Love Korean Church v. Chertoff

• Decision Date: 05 December 2008
• Docket Number: No. 07-55093.,07-55093.
• Citation: 549 F.3d 749
• Parties: LOVE KOREAN CHURCH; Dae Song Park, Plaintiffs-Appellants, v. Michael CHERTOFF, Secretary of the United States Department of Homeland Security; Jonathan Scharfen,<SMALL><SUP>*</SUP></SMALL> Acting Director of United States Citizenship and Immigration Service; Donald W. Neufeld, Director of USCIS California Service Center, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

549 F.3d 749

LOVE KOREAN CHURCH; Dae Song Park, Plaintiffs-Appellants, v. Michael CHERTOFF, Secretary of the United States Department of Homeland Security; Jonathan Scharfen,^* Acting Director of United States Citizenship and Immigration Service; Donald W. Neufeld, Director of USCIS California Service Center, Defendants-Appellees.

No. 07-55093.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 2, 2008.

Filed December 5, 2008.

Richard Sunghwan Kim, Los Angeles, CA, for the plaintiffs-appellants.

Keith M. Staub, Assistant United States Attorney, Civil Division, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Robert J. Kelleher, District Judge, Presiding. D.C. No. CV-05-09021-RJK.

Before: WILLIAM C. CANBY, JR., JAY S. BYBEE, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

CANBY, Circuit Judge:

Love Korean Church (the "Church") appeals an order of the district court affirming the Bureau of Citizenship and Immigration Services' ("CIS") revocation of a visa petition filed by the Church on behalf its choir director. The Church had sought to have its choir director, a Korean citizen, classified as a "special immigrant" religious worker within the meaning of 8 U.S.C. § 1101(a)(27)(C). Because the revocation of the visa petition was predicated on legal error and findings of fact unsupported by substantial evidence, we vacate the judgment of the district court and remand this case for further consideration by the agency.

BACKGROUND

Love Korean Church is a non-profit religious organization affiliated with the Korean Presbyterian denomination. The Church was originally established in the 1980s to meet the spiritual needs of the growing Korean-American community in the Los Angeles area. The Church views religious music as a form of worship and an integral component of its ritual celebrations.

Since 1994, the Church has benefitted from the work of Dae Song Park, a native and citizen of the Republic of Korea. Park was originally admitted to the United States as a temporary visitor in January 1994. Shortly after his arrival, he became a member of the Church and began serving as its choir director on a volunteer basis. In 1995, Park successfully adjusted his immigration status to that of a full-time student, so that he could attend English language courses at a local school. In January 1997, Park transferred to California Union University, where he enrolled in music classes and began pursuing a Master's degree in music. Throughout this time and until September 1998, Park continued serving as the Church's volunteer choir director. In October of 1998, when Park's application for adjustment of status to religious worker was pending and permitted employment, the Church hired him as a full-time salaried choir director.

During the period from March 1997 to November 2001, the Church filed on Park's behalf three I-360 petitions for a religious worker visa. This appeal concerns only the third petition, which the CIS initially approved.¹ In September 2003, CIS issued a Notice of Intent to Revoke the approved petition, stating that Park's "duties do not relate to a traditional religious function. The tenets of a particular religious denomination should have significance on the performance of the duties of the position being offered."

CIS subsequently revoked the approved third I-360 petition. CIS found that Park was a full-time student during the two-year period from November 1999 to November 2001, and he therefore could not have been carrying on full-time salaried work as choir director for the Church. It also concluded that the duties listed in the Church's petition could be performed by a part-time volunteer and did not reflect a full-time position.

The Church filed an administrative appeal of the decision revoking the third I-360 petition which the Administrative Appeals Office ("AAO") dismissed. First, the AAO pointed out some discrepancies between two documents submitted by the Church in support of its petition—a weekly work schedule and a diagram summarizing Park's duties between November 1999 and November 2001—and noted that the Church had submitted no evidence to explain the inconsistencies. The AAO next concluded that the position as described in the Church's weekly work schedule did not qualify as a "religious occupation" under the statute and regulations because: (1) the Church failed to establish that all the duties listed in the weekly work schedule were related to the position of choir director and were not primarily secular in nature; and (2) the position had not been shown to be (a) directly related to the Church's religious creed, (b) recognized by the governing body of its denomination, and (c) traditionally a permanent, full-time, salaried occupation within the denomination. Finally, the AAO concluded that the evidence did not establish that Park was continuously engaged as choir director during the two years immediately preceding the filing of the visa petition, because the work schedule indicated that Park served at most thirteen hours per week in music-related activities.²

Park and the Church filed an action for declaratory relief in the district court, claiming that the revocation of the third I-360 petition was not supported by "sufficient and good cause." The district court granted summary judgment for the government. This appeal followed.

DISCUSSION

The district court's jurisdiction to review CIS' revocation of the Church's visa petition is predicated on 28 U.S.C. § 1331 and reinforced by the enactment of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701(a)(2). ANA Int'l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004) (holding that visa revocations pursuant to 8 U.S.C. § 1155 are not made unreviewable by either 8 U.S.C. § 1252(a)(2)(B)(ii) or 5 U.S.C. § 701(a)(2)). Our appellate jurisdiction arises under 28 U.S.C. § 1291, and we review de novo the district court's grant of summary judgment. Spencer Enters., Inc. v. United States, 345 F.3d 683, 692 (9th Cir.2003). Under the APA, we will reverse an agency's action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), or if its factual findings are "unsupported by substantial evidence," Mester Mfg. Co. v. INS, 879 F.2d 561, 565 (9th Cir.1989). To the extent the agency "interpret[ed] its own regulation, even if through an informal process, its interpretation of an ambiguous regulation is controlling ... unless `plainly erroneous or inconsistent with the regulation.'" Bassiri v. Xerox Corp., 463 F.3d 927, 930 (9th Cir.2006) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)).³

I.

As a threshold matter, we consider whether the existence of some discrepancies in the materials submitted by the Church in support of its I-360 petition requires us to affirm the district court's judgment without reaching the merits of this appeal. The Church carried the burden of proof throughout the proceedings to revoke the previously granted visa petition. 8 U.S.C. § 1361; Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir.1984). Moreover, we defer to the BIA's reasonable interpretation of § 1361, which makes "it ... incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence. Attempts to explain or reconcile the conflicting accounts, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice." Matter of Ho, 19 I. & N. Dec. 582, 591-92 (BIA 1988). Under appropriate circumstances, "[d]oubt cast on any aspect of the petitioner's proof may ... lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition." Id. at 591 (emphasis added).

The AAO's decision in this case did not rest, however, on an adverse credibility finding based on the inconsistent records that caused it to reject the Church's other evidence. It true that the AAO noted unresolved discrepancies between the duties of the Church's choir director as listed in its weekly work schedule and the summary of those duties contained in the diagram. The AAO apparently (and properly) resolved these discrepancies against the Church, which had the burden of proof. The AAO did not state, however, that the discrepancies tainted the credibility of the other evidence, and it reached the merits of the Church's visa petition in light of that other evidence.⁴ Because our review of an agency decision is limited to the reasoning articulated by the agency, SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943), we may not now reject the entirety of the evidence submitted by the Church when the agency did not do so. We therefore reach the merits of the Church's petition and review the legal and factual sufficiency of the agency's reasoning, mindful that any inconsistency must be resolved against the petitioner. See Matter of Ho, 19 I. & N. Dec. at 591.

II.

Turning to the merits of this appeal, we first consider whether the position of choir director as defined in the Church's I-360 petition and supporting materials qualifies as a "religious occupation" within the meaning of the statute. By statute, up to 5000 permanent resident visas are set aside every year for "special immigrant" religious workers other than ministers. 8 U.S.C. § 1153(b)(4). A "special immigrant," as that classification pertains to ministers and other religious workers, is defined as:

[A]n immigrant, and the immigrant's spouse and children if accompanying or following to join the immigrant, who—

(i) for at least 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States;

(ii) seeks to enter the United States—

(I) solely for the purpose of carrying...