Lindenberg v. US DEPT. OF JUSTICE, INS
Citation | 657 F. Supp. 154 |
Decision Date | 11 March 1987 |
Docket Number | Civ. A. No. 86-1129. |
Court | United States District Courts. United States District Court (Columbia) |
Parties | Christof-Andreas LINDENBERG and Camphill Village, U.S.A., Inc., Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION & NATURALIZATION SERVICE, Defendants. |
Thomas A. Elliot, Washington, D.C., and Lawrence H. Rudnick, pro hac vice, Philadelphia, Pa., for plaintiffs.
William J. Dempster, Asst. U.S. Atty., Washington, D.C., for defendants.
This action for declaratory relief is before the Court on cross-motions for summary judgment. Plaintiffs Christof-Andreas Lindenberg and Camphill Village, USA, Inc., seek a determination from this Court that a denial by the Immigration and Naturalization Service ("INS") of a visa petition filed on behalf of Lindenberg was not in accordance with law. Joining the INS as a defendant in this action is the Department of Justice. Defendants seek affirmance of the administrative order accomplishing deportation.
Plaintiff Lindenberg was born in Germany and is now a citizen of Great Britain. In November of 1981, the United States first admitted Lindenberg as a temporary worker pursuant to section 1101(a)(15)(H)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (the "Act").1 Lindenberg was granted this status for being an individual of "distinguished merit and ability" who planned to live temporarily in the United States upon invitation from a nonprofit organization, namely, Camphill Village.
Since entering the United States in 1981, Lindenberg has rendered services as a teacher and director of music and art therapy and "service holder" of religious services at Camphill Village in Copake, New York.2 Camphill Village, a member of the Camphill Association of North America, is described by plaintiffs as a nonprofit, nonsectarian, religious organization providing residential therapeutic communities for mentally handicapped children and adults.3 The bylaws of the Camphill Association indicate that the organization is dedicated to providing human services for the mentally retarded through cooperative life, social interaction and spiritual activity. See Plaintiffs' Exhibit A. Based on "anthroposophy," or the teachings of Rudolf Steiner, the Camphill movement is focused toward "Christianizing" the ordinary aspects of life for the mentally handicapped. The bylaws summarize the organization's underlying principles by quoting the following words of Rudolf Steiner:
The record contains in Lindenberg's own words (from his article in The Cresset, the Journal of the Camphill Movement) how he explained the significance of the seasons to those to whom he was seeking to minister:
A.R. at 211. Eventually they learned a four voice Bach Chorale. Lindenberg explains how he taught his mentally retarded pupils to sing harmony.
On April 23, 1985, Lindenberg filed a visa petition with the INS seeking a "third preference classification" under the Act. See 8 U.S.C. § 1153(a)(3) (1978 & 1986 Supp.). Under this classification, visas are made available to qualified immigrants who will substantially benefit the economy, culture or welfare of the United States because they are "members of the professions" or "persons of exceptional ability in the sciences or arts" and their services are sought by a U.S. employer. Id. Under the Act, persons seeking this classification must submit an "alien labor certification" from the Department of Labor ("DOL") as well as a visa petition based upon an offer of employment. See 8 U.S.C. § 1182(a)(14) (1978 & 1986 Supp.); 8 C.F.R. § 204.1(d)(1) (1985). Under the DOL regulations, some aliens are exempted from the individual labor certification requirement and may receive "blanket certification" if they have "religious commitment" and plan to work for a "nonprofit religious organization." 20 C.F.R. § 656.10(c), Schedule A, Group III(2) (1986).
On September 4, 1985, Lindenberg's visa application was denied by the INS District Director in Albany, New York.4 See Plaintiffs' Exhibit B. That decision found that Lindenberg did not qualify for the Group III(2) exemption because he would be employed as a music therapist, and this is a lay occupation. On March 5, 1986, the Associate Commissioner for INS Examinations dismissed Lindenberg's appeal from the District Director's decision. The Commissioner confirmed the decision below that Lindenberg's position was secular in nature. In addition, the Commissioner found that the Camphill organization was a "nondenominational, nonsectarian institution" not connected with any religious denomination and therefore not included within the meaning of the term "religious organization" in the Group III(2) regulations. See Plaintiffs' Exhibit D.
Lindenberg commenced this suit on April 23, 1986. On June 24, 1986, this Court approved a stipulation remanding the matter to INS to reconsider Lindenberg's eligibility for "precertification" under Schedule A, Group III(2) and to consider whether he may alternatively qualify under Schedule A, Group II. Upon reconsideration, the Associate Commissioner affirmed the findings below on October 14, 1986. See Plaintiffs' Exhibit E. The Commissioner held that, even assuming Camphill could qualify as a nonprofit, religious organization, Lindenberg's occupation of music therapy is typically a secular pursuit and does not constitute "religious work." Additionally, the Commissioner found that Lindenberg failed to meet the high standards of professional excellence required for Group II certification.
For these reasons, Lindenberg's visa petition has been denied. He now seeks a declaration from this Court that he is entitled to pre-certification under the Group III(2) classification.
This Court's jurisdiction over the case at bar rests upon 8 U.S.C. § 1329 (1978), which confers jurisdiction to district courts of the United States for all causes arising under Title II of the Immigration and Nationality Act, 8 U.S.C. § 1151 et seq. See Hom Sin v. Esperdy, 239 F.Supp. 903 (S.D. N.Y.1965). Additionally, this Court has general jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff Lindenberg has exhausted his administrative remedies.
The defendant correctly asserts that the granting of preference visas is within the sound discretion of the INS. The exercise of that discretion, nonetheless, must be grounded upon findings of fact supported by reasonable substantial and probative evidence on the record considered as a whole. 8 U.S.C. § 1105a (1976). See Wing Ding Chan v. INS, 631 F.2d 978, 980-81 (D.C. Cir.1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1371, 67 L.Ed.2d 349 (1981); Unification Church v. INS, 547 F.Supp. 623, 627 (D.D.C.1982), aff'd, 762 F.2d 1077 (D.C.Cir. 1985). Errors of law by INS may invalidate the agency decision. Kaliski v. District Director, INS, 620 F.2d 214, 216 (9th Cir.1980). Moreover, the discretion of the INS must not be abused, "i.e., be without rational...
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