Birendra Hamal v. DHS

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 21-5160 September Term, 2022 FILED ON: JANUARY 31, 2023 BIRENDRA BAHADUR HAMAL, APPELLANT v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-02534-RC) Before: MILLETT and RAO, Circuit Judges, and TATEL, Senior Circuit Judge. JUDGMENT This case was considered on the record from the United States District Court for the District of Columbia, as well as on the briefs of the parties. We have accorded the issues full consideration and determined that they do not warrant a published opinion. See D.C. CIR. R. 36(d). It is ORDERED AND ADJUDGED that the order of the United States District Court for the District of Columbia be AFFIRMED. I Birendra Bahadur Hamal is a Nepali citizen who works as a director of film and drama. In March 2017, Hamal filed an I-140 petition with the United States Citizenship and Immigration Services. That petition sought what is commonly known as an EB-1 visa for extraordinary ability, which allows highly accomplished individuals to obtain permanent residence in the United States. 8 U.S.C. § 1153(b)(1)(A); 8 C.F.R. § 204.5(h). Hamal sought an EB-1 visa based on exceptional accomplishment in the arts. Citizenship and Immigration Services denied Hamal’s petition. The Department of Homeland Security’s Administrative Appeals Office affirmed, concluding that Hamal did not meet the criteria to obtain an extraordinary ability visa. Hamal filed two motions to reconsider, both of which the Administrative Appeals Office denied. Hamal then filed suit in the United States District Court for the District of Columbia claiming that the Department’s decision was arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). The district court granted the Department’s motion for summary judgment. In so doing, the court acknowledged that Hamal “is * * * an impressive individual,” but held that the Department’s decision denying his petition is supported by the record and so was not arbitrary or capricious. Mem. Op. 12, J.A. 21. II The district court’s jurisdiction rested on 28 U.S.C. § 1331. Hamal filed a timely notice of appeal, and this court has jurisdiction under 28 U.S.C. § 1291. We review a district court’s grant of summary judgment de novo. Silver State Land, LLC v. Schneider, 843 F.3d 982, 989 (D.C. Cir. 2016). “An agency’s action withstands review under the Administrative Procedure Act unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Id. (quoting 5 U.S.C. § 706(2)(A)). III A The extraordinary ability visa is an “extremely restrictive” route for foreign nationals at the top of their professions to obtain permanent residence in the United States. Kazarian v. United States Citizenship & Immigr. Servs., 596 F.3d 1115, 1117–1122 (9th Cir. 2010) (upholding denial of petition of a published theoretical physicist specializing in non-Einsteinian theories of gravitation); see also Rijal v. United States Citizenship & Immigr. Servs., 772 F. Supp. 2d 1339, 1342 (W.D. …

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