United States District Court, Northern District of Illinois, Eastern Division
December 24, 2002
MAN SOO LEE, PLAINTIFF,
JAMES W. ZIGLAR, COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT WEST PAGE 915
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 the United
8 U.S.C. § 1153 (b)(1)(A). The INS regulations interpreting §
203(b)(1)(A) define extraordinary ability as "a level of expertise
indicating that the individual is 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). The regulations further specify the type of evidence which may be
presented to support a finding of "extraordinary ability," including
documentation of nationally or internationally recognized awards,
documentation of membership in associations in the field for which
classification is sought and publications about the alien's work in the
field. 8 C.F.R. § 204.5 (h)(3).
In support of his petition for a visa as a coach of extraordinary
ability, Lee offered evidence that he was an outstanding foreign
professional baseball player. Lee presented letters from top officials in
the Korean Baseball Organization ("KBO") supporting his claim, a
certificate from the KBO confirming Lee's career statistics and receipt
of national awards and newspaper articles relating to Lee's baseball
career. (R. 9, Admin. R. at 005,017,) The INS does not dispute that Lee
might qualify as an alien of extraordinary ability as a baseball player.
The INS argues, however, that Lee failed to establish extraordinary
ability as a baseball coach.
The INS' determination that Lee was not an alien of extraordinary
ability as a baseball coach was reasonable. Our review of the record
reveals that Lee has not distinguished himself as a coach to such an
extent that he has achieved national or international acclaim or risen to
the very top of the baseball coaching profession. In fact, the record
only shows Lee's achievements as a player, not a coach, which are
markedly different roles. Lee even admits that he does not claim to be a
coach who has risen to the top of the field. (R. 9, Admin. R. at 066.)
The INS' distinction between extraordinary ability as a coach and a
player is a reasonable one, entitled to deference. As such, the INS did
not abuse its discretion in determining that Lee was not an alien of
extraordinary ability under 8 U.S.C. § 1153 (b)(1)(A)(i).
The INS also found that Lee failed to establish that he was "seeking to
enter the United States to continue to work in the area of extraordinary
ability." 8 U.S.C. § 1153 (b)(1)(A)(ii). The INS contends that
because Lee is coaching, rather than playing, he is not continuing to
work in the "area of extraordinary ability."*fn2 Lee argues that because
he is coaching a major league baseball team, he is thus continuing to
work in his "area" of extraordinary ability — baseball.
Once again, the INS' interpretation of "area of extraordinary ability"
is a reasonable one and thus binding on this Court. Muni, 891 F. Supp. at
442. It is reasonable to interpret continuing to work in one's "area of
extraordinary ability" as working in the same profession in which one has
extraordinary ability, not necessarily in any profession in that field.
For example, Lee's extraordinary ability as a baseball player does not
imply that he also has extraordinary ability in all positions or
professions in the baseball industry such as a manager, umpire or coach.
The regulations regarding this preference classification are extremely
restrictive, and not expanding "area" to include everything within a
particular field cannot be considered unreasonable. See, e.g. In re X,
1998 WL 2027170 (AAU May 14, 1998) (denying § 203(b)(1)(A) petition
of acclaimed soccer player as a soccer coach because the occupations of
player and coach are "significantly different"); In re Y, No. EAC 97 156
53387, 1998 WL 34022189 (AAU Aug. 6, 1998) (denying § 203(b)(1)(A)
petition of alien who claimed notoriety as a baseball player but could not
show that he achieved acclaim as a coach and instructor, the position for
which he sought classification).
Moreover, the INS' decision was not an abuse of discretion. See
Achacoso-Sanchez, 779 F.2d at 1265. The decision was a rational one based
on the INS' reasonable interpretation of § 203(b)(1)(A) of the ENA
and did not rest on an impermissible basis. The decision denying Lee's
petition is also consistent with the INS' established policy. In reviewing
other INS denials similar to Lee's, we found that the INS consistently
denies petitions of players seeking a visa as a coach pursuant to §
203(b)(1)(A) of the INA. See also In re X, No. WAC 97 002 51022, 1998 WL
2027159 (Feb. 20, 1998); In re Y, No. LIN 97 107 52003, 1997 WL 33306263
(Sept. 18, 1997); In re X, No. WAC 97 188 51073, 1998 WL 34029516 (July
The INS has explicitly stated that the "area" of athletics should not
be considered as a whole to include every occupation involving
athletics. In re X, 1998 WL 2027159 (denying petition because
extraordinary ability as a skier does not necessitate a finding of
extraordinary ability as a ski coach, commentator or product endorser
simply because all might be considered to be in the field of athletics).
Furthermore, in a case similar to the instant one, where a soccer player
petitioned for an immigrant visa as a soccer coach, the AAO commented that
the general assertion that former players often enjoy success as coaches
"cannot establish that [a] particular alien has already earned national
or international acclaim as a  coach." In re X, 1998 WL 2027170.
Therefore, the INS' decision that Lee's past achievements as a baseball
player do not imply that he likewise possesses an extraordinary ability
as a coach is in accord with established INS policy. In short, the INS'
construction of § 203(b)(1)(A) was reasonable and the agency's
application of the statute to Lee's petition was not an abuse of
For the reasons set forth above, the INS' decision denying Lee an
immigrant visa is affirmed. Lee is no doubt an acclaimed baseball player
who during his lengthy career contributed much to Korean baseball. The
visa classification for extraordinary ability is an extremely restrictive
one, however, and absent an abuse of discretion, the Court must defer to
the INS' resonable interpretation of the statute. Therefore, Lee's motion
for summary judgment is denied, (R. 7-1), and the INS' motion for summary
judgment is granted, (R. 12-1). The Clerk of the Court is instructed to
enter judgment, pursuant to Federal Rule of Civil Procedure 58, in favor
of the Commissioner of the INS.