O Centro Espirita Beneficiente Uniao Do Vegs v. Duke

• Decision Date: 15 December 2017
• Docket Number: No. CIV 17–1137 JB/KK,CIV 17–1137 JB/KK
• Parties: O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL in the U.S.; Jose Carlos Garcia; Danielle Hounsell Silva Garcia and J.H.S.G., a minor, Plaintiffs, v. Elaine DUKE, Acting U.S. Secretary of Homeland Security; L. Francis Cissna, Director of U.S. Citizenship and Immigration Services; Kathy Baran, Director of U.S. Citizenship and Immigration Services California Service Center; United States Citizenship and Immigration Services, an agency of the United States, in their official capacity, and United States of America, Defendants.
• Court: U.S. District Court — District of New Mexico

286 F.Supp.3d 1239

O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL in the U.S.; Jose Carlos Garcia; Danielle Hounsell Silva Garcia and J.H.S.G., a minor, Plaintiffs,

v.Elaine DUKE, Acting U.S. Secretary of Homeland Security; L. Francis Cissna, Director of U.S. Citizenship and Immigration Services; Kathy Baran, Director of U.S. Citizenship and Immigration Services California Service Center; United States Citizenship and Immigration Services, an agency of the United States, in their official capacity, and United States of America, Defendants.

No. CIV 17–1137 JB/KK

United States District Court, D. New Mexico.

Filed December 15, 2017

Olsi Vrapi, Noble & Vrapi PA, Albuquerque, New Mexico, Attorneys for the Plaintiffs

James D. Tierney, Acting United States Attorney, Brandon Fyffe, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico and Hans Harris Chen, Francesca Genova, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., Attorneys for the Defendants

MEMORANDUM OPINION AND ORDER

James O. Bowning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Plaintiffs' Motion for Temporary Restraining Order and/or Preliminary Injunctive Relief and Request for Emergency Ex Parte Hearing, filed November 20, 2017 (Doc. 5–1)("Motion").¹ The Court held hearings on November 21, 2017 and December 1, 2017. The primary issues are: (i) whether the procedural requirements of the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"), apply to the Motion for an injunction; (ii) whether the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb–1 ("RFRA"), claim of the Plaintiffs' O Centro Espirita Beneficiente Uniao Do Vegetal in the United States (called "UDV" by its members and the Court), Jose Carlos Garcia, Danielle Hounsell Silva Garcia, and J.H.S.G. (collectively "the Plaintiffs") has a substantial likelihood of success on the merits; (iii) whether the Plaintiffs are likely to suffer irreparable injury absent a preliminary injunction; (iv) whether the threatened injury to the Plaintiffs outweighs the injury an injunction could cause the Defendants Elaine Duke, L. Francis Cissna, Kathy Baran, United States Citizenship and Immigration Services, and the United States of America (collectively "the Defendants"); (v) whether the injunction would be adverse to the public interest; and (vi) whether the Plaintiffs have met a disfavored preliminary injunction's heightened requirements. The Court concludes that: (i) the APA's procedural requirements do not apply to this Motion, because the Motion seeks injunctive relief under RFRA, and not under the APA; (ii) the Plaintiffs' RFRA claim has a substantial likelihood of success on the merits; (iii) the Plaintiffs are likely to suffer irreparable injury absent a preliminary injunction; (iv) the threatened injury to the Plaintiffs outweighs the injury an injunction could cause the Defendants; (v) the injunction would not be adverse to the public interest; and (vi) the Plaintiffs have met a disfavored preliminary injunction's heightened requirements. Because the Court concludes that narrower relief is appropriate than that requested, the Court will grant the Motion in part and deny it in part.

FINDINGS OF FACT

Pursuant to rule 52(a)(2) of the Federal Rules of Civil Procedure, the Court makes findings of fact and conclusions of law to support its disposition of the Motion. See Fed. R. Civ. P. 52(a)(2), 65(d)(1). The Court will first introduce the parties and then outline the timeline of events in this case. The Court will then discuss the arguments for and against the Motion.

1. The Parties.

1. UDV is a Christian spiritualist religious organization. See Complaint for Declaratory Judgment, Injunctive Relief, and Writ of Mandamus ¶ 15, at 7, filed November 14, 2017 (Doc. 1)("Complaint").

2. An important aspect of UDV's theology is non-compensation of its ministers. See I–129 Petition for a Nonimmigrant Worker at 11, filed with USCIS December 15, 2011 (Receipt No. WAC–12–052–50599), in file November 30, 2017 (Doc. 13–1)("Plaintiffs' Exhibit A1")("Religious tenets do not allow compensation of any form."). See also Motion at 2.

3. Much of UDV's liturgy is transmitted orally. See Second Tr. at 26:15–16 (Bixby).

4. UDV "originated in Brazil and is now practiced by close to 20,000 people in 11 countries." Complaint ¶ 15, at 7.

5. J. Garcia holds a high-level clerical position in UDV, "akin to a Cardinal of the Catholic Church," and "has been a member and leader in the organization for decades." Complaint ¶ 16, at 7. See Plaintiffs' Exhibit A1 at 23.

6. J. Garcia is a key religious figure in teaching UDV's oral traditions. See Second Tr. at 29:15–18 (Bixby).

7. J. Garcia is the "most experienced" UDV member in the United States. Second Tr. at 31:9 (Bixby).

8. The only other people who are J. Garcia's equivalent live in Brazil "and most of them have jobs that require their presence in Brazil in order to [sustain] their families." Second Tr. at 34:14–17 (Bixby).

9. If J. Garcia had to leave the United States it would break the chain of UDV's oral tradition. See Second Tr. at 35:1–4 (Vrapi, Bixby).

10. Previously, J. Garcia had "R–1 nonimmigrant religious worker status"² in the United States. Complaint ¶ 16, at 7. See Approval Notice for I–129 Petition for a Nonimmigrant Worker at 2 (dated December 6, 2012)(Receipt No. WAC–12–052–50599), in file November 30, 2017 (Doc. 13–6)("Plaintiffs' Exhibit A6").

11. D. Garcia is J. Garcia's wife. See Complaint ¶ 17, at 7.

12. J.H.S.G. is J. Garcia's minor child. See Complaint ¶ 18, at 8.

13. "Duke is the Acting Secretary of the Department of Homeland Security" and is "sued in her official capacity only." Complaint ¶ 19, at 8.

14. "Cissna is the Director of United States Citizenship and Immigration Services" ("USCIS"), an agency within the Department of Homeland Security. Complaint ¶ 20, at 8. Cissna is also sued only in his official capacity. See Complaint ¶ 20, at 8.

15. "Baran is the Director of the United States Citizenship and Immigration Services California Center." Complaint ¶ 21, at 8. Baran is also sued only in her official capacity. See Complaint ¶ 21, at 8.

16. USCIS is a federal agency within the Department of Homeland Security that reviews immigration petitions. See Complaint ¶ 22, at 9; Plaintiffs' Exhibit A2.

17. Duke, Cissna, Baran, and USCIS are all agents of, and represent, the United States. Complaint ¶ 23, at 9.

2. The Timeline of Events.

18. In 2011, UDV filed an I–129 nonimmigrant R–1 petition³ on J. Garcia's behalf, which USCIS approved. See Motion at 9; Plaintiffs' Exhibit A6 at 2.

19. In 2014, UDV filed another I–129 nonimmigrant R–1 petition on J. Garcia's behalf to extend his legal status in the United States. See I–129 Petition for a Nonimmigrant Worker at 1, filed with USCIS December 3, 2014 (Receipt No. WAC–15–043–50803), in file November 30, 2017 (Docs. 13–7 and 13–8)("Plaintiffs' Exhibit B1")

20. USCIS approved this petition on December 16, 2015. See Approval Notice for I–129 Petition for a Nonimmigrant Worker at 1 (dated December 16, 2015)(WAC–15–043–50803), in file November 30, 2017 (Doc. 13–13)("Plaintiffs' Exhibit B6").

21. USCIS originally intended to deny one or both of UDV's R–1 petitions, because J. Garcia is neither financially compensated nor part of an established missionary program. See Notice of Intent to Deny at 2–3 (dated July 31, 2012)(Receipt No. WAC–12–052–50599), in file November 30, 2017 (Doc. 13–4)("Plaintiffs' Exhibit A4"); Notice of Intent to Deny at 2–3 (dated October 15, 2015)(Receipt No. WAC–15–043–50803), in file November 30, 2017 (Doc. 13–11)("Plaintiffs' Exhibit B4"). See also 8 C.F.R. 214.2(r)(11)(i) ("Initial evidence [supporting an R–1 petition] must state how the petitioner intends to compensate the alien, including specific monetary or in-kind compensation, or whether the alien intends to be self-supporting."); 8 C.F.R. 214.2(r)(11)(ii)(A) ("If the alien will be self-supporting, the petitioner must submit documentation establishing that the position the alien will hold is part of an established program for temporary, uncompensated missionary work, which is part of a broader international program of missionary work sponsored by the denomination."

22. An important aspect of UDV's theology, however, is non-compensation of its ministers. See Motion at 2; Plaintiffs' Exhibit A1.

23. USCIS granted at least one of these R–1 petitions despite its regulations by giving J. Garcia an exemption under RFRA, 42 U.S.C. § 2000bb–1(a) – (b). See Plaintiffs' Exhibits A5–A6.

24. On July 1, 2016, UDV filed an I–360 Petition for Religious Worker on J. Garcia's behalf. See I–360 Petition for Religious Worker at 1, filed with USCIS July 1, 2016 (Receipt No. WAC–16–905–31925), in file November 30, 2017 (Doc. 13–20)("Plaintiffs' Exhibit D1").

25. This petition is currently pending, although USCIS has issued a notice of intent to deny it.⁴ (dated July 31, 2017)(Receipt No. WAC–16–905–31925), in file November 30, 2017 (Doc. 13–21)("Plaintiffs' Exhibit D2").

26. USCIS stated in its notice of intent to deny that it intends to deny this I–360 petition because J. Garcia is not a compensated minister. See Plaintiffs' Exhibit D2 at 3.

27. If granted, the I–360 petition would not give J. Garcia legal status in the United States, but it would permit him "to apply for adjustment of status within the United States." Defendants' Response to Plaintiffs' Motion For Temporary Restraining Order and/or Preliminary Injunctive Relief at 11, filed November 30, 2017 (Doc. 12)("Response").

28. On July 7, 2017, UDV filed a third R–1 petition on J. Garcia's behalf. See I–129 Petition for a Nonimmigrant Worker at 3, filed with USCIS July 7, 2017 (Receipt No. WAC–17–197–50769), in file November 30, 2017 (Doc. 13–14)("Plaintiffs' Exhibit C1").

29. USCIS denied this petition, because J. Garcia is not a compensated minister nor does he participate in an established missionary program. See ...