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Kinuthia v. Rosenberg

United States District Court, D. Massachusetts

March 8, 2018

ISAAC GICHURU KINUTHIA, Plaintiff,
v.
RON ROSENBERG, Chief of the AAO, Honorable JOHN F KELLY, et. al. Defendants.

          MEMORANDUM AND ORDER

          LEO T. SOROKIN, CHIEF U.S. MAGISTRATE JUDGE

         The plaintiff, Isaac G. Kinuthia, challenges the denial of his I-140 visa petition by Defendants Ron Rosenberg, the Chief of the Administrative Appeals Office (“the AAO”); the Honorable John F. Kelly, Secretary of the Department of Homeland Security; Leon Rodriguez, the Director of the United States Customs and Immigration Service (USCIS); and Mark Hazuda, Director of USCIS Nebraska Service Center, alleging the denial of his petition was arbitrary and capricious, in violation of the USCIS's established rules and procedures and the Administrative Procedure Act (“the APA”), and in violation of the Due Process clause of the Fifth Amendment of the Constitution. Doc. No. 1. Defendants move to dismiss, Doc. No. 11, and Kinuthia opposes. Doc. No. 13.

         I. BACKGROUND[1]

         A. Factual Background

         Kinuthia, a citizen of Kenya, has resided in the United States since August of 2002. Doc. No. 1 at 10. In 2006, he received a Bachelor of Science degree in Civil Engineering from Michigan Technological University (“Michigan Tech”). Id. at 10. He is an engineer, holding a professional license in civil engineering from the States of Wisconsin and Michigan. Id. at 10-11. He is also a member of the National Society of Professional Engineers (“NSPE”). Id.

         During the time that Kinuthia has resided in the United States, he has worked as an assistant engineer at the Wisconsin Department of Transportation (“WisDOT”), where he “provided guidance on environmental and storm water policies, rules, regulations, and guidelines, ” and performed “environment reviews, analysis, and coordination of transportation improvement projects.” Doc. No. 1-2 at 4. He has also worked in Midland County, Michigan as a part of a team that created a model to predict flooding. Id.

         In 2016, Kinuthia self-published a book A Preview of Jesus' Seminal Teachings and Leadership, which discusses topics such as “sanctity of life” and “when does life begin.” Doc. No. 1 at 26. The book is available for sale on Amazon.com and at Barnes & Noble stores. Id. at 26.

         A. Procedural History

         On January 5, 2015, Kinuthia filed a petition for an I-140 visa seeking classification as an individual of extraordinary ability in the sciences (“EB-1 extraordinary ability in the sciences classification”) with the USCIS Nebraska Service Center. Doc. No. 1 at 9. The USCIS Nebraska Service Center denied Kinuthia's petition on September 21, 2015. Id. Kinuthia appealed the decision to the AAO, which the AAO denied on October 3, 2016. Id. Kinuthia then filed a joint motion to reopen and for reconsideration with the AAO, which, on February 2, 2016, the AAO also denied. Id. The AAO's February 2, 2016 denial of the motion for reconsideration is the final agency determination in this case. Id. The AAO's letter of explanation is attached to the Complaint as exhibit 2. See Doc. No. 1-2.

         On February 16, 2017, Kinuthia filed this action challenging the AAO's decision, and asking the Court to vacate the decision and direct the AAO to declare Kinuthia an alien of extraordinary ability. See Id. at 32.

         B. The Final Administrative Decision

         The EB-1 extraordinary ability in the sciences classification is a designation intended for “priority workers.” 8 U.S.C.A. § 1153. The designation is available to an alien who:

has extraordinary ability in the sciences . . . 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 . . . will substantially benefit prospectively the United States

8 U.S.C.A. § 1153

         Pursuant to 8 C.F.R. § 204.5(h)(3), to be eligible for an EB-1 extraordinary ability in the sciences classification, an alien may present evidence that he or she “sustained national or international acclaim” through a major “one-time achievement, ” or evidence that he or she meets at least three of the following ten criteria:

1. Receipt of “lesser nationally or internationally recognized prizes or awards for excellence” in the sciences;
2. “[M]embership in associations in [the sciences], which require outstanding achievement of their members”;
3. “Published material about the alien in professional or major trade publications or other major media, relating to the alien's work” in the sciences;
4. “[P]articipation, either individually or on a panel, as a judge of the work of ...

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