UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BIRENDRA BAHADUR HAMAL, : : Plaintiff, : Civil Action No.: 19-2534 (RC) : v. : Re Document No.: 10 : U.S. DEPARTMENT OF HOMELAND : SECURITY, et al., : : Defendants. : MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS I. INTRODUCTION This case concerns Plaintiff’s petition asking the United States Citizenship and Immigration Services (“USCIS”) for classification as an individual of extraordinary ability in the arts. Plaintiff is a native and national of Nepal who sought this classification through Form I-140 based on his accomplishments and career as a director of drama and film. Compl. ¶¶ 16–18. USCIS denied Plaintiff’s petition and later denied an appeal and successive motions to reconsider and reopen. Id. at ¶¶ 27–30. Plaintiff filed suit on June 21, 2019 seeking review of the denial under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and the U.S. Constitution, claiming the denial constitutes arbitrary and capricious agency action and a violation of Plaintiff’s right to Due Process. Compl. ¶¶ 31–39. Defendants now move to dismiss under Rule 12(b)(6), arguing that the Complaint fails to state a plausible claim for relief. See Defs.’ Mot. Dismiss (“Defs.’ Mot.”), ECF No. 10; Defs.’ Mem. Supp. Mot. Dismiss (“Defs.’ Mem.”), ECF No. 10-1. For the reasons set forth below, the Court grants in part and denies in part Defendants’ motion. II. BACKGROUND A. Legal Framework The Immigration and Nationality Act (“INA”) allocates a certain number of visas for immigrants possessing “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.” 8 U.S.C. § 1153(b)(1)(A)(i). The “extraordinary ability” designation is “extremely restrictive.” Visinscaia v. Beers, 4 F. Supp. 3d 126, 131 (D.D.C. 2013) (quoting Lee v. Ziglar, 237 F. Supp. 2d 914, 919 (N.D. Ill. 2002). While the INA does not define “extraordinary ability,” under federal regulations, the term “means 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). Perhaps unsurprisingly, courts have found that even highly accomplished individuals fail to win this designation. See Kazarian v. USCIS, 596 F.3d 1115, 1122 (9th Cir. 2010) (upholding denial of petition of a published theoretical physicist specializing in non-Einsteinian theories of gravitation); Lee, 237 F. Supp. 2d at 918 (finding petition of “arguably one of the most famous baseball players in Korean history” properly denied where petitioner sought to coach baseball). A petitioner seeking this designation must first submit evidence of either a one-time achievement, such as a major internationally recognized award, 8 C.F.R. § 204.5(h)(3), or evidence of at least three of the ten other types of achievements specified by regulation, 8 C.F.R. § 204.5(h)(3)(i)–(x). After an initial showing, USCIS then makes a “final merits determination,” weighing the totality of the evidence to determine ...
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