# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



## No. 21

- 5160 September Term, 202 2

F ILED O N : J ANUARY 31, 202 3

B IRENDRA B AHADUR H AMAL

, A PPELLANT

v.

U

NITED S TATES D EPARTMENT OF H OMELAND S ECURITY

, ET AL

., A PPELLEES

Appeal from the United States Di strict Co u rt
for the District of Columbia

(No. 1:19

- cv

- 02534

- RC)

Before: M ILLETT an d R AO

, Circuit Judges , and T ATEL

, Senior Circuit Judge

.

J U D G M E N T

This case was considered on the record from the United States Dist r ict Court for the Di strict of Columbia, as well as on the briefs of the parties. We have accorded the issues full consideration and determined that they do not warrant a p ublished opinion. See D.C. C IR . R. 36(d). It is

ORDERED AND ADJU DGED that the or d er of the United St ates District Court for the District

of Columbia be AFFIRMED

.

I

Birendra Bahadur Hamal is a Ne pali citizen who wor ks as a director of film a n d drama

. I n March 2 017

, Hamal filed a n I

- 140 petition with the United States Citizenshi p and Immigration

Servic es . That petition sought what is commonly known as an EB

- 1 visa for extraordinary ability

, which allows highly accomp lished individua l s to obtain permanent residence in the Unite d States

. 8 U.S.C. § 1153(b)(1)(A) ; 8 C.F.R . § 204. 5 ( h). Hamal sought an EB

- 1 visa based on excep tional accomplishment in the arts.

Citizens h i p and Immigration Service s de nied Hamal ’ s petition

. The D epartme nt of Homeland Security ’ s Admi ni strative Ap peals Office affirme d

, concluding that Hamal did not meet

the c riteria to obta in an extraordinary abili ty visa. H am al filed two motions to reconsider, both of

whic h the Ad ministrative Appe als Office denied.Hamal then filed suit i n the U n ited States D istrict C ourt for the Distri ct o f Columbia claiming

that the D e partment ’ s decis ion w a s arb itrary a nd capricious in violation of the Administrat ive

P ro cedure Act

, 5 U.S.C. § 706(2)(A)

. T he district court grante d the D e pa r tment ’ s motion for summary judgment

. In s o do ing, the cour t acknowledge d that Hama l “ is * * * an i mp ressive

indiv idual, ” bu t held that the Department ’ s decision denying his petition is supported by the record

and so was not a rbitrary or capr i c ious. Mem. Op. 12, J.A. 21.

II

Th e di strict court’s jurisdiction rested on 28 U.S.C. § 133 1

. Hamal fil ed a timely notice of appeal

, and t his court has jurisdiction under 28 U.S.C. § 1291.

We review a district court’s grant of summar y ju d gment de n o vo

. Silver State Land, LL C v. Schneider , 843 F.3d 982, 989 (D.C. Cir. 2016)

. “An agency ’ s action withstands review under th e Administrative Procedure Act unless it is ‘arbitrary, capricious, an ab use of discretion, or other wis e not in acc or da n ce wi th l a w. ’ ” Id . (quoting 5 U.S. C. § 706(2)(A)).

III

A

The extraordinary ability visa is a n “ extremely restrictive ” route for fore ign nationals at the top of their professions to obtain permanent residence in the United States. Ka zari an v. United

States C iti zenship & Immigr. Servs

. , 5 96 F. 3d 111 5, 11 17

– 112 2 (9 th Cir. 2010) (upholding denial of petition of a published theoretical phy sicist specializing in non

- Einsteinian theories of gravitat ion) ; see also Rijal v. U nited S tates Citizenship & Immigr. Serv s

. , 77 2 F. Supp. 2 d 1339, 1 342 (W .D.

Wash. 2 011) (upholding denial of petition of a Nepali citizen who “helped establish the televisi on industry in Nepal,” despite evidence that he “achiev ed substantial success over nearl y three decades

of work in the tele vision and film industry ”)

, aff’d , 683 F.3d 1030 (9th Cir. 2012)

. Th e visa is

ava i lable only to those who possess “ extraordinary ab i lity in the scie nces, arts, education, business,

or athletics which has been demonstrated by sustained nati ona l or internat i onal acclaim and whose

achievem ents have be en r eco gnized in the field through ext e nsive documentation [

. ] ” 8 U.S.C. § 1153 ( b )( 1 )( A )(i)

.

To qualify for an extraordinary ability visa, a petitioner f irst m us t submit “[i]nitial evid enc e”

t hat h e “ has sustained national or intern ational acclaim and t hat his * * * achievements h ave b een recogniz ed in the field of [his ] expertise. ” 8 C.F.R. § 204.5 (h)(3). That showing must include ( 1)

“ evidence of a one

- time achie vement (that is, a major, i nte rnational recognized award)

, ” or (2) at
least three out of ten enumerated categor ies of evid ence t hat demonstrate the petitioner ’ s achievement in h is field. See i d

. O nce the petitioner makes that thresho ld showing, Ci t i zenship and Immigration Ser v ice s determines whether the petitioner has demonstrated both a “ l evel of expertise

indica ting that the indi vidual is one of th at small percentage who have risen to t he very top of the[ir]

field of endeavor

, ” and “that the [ind iv idual] has sustain ed nationa l or int er nat ional acclaim and that

his or her achievements have been recognized in the f ield of ex pertise. ” Id

. § 204.5(h) ( 2)

– (3) ;
Kazarian , 5 96 F.3d at 11 21

.B

The re is no dispute in this case that Hamal made the initial showing of substan tial professional accomplish ment in the a rts. Hamal showed that he directed plays at theaters

, part ic i pa ted as a judge

for a drama competiti on, a nd earned a high salary compared with other theater directors in Nep al.

A s a res ult, the sole question on appeal is whether the Department ’ s conclus ion that Hamal fa iled to demonstrate the exceptional ism required at th e second step i n t he pro cess was arbitra ry or capricio us.
It was not

.

At t he secon d step , Hamal had to dem onstr ate not jus t that he is accomplished in the arts, but

also that ( 1) he is one o f a smal l perce n tage who have r is en to the v ery t op of his fie ld, ( 2) he has

sustained national or international acclaim over time , and ( 3) his achi evemen ts hav e been recognized

in the field s of film or drama throu gh extensive docu mentation. 8 C.F.R. § 2 04.5(h) (2)

– (3) ; 8 U.S.C. § 1153(b)(1)(A)

.

I n an eff or t to m e et that exa cting standard, Ha ma l submitted exten sive evidence , including

various a wards he r e ceived wit hin Nepal , his experie nce directing and judging many performance s and art competitions, his membership in guild s an d cu ltural a ssociations r elated t o the f iel d of drama,

and se veral articles a nd letters vouching for his contributions t o the fiel d s o f d ram a or film

.

The Department ’ s decision th oroughly r eviewe d Hamal ’ s e vidence and reasonably exp lain ed why, for each c ategor y of ev id enc e, Hamal ha d not sh own that he had risen to the very top of his

fie ld

, enjoyed susta ined a ccla im, or atta ined recogniz ed achiev ements. For instance, Hamal

subm itted documentation that he had received several awards fr o m organiza ti on s af filiate d wit h the

Governmen t o f Nep al, such as four best drama director awards , one service awar d

, one reg ional

t alent a ward , and one drama theat e r award

. Without more, though

, th ese awards did not evidence

Hamal ’ s statur e as at the to p of hi s fie ld or indicate that h e has attained re cogniz ed achievements

. More s pecifically, Hamal “did not de monst rate that th e field recognizes these a s awards for

excellence [ ,] ” and failed to provide a ny record evidence that the “ competitions included

acco mplished di rect ors and art ists from throughout [his] fi eld reflecting that he received awards against accla imed compe tition

. ” J

. A. 201 (citing M at ter of Price , 20 I

. & N

. D e c . 953, 954 ( Assoc.

Comm ’ r 1994) (ho lding that even a thlet es perfo r ming in the premier leagu e of their sport do no t automatically s atisf y step two of the extraordinary ability vi sa proc ess ) )

.

Hama l simil arly failed to provide nee ded context for his directorial and judging exp er ience

and the response to his wor k. For e x ample, Hamal provided e v i dence t ha t h e had jud ge d several

drama compe t ition s , but fai l ed t o show that he served as a judg e of renow ned dir ectors as opposed to aspi r ing arti sts , or that the competi ti ons are “ consi dered prestigious or attrac t significant a ttent ion by

the field

. ” J

. A

. 2 02. As to H amal ’ s evidenc e that hi s pla ys were “display ed at various venues,”

Hamal did not sho w “tha t his p lays brought praise from c ritics, dre w notable crowds, raised attendance, or were responsible for the success or sta nd ing of the event.” J.A

. 20 3. Fur ther, Ham al “d[id] not disti nguish” his work “fro m oth ers in his field [.] ” J.A. 203

. The press c ov erage that

Hamal submitt ed d id not fill in the gaps bec ause t he articles w ere undat ed , were outdated, or l ack ed

in dicia tha t they derived from a p rofessi onal or m a j or trade publicat ion or an o ther signific ant

m edium. J .A

. 202. B ecau se Hamal failed t o p rovide the needed contex t for his experience s and theresponse to his work , the Department reasonably det ermined t hat he had failed to establish that he is

one of a s mall pe rcent age who have ris en to t he to p of his fiel d, that he has su stained national or international a cclaim, a nd that his achievements have been recognized in t he field s of film or drama.

H amal’s evidenc e of membership i n the Nepal Cultural Ass oc ia tion, th e Fi lm Director’s

Guil d of Nepal , and the Film Ar tiste s Asso ciation of Nepal , w hile demonstrating his prof essional

stature

, also did no t establish the excep tional level of distinction required for this extraordinary

ability visa. In p articular

, Hama l did not est a blish that th o se organi zations limit membership to

r eno wned direc tors o r th a t mem bership requires ou tstanding achievements

. J.A. 201

– 202.

S im i lar ly, though Hamal submitted documentati on that he founded or served on the board o f severa l organiza ti ons whe r e h e was respo n s ible fo r “ spreading the Nepalese dra ma direction in s ev eral villages [,] ” the recor d is de void of evidence that “ his work a t thes e organizations has been recognized by th e f ield as being significantly important or viewed as unusual ly influe n tial [,] ” or th a t
he “ha s somehow impacted the field through his work * * * a t a level commensurate with those at the very top of the field o f en deavor

. ” J

. A

. 203

.

Hamal d id demonstr ate that he received a high salary fo r his work com pared to o th er dire c t ors . But the Departme nt well explained its conclus ion that sala ry evi denc e alone was

insufficien t to e stablish Hamal as a singularly excep tional artist due to the other gaps in his evide nce

.

Ham a l ’ s relia nce on a handful of district court case s fin ding that the gove rnment had

insuffic iently justified th e de nial of e xtraor dina r y

- ability petition s do es not help his cause

. See Hamal Opening Br. 27 (citing Grimson v. INS

, 9 34 F. Supp. 965 (N.D. Ill. 1996); Mu ni v. INS , 891 F. Supp. 440 (N.D. Ill. 1995) ; Buletini v. INS

, 860 F. Supp. 12 22 (E.D. Mich. 1994))

. Unlik e Hamal,

the p la i ntiff s in those cases provided the needed context f or the ir awards

, achievement s , and

contrib ut ions t o the field ( or the c ontext was self

- evident )

. See Grim son , 934 F. Supp. at 969 ( plai ntiff d emonstrated that he was among the to p three hockey enfo rcers i n the world); Muni , 891 F. Supp. at 444 ( p lai ntiff ’ s award s included best hi tting defensema n ) ; Buletini , 860 F. S upp. at 123 2 ( “ [P] laintiff submitted a letter of reference * * * s ta ti ng, inter a lia , that plaintiff ’ s dic ti onary is an

or iginal work th at wil l provide invalu able ass istance to all pers ons w ho write or translate from the German language [ .] ” ) ( emphasis omit ted) ; co ntra J .A. 203 ( “ [Hamal] did not establis h that th[e ]

cl aimed skill [of ‘ b ringing dramaturgy and cinematograph ic mode s of perform ance t o gether ’ ] i s an origina l contribution that i s considered of major signif icance in the field. ” ).

In sum, b ecause the Department reasonably explain ed its det ermi n ations, gr ounde d t hem in

the reco rd, and rationally connect ed th e fac tual record to its d ecisi o n , Hamal ’ s ar bitrar y

- an d

capri cious challen g e fails. See Motor Vehicle Mfrs. As s’n v. State Farm Mut. Auto. Ins

. , 463 U. S. 29, 43 (1983) ( “ The scope of r eview u nder the ‘ arbit rary and capriciou s ’ standard is narrow and a

court is not to substitute its ju d g ment for t hat of the a gency. ” )

.

C

Hamal separately argues that the Department wrongly required him to est ablish international

acc laim , rather than just n ational acc l a im

. Hamal Opening B r. 21

. Hama l rightly notes that a

p etiti oner may demon strate ac claim by poi nting to evidence of na tiona l or international recognition

. 8 C.F.R. § 204.5(h)( 3 ) ; 8 U.S.C. § 1153(b)(1)(A)

. But the Depar tment hewed to that rule i n findingthat H amal f ailed t o de monstrate that he has “ s usta ined national or intern a tiona l acclaim. ” J

. A

. 202

. Hamal ’ s argument also o ver looks that neither national nor int ernational acclaim alone suffices.

Petitioners must al so establish both that the acclaim was “ sustaine d ” and that their “ achievements

h ave been r ecognize d in the fi eld of expertise

. ” 8 C

. F.R. § 204.5( h)(3) ; see al so Kaz arian , 596 F .3d

at 1119

– 1 120. Hamal

, however

, has not demonstrated that h is work “ ha s bee n recognized by the

fi eld as b eing significan tly import ant or viewed as unusually influenti al. ” J

. A

. 203.

D

Ha m al argue s f or the fi rst time in h is reply brief t hat 8 C.F.R. § 20 4.5(h)(2) is

unc onst itutional

. Because he di d not raise that argum ent before t he Departme nt or in his openin g brief, it i s forf eited. See Al

- Tamimi v. Adels o n , 9 16 F

. 3d 1, 6 (D.C. Cir. 2019 ) ( “ A party forfeits an

ar gument by fail ing to r aise it in his opening brief

. ” ) ; Nuclear Energy Inst., Inc. v. E PA

, 373 F.3d 1251, 1290 (D.C. Cir. 2004) (per curiam) ( “As a general rule, cl a im s not presented to the agency may not be made for the first time to a reviewing court.” )

.

IV

For al l of those reaso ns, the order of the district co urt is affirmed.

P ur suant to D.C. Circuit Rule 36, this disposition will not b e published. The Cler k i s directed

to with hold issuance of the m a ndate herei n until s even days after resolution o f any timely p etition for

re h e aring or rehearing en banc

. See F ED

. R. A PP

. P

. 41( b) ; D.C. C I R . R. 41(a)(1 ).

Per C uriam

FOR THE COURT: Mark J. Langer, C lerk

B Y : /s/ Daniel J. Reidy Deputy Clerk