence of national or

international recognition. Visinscaia, 4 F. Supp. 3d at 136; Guida v. Miller, No.

20-cv-01471, 2021 WL 568850, at *8–9 (N.D. Cal. Feb. 16, 2021); Hristov v.

Roark, No. 09-CV-2731, 2011 WL 4711885, at *8 (E.D.N.Y. Sept. 30, 2011). On

that score, and to meet a preponderance-of-evidence standard, it is reasonable

to find that evidence solely from the awarding organization itself may be

insufficient if it does not show “how a larger audience viewed [the] awards.”

Visinscaia, 4 F. Supp. 3d at 136.

Likewise, because the regulation specifies that the awards must be “for

excellence in the field of endeavor,” it is reasonable for the Service to require

evidence that the award is merit-based. The AAO’s reasoning that “excellence

in the field of endeavor” relates to merit-based achievement is implicit in the

opinion, which discounts evidence showing mere participation in the field.

(K.A.R. at 5.) See Del. Riverkeeper II, 869 F.3d at 161 (“Even if the agency’s

decision is of less than ideal clarity, we will uphold it if the agency’s path may

reasonably be discerned.” (quotation marks and citation omitted)). To be sure,

the phrase “excellence in the field of endeavor” does not suggest a single or

narrow interpretation. But the AAO’s interpretation here is supported by the

plain meaning and purpose of the regulation. See Nasir, 982 F.3d at 158.

“Excellence” or “excellent” connotes quality or merit. See Excellent, Merriam-

evidence under other criteria. This accords with the well-established principle of

administrative law that “[s]imple fairness to those who are engaged in the tasks of

administration, and to litigants, requires as a general rule that courts should not

topple over administrative decisions unless the administrative body not only has erred

but has erred against objection made at the time appropriate under its practice.”

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952).

Webster Dictionary (online ed.) (def. 1) (“very good of its kind”); Excellence,

Oxford English Dictionary (online ed.) (def. 1.a) (“The state or fact of excelling;

the possession chiefly of good qualities in an eminent or unusual degree;

surpassing merit, skill, virtue, worth, etc.; dignity, eminence”). And the purpose

of the regulations and statute is to provide visas for those of “extraordinary

ability.” 8 U.S.C. § 1153(b)(1)(A) (emphasis added). All support the AAO’s

“merit-based” interpretation here.

Moving to the AAO’s application of the regulation, I agree with the AAO

that Ms. Krasniqi’s evidence was lacking in showing recognition or excellence.

As to the Certificate from the Marché du Film, the AAO reasoned that the

evidence showed the Certificate to be a “gratitude award,” and failed to

establish that it was awarded for merit in film making. (K.A.R. at 5.)

Nonetheless, Ms. Krasniqi argues that the Marché’s association with the

Cannes festival imbues the award with international recognition and suggests

excellence in film. (Pl. Br. at 27.) But, as reflected in the regulation’s plain text,

the focus is on the award, not the awarding organization. So while the

Certificate may be given in a context with associations with Cannes, the

Certificate is not the Palme d’Or, or some equivalent, and does not become so

simply by association with Cannes. The nature of the award must be, and was

not, proven.

As to the Prize of the Organizer at the One World Human Rights

Documentary Film Festival, Ms. Krasniqi’s evidence consisted of the certificate

and webpages for the festival itself. (K.A.R. at 156–61.) Neither describes the

criteria for the award or speaks to the award’s recognition.

As to the certificate of appreciation from the Sarajevo Film Festival, she

provided (1) the certificate (id. at 149–50); and (2) a letter from one panel

member (a) stating that her certificate was awarded for her contributions that

included screening her films and participating in debates (id. at 151), and (b) a

list of merits awards, which did not include her certificate (id. at 153). The

letter thus could reasonably indicate that the certificate was awarded for

participation or contribution, but not for “excellence” in the field as such. In

addition, Ms. Krasniqi failed to present sufficient evidence from sources besides

the festival itself that would be probative of national or international

recognition.

As to the Best Human Artist given by the European Jewish Communities

in Paris, Ms. Krasniqi proffered a letter from the organization describing itself

as a non-profit organization aimed at community service. (K.A.R. at 135.) The

letter also described the award criteria: “the artist must have treated topics

that serve awareness raise and promotion of human value and human rights

protection” [sic] and “with their art have shown a special humanity and

dedication in a special field.” (Id.) In addition, she provided articles about the

receipt of the award from what appear to be Kosovar publications. (Id. at 137–

45, 237.)

The AAO found that “this award honors the Petitioner for her

contributions to the promotion of human rights, it does not on its face

constitute an award for excellence in the field of cinematography.” (K.A.R. at 5–

6.) That is a reasonable finding based on the cited evidence. From the limited

evidence provided, the organization appears directed at community service—it

is not an arts organization (although it does promote the arts). It was thus

rational for the AAO to conclude that the organization is not a relevant

adjudicator of excellence in a particular art. Relatedly, the award itself indeed

seems more concerned with Ms. Krasniqi’s admirable humanitarian efforts, not

her artistic accomplishments as such. Viewed in another way, the record only

included Kosovar publications briefly mentioning the organization and the

award. The AAO could therefore rationally conclude that such limited evidence

was insufficient to show that the award had national or international

recognition.

Finally, as to Best International Social Documentary at the New York

International Independent Film Festival, Ms. Krasniqi submitted (1) a letter

from the festival’s CEO, describing it as among the “largest true independent

film festivals in the world” and attesting to “extensive coverage” in several well-

known publications (K.A.R. at 101–02); (2) the festival’s webpage (id. at 105–

08); and (3) articles in what appear to be publications from Kosovo noting her

receipt of the award (id. at 109, 111.) As with the Certificate from the Marché,

Ms. Krasniqi has presented some evidence about the festival—but she has not

presented evidence speaking to the award’s national or international

recognition. This issue is a bit closer; another fact finder might have inferred

such recognition. But I cannot say that is the only conclusion to be drawn from

this limited evidence, or that the AAO’s findings were not based on the

evidence, so I cannot disturb the AAO’s findings. Visinscaia, 4 F. Supp. 3d at

133.

In sum, the AAO had a reasonable basis to conclude that Ms. Krasniqi

had not met her evidentiary burden to show that those awards qualified under

§ 204.5(h)(3)(i). Even if one of the awards presented a closer call, Ms. Krasniqi

needed to show that more than one award qualified to warrant a remand. See 8

C.F.R. § 204.5(h)(3)(i) (requiring evidence of “prizes or awards” in the plural);

Visinscaia, 4 F. Supp. 3d at 136 (noting that while reading the regulation to

require evidence of multiple awards “seems slightly strained, the Court might

well believe deference is required”); Del. Riverkeeper I, 833 F.3d at 377

(discussing harmless-error review). She has not, so I will affirm the AAO’s

conclusion on this criterion.

b. Published Material

A petitioner may provide “[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.” 8 C.F.R.

§ 204.5(h)(3)(iii). The AAO noted that Ms. Krasniqi had submitted articles from

foreign newspapers and online publications. (K.A.R. at 6.) The AAO

nevertheless found this evidence insufficient because Ms. Krasniqi failed to

present “circulation data” from which to conclude that “any of the

publications . . . are forms of major media.” (Id.) The AAO also concluded that

Ms. Krasniqi did not present evidence establishing that the publications

“qualify as professional or major trade publications.” (Id.)

Courts have interpreted the regulation to allow the petitioner to rely on

two different kinds of published material: “[1] professional or major trade

publications or [2] other major media.” E.g., Zizi v. Cuccinelli, No. 20-cv-7856,

2021 WL 2826713, at *6 (N.D. Cal. July 7, 2021); Eguchi v. Kelly, 16-CV-1286,

2017 WL 2902667, at *4 (N.D. Tex. July 7, 2017); Braga, 2007 WL 9229758, at

*7. This makes sense because “professional” and “major trade” modify

“publications,” which is then separated from “other major media” by the

disjunctive “or.” See Tris Pharma, Inc. v. Teva Pharms. USA, Inc., Civ. No. 20-

05212, 2021 WL 3879153, at *3–4 (D.N.J. Aug. 25, 2021) (explaining how

adjectives and nouns used as adjectives modify the nouns they precede); United

States v. Shulick, 994 F.3d 123, 140 (3d Cir. 2021) (the disjunctive “or”

suggests that the terms it separates are “separate way[s] of satisfying the

statute”).

Starting first with “other major media,” courts generally agree that the

phrase can mean a publication with significant reach and recognition. It

follows that the AAO may reasonably require evidence of circulation or the like.

E.g., Noroozi v. Napolitano, 905 F. Supp. 2d 535, 545 (S.D.N.Y. 2012); Hristov,

2011 WL 4711885, at *10; Braga, 2007 WL 9229758, at *7. Likewise, as an

evidentiary matter, the AAO may require more than the publication’s own say-

so that it is “major.” Hristov, 2011 WL 4711885, at *10; Braga, 2007 WL

9229758, at *7.

Applying that understanding here, the AAO reasonably concluded that

Ms. Krasniqi did not establish that the proffered material originated from

“major media.” Ms. Krasniqi provided no basis to gauge the circulation of the

publications in which she appeared. She argues that internet-accessible outlets

by their nature have a worldwide reach (Pl. Br. at 30), an argument that would

substantially undermine any reasonable interpretation of “major.” The

presence of something on the internet, a medium accessible to nearly anyone

with a computer or smart device, does not establish that it is actually read or

respected.

Rather, in some cases, the AAO has considered evidence of website traffic

to gauge the scope of readership. Victorov v. Barr, No. CV 19-6948, 2020 WL

3213788, at *8 (C.D. Cal. Apr. 9, 2020). But Ms. Krasniqi did not present

anything like that here. At most, she provided Wikipedia articles about the

publications. The AAO chose not to accept a Wikipedia citation as reliable.

(K.A.R. at 5 n.4.) It is possible to view the matter differently, but courts have

held similarly, so I cannot find that the AAO erred in excluding Wikipedia

evidence. United States v. Lawson, 677 F.3d 629, 650–51 (4th Cir. 2012); Bing

Shun Li v. Holder, 400 F. App’x 854, 857 (5th Cir. 2010) (per curiam); Badasa

v. Mukasey, 540 F.3d 909, 910 (8th Cir. 2008); Kraus v. Alcatel-Lucent, 441 F.

Supp. 3d 68, 71 n.7 (E.D. Pa. 2020); Jones v. Synthes USA Sales, LLC, Civ. No.

08-2060, 2010 WL 3311840, at *9 (D.N.J. Aug. 19, 2010).

When it comes to “professional or major trade publications,” as opposed

to “major media,” I do not find that similar evidence of wide circulation is

required. I offer three reasons.

First, when a statute or regulation names one specific category and one

general category, separated by the disjunctive, courts usually interpret the two

categories separately. In other words, they do not need to share common

attributes and do not necessarily act upon one another. See Ali v. Fed. Bureau

of Prisons, 552 U.S. 214, 224–25 (2008) (interpreting “any officer of customs or

excise or any other law enforcement officer”); see also United States v. Buluc,

930 F.3d 383, 388–90 (5th Cir. 2019) (the structure of “connives or conspires,

or takes any other action” “signals contextually that [the three verbs] have

independent meaning”). The regulation here follows that structure, with

“professional or major trade publications” being the specific category and

“other major media” being the more general category. Accordingly, the

categories should have “independent meaning,” so a requirement for “major

media” should not necessarily be a requirement for “professional or major trade

publications.” See Buluc, 930 F.3d at 390.11

Second, further indication of independent meaning comes when one

considers the canon against surplusage. Under that canon, courts read

statutes and regulations to “give effect to every word.” City of Philadelphia v.

Att’y Gen. of U.S., 916 F.3d 276, 289 (3d Cir. 2019). If “professional or major

trade publications” must share the same attributes as “major media” (namely,

high circulation), then including “professional or major trade publications” in

the regulation is unnecessary. “Major media” would subsume “professional or

major trade publications,” which would become superfluous. Zizi, 2021 WL

2826713, at *6; Braga, 2007 WL 9229758, at *7. To avoid that result,

“professional or major trade publications” should be read “in a way that gives it

some independent heft.” Philadelphia, 916 F.3d at 289.

Third, having established that “professional or major trade publications”

is separate from “other major media,” the question becomes what it requires.

Requiring evidence of circulation for “professional or major trade publications”

does not square with the “ordinary understanding” of that term or “ordinary

practice.” Travers v. Fed. Exp. Corp., --- F.4th ---, ---, No. 20-2703, 2021 WL

3504037, at *6 (3d Cir. Aug. 10, 2021). It is common sense that professional or

trade publications often have a readership size that reflects the size of the

profession, which may be small. As such, circulation is not so relevant when

deciding what qualifies as a professional or trade publication. Braga, 2007 WL

9229758, at *6.

11 True, “other” in “other major media” could suggest that “professional or major

trade publications” are a subset of “major media.” But courts have applied the rule

above even when the second, general phrase uses the word “other.” Ali, 552 U.S. at

224–25; Buluc, 930 F.3d at 388–90; see United States v. EME Homer City Generation,

L.P., 727 F.3d 274, 293 (3d Cir. 2013) (“Some statutes use a general phrase not as a

residual category intended to be a more general description of the preceding terms,

but instead use each of the terms, including the general phrase, as independent and

unrelated statutory categories.”).

The AAO’s opinion here relied heavily on the lack of circulation data

(K.A.R. at 6), and in that regard, seemed at times to conflate “professional or

major trade publications” and “other major media.” Similarly, the underlying

decision which the AAO affirmed relied on the lack of circulation data. (Id. at

71.) For the reasons given above, that deficiency should not preclude a finding

that a publication is a “professional or major trade publication.” As to that

category, the reasoning of the AAO is less than clear. For example, the AAO

explained that Ms. Krasniqi’s contention that one publication, NY Elite, has “a

wide-ranging appeal to all persons” was not sufficient because it “does not

establish that NY Elite is a profession or major trade publication or other form

of major media.” (Id. at 6.)

This reasoning is insufficient to demonstrate that the AAO’s finding has a

basis in both the evidence and the regulations. “[I]n order to permit meaningful

judicial review, an agency must disclose the basis of its action.” Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2573 (2019) (quotation marks and

citation omitted). Although I may uphold a decision “of less than ideal clarity,” I

must be able to reasonably discern “the agency’s path.” Del. Riverkeeper II, 869

F.3d at 161. Here, there is no clear path—just a conclusion. Besides the

reference to circulation data (which is relevant only for “major media”), the AAO

opinion does not contain a rationale. That deficiency is compounded when one

considers case law holding that the key qualification for a professional or trade

publication is not the publication’s popularity but its “stature” in the relevant

field. Zizi, 2021 WL 2826713, at *6; see also Eguchi, 2017 WL 2902667, at *4;

Muni v. INS, 891 F. Supp. 440, 444 (N.D. Ill. 1995). The AAO’s failure to

consider the relevant factors renders its decision on this narrow point arbitrary

and capricious. See Christ the King Manor, Inc. v. Sec’y U.S. Dep’t of Health &

Human Servs., 730 F.3d 291, 305 (3d Cir. 2013) (“An agency action may be

arbitrary and capricious if the agency . . . entirely failed to consider an

important aspect of the problem . . . .” (quotation marks and citation omitted)).

It may be that Ms. Krasniqi’s evidence, considered in light of the correct

standard, would still be found inadequate, but that is not a determination for

me to make in the first instance. See id. (“[W]e should not supply a reasoned

basis for the agency’s action that the agency itself has not given.” (quotation

marks and citation omitted)); Sequretek, 2021 WL 1660871, at *6 (“Remand is

particularly appropriate [] because the essential problem was a failure to

consider evidence or adequately explain rationales.”).

Accordingly, I cannot uphold the AAO’s finding on the published material

criterion. Still, Ms. Krasniqi was required to demonstrate three factors; my

inability to affirm on this factor establishes only that she might prevail on one.

To warrant a remand, Ms. Krasniqi must show that the AAO erred on two other

criteria as well.

c. Original Contributions

The petitioner may present “[e]vidence of the alien’s

original . . . artistic . . . contributions of major significance in the field.” 8

C.F.R. § 204.5(h)(3)(v). For this criterion, Ms. Krasniqi claimed that she

founded Albanian Film Week, a film festival held in New York City showing

films from Albanian producers. (K.A.R. at 8.) She contended that this festival

was a unique contribution of major significance in cinematography because “no

other Albanian artist in Kosovo, Albania or elsewhere has established a film

festival abroad.” (Id.)

The AAO, however, found that Ms. Krasniqi failed to “demonstrate what

effect Albanian Film Week has had on the field.” (Id. (italics omitted).) There

was no evidence, the AAO explained, that the festival is widely viewed or

regarded by members of the cinematography field. (Id.) Although Ms. Krasniqi

provided “letters from other artists who commend her” for the festival, the AAO

found that the letters lacked corroboration, were unspecific, and did not speak

to the festival’s impact on “cinematographic methods.” (Id.)

I discern no error. Per the text of the regulation, the agency must assess

a contribution’s “major significance in the field.” Guida, 2021 WL 568850, at

*9; Viscincaia, 4 F. Supp. 3d at 134; Hristov, 2011 WL 4711885, at *11;

Victorov, 2020 WL 3213788, at *9. That phrase can be reasonably interpreted

to mean that there must be some impact “on the field as a whole.” Viscincaia, 4

F. Supp. 3d at 134 (emphasis added); see also, e.g., Hristov, 2011 WL 4711885,

at *11; Skokos v. U.S. Dep’t of Homeland Sec., No. 09-cv-193, 2010 WL

11538054, at *4 (D. Nev. Jan. 13, 2010). That is, the impact should extend

beyond the petitioner’s locality or a handful participants in the field. Kinuthia v.

Rosenberg, Civ. No. 17-10255, 2018 WL 1243955, at *6 (D. Mass. Mar. 8,

2018); Viscincaia, 4 F. Supp. 3d at 134; Skokos, 2010 WL 11538054, at *4. To

that end, “[c]onclusory statements” about the value of the contribution are

insufficient, Soni, 2016 WL 4154137, at *5, and the AAO may reasonably ask

for “corroborating” evidence, Guida, 2021 WL 568850, at *9; Strategati, 2019

WL 2330181, at *6.

Here, Ms. Krasniqi’s limited evidence tended to show that she established

a film festival, and that, according to some, the festival helped to grow the

Albanian film industry. (K.A.R. at 85–86.) But if her “artistic” “field” is

cinematography, as she claimed (id. at 85), then her evidence falls short. She

has not shown the impact of the festival on the art of cinematography. For

example, and as the AAO explained, there is no indication that the festival

introduced new cinematographic methods or ideas. At most, she relies on

letters stating that the festival has “jump start[ed] careers” of filmmakers who

are of Albanian ethnicity or are exploring Albanian themes. (Id. at 8.) But she

provided no corroborating evidence to that effect. While establishing a film

festival is a laudable contribution, the AAO could reasonably ask how the

festival has shaped cinematography and conclude that the mere existence of

such a festival is insufficient when the regulation requires “major significance.”

To be sure, the regulation’s language is broad enough to allow the

agency, if it were of such a mind, to move the goalposts. There is little in the

language to stop the agency from holding petitioners to impossibly high

standards. Cf. Zizi, 2021 WL 2826713, at *5 (finding that the AAO erred when

it concluded that a petitioner failed this criterion even though, among other

things, he had thirteen patents, the federal government was interested in his

inventions, and research agencies had recognized his approaches). Here,

however, I cannot conclude that the AAO acted in that way, or that it erred

when it applied a reasonable interpretation of the regulation. See Viscincaia, 4

F. Supp. 3d at 135 (upholding the AAO’s application of a criterion because

“neither the statute nor the regulation forecloses [the AAO’s] particular

interpretation”).

d. Role in Organizations

The petitioner may submit “[e]vidence that the alien has performed in a

leading or critical role for organizations or establishments that have a

distinguished reputation.” 8 C.F.R. § 204.5(h)(3)(viii). Ms. Krasniqi argues that

her work for the Albanian Film Festival so qualifies. (Pl. Opp. at 9.)12 The AAO,

however, found that she failed to provide evidence about “the nature of [her]

role,” such as her duties. (K.A.R. at 9.) The AAO also found that she failed to

address or provide evidence establishing that the festival had a distinguished

reputation. (Id.)13

I will affirm based on the AAO’s first conclusion regarding evidence of her

duties. Ms. Krasniqi’s evidence regarding her role for the festival was vague.

She relied mostly on the simple fact that she founded the festival. But the AAO

12 Ms. Krasniqi did not challenge the AAO’s finding on this criterion in her motion

for summary judgment but did so in opposition to the Government’s cross-motion for

summary judgment. Although a plaintiff’s failure to raise a claim in its motion for

summary judgment can forfeit that claim, I will consider this criterion, given the cross-

motion posture of this case. Paul v. Colvin, No. 12-CV-2046, 2013 WL 5797427, at *5–

6 (S.D. Cal. Oct. 28, 2013) (considering arguments not raised in plaintiff’s motion for

summary judgment but raised in plaintiff’s opposition to defendant’s cross-motion for

summary judgment); cf. United States v. Boggi, 74 F.3d 470, 478 (3d Cir. 1996)

(considering, in a cross-appeal, arguments raised in a reply brief because the opposing

party had a chance to respond)

13 Before the AAO, Ms. Krasniqi also relied on her role as president of a

production company to satisfy this criterion, which the AAO rejected. (K.A.R. at 9.) She

does not challenge the AAO’s finding before this Court, so I do not address it.

was within reason to ask for specific duties and decline to rely on a job title to

suffice as evidence for a “leading or critical role.” Noroozi, 905 F. Supp. 2d at

544–45 (affirming the AAO’s requirement of evidence of specific duties); see

Soni, 2016 WL 4154137, at *5 (affirming AAO’s decision declining to rely on

vague evidence). The AAO thus did not err in finding that the evidence before it

failed to meet a preponderance standard.

e. Membership in Associations

The petitioner may 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.” 8 C.F.R. § 204.5(h)(3)(ii).

In her initial submission to the Service, Ms. Krasniqi submitted evidence of her

membership in two organizations for Kosovar filmmakers. (K.A.R. at 77.) When

the Service requested more evidence about these organizations, Ms. Krasniqi

acknowledged that she “does not seem to meet this regulatory criteria [sic].” (Id.

at 88.) The Service, in its initial decision, determined that she failed to present

evidence on this criterion. (Id. at 70–71.)

When Ms. Krasniqi appealed to the AAO, her brief stated—in a

sentence—that there is no requirement to show that the two organizations

required outstanding achievements of their members. (Id. at 29.) The AAO

noted that the “[t]he record support[ed]” the Service’s finding on this criterion,

and Ms. Krasniqi had not “challenged this finding on appeal.” (K.A.R. at 5 n.3.)

Now before this Court, she argues—again, in a sentence—that there is no

“outstanding achievements” requirement, and that regardless, her evidence

suffices. (Pl. Br. at 34–35.) The Government argues that she has forfeited any

arguments for this criterion. (Gov’t Opp. at 11.)

I agree. Generally, parties must “give the agency an opportunity to

address an issue before seeking judicial review of that question,” a principle

known as “issue exhaustion.” Carr v. Saul, 141 S. Ct. 1352, 1358 (2021); see

also Schreiber v. Cuccinelli, 981 F.3d 766, 787 (10th Cir. 2020) (applying issue

exhaustion on review of petition denial before the Service and subsequent

appeal), pet. for cert. docketed, No. 21-94 (U.S. July 23, 2021); Sunshine Rehab

Servs., Inc. v. U.S. Citizenship & Immigr. Servs., No. 09-13605, 2010 WL

3325442, at *11 (E.D. Mich. Aug. 20, 2010) (same). Unless statutes or

regulations provide more specific rules, “courts decide whether to require issue

exhaustion based on an analogy to the rule that appellate courts will not

consider arguments not raised before trial courts.” Carr, 141 S. Ct. at 1358

(quotation marks and citation omitted). Under that rule, an argument on

appeal must “depend on the same legal rule or standard” and “depend on the

same facts” as the argument before the trial court. Spireas v. C.I.R., 886 F.3d

315, 321 (3d Cir. 2018) (citation omitted). As such, “[a] fleeting reference or

vague allusion to an issue will not suffice to preserve it.” In re Ins. Brokerage

Antitrust Litig., 579 F.3d 241, 262 (3d Cir. 2009); see also Zizi, 2021 WL

2826713, at *7 (declining to address criterion when argument was not

adequately raised before the AAO); Hristov, 2011 WL 4711885, at *9 (same); All

Pro Cleaning Servs., Inc. v. Dep’t of Labor, No. Civ.A. H-05-250, 2005 WL

4045866, at *13 (S.D. Tex. Aug. 26, 2005) (same). Further, if a party

affirmatively declines to press an argument below, that contention cannot form

the basis of a challenge on appeal. United States v. James, 955 F.3d 336, 344–

45 (3d Cir. 2020).

Ms. Krasniqi failed to preserve any argument regarding this criterion.

First, her brief before the AAO mentioned this criterion in just a sentence,

contained no substantive argument, and did not cite to supporting evidence.

This fleeting mention before the AAO was thus inadequate to preserve an

argument, so the AAO correctly found that she had not challenged the Service’s

finding. Second, she explicitly conceded before the Service that she did not

meet this criterion (K.A.R. at 88), so the AAO’s finding was also supported by

the principle that waived or conceded issues are not properly before an

appellate body. Finally, even if her arguments were administratively exhausted,

she forfeited them in this Court. Her summary judgment briefs are

undeveloped on this criterion and do not make any attempt to engage with the

evidence. Nor does she address the Government’s exhaustion argument.

Accordingly, the issue is not before me. Yates Real Estate, Inc. v. Plainfield

Zoning Bd. of Adjustment, 404 F. Supp. 3d 889, 913 n.28 (D.N.J. 2019).14

f. Comparable Evidence

The regulations provide that “[i]f the above standards [i.e., the (h)(3)

criteria] 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). Ms. Krasniqi argues that her “Woman of the Year” Award from

the Senate qualifies as “comparable evidence” of her “original contributions to

the field of film.” (Pl. Br. at 28–29.) The AAO, however, declined to consider the

award because § 204.5(h)(4) is used for cases in which the (h)(3) criteria are ill-

suited, if followed to the letter, to judging extraordinary ability for a particular

occupation. (K.A.R. at 9.)15 Ms. Krasniqi bore the burden to explain that the

(h)(3) criteria were ill-suited to a filmmaker. (Id.) Yet she made no argument to

that effect and instead argued that she satisfied the criteria. (Id.)

I agree with the AAO. To avail herself of § 204.5(h)(4), Ms. Krasniqi

needed to first show that one of the (h)(3) criteria was not readily applicable to

her field. Zizi, 2021 WL 2826713, at *8; Skokos, 2010 WL 11538054, at *5. She

did not, and instead assumed that § 204.5(h)(4) is a supplemental, rather than

alternative, provision. (K.A.R. at 37–38 (brief to the AAO).) That was incorrect.

What is more, and as the AAO noted, her arguments that she met each (h)(3)

criteria belied any argument that § 204.5(h)(4) should apply. Nor was there any

reason to think, based on the record, that filmmaking is a field ill-suited to the

14 Regardless, her argument that there is no “outstanding achievements”

requirement is plainly wrong in light of the text of the regulation.

15 For example, “an Olympic coach whose athlete wins an Olympic medal” could

qualify as comparable evidence of “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” under 8 C.F.R. § 204.5(h)(3)(iv). USCIS Adjudicators Field

Manual § 22.2[i].

(h)(3) criteria. Accordingly, the AAO’s rejection of her “Woman of the Year”

Award was reasonable.

* * *

To sum up, of the challenged findings, only one was arbitrary and

capricious. Because a remand requires that at least three were arbitrary and

capricious, Ms. Krasniqi cannot succeed on her APA claim regarding the denial

of her petition for an extraordinary ability visa.

B. Remaining Claims

Plaintiffs’ other claims may be dealt with briefly.

First, any claim that the Service wrongly denied an adjustment of status

for Ms. Krasniqi or Zogjani fails because such an adjustment requires a valid

visa, which, as the prior section explained, the AAO lawfully denied. 8 U.S.C.

§ 1255(a).

Second, the Complaint’s mandamus claim is duplicative of the APA

claims, which have been rejected for the reasons stated above. Mutasa, --- F.

Supp. 3d at ----, 2021 WL 1207482, at *3 n.4 (citing Thompson v. U.S. Dep’t of

Labor, 813 F.2d 48, 52 (3d Cir. 1987)).

Finally, the Complaint alleges that the Service’s “failure to properly

consider the actual evidence of record” violates Plaintiffs’ right to procedural

due process. (Compl. ¶ 39.) The Fifth Amendment provides that the federal

government cannot “deprive[]” a person “of life, liberty, or property, without due

process of law.” U.S. Const. amend. V. This means that the federal government

must provide “notice and an opportunity to be heard” before depriving someone

of a recognized interest. Dusenbery v. United States, 534 U.S. 161, 167 (2002)

(citation omitted); Dungan v. Slater, 252 F.3d 670, 676 (3d Cir. 2001).

The due process claim fails for two reasons. First, there is no precedent

recognizing a constitutionally protected interest in an extraordinary ability visa,

and it is doubtful that such an interest exists. See Castro v. U.S. Dep’t of

Homeland Sec., 835 F.3d 422, 445 (3d Cir. 2016) (“[A]n alien seeking initial

admission to the United States requests a privilege and has no constitutional

rights regarding his application.” (citation omitted)); Kinuthia, 2018 WL

1243955, at *4 (dismissing a procedural due process claim based on an

extraordinary ability visa denial); Hamal v. U.S. Dep’t of Homeland Sec., Civ. No.

19-2534, 2020 WL 2934954, at *4 n.4 (D.D.C. June 3, 2020) (doubting that an

extraordinary ability visa can support a procedural due process claim). Second,

and regardless, due process only requires “the opportunity to be heard at a

meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.

319, 333 (1976) (quotation marks omitted). Plaintiffs “received notice of the

possible denial of their petitions, were invited to present evidence and

arguments, and received a written, reasoned explanation for the denial. That is

sufficient to discharge the government’s obligation to afford due process.”

Giordano v. Garland, Civ. No. 20-07875, 2021 WL 3012863, at *5 (D.N.J. July

14, 2021) (citations omitted).

V. CONCLUSION

For the reasons set forth above, Plaintiffs’ motion for summary judgment

is denied, and the Government’s motion for summary judgment is granted.

A separate order will issue.

Dated: September 1, 2021

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge