MRC Energy Company v. US Citizenship and Immigration Services et al

Filing 28

Memorandum Opinion and Order - Before the Court is Plaintiff MRC Energy Company's Motion for Summary Judgment (Doc. No. 25). The Court has carefully considered the parties' briefing, the certified administrative record ("CAR"), and the applicable law. For the following reasons, the Court GRANTS Plaintiff's Motion for Summary Judgment. This case is hereby remanded to U.S. Citizenship and Immigration Services for further proceedings consistent with this Memorandum Opinion and Order. (Ordered by Judge Ed Kinkeade on 3/31/2021) (chmb)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MRC ENERGY COMPANY,
Plaintiff,
v.
U.S. CITIZENSHIP AND
IMMIGRATION SERVICES, et al.,
Defendants.

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Civil Action No. 3:19-CV-2003-K

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff MRC Energy Company’s Motion for Summary
Judgment (Doc. No. 25). The Court has carefully considered the parties’ briefing, the
certified administrative record (“CAR”), and the applicable law. For the following
reasons, the Court GRANTS Plaintiff’s Motion for Summary Judgment. This case is
hereby remanded to U.S. Citizenship and Immigration Services for further
proceedings consistent with this Memorandum Opinion and Order.
I.

Background
The facts are not in dispute in this case.

Plaintiff MRC Energy Company

(“Plaintiff”) is an independent oil and gas exploration company with its principal place
of business in Dallas, Texas. Pl’s Compl. (Doc. No. 1) at 4. Plaintiff has access to

ORDER – PAGE 1

different hunting properties located in the United States and “provides hunting
experiences for its high valued partners, shareholders, and stakeholders” as well as nonhunting (e.g., wildlife photography) experiences. Id. at 7. During the various hunting
seasons, those trips occur regularly and require “significant logistical planning and
coordination.” Id. Moreover, the hunting camps and surrounding habitats on these
properties “require year-round management by a professional guide with knowledge of
and experience in extensive camp construction and maintenance, habitat management,
and conservation.” Id. To fill that role, Plaintiff hired Mr. Roy Ludick in October
2017 as Plaintiff’s Hunting Property Guide/Coordinator.

Id. at 8; Certified

Administrative Record (“CAR”) (Doc. No. 22-1) at 43.
Mr. Ludick, a citizen of Zimbabwe, is a hunting guide and coordinator, having
more than 15 years experience and holding a Zimbabwe Professional Hunter and Guide
License, which is administered jointly by the Zimbabwe Professional Hunters & Guides
Association (“ZPHGA”) and the governmental Zimbabwe Parks and Wildlife
Management. Pl’s Compl. at 7; id. at 42, 345. Mr. Ludick served as Chairman of the
ZPHGA and, from 2006-2017, served as an examiner, including as Chief Examiner, of
the joint examination committee of the ZPHGA and the Zimbabwe Parks and Wildlife
Management. Pl’s Compl. at 8; CAR at 7, 8, 42, 344. Mr. Ludick has twice been
recognized by the ZPHGA for “Most Outstanding Contribution to the Association and

ORDER – PAGE 2

Industry”, first in 2006 and then again in 2016. Pl’s Compl. at 8; CAR at 5, 42. Mr.
Ludick has also managed and led hunting excursions for several safari companies in
Zimbabwe offering both big game hunting and photography. Pl’s Compl. at 8; CAR at
344. Mr. Ludick holds bachelor’s degrees in Zoology and Geology and an Honors
degree in Zoology from Rhodes University in Grahamstown, South Africa. Pl’s Compl.
at 8; CAR at 42, 343.
On February 12, 2019, Plaintiff filed an I-140 visa petition (“I-140 Petition”)
with Defendants U.S. Citizenship and Immigration Services and Ken Cuccinelli, II,
former Acting Director of USCIS, (collectively “USCIS”), on behalf of Mr. Ludick to
permit him to be permanently employed as Plaintiff’s hunting guide/coordinator. Pl’s
Compl. at 9; CAR at 3. Plaintiff submitted this I-140 Petition seeking employmentbased first (“EB-1”) classification for Mr. Ludick, as an alien of “extraordinary ability”.
Id.

In support, Plaintiff presented “a letter describing the Hunting Property

Guide/Coordinator position and Mr. Ludick’s qualifications in detail, along with letters
from industry experts about the reputation of the ZPHGA and the Zimbabwe
Professional Hunter and Guide License, copies of and information about his awards,
articles published about Mr. Ludick in major trade publications, and evidence that the
$110,000 salary offered to Mr. Ludick was significantly high in relation to other in the
field.” Pl’s Compl. at 9; see CAR at 193-401.

ORDER – PAGE 3

USCIS issued a Request for Evidence (“RFE”) dated February 22, 2019. Pl’s
Compl. at 9; CAR at 12-19. The RFE recognized that Plaintiff submitted evidence for
seven of the ten regulatory criteria in an attempt to demonstrate Mr. Ludick as an
individual of “extraordinary ability”. CAR at 14. USCIS then noted “the areas of
insufficiency” as to each of the criterion, but also indicated what types of documentary
evidence Plaintiff could submit in response to remedy the insufficiencies. Id. Plaintiff
submitted a timely response which included additional documentary evidence in an
attempt to address the deficiencies. Pl’s Compl. at 9; see CAR at 20-32. On April 23,
2019, USCIS issued its decision (“Denial Letter”) denying Plaintiff’s I-140 Petition.
Pl’s Compl. at 11; CAR at 4. USCIS concluded that Plaintiff’s evidence satisfied one
criterion—Mr. Ludick’s ability to command a high salary. CAR at 8. However, USCIS
concluded Plaintiff’s evidence did not satisfy the other six criteria. Id. Because Plaintiff
failed to establish Mr. Ludick met at least three of the threshold evidentiary criteria,
USCIS did not find Mr. Ludick to be an individual of extraordinary ability.

Id.

Accordingly, the I-140 Petition was denied. Id.
Plaintiff initiated this action in which it seeks judicial review of USCIS’s decision
under the Administrative Procedure Act (“APA”).

Plaintiff alleges generally that

USCIS’s decision “makes fundamental factual errors, ignores substantial evidence, and
is based upon clear errors of law.” Pl’s Compl. at 11. Plaintiff filed its Motion, asking

ORDER – PAGE 4

the Court to grant judgment as a matter of law in Plaintiff’s favor with a declaration
from the Court that USCIS’s decision violated the APA as well as issue an order
vacating USCIS’s decision and remanding to USCIS with instructions it approve
Plaintiff’s I-140 Petition. USCIS argues Plaintiff cannot meet its burden and moves
the Court for summary judgment in its own favor, thereby affirming its decision to
deny Plaintiff’s I-140 Petition.
II.

Legal Standards and Applicable Law
When the action of an agency is challenged under the Administrative Procedure

Act (“APA”), “summary judgment is the proper mechanism for deciding, as a matter of
law, whether an agency’s action is supported by the administrative record and
consistent with the APA standard of review.” Delta Talent, LLC v. Wolf, 448 F.Supp.3d
644, 650 (W.D. Tex. 2020) (quoting Am. Stewards of Liberty v. U.S. Dep’t of Interior,
370 F.Supp.3d 711, 723 (W.D. Tex. 2019)). “Thus, in evaluating a case on summary
judgment, the court applies the standard of review from the APA.” Am. Stewards, 370
F.Supp.3d at 723.
A.

Summary Judgment

“Summary judgment is required when ‘the movant shows that there is no dispute
as to any material fact and the movant is entitled to judgment as a matter of law.’”
Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting FED.R.CIV.P. 56(a)). A

ORDER – PAGE 5

dispute of a material fact is “genuine” if the evidence is such that a reasonable jury
could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). If the moving party will have the burden of proof on a
claim, “the party ‘must establish beyond peradventure all of the essential elements of
the claim.’” Eguchi v. Kelly, Civ. Action No. 3:16-CV-1286-D, 2017 WL 2902667, at
*1 (N.D. Tex. July 7, 2017)(Fitzwater, J.) (citing Fontenot v. Upjohn Co., 780 F.2d 1190,
1194 (5th 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.” Id. (citing Martin v. Alamo Cmty. Coll. Dist.,
353 F.3d 409, 412 (5th Cir. 2003)).

“[T]he ‘beyond peradventure’ standard is

‘heavy.’” Id. (internal citations omitted).
Once the movant satisfies his burden, the nonmovant may not rest on the
pleadings, but must present competent summary judgment evidence showing a genuine
fact issue for trial exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc). “The party opposing
summary judgment is required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports his or her claim.” Ragas
v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); see also Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996)(en banc) (nonmovant may

ORDER – PAGE 6

satisfy this burden by providing depositions, affidavits, and other competent evidence;
not with “conclusory allegations, speculation, and unsubstantiated assertions.”). If the
nonmovant fails to meet this burden, summary judgment must be granted. Celotex, 477
U.S. at 322.
All evidence and reasonable inferences must be viewed in the light most
favorable to the nonmovant, and all disputed facts resolved in favor of the nonmovant.
See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Boudreaux v. Swift Transp.
Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
B.

Administrative Procedure Act

It is not disputed that USCIS’s decision is final for purposes of the APA. See 5
U.S.C. §§ 551(13) & 704. When an agency action has been challenged under the APA,
the district court sits as an appellate court. Redeemed Christian Church of God v. U.S.
Citizenship and Immigrations Servs., 331 F.Supp.3d 684, 694 (S.D. Tex. 2018). “The
entire case on review is a question of law.” Id. (internal citations omitted). “[I]t is the
role of the agency to resolve factual issues to arrive at a decision that is supported by
the administrative record, whereas the function of the district court is to determine
whether or not as a matter of law the evidence in the administrative record permitted
the agency to make the decision it did.” Id.

ORDER – PAGE 7

The decision by USCIS to deny a visa application can be “reversed only if the
decision was arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” Nat’l Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, 1475 (5th
Cir. 1989) (citing 5 U.S.C. § 706(2)(A)); see Defensor v. Meissner, 201 F.3d 384, 386
(5th Cir. 2000) (“Under the [APA], agency action is reviewed solely to determine
whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.”). The agency’s decision is considered to be arbitrary and 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). “Although a reviewing court is bound to ensure that the [USCIS] engaged
in ‘reasoned decision-making’ in denying an application, the [USCIS] is entitled to
considerable deference in its interpretation of the governing statute.” Nat’l Hand Tool,
889 F.2d at 1475; see Knapp, 796 F.3d at 453 (“The arbitrary and capricious standard
is highly deferential.”).
“[T]he reviewing court ‘must consider whether the decision was based on a
consideration of the relevant factors and whether there has been a clear error of
judgment.’” Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 378 (1989). “Thus, if
the agency considers the [relevant] factors and articulates a rational relationship
between the facts found and the choice made, its decision is not arbitrary and

ORDER – PAGE 8

capricious.” Delta Found., Inc. v. U.S., 303 F.3d 551, 563 (5th Cir. 2002) (internal
citation omitted); Redeemed Christian Church of God, 331 F.Supp.3d at 694 (“Arbitrary
and capricious review focuses on whether an agency articulated a rational connection
between the facts found and the decision made. . . .”).
C.

Visa for Alien of Extraordinary Ability

An employment-based visa petition may be filed by or on behalf of “an alien of
extraordinary ability in the sciences, arts, education, business, or athletics.” 8 C.F.R.
§ 204.5(h)(1). An immigrant qualifies as an alien having extraordinary ability where:
(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.
Id. “Extraordinary ability” is defined in the enabling regulation 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.” § 204.5(h)(2). This type of visa petition must include
“evidence that the alien has sustained national or international acclaim and that his or
her achievements have been recognized in the field of expertise.” § 204.5(h)(3). This
can be proven through evidence of a one-time major, internationally recognized award
or at least three of the following ten criteria:

ORDER – PAGE 9

(i) Documentation of the alien’s receipt of lesser nationally or
internationally recognized prizes or awards for excellence in the field
of endeavor;
(ii) Documentation 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 discipline or fields;
(iii) Published 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 classification is sought. Such evidence shall include
the title, date, and author of the material, and any necessary
translation;
(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 specification for which classification is sought;
(v) Evidence of the alien’s original scientific, scholarly, artistic,
athletic, or business-related contributions of major significance in
the field;
(vi) Evidence of the alien’s authorship of scholarly articles in the
field, in professional or major trade publications or other major
media;
(vii)Evidence of the display of the alien’s work in the field at artistic
exhibitions or showcases;
(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 for services, in relation to others in
the field; or
(x) Evidence of commercial successes in the performing arts, as
shown by box office receipts or record, cassette, compact disk, or
video sales.
Id.
Once the petitioner has submitted evidence satisfying at least three of the ten
criteria, USCIS then moves to the second step of making a final determination whether

ORDER – PAGE 10

the totality of the evidence shows the immigrant “sustained national or international
acclaim” and “is one of that small percentage who have risen to the very top of the field
of endeavor.” § 204.5(h)(2) & (3); see Kazarian v. U.S. Citizenship and Immigration Servs.,
596 F.3d 1115, 1119-20 (9th Cir. 2010). “The scant case law indicates that ‘the
regulations regarding this preference classification are extremely restrictive.’” Id. at
1120. The visa applicant has the burden of establishing eligibility. Nat’l Hand Tool,
889 F.2d at 1475.
III.

Analysis
Plaintiff does not contend that Mr. Ludick received a one-time major,

internationally recognized award thereby evidencing his extraordinary ability. Instead,
Plaintiff submitted evidence on seven of the ten criteria to show Mr. Ludick “sustained
national or international acclaim and that his . . . achievements have been recognized
in the field of expertise.” § 204.5(h)(3). In its Denial Letter, USCIS determined that
Plaintiff’s evidence showed Mr. Ludick commands a high salary compared to others in
his field, so Plaintiff satisfied the high salary criteria.

Id. (h)(3)(ix); CAR at 8.

Therefore, Plaintiff need only establish USCIS’s denial was arbitrary and capricious as
to two other criteria in order to satisfy the initial evidentiary step.
In its Motion, Plaintiff challenges USCIS’s decision as to six of the ten criteria,
arguing USCIS “ignored and misconstrued [Plaintiff’s] evidence, impermissibly

ORDER – PAGE 11

imposed extra-regulatory requirements on Plaintiff, and applied an evidentiary
standard in excess of the appropriate ‘preponderance of the evidence’ standard, all in
violation of the APA.” Mot. (Doc. No. 25) at 1. Because of these alleged errors,
USCIS’s denial of Plaintiff’s I-140 Petition was arbitrary, capricious, and in violation
of the law which, Plaintiff contends, requires the Court to vacate the decision and to
remand to USCIS with instructions to approve the I-140 Petition. In response, USCIS
argues that Plaintiff cannot meet its summary judgment burden for several reasons.
First, USCIS asserts that Plaintiff is essentially asking the Court to re-weigh the
evidence which the Court cannot do under the APA standard of review. Next, USCIS
contends that it did not apply the wrong standard in assessing the I-140 Petition and
the evidence submitted in support. Finally, USCIS argues that even if the Court were
permitted to re-weigh the evidence, the record would not support a determination that
USCIS violated the APA in denying Plaintiff’s I-140 Petition. In its Reply, Plaintiff reurges that it is not asking the Court to reweigh the evidence or substitute its judgment,
but rather to ensure that the proper evidentiary standard was applied by USCIS in
evaluating the I-140 Petition.
A.

Applicable Evidentiary Standard

Plaintiff argues USCIS did not apply the proper standard, preponderance of the
evidence, in assessing its I-140 Petition.

ORDER – PAGE 12

Plaintiff takes issue with USCIS’s

consideration, or lack thereof, of the expert opinion letters Plaintiff submitted as
evidence of Mr. Ludick’s original contributions to the field. Mot. at 6. Although not
as clearly articulated, Plaintiff also appears to challenge USCIS’s denial “more broadly”
with respect to the evidentiary standard applied in evaluating the I-140 Petition as a
whole. USCIS responds that Plaintiff’s argument about the letters boils down to a
dispute over the weight USCIS afforded them. USCIS also responds that the Court
cannot find that USCIS applied the wrong evidentiary standard where the Denial
Letter itself shows the decision was based on the proper standard.
1.

“Broad” Challenge

The Court turns first to Plaintiff’s argument that USCIS applied the wrong
standard of proof in making its decision. This argument is not entirely clear and the
Court is uncertain if Plaintiff intended for this argument to apply to its challenge of
USCIS’s decision on each specific criterion, which the Court addresses below. In an
abundance of caution, the Court addresses this as a “broad” challenge to the evidentiary
standard USCIS applied to the evaluation overall. Plaintiff argues in its Motion that
USCIS “misconstrued the [regulations] and failed to properly consider all record
evidence; reached factual conclusions as to the regulatory criteria . . . that were not
supported by any evidence in the record; misconstrued the applicable regulations;
impermissibly imposed evidentiary requirements beyond those required by Congress;

ORDER – PAGE 13

and erroneously concluded that Plaintiff had not demonstrated that Mr. Ludick was
an alien with extraordinary ability.” Mot. at 6. Plaintiff makes this sweeping statement
but does not actually explain how this establishes that USCIS applied a higher standard
of proof than preponderance of the evidence or how any record evidence demonstrates
a higher evidentiary standard was applied in USCIS’s overall evaluation. What the
record does show, as pointed out by USCIS, is the Denial Letter’s recitation that
Plaintiff failed to meet its burden under the preponderance of the evidence standard.
CAR at 8-9. Without any other record evidence to the contrary identified by Plaintiff,
the Court cannot conclude that USCIS applied a higher evidentiary standard in its
evaluation process.
In its Reply, Plaintiff contends that the denial is missing “any actual application
of the preponderance of the evidence standard to the evidence.” Reply (Doc. No. 27)
at 2. Plaintiff then specifically complains that USCIS did not explain the evidentiary
standard, did not apply that standard to the evidence, and did not explain what
“material doubts” were raised by the evidence and why the evidence did not satisfy the
standard and meet the EB-1 requirements. Id. at 2-3. The Court, according to Plaintiff,
cannot then ensure that USCIS “engaged in reasoned decision making” as required
under the APA. Id. The Court notes that Plaintiff made these more specific, if not
new, arguments for the first time in its Reply. A new argument cannot be raised for

ORDER – PAGE 14

the first time in a reply brief. See Liberty Mut. Fire Ins. Co. v. Fowlkes Plumbing, L.L.C.,
— F. App’x —, 2021 WL 911876, at *3 (5th Cir. 2021); Weber v. Merrill Lynch Pierce
Fenner & Smith, Inc., 455 F.Supp.2d 545, 551 (N.D. Tex. 200)(Fitzwater, J.). Although
the Court is inclined not to consider this argument, the Court nevertheless addresses
it because it fails on the merits for the following reasons. As for USCIS not explaining
the evidentiary standard or specifically noting its application in discussing the evidence,
Plaintiff does not cite any authority requiring as much from USCIS. Nor did Plaintiff
provide any authority for the notion that USCIS is required to explain any “material
doubts” raised by the evidence. As for any failure to explain why the evidence did not
meet the threshold criteria, this in and of itself does not render the decision arbitrary
and capricious. Cf. Visinscaia v. Beers, 4 F.Supp.3d 126, 130 (D. D.C. 2013) (quoting
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (“A
decision that is not fully explained, moreover, may be upheld ‘if the agency’s path may
be reasonably discerned.’”)). Plaintiff fails to expound on this point. (The Court does
address this argument as it relates to specific criteria in its analysis below.)
Plaintiff also suggests that its “voluminous evidence” which was dismissed by
USCIS is “proof” that the agency applied a higher evidentiary standard. Reply at 3.
As support, Plaintiff cites to all the evidence it submitted with the I-140 Petition as
well as in response to the RFE. The Court will not sift through more than 300 pages

ORDER – PAGE 15

of a record in an attempt to find support for this argument. It is Plaintiff’s burden to
identify specific items in the record supporting its position. Additionally, without more
specific information, it would be an impossible task to identify if any evidence was
“dismissed”, which implies refusal to consider, as opposed to evidence USCIS did not
give much weight. Even if evidence had been “dismissed”, Plaintiff cites no authority
for the proposition that a higher evidentiary standard is automatically applied if USCIS
dismisses a certain amount of evidence. “In evaluating the evidence, . . . ‘truth is to be
determined not by the quantity of evidence alone but by its quality.’”
Chawathe, 25 I & N Dec. 369, 376 (AAO 2010).

Matter of

Plaintiff did not show USCIS

“dismissed” voluminous evidence and, even so, Plaintiff has not established that a
higher evidentiary standard was applied. See id.
The record before the Court simply does not support Plaintiff’s “broad”
argument that USCIS applied a standard higher than the preponderance of the
evidence standard in its evaluation of the I-140 Petition. Plaintiff has not met its
burden of showing USCIS’s decision was arbitrary, capricious, or otherwise not in
accordance with the law on this basis.
2.

Expert Opinion Letters

The Court turns now to the expert opinion letters.

Plaintiff contends it

“submitted multiple expert opinion letters in its original petition and its Request for

ORDER – PAGE 16

Evidence (RFE) response as evidence of Mr. Ludick’s original contribution to the field”
and USCIS “wrongly rejected” them. Mot. at 6. To support its argument, Plaintiff
quotes USCIS’s statement in the Denial Letter that “while the letters provide insight
into the beneficiary’s work and on how he contributed to ZPHGA, the letters fail to
establish that the beneficiary has made any original contributions to the field.” Id.
Plaintiff complains this was improper because USCIS did not question the experts’
credentials or their knowledge of Mr. Ludick’s skills and did not give any reason to
“doubt the veracity of their testimony” which “runs afoul of the agency’s own
guidance.” Id. Plaintiff asserts that these letters “satisfied the evidentiary requirement
and [were] improperly rejected in violation of APA.” Id. USCIS responds that an
expert opinion letter may be rejected or given less weight if not “in accord with other
information in the record” or if USCIS finds the letter “in any way questionable.” Resp.
Brief (Doc. No. 26-1) at 8. USCIS urges that Plaintiff’s challenge to the treatment of
these letters boils down to the weight USCIS chose to give them, and the Court may
not review that in this APA review. Plaintiff replies that, again, it is simply seeking to
ensure that USCIS’s own evidentiary standard for these letters is applied, and that
USCIS failed to provide any analysis or application of that standard to the letters.
It is not clear to the Court, but to the extent Plaintiff seeks to expand this
argument to apply to all expert opinion letters submitted in support of multiple criteria,

ORDER – PAGE 17

the Court will not consider such argument. In its Motion, Plaintiff challenges the
treatment of only those letters submitted as evidence of Mr. Ludick’s original
contribution to the field. However, in its Reply, Plaintiff refers very generally to the
“expert opinion letters” it submitted in support of the I-140 Petition and USCIS’s
rejection of those letters without explanation. Reply at 3-4. It appears that Plaintiff
again raises a new argument for the first time in its Reply and, to the extent that was
Plaintiff’s intention, the Court will not consider this expanded basis. See Liberty Mut.
Fire, — F. App’x —, 2021 WL 911876, at *3; Weber, 455 F.Supp.2d at 551.
Accordingly, the Court’s analysis focuses on the argument set forth in the Motion.
Plaintiff cites to a Policy Memo, USCIS, Evaluation of Evidence Submitted with
Certain Form I-140 Petitions (“Policy Memo”), PM-602-0005.1 (Dec. 22, 2010), for
USCIS’s guidance to adjudicating officers with respect to expert letters:
USCIS officers should take into account the probative analysis that
experts in the field may provide in opinion letters regarding the
significance of the alien’s contributions in order to assist in giving
an assessment of the alien’s original contributions of major
significance . . . . Letters that specifically articulate how the alien’s
contributions are of major significance to the field and its impact on
subsequent work add value.
Policy Memo at 8. In the RFE, USCIS stated that, “While the letters provide insight
into the beneficiary’s work and on how the beneficiary contributed to ZPHGA, the
letters fail to establish that the beneficiary has made any original contributions to the

ORDER – PAGE 18

field.” CAR at 17. In the subsequent Denial Letter, USCIS noted that the opinion
letters Plaintiff submitted, both initially and in response to the RFE, “describe [Mr.
Ludick’s] contributions to ZPHGA’s licensing exam” and “demonstrate[ ] that [Mr.
Ludick’s] contributions may have impacted the association,” but those letters do “not
establish that the business related contributions went beyond the association and the
association’s clients and impacted or been of major significance to the field as a whole.”
Id. at 7-8. USCIS then determined that “[t]he evidence does not demonstrate the
major significance of [Mr. Ludick’s] original contributions.” Id. at 8. The Court
concludes that the record demonstrates USCIS did consider the expert opinion letters
rather than “reject” them as Plaintiff contends. Id. at 7-8. These statements reflect the
expert opinion letters were taken into account and considered by USCIS in
determining whether Plaintiff satisfied that evidentiary criterion, and this is in
accordance with USCIS guidance. See Policy Memo at 8. That the letters may not
have swayed USCIS in its determination or been given the weight that Plaintiff hoped
does not equate to USCIS failing to accord those letters relevance and credibility under
the Policy Memo.

See Mot. at 4 (“In assessing the supporting evidence, USCIS

guidance requires that adjudicating officers accord expert reference letters relevance
and credibility.”).

ORDER – PAGE 19

Regardless, USCIS is permitted to reject an expert opinion letters or to give it
less weight in light of other information in the record as well as simply because “it is in
any way questionable.” Matter of Skirball Cultural Ctr., 25 I. & N. Dec. 799, 805-06
(AAO 2012); see Matter of Caron Int’l, Inc., 19 I. & N. Dec. 791, 795 (Comm’r 1988)
(“Nevertheless, since [USCIS] is responsible for making the final determination
regarding a beneficiary’s eligibility for the benefit sought, where [expert] opinion is not
in accord with other information or is in any way questionable, [USCIS] is not required
to accept or may give less weight to that evidence.”). Plaintiff acknowledges this in its
Motion, but contends that “where USCIS does not ‘question the credentials of the
experts, take issue with their knowledge of the [beneficiary’s] skills, or otherwise find
reason to doubt the veracity of their testimony . . . expert testimony satisfies the
evidentiary requirement.” Mot. at 5 (quoting Matter of Skirball Cultural Ctr., 25 I. &
N. Dec. at 806); see also Reply at 4. USCIS did not question these experts’ credentials,
take issue with their knowledge, or find any other reason to doubt the truthfulness of
their testimony, and, as a result, Plaintiff argues its expert opinion letters satisfy the
evidentiary requirement and USCIS improperly rejected them in violation of the APA.
Mot. at 6.
What the AAO actually concluded was:
In the present matter, the director did not question the credentials
of the experts, take issue with their knowledge of the group’s musical

ORDER – PAGE 20

skills, or otherwise find reason to doubt the veracity of their
testimony. The AAO finds the uncontroverted testimony to be
reliable, relevant, and probative as to the specific facts in issue.
Accordingly, the expert testimony satisfies the evidentiary
requirement at 8 C.F.R. § 214.2(p)(6)(ii)(A).
Matter of Skirball Cultural Ctr., 25 I. & N. Dec. at 806. It is readily apparent that
Plaintiff took language out of context and omitted very relevant information within
that conclusion which makes clear the AAO’s determination was case specific. Plaintiff
attempts to fashion an evidentiary rule that does not exist. The AAO clearly did not
create an evidentiary rule that USCIS must “question the credentials of the experts,
take issue with their knowledge of the [beneficiary’s] skills, or otherwise find reason to
doubt the veracity of their testimony” otherwise the expert testimony satisfies the
statutory evidentiary requirement and must be considered with full weight given.
Plaintiff argues there is no reasoned decision-making because USCIS rejected
the letters “without detailing any way that they contradicted other information in the
record, without explaining how they were in any way questionable, without questioning
the experts’ credentials, and without detailing any reason to doubt the truth of the
experts’ testimony.” Reply at 4. Even if USCIS had rejected the letters, which the
Court does not conclude, there is simply no support for this assertion. The legal
authority confirms the discretion USCIS has in according weight, if any, to expert

ORDER – PAGE 21

opinion letters. See Matter of Skirball Cultural Ctr., 25 I. & N. Dec. at 805-06; Matter of
Caron Int’l, Inc., 19 I. & N. Dec. at 795.
3.

Conclusion

Plaintiff failed to show that USCIS applied the wrong evidentiary scale in
considering and weighing Plaintiff’s evidence overall in evaluating the I-140 Petition as
well as the expert opinion letters. Accordingly, Plaintiff has failed to establish USCIS’s
decision was arbitrary, capricious, or otherwise not in accordance with the law based
on its argument regarding application of the wrong evidentiary standard.
B.

Evidentiary Criteria under § 204.5(h)(3)

The Court turns now to Plaintiff’s Motion as it relates to the evidentiary criteria
under § 204.5(h)(3). Plaintiff argues generally that USCIS “failed to assess multiple
factors supporting Mr. Ludick’s level of expertise and importance in the field, including
his critical contributions to conservation efforts in Africa, which he has continued in
the U.S., and his contributions to Plaintiff and to the U.S. energy industry more
broadly.” Mot. at 6. Plaintiff then takes each evidentiary criterion in turn, addressing
how USCIS’s decision was arbitrary and capricious as to the six criteria Plaintiff
challenges. USCIS responds that the Court may not re-weigh the evidence in reviewing
USCIS’s decision, but even so, its decision that Plaintiff failed to meet its burden did
not violate the APA. Plaintiff replies that despite the detail USCIS may have included

ORDER – PAGE 22

in its analysis of the evidence submitted for the criteria, if a higher evidentiary scale
was applied, the decision was arbitrary and capricious, and therefore in violation of the
APA.
In its Denial Letter, USCIS determined that Plaintiff’s evidence showed Mr.
Ludick commands a high salary compared to others in his field, so that criteria was
met. See § 204.5(h)(3)(ix); CAR at 7. Therefore, Plaintiff need only establish USCIS’s
decision was arbitrary and capricious as to two other criteria.
1.

Membership
achievement

in

association

requiring

outstanding

This criterion requires “[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 field.”

§ 204.5(h)(3)(ii).

To establish this second

criterion, Plaintiff submitted evidence that Mr. Ludick was a member of ZPHGA which
requires its members obtain a Zimbabwe Professional Hunter and Guide License, “a
long and arduous journey” that includes a multi-year apprenticeship, written exam,
shooting exam, oral interview, and a week-long field exam. CAR at 6, 196-97; Mot. at
9.

This evidence consisted of four letters and a copy of Mr. Ludick’s Zimbabwe

Professional Hunter and Guide License as well as his resume. CAR at 204-08, 327-30,
332, 335, 340, 342-45.

ORDER – PAGE 23

USCIS notified Plaintiff in the RFE that the evidence

submitted, although indicative of how difficult the membership process is, did not
establish that ZPHGA membership was granted based on outstanding achievements.
CAR at 166. In response to the RFE, Plaintiff stated that “only the best of the best
ultimately become licensed ZPHGA hunters and guides” and that “[t]he training and
ascension to professional status is rigorous, taking decades to complete, and those that
hold the title are recognized around the world as preeminent professional experts.”
CAR at 23.

Plaintiff referred again to the evidence submitted originally but also

submitted additional evidence, including several letters describing, among other things,
the lengthy and difficult process to obtain a hunting license in Zimbabwe and the
national and international reputation of that license. Id. at 23-24, 34-35, 41-43, 45,
48-49, 52-53, 55-56, 58-60. In its Denial Letter, USCIS acknowledged the additional
evidence Plaintiff submitted, noting that it “describe[s] the difficult process in
obtaining a hunting license in Zimbabwe.” Id. at 6. USCIS then concluded that
Plaintiff “has not submitted any evidence that [Mr. Ludick]’s membership was granted
based on previous outstanding achievements.” Id. at 6. USCIS decided that the
criterion was not met.
The Court turns first to USCIS’s reason for its decision. In its Response, USCIS
contends that “[t]he record evidence clearly supports the agency’s determination that
ZPHGA’s membership requirements do not requirement [sic] any ‘outstanding

ORDER – PAGE 24

achievement’ by the proposed member.” Resp. at 15. But USCIS stated in the Denial
Letter that Plaintiff “has not submitted any evidence that [Mr. Ludick]’s membership
was granted based on previous outstanding achievements.” CAR at 6. The reason
offered in the Response infers that USCIS considered the evidence and ultimately
determined ZPHGA does not require any outstanding achievement of its members.
Whereas, the stated reason in the Denial Letter centers solely on Plaintiff’s failure to
submit any evidence that membership was granted based on outstanding achievement.
“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.’” Eguchi, 2017 WL 2902667, at *3 (quoting SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947)). In this instance, USCIS’s decision on this
criterion rests solely on USCIS’s stated reason that Plaintiff’s “has not submitted any
evidence that [Mr. Ludick]’s membership was granted based on previous outstanding
achievements.” CAR at 6. Therefore, the Court will analyze this issue on the grounds
stated in the Denial Letter.
In this review, the Court is tasked with determining “whether or not as a matter
of law the evidence in the administrative record permitted the agency to make the
decision it did.” Redeemed Christian Church of God, 331 F.Supp.3d at 694. This criterion

ORDER – PAGE 25

required only that Plaintiff present documentary evidence of membership in an
association in Mr. Ludick’s field and which requires “outstanding achievements of their
members, as judged by recognized national or international experts in their disciplines
or field.” § 204.5(h)(3)(ii). USCIS does not dispute Mr. Ludick’s membership in
ZPHGA, which satisfies the first part of this criterion. Resp. Brief at 14. USCIS takes
issue with Plaintiff’s evidence as to demonstrating outstanding achievement required
of ZPHGA’s members. Plaintiff submitted evidence that ZPHGA requires its members
hold a Zimbabwe Professional Hunter and Guide License and also evidence which, in
USCIS’s own words, “describe[s] the difficult process in obtaining a hunting license in
Zimbabwe.” See, e.g., id. at 34, 45, 327-330, 332, 342-45. A review of this evidence in
the administrative record reveals Plaintiff submitted at least some evidence that an
outstanding achievement is required of ZPHGA members—for example, a Zimbabwe
Professional Hunter and Guide License is required for membership in ZPHGA, the
process for obtaining that license takes several years to complete and involves multiple
exams, the license is held in high regard nationally and internationally, and the license
is the hardest to obtain in all of Africa, with, on average, fewer than 10% of candidates
passing the shooting exam and only 30-40% passing the interview process the first time.
See, e.g., id. at 34, 45, 206-07, 327-330, 332, 342-45.

ORDER – PAGE 26

USCIS itself acknowledges that Plaintiff’s evidence demonstrates “the difficult
process in obtaining a hunting license in Zimbabwe.” CAR at 6. Yet, USCIS summarily
concluded that Plaintiff “has not submitted any evidence that [Mr. Ludick]’s
membership was granted based on previous outstanding achievements.”

Id.

The

Denial Letter fails to provide any explanation as to why Plaintiff’s evidence regarding
the Zimbabwe Professional Hunter and Guide License does not constitute “any
evidence” of “outstanding achievement” of ZPHGA’s members. See Rubin v. Miller, 478
F.Supp.3d 499, 506, 508 (S.D. N.Y. 2020) (USCIS’s failure to address why
documentation in record was not evidence of specific criteria was arbitrary and
capricious). The Court cannot conclude as a matter of law that the evidence in the
administrative record permitted USCIS to determine Plaintiff had not met this
criterion. See Delta Found., 303 F.3d at 563; Redeemed Christian Church of God, 331
F.Supp.3d at 694.
Based on the record, USCIS could not have rationally concluded that Plaintiff
did not submit any evidence that ZPHGA requires an outstanding achievement of its
members. Cf. Braga v. Poulos, 2007 WL 9229758, at *5 (C.D. Cal. July 6, 2007) (alien
submitted evidence of membership in Brazilian Jiu-Jitsu organizations and also that he
received a second-degree black belt in Brazilian Jiu-Jitsu, but he “has not shown, for
instance, that any of these organizations require a second-degree black belt to join.”).

ORDER – PAGE 27

Plaintiff presented at least some evidence on this criterion and USCIS failed to address
why that evidence was not evidence of “outstanding achievement” required of ZPHGA
members. See Rubin, 478 F.Supp.3d at 508; Muni v. I.N.S., 891 F.Supp. 440, 444
(N.D. Ill. 1995) (finding that then-Immigration and Naturalization Service “acts
without rational explanation (and therefore abuses its discretion) ‘when it fails to weigh
important factors and to state its reasons for denying relief.’”). Plaintiff has, therefore,
satisfied its heavy burden that USCIS’s decision as to this criterion was arbitrary or
capricious. See Eguchi, 2017 WL 2902667, at *1.
2.

Judge of the work of others

This criterion requires “[e]vidence 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
specification for which classification is sought.” § 204.5(h)(3)(iv). Plaintiff submitted
letters showing that, from 2006-2017, Mr. Ludick was an examiner for the joint
examination committee of ZPHGA and Zimbabwe’s Parks and Wildlife Management
Authority. CAR at 198; see, e.g., id. at 350-51, 353-54, 357. In this role, Mr. Ludick
examined prospective professional hunters and guides attempting to get their
professional license. Id. In the RFE, USCIS noted that the letters established Mr.
Ludick served as in this capacity as part of his job “and that he was not invited to serve
as a judge.” Id. at 15. USCIS asked for additional evidence to demonstrate that he

ORDER – PAGE 28

“participated in the judging of the work of others for which he was invited.” Id. In
response, Plaintiff stated that “Mr. Ludick was chosen to serve as an examiner, and
ultimately as chief examiner, for the ZPHGA licensing examination based on his
professional skill, merit, and reputation.” Id. at 26. Plaintiff further noted that Mr.
Ludick’s role as an examiner “was not attained based on his job with ZPHGA, rather
he was chosen based on his expertise.” Id. Plaintiff submitted further evidence in
support of this criterion, including multiple letters. Id. at 34-35, 41-43, 48-49, 52-53,
131-32. In its Denial Letter, USCIS concluded that the evidence “suggests that [Mr.
Ludick] was hired for this position and was not invited to serve in this position” and
that “[d]uties or activities that nominally fall within a given criterion at 8 C.F.R.
Section 204.5(h)(3) do not demonstrate national or international acclaim if they are
inherent to the occupation itself such as professor or teacher judging the work of his
students.” Id. at 7. USCIS then determined the evidence did not meet this criterion.
Plaintiff argues that USCIS’s decision was arbitrary and capricious because:
(1) it imposed an extra-regulatory requirement that Mr. Ludick must have been invited
to serve as a judge rather than as part of his job; and (2) it misconstrued the evidence
by improperly inferring that Plaintiff was hired for his role as examiner. Mot. at 8.
Turning

first

to

the

extra-regulatory

requirement,

the

clear

language

of

§ 204.5(h)(3)(iv) requires evidence that Mr. Ludick, individually or as part of a panel,

ORDER – PAGE 29

acted “as judge of the work of others in the same or an allied field of specification for
which classification is sought.” This statutory language does not require that Mr.
Ludick was invited to serve as a judge or that he served as a judge outside of his job,
both of which were the reasons articulated for USCIS’s decision.
The Court “must judge the propriety of such action solely by the grounds
invoked by the agency.” Eguchi, 2017 WL 2902667, at *4 (quoting SEC v. Cheney, 332
U.S. 194, 196 (1947)). USCIS’s reasoning “rests on an improper understanding of 8
C.F.R. § 204.5(h)(3)(iv).” See Kazarian, 596 F.3d at 1121 (affirming AAO erred in
concluding that petitioner was required to show he acted as a dissertation reviewer for
a university other than the one with which he was affiliated). It is well-established that
USCIS “may not unilaterally impose a novel evidentiary requirement.” Id. at 1121-22.
This criterion “does not require that the petitioner show he judge the work of others
outside of his or her job.” Kinuthia, 2018 WL 1243955, at *5 (concluding that USCIS
erred in imposing requirement on petitioner that he participate in judging outside of
his job). Likewise, this criterion does not require that the petitioner was invited to
judge the work of others.

USCIS unquestionably imposed a “novel, evidentiary

requirement,” and, so, the Court concludes USCIS erred in its determination of this
criterion. See Kazarian, 596 F.3d at 1121-22 (“Again, while the AAO’s analysis might

ORDER – PAGE 30

be relevant to a final merits determination, the AAO may not unilaterally impose a
novel evidentiary requirement.”).
Plaintiff submitted evidence that Mr. Ludick served as a co-examiner and also
chief examiner of the Joint Examination Committee for several years examining
prospective hunters and guides trying to obtain their Zimbabwe Professional Hunter
and Guide License. Plaintiff was not required to submit any evidence that Mr. Ludick
was invited to serve as a co-examiner or chief examiner or that this was not part of his
job. See Kazarian, 596 F.3d at 1121 (affirming AAO erred in concluding that petitioner
was required to show he acted as a dissertation reviewer for a university other than the
one with which he was affiliated). Plaintiff has satisfied its heavy burden that USCIS’s
decision as to this criterion was arbitrary or capricious. Eguchi, 2017 WL 2902667, at
*1. Because the decision was arbitrary and capricious on that basis, the Court need
not address Plaintiff’s argument that USCIS erroneously construed Plaintiff’s evidence
in concluding Mr. Ludick served as an examiner as part of his job.
3.

Remaining Evidentiary Criteria

USCIS determined that Plaintiff presented sufficient evidence that Mr. Ludick
commanded a high salary in relation to others in the field, thereby meeting one
criterion, § 204.5(h)(3)(ix).

CAR at 8.

Therefore, Plaintiff needed to establish

USCIS’s decision was arbitrary and capricious only as to two other criteria.

ORDER – PAGE 31

See

§ 204.5(h)(3) (alien may prove sustained acclaim or recognition with evidence of at
least three criteria). Because Plaintiff satisfied its heavy burden to show that USCIS’s
decision was arbitrary and capricious with respect to two criteria, the Court need not
address whether USCIS’s decisions on the remaining criteria were also arbitrary and
capricious. See Eguchi, 2017 WL 2902667, at *5.
C.

Remand

Plaintiff asks the Court to remand the matter with instructions that USCIS
approve the I-140 Petition within ten days. Pl’s Compl. at 16; see Reply at 9. When
an agency acts arbitrarily or capriciously, “the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.”
Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). The Court will remand but
not with such instructions as sought by Plaintiff. This matter will be remanded to
USCIS for further proceedings consistent with this Memorandum Opinion and Order.

ORDER – PAGE 32

IV.

Conclusion

For the foregoing reasons, Plaintiff met its heavy burden of showing USCIS’s
decision was arbitrary or capricious as a matter of law. Therefore, the Court grants
Plaintiff’s Motion for Summary Judgment.

This case is hereby remanded to

Defendant U.S. Citizenship and Immigration Services for further proceedings
consistent with this Memorandum Opinion and Order.
SO ORDERED.
Signed March 31st, 2021.
______________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE

ORDER – PAGE 33