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Kazarian v. US Citizenship & Immigration Servs. - 596 F.3d 1115 (9th Cir. 2010)


Pursuant to 8 U.S.C.S. § 1153(b)(1)(A), aliens may apply for a visa on the basis of extraordinary ability. An alien can prove an extraordinary ability in one of two ways. The first is evidence of a one-time achievement (that is, a major, international recognized award). 8 C.F.R. § 204.5(h)(3). The second way to prove extraordinary ability is to provide evidence of at least three of the 10 items listed in 8 C.F.R. § 204.5(h)(3)


Kazarian, a 34-year-old native and citizen of Armenia, filed an application with the United States Citizenship and Immigration Service (USCIS) for an employment-based immigrant visa for "aliens of extraordinary ability" contending that he was an alien with extraordinary ability as a theoretical physicist. Kazarian received a Ph.D in Theoretical Physics from Yerevan State University in Yerevan, Armenia, specializing in non-Einsteinian theories of gravitation. In support of his application, Kazarian submitted several letters of reference. Kazarian also noted that he had authored a self-published textbook, titled "Concepts in Physics: Classical Mechanics." Finally, Kazarian presented evidence of his Science Lecture Series at Glendale Community College. USCIS denied the petition. Kazarian appealed the denial to the Administrative Appeals Office (AAO) but the AAO dismissed the appeal, finding that Kazarian failed to satisfy any of the evidentiary criteria set forth in the relevant "extraordinary ability" visa regulations. Having exhausted his administrative remedies, Kazarian filed a complaint in the United States District Court for the Central District of California. The district court granted the USCIS's motion for summary judgment, and Kazarian appealed the summary judgment.


Did the court properly issue summary judgment against appellant?




The court held that summary judgment was appropriate and affirmed the trial court. Pursuant to 8 C.F.R. § 204.5(h)(3), extraordinary ability was shown either by evidence of a one-time achievement, such as a major internationally-recognized award, or by showing at least three items of evidence listed in 8 C.F.R. § 204.5(h)(3). The alien conceded he had not won a major award. In determining whether he showed evidence listed in § 204.5(h)(3), the agency clearly erred by reading § 204.5(h)(3)(vi) to require proof of the research community's reaction to his articles before considering them as evidence. It also erred in interpreting § 204.5(h)(3)(iv) to require proof that dissertations he judged were from a university he was not affiliated with for the judging to be evidence. However, reversal was not warranted because the errors were harmless pursuant to 5 U.S.C.S. § 706. The agency should have found that the alien presented two types of evidence under 8 C.F.R. § 204.5(h)(3), but three were required.

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