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Churyumov v. U.S. Citizenship And Immigration Services

United States District Court, W.D. Washington, Seattle

November 7, 2019

OLEG CHURYUMOV, Plaintiff,
v.
U.S. CITZENSHIP AND IMMIGRATION SERVICES, Defendants.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT AND LEAVE TO AMEND

          RICHARD A. JONES, JUDGE

         I. INTRODUCTION

         Before the Court are the motions for summary judgment filed by Plaintiff Oleg Churyumov and Defendant U.S. Citizenship and Immigration Services (“USCIS”) and a motion to amend filed by Churyumov. Dkt. ## 20, 22, 25. For the reasons below, the Court GRANTS USCIS's motion and DENIES Churyumov's motions.

         II. BACKGROUND

         Plaintiff Oleg Churyumov challenges the decision by USCIS denying his petition for an employment-based immigrant visa for aliens of extraordinary ability. Churyumov is a citizen and native of Russia who arrived in the United States on February 16, 2016. CAR 627-32. He completed an immigrant visa petition, Form I-140, as an alien of extraordinary ability, on or about February 22, 2016. CAR 633. Churyumov contends that he has an extraordinary ability in the field of business, specifically in the hospitality industry. CAR 627-32, 648-49. Churyumov claims that he is the first in Russia to apply “capsule technology” in a hostel setting. CAR 648. A “sleep capsule” is a pod where a guest can sleep, rest, or watch television and gained popularity in Japan and China during the twentieth century. Id. On March 7, 2016, USCIS issued a Request for Evidence. CAR 8-15. Churyumov submitted his response on or about May 16, 2016. CAR 16-626. USCIS denied his petition in a decision dated June 6, 2016. CAR 1-7.

         USCIS found that Churyumov failed to satisfy his burden of proof pursuant to 8 U.S.C. § 1361. Notably, USCIS determined that Churyumov had not established “sustained national or international acclaim, ” or achievements indicating that he “is one of that small percentage who has risen to the very top of the field of endeavor.” CAR 1, 5-6. USCIS also found that also failed to satisfy the statutory requirement under 8 U.S.C. § 1153(b)(1)(A)(ii) that he is coming to the United States to work in his field of extraordinary ability. CAR 1, 6-7.

         On June 9, 2018, Churyumov filed a complaint requesting that this Court “revoke the USCIS decision and approve Plaintiff's I-140 form.” Dkt # 1 at 5. He filed his motion for summary judgment on April 19, 2019. Dkt. # 20. USCIS filed a response and cross-motion for summary judgment on May 5, 2019. Dkt. # 21.

         III. LEGAL STANDARD

         The review of a final agency action is governed by the APA under an “arbitrary and capricious” standard. 5 U.S.C. § 706(2)(A); Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1401 (9th Cir. 1995). In other words, an agency's decision should be overturned if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Id. In evaluating an agency's decision under this standard, “[courts] ask whether the agency ‘considered the relevant factors and articulated a rational connection between the facts found and the choice made.' ” Natural Res. Def. Council v. U.S. Dep't of the Interior, 113 F.3d 1121, 1124 (9th Cir. 1997) (quoting Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of the Navy, 898 F.2d 1410, 1414 (9th Cir. 1990)). The standard is “highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000).

         Under the APA, the district court's review is usually limited to the administrative record. 5 U.S.C. § 706; see also Cnty. of Los Angeles v. Shalala, 192 F.3d 1005, 1011 (D.C. Cir. 1999) (when reviewing final agency action, the district court is not managing a “garden variety civil suit, ” but rather “sits as an appellate tribunal”). Therefore, the usual “genuine dispute of material fact” standard for summary judgment does not apply in an APA case. Rather, summary judgment functions as a mechanism for determining as a matter of law whether the administrative record supports the agency's decision and whether the agency complied with the APA. Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985).

         IV. DISCUSSION

         A. Motions for Summary Judgment

         Pursuant to 8 U.S.C. § 1153(b)(1)(A), aliens may apply for a visa on the basis of “extraordinary ability.” The INA does not define “extraordinary ability.” Abilities in the “sciences, arts, education, business, or athletics” qualify. 8 U.S.C. § 1153(b)(1)(A)(i). “Sustained national or international acclaim” is a hallmark of extraordinary ability, as are achievements that “have been recognized in the field through extensive documentation.” Id. Federal regulations explain that “extraordinary ability” is “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 alien can prove an extraordinary ability in one of two ways. The first is “evidence of a one-time achievement (that is, a major, international recognized award).” 8 C.F.R. § 204.5(h)(3). The second way to prove extraordinary ...


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