Visinscaia v. Napolitano ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SVETLANA VISINSCAIA,
Plaintiff,
v. Civil Action No. 13-223 (JEB)
RAND BEERS, et al.,
Defendants.
MEMORANDUM OPINION
This case calls on the Court to decide whether Plaintiff Svetlana Visinscaia is a great
ballroom dancer or merely a very good one. Visinscaia, a native and citizen of Moldova, was
admitted to the United States on August 5, 2011, on an F-1 visa to attend community college in
Virginia. Toward the end of her first year in this country, she filed a petition asking the United
States Customs and Immigration Service to reclassify her as an “alien of extraordinary ability,” a
status that would allow her to remain here as a competitive dancer and coach. As evidence of
her ability and renown as a dancer, Visinscaia submitted a number of published reports about her
performances, as well as awards and letters from colleagues and students attesting to her leading
role in the international “Dance Sport” community. USCIS nonetheless denied her application
on the ground that she did not satisfy the statutory requirements for an extraordinary-ability visa.
After exhausting her administrative options, Visinscaia filed suit in this Court under the
Administrative Procedure Act, alleging that the agency’s denial was arbitrary and capricious and
an abuse of discretion. The parties now cross-move for summary judgment. Although
Visinscaia has produced impressive evidence of her successful career as a dancer and dance
instructor, the Court cannot overturn the agency’s reasoned judgment.
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I. Background
Visinscaia was born in Moldova. See Administrative Record at 519 (Plaintiff’s
Passport). Showing promise as a dancer from a young age, she began to compete – and do very
well – in competitions throughout her country and in Eastern Europe generally. See AR 600-09
(Table Documenting Visinscaia’s Finishes at International Competitions Beginning at Age 11).
By 2005, the 15-year old had achieved a world-class ranking in the field of ballroom dance, and
in that year she won her first – and, to this point, only – world championship in the World Dance
Sport Federation Junior II Ten category. See AR 550-52 (Certificate Verifying 2005 Junior
Championship). Having reached the end of the road on the juniors’ circuit, Visinscaia continued
to compete but also began serving as an instructor at a local dance academy. See AR 51 (Formal
Complaint in Response to USCIS Request for Evidence). In 2011, she came to the United States
to study in Sterling, Virginia. See AR 470 (Plaintiff’s I-140 Petition).
Visinscaia began her quest for a new, long-term visa in May 2012, when she filed an I-
140 petition for classification as an alien of extraordinary ability in the field of ballroom dance.
See id. at 469. That Visinscaia would seek such status is unsurprising: federal law assigns
applicants of extraordinary ability the highest priority among employment-based visa applicants,
see 8 U.S.C. § 1153(b)(1)(A), and such aliens need not present evidence of a job offer from an
American employer before they are granted a visa. Kazarian v. USCIS, 596 F.3d 1115, 1120
(9th Cir. 2010) (citing 8 C.F.R. § 204.5(h)(5)).
In her initial filing and in response to a request for further evidence from USCIS,
Visinscaia produced documents purporting to show that she had achieved sustained success in
her field, including national and international awards, publications chronicling her achievements,
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letters of support from her students and coaches, and more. In light of the evidence, she argued,
she qualified as an immigrant of extraordinary ability and deserved a visa. See Compl., ¶ 34.
After an impressively thorough review of Visinscaia’s evidence, USCIS concluded that,
despite her various awards, her achievements did not rise to the level necessary to obtain an
extraordinary-ability visa. See AR 438 (USCIS Denial of Plaintiff’s I-140 Application). As a
result, it denied her application, and the agency’s Administrative Appeals Office affirmed that
decision on de novo review. See Compl., Exh. 4 (AAO Appeal Denial) at 14. In bringing suit,
Visinscaia contends that the agency’s final decision violates applicable law, and she asks the
Court to vacate that decision and to direct the agency to declare her an alien of extraordinary
ability. See Compl., ¶¶ 34-36. The parties have filed cross-motions for summary judgment, to
which the Court now turns.
II. Legal Standard
Plaintiff relies on the Administrative Procedure Act, 5 U.S.C. § 701 et seq., to challenge
USCIS’s denial of her visa application. Summary judgment is one mechanism for adjudicating
claims under the APA. See Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52
(D.D.C. 2010). Due to the limited role federal courts play in reviewing administrative decisions,
however, the typical Federal Rule 56 summary-judgment standard does not apply in such cases.
See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006) (citing Nat’l Wilderness
Inst. v. United States Army Corps of Eng’rs, 2005 WL 691775, at *7 (D.D.C. 2005)). Instead,
“the function of the district court is to determine whether or not . . . the evidence in the
administrative record permitted the agency to make the decision it did.” Id. (internal citations
omitted). Summary judgment thus serves as the mechanism for deciding, as a matter of law,
whether an agency action is supported by the administrative record and otherwise consistent with
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the APA standard of review. See Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002) (citing
Richards v. INS, 554 F. 2d 1173, 1177 (D.C. Cir. 1977)).
The APA “sets forth the full extent of judicial authority to review executive agency
action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513
(2009). It requires courts to “hold unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Under this “narrow” standard of review – which
appropriately encourages courts to defer to the agency’s expertise, see Motor Vehicle Mfrs.
Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) – an
agency is required to “examine the relevant data and articulate a satisfactory explanation for its
action including a rational connection between the facts found and the choice made.” Id.(internal quotation marks omitted). In other words, courts “have held it an abuse of discretion
for [an agency] to act if there is no evidence to support the decision or if the decision was based
on an improper understanding of the law.” Kazarian, 596 F.3d at 1118.
It is not enough, then, that the court would have come to a different conclusion from the
agency. See Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir. 2003). The
reviewing court “is not to substitute its judgment for that of the agency,” id., nor to “disturb the
decision of an agency that has examine[d] the relevant data and articulate[d] . . . a rational
connection between the facts found and the choice made.” Americans for Safe Access v. DEA,
706 F.3d 438, 449 (D.C. Cir. 2013) (internal quotation marks and citation omitted). A decision
that is not fully explained, moreover, may be upheld “if the agency’s path may reasonably be
discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286
(1974).
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III. Analysis
USCIS does not disagree that Visinscaia has been a successful competitive dancer for
more than a decade. See, e.g., Def. Mot. at 13 (noting that AAO concluded that at least one of
Visinscaia’s dance awards was nationally recognized). Merely achieving success, however, is
insufficient for someone to be granted extraordinary-ability status. Instead, to determine whether
Visinscaia qualifies, the agency – and this Court – must interpret and apply § 203(b)(1)(A) of the
Immigration and Nationality Act, codified at 8 U.S.C. § 1153. Although the INA does not define
“extraordinary ability” beyond the general recognition that abilities in the “sciences, arts,
education, business, or athletics” may qualify, see 8 U.S.C. § 1153(b)(1)(A)(i), the statute does
provide some oblique guidance. “Sustained national or international acclaim” is a hallmark of
extraordinary ability, for example, as are achievements that “have been recognized in the field
through extensive documentation.” Id. Federal regulations explain, further, that “extraordinary
ability” can be defined as “a level of expertise indicating that the individual is one of that small
percentage who have risen to the very top of the field of endeavor.” 8 C.F.R. § 204.5(h)(2).
The “extraordinary ability” designation is thus “extremely restrictive” by design. See
Lee v. Ziglar, 237 F. Supp. 2d 914, 919 (N.D. Ill. 2002); see also id. at 915, 918 (finding that
“arguably one of the most famous baseball players in Korean history” did not qualify for visa as
baseball coach for Chicago White Sox). Still, evidence of extraordinary ability is not impossible
to come by. See, e.g., Muni v. INS, 891 F. Supp. 440 (N.D. Ill. 1995) (finding that agency
improperly discounted evidence for NHL hockey player who had won Stanley Cup three times,
won “most underrated defenseman,” and been paid more than average NHL player); Matter of
Price, 20 I. & N. Dec. 953, 955-56 (BIA 1994) (granting visa petition of professional golfer who
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won 1983 World Series of Golf and 1991 Canadian Open, ranked 10th in 1989 PGA Tour,
collected $714,389 in 1991, and received widespread major media coverage).
To meet this strict definition, an alien must submit evidence that she has sustained
national or international acclaim and that her achievements have been recognized in the field of
expertise. See 8 C.F.R. § 204.5(h)(3). That evidence must include documentation of either (1)
“a one-time achievement (that is, a major, international [sic] recognized award),” 8 C.F.R. §
204.5(h)(3); or (2) at least three of the ten types of lesser achievements enumerated in the
regulations. See id. The Ninth Circuit – the only federal court of appeals to address the
substance of an “extraordinary-ability” challenge – has held that the regulations set out a two-
step test: If the alien satisfies her initial evidentiary burden – that is, if she proves that she has
met either of the requirements of § 204.5(h)(3) – USCIS must then decide, in a “final merits
determination” and weighing the documentation offered, whether the evidence demonstrates
extraordinary ability. See Kazarian, 596 F.3d at 1120-21. In practice, USCIS has endorsed that
holding. See USCIS Adjudicator’s Field Manual § 22.2(i)(i)(A); Noroozi v. Napolitano, 905 F.
Supp. 2d 535, 539 (S.D.N.Y. 2012) (noting that USCIS follows the Kazarian two-step method).
Plaintiff here argues that USCIS erred in three ways. First, she claims that the agency’s
finding that she lacked a qualifying “one-time” achievement was arbitrary and capricious. See
Compl., ¶ 33; Pl. Mot. at 6-10. Second, she contends that it was error for USCIS to conclude
that she had not satisfied at least three of the ten alternative evidentiary criteria. See Compl., ¶
33; Pl. Mot. at 10-25. Third, Visinscaia maintains that USCIS inexplicably departed from
established policies by failing to apply the Kazarian two-step method, which she argues the
agency has adopted as formal policy. See Compl., ¶ 32; Pl. Opp. and Reply at 4.
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As to the last point, the agency first responds that it is not bound by Kazarian, a Ninth
Circuit case of no precedential value in this Circuit. See Def. Mot. at 17-19. The Court need not
decide whether to follow Kazarian, however, because it agrees with USCIS that the agency
appropriately applied the standard articulated in that opinion. Indeed, the initial adjudicator
described Kazarian and its substantive holding several times in the course of his administrative
review, and at every turn he explained how his analysis fit into that framework. More
specifically, he first determined whether Visinscaia had submitted evidence to show that she had
received a major, one-time award or, alternatively, that she satisfied three of the ten other
criteria. See AR 3-4 (USCIS Request for Evidence); USCIS I-140 Denial at 431. Only then, he
observed, could he determine whether her documentation demonstrated that she was an alien of
extraordinary ability. See Request for Evidence at 4; USCIS I-140 Denial at 431. Because the
agency concluded that Plaintiff had not succeeded on the first Kazarian step, it had no need to
analyze the second. The Administrative Appeals Office repeated, adopted, and expanded upon
the initial adjudicator’s analysis. See AAO Appeal Denial at 4-16. Indeed, Visinscaia admits as
much in her Cross-Motion, noting that the AAO said that “it [did] not need to explain its
conclusion relating to the final merits determination.” Pl. Mot. at 26 (emphasis added). The
Court will thus confine its review to Visinscaia’s first two challenges.
A. One-Time Achievement
In extraordinary-ability cases, the burden is on the petitioner to provide sufficient
evidence of, among other things, a “one-time achievement (that is, a major, international [sic]
recognized award).” 8 C.F.R. § 204.5(h)(3). Plaintiff claims that her first-place finish at the
2005 World DanceSport Federation Championship in the Junior II Ten Dance category
constitutes such a one-time achievement that can satisfy her burden at this stage. See Compl., ¶
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19; Pl. Mot. at 6. In its January 2013 decision, however, the AAO concluded that the 2005
Championship did not qualify as a major achievement within the meaning of the agency’s
regulations. The AAO disagreed with Visinscaia’s argument, in part because its reading of the
legislative history behind § 204 of the INA – which mentioned the Nobel Prize as an example of
a major, one-time achievement, see H.R. Rep. No. 101-723, part 1, at 59 (Sept. 19, 1990) –
suggested that “the award must be internationally recognized in the alien’s field as one of the top
awards in that field.” AAO Appeal Denial at 9. Because (1) Visinscaia failed to produce
evidence that her award was “reported in top international media” and (2) “the competition was
limited to those younger than 15 years of age and was not open to the petitioner’s entire field,”
the AAO determined that the award was neither internationally recognized nor one of the top
awards in the field. In those circumstances, it could not qualify as a major international award
for the purpose of the § 204 inquiry. Id. at 8-9.
In her Motion for Summary Judgment, Visinscaia takes issue with that conclusion,
complaining that the agency improperly weighed the facts in the record. See Pl. Mot. at 11-13.
In particular, she contends that the agency should have concluded that her 2005 Championship
was a major prize because it was awarded by the World Dance Sport Federation, which the
International Olympic Committee recognizes as the top Dance Sport organization. See id. In
Plaintiff’s view, the fact that the award-bestowing entity is a prominent, international
organization is enough to render any of its awards “major” within the meaning of the INA and
the associated regulations. The agency, however, determined that the prestige of the granting
organization alone was not sufficient to outweigh other factors, including the lack of
international media coverage and the age-restricted nature of the award. See AAO Appeal
Denial at 7-8.
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The parties, it is clear, disagree not about whether Visinscaia won the award she claims to
have won, but rather about what constitutes a “major” international award for the purpose of the
statute. Neither the plain meaning of the statute’s words nor even common sense, unfortunately,
is of much help to a court attempting to draw a line between “major” and “lesser” awards. See
id. Critically, furthermore, nothing in the case law, the INA, or the regulations implementing the
statute explains how USCIS or a reviewing court is to differentiate between the two classes of
award. To be sure, in the debates leading to passage of the statute, one member of Congress
named the Nobel Prize as an example of a major, internationally recognized award that would by
itself demonstrate “extraordinary ability,” Kazarian, 596 F.3d at 1119 (citing 1990 U.S.C.C.A.N.
6710, 6739). But not even USCIS claims that an alien must win a Nobel Prize to qualify. (Nor,
for the record, does Plaintiff suggest that the 2005 Junior II Ten Championship is equivalent to
the Nobel.) Which of humanity’s thousands of other awards qualify as major international
awards, then, is “a question that the law does not answer.” Rijal v. U.S. Citizenship &
Immigration Servs., 772 F. Supp. 2d 1339, 1345 (W.D. Wash. 2011), affirmatively adopted by
683 F.3d 1030 (9th Cir. 2012). It is, instead, a question that Congress – in classic form –
entrusted to the administrative process to answer.
In reviewing that process, the Court looks for evidence that USCIS considered the
relevant factors and articulated a rational connection between the facts it found and the choice it
made. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. The agency did just that. It explicitly
considered the award and all of the evidence Visinscaia submitted to support her claim that it
was a major international award and then articulated a rational connection between those facts
and its conclusion that the award was not “major.” First, it discounted the media coverage of the
award, which amounted to one mention in a newspaper whose circulation is unknown (save for a
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self-promotional letter from the publisher). See AAO Appeal Denial at 9. As other courts have
noted, where an agency rejects evidence of a one-time achievement because that coverage
“appears to be of local or national nature . . . [and] does not reflect . . . recogni[tion] by the
general public,” there is a rational connection between the facts and the agency’s conclusion that
award was not major. Rijal, 772 F. Supp. 2d at 1345. Adding to its case, the agency reasoned
that an age-limited award in an esoteric field did not, on its face, look like a major award. See
AAO Appeal Denial at 7. Indeed, if an adult alien were seeking a visa based on his previous
world-class performance at pre-teen chess tournaments, USCIS would hardly be arbitrary in
determining that such achievement was too limited.
In short, the agency did precisely what the law requires: using its expertise, it considered
whether Visinscaia’s award satisfied her burden under the regulations. It concluded that the
award was not sufficient. That another decisionmaker might have come to a different conclusion
matters little. Unless the court can conclude that no rational adjudicator would have come to the
same conclusion – which it cannot do in this case – it must not disturb the agency’s decision.
See United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l
Union v. Pension Ben. Guar. Corp., 707 F.3d 319, 325 (D.C. Cir. 2013) (holding that where the
record shows that the agency duly considered the record evidence and explained why it found the
evidence lacking, the agency must prevail).
B. Alternative Criteria
Having failed to demonstrate a single major achievement, then, for Plaintiff to prevail,
she must prove that she satisfies at least three of the ten other criteria listed in the regulations.
See 8 C.F.R. § 204.5(h)(3). Visinscaia asserts that she clears the bar on four of those criteria.
See Compl., ¶ 20: (1) “[o]riginal artistic and athletic contributions of major significance in the
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field,” id. § 204.5(h)(3)(v); (2) “perform[ance] in a leading or critical role for organizations or
establishments that have a distinguished reputation,” id. § 204.5(h)(3)(viii); (3) “display of the
alien’s work . . . at artistic exhibitions or showcases,” id. § 204.5(h)(3)(vii); and (4) “receipt of
lesser nationally or internationally recognized prizes or awards,” id. § 204.5(h)(3)(i). (Plaintiff
also alleges in her Complaint that she satisfies a fifth criterion – “[p]ublished material about the
alien in professional or major trade publications or other major media,” id. § 204.5(h)(3)(iii) –
but she appears to have abandoned that argument on summary judgment, as she does not mention
it in any of her briefs.)
To support her claims, Visinscaia submitted evidence in a number of forms. USCIS
found such evidence insufficient, and Plaintiff challenges that decision. Unfortunately for
Visinscaia, however, her contentions on this front suffer from many of the same infirmities
discussed above.
1. Original Contribution
Visinscaia first objects to USCIS’s conclusion that she failed to prove that she has made
an original contribution to her field. See Compl., ¶ 23; Pl. Mot. at 19-23. In support of her claim
at the agency level, Visinscaia cited letters of support from numerous dance professionals
outlining her purported original contributions, including her use of “certain weight transfer
techniques which allow her to preserve her sterling technique and form, particularly through
individual transition pieces.” See AR 278 (Letter from Igor and Polina Pilipenchuk); see also
AR 757-59 (Letter from Natalia Oreschina); AR 760-64 (Letter from Gherman Mustuc); AR
765-786 (Letters from Egor Abashkin and Katia Kanevskaya); AR 787-806 (Letter from Igor
Dogoter and Natalia Gorshkova). She also provided documentation claiming generally that her
technique is “now being widely adopted by other competitors,” AR 287 (Letter from Bill
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Davies), and by her students. See AR 291 (Letter from Vladlen Oleineac); AR 307 (Letter from
Olga Grigorita).
The agency, however, concluded that none of these letters provided specific information
relating to the impact of Visinscaia’s dance technique on the field as a whole. See AAO Appeal
Denial at 9-11. The AAO noted that the regulatory requirement that the petitioner demonstrate
the “major significance” of any original contributions means that the petitioner’s work must
significantly affect her field of endeavor. See id. at 11 (citing 8 C.F.R. § 204.5(h)(3)(v)). It
agreed that many of Visinscaia’s support letters remarked on her unique dance technique, but it
also observed that none – even those submitted in response to the agency’s request for further
evidence – provided any detail as to whether specific studios or academies now use the technique
or whether specific top competitors have adopted it. Id. at 11.
Visinscaia, for her part, responds that the agency’s decision was “arbitrary” because it did
“not give[] any weight” to the letters. See Pl. Mot. at 21. Regarding the letters from other
dancers, however, the agency concluded that without specific evidence that Visinscaia’s
techniques were being used by others in the field, the letters were of little value. See AAO
Appeal Denial at 11. It similarly rejected the students’ letters because they either did not
mention Visinscaia’s techniques or mentioned them only in passing. See id. In short, the agency
did give some weight to the letters – just not the weight Visinscaia would prefer. In these
circumstances, the Court cannot conclude that the agency’s decision was arbitrary.
2. Leading or Critical Role
Similarly, the AAO concluded that Visinscaia failed to prove that she had played a
leading or critical role as an instructor at Dance Sport Club Codreanca, see AAO Appeal Denial
at 12-13, which Plaintiff claims is an organization of distinguished reputation in Moldova. See
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Pl. Mot. at 25. Visinscaia points to a letter from Petru Gozun, the founder of Dance Sport Club
Codreanca, see AR 838-39, as well as two articles discussing the history and prestige of the club.
See AR 412-27. The AAO questioned Visinscaia’s evidence, concluding that it did not establish
that she had served in a leading or critical role for the organization. See AAO Appeal Denial at
13. It observed, further, that Visinscaia had been an “instructor” at the Club and that the Gozun
letter did not specify how she had “contributed to the organization in a way that is significant to
the organization’s outcome” in that role. Id. In addition, just because this club may have a
distinguished reputation in Moldova does not necessarily mean that its renown spreads much
beyond the country’s borders.
Once again, Visinscaia is unhappy with the conclusions the agency drew from the record,
and she asks the Court to reweigh the evidence. Yet, the agency’s lengthy discussion of that
evidence, replete with examples from the record, demonstrates that it engaged in a reasoned
decisionmaking process, thus satisfying the lenient arbitrary-and-capricious standard of review.
Without sufficient detail regarding Plaintiff’s role at the organization, it was eminently
reasonable for the AAO to conclude that Visinscaia could not satisfy this criterion on the basis of
the letter alone. See Noroozi, 905 F. Supp. 2d at 544-45.
3. Exhibitions or Showcases
The AAO also rejected Visinscaia’s argument that her work has been displayed at artistic
exhibitions or showcases. See AAO Appeal Denial at 12. Visinscaia submitted documents
showing that she had performed numerous times at the National Palace of Moldova, see RFE
Response at 50, which, she claims, “correspond[s] to the Kennedy Center in Washington, D.C.”
Pl. Mot. at 23. The AAO, however, concluded that dance performances could not satisfy this
requirement. Instead, the agency asserted, “artistic exhibitions or showcases” are “limited to
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[presentations of] the visual arts,” where “tangible pieces of art . . . were on display.” AAO
Appeal Denial at 12. Because Visinscaia’s performances did not constitute that sort of
presentation, they could not be used to meet her burden under this criterion.
Visinscaia responds that “there is no such language in the statute, implementing
regulations, the legislative history, or agency memos to support the conclusion that this criterion
be restricted in this sense.” Pl. Mot. at 24. If she is right, though, this simply means that there is
a gap for the agency to fill. See Barnhart v. Walton, 535 U.S. 212, 218 (2002) (holding that
silence usually creates ambiguity the agency must resolve). Where that is the case, it is black-
letter law that the agency’s interpretation of its own regulation deserves deference. See Auer v.
Robbins, 519 U.S. 452, 461 (1997). Where neither the statute nor the regulation forecloses a
particular interpretation, moreover, deference is especially warranted. See St. Marks Place
Housing Co., Inc. v. Dep’t of Housing & Urban Dev’t, 610 F.3d 75, 83 (D.C. Cir. 2010). In
these circumstances, once again, the Court believes the agency’s interpretation and application of
the law – while certainly not the only plausible one – is reasonable.
4. Lesser Awards
Finally, Visinscaia claims that she satisfies the “lesser national and international awards”
criterion on the basis of her 2005 World Championship and her numerous other awards (usually
placement in the top two or three at a given event). See Pl. Mot. at 11-19; AR 550-52 (2005
Championship Certificate), 600-609 (Database Verifying Various Other Awards), 632-35
(same). Although the original USCIS adjudicator refused to allow that the World Championship
constituted a lesser international award, the AAO did. See AAO Appeal Denial at 7-8. The
AAO concluded, however, that none of Visinscaia’s other awards was nationally recognized, as
the record “contain[ed] no documentary evidence demonstrating that the petitioner’s competition
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placements are recognized beyond the presenting organizations . . . and are therefore
commensurate with nationally or internationally recognized prizes or awards for excellence in
the field.” Id. at 8. As the AAO noted, the record contained no evidence that the other awards
had “garner[ed] national or international recognition from the competition in which it is
awarded.” Id. at 8-9. There was no evidence, for example, that the newspaper and web sites to
which Plaintiff pointed as evidence of international attention had a large readership – or, indeed,
any readership at all. Id. Without evidence of how a larger audience viewed Plaintiff’s awards,
there was no way for the agency to evaluate whether those awards were recognized widely
enough to satisfy this criterion.
Because, in its view, Visinscaia had not won multiple national or international awards,
USCIS concluded that she had not satisfied the “lesser awards” criterion. That provision, the
agency argues, requires that the applicant have received “awards” – in the plural. See AAO
Appeal Denial at 9; Def. Mot. at 13 (quoting § 204.5(h)(3)(i)). Although USCIS’s reading of the
plain language of this regulation seems slightly strained, the Court might well believe deference
is required. It need not decide the question, however, as even if Visinscaia were to satisfy this
sole criterion, she would still fall short of the three necessary to reach the second phase of the
Kazarian analysis. In fact, this is true even if the Court were to hold that USCIS erred on two of
the four contested criteria.
IV. Conclusion
Despite the Court’s admittedly thin expertise in the field of competitive ballroom
dancing, it has little doubt that Svetlana Visinscaia is a very good ballroom dancer. But that is a
different question from whether USCIS acted arbitrarily when it denied her application for an
extraordinary-ability visa. Since the answer to that query is that the agency did not, USCIS must
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prevail in this matter. The Court, accordingly, will grant Defendants’ Motion for Summary
Judgment and deny Plaintiff’s. A contemporaneous Order to that effect will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: December 16, 2013
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