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Gulen v. Chertoff

July 16, 2008

FETHULLAH GULEN
v.
MICHAEL CHERTOFF, ET AL.



The opinion of the court was delivered by: Dalzell, District Judge

MEMORANDUM

Plaintiff Fethullah*fn1 Gulen challenges the denial by the United States Citizenship and Immigration Services (USCIS) of his petition on Form I-140 for classification as an alien of extraordinary ability under 8 U.S.C. § 1153(b)(1)(A). Before us are a joint statement of facts, the complete administrative record, and the parties' cross-motions for summary judgment. There being no material factual disputes, the issues raised in those motions are ripe for decision.

I. Facts

In late November of 2006, Gulen 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. Administrative Record ("AR") at 242-245 (showing processing stamps applied by USCIS). On December 14, 2006, when USCIS had failed to act on his petition within fifteen days, Gulen requested a refund of the premium processing fee. To date, USCIS has issued no refund. Jt. Statement of Facts ("JSOF") ¶ 4.

On August 13, 2007, the USCIS Vermont Service Center*fn2 issued a request for evidence in support of Gulen's petition. The request characterized Gulen 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 Gulen 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 ." AR at 141. In addition, with regard to photos of Gulen 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." Id. at 142. USCIS also requested supporting documentation on the many publications by and about Gulen that had already been submitted. Id. Gulen responded on October 4, 2007 by providing the additional evidence as requested.

On November 19, 2007, the Vermont Service Center denied Gulen's petition. On December 18, 2007, Gulen filed an appeal of the denial, complaining that the "conclusions made in denial were arbitrary & capricious, did not correctly apply the law." Id. at 136. On March 7, 2008, after accepting additional briefing from Gulen, the Administrative Appeals Office ("AAO") dismissed Gulen's appeal. Although this lawsuit was already pending, Gulen amended his complaint to incorporate the denial of his I-140 petition.

II. Analysis

A. Jurisdiction

The Government does not assert that we lack jurisdiction over this case, but we nevertheless have an obligation to examine our jurisdiction, especially in light of the constricted jurisdiction of federal district courts over immigration matters since Congress adopted the REAL ID Act of 2005. 8 U.S.C. § 1252(a)(2)(B)(ii), the most relevant provision of that Act, only strips us of jurisdiction to review discretionary decisions of the Secretary of Homeland Security where that discretion is specified in the statute. Khan v. Attorney Gen., 448 F.3d 226, 232 (3d Cir.2006); Soltane v. United States Dep't of Justice, 381 F.3d 143, 146 (3d Cir.2004). Rather than committing a decision on an extraordinary ability petition to the discretion of the Secretary of Homeland Security, 8 U.S.C. § 1153(b)(1) says that "[ v] isas shall first be made available ... to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C)" (emphasis added). Thus, the statute does not explicitly commit this decision to the Secretary's discretion and, in fact, requires the issuance of a visa to aliens who meet the statutory qualifications.

Because we are aware of no provision that limits our jurisdiction over this matter, and the Government points to none, we find that we have jurisdiction to consider Gulen's petition.

B. Standard of Review

"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. Gulen's motion.

C. 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 ...


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