Unification Church v. INS, Civ. A. No. 81-1073.
Decision Date | 16 September 1982 |
Docket Number | Civ. A. No. 81-1073. |
Citation | 547 F. Supp. 623 |
Parties | UNIFICATION CHURCH, et al., Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant. |
Court | U.S. District Court — District of Columbia |
David Carliner, Washington, D. C., Larry J. Roberts, William M. Kramer, Barry A. Fisher, Los Angeles, Cal., for plaintiffs.
This matter comes before the Court on cross-motions for summary judgment.
Plaintiff Unification Church is a non-profit California corporation known as the "Holy Spirit Association for the Unification of World Christianity" which alleges itself to be an "international religious organization" having its principal office in the United States located in New York. Plaintiff Nikkuni is a Japanese national residing in the U.S. on whose behalf the Unification Church has filed a petition with the Immigration and Naturalization Service for permanent residence in the United States. Plaintiffs Misono and Vanalderwert are Japanese and French nationals, respectively, also residing here, for whom the Unification Church has filed petitions for immigrant visas.1 Defendant INS is responsible for enforcing the Immigration and Nationality Act, 8 U.S.C., Sections 1101 et seq. Plaintiffs seek review of decisions of the INS denying the individual plaintiffs' applications for status adjustments and orders for their deportation.
The material facts with respect to each of the individual plaintiffs, and with respect to the Unification Church itself, are not in dispute. They appear affirmatively in the administrative records made before the INS, are not contradicted by other evidence of record, and are conceded (with minor semantic caveats) by defendant in its response to plaintiffs' statement of undisputed material facts.
Both Nikkuni's application for permanent resident alien status and Misono's and Vanalderwert's applications for immigrant visas contemplated their employment by the Unification Church. Aliens who enter the U.S. to work may not do so unless the Secretary of Labor has certified that there are not sufficient U.S. workers able, willing, qualified, and available to perform the same labor. 8 U.S.C., Sections 1182(a)(14), 1153(a)(6).2 The Department of Labor has made a "blanket certification" with respect to certain occupations, including "aliens with a religious commitment who seek admission into the United States in order to work for a non-profit religious organization." 20 C.F.R. 656.10(c)(2) (1982).
Yoko Nikkuni joined the Unification Church in Japan in 1965. She first entered the United States as a 29-year old tourist in November of 1973. Although her lawful presence in this country terminated the following May, she has continued to reside in the United States in the interim, at all times working for and supported entirely by the Unification Church.3 In July of 1974 she applied for permanent residence to work as a "missionary" for the church. Her application was approved by an INS district director but disapproved on review by the regional commissioner. The Commissioner of INS then remanded for further proceedings, essentially a supplementation of the record, which included Nikkuni's oral testimony under oath before an INS examiner in October of 1979. On August 15, 1980, a new district director denied the application, certifying the decision, as he had been instructed, directly to the Commissioner for review. On December 15, 1980, the Commissioner affirmed the decision of the district director. On March 2, 1981, Nikkuni's parole pending determination of her application was revoked.4
The grounds upon which Nikkuni's application was denied are somewhat protean. In 1977 the regional commissioner who reversed the district commissioner's approval of her application did so because the work to be done by Nikkuni was the same as that required of all members of the denomination and could be described essentially as "proselytism." She could not be described as a "missionary," he said, nor had she demonstrated any "special skills, training and experience" qualifying her for the work to be expected of her. The Commissioner remanded the application to the district director to supplement the record with respect to the nature of the Unification Church itself, stating that it was impossible to ascertain whether Nikkuni possessed the requisite skills, training or experience, or the "religious commitment required of a missionary," because the Unification Church was a "recently organized church of relatively modest proportions in terms of membership in the United States." By August of 1980 the record before the district director had been supplemented with evidence that:
Notwithstanding that evidence, by applying "criteria" set forth in Matter of N_____, 5 I & N Dec. 173 (1953),6 the district director held that the Unification Church was not a "religious denomination within the contemplation of the regulation," because:
"... there is no formal international structure ... members of the Church may belong to other religious denominations ... the officers ministering to its congregations are not ordained and may not legally perform marriages ... and all of the functions normally associated with a minister or priest may be performed only by one person ... Reverend Moon."
He thus found it unnecessary to decide whether a missionary for the Unification Church was among those occupations the Secretary of Labor had in mind when he issued his "blanket certification."
The Commissioner affirmed the district director, stating:
Basic to a finding of eligibility ... is a determination that the church in question, the Holy Spirit Association for the Unification of World Christianity or the Unification Church as it is known in the United States, is a religious denomination as contemplated by the regulation.... In denying the application the District Director properly found that the evidence and testimony presented by the applicant concerning the Unification Church differed in several essential respects from the determining criteria.
The applications filed for the "sixth preference" immigrant visas for Akio Misono and Jean Henri Vanalderwert in May of 1978 describe the work they do for the Unification Church in identical terms:
Gives personal witness to his faith in God engaging in prosyletizing persons on behalf of the Unification Church. Discusses with persons the concepts of the Church, teaches the Divine Principle, the Church Theology to interested persons to win converts. Counsels those in spiritual need or those contemplating joining the Church. Teaches Sunday School, participates in Sunday Services, may take part in community service programs.
The administrative records disclose that Vanalderwert joined the Unification Church in France in January of 1973 and entered the United States the following September at the age of 23 as a tourist. He has remained since his arrival in the United States at the Unification Church's New York headquarters where his occupation is said to be "church worker." Misono entered the United States in July of 1973 as a 23-year old...
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