1995 WL 134755, at *4 (N.D.Ill. Feb. 16, 1995); Grimson v. INS, No. 93 C 3354, slip op. at 6 (N.D.Ill. Sept. 9, 1993). But our conclusion that the INS' definition is binding does not mean that the Service correctly applied the definition to the facts of Muni's case, and that is the central question posed by the motions for summary judgment.
B. Application of the Definition to the Facts
In reviewing the denial of a visa petition we must defer to the decision of the INS unless it constituted an abuse of discretion. The Seventh Circuit has held that the INS abuses its discretion when its decision (a) is made without rational explanation, (b) inexplicably departs from established policies, or (c) rests on an impermissible basis such as race discrimination. Bal v. Moyer, 883 F.2d 45, 46 (7th Cir. 1989); Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985). Muni does not contend that the INS' decision rested on an impermissible basis, but he does argue that it was against the weight of the evidence and deviated from its own policies and precedents. We need consider only his first contention because we find it dispositive of the motions before us.
The INS acts without rational explanation (and therefore abuses its discretion) "when it fails to weigh important factors and to state its reasons for denying relief." Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir. 1992).
We find that the INS abused its discretion here because it failed to consider several facts that supported Muni's petition and failed to explain why the facts it did consider were insufficient to establish Muni's extraordinary ability.
1. Individual Facts
First, the INS found that Muni's role in the Oilers' three Stanley Cup victories had not been established. This conclusion overlooks some rather obvious facts. As Muni points out, there is a direct correlation between a team's performance and its players' performances, and the correlation is even stronger where key players are concerned. The facts that Muni was a starting defenseman for the Oilers and had one of the team's top plus-minus ratios strongly suggest that he was a key player.
Thus the team's performance reflects his individual ability. The INS seems to believe that being a good player on a great team does not establish one's ability, but it offers no explanation why we should accept such a counterintuitive belief.
Second, the INS discounted the awards Muni received, saying that he had not shown what was necessary to qualify for the awards or what significance they have. We disagree. We think the awards -- best hitting defenseman, most underrated defenseman -- are rather self-explanatory, and the publications -- the official NHL magazine and the largest hockey magazine -- are certainly significant and reputable. The INS had no legitimate basis for refusing to consider the awards as evidence of Muni's ability.
Third, the INS did not adequately address evidence that Muni commands a high salary. The evidence showed that he made more than the average NHL defenseman in 1992-93 and that his pay increased by $ 150,000 for the 1993-94 and 1994-95 seasons. Thus his salary is well above average. Moreover, since a few very highly paid players can skew the average salary upward, it is reasonable to assume that a player making even the average salary is making more than most other players.
See Grimson v. INS, 1995 U.S. Dist. LEXIS 3885, No. 94 C 5243, 1995 WL 134755, at *3 (N.D.Ill. Mar. 23, 1995) ("Obviously, the superstars of the NHL make tremendously high salaries, and that can skew any average."). Yet the INS stated that because Muni's salary "is well below the top salaries earned in the NHL ... it has not been established that [his] salary is high in relation to that of other professional hockey players" (Admin. Rec. at 4). This statement contains two errors: ignorance of the simple math explained above and an assumption (which we reject below) that a player must be one of the League's superstars to be considered to have extraordinary ability.
Fourth, the INS gave short shrift to the articles Muni submitted to support his petition. These articles do not establish that Muni is one of the stars of the NHL, but that is not the applicable standard. Under the INS' own regulations, all Muni need show is that there is "published material about [him] in professional or major trade publications or other major media, relating to [his] work in the field for which classification is sought." 8 C.F.R. § 204.5(h)(3)(iii). The articles Muni submitted, which appeared in various newspapers and hockey magazines, clearly fit this requirement; even the INS admits that some of the articles "discuss [Muni's] hitting ability and his record as a defenseman" (Admin. Rec. at 4). Yet the INS did not explain why the articles did not qualify as proof of Muni's ability.
Finally, the INS completely ignored the eight affidavits Muni submitted.
Those affidavits, sworn to by veteran NHL players of considerable renown,
describe Muni as "an excellent defenseman," "one of the best defenseman in professional hockey," "a prominent hockey player in the NHL with great skating and defensive abilities," "one of the better defenders in the game," and "one of the premier defensemen in the NHL" (Admin. Rec. at 105, 107, 109, 111, 113). The INS' failure even to consider these affidavits is clear evidence that it did not adequately evaluate the facts before it. The affidavits establish that Muni is, at minimum, an above-average player whose peers -- the world's best hockey players -- respect his athletic abilities. Better evidence of an alien's extraordinary ability would be difficult to find, yet the INS did not even mention it in its decision.
2. Totality of the Evidence
In sum, Muni presented evidence that he is an NHL veteran who was a starting player on the League's best team for several years, has a reputation among his peers as an excellent defenseman, earns a salary well above average for a defenseman, and has been recognized in major media publications. As previously noted, 8 C.F.R. § 204.5(h)(3) requires an alien to show that he has sustained national or international acclaim and recognition in his field. Such evidence must include "evidence of a one-time achievement (that is, a major, internationally recognized award)" or evidence that falls into at least three of the ten categories set forth in subsections (h)(3)(i)-(x) of the regulations.
The Oilers' Stanley Cup victories while Muni was a key player arguably are evidence of a major, internationally recognized award that establishes Muni's international acclaim and recognition in his field. But even if sustained membership on the championship team is not enough, Muni's evidence still fits into five of the ten categories. While the satisfaction of the three-category production requirement does not mandate a finding that the petitioner has sustained national or international acclaim and recognition in his field, it is certainly a start, and the INS made no attempt to explain why Muni's evidence did not meet the acclaim and recognition standard. Thus, it has not only failed to explain why it does not accept some of the individual facts Muni presents, it has also failed to explain why the sum of those facts and others is insufficient to warrant granting his petition. We deem such arbitrary decisionmaking an abuse of discretion.
We think there is a deeper problem here than the INS' failure to give fair consideration to all the evidence Muni presented in support of his petition. The Service also misapplied its own definition of extraordinary ability. It apparently was under the impression that only all-stars or the League's highest-paid players have extraordinary ability. That is an overly grudging interpretation of its own regulation, which defines an athlete of extraordinary ability as "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). See Grimson, 1995 U.S. Dist. LEXIS 3885, 1995 WL 134755 at *6 ("This court does not believe ... that only superstars can qualify as having extraordinary ability."). There was considerable evidence before the INS that Muni is a very good professional hockey player -- and therefore one of those at the top of his field -- yet the INS disregarded that evidence.
We conclude that the INS' denial of Muni's petition was an abuse of discretion. Muni's motion for summary judgment is granted and the INS' motion is denied. The case is remanded for further proceedings consistent with this opinion.
JAMES B. MORAN,
Chief Judge, U.S. District Court
May 19, 1995.