Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec., No. 13–4434.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtKRAUSE, Circuit Judge.
Citation783 F.3d 156
Docket NumberNo. 13–4434.
Decision Date07 April 2015
PartiesSHALOM PENTECOSTAL CHURCH; Carlos Alencar v. ACTING SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Director United States Citizenship and Immigration Services; Director of the California Service Center of Uscis; Director United States Citizenship and Immigration Services Administrative Appeals Office, in their official capacity, Appellants.

783 F.3d 156

SHALOM PENTECOSTAL CHURCH; Carlos Alencar
v.
ACTING SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Director United States Citizenship and Immigration Services; Director of the California Service Center of Uscis; Director United States Citizenship and Immigration Services Administrative Appeals Office, in their official capacity, Appellants.

No. 13–4434.

United States Court of Appeals, Third Circuit.

Argued: Sept. 8, 2014.
Opinion filed April 7, 2015.


783 F.3d 158

William A. Stock, Esquire (Argued), Klasko, Rulon, Stock & Seltzer, Philadelphia, PA, for Appellees.

Geoffrey Forney, Esquire (Argued), Melissa S. Leibman, Esquire, United States Department of Justice, Washington, DC, for Appellants.

Scott D. Pollock, Esquire, Chicago, IL, for Amicus Appellee.

Before: RENDELL, GREENAWAY, JR., and KRAUSE, Circuit Judges.

OPINION OF THE COURT

KRAUSE, Circuit Judge.

The Immigration and Nationality Act (INA) enables an immigrant to obtain a visa as a “special immigrant religious worker” if the immigrant meets certain statutory criteria, including that he has been “carrying on” religious work for at least the two years preceding the filing of the visa petition. This case presents the question whether a requirement imposed in the relevant regulation that this religious work have been carried on “in lawful immigration status” crosses the line from permissible statutory interpretation by the responsible agency to ultra vires regulation contrary to the clear intent of Congress. None of our sister Courts of Appeals have yet weighed in on this issue, but the District Court here concluded that the regulation is ultra vires because it contradicts the plain language of the INA. Shalom Pentecostal Church v. Beers, No. 11–4491, 2013 U.S. Dist. LEXIS 185091, at *19 (D.N.J. Sept. 16, 2013). For the reasons set forth below, we agree. We therefore will affirm the District Court's order as to the invalidity of the regulation but will reverse and remand for further fact-finding on the remaining visa criteria.

I. Factual Background and Procedural History

A. Alencar's Visa Application

None of the material facts in this case are disputed. Appellee Carlos Alencar, a Brazilian national, travelled with his family to the United States on a B–2 nonimmigrant tourist visa in June 1995. The visa

783 F.3d 159

authorized Alencar to stay in the United States until December 1995, but he has remained in the United States unlawfully since the visa expired. Alencar was not authorized to work under the terms of his B–2 visa, nor did he otherwise obtain employment authorization.

Alencar has been seeking legal immigration status as a special immigrant religious worker since 1997, when he first petitioned for an I–360 visa petition, which would eventually qualify him to seek permanent residency status. That petition and a second petition filed by Alencar in 2001 were both rejected by the United States Citizenship and Immigration Service (CIS). Nonetheless, Alencar began working as a senior pastor for the Shalom Pentecostal Church (the “Church”) in 1998 and continued in that capacity through the filing of this appeal.

The I–360 petition at issue here was filed by the Church on Alencar's behalf in 2009. CIS again denied the petition and, in this instance, did so on the sole ground that the Church had failed to establish, pursuant to newly promulgated 8 C.F.R. 204.5(m)(4) and (11) (the “Regulation”), that Alencar had been “performing full-time work in lawful immigration status as a religious worker for at least the two-year period immediately preceding the filing of the petition.” (App. 90 (emphasis added).) The CIS Administrative Appeals Office dismissed the Church's appeal, concluding, consistent with the Regulation, that Alencar's “religious employment in the United States during the qualifying period was not authorized under United States immigration law.” (App. 66.)

In 2011, Alencar and the Church filed a complaint in the United States District Court for the District of New Jersey, challenging the denial of the I–360 petition on several grounds, including that the Regulation was ultra vires to the INA.1 The District Court denied the Government's motion to dismiss and subsequently granted plaintiffs' motion for summary judgment, invalidating the Regulation on the grounds that the statutory language was unambiguous and that the Regulation's addition of the “lawful status” requirement was inconsistent with the statutory scheme.2 The District Court further held that any remand would be futile and ordered CIS to grant Alencar's I–360 petition.

B. The Visa Petition Process

The INA provides for preference in the issuance of visas to five categories of workers: (1) priority workers, (2) aliens with advanced degrees or of exceptional ability, (3) skilled workers and professionals, (4) special immigrants, including religious workers, and (5) foreign investors. 8 U.S.C. § 1153(b)(1)-(5). The subcategory at issue in this case—the special immigrant religious worker program—permits ministers and nonminister religious workers to immigrate in legal status to the United States to perform religious work. 8 U.S.C. § 1101(a)(27)(C). In order to

783 F.3d 160

become a legal permanent resident (LPR) through the special immigrant religious worker program, an alien or his prospective employer must complete two steps. First, the applicant must successfully petition CIS for an I–360 visa. 8 C.F.R. § 204.5(a), (c), (m)(6). If granted that visa, the alien may apply to the Attorney General for permanent adjustment of status. 8 U.S.C. § 1255.3

This case focuses on the first step of this process. The INA requires that, in order to qualify for an I–360 visa as a special immigrant religious worker, the immigrant must meet three criteria: (1) membership in a religious denomination with a bona fide nonprofit religious organization in the United States for two years immediately preceding the petition, (2) intent to enter the United States or change status within the United States solely for the purpose of working as a minister or in another religious vocation, and (3) the “carrying on” of such religious work continuously for at least the two years before applying. 8 U.S.C. § 1101(a)(27)(C)(i)-(iii).4

As it is authorized to do under 8 U.S.C. § 1103(a)(3), CIS has promulgated regulations elaborating on these statutory qualifications. Under the regulations, the visa petition procedure begins when either an alien or a person on the alien's behalf applies for an I–360 visa. That visa, if granted by CIS, classifies an alien as a special immigrant religious worker. The filer must present evidence that the alien meets the statutory requirements as expounded by the regulations. For example, while the statute requires that the alien seek to enter the United States “solely for the purpose of carrying on the vocation of a minister,” 8 U.S.C. § 1101(a)(27)(C)(ii)(I), the regulations specify that the intended religious work be both full time and compensated. 8 C.F.R. § 204.5(m)(2).

In 2008, CIS amended 8 C.F.R. § 204.5(m) to require that an alien have worked “either abroad or in lawful immigration status in the United States, and ... continuously for at least the two-year period immediately preceding the filing of the petition” to be eligible for classification as a special immigrant religious worker. 8 C.F.R. § 204.5(m)(4) (emphasis added). The amendments also added that “[q]ualifying prior experience ... if acquired in the United States, must have been authorized

783 F.3d 161

under United States immigration law.” 8 C.F.R. § 204.5(m)(11). The Regulation thus disqualifies applicants like Alencar who did “carry on” otherwise qualifying religious work during the two years before they filed a visa application but did so without lawful status.

II. Jurisdiction and Standard of Review

The Government filed a timely notice of appeal on November 13, 2013. The District Court had jurisdiction pursuant to 5 U.S.C. § 702 of the Administrative Procedure Act (APA), and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291. We review the legal conclusions related to standing de novo. Edmonson v. Lincoln Nat'l Life Ins. Co., 725 F.3d 406, 414 (3d Cir.2013). We apply de novo review to the District Court's grant of summary judgment in a case brought under the APA. Cyberworld Enter. Techs., Inc. v. Napolitano, 602 F.3d 189, 195 (3d Cir.2010).

III. Discussion

The Government raises two issues on appeal. First, it contends that Alencar and the Church lack standing to challenge the denial of the I–360 petition. Specifically, the Government contests: (1) the constitutional standing of both Alencar and the Church, (2) Alencar's standing under CIS regulation 8 C.F.R. § 103.3(a)(1)(iii)(B), and (3) Alencar's right to sue under the INA. Second, the Government argues that the District Court erred in ruling that the Regulation is ultra vires. We address these issues in turn.

A. Standing

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28 practice notes
  • Si Min Cen v. Attorney Gen. U.S., No. 14-4831
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 6, 2016
    ...canons of construction and the broader statutory context. Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec. , 783 F.3d 156, 164–65 (3d Cir. 2015) ; United States v. Geiser , 527 F.3d 288, 292–94 (3d Cir. 2008). If, however, “the statute is silent or ambiguous with respec......
  • Sikkelee v. Precision Airmotive Corp., No. 14–4193.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 19, 2016
    ...as to ‘give effect to every word of a statute wherever possible,’ ” Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec., 783 F.3d 156, 165 (3d Cir.2015) (quoting Leocal v. Ashcroft, 543 U.S. 1, 12, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) ), GARA reinforces what is now appare......
  • United States v. Foy, No. 10-4728
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 5, 2015
    ...agree in writing to abide by the conditions of release. Cf. Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec., 783 F.3d 156, 167 (3d Cir. 2015) (striking as ultra vires an agency regulation imposing an additional requirement on criteria for entitlement to visa issuance o......
  • Gentile v. Sec. & Exch. Comm'n, No. 19-2252
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 10, 2020
    ..., 479 U.S. 388, 395-96, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987) ; Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec. , 783 F.3d 156, 163-64 (3d Cir. 2015).8 See Dunlop v. Bachowski , 421 U.S. 560, 567-68, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975) (requiring evidence that Congress......
  • Request a trial to view additional results
28 cases
  • Si Min Cen v. Attorney Gen. U.S., No. 14-4831
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 6, 2016
    ...canons of construction and the broader statutory context. Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec. , 783 F.3d 156, 164–65 (3d Cir. 2015) ; United States v. Geiser , 527 F.3d 288, 292–94 (3d Cir. 2008). If, however, “the statute is silent or ambiguous with respec......
  • Sikkelee v. Precision Airmotive Corp., No. 14–4193.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 19, 2016
    ...as to ‘give effect to every word of a statute wherever possible,’ ” Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec., 783 F.3d 156, 165 (3d Cir.2015) (quoting Leocal v. Ashcroft, 543 U.S. 1, 12, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) ), GARA reinforces what is now appare......
  • United States v. Foy, No. 10-4728
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 5, 2015
    ...agree in writing to abide by the conditions of release. Cf. Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec., 783 F.3d 156, 167 (3d Cir. 2015) (striking as ultra vires an agency regulation imposing an additional requirement on criteria for entitlement to visa issuance o......
  • Gentile v. Sec. & Exch. Comm'n, No. 19-2252
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 10, 2020
    ..., 479 U.S. 388, 395-96, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987) ; Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec. , 783 F.3d 156, 163-64 (3d Cir. 2015).8 See Dunlop v. Bachowski , 421 U.S. 560, 567-68, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975) (requiring evidence that Congress......
  • Request a trial to view additional results

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