Kazarian v. US Citizenship

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

POGHOS KAZARIAN, 

Plaintiff-Appellant,

No. 07-56774

v.

D.C. No.

US CITIZENSHIP AND IMMIGRATION  CV-07-03522-R-E

SERVICES, a Bureau of the

ORDER AND

Department of Homeland Security;

OPINION

JOHN DOES, 1 through 10,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

December 9, 2008—Pasadena, California

Filed March 4, 2010

Before: Harry Pregerson, Dorothy W. Nelson and

David R. Thompson, Circuit Judges.

Opinion by Judge D.W. Nelson;

Concurrence by Judge Pregerson

3429

3432 KAZARIAN v. USCIS

COUNSEL

Ruben N. Sarkisian, Glendale, California, for plaintiff-

appellant Poghos Kazarian.

Craig W. Kuhn and Elizabeth J. Stevens, Office of Immigra-

tion Litigation, Department of Justice, Washington, D.C.; for

defendant-appellee U.S. Citizenship & Immigration Services.

ORDER

The opinion with dissent filed on September 4, 2009, and

published at 580 F.3d 1030 (9th Cir. 2009), is withdrawn and

superceded by the opinion filed concurrently herewith.

With the filing of the new opinion, appellant’s pending

petition for rehearing/petition for rehearing en banc is

DENIED as moot, without prejudice to refiling a subsequent

petition for rehearing and/or petition for rehearing en banc.

See 9th Cir. G.O. 5.3(a).

KAZARIAN v. USCIS 3433

OPINION

D.W. NELSON, Senior Circuit Judge:

Poghos Kazarian appeals the District Court’s grant of sum-

mary judgment to the United States Citizenship and Immigra-

tion Service (“USCIS”), finding that the USCIS’s denial of an

“extraordinary ability” visa was not arbitrary, capricious, or

contrary to law. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 31, 2003, Poghos Kazarian, a thirty-four-

year-old native and citizen of Armenia, filed an application

for an employment-based immigrant visa for “aliens of

extraordinary ability” (Form I-140) contending that he was an

alien with extraordinary ability as a theoretical physicist.

Kazarian received a Ph.D in Theoretical Physics from

Yerevan State University (“YSU”) in Yerevan, Armenia, in

1997. From 1997 to 2000, he remained at YSU as a Research

Associate, where, among other things, he “reviewe[d] [the]

diploma works of the Department’s graduates.”

At YSU, Kazarian specialized in non-Einsteinian theories

of gravitation. According to a colleague, “[t]his work offered

a mechanism for the control of solutions’ accuracy, which

guarantees the accuracy of calculations in many theories of

gravitation.” Kazarian “solve[d] [the] more than 20 year[ ] old

problem of construction of the theory, satisfying the cosmog-

ony conception of worldwide acknowledged scientist, acade-

mician V.A. Hambartsumian.”

Since 2000, Kazarian has served as a Physics / Math / Pro-

gramming Tutor, an Adjunct Physics and Mathematics

Instructor, and a Science Lecture Series speaker at Glendale

3434 KAZARIAN v. USCIS

Community College (“GCC”). Between 2000 and 2004,

Kazarian’s work at GCC was on a volunteer basis.

In support of his application, Kazarian submitted several

letters of reference. The first reference was a letter from Dr.

Kip S. Thorne, the Feynman Professor of Theoretical Physics

at California’s Institute of Technology. Dr. Thorne, who

worked in the same research group as Kazarian, stated that he

had “formed a good opinion of Dr. Kazarian’s research. It is

of the caliber that one would expect from a young professor

at a strong research-oriented university in the United States.”

Kazarian also provided letters from professors at YSU, stating

that Kazarian “possesse[d] great ability and considerable

potency in science,” was “a young scientist with enough sci-

entific potential,” had “high professionalism,” and had “dis-

played himself as exceptionally diligent, hard-working, [and]

highly qualified.” Finally, Kazarian submitted three letters

from colleagues at GCC praising his hard work and active

participation at GCC.

Kazarian also noted that he had authored a self-published

textbook, titled “Concepts in Physics: Classical Mechanics.”

According to one of his colleagues at GCC, the book “is cer-

tain to be required reading in many secondary schools, col-

leges and universities throughout the country.” Kazarian,

however, presented no evidence that the book was actually

used in any class. Kazarian also submitted two scholarly arti-

cles where the authors acknowledged him for his useful scien-

tific discussions. Kazarian also submitted his resume, which

listed six publications in Astrophysics that he had authored or

co-authored, as well as one e-print published in the public

web archives of the Los Alamos National Laboratory.

Finally, Kazarian presented evidence of his Science Lecture

Series at GCC. His resume also listed lectures at the 17th and

20th Pacific Coast Gravity Meetings, the Conference on

Strong Gravitational Fields at UC Santa Barbara, the 8th

International Symposium on the Science and Technology of

KAZARIAN v. USCIS 3435

Light Sources, and the Foundations of Gravitation and Cos-

mology, International School-Seminar.

In August 2005, the USCIS denied the petition. Kazarian

appealed the denial to the Administrative Appeals Office

(“AAO”). The AAO dismissed the appeal, finding that

Kazarian failed to satisfy any of the evidentiary criteria set

forth in the relevant “extraordinary ability” visa regulations.

Having exhausted his administrative remedies, Kazarian filed

a complaint in the Central District of California. The District

Court granted the USCIS’s motion for summary judgment,

and Kazarian timely appealed to this court.

STANDARD OF REVIEW

This court “review[s] the entry of summary judgment de

novo.” Family Inc. v. U.S. Citizenship & Immigration Servs.,

469 F.3d 1313, 1315 (9th Cir. 2006). “However, the underly-

ing agency action may be set aside only if ‘arbitrary, capri-

cious, an abuse of discretion, or otherwise not in accordance

with law.’ ” Id. (quoting 5 U.S.C. § 706(2)(A)). “We have

held it an abuse of discretion for the Service to act if there is

no evidence to support the decision or if the decision was

based on an improper understanding of the law.” Tongatapu

Woodcraft Hawaii Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th

Cir. 1984) (internal quotations omitted).

“In circumstances where an agency errs, we may evaluate

whether such an error was harmless.” Gifford Pinchot Task

Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1071

(9th Cir. 2004); see 5 U.S.C. § 706. “In the context of agency

review, the role of harmless error is constrained. The doctrine

may be employed only ‘when a mistake of the administrative

body is one that clearly had no bearing on the procedure used

or the substance of decision reached.’ ” Gifford Pinchot, 378

F.3d at 1071 (citing Buschmann v. Schweiker, 676 F.2d 352,

358 (9th Cir. 1982)) (emphasis added by the Gifford Pinchot

court). “We will not usually overturn agency action unless

3436 KAZARIAN v. USCIS

there is a showing of prejudice to the petitioner.” Safari Avia-

tion Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir. 2002).

DISCUSSION

A. THE “EXTRAORDINARY ABILITY” VISA

[1] Pursuant to 8 U.S.C. § 1153(b)(1)(A), aliens may apply

for a visa on the basis of “extraordinary ability.” An alien can

prove an extraordinary ability in one of two ways. The first

is “evidence of a one-time achievement (that is, a major, inter-

national recognized award).” 8 C.F.R. § 204.5(h)(3). Receipt

of the Nobel prize is the quintessential example of a major

award. H.R. Rep. No. 101-723(I & II) (1990), reprinted in

1990 U.S.C.C.A.N. 6710, 6739. Kazarian concedes that he

has won no such prize.

The second way to prove extraordinary ability is to provide

evidence of at least three of the following:

(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 profes-

sional 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 indi-

vidually or on a panel, as a judge of the work of oth-

KAZARIAN v. USCIS 3437

ers in the same or an allied field of specification for

which classification is sought;

(v) Evidence of the alien’s original scientific, schol-

arly, artistic, athletic, or business-related contribu-

tions 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 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 per-

forming arts, as shown by box office receipts or

record, cassette, compact disk, or video sales.

8 C.F.R. § 204.5(h)(3). If a petitioner has submitted the requi-

site evidence, USCIS determines whether the evidence dem-

onstrates 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.” 8 C.F.R.

§ 204.5(h)(3). Only aliens whose achievements have garnered

“sustained national or international acclaim” are eligible for

an “extraordinary ability” visa. 8 U.S.C. § 1153(b)(1)(A)(i).

3438 KAZARIAN v. USCIS

The “extraordinary ability” visa can be better understood in

context. Under the Immigration Act of 1990, thousands of

employment-based visas were created according to three

employment preferences. Pub. L. No. 101-649, 101 Stat.

4978. “Aliens with extraordinary ability” are “priority work-

ers” and have the first preference. 8 U.S.C. § 1153(b)(1).

“Extraordinary ability” is distinct from “exceptional abili-

ty,” however, which receives second preference. Compare id.

§ 1153(b)(1)(A) (emphasis added), with id. § 1153(b)(2)

(emphasis added).1 To qualify for the “exceptional ability”

visa, a petitioner must make a lesser showing of ability, and

need only show three of the following:

(A) An official academic record showing that the

alien has a degree, diploma, certificate, or similar

award from a college, university, school, or other

institution of learning relating to the area of excep-

tional ability;

(B) Evidence in the form of letter(s) from current or

former employer(s) showing that the alien has at

least ten years of full-time experience in the occupa-

tion for which he or she is being sought;

(C) A license to practice the profession or certifica-

tion for a particular profession or occupation;

(D) Evidence that the alien has commanded a salary,

or other remuneration for services, which demon-

strates exceptional ability;

(E) Evidence of membership in professional associa-

tions; or

1

Skilled workers, professionals, and “other workers” make up the third

preference. Id. § 1153(b)(3).

KAZARIAN v. USCIS 3439

(F) Evidence of recognition for achievements and

significant contributions to the industry or field by

peers, governmental entities, or professional or busi-

ness organizations.

8 C.F.R. § 204.5(k)(3)(ii).

[2] To qualify for an “exceptional ability” visa, however,

the alien must also provide evidence that his services are

sought by a United States employer. Id. The “extraordinary

ability” visa thus has considerable advantages. Unlike the

“exceptional ability” visa petition, the “extraordinary ability”

petition is not dependent on an actual offer for employment

in the United States, and is exempt from the time-consuming

labor certification process, which requires that employers first

test the marketplace for existing qualified domestic workers.

Compare id. § 204.5(h)(3)(5), with id. § 204.5(k)(4).

[3] Interpretation of the statutory and regulatory require-

ments for the “extraordinary ability” visa presents a question

of first impression for this court. The scant caselaw indicates

that “[t]he regulations regarding this preference classification

are extremely restrictive.” Lee v. Ziglar, 237 F. Supp.2d 914,

918 (N.D. Ill.2002) (finding that “arguably one of the most

famous baseball players in Korean history” did not qualify for

the visa as a baseball coach for the Chicago White Sox

because his acclaim was limited to his skills as a player and

not as a coach); cf. Grimson v. INS, 934 F.Supp. 965, 969

(N.D. Ill. 1996) (finding denial arbitrary and capricious where

NHL hockey enforcer was one of the top three players in the

world and agency improperly discounted the importance of

the enforcer position); Muni v. INS, 891 F.Supp. 440 (N.D. Ill.

1995) (finding the agency improperly discounted evidence for

an NHL hockey player who won the Stanley Cup three times,

won “most underrated defenseman,” was paid more than the

average NHL player, submitted numerous articles establishing

his stature in the hockey world, and provided affidavits from

eight renowned hockey players stating that he was highly

3440 KAZARIAN v. USCIS

regarded); Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich.

1994) (finding denial was arbitrary and capricious where

Albanian physician won a national award, published a medi-

cal dictionary and numerous articles, was responsible for gen-

eral health projects, and served as an adjunct professor);

Matter of Price, 20 I. & N. Dec. 953, 955-56 (BIA 1994)

(granting the visa petition to a professional golfer who won

the 1983 World Series of Golf and the 1991 Canadian Open,

ranked 10th in the 1989 PGA Tour, collected $714,389 in

1991, provided numerous affidavits from well-known and cel-

ebrated golfers, and received widespread major media cover-

age).

B. APPLICATION TO KAZARIAN

The AAO found that Kazarian did not meet any of the reg-

ulatory criteria. Only four of the ten are at issue in this appeal.

We find that the AAO erred in its consideration of two of

these issues.

1. Authorship of Scholarly Articles in the Field of

Endeavor

Pursuant to 8 C.F.R. § 204.5(h)(3)(vi), Kazarian submitted

proof of his six articles in Astrophysics and his e-print in the

Los Alamos National Laboratory archives, but did not demon-

strate that other scholars had cited to his publications. The

AAO held that without evidence of such citations, Kazarian’s

articles did not meet the regulatory definition of evidence,

because “publication of scholarly articles is not automatically

evidence of sustained acclaim” and “we must consider the

research community’s reaction to these articles.”

[4] The AAO’s conclusion rests on an improper under-

standing of 8 C.F.R. § 204.5(h)(3)(vi). Nothing in that provi-

sion requires a petitioner to demonstrate the research

community’s reaction to his published articles before those

articles can be considered as evidence, and neither USCIS nor

KAZARIAN v. USCIS 3441

an AAO may unilaterally impose novel substantive or eviden-

tiary requirements beyond those set forth at 8 C.F.R. § 204.5.

Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir.

2008). While other authors’ citations (or a lack thereof) might

be relevant to the final merits determination of whether a peti-

tioner is at the very top of his or her field of endeavor, they

are not relevant to the antecedent procedural question of

whether the petitioner has provided at least three types of evi-

dence. 8 C.F.R. § 204.5(h)(3). “If the agency intended to

impose [peer citations] as a threshold requirement, we have

little doubt that such records would have been included

among the detailed substantive and evidentiary requirements

set forth at 8 C.F.R. § 204.5[(h)(3)(i)-(x)].” Love Korean

Church, 549 F.3d at 758.

2. Participation as a Judge of the Work of Others

Pursuant to 8 C.F.R. § 204.5(h)(3)(iv), Kazarian submitted

proof that he was a judge of graduate-level diploma works at

Yerevan State University. The AAO held that “reviewing

‘diploma works’ for fellow students at one’s own university

is not persuasive evidence of acclaim beyond that university,”

and that absent “evidence that the petitioner served as an

external dissertation reviewer for a university with which he

is not otherwise affiliated,” Kazarian’s submission did not

meet the regulatory definition of evidence.

[5] The AAO’s conclusion rests on an improper under-

standing of 8 C.F.R. § 204.5(h)(3)(iv). Nothing in that provi-

sion suggests that whether judging university dissertations

counts as evidence turns on which university the judge is

affiliated with. Again, while the AAO’s analysis might be rel-

evant to a final merits determination, the AAO may not uni-

laterally impose a novel evidentiary requirement. Love

Korean Church, 549 F.3d at 758.

3442 KAZARIAN v. USCIS

3. Evidence of Original Scientific or Scholarly

Contributions of Major Significance in the Field of

Endeavor

[6] Pursuant to 8 C.F.R. § 204.5(h)(3)(v), Kazarian submit-

ted letters from physics professors attesting to his contribu-

tions in the field. The AAO found that his contributions were

not major, and thus did not meet the regulatory definition of

evidence. The AAO’s analysis here is consistent with the rele-

vant regulatory language, and the AAO’s determination that

Kazarian did not submit material that met the regulatory defi-

nition of evidence set forth at 8 C.F.R. § 204.5(h)(3)(v) is nei-

ther arbitrary, capricious, nor an abuse of discretion.

4. Display of the Alien’s Work at Artistic Exhibitions or

Showcases

[7] Pursuant to 8 C.F.R. § 204.5(h)(3)(vii), Kazarian sub-

mitted proof that he had self-published a textbook, had given

lectures at a community college, and had made presentations

at conferences. The AAO found that none of these activities

were displays at artistic exhibitions or showcases. The AAO’s

analysis here is again consistent with the relevant regulatory

language, and the AAO’s determination that Kazarian did not

submit evidence as defined at 8 C.F.R. § 204.5(h)(3)(vii) is

neither arbitrary, capricious, nor an abuse of discretion.

C. HARMLESSNESS

Having found that the AAO erred by unilaterally introduc-

ing new evidentiary requirements into 8 C.F.R.

§ 204.5(h)(3)(iv) and (vi), we must now determine whether

these errors were prejudicial. 5 U.S.C. § 706; Tucson Herpe-

tological Soc. v. Salazar, 566 F.3d 870, 879-80 (9th Cir.

2009). They were not.

The AAO held that Kazarian provided zero of the ten types

of evidence set forth at 8 C.F.R. § 204.5(h)(3)(i)-(x). The

KAZARIAN v. USCIS 3443

AAO should have held that Kazarian presented two types of

evidence. The regulation requires three types of evidence. 8

C.F.R. § 204.5(h)(3).

[8] Whether an applicant for an extraordinary visa presents

two types of evidence or none, the proper procedure is to

count the types of evidence provided (which the AAO did),

and the proper conclusion is that the applicant has failed to

satisfy the regulatory requirement of three types of evidence

(as the AAO concluded). 8 C.F.R. § 204.5(h)(3). Here,

although the AAO committed clear legal error, that error

“clearly had no bearing” on either “the procedure used or the

substance of decision reached.” Gifford Pinchot, 378 F.3d at

1071 (quotations omitted).

CONCLUSION

[9] Although Kazarian appears to be a well-respected,

promising physicist, who may well have been able to qualify

for an “exceptional ability” visa, he instead applied for an

“extraordinary ability” visa, and presented only two of the

types of evidence set forth at 8 C.F.R. § 204.5(h)(3)(i)-(x),

and the “extraordinary ability” visa regulations require three.

The AAO’s conclusion that Kazarian presented zero types of

evidence was in error, but the error was harmless. Kazarian

failed to establish his eligibility for an “extraordinary ability”

visa, and the District Court correctly granted USCIS’ sum-

mary judgment motion.

AFFIRMED.

PREGERSON, Circuit Judge, concurring:

I am pleased to concur in Judge Nelson’s opinion. I write

separately, however, to emphasize the injustice perpetrated by

our immigration laws and system in this case. Dr. Poghos

3444 KAZARIAN v. USCIS

Kazarian received his Ph.D. in the field of theoretical physics

from Yerevan State University and, since arriving in the

United States, has continued to research and teach in this

challenging field. Starting around 2000, Dr. Kazarian partici-

pated in a research group headed by Dr. Kip Thorne at the

California Institute of Technology. Dr. Thorne, among others,

submitted a letter in support of Dr. Kazarian’s visa applica-

tion. Dr. Kazarian volunteers his teaching services at Glendale

Community College and has authored and published his own

physics textbook. Dr. Kazarian has received strong words of

praise from colleagues at Yerevan State University, Glendale

Community College, and the California Institute of Technol-

ogy. Dr. Kazarian’s contributions in the United States have

been undoubtedly valuable. Forcing Dr. Kazarian to depart

from our country would be undoubtedly wasteful and make

one think that there is something haywire in our system.

Although, as the opinion points out, Dr. Kazarian did not sub-

mit three of the types of evidence required for the “extraordi-

nary visa,” he would have been an excellent candidate for an

“exceptional ability” visa. Indeed, it was likely the error of an

ineffective lawyer that led Kazarian to apply for the wrong

visa in the first place.1

1

At oral argument, Dr. Kazarian’s current counsel represented to the

court that the attorney who started Dr. Kazarian on the path of applying

for this “extraordinary ability” visa was George Verdin. Verdin is listed

as being indefinitely suspended from practice before the Immigration Ser-

vice, the Immigration Courts, and the Board of Immigration Appeals.

Executive Office for Immigration Review, Office of General Counsel, List

of Currently Disciplined Practitioners (Aug. 11, 2009),

http://www.usdoj.gov/eoir/profcond/chart.htm. Verdin has also been dis-

barred by the Supreme Court of Hawai’i. Office of Disciplinary Counsel

v. Verdin, No. 22349 (Haw. Sept. 27, 2001). It is distressing how many

good people—including the highly educated and the minimally educated

—fall prey to disreputable lawyers known to the immigration system.