Nikolaos Skokos v. u.s. Department of Homeland Se

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 10 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
NIKOLAOS SKOKOS, No. 10-15337
Plaintiff - Appellant, D.C. No. 2:09-cv-00193-RLH-
PAL
v.
U.S. DEPARTMENT OF HOMELAND MEMORANDUM*
SECURITY; U.S. CITIZENSHIP AND
IMMIGRATION SERVICES; UNITED
STATES OF AMERICA; JANET
NAPOLITANO, in her official capacity
only as Secretary of U.S. Department of
Homeland Security,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief District Judge, Presiding
Argued and Submitted March 1, 2011
Tempe, Arizona
Before: CANBY, HAWKINS, and CLIFTON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Nickolaos Skokos (“Skokos”), a security consultant for Celine Dion, appeals
the district court’s summary judgment grant in favor of the defendants. We affirm.
The district court did not err by upholding the agency’s conclusion that Skokos
did not satisfy at least three criteria for “extraordinary ability” within one’s field of
expertise, as set forth in 8 C.F.R. § 204.5(h)(3)(i)-(x). Skokos did not present
evidence that he had made “original” contributions having a “major significance” in
his field of endeavor, as required by § 204.5(h)(3)(v). See Kazarian v. USCIS, 596
F.3d 1115, 1121-22 (9th Cir. 2010) (physicist who authored a self-published textbook,
published articles and lectured extensively satisfied criterion for authorship of
scholarly articles, but did not sufficiently establish that his work was of “major
significance” in the field of physics, as required by the original contributions
criterion).
Nor did the evidence demonstrate that Skokos commanded a high salary in
comparison to others in his field, as required by 8 C.F.R. § 204.5(h)(3)(ix). The only
evidence in the record of comparable salaries is that of the average “security guard.”
By Skokos’s own description, he was much more than a security guard, but a security
consultant with additional responsibilities of supervising other guards, arranging
security in other locales and foreign countries, and providing round-the-clock
protection to Ms. Dion and her family. The record is void of information regarding
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salaries for security consultants who perform similar work for musical artists,
celebrities, or other public figures. See In re Price, 20 I & N Dec. 953, 955 (BIA
1994) (considering professional golfer’s earnings versus other PGA Tour golfers);
see also Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (considering NHL
enforcer’s salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45
(N. D. Ill. 1995) (comparing salary of NHL defensive player to salary of other NHL
defensemen).1
Skokos’s remaining arguments were not presented to the agency and we decline
to reach them in the first instance. See Geo-Energy Partners-1983 Ltd. v. Salazar,
613 F.3d 946, 959 (9th Cir. 2010) (this court will not usually address issues which the
agency did not have an opportunity to consider, absent exceptional circumstances);
Marathon Oil Co. v. United States, 807 F.2d 759, 767-68 (9th Cir. 1986) (same).
AFFIRMED.
1
Although Skokos may have presented sufficient evidence that he performed
a critical role for a distinguished organization, 8 C.F.R. § 204.5(h)(3)(viii), any error
with respect to this criterion is harmless because Skokos cannot satisfy at least two
other regulatory requirements. See Kazarian, 596 F.3d at 1122.
3