Unification Church v. Attorney General for U.S., s. 76-1909 and 77-1400
| Decision Date | 01 March 1978 |
| Docket Number | Nos. 76-1909 and 77-1400,s. 76-1909 and 77-1400 |
| Citation | 189 U.S.App.D.C. 92,581 F.2d 870 |
| Parties | UNIFICATION CHURCH a/k/a Holy Spirit Association for the Unification of World Christianity, Appellant, v. The ATTORNEY GENERAL FOR the UNITED STATES. Keiko ASAI et al., Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil 74-1340).
Richard I. Chaifetz, Atty., Dept. of Justice, Washington, D. C., for appellee and respondent.
Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
Opinion for the Court filed by BAZELON, Chief Judge.
The Unification Church, also known as the Holy Spirit Association for the Unification of World Christianity, is an interfaith religious movement with membership in approximately 40 countries. The Church has established facilities at Tarrytown and Barrytown, New York, to train missionaries needed to staff its worldwide evangelical program. These two cases concern the efforts of the Church to bring aliens to the United States for missionary training at these facilities. In No. 76-1909 the Church appeals the Immigration and Naturalization Service's denial of the Church's petitions to have these aliens admitted as "trainees" under 8 U.S.C. § 1101(a)(15)(H) (iii). 1 See 8 U.S.C. § 1184(c). In No. 77-1400, the Church urges us to vacate deportation orders lodged against these aliens and to stay further deportation hearings until the validity of its H-3 petitions 2 is conclusively determined.
A district director of the Immigration and Naturalization Service (INS) initially denied the Church's H-3 petitions. Joint Appendix (J.A.) at 76, 125-30. 3 His decision was affirmed by the Northeast regional commissioner. J.A. at 77. The commissioner stated that:
The record further reveals that many of the beneficiaries as well as other aliens not currently covered by an approved or pending H-3 petition were located in various towns and cities throughout the United States engaged in the sale of such merchandise as tea, flowers, candles, peanuts and candy in shopping centers, on the streets, and on a door-to-door basis, and soliciting donations on behalf of the Unification Church. In a number of instances, arrests by police authorities resulted because the solicitation of funds was in violation of local ordinances. Some of these aliens had been in this country less than a few weeks' time, one such individual having been admitted about one week earlier. Many of the aliens encountered by Service officers were found to be in the United States unlawfully by reason of having remained here beyond their authorized period of stay.
J.A. at 80. The commissioner concluded:
Despite the assertion that such solicitations were only a small part of the overall field experience, information received from various Service officers, throughout the United States substantiates that the beneficiaries have been widely and repeatedly engaged in such pursuit. We are led to the inescapable conclusion that the petitioner's current training program, which calls for three times as much field work as formal study, has been designed primarily for fund raising rather than for training purposes.
The Church sought review in district court under the Administrative Procedure Act, arguing that these passages revealed that the commissioner had violated INS regulations prohibiting decisionmaking on the basis of adverse information not made available to the affected party. 4 See 8 C.F.R. §§ 103.2(b)(2), 214.2(h)(6) (1977). The district court agreed and remanded the case "to the Regional Commissioner" ordering that it be "reopened to provide the plaintiff the opportunity to inspect and rebut the adverse information." J.A. at 32; Civil Action No. 74-1340 (D.D.C. 4 March 1975).
On remand the regional commissioner made available to the Church all adverse information in his files; the Church submitted a memorandum in response to this information. The commissioner reaffirmed his earlier decision, and his ruling was in turn affirmed by the district court. Civil Action No. 74-1340 (D.D.C. 27 July 1976). The Church appeals. 5
The Church argues, first, that it was error for the district court not to have remanded the case to the district director. The Church contends that this mistake was harmful because the regional commissioner's determinations are not de novo and because he will set aside the decisions of a district director only if they are arbitrary and capricious.
We find it unnecessary to decide whether the case should have been remanded to the district director. We note that the Church had initially challenged an action of the regional commissioner. When the district court ordered the case remanded to the commissioner, he might have felt obligated by the order to himself proceed in the matter. We need not pursue the problem, however, because if suffices to conclude that we see no prejudice to the Church from the procedure that was followed.
The Administrative Procedure Act requires us to take "due account . . . of the rule of prejudicial error." 5 U.S.C. § 706. While the doctrine under which appellate courts ignore harmless error may not insulate officials or agencies to the same extent that it will trial judges, still it has material application. Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 411-412, 379 F.2d 453, 465-66 (1967). We cannot hold on this record that appellant has been prejudiced by the remand to the regional commissioner. The commissioner invited appellant to introduce new evidence, J.A. at 154, and appellant neither proffered nor introduced any. Moreover, we do not find that the commissioner's decision was as constricted in scope as represented by appellant. The commissioner stated that:
The Petitioner has not met the burden imposed upon him by regulation Matter of Brantigan, 11 I. & N. Dec. 493 nor has he shown that the (challenged) decision is without a rational basis or that it is arbitrary, capricious, or an abuse of discretion. Accordingly, the denial of the petitions will be affirmed and the appeals will be dismissed.
J.A. at 182. Even assuming that "the (challenged) decision" referred to is that of the district director rather than the regional commissioner's own prior decision, the commissioner independently concluded that appellant had not met "the burden imposed upon him by regulation." This conclusion is not beyond the commissioner's authority under INS regulations. See 8 C.F.R. §§ 103.1(m) (11), 103.3 (1977). 6
The Church also argues on appeal that the regional commissioner abused his discretion in denying its H-3 petitions. It contends that the INS has authority only to decide if a proposed training program is bona fide, and that it has "no authority to pass on the administration, development, need, effectiveness, and utility of a bona fide training program." 7 Brief for appellant at 19. We need not reach the question of whether the INS can rely on any of these criteria. 8 However, since in our view the commissioner justifiably determined that the Church's training program was not bona fide. Essentially, the commissioner found that the Church was not training the intended beneficiaries of its H-3 petitions at all, but instead was using them to solicit funds to support the Church. J.A. at 88, 180. We cannot say that this finding constitutes an abuse of discretion.
We also conclude that the denial of its H-3 petitions did not deprive the Church of any First Amendment rights. While we agree with appellant that the attorney general is not vested by statute with the responsibility of imposing standards for the conduct of a religious training program, brief for appellant at 14, we find that the actions of the INS in this case did not amount to such an intrusion. As required by statute, the commissioner merely made the legitimate threshold determination that the Church's training program was not bona fide. Kleindienst v. Mandel, 408 U.S. 753, 769-70, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972).
The approximately 585 beneficiaries of the Church's H-3 petitions were variously admitted to the United States as visitors for business or as visitors for pleasure. See 8 U.S.C. § 1101(a)(15)(B). The parties have stipulated that this court treat Keiko Asai as representative of these beneficiaries. 9
When the Northeast regional commissioner denied the Church's H-3 petitions, Asai applied for an extension of her stay in the United States. On September 5, 1974, the district director denied her application, stating as his reason that she "failed to establish that the purpose for which (she was) admitted has not been accomplished and that (her) requested extension is not merely an attempt to prolong (her) stay indefinitely." Appendix (App.) at 17. Asai was instructed "to depart from the United States not later than September 20, 1974." Id. No hearing was held before the district director.
When Asai failed to depart the United States by September 20, an Order was served upon her to show cause why she should not be deported. At her deportation hearing, the Immigration Judge ruled that her deportability had "been established by clear, convincing, and unequivocal evidence." Id. at 13. Relying on Matter of Sourbis, 11 I & N Dec. 335 (1965), he ruled that it was not necessary for him to determine whether the purpose for which she was admitted to the United States had been accomplished or whether she was merely attempting to prolong her stay indefinitely, because he did "not have jurisdiction to make any determination as to the propriety of the District Director's decision." App. at 9. The Judge also ruled that the INS was under no obligation to stay deportation proceedings pending a final judicial resolution of the Church's...
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