original.) The decision further states, "At the time the petition was filed, the petitioner's main claim to fame was that he held the record for the most penalty minutes in a game. The amount of penalties the petitioner amasses is indicative of the amount of fighting he does but quantity does not equate to extraordinary ability." Despite this language, however, the only evidence presented to the Director was that plaintiff was the fifth best enforcer in the league at the time he filed his petition. The decision to simply ignore this evidence was an abuse of discretion.
Moreover, it is apparent from the above quoted language that the Director simply rejects the notion that an enforcer can have extraordinary ability limited to the role that he plays on a hockey team. Indeed, as set forth in defendant's memorandum in support of his cross-motion for summary judgment, defendant's position remains that because plaintiff engages in conduct which is "disfavored," his abilities cannot properly be considered as a factor supportive of his claim to be an athlete of extraordinary ability. This court disagrees. The only evidence that was presented to the Director indicates that the role of an enforcer is necessary to the success of an NHL hockey team. The fact that a player is penalized for fighting does not mean that it is not both a necessary and accepted element of the game. Indeed, if it was not a necessary and accepted element of the game, the league would simply ban fighting altogether. Moreover, plaintiff presented evidence that his role as an enforcer entails much more than fighting. Pang's affidavit indicates that the role of an enforcer is to fight when necessary, but also to protect the team stars from being roughed up by the opposing team. An enforcer also serves as a deterrent to fighting, depending upon the reputation of the team's enforcer.
The fact remains that plaintiff has presented evidence sufficient to demonstrate that he is currently among the top three players in the world at what he does, and in 1993, when he filed his petition, he was among the top five players in the world. It goes without saying that there are countless players attempting to replace him every day. Yet, in 1993 he was, and remains today, among the best in the world. He has reached the very top of his field of endeavor. There is virtually no evidence in the record (let alone substantial evidence) to support defendant's finding that plaintiff is not among the best in the world, or that he is not an athlete of extraordinary ability.
The court concludes that the decision to reject plaintiff's role and unquestioned ability as an enforcer was without rational explanation, and that there was not substantial evidence for the factual finding that plaintiff is not at the top of his field of endeavor. Accordingly, plaintiff's motion for summary judgment is granted, defendant's cross-motion is denied, and defendant is ordered to issue plaintiff the visa he seeks.
For the reasons set forth above, plaintiff's motion for summary judgment is granted, defendant's cross-motion is denied and defendant is ordered to issue a visa to plaintiff.
ENTER: July 1, 1996
Robert W. Gettleman
United States District Judge