The opinion of the court was delivered by: Ruben Castillo, United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Man Soo Lee ("Lee") brings this action against James W.
Ziglar, Commissioner of the immigration and Naturalization Service
(INS), challenging the INS' denial of Lee's application for an immigrant
visa. Lee is an acclaimed baseball player from Korea and is currently
part of the coaching staff of the Major League Baseball team, the Chicago
White Sox. Lee petitioned the INS for an immigrant visa, claiming that he
was a worker with extraordinary ability, who therefore deserved priority
treatment under § 203(b)(1)(A) of the Immigration and Naturalization
Act ("INA"), 8 U.S.C. § 1153 (b)(1)(A). Lee's petition was denied.
Both parties now move for summary judgment. (R. 7-1; 12-1.) After careful
consideration, we deny Lee's motion for summary judgment, (R. 7-1), and
grant the INS' motion for summary judgment, (R. 12-1).
Lee, a citizen of Korea, currently resides in Illinois. (R. 1-1,
Compl. ¶ 3.) Lee is arguably one of the most famous baseball players
in Korean history. (R. 7-2, Pl.'s Facts ¶ 2.) He played for sixteen
seasons as a catcher for the Samsung Lions from 1982-1997. (R. 9, Admin.
R. at 005, 069.) During that time Lee hit a total of 252 home runs with a
career batting average
of 297.*fn1 (Id.) Until 1999, he held the Korean
record for the most career home runs. (Id.) Lee's other achievements as a
Korean baseball player include All Star Game appearances, the Triple
Crown Title, season MVP and five Golden Glove awards. (Id.) Lee secured a
coaching position with the Chicago White Sox for the 2000 season and a
temporary visa in the P-1 category. (R. 9, Admin. R. at 006,011-12.)
On April 17, 2000, Lee filed a petition with the INS Nebraska Service
Center, seeking an immigrant visa as a professional baseball coach
pursuant to § 203(b)(1)(a) of the INA. 8 U.S.C. § 1153 (b)(1)(a).
(R. 7-2, Pl.'s Facts ¶ 1.) In July 2000, the INS sent Lee a request
for additional evidence to establish that Lee is "an alien of
extraordinary ability" and "is one of that small percentage who have
risen to the very top of the field of endeavor." (Id. at ¶ 3.) Lee
responded by providing evidence of his great success as a baseball
player. (Id. at ¶ 4; R. 9, Admin. R. at 018-053.) The INS sent Lee a
letter in September 2000 requesting additional evidence that he sustained
national or international acclaim as a coach. (R. 7-2, Pl.'s Facts ¶
5.) Lee responded by arguing that under the statute he was not required
to submit evidence that he is an acclaimed coach. (Id. at ¶ 6.) Lee
contended that he need only establish his extraordinary ability as a
baseball player and his intention to continue to work in the "area of his
extraordinary ability." (Id.) Lee also submitted letters from White Sox
Manager Jerry Manuel and White Sox Pitcher Bob Howry to support his
argument that his experience as a baseball player is relevant to the
experience and skills needed to coach major league baseball. (Id., Ex. A
The Director of the INS Northern Service Center denied Lee's petition,
noting that although Lee appeared to have been an accomplished baseball
player, he had not achieved national or international acclaim as a coach.
(Id. at ¶ 9.) The Director observed that Lee, as an ex-player, might
be well-suited for a coaching position, but that the visa classification
demands a much higher showing than simply being well-equipped for a given
occupation. (R. 9, Admin. R. at 070.) On appeal, the INS Administrative
Appeals Office (AAO) sustained the denial of Lee's petition. (Id. at
068-071.) The AAO observed that Lee never offered evidence that he
received national or international acclaim as a coach, or that he was
within the small percentage at the very top of the field of coaching.
(Id.) The AAO further noted that even though Lee will be working in the
field of baseball, he will not be doing so as a player, which is the only
area in which Lee has demonstrated extraordinary ability. (Id. at 070.)
Lee's appeal is now before this Court.
The Court is bound by an abuse of discretion standard in reviewing the
INS' decision to deny Lee's visa petition. Bal v. Moyer, 883 F.2d 45, 47
(7th Cir. 1989); Achacoso-Sanchez v. INS, 779 F.2d 1260, 1264 (7th Cir.
1985); Russell v. INS, No. 98 C 6132, 2001 WL 11055, *3 (N.D. Ill. Jan.
4, 2001); Grimson v. INS, 934 F. Supp. 965, 967 (N.D. Ill. 1996); Muni
v. INS, 891 F. Supp. 440, 444 (N.D. Ill. 1995); Racine v. INS, No. 94 C
2548, 1995 WL 153319, *3 (N.D. Ill. Feb. 27, 1995); Garcia-Lopez v. INS,
923 F.2d 72, 74 (7th Cir. 1991). Therefore, we must defer to the INS'
decision unless it: 1) is made without a rational explanation, 2)
from established policies, or 3) rests on an
impermissible basis. Bal, 883 F.2d at 46; Achacoso-Sanchez, 779 F.2d at
Moreover, the Court is not permitted to conduct a de novo review of the
INS' construction of the relevant sections of the INA. Our inquiry is
limited to whether the agency's interpretation is "based on a permissible
construction of the statute." Chevron U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 843 (1984). Thus, even though we might disagree
with the INS' statutory construction, we "may not substitute [our] own
construction of a statutory provision for a reasonable interpretation
made by the administrator of an agency." Id. at 844.
Lee attempts to gain permanent residence in the United States as an
"alien of extraordinary ability" under § 203(b)(1)(A). 8 U.S.C. §
1153(b)(1)(A). To obtain an immigrant visa under this classification, the
applicant must show that:
(i) the alien has extraordinary ability in the
sciences, arts, education, business, or athletics
which has been demonstrated by sustained national or
international acclaim and whose achievements have
been recognized in the field through extensive
(ii) the alien seeks to enter the United States to
continue to work in the area of extraordinary
(iii) the alien's entry to the United States will
substantially benefit prospectively ...