The opinion of the court was delivered by: JAMES B. MORAN
Plaintiff Craig Muni brings this action against the Immigration and Naturalization Service (INS or the Service) and its commissioner, Doris Meissner, challenging the Service's denial of his visa petition. In June or July 1993 Muni, a player in the National Hockey League (NHL), petitioned the INS for an immigrant visa, claiming that he was a worker with extraordinary ability and therefore deserved priority treatment under § 203(b)(1)(A) of the Immigration and Naturalization Act, 8 U.S.C. § 1153(b)(1)(A).
The director of the INS' Northern Service Center
denied his petition, and the Administrative Appeals Unit (AAU) affirmed. Muni now appeals that decision to this court. Both parties have moved for summary judgment. For the reasons set forth below, Muni's motion is granted and the INS' motion is denied.
Muni was born in Canada on July 19, 1962 and is a Canadian citizen. In 1980, he was drafted by the Toronto Maple Leafs, an NHL team, and he began his career as a defenseman for that team in the 1981-82 season. In October 1986 he was traded to the Edmonton Oilers, where he stayed for seven years. In the 1986-87, 1987-88, and 1989-90 seasons, the Oilers won the Stanley Cup, the NHL's championship trophy. At that time Muni was a regular player and had one of the best plus-minus ratios
on the team. In the 1988-89 season he had the fourth best plus-minus ratio in the entire NHL. A poll taken by Goal magazine (an NHL publication) rated him the "most underrated defenseman" in the League in 1990, and in 1991 Hockey Digest named him one of the top ten hitting defensemen.
In March 1993 Muni was traded to the Chicago Blackhawks. He now plays for the Buffalo Sabres, whom he joined in October 1993. Muni presently earns $ 550,000 per year; in the 1992-93 season, when his petition was filed, his annual salary was $ 400,000. The average salary for an NHL defenseman in 1992-93 was $ 387,914.
The director of the INS' Northern Service Center denied Muni's petition. She found that there was no evidence that Muni's salary is high compared with what other NHL players receive; that he failed to explain the reputation, significance, or selection criteria of the awards from Hockey Digest and Goal; that the newspaper articles established only his improvement as a player after joining the Oilers, his contributions to the Oilers' Stanley Cup victories, and the fact that he is remembered for playing while sutures on his face were leaking; and that the affidavits showed that Muni was an excellent, hard-hitting defenseman. The director concluded that
while [Muni] appears to enjoy a noteworthy career as a professional hockey player, there is no evidence that [he] has been selected to all-star teams or received official recognitions as an extraordinary hockey player. The evidence submitted does not establish that [he] is one of the few who have risen to the very top of his field of endeavor.
The AAU affirmed. In addition to reiterating the arguments made by the regional director in her initial decision, the AAU found that Muni had not established his role in the Oilers' Stanley Cup victories; that his extended membership in the NHL was not sufficient in itself to establish extraordinary ability; and that he had not presented enough evidence comparing the experience, abilities, and salaries of players who have already received immigrant visas with his own qualifications. The AAU rejected Muni's argument that anyone who plays in the NHL for an extended period of time has extraordinary ability. Instead, because Muni was not "within the small percentage at the very top of the players in the NHL," the AAU concluded that he was not an alien of extraordinary ability and affirmed the director's decision to deny his petition.
Section 203(b)(1) provides in part as follows:
Visas shall first be made available in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (4) and (5), to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):
(A) Aliens with extraordinary ability
An alien is described in this ...