Eguchi et al v. Johnson et al
Unsealed version of 24 sealed Memorandum Opinion and Order. (Ordered by Judge Sidney A Fitzwater on 7/7/2017) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
MARCO EGUCHI, et al.,
JOHN F. KELLY, et al,
*This memorandum opinion and order was filed under
seal on June 23, 2017 and is now being unsealed and
filed as a public document.
Civil Action No. 3:16-CV-1286-D
In this action by plaintiffs Marco Eguchi (“Eguchi”) and Amanda Eguchi against
defendants John F. Kelly, Donald Neufeld, James McCament, and Mark Hazuda
(collectively, “CIS”),1 Eguchi challenges a decision of U.S. Citizenship and Immigration
Services (“CIS”) denying his Petition for Alien Worker (I-140) as an alien of extraordinary
ability. Concluding on the parties’ cross-motions for summary judgment that CIS’s decision
was arbitrary or capricious, the court grants Eguchi’s motion, denies CIS’s motion, and
remands this matter to CIS for further proceedings consistent with this memorandum opinion
When Eguchi initially filed this lawsuit, he sued Jeh C. Johnson and Leon Rodriguez
as defendants in their official capacities. They have since been replaced by John F. Kelly and
James McCament, respectively, who have been automatically substituted as defendants. See
Fed. R. Civ. P. 25(d).
Eguchi is a Brazilian citizen and professional bull rider.2 Since 2012 Eguchi has
competed full-time in the United States with Professional Bull Riders (“PBR”), the world’s
premier bull riding association. In 2015 Eguchi filed with CIS a Form I-140 Immigrant
Petition for Alien Worker and a Form I-485 Application to Adjust Status, seeking relief on
the basis that he qualifies as an alien of extraordinary ability who warrants preferential
treatment in visa issuance. CIS later issued a Request for Evidence (“RFE”) seeking
additional evidence to support Eguchi’s petition, with which Eguchi complied, and denied
his petition. Eguchi appealed to the Administrative Appeals Office, which upheld the denial
of his petition.
Eguchi now brings this action challenging CIS’s decision. The parties have filed
cross-motions for summary judgment, presenting the question whether Eguchi has
established that CIS’s decision was arbitrary, capricious, or not otherwise in accordance with
When a summary judgment movant will not have the burden of proof on a claim, it
can obtain summary judgment by pointing the court to the absence of evidence on any
essential element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once it does so, the nonmovant must go beyond his pleadings and designate specific
The parties’ cross-motions do not contend that there are any contested issues of
facts demonstrating that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the
evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s failure to produce proof
as to any essential element renders all other facts immaterial. See TruGreen Landcare,
L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment
is mandatory where the nonmovant fails to meet this burden. Little, 37 F.3d at 1076.
To be entitled to summary judgment on a claim on which the moving party will have
the burden of proof, the party “must establish ‘beyond peradventure all of the essential
elements of the claim[.]’” Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp.
943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190,
1194 (5th Cir. 1986)). This means that the moving party must demonstrate that there are no
genuine and material fact disputes and that the moving party is entitled to summary judgment
as a matter of law. See Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003).
“The court has noted that the ‘beyond peradventure’ standard is ‘heavy.’” Carolina Cas. Ins.
Co. v. Sowell, 603 F.Supp.2d 914, 923-24 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting Cont’l
Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23,
2007) (Fitzwater, J.)).
Eguchi contends that, as a matter of law, CIS’s denial of his I-140 petition was
arbitrary, capricious, or otherwise not in accordance with the law.3
The court reviews CIS decisions under § 706(2)(A) of the Administrative Procedure
Act, 5 U.S.C. § 706(2)(A). “An agency decision can be overturned only if a plaintiff can
demonstrate that the decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.’” Hassani v. Napolitano, 2009 WL 2044596, at *2 (N.D. Tex.
July 15, 2009) (Fitzwater, C.J.) (quoting Boi Na Braza Atlanta, LLC v. Upchurch, 2005 WL
2372846, at *5 (N.D. Tex. Sept. 27, 2005) (Lindsay, J.) (quoting § 706(2)(A))). “A decision
is arbitrary or capricious only when it is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Wilson v. U.S. Dep’t of Agric., 991
F.2d 1211, 1215 (5th Cir. 1993) (internal quotation marks omitted). “A decision is not
arbitrary or capricious if the agency considers the relevant factors and ‘articulates a rational
relationship between the facts found and the choice made.’” Willingham v. Dep’t of Labor,
475 F.Supp.2d, 607, 612 (N.D. Tex. 2007) (Robinson, J.) (quoting Louisiana ex rel. Guste
v. Verity, 853 F.2d 322, 327 (5th Cir. 1988)). Although the court must ensure that CIS
engaged in “reasoned decisionmaking” in denying his petition, CIS “is entitled to
considerable deference in its interpretation of the governing statute.” Boi Na Braza Atlanta,
For ease of reference, the court will refer to this standard throughout this
memorandum opinion and order as the “arbitrary or capricious” standard.
2005 WL 2372846, at *2 (quoting Nat’l Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, 1475
(5th Cir. 1989)). “A reviewing court is not to substitute its judgment for that of the agency,
and the court is to show proper deference to agency expertise.” Chi-Feng Chang v.
Thornburgh, 719 F. Supp. 532, 535 (N.D. Tex. 1989) (Fitzwater, J.). “Even if statutory or
regulatory language is ambiguous, deference is usually given to the agency’s interpretation.”
Defensor v. Meissner, 201 F.3d 384, 386 (5th Cir. 2000). Eguchi thus faces a high hurdle
in attempting to establish that CIS’s denial was arbitrary or capricious.
The Immigration and Nationality Act requires that CIS give priority to employmentbased visas to certain classes of immigrants, including those with “extraordinary ability.”
8 U.S.C. § 1153(b)(1)(A). Section 1153(b)(1)(A) requires that
(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
(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.
The Act’s enabling regulation defines extraordinary ability 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). Sustained acclaim or recognition may be proved by
a major, internationally recognized prize or award or evidence of at least three of ten
specified criteria. Id. at § 204.5(h)(3). “A petition for an alien of extraordinary ability must
be accompanied by evidence that the alien has sustained national or international acclaim and
that his or her achievements have been recognized in the field of expertise.” Id.
The submission of evidence is a procedural question. Kazarian v. U.S. Citizenship
and Immigration Servs., 596 F.3d 1115, 1121 (9th Cir. 2010).4 CIS therefore may not
conflate the final merits question of whether the petitioner has reached the very top of his
field of endeavor (and thus is an alien of extraordinary ability) with the procedural question
of whether the petitioner has sufficiently submitted three types of evidence. Id. Rather, at
the first step, CIS must only determine whether the petitioner has met the evidentiary
requirements. Id. If so, CIS then moves to step two, in which it makes a final determination
of extraordinary ability. Id.
At the petition stage, the petitioner bears the burden of proof. 8 U.S.C. § 1361.
“Commensurate with that burden is responsibility for explaining the significance of proffered
evidence. The significance of membership in [a professional association] or of any awards,
accolades, or certifications, is for him to put in context and explain in a meaningful way.”
Repaka v. Beers, 993 F.Supp.2d 1214, 1219 (S.D. Cal. 2014).
Eguchi contends that he satisfied four of the ten criteria with appropriate
documentation: (1) “[d]ocumentation of the alien’s receipt of lesser nationally or
internationally recognized prizes or awards for excellence in the field of endeavor[,]” 8
The Ninth Circuit is the only court of appeals that has addressed this issue. CIS has
endorsed Kazarian’s holding and follows it in practice. See Visinscaia v. Beers, 4 F.Supp.3d
126, 131 (D.D.C. 2013) (citing USCIS Adjudicator’s Field Manual § 22.2(i)(i)(A)).
C.F.R. § 204.5(h)(3)(i) (“Awards Criterion”); (2) “[d]ocumentation of the alien’s
membership in associations in the field for which classification is sought, which require
outstanding achievements of their members, as judged by recognized national or international
experts in their disciplines or fields[,]” id. at § 204.5(h)(3)(ii) (“Membership Criterion”); (3)
“[p]ublished material about the alien in professional or major trade publications or other
major media relating to the alien’s work in the field for which the classification is sought[,]”
id. at § 204.5(h)(3)(iii) (“Publication Criterion”); and (4) “[e]vidence that the alien has
commanded a high salary or other significantly high remuneration for services, in relation
to others in the field[,]” id. at § 204.5(h)(3)(ix) (“Salary Criterion”). CIS responds that none
of the evidence that Eguchi submitted was sufficient under the plain text of § 204.5(h)(3).
The court concludes that Eguchi has established that CIS’s denial of his visa petition
was arbitrary or capricious as a matter of law.
Eguchi submitted evidence that he won Brazil’s PBR Rookie of the Year in 2008,
which he relies on in support of the Awards Criterion. The Awards Criterion requires
evidence of a “lesser nationally or internationally recognized prize or award for
excellence in the field of endeavor[.]” Id. at § 204.5(h)(3)(i). CIS neither disputes the
authenticity of the award nor contends that the award is not “nationally or internationally
recognized.” Instead, CIS only maintains that “such an award by its very nature is limited
to neophytes, excluding more experienced bull riders. And therefore, such an honor does not
measure your standing or selection from among those who are well established in the field
or show your extraordinary ability under this criterion.” R. 51 (emphasis added).
This reasoning impermissibly conflates Kazarian steps one and two. CIS responds
that its reasoning was perhaps “inartful wording, but the point of the statement is that it is
reasonable to look at the field of competitors—and any limitations on the field of
competitors—to determine whether the plain language of the regulation has been satisfied.”
Ds. Reply 2. But it is well established that a reviewing court “must judge the propriety of
such action solely by the grounds invoked by the agency. If those grounds are inadequate
or improper, the court is powerless to affirm the administrative action by substituting what
it considers to be a more adequate or proper basis.” SEC v. Chenery Corp., 332 U.S. 194,
The regulation only required that Eguchi submit documentation of his receipt of lesser
nationally or internationally recognized prizes or awards for excellence in the field of
endeavor, which he did. A plain reading of CIS’s decision indicates that it found Eguchi’s
documentation to be deficient because, in CIS’s view, the documentation did not show that
Eguchi had reached the very top of his field of endeavor or show his extraordinary ability,
i.e., a step two determination. CIS “may [not] unilaterally impose novel substantive or
evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5.” Kazarian, 596 F.3d
at 1121. CIS could not have rationally concluded that receiving the Rookie of the Year
award given by Brazil’s premier bull riding organization was not probative of Eguchi’s
sustained national acclaim and recognition in the field. Because CIS did not articulate any
other basis for rejecting Eguchi’s Rookie of the Year award, the court concludes that he has
established beyond peradventure that CIS’s decision as to the Awards Criterion was arbitrary
Eguchi also contends that CIS improperly rejected numerous articles he submitted in
support of the Publication Criterion. To satisfy the Publication Criterion, Eguchi must
submit “[p]ublished material about [himself] in professional or major trade publications or
other major media relating to the alien’s work in the field for which the classification is
sought[.]” Id. at § 204.5(h)(3)(iii). Eguchi submitted articles from various publications,
including Yahoo! Sports, ESPN, and PBR’s website. The articles acknowledge Eguchi’s
high rankings, victories, and earnings in PBR events. CIS rejected the articles for two
reasons: (1) with the exception of the article on PBR’s website, none of the articles was
primarily about Eguchi; and (2) Eguchi submitted no evidence that the publications were
major trade publications or other major media.
CIS concedes that the article from the PBR website is “primarily about” Eguchi. R.
52. The only question is whether the PBR website is a major trade publication.5 CIS only
concludes that Eguchi submitted no evidence that PBR’s website is a major trade publication.
But it is self-evident that the website of the world’s premier professional bull riding
association is a major publication for professional bull riding. See Muni v. I.N.S., 891 F.
Eguchi does not contend that PBR’s website qualifies as major media.
Supp. 440, 444 (E.D. Ill. 1995) (concluding that petitioner did not need to show that
National Hockey League’s (“NHL’s”) own magazine was major trade publication). CIS
could not have reasonably concluded otherwise. The court therefore holds that Eguchi has
met his burden to show that CIS’s decision as to the Publication Criterion was arbitrary or
Eguchi also maintains that CIS erred in disregarding his evidence of a high salary
when compared to other PBR riders. The Salary Criterion requires “[e]vidence that the alien
has commanded a high salary or other significantly high remuneration for services, in
relation to others in the field[.]” 8 C.F.R. § 204.5(h)(3)(ix). Eguchi submitted evidence in
response to CIS’s RFE showing that, as of the filing of his petition, he had earned over
$700,000 in PBR events and ranked 44th on the association’s all-time money list—a ranking
of the top earners in PBR history. He also submitted a history of PBR, which states that
“[m]ore than 1,200 bull riders from the U.S., Australia, Brazil, Canada, and Mexico hold
PBR memberships.” R. 336. CIS determined that
this does not demonstrate that [Eguchi’s] remuneration is near
the top of the field. Just the opposite, compared with the top 3
earners, whose earning have grossed between 3.9 and 5.15
million dollars, [Eguchi] cannot claim to have a salary
illustrating that [he is] one of that small percentage who have
risen to the very top of the field of endeavor and enjoying
sustained national or international acclaim.
Id. at 23 (emphasis in original).
CIS again impermissibly conflates its step one analysis with step two. At step one,
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Eguchi is not obligated to prove that his salary illustrates that he is one of a small percentage
who have risen to the very top of the field of endeavor and enjoy sustained national or
international acclaim. Rather, Eguchi need only provide documentation showing that he has
commanded a high salary or other significantly high remuneration for services, in relation
to others in the field. See 8 C.F.R. § 204.5(h)(3)(ix). No reasonable analysis could conclude
that Eguchi failed to produce documentation of a salary that was high when compared to
others in the field. CIS compares Eguchi only to the top three bull riders, ignoring how his
earnings compare to the approximately 1,200 other PBR members.
In an analogous case, the Muni court rejected this very reasoning. In Muni the
Immigration and Naturalization Service (“INS”)6 concluded that because the petitioner’s
salary was “well below the top salaries earned in the NHL . . . it has not been established that
[his] salary is high in relation to that of other professional hockey players[.]” Muni, 891 F.
Supp. at 445. But as the Muni court explained, “[t]hat is an overly grudging interpretation
of its own regulation, which defines an athlete of extraordinary ability as ‘one of that small
percentage who has risen to the very top of the field of endeavor.’” Id. at 446 (quoting 8
C.F.R. § 204.5(h)(2)); see also Grimson v. I.N.S., 1995 WL 134755, at *6 (N.D. Ill. Mar. 23,
1995) (“This court does not believe . . . that only superstars can qualify as having
Eguchi actually produced documentation that he ranks 44th on the PBR’s all-time
CIS is a component of the U.S. Department of Homeland Security and the successor
agency to the INS.
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Using the PBR’s current membership of approximately 1,200 as the
denominator, this would rank Eguchi in the top 3.67% of PBR members in terms of earnings.
While this way of evaluating his comparative earnings may be open to challenge at step two,
it is more than sufficient to satisfy his step one obligation to establish that he commanded
significantly high remuneration for services in relation to other professional bull riders. See
Muni, 891 F. Supp. at 445 (holding that NHL player satisfied Salary Criterion by showing
that his salary was “well above average” of those at his position in NHL). Accordingly, the
court concludes that Eguchi has established beyond peradventure that CIS’s decision as to
the Salary Criterion was arbitrary or capricious.
Because the court concludes that CIS’s decision was arbitrary or capricious with
respect to at least three criteria, it need not analyze whether the decision as to the
Membership Criterion was also arbitrary or capricious.
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CIS determined that Eguchi did not submit sufficient evidence at step one, and it
therefore declined to engage in the final merits determination at step two. Because CIS’s
decision is arbitrary or capricious, the court remands this matter to CIS for further
proceedings consistent with this memorandum opinion and order.7
June 23, 2017.
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
The court will consider Eguchi’s request for attorney’s fees and costs on separate,
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