Sikh Cultural Soc'y, Inc. v. U.S. Citizenship & Immigration Servs.

• Decision Date: 30 March 2017
• Docket Number: 15-CV-5158 (RRM)
• Parties: THE SIKH CULTURAL SOCIETY, INC., Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.
• Court: U.S. District Court — Eastern District of New York

THE SIKH CULTURAL SOCIETY, INC., Plaintiff, v. UNITED STATES CITIZENSHIPAND IMMIGRATION SERVICES, Defendant.

15-CV-5158 (RRM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 30, 2017

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, United States District Judge.

On September 4, 2015, plaintiff, The Sikh Cultural Society, Inc., ("SCS"), which owns and operates a Sikh temple (the "Temple") in Queens, New York, commenced this action against defendant, United States Citizenship and Immigration Services ("USCIS"). (Compl. (Doc. No. 1) at 2.) SCS seeks judicial review, pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (the "APA"), of a decision of USCIS's Administrative Appeals Office (the "AAO") affirming the denial of an immigration petition for a "special immigrant" visa pursuant to 8 U.S.C. § 1153(b)(b), which provides for, inter alia, special immigration status for aliens employed in the United States as religious workers. (Id.) SCS filed the petition on behalf of Birender Singh ("Singh"), alleging that it wished to employ Singh as a "kirtanakar," or devotional hymn singer. (Compl. at 4.) SCS seeks to have the AAO's decision set aside as arbitrary and capricious and unlawful under the APA. (Compl. at 5.) SCS and USCIS have cross-moved for summary judgment. (See USCIS Br. Summ. J. (Doc. No. 14); SCS Br. Summ. J. (Doc. No. 13-1).) For the reasons below, the Court finds that the petition was properly denied. As such, SCS's motion is denied, and USCIS's motion is granted.

STATUTORY AND REGULATORY FRAMEWORK

Pursuant to 8 U.S.C. § 1101(a)(27)(C) a special immigrant religious worker visa may be issued to an alien 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 a 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 at the request of the organization (or a bona fide organization which is affiliated with the religious denomination and is exempt from taxation of 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 a 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) (emphasis added).

To establish eligibility for a religious worker visa, an alien or his prospective employer must file a Form I-360 with USCIS. 8 C.F.R. § 204.5(m)(6). The prospective employer also must complete a supplemental attestation that describes in detail the prospective employer's size, tax status, history of employing alien religious workers, and other facts useful for determining whether the prospective employer is a bona fide religious organization and is offering a legitimate position to the alien. 8 C.F.R. § 204.5(m)(7).

If the religious worker received salaried compensation while employed in the United States during the two-year period prior to the filing of the petition, "the petitioner must submit [Internal Revenue Service ("IRS")] documentation that the [worker] received a salary, such as an IRS Form W-2 . . . or certified copies of income tax returns." 8 C.F.R. § 204.5(m)(11)(i). If the religious worker received non-salaried compensation while employed in the United States duringthat two-year period, "the petitioner must submit IRS documentation of the non-salaried compensation if available." 8 C.F.R. § 204.5(m)(11)(ii). Another USCIS regulation provides additional guidance regarding the type of evidence that must be submitted related to the compensation of the religious worker:

Initial evidence must include verifiable evidence of how the petitioner intends to compensate the alien. Such compensation may include salaried or non-salaried compensation. This evidence may include past evidence of compensation for similar positions; budgets showing monies set aside for salaries, leases, etc.; verifiable documentation that room and board will be provided; or other evidence acceptable to USCIS. If IRS documentation, such as IRS Form W-2 or certified tax returns, is available, it must be provided. If IRS documentation is not available, an explanation for its absence must be provided, along with comparable, verifiable documentation.

8 C.F.R. § 204.5(m)(10). Like all petitioners for an immigration benefit, a petitioner seeking an I-360 religious worker visa must establish eligibility for the visa at the time of filing and throughout adjudication. 8 C.F.R. § 103.2(b)(1).

ADMINISTRATIVE RECORD

I. Other Petitions Filed by SCS

On September 7, 2006, SCS filed an I-360 special immigrant religious worker petition for Singh. (Admin. R. at 368-71.) USCIS issued a request for evidence ("RFE") on December 11, 2006, (id. at 567-70), a second RFE on April 25, 2007, (id. at 407-11), and a notice of intent to deny ("NOID") on May 1, 2009. (Id. at 357-58). The NOID detailed a July 2008 telephone interview in which Avtar Singh Pannu ("Pannu"), identified as the President of SCS¹ told USCIS officers that Singh was employed to clean the Temple. (Id. at 357.) The District Director ("the Director") of the USCIS California Service Center denied this petition on July 13, 2009. (Id. at 339-41.) The Director denied the petition on the grounds that (1) Singh was not employed in areligious occupation, and (2) there was insufficient evidence that the proposed duties for Singh related to a religious function. (Id. at 340.) The Director rejected as unsupported SCS's allegation that Pannu misspoke during the interview with the USCIS officers due to his allegedly limited proficiency in speaking and understanding English. (Id. at 341.)

In July 25, 2011, SCS filed an I-129 Petition for Nonimmigrant Worker seeking an extension of stay for Singh's R-1 nonimmigrant status. (Id. at 1000-13.) This petition stated that Singh would be paid an annual salary of $12,950 plus "free boarding/lodging/food & monetary benefits in the form of offerings by devotee or congregation," as well as "extra cash income from performing special services outside [the Temple] at devotees' houses." (Id. at 1005, 1010.) On December 2, 2011 USCIS issued a NOID, notifying SCS that during a telephone interview with USCIS officers, Pannu stated that he did not recognize the names of several individuals listed in petitions filed by SCS and that SCS had "reported to the Department of State that they [viz., SCS] have multiple people for whom they petitioned not reporting as religious workers, but working in construction." (Id. at 1207-209.) The NOID also requested, inter alia, a complete spreadsheet of all employees of SCS from 2007 to present. (Id. at 1208.) In response, SCS provided only a list of employees as of December 31, 2011. (Id. at 1213.)

In a decision dated January 13, 2012, the Director denied this petition. (Id. at 1201-04.) The decision stated that the sole issue was whether Singh's duties related to a traditional religious function. (Id. at 1203.) The Director noted that Pannu had informed USCIS officers during the July 2008 telephone interview that Singh was employed by SCS to clean the Temple. (Id.) The Director concluded that SCS "has not shown that the [B]eneficiary's essential job functions are inherently or predominantly religious." (Id.)

Following a number of dismissed motions and appeals, including submission of affidavits concerning Pannu's English proficiency and Singh's religious duties, as well as claims of ineffective counsel, (id. at 928-93), SCS filed the final administrative appeal concerning this petition on March 29, 2013. (Id. at 922.) Among the documents submitted by SCS was SCS's Form W-2 for Singh for 2012, which was altered in a number of respects. (Id. at 940.) For example, the first three numbers of "2012" were printed, but the last number was handwritten. (Id.)

In a decision dated June 28, 2013 the USCIS Administrative Appeals Office ("AAO") dismissed the appeal. (Id. at 905.) The AAO held that SCS had submitted conflicting evidence as to the duties to be performed by Singh, and thus had failed to show that the Singh would be performing religious duties. (Id. at 908-12.) The AAO also held that this petition should be denied because Singh had been in R-1 nonimmigrant status continuously for more than five years, and as a result, he would have to spend at least one year outside the United States to qualify for an extension. (Id. at 912-13.)

II. The 2009 Petition

On August 28, 2009, SCS filed a second I-360 immigrant petition ("the 2009 Petition") seeking to classify Singh's immigrant status as a special immigrant religious worker, to be employed as a kirtankar - a devotional hymn singer and priest. (Id. at 290-97.) It is this petition that is the subject of the instant action. (See generally, Compl.) The 2009 Petition claimed that SCS had a staff of four employees and specified that as a kirtankar, Singh would receive an annual salary of "$25000 [sic] plus free boarding & lodging" - as well as "[e]xtra income from performing Kirtan at devotee's home." (Admin. R. at 295-96.) The cover letter from SCS's President, Tehal Singh, alleged that Singh had been employed by SCS since April 12, 2003 andreceived an annual salary of $25,000, including free lodging and board valued at $15,400. (Id. at 324.)

On October 27, 2009, USCIS issued to SCS an RFE requesting, inter alia, further evidence concerning Singh's work history and proffered position - as well as how SCS intended to compensate Singh. (Id. at 660-61.) Among the documents requested was Singh's W-2 Form for 2007. (Id. at 660.) In a letter...