Ruiz-diaz v. U.S.A

• Decision Date: 20 August 2010
• Docket Number: No. 09-35734.,09-35734.
• Citation: 618 F.3d 1055
• Parties: Gabriel RUIZ-DIAZ; Hyun Sook Song; Cindy Lee Marsh; Peter Gillette; Saleck Ould Dah Ould Sidine; Pablo Sandoval; Yuriy Kasyanov; Lelia Tenreyro-Viana; Edgardo Gaston Romero Lacuesta; Rosario Razo Romero; Youn Su Nam; Harold Michael Carl Lapian; Land of Medicine; Ukrainian Autocephalous Orthodox Church; Seattle Mennonite Church, Plaintiffs-Appellees,v.UNITED STATES of America; United States Citizenship and Immigration Services; United States Department of Homeland Security; United States Department of Justice; Michael Aytes, Acting Deputy Director of Citizenship and Immigration Services; Janet Napolitano, Secretary of Department of Homeland Security; Eric H. Holder, Jr., Attorney General, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

618 F.3d 1055

Gabriel RUIZ-DIAZ; Hyun Sook Song; Cindy Lee Marsh; Peter Gillette; Saleck Ould Dah Ould Sidine; Pablo Sandoval; Yuriy Kasyanov; Lelia Tenreyro-Viana; Edgardo Gaston Romero Lacuesta; Rosario Razo Romero; Youn Su Nam; Harold Michael Carl Lapian; Land of Medicine; Ukrainian Autocephalous Orthodox Church; Seattle Mennonite Church, Plaintiffs-Appellees,
v.
UNITED STATES of America; United States Citizenship and Immigration Services; United States Department of Homeland Security; United States Department of Justice; Michael Aytes, Acting Deputy Director of Citizenship and Immigration Services; Janet Napolitano, Secretary of Department of Homeland Security; Eric H. Holder, Jr., Attorney General, Defendants-Appellants.

No. 09-35734.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted July 12, 2010.
Filed Aug. 20, 2010.

618 F.3d 1056

Melissa S. Leibman, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for the defendants-appellants.

Robert Pauw, Gibbs Houston Pauw, Seattle, WA, for the plaintiffs-appellees.

618 F.3d 1057

Appeal from the United States District Court for the Western District of Washington, Robert S. Lasnik, Chief District Judge, Presiding. D.C. No. 2:07-cv-01881-RSL.
Before: PAMELA ANN RYMER and N. RANDY SMITH, Circuit Judges, and DONALD E. WALTER, Senior District Judge.^*OPINIONRYMER, Circuit Judge:

We must decide whether a regulation providing that alien beneficiaries of special immigrant religious worker visa petitions may file an application for adjustment of status only when their visa petition has been approved, 8 C.F.R. § 245.2(a)(2)(i)(B), is a permissible construction of 8 U.S.C. § 1255(a).¹ Section 1255(a) provides that the status of an alien who has been inspected and admitted or paroled into the United States may be adjusted by the Attorney General ² if the alien makes an application, is eligible to receive an immigrant visa, and an immigrant visa is immediately available when he applies.

Gabriel Ruiz-Diaz represents a class of alien beneficiaries of special immigrant religious worker visa petitions, and organizations that employ religious workers, who maintain that the regulation is invalid under the statute. The district court agreed, granting summary judgment for Ruiz-Diaz. It reasoned that in § 1255(a), Congress clearly determined which aliens are eligible to apply for adjustment of status-those who are “inspected and admitted or paroled”-and the regulation prevents otherwise eligible aliens from submitting an application because they don't meet a requirement that is not in the statute: having an approved visa petition. The court also rejected the government's position that § 245.2(a)(2)(i)(B) simply regulates the application process under § 1255(a)(1), holding instead that the regulation unreasonably interprets “immediately available” as meaning two different things-that a visa number is available when the application is filed (in the case of family and higher preference employment-based beneficiaries), and that an alien must be eligible for immediate assignment of a visa number, i.e., the petition has already been approved (in the case of special immigrant employment-based beneficiaries). Accordingly, after granting summary judgment for Ruiz-Diaz and declaring the bar against concurrent filings in 8 C.F.R. § 245.2(a)(2)(i)(B) invalid, the court issued a permanent injunction requiring the government to accept as properly filed adjustment of status applications for religious workers filed concurrently with visa petitions. The government appealed.

Applying Chevron's two-step analysis,³ we conclude that the statute is silent on the timing of visa petitions and applications for adjustment of status. Congress conferred discretion on the Attorney General to devise regulations to implement

618 F.3d 1058

§ 1255(a), and we cannot say that the agency's interpretation in 8 C.F.R. § 245.2(a)(2)(i)(B) is arbitrary, capricious, or manifestly contrary to the statute. This being so, we reverse the judgment and vacate the injunction. However, other claims that were mooted by the district court's ruling now present a live controversy, so we remand for further proceedings.⁴I

Up to 5000 special immigrant visas may be granted to religious workers each year.⁵ 8 U.S.C. § 1153(b)(4); 8 U.S.C. § 1101(a)(27)(C). This type of special immigrant visa is for ministers, religious workers in a professional capacity in a religious vocation or occupation, and religious workers in a religious vocation or occupation as defined in § 1101(a)(27)(C). A person seeking a special immigrant religious worker visa may be overseas or in the United States. Many such individuals who are already present in this country are on a non-immigrant visa (R-1 visa). 8 U.S.C. § 1101(a)(15)(R); 8 C.F.R. § 214.2(r). As with all non-immigrant visas, the R-1 is issued for a definite duration; a non-immigrant religious worker who holds an R-1 visa may stay for a maximum of five years. 8 U.S.C. § 1101(a)(15)(R)(ii); 8 C.F.R. § 214.2(r)(4)-(6). The alien must depart when the five-year period has expired, unless he has sought to adjust status prior to the R-1 visa's expiration.⁶ If he does none of these things, the alien's status will be unlawful and he may begin to accrue an unlawful presence. See 8 U.S.C. § 1255(k). If the alien accrues a period of unlawful presence of more than 180 days, he will be statutorily ineligible for adjustment of status and United States Citizenship and Immigration Services will deny his application. 8 U.S.C. § 1255(c), (k).

A religious organization employer sets the process of obtaining a special immigrant religious worker visa in motion by filing a Form I-360 Petition for Special Immigrant.⁷ To qualify, religious workers must have been engaged in the work for which they are applying for at least two years prior to filing the petition. 8 U.S.C. § 1101(a)(27)(C)(iii). The petition is the alien's opportunity to show that he or she may be classified in one of the family or employment preference categories identified in § 1153. Kyung Park v. Holder, 572 F.3d 619, 622 (9th Cir.2009). All special immigrants, including religious workers, are in the fourth preference employment-based category. Id. § 1153(b)(4).

Apart from filing the petition, an alien seeking to adjust status to that of a lawful permanent resident must apply for adjustment of status. This would be on a Form I-485 Application to Register Permanent Residence or Adjust Status. This case involves adjustment of status.

The governing statute is § 1255(a), which allows an alien who has been admitted

618 F.3d 1059

or paroled into the United States to adjust status in the discretion of the agency, and under regulations the agency may prescribe, if (1) the alien makes an application; (2) the alien is eligible to receive a visa; and (3) a visa is immediately available. In full, § 1255(a) provides:

The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a). An alien is “eligible to receive an immigrant visa” if he is eligible to be classified for a family or employment-based visa. See 8 U.S.C. § 1153. An alien is “admissible to the United States for permanent...