Shalom Pentecostal Church v. Napolitano, [Dkt. No. 6]

• Decision Date: 14 January 2013
• Docket Number: [Dkt. No. 6],Civ. No. 11-4491 (RMB/AMD)
• Parties: SHALOM PENTECOSTAL CHURCH, et al., Plaintiffs, v. JANET NAPOLITANO, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

SHALOM PENTECOSTAL CHURCH, et al., Plaintiffs,

v.JANET NAPOLITANO, et al., Defendants.

[Dkt. No. 6]

Civ. No. 11-4491 (RMB/AMD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Dated: January 14, 2013

NOT FOR PUBLICATION

OPINION

Appearances:

William A. Stock, Esquire

Klasko, Rulon, Stock & Seltzer, LLP

Attorney for Plaintiffs

Melissa Sher Leibman, Esquire

U.S. Department of Justice

Attorney for Defendants

BUMB, United States District Judge:

Plaintiffs Shalom Pentecostal Church (the "Pentecostal Church" or the "Church") and its Pastor, Carlos Alencar ("Alencar"), filed this case challenging the decision of theUnited States Citizenship and Immigration Service ("USCIS") to deny the Form I-360 special immigrant religious worker visa petition filed by the Church on behalf of Alencar. [See Docket No. 1, Complaint ("Compl."), ¶ 1]. Plaintiffs named as defendants Janet Napolitano, Secretary, Department of Homeland Security, Alejandro Mayorkas, Director, U.S.C.I.S., Rosemary Langley, Melville, Director of the California Service Center of USCIS, and Robert P. Wiemann, Director, USCIS Administrative Appeals Office (collectively, the "Defendants"). Defendants have moved to dismiss. For the reasons that follow, that motion is DENIED, in part, and GRANTED, in part.

I. Background¹

A. Alencar Enters Into The United States And Works For The Pentecostal Church

On June 17, 1995, Alencar, a citizen of Brazil, entered the United States with his wife and two children on a B-2 nonimmigrant visitor's visa for pleasure. Compl., ¶ 26. Under the visa, Alencar and his family were authorized to stay in the United States until December 16, 1995. Compl., ¶ 26. However, Alencar could not lawfully engage in employment under the B-2 visa in the United States (8 U.S.C. § 1101(a)(15)(B); 8C.F.R. §§ 214.2(b)(2),(e))² and Alencar did not otherwise obtain employment authorization. Compl., ¶ 27.

Despite Alencar's authorized status expiring in 1995 and lack of work authorization, Alencar has remained in unlawful status in the United States since then and has served as a religious minister for the Church since 1998. Compl., ¶¶ 28, 29.

B. The Pentecostal Church Submits An I-360 Petition On Alencar's Behalf And It Is Denied

On April 1, 2009, the Pentecostal Church filed an I-360 petition, on Alencar's behalf, for Alencar to obtain classification as a "special immigrant." Compl., ¶ 31. Approval of the I-360 petition and classification as a "special immigrant" is the first step in obtaining a "special immigrant" visa. Ruiz-Diaz v. U.S., 618 F.3d 1055, 1058 (9th Cir. 2010); Shia Ass'n of Bay Area v. U.S., 849 F. Supp. 2d 916, 918 (N.D.Cal. 2012).³ An immigrant whose special immigrant visa petition has been approved is then eligible, if other conditions are met, for adjustment of status to United States permanent resident. 8 U.S.C. § 1255; 8 C.F.R. § 245.2(a)(2)(i)(B).

In Alencar's case, the Church asserted that Alencar qualified for "special immigrant" status under 8 U.S.C. § 1101(a)(27)(C) (the "Statute"), which provides that certain religious workers can qualify as special immigrants. Under that provision, the term "special immigrant" includes:

(C) an 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 on the vocation of a minister of that religious denomination,

(II) before September 30, 2015, 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, 2015, 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).

The United States Department of Homeland Security has promulgated an additional regulatory requirement (the "Regulation") for the religious worker special immigrant visa petition that is relevant here - that any qualifying religious work performed in the United States must be performed under lawful immigration status in the United States. 8 C.F.R. § 204.5(m)(4)(listing, as one of the qualifications for approval of special immigrant religious worker visa petition, that any work performed in the United States be performed "in lawful immigration status in the United Sates").

In support of the petition, the Church submitted evidence that the Pentecostal Church was a bona fide, non-profit religious organization and that Alencar had been employed by the Church for over two years prior to the application. Compl., ¶ 31. However, the Pentecostal Church admitted in the I-360 Petition, as it does in its Complaint here, that Alencar was notin lawful immigration status, nor authorized to engage in employment within the United States. Compl., ¶ 31; Compl., Ex. 1.

On July 8, 2009, the USCIS denied Plaintiff's I-360 Petition because Alencar had not performed qualifying full-time work in lawful immigration status. Compl., ¶ 32. On March 17, 2010, the USCIS Administrative Appeals Office dismissed the appeal taken by the Pentecostal Church, upholding the denial of the petition because Alencar was not in lawful status while working for the Pentecostal Church as required by the Regulation. Compl., ¶ 33.

C. Plaintiffs File This Action

On August 3, 2011 Plaintiffs filed a Complaint in this Court. Plaintiffs claim that the denial of the I-360 petition was improper because the Regulation, which was the basis for the denial, is itself illegal for three separate reasons: (1) because it an ultra vires regulation that contravenes the Statute, 8 U.S.C. § 1101(a)(27)(C) (Compl., ¶ 36); (2) that the Regulation violates the Religious Freedom Restoration Act ("RFRA") (Compl., ¶ 37); and (3) that the Regulation violates the First Amendment and the Equal Protection Clause of the United States Constitution (Compl., ¶ 38). Plaintiffs claimthat this suit is properly brought under several acts, including the Administrative Procedures Act. Compl., ¶ 14.

II. Analysis

As discussed above, Defendants have moved to dismiss the case. They argue that dismissal is warranted on two grounds. First, they argue, that Plaintiffs' claims must be dismissed under Federal Rule of Civil Procedure 12(b)(1)⁴ because Plaintiffs lack standing.⁵ Second, they argue that Plaintiffs have failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). The Court addresses each argument below.

A. Standing

To bring suit in federal court, a plaintiff must establish standing under Article III of the United States Constitution. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The requirements for Article III constitutional standing "ensure that plaintiffs have a personal stake or interest in the outcome of the proceedings, sufficient towarrant their invocation of federal court jurisdiction and to justify exercise of the court's remedial powers on their behalf." Ballentine v. United States, 486 F.3d 806, 814 (3d Cir. 2007)(citing Khodara Envtl., Inc. v. Blakely, 376 F.3d 187, 193 (3d Cir. 2004)).

Article III standing has three elements:

(1) "the plaintiff must have suffered an injury in fact - an invasion of a legally protected interest which was (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical";

2) "there must be a causal connection between the injury and the conduct complained of"; and

(3) "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 560-61.

Injury in fact requires more than an injury to a cognizable interest; it requires that the party seeking review be among the injured. Id. at 563. A party must show a "substantial likelihood" that the relief sought would redress the alleged injury. Lujan, 504 U.S. at 561.

Where, like here, the suit is under the Administrative Procedures Act, the plaintiff must, in addition to demonstrating constitutional standing under Article III, show that he has "prudential standing" by demonstrating that the interest "he asserts [is] arguably within the zone of interests to beprotected or regulated by the statute that he says was violated." Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199, 2210 (2012)(quotation and citation omitted). That test "is not meant to be especially demanding" and "forecloses suit only when a plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Id. (quotation and citation omitted).

Defendants make two standing arguments. First, they argue that Alencar, as merely a beneficiary of the I-360 Petition, has not suffered a constitutional concrete injury in fact, as necessary for standing. This Court disagrees. To be sure, a number of courts have held that the beneficiary of a visa petition, like Alencar, has no standing to challenge visa petition proceedings. Echevarria v. Keisler, 505 F.3d 16, 18 (1st Cir. 2007)(holding that beneficiary of Form I-130 relative petition did not have standing to challenge petition denied based on marriage fraud); Kale v. U.S. I.N.S., 37 F. App'x 90, at *2 (5th Cir. 2002); George v. Napolitano, 693 F.Supp.2d 125, 130 (D.D.C. 2010); Li v. Renaud, 709 F. Supp. 2d 230, 236 n.3 (S.D.N.Y. 2010); Zhong v. Novak, No. 08-4597, 2010 WL 3302962, at *7 n.12 (D.N.J. Aug....