Specializing in steak

Fogo de Chao (Holdings) Inc. v. U.S. Dep't of Homeland Security, No. 13-5301 (D.C. Cir. Oct. 21, 2014).

Fogo de Chao operates the eponymous Brazilian steakhouses. It employs chefs, called churrasqueiros, trained in the art of the traditional Brazilian barbecue. Under a program that grants visas to those with “specialized knowledge,” Fogo de Chao tried to get a visa for a chef from Sao Paulo. According to Fogo de Chao, this chief, like other Brazilian churrasqueiros, had gained “specialized knowledge” from growing up in a particular barbecue-loving region in Brazil. The visa was denied on the ground that that sort of knowledge doesn’t count as “specialized.” This lawsuit followed. 

The main question the D.C. Circuit has to answer in this case is whether “specialized knowledge” can include knowledge acquired as a result of one’s cultural background. Holding that Skidmore rather than Chevron deference applies, the D.C. Circuit says there’s no reason that culturally acquired knowledge can’t count as “specialized,” particularly if that knowledge is hard for those outside the culture to pick up. The government shouldn’t have categorically excluded culturally acquired knowledge from the category of “specialized.” The court remands the visa application to the agency for further consideration. Judge Kavanaugh dissents. Perhaps overreading the majority opinion, he says that calling culturally acquired knowledge “specialized” creates a circularity problem: if cultural background is specialized knowledge, then anybody with a non-American cultural background has specialized knowledge.