Mishra v. Richardson

PRADEEP MISHRA, Plaintiff, v. GREGORY A. RICHARDSON, et al., Defendants.

1:20-cv-991 (LMB/TCB)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

April 20, 2021

MEMORANDUM OPINION

Before the Court are the parties' motions for summary judgment, which have been fully briefed. Finding that oral argument will not advance the decisional process, the motions will be resolved on the materials within the record. For the reasons discussed below, defendants' Motion for Summary Judgment [Dkt. No. 21] will be granted, and plaintiff's Motion for Summary Judgment [Dkt. No. 19] will be denied.

I. BACKGROUND

Pradeep Mishra ("plaintiff" or "Mishra"), a business analyst at CFI CapitalOne Services, LLC ("Capital One"), a subsidiary of Capital One Financial Corporation, has filed a Form I-140 Petition for an Immigrant Worker ("EB-1A petition"), which is available only for aliens of "extraordinary ability," under 8 U.S.C. § 1153(b)(1)(A). Mishra is a citizen of India who resides in Ashburn, Virginia and seeks to remain in the United States permanently.

A. Statutory Background

An alien seeking to obtain a visa based on extraordinary ability bears the burden of demonstrating three criteria:

(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. § 1153(b)(1)(A)(i)-(iii). Because the designation is so desirable, the definition of "extraordinary ability" is "strict." Visinscaia v. Beers, 4 F. Supp. 3d 126, 131 (D.D.C. 2013). An applicant for such designation can show his eligibility in one of two ways. First, he can show "evidence of a one-time achievement (that is, a major, international recognized award)." 8 C.F.R. § 204.5(h)(3). The Nobel Prize is the "quintessential" example of such an award. Kazarian v. USCIS, 596 F.3d 1115, 1119 (9th Cir. 2010). Second, the applicant can qualify by documenting at least three lesser achievements from an enumerated list. See 8 C.F.R. § 204.5(h)(3). Plaintiff's application provided materials relevant to three of these lesser achievements:

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 specialization for which classification is sought; . . .

viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; . . .

ix) "Evidence that the alien has commanded a high salary or other significantly high remuneration or services, in relation to others in the field."

8 C.F.R. § 204.5(h)(3)(iv), (viii), (ix). If the applicant makes such a showing, the United States Citizenship and Immigration Services ("USCIS") will then undertake a full merits analysis of the record to determine whether the totality of the evidence shows "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, and that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." Kazarian, 596 F.3d at 1119-20.¹

B. Procedural History

On April 10, 2020, Mishra filed his EB-1A petition. The USCIS issued a request for additional evidence on June 30, 2020, to which Mishra timely responded. On July 24, 2020, the USCIS denied Mishra's EB-1A petition on the grounds that he had not satisfied the minimum three regulatory criteria for establishing extraordinary ability. Although the USCIS found that Mishra had been a judge of others' work and performed a leadership role in an organization of distinguished reputation, it also found that Mishra had not shown that he commanded a high salary in relation to others in the field. Mishra sought review of that decision under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), by filing a complaint in this court on August 25, 2020. On October 1, 2020, the USCIS sua sponte withdrew its original decision and issued a Notice of Intent to Deny Mishra's petition, allowing Mishra to submit additional evidence, which he did.

The USCIS issued a new decision on November 19, 2020 in which it found that although Mishra met three lesser achievements by serving as a judge of the Stevie awards in 2018 and 2019, holding a leading or critical role at Capital One, and commanding a high salary relative to others, he had not met his burden of showing "sustained national or international acclaim" and that he was one of the small percentage who had risen to the very top of his field of endeavor. [Dkt. No. 18-1] at 9. The decision reviewed the letters submitted by Mishra's "personal and professional acquaintances," internal awards received from Capital One, Mishra's salary, letters and releases regarding judging the Stevie Awards for the 2018 and 2019 International BusinessAwards programs, and expert opinion letters from Arthur C. McAdams and Stephen J. Linenberger.

On December 17, 2020, plaintiff filed the pending Amended Complaint, [Dkt. No. 14], seeking review of USCIS's November 19, 2020 final decision denying his petition. That decision is the subject of the parties' motions for summary judgment.

II. DISCUSSION

A. Standard of Review

Under the APA, 701 U.S.C. § 701, et seq., a court may only set aside a final agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An action is arbitrary and capricious if the agency "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. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). "Review under this standard is highly deferential," and there is a "presumption in favor of finding the agency action valid." Ohio Valley Envtl. Coal v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009). Accordingly, the "ultimate standard of review" for an APA case is "narrow," and the court is "not empowered to substitute its judgment for that of the agency." Id. If the agency "has examined the relevant data and provided an explanation of its decision that includes a 'rational connection between the facts found and the choice made,'" then "deference is due" to the agency's decision. Id.

"The focal point for judicial review [under the APA] should be the administrative record already in existence." SourceAmerica v. United States Dep't of Educ., 368 F. Supp. 3d 974, 986 (E.D. Va. 2019) (alterations in original) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)),vacated in part on other grounds by 826 F. App'x 272 (2020). Under Fed. R. Civ. P. 56(a), summary judgment is appropriate where 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."

B. Analysis

The defendants argue that because the USCIS examined the evidence and provided a "rational connection between the facts in the record and its decision," the decision is entitled to deference under the APA. Ohio Valley, 556 F.3d at 192. The defendants' position is correct, as the USCIS's decision clearly articulated "a rational connection between the facts found and the choice made" and is therefore entitled to deference.

Plaintiff complains at length about the USCIS's analysis of whether he met three of the factors enumerated in 8 C.F.R. § 204.5(h)(3). [Dkt. No. 19-1] at 12-17. Because in its November 19, 2020 final decision the USCIS found that plaintiff met these three criteria, his complaints about the USCIS's analysis of the three factors are irrelevant. Soni v. United States, No. 11-2431, 2016 WL 4154137, at *4 (D.N.J. Aug. 2, 2016) (finding irrelevant the petitioner's claim that the USCIS erred in failing to credit certain evidence supporting a criterion that the USCIS acknowledged the petitioner had met).² To the extent plaintiff intended arguments about plaintiff's qualifications to apply as well to the full merits analysis, they are addressed below.

Plaintiff submitted multiple letters from colleagues and former colleagues at Capital One. Although he highlights that some of the letters are from people working at rival banks, the defendants correctly observe that these letters are from former colleagues who knew plaintiff from working together at Capital One. The USCIS Adjudicator Field Manual ("AFM") explains that "many" extraordinary ability petitions contain "letters of endorsement," which are "not without weight," but should not "form the cornerstone of a successful claim" for the classification, and "should be corroborated by documentary evidence in the record." AFM at 48, available at https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm22-external.pdf. "The relationship or affiliation between the beneficiary and the witness is also a factor to consider when evaluating the significance of the witnesses' statements." AFM at 49. Indeed, "[i]t is generally expected that an individual whose accomplishments have garnered sustained national or international acclaim would have received recognition for his or her accomplishments well beyond the circle of his personal and professional acquaintances." AFM at 49. Plaintiff's arguments fall exactly into what the AFM cautions against: plaintiff submitted letters only from people within his circle of professional...