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July 1, 1996


The opinion of the court was delivered by: GETTLEMAN

 This case, much like the National Hockey League playoffs and the Energizer Bunny, just keeps going and going and going. Plaintiff Allan Stuart Grimson, a citizen of Canada, has filed a complaint for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 1361, seeking to overturn defendant Immigration and Naturalization Service's ("INS") denial of his visa petition. Both parties have moved for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, plaintiff's motion is granted, defendant's cross-motion is denied, and the decision of the INS is reversed.


 This is the third time that this case has reached this district court. Plaintiff is a professional hockey player. He has played in the "professional leagues" since the 1982-83 season when he began playing for the Regina, Saskatchewan team in the now defunct World Hockey League. He has been playing in the NHL since the 1989 season. He is currently a member of the Detroit Red Wings, one of the better teams in the league.

 Plaintiff initially filed a visa petition with defendant INS on January 20, 1993, seeking classification as a priority worker of extraordinary ability pursuant to 8 U.S.C. § 1153(b)(1)(A). The petition was denied by the Director of the INS Northern Service Center on the ground that plaintiff had failed to demonstrate that he was a player of extraordinary ability as defined by the INS. Plaintiff appealed to the Administrative Appeals Unit ("AAU"), contending that he had achieved sustained national and international acclaim as a professional hockey player, and that the Northern Service Center had recently classified four other hockey players of comparable ability as aliens of extraordinary ability.

 The AAU affirmed the denial of plaintiff's petition, holding that, "while the record indicates that the petitioner had played several seasons with an NHL team, it has not been established that the petitioner has achieved the sustained national or international acclaim required for classification as an alien with extraordinary ability, that he is one of the small percentage who have risen to the very top of his field of endeavor, or that his entry into the United States would substantially benefit prospectively the United States."

 Plaintiff then filed an action in this court pursuant to 28 U.S.C. §§ 2201 and 1361 for declaratory and injunctive relief with respect to the INS's denial of his visa petition. Judge Kocoras, to whom that case was assigned, remanded it back to the INS for further evidentiary proceedings, concluding that remand would allow plaintiff to take into consideration the INS's statutory interpretation of extraordinary ability when submitting further documentary evidence. Of particular note is Judge Kocoras's conclusion rejecting the INS's argument that it need not compare plaintiff's petition to those of other hockey players who had been granted visas, concluding that such position "not only lacked merit but borders on the specious." Judge Kocoras concluded that how the INS treated others in the field, particularly those alleged to possess no greater skill than petitioner, was highly irrelevant under the statutory scheme.

 Plaintiff's petition was again denied by the Director of the Northern Service Center, which denial was again affirmed by the AAU. Plaintiff then filed the present action seeking declaratory and injunctive relief. On March 23, 1995, this court issued a memorandum opinion and order again remanding the case to the INS for further evidentiary proceedings. This court specifically directed plaintiff to submit and defendant to consider evidence regarding the necessity of a player with plaintiff's style of play and abilities, and evidence comparing his skill, salary level and other abilities to those of comparable players in the NHL, players who fulfill the same role for their respective teams. In addition, the court directed defendant to consider plaintiff's argument that a sustained career in the NHL demonstrates extraordinary ability.

 Consistent with this court's instruction, on remand plaintiff submitted evidence of his current salary and contract with the Detroit Red Wings, a table from the Hockey News showing the 1996 players' salaries, newspaper and magazine articles about plaintiff, and an affidavit from Darren Pang, former renown NHL goaltender and current television broadcaster and NHL analyst for ESPN. Pang is a recognized expert on NHL hockey. Pang's affidavit lists all the "enforcers" in the league and their current salaries. It also sets forth the necessity for an enforcer, and indicates that most teams carry two such players on their rosters. Finally, Pang's affidavit indicates that plaintiff is currently the third rated and third highest paid enforcer in the NHL (the other two being paid more because of their goal scoring ability), and that plaintiff was rated the fifth best enforcer in 1993 when he filed his original petition.


 This court's review in this case is limited to the determination of whether the INS's denial of plaintiff's visa petition constituted an abuse of discretion. The test for abuse of discretion in an immigration case is as follows:

The decision must be upheld unless it was made without a rational explanation, inexplicably departs from established policies, or rests on an impermissible basis such as invidious discrimination against a particular race or group.

 Bal v. Moyer, 883 F.2d 45, 47 (7th Cir. 1989) (citing Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985)). Factual findings which underlie the exercise of discretion are to be tested under the substantial evidence test. Patel v. INS, 811 F.2d 377, 382 (7th Cir. 1987). It is pursuant to these standards of ...

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