Salesian Soc'y, Province of St. Philip The Apostle, Inc. v. Mayorkas

Decision Date22 September 2021
Docket NumberCiv. Action 18-0477 (EGS)
PartiesSALESIAN SOCIETY, PROVINCE OF ST. PHILIP THE APOSTLE, INC., et al., Plaintiff, v. ALEJANDRO MAYORKAS, [1] et al., Defendants.
CourtU.S. District Court — District of Columbia


Pursuant to the Immigration and Nationality Act (“INA”) special immigrant visas are available each year to qualified ministers of religious denominations that have bona fide religious organizations in the United States. 8 U.S.C. § 1153(b)(4). For a foreign minister to qualify for a special immigrant visa under the INA, he or she must be seeking to enter the United States solely for the purpose of carrying on the vocation of a minister, and must have been carrying on that vocation for at least the two years before the time he or she applied for the visa. 8 U.S.C. § 1101(a)(27)(C). The INA also makes up to 5, 000 special immigrant visas available each year to non-minister religious workers who seek to work in religious vocations or occupations for a religious organization in the United States and who have been carrying on that work for at least the two years before the time they applied for the visa. 8 U.S.C § 1153(b)(4); 8 U.S.C. § 1101(a)(27)(C)(ii)(II)-(III). As required by the INA, U.S Citizenship and Immigration Services (“USCIS”) has issued regulations that elaborate on the qualifications required by statute that an immigrant seeking a special immigrant religious worker visa must demonstrate. 8 U.S.C § 1103(a)(3); 8 C.F.R. § 204.5(m).

At issue in this action are provisions of USCIS's regulations that require ministers and other religious workers, or the religious organizations filing on their behalf, to submit evidence with their special immigrant religious worker visa petitions that shows: (1) they will be working in a “compensated position” when they enter the United States, which “may include salaried or non-salaried compensation”; and (2) they received salaried or non-salaried compensation for the religious work they performed in the two years before filing their petition, or they received no salary during that time but provided for their own support. 8 C.F.R. § 204.5(m)(2), (10), (11).

Plaintiffs-Salesian Society, Province of St. Philip the Apostle, Inc. (Salesian Society); Brother Eduardo Alberto Chincha Leon (Brother Eduardo”), Brother Juan-Pablo Rubio-Olivares (Brother Rubio”), and Brother Sasika Nalaka Lokuhettige (Brother Sasika”)-challenge these regulations as well as the denial of the Brothers' visa petitions based, among other things, on the challenged regulations. As Plaintiffs allege in their Complaint, [t]he gravamen of the Plaintiffs' claim is that the Defendants have illegally imposed a requirement that the Plaintiffs must prove financial compensation despite the fact that, as is the case with all professed Salesians, Brother Eduardo, Brother Sasika and Brother Rubio, have taken a vow of poverty consistent with the Salesian Society's long-standing basic religious tenants.” Am. Comp., ECF 41 ¶ 1. Plaintiffs claim 8 C.F.R. § 204.5(m)(2) and (m)(11) violate: (1) the Administrative Procedures Act (“APA”) because they “impose restrictions not contemplated by the [INA] and that directly contradict the INA, ” making them ultra vires, arbitrary, capricious, and not in accordance with the law; (2) the Free Exercise and Establishment Clauses of the First Amendment because they discriminate against religious organizations whose ministers have taken a vow of poverty and inhibit the interests of those religious organizations while preferencing others; and (3) the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., because, for ministers who have taken a vow of poverty and for their religious organizations, they substantially burden the exercise of religion.[2]

Defendants disagree with Plaintiffs' characterization of the challenged regulations, stating that ministers and other religious workers who have taken a vow of poverty can satisfy the requirements by providing satisfactory evidence of their religious organization's direct or indirect financial support, which could take the form of payment for housing, food, or tuition for religious studies, among other things, or by providing evidence of the religious worker's self-support in the absence of compensation. When interpreted correctly, Defendants argue, these regulations are not in conflict with the INA. Rather, the regulations establish the type and quantum of evidence necessary to satisfy the INA's requirements that special immigrant religious workers be coming to the United States “solely for the purpose of carrying on the vocation of minister” or “to work” in a professional or non-professional capacity “in a religious vocation” and that they have been carrying on those vocations for at least two years before applying. To ensure a special immigrant religious worker meets those qualifications, and to adhere to Congress' directive to reduce fraud in this particular visa program, Defendants argue that regulations requiring evidence that the petitioner receives a salary or indirect financial support are a permissible construction of the statute. Defendants also maintain that because the regulations as written already accommodate the Salesian Brothers and other religious workers who have professed a vow of poverty-and in this case, Plaintiffs have simply failed to submit any of the acceptable forms of evidence-the challenged regulations do not violate the First Amendment or RFRA.

Pending before the Court are Plaintiffs' April 10, 2019 Motion for Summary Judgment, ECF No. 42; and Defendants' May 1, 2019 Cross-Motion for Summary Judgment, ECF No. 43.[3] On September 18, 2018, the Court informed the parties that Plaintiffs' motions for injunctive relief would be consolidated with the merits pursuant to Federal Rule of Civil Procedure 65(a)(2). Min. Order (Sept. 18, 2018). The parties agree that the Court has before it all relevant evidence in the case.[4] Upon consideration of the parties' submissions, the applicable law, and the entire record herein, the Court DENIES Plaintiffs' Motion for Summary Judgment; and GRANTS Defendants' Cross-Motion for Summary Judgment.[5]

I. Background
A. The Immigration and Nationality Act

The INA governs the issuance of visas to foreign nationals seeking to enter the United States, and broadly speaking, it provides for two categories of visa applicants: ‘nonimmigrants,' who plan to stay in the country only temporarily, and ‘immigrants, who plan to stay permanently.” Save Jobs USA v. Dep't of Homeland Sec., 942 F.3d 504, 506 (D.C. Cir. 2019) (citing 8 U.S.C. § 1184(b) (“Every alien ... shall be presumed to be an immigrant until he establishes ... that he is entitled to a nonimmigrant status.”); and citing 8 U.S.C. § 1101(a)(15) (setting forth nonimmigrant classifications)).

With respect to the allocation of immigrant visas, the INA provides preference for “employment-based immigrants” who fall within five categories of workers: (1) priority workers, including those with extraordinary ability in the sciences, arts, education, business or athletics, outstanding professors and researchers, and certain multinational executives and managers; (2) those with advanced degrees or of exceptional ability in certain professions; (3) skilled workers and professionals; (4) “special immigrants, ” and (5) foreign investors. See 8 U.S.C. § 1153(b)(1)-(5). As relevant here, the INA defines “special immigrants” to include ministers and other religious workers. See 8 U.S.C. § 1101(a)(27)(C).

The term “special immigrant” means- . . .
(C) an 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 on the vocation of a minister of that religious denomination,
(II) before September 30, 2021, in order to work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation, or
(III) before September 30, 2021, in order to work for the organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of title 26) at the request of the organization in a religious vocation or occupation; and
(iii) has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period described in clause (i)[.]

8 U.S.C. § 1101(a)(27)(C)(i)-(iii).

In short, the INA makes visas available for qualified ministers and other religious workers to immigrate in legal status to the United States to perform religious work. See Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec., 783 F.3d 156, 159 (3d Cir. 2015). To obtain a special immigrant religious worker visa, a minister or other religious worker, or their employer, must file an I-360 petition, see 8 U.S.C. § 1154(a)(1)(G)(i); and if USCIS approves the petition, the religious worker can either apply for a visa from abroad, or for adjustment of their status to a lawful permanent resident if he or she is already in the United States, 8 U.S.C. § 1153(b)(4). Up to 5000 such visas are available each year. 8 U.S.C. § 1153(b)(4).

B. USCIS's Implementing Regulations

Under the current USCIS regulations pertaining to special immigrant religious workers, an I-360 petition for a minister or non-minister religious worker seeking such classification must:

(1) For at least two years immediately preceding the filing of the petition have been a member

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