The opinion of the court was delivered by: Townes, United States District Judge:
The plaintiff, Hristo Hristov, seeks permanent immigration classification as an alien with extraordinary ability from the United States Citizenship and Immigration Services ("USCIS"), pursuant to Section 203(b)(1)(A) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1153(b)(1)(A). After the defendant, David Roark, the director of the USCIS Texas Service Center (the "director") and Administrative Appeals Office ("AAO") dismissed the matter, the plaintiff appealed to this Court. The director subsequently filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). This Court now converts the motion into a motion for summary judgment, and for the reasons set forth below, grants summary judgment in favor of the director.
The plaintiff, a native and citizen of Bulgaria, entered the United States with a visitor B2 visa on December 2, 1996. (Letter from Hristov to the Hon. Sandra L. Townes dated Jan. 20, 2010 ("Jan. 20 Letter")). The plaintiff thereafter applied for and was awarded a nonimmigrant O-1 visa as an alien with extraordinary ability. His O-1 visa was extended four times and was valid from September 1, 1997, through August 15, 2008. (Id.).
On July 27, 2007, the plaintiff filed Form I-140 with the USCIS Nebraska Service Center, seeking employment-based permanent immigration classification as an alien with "extraordinary ability" under Section 203(b)(1)(A) of the Act, 8 U.S.C. § 1153(b)(1)(A). At the time, the plaintiff was employed by Baez Entertainment 2000, Inc. ("Baez Entertainment") and listed his occupation as "Teacher of Dramatic Arts." (Permanent Record of USCIS ("R. of USCIS") at 4).
To support the petition, the plaintiff submitted evidence of his involvement as an actor, director, producer and screenwriter in a variety of organizations, plays and films, dating from his youth in Bulgaria through his recent work in the United States. He supplied evidence of his performance in plays entitled "Our Town" and "Romeo and Juliet" at the Benidorm International Theatre Festival in Benidorm, Spain; his work as a part-time lecturer at the Damascus National Theatre and National Academy for Theatre and Film Arts ("NATFA") in Sofia, Bulgaria; his leading role as Jesus Christ in the hit play entitled "The Secret Gospel of John" in Sofia, Bulgaria; his involvement in the making of the film entitled "The Definition of Insanity"; his membership in the Harlem Arts Alliance Dramatic Writing Academy ("Harlem Writing Academy") and Screen Actors Guild ("SAG"); his work with young actors as a volunteer at the Impact Repertory Theatre of Harlem ("Repertory Theatre"); and his supporting role in the play entitled "Marco the Prince." The plaintiff furnished evidence that, as an employee of Baez Entertainment, he primarily taught acting classes. (Id. at 138-41). While working for Baez Entertainment, he also wrote and directed television commercials and produced films, including "Racket," a twelve-minute award-winning film. (Id.).
On October 7, 2008, the director sent a letter to the plaintiff indicating that the director was unable to process the petition without further evidence and listed specific evidentiary deficiencies. (Id. at 51-53). The plaintiff thereafter responded to the director's request and supplied supplementary evidence. (Id. at 57-68). On November 24, 2008, the director dismissed the petition, finding that the plaintiff furnished insufficient evidence to qualify as an alien with "extraordinary ability." (Id. at 142-47). The plaintiff appealed to the AAO and supplied a brief and supplementary evidence. (Id. at 149-52, 162-73). The AAO, however, affirmed the director's decision and dismissed the appeal on May 26, 2009. (Id. at 199-11). The plaintiff thereafter filed this action on June 25, 2009 and a corresponding complaint on December 25, 2009. The plaintiff was represented by counsel before the USCIS but pursues this appeal pro se.
On December 28, 2009, the director filed a pre-motion letter wherein he sought leave to move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Thereafter, on January 20, 2010, the plaintiff filed a letter with this Court, requesting a hearing and responding to the director's pre-motion letter. In an order dated May 4, 2010, this Court denied the director's request to move for judgment on the pleadings but granted leave to move to dismiss under Fed. R. Civ. P. 12(b)(6). On June 21, 2010, the parties filed their respective motions and response papers. This Court took note that the director's motion to dismiss was styled as a motion for summary judgment, as the director relied heavily on documents outside the pleadings. (Docket No. 19 at 1). Given the plaintiff's pro se status, on April 28, 2011, this Court notified the plaintiff pursuant to Local Rule 12.1 of its intention to convert the director's submission into a motion for summary judgment. (Id.) The plaintiff filed an affidavit in response to the notification, reiterating his prior arguments. (Docket No. 20).
Prior to ruling on this matter, this Court also issued an order to show cause, granting the plaintiff thirty days to show why the action should not be dismissed for lack of subject matter jurisdiction. (Order to Show Cause dated Oct. 27, 2010, at 4-5). The plaintiff filed a letter in response to this Court's order, and the director filed a reply letter.
Generally, there is a "strong presumption in favor of judicial review of administrative action." Nethagani v. Mukasey, 532 F.3d 150, 154 (2d Cir. 2008) (quoting INS v. St. Cyr, 533 U.S. 289, 298 (2001)). In fact, the Administrative Procedure Act provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Subject matter jurisdiction of the courts, however, has been limited in the immigration context. The Act was amended to preclude judicial review of any "decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security," other than the grant of asylum. 8 U.S.C. § 1252(a)(2)(B)(ii). "The phrase 'this subchapter' refers to subchapter II of Chapter 12 of Title 8 of the United States Code, which includes §§ 1151-1381." Guyadin v. Gonzales, 449 F.3d 465, 468 (2d Cir. 2006). In this case, judicial review is not prohibited, because 8 U.S.C. § 1153(b)(1)(A), the statute under which the plaintiff sought preferential classification, does not specify that the decision is "in the discretion of the Attorney General," as required by 8 U.S.C. § 1252(a)(2)(B)(ii).
The "grant or denial of a visa preference classification is within the discretionary powers of the [USCIS]," Fedin Bros. Co. LTD v. Sava, 724 F.Supp. 1103, 1105 (E.D.N.Y. 1989) affirmed by 905 F.2d 41 (2d Cir. 1990); however, the question is not whether the USCIS has discretion to grant or deny a visa classification. Nethagani, 532 F.3d at 154. Rather, the inquiry is limited to whether the language of the pertinent provision "'specifie[s]' that the 'decision' is 'in the discretion of the Attorney General.'" 8 U.S.C. § 1252(a)(2)(B)(ii); Nethagani, 532 F.3d at 154. As a result, this Court has subject matter jurisdiction and may review the agency's action.
Since the USCIS had discretion to grant or deny the petition, this Court's review is "limited to whether the decision of the [USCIS] was arbitrary, capricious or an abuse of discretion." Fedin Bros. Co., 724 F.Supp. at 1106 (citing 5 U.S.C. § 706(2)(A); Pancho Villa Rest., Inc. v. U.S. Dep't of Labor, 796 F.2d 596, 597 (2d Cir. 1986)). Under this standard, reversal would require that this Court find that no reasonable fact finder could have come to the USCIS's erroneous conclusion. INS v. Zacarias, 502 U.S. 478, 481 (1992); Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto., 463 U.S. 29, 43 (1983) ("[T]he scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency . . . .").
As noted above, this Court notified the plaintiff pursuant to Local Rule 12.1 of its intention to convert the director's submission into a motion for summary judgment. (Docket No. 19 at 1). See, e.g., In re G & A Books, Inc., 770 F.2d 288, 294-95 (2d Cir. 1985); see also Green v. Doukas, 2000 WL 236471, * 2 (2d Cir. 2000) (holding that a district court has discretion to convert a motion to dismiss into a motion for summary judgment). The "essential inquiry" in exercising this discretion is whether the parties "should reasonably have recognized the possibility that the motion might be converted to one for summary judgment or [whether they were] taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleading." In re G & A Books, Inc., 770 F.2d at 294-95. Since both parties submitted extrinsic evidence to support their position, this Court can fairly convert the motion to dismiss into a summary judgment motion. Fed. R. Civ. P. 56; Id.
Summary judgment is appropriate if the pleadings and record, when viewed in the light most favorable to the nonmoving party, demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex v. Catrett, 477 U.S. 317, 323 (1986). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex, 477 U.S. at 323-24. However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Id.; Fed. R. Civ. P. 56(e)(2). Furthermore, in a pro se case, the court must view the submissions by a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972).
Lastly, "a reviewing court defers to the consideration accorded a statute by the agency in charge of its administration." Bertrand v. Sava, 684 F.2d 204, 217 (2d Cir. 1982). This Court's inquiry is limited to whether the agency's interpretation is "based on a permissible construction of the statute." Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984). Thus, even if this Court disagrees with the USCIS's statutory construction, it "may not substitute [its] own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Id. at 844. "[P]petitioner . . . carries the burden of proving that the applicant is entitled to the visa classification." Fedin Bros. Co., Ltd., 724 F.Supp. at 1105.
The plaintiff sought preferential classification as an "[a]lien with extraordinary ability" under 8 U.S.C. § 1153(b)(1)(A) of the Act. This classification is intended to be limited to individuals who have such "a level of expertise" that they are "one of that small percentage who have risen to the very top of the field of endeavor." 8 CFR § 204.5(h)(2). An alien fits within this classification if:
(i) the alien 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,
(ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and
(iii) the alien's entry into the United States will substantially benefit prospectively the United States.
8 U.S.C. § 1153(b)(1)(A). 8 C.F.R. § 204.5(h)(3) further provides that "[a] petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his . . . achievements have been recognized in the field of expertise." This can be established in one of two ways. The first is "evidence of a one-time achievement (that is, a major, international recognized award)." Id. The plaintiff did not make this evidentiary showing. The second is to provide evidence of at least three of the following:
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of ...