Repaka v. Napolitano et al
Filing
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ORDER granting Defendants' 23 Motion for Summary Judgment; and Denying Plaintiff's Cross-Motion 24 for Summary Judgment. Signed by Judge Barry Ted Moskowitz on 1-6-2014. (cjb)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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SUNIL REPAKA,
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v.
Case No. 13-cv-05 BTM-RBB
Plaintiff/Petitioner,
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT
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RAND BEERS, Acting Secretary of
Homeland Security,
ALEJANDRO MAYORKAS, Director
of United States Citizenship and
Immigration Services, and
MARILYN WILES, Director, USCIS
Nebraska Service Center,
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Defendants.
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The parties have filed cross-motions for summary judgment. For the reasons set
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forth below, Plaintiff’s motion is DENIED and Defendants’ motion is GRANTED.
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I. BACKGROUND
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A.
Legal Framework: Exceptional Ability Visas
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The Immigration and Nationality Act (“INA”), as amended, provides for the
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issuance of visas to aliens “who are members of the professions holding advanced
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degrees . . . who because of their exceptional ability in the sciences, arts, or
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business, will substantially benefit prospectively the national economy.” 8 U.S.C. §
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1153(b)(2)(B)(i). An applicant for such a visa ordinarily must be sponsored by an
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American employer, though the INA provides the Attorney General1 with discretion
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to waive the job offer requirement if he “deems it to be in the national interest.” Id.
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Authorized agency officials may exercise that discretion within the bounds of the
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INA, applicable regulations, and governing decisions so long as their professional
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judgment is informed, reached, and announced consistent with those laws. Recent
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Past Pres. Network v. Latschar, 701 F. Supp. 2d 49, 61 (D.D.C. 2010).
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“Exceptional ability” is defined as “a degree of expertise significantly above
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that ordinarily encountered in the sciences, arts, or business.” 8 C.F.R. 204.5(k)(2).
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Neither the INA, nor regulations promulgated thereunder, define “national interest.”
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The Board of Immigration Appeals evaluates requests for a national interest waiver
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as follows: The petitioner must show (1) that he seeks employment in an area of
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substantial intrinsic merit, (2) that the proposed benefit will be national in scope,
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and (3) requiring a labor certification would negatively affect the national interest.
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Matter of New York State Dep’t of Trans., 22 I&N Dec. 215, 217-18, 1998 BIA
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LEXIS 26 (BIA Aug. 7, 1998) (“NYDOT”) (“Stated another way, the petitioner,
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whether the U.S. employer or the alien, must establish that the alien will serve the
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national interest to a substantially greater degree than would an available U.S.
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worker having the same minimum qualifications.”). NYDOT has been designated
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as “precedent” with respect to national interest waiver applications. See A.R. 568.
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See also Talwar v. INS, 2001 U.S. Dist. LEXIS 9248, *18 (S.D.N.Y. July 9, 2001).
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USCIS continues to apply NYDOT, as evidenced by the RFE (A.R. 453) and its
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decision (A.R. 559). The Court defers to this interpretation of “national interest.”
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The Homeland Security Act of 2002, P.L. 107-296 §§ 441, 451-56, transferred
this function to the Department of Homeland Security. The visa application sub judice
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(“USCIS”).
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See Chevron USA, Inc. V. Natural Resources Defense Council, 467 U.S. 837, 842-
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43 (1994); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (deferring to a Board
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of Immigration Appeals order). See also Montana Wilderness Ass’n v. Connell,
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725 F.3d 988, 994 (9th Cir. 2013). The waiver denial is reviewable under the
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Administrative Procedures Act (“APA”) and 28 U.S.C. § 1331. Mikhailik v.
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Ashcroft, Civ. No. 04-0904, 2004 US Dist. LEXIS 20379, *13-16, 21 2004 WL
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2217511, *2 (N.D.Cal. Oct. 1, 2004) (waiver decision is not a matter of unfettered
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discretion under 5 U.S.C. § 701(a)(2) because the designation of NYDOT as
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precedent constitutes a settled course of adjudication “entitled to substantial
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deference”) (citations omitted). See also Spencer Enters. V. United States, 345 F.3d
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683, 688 (9th Cir. 2003) (“Even where statutory language grants an agency
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unfettered discretion, its decision may nonetheless be reviewed if regulations or
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agency practice provide a meaningful standard by which this court may review its
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exercise of discretion.”); O'Neill v. Cook, 828 F. Supp. 2d 731, 736 (D. Del. 2011).
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B.
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Facts
On January 25, 2010, Mr. Repaka filed an employment based immigrant
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petition (“Form I-140") pursuant to INA § 203(b)(2), requesting classification as an
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alien of exceptional ability. A.R. 1. Mr. Repaka sought a waiver of the labor
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certification requirement, as his petition was not sponsored by an employer. In
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support of his waiver request, he submitted eighteen exhibits. On March 29, 2010,
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USCIS requested additional evidence regarding Repaka’s qualifications,
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specifically requesting evidence that waiver would be in the national, rather than
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merely local, interest. A.R. 452-53 (requesting evidence of his “ability to serve the
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national interest to a substantially greater extent than the majority of [his] peers”
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and his “influence on [his] field of employment as a whole.”). Mr. Repaka timely
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filed seven additional exhibits in response. A.R. 2, 454-537.
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On October 18, 2010, USCIS denied Mr. Repaka’s waiver request, finding
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that he is a “competent engineer whose skills and abilities are of value to his
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employer” but “the record does not show that a job offer waiver based on the
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national interest is warranted.” A.R. 538-41. Mr. Repaka appealed to the USCIS
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Administrative Appeals Office (“AAO”) on November 18, 2010. A.R. 544-46. On
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appeal, he provided additional evidence, including a list of 27 papers purportedly
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citing his work. A.R. 547-53. The AAO affirmed the waiver denial on January 18,
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2012. A.R. 557-68.
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II. STANDARD OF REVIEW
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In actions brought under the Administrative Procedures Act (“APA”),
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summary judgment serves as an avenue for deciding whether a final agency action
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is adequately supported by the administrative record. Northwest Motorcycle Ass’n
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v. U.S. Dep’t Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). For jurisdiction under
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the APA, the agency action at issue "must be final, it must adversely affect the party
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seeking review, and it must be non-discretionary." Pinho v. Gonzales, 432 F.3d
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193, 200 (3d Cir. 2005). Under the APA, the Court may set aside an agency’s final
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decision only upon a finding that it was “arbitrary, capricious, an abuse of
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discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). An
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agency action is arbitrary or capricious if the agency fails to “examine the relevant
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data and articulate a satisfactory explanation for its action including a rational
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connection between the facts found and the choice made.” Motor Vehicle Mfrs.
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Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983) (internal
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citations and quotations omitted).
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The Court’s review is based on the administrative record that was before the
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agency decision makers at the time they made their decision. Citizens to Preserve
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Overton Park v. Volpe, 401 U.S. 402, 420 (1971). The Court reviews the whole
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record, or those parts of it cited by a party, for substantial evidence. See Herrera v.
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USCIS, 571 F.3d 881, 885 (9th Cir. 2009). It will not disturb the agency’s final
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decision “unless the evidence presented would compel a reasonable finder of fact to
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reach a contrary result.” See Herrera v. USCIS, 571 F.3d 881, 885 (9th Cir. 2009).
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Id. “Review under this standard is to be searching and careful, but remains narrow,
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and a court is not to substitute its judgment for that of the agency. . . . [especially
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where] the challenged decision implicates substantial agency expertise.” Friends of
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Clearwater v. Dombek, 222 F.3d 552, 556 (9th Cir. 2000) (citations omitted). Thus,
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to prevail, Mr. Repaka must establish that the decision denying his waiver request
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was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with
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the law.
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III. DISCUSSION
It bears emphasizing that even aliens who establish exceptional ability are
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ordinarily subject to the job offer requirement. Thus, the petitioner must satisfy an
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even higher burden. In other words, it does not suffice to be “good.” Indeed, it
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does not suffice to be “exceptional.” By the plain language of the statute, for the
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agency to even have discretion to grant a waiver, one must demonstrate such
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exceptional talent that his presence is in the national interest. According to Mr.
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Repaka’s application, “[w]hat makes [him] unique is that he has a background in
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using remote sensed imagery in graphic information systems.” USCIS found that
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Mr. Repaka is a competent engineer in a field (transportation engineering with an
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emphasis on remote sensing, hazard mapping, and floodplain management) of
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substantial intrinsic merit. USCIS also acknowledged the national benefit of Mr.
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Repaka’s occupation. A.R. 539. The Court thus assumes that expertise in these
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fields is of national importance. NYDOT (bridge safety engineering expert could
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provide service of national import). But his waiver request was denied because he
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had not demonstrated such extraordinary ability that a waiver was in the national
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interest.
Pointing to his research and reference letters, Mr. Repaka argues that the
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AAO’s decision is arbitrary, capricious, and contrary to law. Specifically, he (1)
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complains that USCIS did not provide sufficient opportunity to present clarifying
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information, and (2) attacks the analysis of his past achievements. (Pl.’s Mot. 4-5.)
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A.
According to Mr. Repaka, USCIS requires a waiver applicant to “read minds”
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The Request for Additional Evidence
because its March 28, 2010 request for additional evidence (“RFE”) was too
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general. (Pl.’s Reply 2.) The Court disagrees. The RFE merely offered a second
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bite at the apple. It stated that he had satisfied the first prong of the analysis, i.e.,
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showing his field to be one of substantial intrinsic merit. But it also explained that
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the initial waiver request was not supported by enough evidence that his work is in
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the national, as opposed to local, interest. Moreover, it specifically explained that
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the agency seeks evidence of his “influence on your field of employment as a
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whole” and that “your abilities are greater in some capacity to the majority of your
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peers.” A.R. 453. The Court finds no deficiency in the RFE, in terms of adequacy
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of notice or otherwise.
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B.
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USCIS Analysis
Mr. Repaka argues that Defendants misunderstood the significance of his
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credentials, ignored his supplemental list of citations, A.R. 547-554, and failed to
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give proper weight to his reference letters. Again, the Court disagrees.
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1.
Professional Credentials
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The petitioner alone bears the burden of proof. 8 U.S.C. § 1361. See also
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Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (R.C. 1972). Commensurate
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with that burden is responsibility for explaining the significance of proffered
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evidence. The significance of membership in, e.g., the American Society of Civil
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Engineers (“ASCE”), or of any awards, accolades, or certifications, is for him to put
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in context and explain in a meaningful way. As the AAO noted, “[t]he unsupported
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assertions of counsel do not constitute evidence.” A.R. 560. Yet that is what Mr.
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Repaka’s appeal rests upon. He does not show that USCIS failed to give sufficient
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weight to his membership in, e.g., the ASCE. Even assuming arguendo that fewer
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than nine percent of ASCE members obtain full “Member” status, as he claims,
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there is no reason to believe that would render such Members “exceptional” for
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purposes of 8 C.F.R. § 204.5(k)(2). USCIS likewise explained that a state license
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does not demonstrate exceptional ability, since “every engineer in California passed
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the examinations as [Mr. Repaka] did.” A.R. 561. The petitioner has shown no
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error in the consideration of his credentials, awards, or affiliations in determining
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the record lacked sufficient evidence of exceptional ability.
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2.
Publications & Citations
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Although publication is not a necessary condition for a waiver, publications
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and presentations form a significant part of Mr. Repaka’s case. The record indicates
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that Mr. Repaka has no published journal articles (though one of his works was
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cited in a 2006 journal article), and two of his articles were published in conference
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proceedings, most recently in 2004. A.R. 568. USCIS explained that it is not
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enough to show that the petitioner plays an important role in his field, because
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qualified U.S. workers may perform the same role. A.R. 540. Additionally, if Mr.
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Repaka “no longer conducts research for publication or presentation, his past history
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of such work offers no prospective benefit to the United States.” A.R. 568.
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Assuming that the Google Scholar printout provided by Mr. Repaka is
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accurate, at least one of his works was cited as recently as 2010. A.R. 553. Yet
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USCIS concluded that Mr. Repaka’s published research has a “very minimal
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citation record,” that he has not demonstrated a level of interest in his work that
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distinguishes him from his peers, and that his research was not “cutting edge.” Id.
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The AAO agreed that academic citations to student research says little about the
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importance of his subsequent professional endeavors, and found that the citations do
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not “demonstrate an unusual level of impact or influence in his field.” A.R. 561.
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Citations alone establish little, as they provide no indiction as to what his works
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were cited for. Thus, Mr. Repaka points to articles citing a 2004 conference paper
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he coauthored entitled Comparing Spectral and Object Based Approaches for
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Classification and Transportation Feature Extraction from High Resolution
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Multispectral Imagery. A.R. 168, 189, 201. A supporting letter from Rodrigo A. A.
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Nobrega, Ph.D. of Mississippi State University’s Geosystems Research Institute
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explains that Mr. Repaka’s study explored the extraction of transportation features
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from multispectral imagery from two satellites. A.R. 234. “The benefit of this
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method is that it saves time and allows for accurate and speedy classification and in
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turn helps with the planning phase of road construction, railroad relocation and
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other major civil transportation projects. Id. That is no doubt helpful, but the cited
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pieces do not indicate that Mr. Repaka was or is vital to the development of any
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particular application or technique. Consequently, the record lacks sufficient
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evidence to discern the prospective benefits of his work or otherwise support an
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alternative result here. The Court therefore finds no deficiency in the evaluation of
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citations to Plaintiff’s work.
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3.
Reference Letters
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Mr. Repaka also provided several letters of recommendation from previous
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employers and others that describe his contributions to specific projects. The letters
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suggest that he was instrumental to a floodplain mapping initiative in Mississippi
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(A.R. 562-63, 565) and “Trade Corridor Improvement” efforts in California (A.R.
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563-65). USCIS found these letters insufficient to establish that he stands apart
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from his colleagues to such a degree as to merit a waiver. The AAO considered and
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discussed the letters, finding them insufficient, when combined with all the
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evidence, to establish that a waiver was in the national interest. A.R. 561-66. Mr.
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Repaka demonstrates nothing to the contrary. For example, according to one letter,
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he saved the California Department of Transportation $13 million. The AAO
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determined, based on record evidence, that those savings were not attributable to
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any particular skill wielded by Mr. Repaka, but instead to waivers obtained based on
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exceptions to advisory design standards. A.R. 566.
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The supporting letters leave little doubt that Mr. Repaka has expertise in
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obtaining useful data from multispectral imaging and other remote sensing
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techniques. See, e.g., A.R. 234-35. But, as discussed above, that is insufficient to
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satisfy the heavy burden applicable here. Mr. Repaka reveals no errors in the
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AAO’s analysis of his reference letters, and the Court finds no reason to disturb the
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AAO decision.
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IV. CONCLUSION
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USCIS accepted all of Plaintiff’s evidence and provided him with an
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opportunity to supplement it. The petitioner has shown nothing arbitrary,
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capricious, or otherwise improper in the analysis of that evidence. Indeed, he has
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failed to establish that he was eligible for a waiver, let alone that the agency abused
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its discretion in declining to grant one. The Court accordingly finds that, at both the
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initial and appellate level, USCIS provided a thorough analysis and explanation
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consistent with the applicable law.
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For the reasons stated, the Court DENIES Plaintiff’s motion for summary
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judgment and GRANTS Defendants’ motion for summary judgment. The Clerk of
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Court shall enter judgment accordingly.
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DATED: January 6, 2014
BARRY TED MOSKOWITZ
Chief Judge
United States District Court
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