Gulen v. Chertoff: USCIS MUST approve Extraordinary Ability Petition!

In a ruling dated 07/16/2008, the United States District Court for the Easter District of Pennsylvania ruled in favor of Plaintiff Fethullah Gülen in his suit against the Department of Homeland Security. The court ruled that had USCIS properly applied their standards in re the "Extraordinary Ability" requirements for the Form I-140 Petition Alien of Extraordinary Ability classification [under 8 U.S.C. § 1153(b)(1)(A)] that USCIS would have approved Mr. Gulen's Petition and granted him Lawful Permanent Residency under the Alien of Extraordinary Ability classification.

In late November of 2006, Gülen completed and filed an
Immigrant Petition for Alien Worker on USCIS Form I-140. In that
petition, he sought classification as an alien of extraordinary
ability under 8 U.S.C. § 1153(b)(1)(A). He paid a premium
processing fee of $1,000 in order to guarantee processing of his
petition within fifteen days in accordance with 8 C.F.R. §
103.2(f)(1). Both of these forms were received at the Texas
Service Center and processed on November 21, 2006.

On December 14, 2006, when USCIS had
failed to act on his petition within fifteen days, Gülen
requested a refund of the premium processing fee. To date, USCIS
has issued no refund.

On August 13, 2007, the USCIS Vermont Service Center
issued a request for evidence in support of Gülen's petition.
The request characterized Gülen as a "clergyman" on the basis of
the occupation listed on his original application. In its
request, USCIS said of the thirteen letters of support that Gülen
had already submitted, "[i]t is not clear how the writers of
these letters gained their knowledge of you or your expertise in
the field." In addition, with regard to photos of
Gülen with various religious leaders, the USCIS requested
"documentary evidence that establishes the importance of the
photos and the how and why [sic] they were taken."
USCIS also requested supporting documentation on the many
publications by and about Gülen that had already been submitted.

Gülen responded on October 4, 2007 by providing the
additional evidence as requested.

On November 19, 2007, the Vermont (ALMOST A YEAR LATER) denied the petition and a timely appeal was filed. On March 7, 2008, after accepting additional briefing from
Gülen, the Administrative Appeals Office ("AAO") dismissed
Gülen's appeal.

In its ruling, the District court established that it indeed has jurisdiction to hear the case and announced that:

"Under the Administrative Procedure Act, we will
reverse agency action if it is 'arbitrary, capricious, [or] an
abuse of discretion,' or 'unsupported by substantial evidence.'"
Soltane, 381 F.3d at 148 (quoting 5 U.S.C. § 706). In this
context, "[s]ubstantial evidence is more than a mere scintilla,
but is something less than the weight of the evidence, and the
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's findings
from being supported by substantial evidence." Port Norris Exp.
Co. v. Interstate Commerce Comm'n, 697 F.2d 497, 502 (3d Cir.
1982) (internal quotations omitted). Thus, if the Government can
point to substantial evidence that supports the AAO decision, we
must grant its motion for summary judgment. If it cannot, or if
that decision represents an incorrect or unreasonable application
of the relevant law, we must grant Mr. Gülen's motion."

The court examined whether the Plaintiff did, in face, have "extraordinary ability." By statute, an alien of extraordinary ability is one who "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,"
"seeks to enter the United States to continue work in the area of
extraordinary ability," and whose "entry into the United States
will substantially benefit prospectively the United States." 8
U.S.C. § 1153(b)(1)(A). The enabling regulations describe
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).
In order to demonstrate extraordinary ability, an applicant must
include either evidence of a major, international award such as a
Nobel Prize or at least three of the ten criteria listed in the
regulations.

The court found that contrary to the AAO examiner (who had only found the Plaintiff having met the education requirement) Plaintiff/Petitioner "has met the requirements of three of the subcategories of 8 C.F.R. § 204.5(h)(3).

In light of that conclusion, the District Court ruled that the AAO's determination that Mr. Gulen has not demonstrated extraordinary ability is contrary to applicable law and must be reversed.

The Court ruled that the DHS/AAO decision is vacated, that USCIS must approve Mr Gulen's petition by 08/01/2008 and must also refund the $1000 premium processing fee (or "bribe" as we like to call it).

Congratulations Mr. Gulen. Welcome to the United States!

In other Comprehensive Immigration Reform news...

I'm working on a presentation available to Missouri employers explaining to them exactly what the newly passed and signed Missouri immigration legislation means to them. I should have some firm dates for the presentation.

Onward & Upward!

ITH