Salesian Society, Province of St. Philip the Apostle, Inc. v. Cissna
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SALESIAN SOCIETY, PROVINCE OF ST. PHILIP THE APOSTLE, INC., et al.,
Plaintiff,
v. Civ. Action No. 18-0477 (EGS)
ALEJANDRO MAYORKAS, 1 et al.,
Defendants.
MEMORANDUM OPINION
Pursuant to the Immigration and Nationality Act (“INA”),
special immigrant visas are available each year to qualified
ministers of religious denominations that have bona fide
religious organizations in the United States. 8 U.S.C. §
1153(b)(4). For a foreign minister to qualify for a special
immigrant visa under the INA, he or she must be seeking to enter
the United States solely for the purpose of carrying on the
vocation of a minister, and must have been carrying on that
vocation for at least the two years before the time he or she
applied for the visa. 8 U.S.C. § 1101(a)(27)(C). The INA also
1Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes as defendants Secretary of Homeland Security Alejandro Mayorkas for former Secretary Kirstjen M. Nielsen and Senior Official Performing the Duties of Director of the U.S. Citizenship and Immigration Services Tracy Renaud for former Director L. Francis Cissna. 1 makes up to 5,000 special immigrant visas available each year to
non-minister religious workers who seek to work in religious
vocations or occupations for a religious organization in the
United States and who have been carrying on that work for at
least the two years before the time they applied for the visa. 8
U.S.C. § 1153(b)(4); 8 U.S.C. § 1101(a)(27)(C)(ii)(II)-(III). As
required by the INA, U.S. Citizenship and Immigration Services
(“USCIS”) has issued regulations that elaborate on the
qualifications required by statute that an immigrant seeking a
special immigrant religious worker visa must demonstrate. 8
U.S.C. § 1103(a)(3); 8 C.F.R. § 204.5(m).
At issue in this action are provisions of USCIS’s
regulations that require ministers and other religious workers,
or the religious organizations filing on their behalf, to submit
evidence with their special immigrant religious worker visa
petitions that shows: (1) they will be working in a “compensated
position” when they enter the United States, which “may include
salaried or non-salaried compensation”; and (2) they received
salaried or non-salaried compensation for the religious work
they performed in the two years before filing their petition, or
they received no salary during that time but provided for their
own support. 8 C.F.R. § 204.5(m)(2), (10), (11).
Plaintiffs—Salesian Society, Province of St. Philip the
Apostle, Inc. (“Salesian Society”); Brother Eduardo Alberto
2 Chincha Leon (“Brother Eduardo”), Brother Juan-Pablo Rubio-
Olivares (“Brother Rubio”), and Brother Sasika Nalaka
Lokuhettige (“Brother Sasika”)—challenge these regulations as
well as the denial of the Brothers’ visa petitions based, among
other things, on the challenged regulations. As Plaintiffs
allege in their Complaint, “[t]he gravamen of the Plaintiffs’
claim is that the Defendants have illegally imposed a
requirement that the Plaintiffs must prove financial
compensation despite the fact that, as is the case with all
professed Salesians, Brother Eduardo, Brother Sasika and Brother
Rubio, have taken a vow of poverty consistent with the Salesian
Society’s long-standing basic religious tenants.” Am. Comp., ECF
41 ¶ 1. Plaintiffs claim 8 C.F.R. § 204.5(m)(2) and (m)(11)
violate: (1) the Administrative Procedures Act (“APA”) because
they “impose restrictions not contemplated by the [INA] and that
directly contradict the INA,” making them ultra vires,
arbitrary, capricious, and not in accordance with the law; (2)
the Free Exercise and Establishment Clauses of the First
Amendment because they discriminate against religious
organizations whose ministers have taken a vow of poverty and
inhibit the interests of those religious organizations while
preferencing others; and (3) the Religious Freedom Restoration
Act (“RFRA”), 42 U.S.C. § 2000bb et seq., because, for ministers
who have taken a vow of poverty and for their religious
3 organizations, they substantially burden the exercise of
religion. 2
Defendants disagree with Plaintiffs’ characterization of
the challenged regulations, stating that ministers and other
religious workers who have taken a vow of poverty can satisfy
the requirements by providing satisfactory evidence of their
religious organization’s direct or indirect financial support,
which could take the form of payment for housing, food, or
tuition for religious studies, among other things, or by
providing evidence of the religious worker’s self-support in the
absence of compensation. When interpreted correctly, Defendants
argue, these regulations are not in conflict with the INA.
Rather, the regulations establish the type and quantum of
evidence necessary to satisfy the INA’s requirements that
special immigrant religious workers be coming to the United
States “solely for the purpose of carrying on the vocation of
minister” or “to work” in a professional or non-professional
capacity “in a religious vocation” and that they have been
carrying on those vocations for at least two years before
applying. To ensure a special immigrant religious worker meets
2 Plaintiffs also alleged equal protection and due process claims under the Fifth and Fourteenth Amendments to the United States Constitution. Am. Compl., ECF No. 41 ¶ 109. Plaintiffs did not move for summary judgment on those claims. See generally Pls.’ Mot., ECF No. 42-3. Accordingly, Plaintiffs have waived those claims. 4 those qualifications, and to adhere to Congress’ directive to
reduce fraud in this particular visa program, Defendants argue
that regulations requiring evidence that the petitioner receives
a salary or indirect financial support are a permissible
construction of the statute. Defendants also maintain that
because the regulations as written already accommodate the
Salesian Brothers and other religious workers who have professed
a vow of poverty—and in this case, Plaintiffs have simply failed
to submit any of the acceptable forms of evidence—the challenged
regulations do not violate the First Amendment or RFRA.
Pending before the Court are Plaintiffs’ April 10, 2019
Motion for Summary Judgment, ECF No. 42; and Defendants’ May 1,
2019 Cross-Motion for Summary Judgment, ECF No. 43. 3 On September
18, 2018, the Court informed the parties that Plaintiffs’
motions for injunctive relief would be consolidated with the
merits pursuant to Federal Rule of Civil Procedure
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SALESIAN SOCIETY, PROVINCE OF ST. PHILIP THE APOSTLE, INC., et al.,
Plaintiff,
v. Civ. Action No. 18-0477 (EGS)
ALEJANDRO MAYORKAS, 1 et al.,
Defendants.
MEMORANDUM OPINION
Pursuant to the Immigration and Nationality Act (“INA”),
special immigrant visas are available each year to qualified
ministers of religious denominations that have bona fide
religious organizations in the United States. 8 U.S.C. §
1153(b)(4). For a foreign minister to qualify for a special
immigrant visa under the INA, he or she must be seeking to enter
the United States solely for the purpose of carrying on the
vocation of a minister, and must have been carrying on that
vocation for at least the two years before the time he or she
applied for the visa. 8 U.S.C. § 1101(a)(27)(C). The INA also
1Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes as defendants Secretary of Homeland Security Alejandro Mayorkas for former Secretary Kirstjen M. Nielsen and Senior Official Performing the Duties of Director of the U.S. Citizenship and Immigration Services Tracy Renaud for former Director L. Francis Cissna. 1 makes up to 5,000 special immigrant visas available each year to
non-minister religious workers who seek to work in religious
vocations or occupations for a religious organization in the
United States and who have been carrying on that work for at
least the two years before the time they applied for the visa. 8
U.S.C. § 1153(b)(4); 8 U.S.C. § 1101(a)(27)(C)(ii)(II)-(III). As
required by the INA, U.S. Citizenship and Immigration Services
(“USCIS”) has issued regulations that elaborate on the
qualifications required by statute that an immigrant seeking a
special immigrant religious worker visa must demonstrate. 8
U.S.C. § 1103(a)(3); 8 C.F.R. § 204.5(m).
At issue in this action are provisions of USCIS’s
regulations that require ministers and other religious workers,
or the religious organizations filing on their behalf, to submit
evidence with their special immigrant religious worker visa
petitions that shows: (1) they will be working in a “compensated
position” when they enter the United States, which “may include
salaried or non-salaried compensation”; and (2) they received
salaried or non-salaried compensation for the religious work
they performed in the two years before filing their petition, or
they received no salary during that time but provided for their
own support. 8 C.F.R. § 204.5(m)(2), (10), (11).
Plaintiffs—Salesian Society, Province of St. Philip the
Apostle, Inc. (“Salesian Society”); Brother Eduardo Alberto
2 Chincha Leon (“Brother Eduardo”), Brother Juan-Pablo Rubio-
Olivares (“Brother Rubio”), and Brother Sasika Nalaka
Lokuhettige (“Brother Sasika”)—challenge these regulations as
well as the denial of the Brothers’ visa petitions based, among
other things, on the challenged regulations. As Plaintiffs
allege in their Complaint, “[t]he gravamen of the Plaintiffs’
claim is that the Defendants have illegally imposed a
requirement that the Plaintiffs must prove financial
compensation despite the fact that, as is the case with all
professed Salesians, Brother Eduardo, Brother Sasika and Brother
Rubio, have taken a vow of poverty consistent with the Salesian
Society’s long-standing basic religious tenants.” Am. Comp., ECF
41 ¶ 1. Plaintiffs claim 8 C.F.R. § 204.5(m)(2) and (m)(11)
violate: (1) the Administrative Procedures Act (“APA”) because
they “impose restrictions not contemplated by the [INA] and that
directly contradict the INA,” making them ultra vires,
arbitrary, capricious, and not in accordance with the law; (2)
the Free Exercise and Establishment Clauses of the First
Amendment because they discriminate against religious
organizations whose ministers have taken a vow of poverty and
inhibit the interests of those religious organizations while
preferencing others; and (3) the Religious Freedom Restoration
Act (“RFRA”), 42 U.S.C. § 2000bb et seq., because, for ministers
who have taken a vow of poverty and for their religious
3 organizations, they substantially burden the exercise of
religion. 2
Defendants disagree with Plaintiffs’ characterization of
the challenged regulations, stating that ministers and other
religious workers who have taken a vow of poverty can satisfy
the requirements by providing satisfactory evidence of their
religious organization’s direct or indirect financial support,
which could take the form of payment for housing, food, or
tuition for religious studies, among other things, or by
providing evidence of the religious worker’s self-support in the
absence of compensation. When interpreted correctly, Defendants
argue, these regulations are not in conflict with the INA.
Rather, the regulations establish the type and quantum of
evidence necessary to satisfy the INA’s requirements that
special immigrant religious workers be coming to the United
States “solely for the purpose of carrying on the vocation of
minister” or “to work” in a professional or non-professional
capacity “in a religious vocation” and that they have been
carrying on those vocations for at least two years before
applying. To ensure a special immigrant religious worker meets
2 Plaintiffs also alleged equal protection and due process claims under the Fifth and Fourteenth Amendments to the United States Constitution. Am. Compl., ECF No. 41 ¶ 109. Plaintiffs did not move for summary judgment on those claims. See generally Pls.’ Mot., ECF No. 42-3. Accordingly, Plaintiffs have waived those claims. 4 those qualifications, and to adhere to Congress’ directive to
reduce fraud in this particular visa program, Defendants argue
that regulations requiring evidence that the petitioner receives
a salary or indirect financial support are a permissible
construction of the statute. Defendants also maintain that
because the regulations as written already accommodate the
Salesian Brothers and other religious workers who have professed
a vow of poverty—and in this case, Plaintiffs have simply failed
to submit any of the acceptable forms of evidence—the challenged
regulations do not violate the First Amendment or RFRA.
Pending before the Court are Plaintiffs’ April 10, 2019
Motion for Summary Judgment, ECF No. 42; and Defendants’ May 1,
2019 Cross-Motion for Summary Judgment, ECF No. 43. 3 On September
18, 2018, the Court informed the parties that Plaintiffs’
motions for injunctive relief would be consolidated with the
merits pursuant to Federal Rule of Civil Procedure 65(a)(2).
Min. Order (Sept. 18, 2018). The parties agree that the Court
has before it all relevant evidence in the case. 4 Upon
3 Defendants’ April 20, 2018 Motion to Dismiss, ECF No. 14; and Plaintiffs’ November 16, 2018 Motion for Summary Judgment, ECF No. 27; are MOOT in light of Plaintiffs’ Amended Complaint, ECF No. 41. Plaintiffs’ August 15, 2018 Motion for Temporary Restraining Order, ECF No. 20, is also MOOT in light of USCIS’s adjudication of the Brothers’ visa petitions that were the subject of that motion.
4 Federal Rule of Civil Procedure 65(a)(2) permits the Court to, “[b]efore or after beginning [a] hearing on a motion for a 5 consideration of the parties’ submissions, the applicable law,
and the entire record herein, the Court DENIES Plaintiffs’
Motion for Summary Judgment; and GRANTS Defendants’ Cross-Motion
for Summary Judgment. 5
I. Background
A. The Immigration and Nationality Act
The INA governs the issuance of visas to foreign nationals
seeking to enter the United States, and broadly speaking, it
provides for two categories of visa applicants:
“‘nonimmigrants,’ who plan to stay in the country only
temporarily, and ‘immigrants, who plan to stay
permanently.” Save Jobs USA v. Dep’t of Homeland Sec., 942 F.3d
504, 506 (D.C. Cir. 2019) (citing 8 U.S.C. § 1184(b) (“Every
alien ... shall be presumed to be an immigrant until he
establishes ... that he is entitled to a nonimmigrant status.”);
and citing 8 U.S.C. § 1101(a)(15) (setting forth nonimmigrant
classifications)).
preliminary injunction, . . . advance the trial on the merits and consolidate it with the hearing.” Fed. R. Civ. P. 65(a)(2). A decision on the merits is appropriate where, as here, “the record is sufficient for a determination on the merits under the summary judgment standard.” See March for Life v. Burwell, 128 F. Supp. 3d 116, 124 (D.D.C. 2015). Both parties contend that the record is sufficient for a determination on the merits here, and the Court agrees.
5Plaintiffs’ March 15, 2018 Motion for Preliminary Injunction, ECF No. 6, is also DENIED in view of this Memorandum Opinion and Order. 6 With respect to the allocation of immigrant visas, the INA
provides preference for “employment-based immigrants” who fall
within five categories of workers: (1) priority workers,
including those with extraordinary ability in the sciences,
arts, education, business or athletics, outstanding professors
and researchers, and certain multinational executives and
managers; (2) those with advanced degrees or of exceptional
ability in certain professions; (3) skilled workers and
professionals; (4) “special immigrants,” and (5) foreign
investors. See 8 U.S.C. § 1153(b)(1)-(5). As relevant here, the
INA defines “special immigrants” to include ministers and other
religious workers. See 8 U.S.C. § 1101(a)(27)(C).
The term “special immigrant” means— . . . (C) an 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, 2021, in order to work for the organization at the request of the organization in a professional capacity in a
7 religious vocation or occupation, or (III) before September 30, 2021, 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)[.]
8 U.S.C. § 1101(a)(27)(C)(i)-(iii).
In short, the INA makes visas available for qualified
ministers and other religious workers to immigrate in legal
status to the United States to perform religious work. See
Shalom Pentecostal Church v. Acting Sec’y U.S. Dep’t of Homeland
Sec., 783 F.3d 156, 159 (3d Cir. 2015). To obtain a special
immigrant religious worker visa, a minister or other religious
worker, or their employer, must file an I-360 petition, see 8
U.S.C. § 1154(a)(1)(G)(i); and if USCIS approves the petition,
the religious worker can either apply for a visa from abroad, or
for adjustment of their status to a lawful permanent resident if
he or she is already in the United States, 8 U.S.C. §
1153(b)(4). Up to 5000 such visas are available each year. 8
U.S.C. § 1153(b)(4).
8 B. USCIS’s Implementing Regulations
Under the current USCIS regulations pertaining to special
immigrant religious workers, an I-360 petition for a minister or
non-minister religious worker seeking such classification must:
(1) For at least two years immediately preceding the filing of the petition have been a member of a religious denomination that has a bona fide non-profit religious organization in the United States.
(2) Be coming to the United States to work in a full time (average of at least 35 hours per week) compensated position . . .
(i) Solely in the vocation of a minister of that religious denomination; (ii) A religious vocation either in a professional or nonprofessional capacity; or (iii) A religious occupation either in a professional or nonprofessional capacity.
(3) Be coming to work for a bona fide non- profit religious organization in the United States, or a bona fide organization which is affiliated with the religious denomination in the United States.
(4) Have been working in one of the positions described in paragraph (m)(2) of this section, either abroad or in lawful immigration status in the United States, and after the age of 14 years continuously for at least the two-year period immediately preceding the filing of the petition. The prior religious work need not correspond precisely to the type of work to be performed. A break in the
9 continuity of the work during the preceding two years will not affect eligibility so long as:
(i) The alien is still employed as a religious worker; (ii) The break did not exceed two years; and (iii) The nature of the break was for further religious training or for sabbatical that did not involve unauthorized work in the United States. However, the alien must have been a member of the petitioner’s denomination throughout the two years of qualifying employment.
8 C.F.R. § 204.5(m)(1)-(4).
As relevant here, the regulations also establish
evidentiary standards petitioners must meet to prove future
compensation and prior employment. See id. § 204.5(m)(8)-(11).
Subsection 204.5(m)(10) identifies the evidence USCIS requires
from petitioners to prove future compensation, and §
204.5(m)(11) identifies the evidence USCIS requires from
petitioners to prove past compensation. Regarding future
compensation, a petitioner must include initial evidence of how
the religious organization employer intends to compensate the
minister, which “may include[] salaried and non-salaried
compensation.” Id. § 204.5(m)(10). “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
10 evidence acceptable to USCIS.” Id. IRS documentation is
required, though if such evidence is not available the religious
organization may provide an explanation for its absence along
with comparable, verifiable documentation. Id. Regarding past
compensation, the regulations provide as follows:
If the alien was employed in the United States during the two years immediately preceding the filing of the application and:
(i) Received salaried compensation, the petitioner must submit IRS documentation that the alien received a salary, such as an IRS Form W-2 or certified copies of income tax returns.
(ii) Received non-salaried compensation, the petitioner must submit IRS documentation of the non-salaried compensation if available.
(iii) Received no salary but provided for his or her own support, and provided support for any dependents, the petitioner must show how support was maintained by submitting with the petition additional documents such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other verifiable evidence acceptable to USCIS.
If the alien was employed outside the United States during such two years, the petitioner must submit comparable evidence of the religious work.
Id. § 204.5(11).
11 In this action, Plaintiffs argue that 8 CFR §§ 204.5(m)(2) and
(11) violate the APA, the First Amendment, and RFRA; and they
challenge USCIS’s denial of the Brothers’ petitions based on
Plaintiffs’ failure to meet the requirements set forth in those
regulations. See Pl.’s Mot., ECF No. 42-3 at 9-10. 6
C. Factual Background
Brothers Eduardo, Rubio, and Sasika are members of the
Salesian Society, which is an international Roman Catholic
Religious Order with more than 15,000 priests, brothers,
deacons, and novices in more than 130 countries, including the
United States. Pls.’ Statement of Facts (“Pls.’ SMF”), ECF No.
42-2 ¶¶ 1, 2; Defs.’ Resp. to Pls.’ SMF (“Defs.’ Resp. SMF”),
ECF No. 43-2 ¶¶ 1, 2. Brothers Eduardo, Rubio, and Sasika have
each taken a vow of poverty, which is a vow that the Salesian
Society requires of all of its priests and brothers, prohibiting
them from “personal monetary, financial, material or other
compensation of any kind.” Pls.’ SMF, ECF No. 42-2 ¶ 15, 16, 22,
36; Defs.’ Resp. SMF, ECF No. 43-2 ¶ 15, 16, 22, 36.
The Salesian Society filed I-360 petitions with USCIS for
Brothers Eduardo, Rubio, and Sasika to receive special immigrant
religious worker classifications so they could obtain legal
6When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 12 permanent immigrant status to perform religious work in the
United States. 7 Members of the Salesian Society often transfer
between communities as needed to fulfill the Order’s religious
mission. Pls.’ SMF, ECF No. 42-2 ¶ 4; Defs.’ Resp. SMF, ECF No.
43-2 SMF ¶ 4. Based on religious, cultural, and linguistic
abilities, the Salesian Society transfers members domestically
and/or internationally so that they may contribute to different
communities and gain experience serving in various parts of the
world. Pls.’ SMF, ECF No. 42-2 ¶ 5; Defs.’ Resp. SMF, ECF No.
43-2 ¶ 5. In response to the I-360 petitions, USCIS denied all
three as described below.
1. First Denial of Brother Eduardo’s I-360 Petition
The Salesian Society filed an I-360 Petition for Brother
Eduardo on May 2, 2016. Pls.’ SMF, ECF No. 42-2 ¶ 6; Defs.’
Resp. SMF, ECF No. 43-2 ¶ 6; Defs.’ Statement of Facts (“Defs.’
SMF”), ECF No. 44-1 ¶ 1; Pls.’ Resp. to Defs.’ SMF (“Pls.’ Resp.
SMF”), ECF No. 45-1 ¶ 1; Eduardo AR at 96-108, 136-209. Brother
7 The parties filed a joint appendix that contains copies of the portions of the Administrative Record (“AR”) that are cited or otherwise relied upon by the parties in their summary judgment briefing. See Joint Appendix, ECF No. 49. The joint appendix contains three parts: (1) the administrative record relating to Brother Eduardo’s I-360 petition (“Eduardo AR”), ECF No. 49-1; (2) the administrative record relating to Brother Rubio’s I-360 petition (“Rubio AR”), ECF No. 49-2; and (3) the administrative record relating to Brother Sasika’s I-360 petition (“Sasika AR”), ECF No. 49-3. All citations in this Memorandum Opinion are to the administrative record page numbers. 13 Eduardo is a Peruvian citizen who became a Salesian Brother in
2011. Pls.’ SMF, ECF No. 42-2 ¶ 26; Defs.’ Resp. SMF, ECF No.
43-2 ¶ 26.
On March 9, 2017, USCIS issued a Request for Evidence
(“RFE”) in response to Brother Eduardo’s Petition. Pls.’ SMF,
ECF No. 42-2 ¶ 7; Defs.’ Resp. SMF, ECF No. 43-2 ¶ 7; Defs.’
SMF, ECF No. 44-1 ¶ 2; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 2;
Eduardo AR at 129-33. USCIS sought: (1) evidence pertaining to
Brother Eduardo’s compensation; 8 (2) evidence pertaining to his
minister position; 9 and (3) information about Brother Eduardo and
8 Specifically, USCIS’s letter directed the Salesian Society and Brother Eduardo to “[d]escribe the complete package of compensation being offered.” Eduardo AR at 132. “IRS documentation, such as IRS Form W-2 or certified tax returns, if available. If IRS documentation is unavailable, submit an explanation for the absence of IRS documentation, along with comparable, verifiable documentation.” Id.
9 USCIS directed the Salesian Society and Brother Eduardo to submit: (1) “a copy of the alien’s certification of ordination or similar documents reflecting acceptance of the alien’s qualifications as a minister in the religious denomination;” and (2) “documents reflecting acceptance of the alien’s qualifications as a minister in the religious denomination, as well as evidence that the alien has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination, including transcripts, curriculum, and documentation that establishes that the theological institution is accredited by the denomination.” Eduardo AR at 132. Alternatively, USCIS directed that for denominations that do not require a prescribed theological education, petitioners submit evidence of: (1) “The denomination’s requirements for ordination to minister;” (2) “The duties allowed to be performed by virtue of ordination;” (3) The denomination’s levels of ordination, if 14 his work history. 10 Defs.’ SMF, ECF No. 44-1 ¶ 2; Pls.’ Resp.
SMF, ECF No. 45-1 ¶ 2; Eduardo AR at 129-33. By June 1, 2017,
the Salesian Society filed a response to that RFE that consisted
of a letter authored by Reverend Timothy Zak, the Acting
Provincial of the Salesian Society, as well as three documentary
exhibits related to Brother Eduardo’s minister position and
religious work. Pls.’ SMF, ECF No. 42-2 ¶ 8; Defs.’ Resp. SMF,
any;” and (4) “The alien’s completion of the denomination’s requirements for ordination.” Id. 10 USCIS advised that the Salesian Society and Brother Eduardo
could submit the following evidence to show that Brother Eduardo had been working continuously for at least two years before the filing of the petition: (1) “Experience letters written by authorized representatives of previous and current employers with direct personal knowledge of the work experience that include a breakdown of duties performed in the religious position for an average week”; and, (2) for petitioners employed outside the United States during the two-year period, evidence of the religious work comparable to, for those who received salaried compensation, “IRS documentation that the alien received a salary, such as an IRS Form W-2 or certified copies of income tax returns,” for those who received non-salaried compensation, “IRS documentation of the non-salaried compensation if available,” or for those who received no salary but provided for his or her own support, “additional documents such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other verifiable evidence acceptable to USCIS.” Eduardo AR at 132. USCIS further provided that “[i]f required evidence of compensation does not exist or cannot be obtained,” the Salesian Society and Brother Eduardo must “demonstrate this and submit secondary evidence,” or “[i]f secondary evidence does not exist or cannot be obtained,” they must “demonstrate the unavailability of both the required evidence and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the compensation.” Id. 133. 15 ECF No. 43-2 ¶ 8; Defs.’ SMF, ECF No. 44-1 ¶ 3; Pls.’ Resp. SMF,
ECF No. 45-1 ¶ 3; Eduardo AR at 109-28.
With respect to compensation, Reverend Zak stated that
Brother Eduardo “has relinquished all worldly goods as part of
his vow of poverty.” Eduardo AR at 113. “As is the case with all
Salesian brothers, all of Br[other] Eduardo’s needs are met by
the Salesian community, including all his needs for housing,
food, clothing travel, medical care, etc.” Id. Reverend Zak went
on to explain:
In addition, the Salesian community pays for all of Br[other] Eduardo’s educational expenses. As part of his religious vocation and formation for the priesthood, he is currently studying at Immaculate Conception School of Theology at Seton Hall University where he is pursuing a Master’s Degree in Theology. All of the expenses associated with Br[other] Eduardo’s enrollment at Seton Hall are paid for by the Salesian Community. These include: • Annual tuition of $21,194 • Room, board, and personal expenses of $1,500 per month ($18,000 per year) • Health insurance of $2,573 per year This total amount of $41,767 each year is paid wholly by the Salesian Order on Br[other] Eduardo’s behalf.
Eduardo AR at 113-14. Reverend Zak further explained that “while
teaching at the Salesian High School in New Rochelle, New York,
[Brother Eduardo] received no salary or compensation. The school
made a lump sum payment for the teaching activities of all the
Salesians. This payment was sent directly to the Salesian
16 community, which would then use it for community needs such as
food, housing expenses, health care, and travel.” Eduardo AR at
114.
On June 28, 2017, USCIS denied Brother Eduardo’s I-360
Petition. Pls.’ SMF, ECF No. 42-2 ¶ 10; Defs.’ Resp. SMF, ECF
No. 43-2 ¶ 10; Defs.’ SMF, ECF No. 44-1 ¶ 4; Pls.’ Resp. SMF,
ECF No. 45-1 ¶ 4; Eduardo AR at 87-95. Citing 8 C.F.R. §
204.5(m)(11), the June 28, 2017 denial letter stated that “[t]he
issue is whether you submitted required evidence of compensation
for the beneficiary’s past work.” Eduardo AR at 89. USCIS
concluded that the evidence required by the regulations “was not
found.” Eduardo AR at 90. USCIS characterized Reverend Zak’s
letter as “appear[ing] to describe [Brother Eduardo’s] past
compensation as including monetary compensation of $18,000 per
year, annual tuition of $21,194, room and board, and health
insurance of $2,573.” Id. “However, IRS documentation or
secondary evidence of this compensation was not found, nor a
demonstration that such evidence is unavailable.” Id. USCIS
stated that Reverend Zak’s letter, “although providing necessary
context,” “does not appear to satisfy the tertiary evidence
requirements of the regulation at 8 C.F.R. § 103.2(b)(2)(i)”
because it was “from a representative of your organization” and
“you are a party to the petition.” Id. USCIS continued, “simply
going on record with unsupported statements without supporting
17 documentary evidence does not satisfy the burden of proof in
these proceedings.” Id. (citing Matter of Soffici, 22 I&N Dec.
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972))).
Following this denial, the Salesian Society filed an I-290B
form, appealing the USCIS’s June 28, 2017 decision. Pls.’ SMF,
ECF No. 42-2 ¶ 12; Defs.’ Resp. SMF, ECF No. 43-2 ¶ 12; Defs.’
SMF, ECF No. 44-1 ¶ 6; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 6;
Eduardo AR at 30-86. The Salesian Society argued that “[n]o
compensation or salary is required, provided, or allowed to
Salesian Brothers, all of whom have taken lifelong vows of
poverty.” Eduardo AR at 41. “[T]he statute and regulations,” the
Salesian Society argued, “do not require, ‘compensation;’
rather, they require that the Beneficiary, ‘has been carrying on
such vocation.’” Id. The Salesian Society contended that they
“have fully documented the fact that the Beneficiary has been
carrying on his religious vocation on a full-time basis since
August 16, 2011.” Id. 43. The Salesian Society also presented
new evidence of its “financial ability to support Brother
Eduardo.” Id. 43-44. That evidence included documentary evidence
of the Salesian Society’s net assets and its tax-exempt status.
Id.
USCIS denied the Salesian Society’s appeal on September 14,
2017. Pls.’ SMF, ECF No. 42-2 ¶ 13; Defs.’ Resp. SMF, ECF No.
18 43-2 ¶ 13; Defs.’ SMF, ECF No. 44-1 ¶ 8; Pls.’ Resp. SMF, ECF
No. 45-1 ¶ 8; Eduardo AR at 27-29. USCIS stated that “[t]he
petition was denied because you did not submit evidence of past
employment,” and the Salesian Society’s representation that “No
compensation . . . is required, provided, or allowed” would
“provide an independent ground for denial [because] [t]he
regulation at 8 C.F.R. § 204.5(m)(2) explicitly requires that
the alien be coming to work in a ‘compensated position.’”
Eduardo AR at 27. USCIS also stated that “whether you directly
provided the beneficiary monetary compensation or whether you
provided him non-salaried compensation for which you paid, you
must submit supporting documentation of this that complies with
the evidentiary requirements set forth in the regulation.”
Eduardo AR at 28. Finally, USCIS stated that the evidence of the
Salesian Society’s financial ability to support Brother Eduardo
was insufficient to satisfy the evidentiary requirements because
it did not demonstrate that the Salesian Society paid non-
salaried compensation such as room, board, and personal expenses
or health insurance as the Salesian Society represented it had.
Eduardo AR at 28.
After USCIS denied the appeal, the Salesian Society
initiated this suit on February 28, 2018. See Compl., ECF No. 1.
19 2. Final Denial of Brother Eduardo’s I-360 Petition
After the Salesian Society initiated this suit, USCIS
reopened Brother Eduardo’s I-360 petition on March 22, 2018.
Defs.’ SMF, ECF No. 44-1 ¶ 11; Pls.’ Resp. SMF, ECF No. 45-1 ¶
11; Eduardo AR at 20-26. USCIS issued a new RFE that day for
Brother Eduardo’s petition, requesting more evidence from the
Salesian Society than it had in the first RFE. USCIS asked for
evidence to support the Salesian Society’s representations that
Brother Eduardo professed his vows in 2011, taught Religion and
History at the Salesian High School, pursued his master’s degree
in Theology at the Jerusalem Campus in Israel, and was at that
time studying at Seton Hall University. Eduardo AR at 23. USCIS
again sought evidence demonstrating the Salesian Society paid
for all of Brother Eduardo’s expenses, and USICS detailed the
acceptable evidence of this “non-salaried compensation.” Eduardo
AR at 23-24. 11 USCIS also sought evidence showing Brother Eduardo
would be working as a minister, and USCIS again detailed the
11Such acceptable evidence includes but is not limited to: verifiable evidence of financial support, including stipends/allowances and room and board; evidence of medical insurance coverage in the form of insurance cards or insurance payments; documentation of stipends provided in the form of processed checks or paystubs; or “other evidence acceptable to USCIS.” Eduardo AR at 23-24. 20 acceptable evidence to support a “minister” classification.
Eduardo AR at 24. 12
The Salesian Society never responded to the second RFE for
Brother Eduardo’s I-360 petition. Defs.’ SMF, ECF No. 44-1 ¶ 17;
Pls.’ Resp. SMF, ECF No. 45-1 ¶ 17; Eduardo AR at 3. USCIS
accordingly issued a final decision on Brother Eduardo’s I-360
petition on February 4, 2019, denying the petition for
abandonment pursuant to 8 C.F.R § 103.2(b)(13)(i). Defs.’ SMF,
ECF No. 44-1 ¶ 18; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 18; Eduardo
AR at 2-10. USCIS further noted the following deficiencies with
Brother Eduardo’s petition: (1) it failed to establish Brother
Eduardo had been continuously employed as a religious worker for
at least the two year period immediately preceding the filing of
the petition; (2) it failed to show that Brother Eduardo had
received non-salaried compensation as the Salesian Society
claims; and (3) it failed to establish that Brother Eduardo is
qualified as a “minister” and would engage in that position in
the United States. See id.
12Such acceptable evidence includes but is not limited to: a copy of Brother Eduardo’s certificate of ordination; evidence Brother Eduardo had completed any courses or education normally required or recognized by the Salesian Society, including transcripts, curriculum, or other documentation establishing accreditation; or other evidence of the Salesian Society’s requirements for ordination, duties allowed to be performed, levels of ordination, and Brother Eduardo’s completion of the Salesian Society’s requirements. Eduardo AR at 24. 21 3. Denial of Brother Rubio’s and Brother Sasika’s I-360 Petitions
Following the initiation of this lawsuit, the Salesian
Society also filed I-360 petitions on behalf of Brother Rubio
and Brother Sasika. Defs.’ SMF, ECF No. 44-1 ¶ 24, 29; Pls.’
Resp. SMF, ECF No. 45-1 ¶ 24, 29; Rubio AR at 20-119; Sasika AR
at 19-144.
On July 30, 2018, USCIS issued a RFE for Brother Rubio’s
Petition; and on October 9, 2018, USCIS issued a RFE for Brother
Sasika’s Petition. Pls.’ SMF, ECF No. 42-2 ¶ 34; Defs.’ Resp.
SMF, ECF No. 43-2 ¶ 34; Defs.’ SMF, ECF No. 44-1 ¶ 25, 30; Pls.’
Resp. SMF, ECF No. 45-1 ¶ 25, 30; Rubio AR at 14-19; Sasika AR
at 12-15. In both RFEs, USCIS requested evidence showing the
brothers had worked continuously for at least the two-year
period immediately preceding the filing of the petitions, and
USCIS also requested evidence of salaried or non-salaried
compensation for the brothers. Pls.’ SMF, ECF No. 42-2 ¶ 35;
Defs.’ Resp. SMF, ECF No. 43-2 ¶ 35; Defs.’ SMF, ECF No. 44-1 ¶
26, 31; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 26, 31; Rubio AR at 18-
19; Sasika AR at 14.
The Salesian Society did not respond to either RFE. USCIS
therefore issued final decisions denying Brother Rubio’s and
Brother Sasika’s petitions on February 13, 2019. Defs.’ SMF, ECF
No. 44-1 ¶ 27, 32; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 27, 32; Rubio
22 AR at 2-7; Sasika AR at 2-6. USCIS denied the petitions based on
abandonment and evidentiary deficiencies, specifically a failure
to demonstrate that the brothers worked previously as religious
workers and that the Salesian Society had provided them with
non-salaried compensation. Defs.’ SMF, ECF No. 44-1 ¶ 27, 28,
32, 33; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 27, 28, 32, 33; Rubio AR
at 2-7; Sasika AR at 2-6.
D. Procedural Background
Plaintiffs filed their Motion for Summary Judgment on April
10, 2019, see ECF No. 42; and Defendants filed their Cross-
Motion for Summary Judgment on May 1, 2019, see ECF No. 43. The
parties filed responses and replies and briefing on the motions
was complete by May 31, 2019. The parties subsequently filed
their Joint Appendix on August 13, 2019. ECF No. 49. Thereafter,
on January 14, 2021, the Court granted Plaintiffs’ request for
leave to file a supplemental memorandum, see Min. Order (Jan.
14, 2021); and briefing on Plaintiffs’ supplemental memorandum
was complete on February 26, 2021. The motions are now ripe for
the Court’s adjudication.
II. Legal Standard
Summary judgement is appropriate where “there is no genuine
issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). When
plaintiffs invoke the APA to seek review of an agency’s
23 decision, they typically present a pure question of law, and
summary judgment “serves as the mechanism for deciding, as a
matter of law, whether the agency action is supported by the
administrative record and otherwise consistent with the APA
standard of review.” Las Ams. Immigration Advoc. Ctr. v. Wolf,
507 F. Supp. 3d 1, 17 (D.D.C. 2020) (citing Wilhelmus v. Geren,
796 F. Supp. 2d 157, 160 (D.D.C. 2011)). The APA “sets forth the
procedures by which federal agencies are accountable to the
public and their actions subject to review by the courts.”
Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). Under the
APA, courts must set aside agency action that is “(A) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (B) contrary to constitutional right,
power, privilege, or immunity; (C) in excess of statutory
jurisdiction, authority, or limitations, or short of statutory
rights; [or] (D) without observance of procedure required by
law.” 5 U.S.C. § 706(2)(A)-(D). Under the APA’s “narrow”
standard of review, “a court is not to substitute its judgment
for that of the agency,” Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); and
“will defer to the [agency’s] interpretation of what [a statute]
requires so long as it is ‘rational and supported by the
record,’” Oceana, Inc. v. Ross, 454 F. Supp. 3d 62, 68 (D.D.C.
2020).
24 When plaintiffs challenge an agency’s decision on
constitutional grounds, however, “a court does not defer to the
agency’s pronouncement on constitutional issues.” NYC
C.L.A.S.H., Inc. v. Carson, 442 F. Supp. 3d 200, 209 (D.D.C.
2020). Instead, “a court’s review of ‘constitutional challenges
to agency actions . . . is de novo.’” Poett v. United States,
657 F. Supp. 2d 230, 241 (D.D.C. 2009) (quoting Cullman Reg’l
Med. Ctr. v. Shalala, 945 F. Supp. 287, 293 (D.D.C. 1996)). The
Court must make “an independent assessment of a citizen’s claim
of constitutional right when reviewing agency decision-making,”
and such “[i]ndependent judicial judgment is especially
appropriate in the First Amendment area.” Id. (quoting Lead
Indus. Ass’n v. Envtl. Prot. Agency, 647 F.2d 1130, 1173-74
(D.C. Cir. 1980); Porter v. Califano, 592 F.2d 770, 780 (5th
Cir. 1979)).
III. Analysis
For the reasons explained more fully below, the Court
concludes that the challenged regulations are not in conflict
with the INA and instead reflect USCIS’s permissible
construction of the statute. And, because the regulations
expressly permit petitioners, including the Salesian Brothers,
to provide evidence of non-salaried compensation, that is,
direct or indirect financial support such as payment for room
25 and board, tuition, or other living expenses, the challenged
A. The Challenged Regulations Do Not Violate The APA, Nor Do USCIS’s Denials of the Brothers’ Visa Petitions Violate The APA.
Plaintiffs first contend that Defendants exceeded their
statutory authority under the INA in promulgating the challenged
regulations requiring a special immigrant religious worker visa
petitioner to work in a “compensated position.” Plaintiffs argue
these regulations “impose restrictions not contemplated by the
[INA] and that directly contradict the INA” and for that reason
are ultra vires, arbitrary, capricious, and not in accordance
with law. Pls.’ Mem. P. & A. Mot. Summ. J. (“Pls.’ Mot.”), ECF
No. 42-3 at 10. Plaintiffs further argue that the denials of the
petitions, to the extent they were based on the challenged
regulations, were arbitrary and capricious. Id.
Defendants respond that the regulations allow petitioners
to prove both salaried and non-salaried compensation, or that
they received no compensation at all but provided for their own
support. Defs.’ Mem. P. & A. Cross Mot. Summ. J. & Opp’n
(“Defs.’ Mot. & Opp’n”), ECF No. 43-3 at 23. “Non-salaried
compensation,” Defendants explain, allows religious workers who
have taken a vow of poverty to qualify for the visa program by
providing proof that they receive financial support from their
religious organization. Id. at 27-28. Defendants argue that
26 these regulations are not in conflict with the INA, and they
reflect USCIS’s permissible construction of the statute. Id. at
21-31. Defendants also maintain that USCIS’s denial of the
Brothers’ visa petitions was “fully supported by the
administrative record and consistent with the limited scope of
APA review.” Id. at 30.
1. USCIS’s Interpretation of the INA In Its Implementing Regulations Is Permissible
In reviewing an agency’s interpretation of a statute
Congress has entrusted it to administer, the Court’s analysis is
governed by Chevron U.S.A. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Under step one of the Chevron
analysis, “[i]f the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.” Id.
at 842-43. In determining whether the statute unambiguously
expresses the intent of Congress, the court should use all the
“traditional tools of statutory construction,” including looking
to the text and structure of the statute, as well as its
legislative history, if appropriate. Chevron, 467 U.S. at 843,
n.9. “When the statute is clear, the text controls and no
deference is extended to an agency’s interpretation in conflict
with the text.” Adirondack Med. Ctr. v. Sebelius, 29 F. Supp. 3d
25, 36 (D.D.C. 2014) (citing Chase Bank USA, N.A. v. McCoy, 562
27 U.S. 195 (2011)). Under step two of the Chevron analysis, if
Congress “has not directly addressed the precise question” at
issue, the agency’s interpretation of the statute is entitled to
deference so long as it is “reasonable” and not otherwise
“arbitrary, capricious, or manifestly contrary to the statute.”
Chevron, 467 U.S. at 843-44.
a. Chevron Step One
The first step in the Chevron analysis is to look at the
plain language of the statute. A person applying for “special
immigrant” religious worker status must “for at least two years
immediately preceding the time of the application . . . ha[ve]
been a member of a religious denomination having a bona fide
nonprofit, religious organization in the United States.” 8
U.S.C. § 1101(a)(27)(C)(i). The person must be seeking to enter
the United States “solely for the purpose of carrying on the
vocation of a minister of that religious denomination” and must
“have been carrying on such vocation, professional work, or
other work continuously for at least the 2-year period described
[supra].” Id. § 1101(a)(27)(C)(ii)-(iii). The statute does not
define “carrying on” or “vocation,” nor does it set forth a list
of criteria for establishing that a special immigrant is coming
to the United States “solely for the purpose of carrying on the
vocation of minister” or “to work” in a “religious vocation,”
nor for establishing that he was “carrying on such vocation” for
28 the two years before he filed his visa petition. See generally 8
U.S.C. § 1101(a)(27)(C)(i)-(iii).
USCIS’s implementing regulations require, among other
things, that the petitioner demonstrate that the beneficiary
“has the requisite experience both as a minister and a member of
the religious organization during that qualifying period” by
providing verifiable evidence that the alien: (1) received
salaried compensation; (2) received non-salaried compensation;
or (3) that the religious worker received not compensation and
provided for his or her own financial support. 8 C.F.R. §
204.5(m)(11)(i)-(iii). The regulations also require that the
petitioner demonstrate the beneficiary is coming to the United
States to work in a full time “compensated position” by
providing verifiable evidence of “how the petitioner intends to
compensate the alien . . . which may include salaried or non-
salaried compensation.” 8 C.F.R. §§ 204.5(m)(2) and (10).
Plaintiffs argue that the regulations violate the APA and
are ultra vires because the statute does not require that the
religious worker be in a compensated position. Pls.’ Mot., ECF
No. 42-3 at 12; see also Pls.’ Reply, ECF No. 45 at 5 (“Congress
has spoken to the precise question at issue” and has allowed
“both compensated and uncompensated work.”) Defendant responds—
and the Court agrees—that “the regulation does not require
evidence of salaried compensation to the exclusion of other
29 types of compensation or even non-compensatory arrangements the
organization may have with a religious worker.” Defs.’ Mot., ECF
No. 43-3 at 27.
The challenged regulations permit petitioners to prove
“compensation” with evidence that they received non-salaried
compensation, which Defendants interpret to include the type of
financial support Plaintiffs contend should be sufficient.
Defs.’ Mot. & Opp’n, ECF No 43-3 at 23, 27-28. I-360 visa
petitioners can establish that a beneficiary carried on a
vocation or religious work for the two-year period before
applying for the visa with sufficient evidence that the
beneficiary “received salaried compensation” or “received non-
salaried compensation.” 8 C.F.R. § 204.5(m)(11)(i)-(ii). The
regulations also permit a petitioner to prove that the
beneficiary provided self-support if he received no compensation
of any kind. 8 C.F.R. § 204.5(m)(11)(iii). Likewise, an I-360
visa petitioner can establish that the beneficiary is coming to
vocation of a minister,” with evidence relating to compensation
that “may include salaried or non-salaried compensation.” 8
C.F.R. § 204.5(m)(2), (10). Enumerated examples of such evidence
include “budgets showing monies set aside for salaries, leases,
etc.; verifiable documentation that room and board will be
30 provided; and other evidence acceptable to USCIS.” 8 C.F.R. §
204.5(m)(10).
For example, in response to Brother Eduardo’s I-360 visa
petition upon first review, USCIS explained that the support
provided to Brother Eduardo as described by Reverend Zak
appeared to describe past compensation, but the Salesian Society
must provide documentary evidence to substantiate it. Eduardo AR
at 89. USCIS never stated that the support that the Salesian
Society provided to Brother Eduardo did not satisfy the
requirement, they simply said there was insufficient
documentation to verify Reverend Zak’s representation. Id.
Later, upon reopening Brother Eduardo’s I-360 petition, USCIS
explained that evidence of non-salaried compensation sufficient
to satisfy the regulations may include but was not limited to:
verifiable evidence of financial support, including
stipends/allowances and room and board; evidence of medical
insurance coverage in the form of insurance cards or insurance
payments; documentation of stipends provided in the form of
processed checks or paystubs; or “other evidence acceptable to
USCIS.” Eduardo AR at 23-24.
Plaintiffs rely heavily on Shalom Pentecostal Church v.
Acting Secretary U.S. Department of Homeland Security, 783 F.3d
156 (3d Cir. 2015), to contend that any requirement that asks a
petitioner to prove he carries on a religious vocation with
31 evidence of the religious organization’s payment of salaried or
non-salaried compensation is impermissible because it is not
written into the statute directly. Pls.’ Mot., ECF No. 42-3 at
12-13. But that reliance is misplaced. In Shalom, the Court of
Appeals for the Third Circuit (“Third Circuit”) held that USCIS
could not enforce a regulation that required a religious worker
to have completed his two years of past religious work “in
lawful status” in the United States. Id. at 167. In Plaintiffs’
view, the Shalom court invalidated the “in lawful status”
regulatory provisions “because they imposed requirements beyond
those stated in § 1101(a)(27(C) . . . [because] [t]he INA itself
made no such requirement of lawful work.” Pls.’ Mot., ECF No.
42-3 at 12-13. Plaintiffs, however, miss important distinctions
between this case and Shalom. First, USCIS did not argue that
the “in lawful status” regulation was an exercise of its
authority to establish the type or quantum of evidence necessary
to meet the past-work requirement of the statute. See generally,
Shalom, 783 F.3d 156. Second, the “in lawful status” regulation
rendered other provisions of the INA related to a special
immigrant religious worker’s legal immigration status
superfluous. See id. at 165 (“The Regulation, in effect, would
make § 1255(k)(2)’s exemption for unauthorized work meaningless
in most circumstances.”). Third, when the Third Circuit
concluded that absence of “in lawful status” in the statute
32 itself reflected Congress’s intent not to preclude USCIS from
making lawful status a requirement by regulation, it did so by
relying on precedent that the United States Court of Appeals for
the District of Columbia Circuit (“D.C. Circuit”) has held will
not apply to APA claims in this circuit. See id. at 166 (“We are
unswayed by the line of decisions from the Court of Appeals for
the D.C. Circuit declining to apply Russello [v. United States,
464 U.S. 16, 23 (1983)] in the administrative agency context.”).
Moreover, as explained supra, the regulations do not require
that the religious worker be in a compensated position.
“[I]n an administrative setting . . . Congress is presumed
to have left to reasonable agency discretion questions that it
has not directly resolved.” Cheney R.R. Co. v. ICC, 902 F.2d 66,
69 (D.C. Cir. 1990). Here, Congress’s silence as to how a
religious worker would establish that he is “carrying on” his
“vocation,” and its silence as to whether a religious
organization’s payment of salaried or non-salaried compensation
is relevant to whether the worker carries on his vocation for
the organization, does not compel the Court to conclude that
Congress intended to preclude USCIS from implementing the
challenged regulations. Indeed, the INA authorizes USCIS to
promulgate regulations “elaborating on the[] statutory
qualifications” for a classification as a special immigrant
religious worker. See Shalom, 783 F.3d at 160; 8 U.S.C. §
33 1103(a)(3). Plaintiffs’ argument that Congress’s use of the
words “carrying on” and “vocation” demonstrate that it was not
silent as to compensation but instead provided a clear
expression of intent, see Pls.’ Opp’n, ECF No. 45 at 6-7; Pls.’
Mot., ECF No. 42-3 at 12-13 (claiming Congress chose that
language “recognizing that most men and women in vocations take
a vow of poverty that precludes compensation”); is unpersuasive
because Plaintiffs have provided no legal support for this
argument, see id.
In construing a different portion of the implementing
regulations, those that define “religious occupation,” the
District Court observed that “[o]n its face the statute does not
specifically describe the type or quantum of evidence which must
be produced in order for an applicant to qualify as a special
immigrant religious worker,” noting that the regulations provide
a short, non- exhaustive list of examples of religious
occupations.” Avena v. I.N.S., 989 F. Supp. 1, 5 (D.D.C. 1997).
The same reasoning applies to the challenged regulations here.
Accordingly, the Court concludes that the challenged regulations
survive the first step of the Chevron analysis, and they are not
ultra vires. This result is consistent with decisions from other
jurisdictions recognizing USCIS’s authority to investigate a
religious organization employer’s ability to pay a petitioner
seeking a special immigrant religious worker visa. See Madrasah
34 Islamiah, Inc. v. Dep’t Homeland Sec., Civ. Action No. H-12-
3492, 2015 WL 632090 (S.D. Tex. Feb. 13, 2015) (citing Woody's
Oasis v. Rosenberg, No. 1:13–cv–367, 2014 WL 413503, at *3 (W.D.
Mich. Feb. 4, 2014) (“The Court finds this long-standing
precedent persuasive, and agrees that the USCIS has the
authority to investigate an employer's ability to pay.”)).
b. Chevron Step Two
Under Chevron step two, the Court will uphold USCIS’s
interpretation as long as it is a “permissible construction of
the statute,” Chevron, 467 U.S. at 843; and considers “whether
the [agency] has reasonably explained how the permissible
interpretation it chose is ‘rationally related to the goals of’
that statute.” Petit v. U.S. Dep’t. of Educ., 675 F.3d 769, 785
(D.C. Cir. 2012) (citations omitted). The Court will “defer to
the [agency’s] interpretation if it is reasonable and consistent
with the statutory purpose and legislative history.” Bell Atl.
Tel. Cos. V. FCC, 131 F.3d 1044, 1049 (D.C. Cir. 1997).
Defendants explain that USCIS issued the challenged
regulations in 2008 to “help eliminate or reduce fraud in the
religious worker program.” Defs.’ Mot., ECF No. 43-3 at 26
(citing 73 Fed. Reg. 72,276-01) (summary of USCIS’s rationale
for the final rule that became effective in 2008). At the time
the rule was enacted, the federal government “had identified
many incidents of fraud in the religious worker program,” and
35 “USCIS estimated that as many as one-third of applications and
petitions filed for religious worker admission were fraudulent.”
Id. Accordingly, for a petitioner to demonstrate that he or she
worked in a religious vocation or occupation before applying for
a special immigrant religious worker visa, the comments to the
final rule explain that the petitioner could provide verifiable
evidence of “past compensation or support to demonstrate the
required previous two years of religious work.” Id. Defendants
further emphasize that, as discussed supra, while the
regulations ask for verifiable evidence of compensation to prove
a petitioner has carried on their religious work before coming
to the United States, the regulations also accommodate religious
workers who could demonstrate that they worked but did not
receive a salary. 8 C.F.R. § 204.5(m)(11) (providing for
petitioners who received non-salaried compensation, such as room
and board, or petitioners who received no salary but provided
their own support). Defendants assert that “[a]t no time did the
Agency issue any request that could not be met but for the
religious workers’ vow of poverty.” Defs.’ Mot., ECF No. 43-3 at
28.
Plaintiffs maintain that the challenged regulations are
directly at odds with the INA, for the reasons discussed at the
first step of the Chevron analysis, and they therefore do not
respond to Defendants’ arguments at step two of the Chevron
36 analysis. See Pls.’ Opp’n, ECF No. 45 at 6 (“Nothing in the
original statutory language needs clarifying. There is,
therefore no need to move to the second step of the Chevron
analysis.”). Plaintiffs do dispute Defendants’ arguments
concerning the need to reduce fraud in the religious worker visa
program, describing the concerns about fraud as “vague” and
related to “unspecified religious worker filings in the past.”
Pls.’ Mot., ECF No. 42-3 at 26. Plaintiffs also argue that
“Defendants’ concern about fraud should only permit them to
present those concerns to Congress with a request that Congress
amend that statutes in order to eliminate or minimize the
fraud.” Pls.’ Opp’n, ECF No. 45 at 10.
However, Congress did direct USCIS to address the incidents
of fraud in the religious worker visa program. In 2008, Congress
took up legislation to extend the non-minister provisions of the
religious worker visa program. See Special Immigrant Nonminister
Religious Worker Program Act, Pub. L. No. 110-391, 122 Stat.
4193 (2008). The legislative history shows Congress intended
USCIS to address their concerns regarding fraud with rule making
that would immediately follow passage of the law. See 59 Cong.
Rec. H2284-H2289 (daily ed. Apr. 15, 2008). The legislation
addressed the religious worker program for immigrants in
religious vocations or occupations, not immigrants in the
vocation of minister. Pub. L. No. 110-391, 122 Stat. 4193
37 (2008). However, Plaintiffs have not argued that Congress’s
fraud concerns extended only to non-ministers.
A number of Members of Congress expressed the need for
preventing fraud in the program, as religious workers visas were
reportedly the visa type with the highest incidents of fraud and
were “known as some of the most difficult to adjudicate” to
prevent fraud. 59 Cong. Rec. H2287 (daily ed. Apr. 15, 2008)
(statement of Sen. King). Members of Congress discussed various
reports on this issue, noting for example that in 2004, a
Venezuelan national was convicted for visa fraud after “he had
filed 179 fraudulent petitions for religious ministers. In
addition to creating fraudulent certificates of ordination,
diplomas and other supporting documentation, he also obtained a
valid 501(c)(3) tax exemption from recognized religious
organizations without their knowledge.” Id. Ultimately, as
passed, the Special Immigrant Nonminister Religious Worker
Program Act of 2008 extended the non-minister religious worker
program but also required the Secretary of Homeland Security to
“issue final regulations to eliminate or reduce fraud related to
the granting of special immigrant status” for non-minister
religious workers. Pub. L. 110-391, 122 Stat. 4193 (2008).
Accordingly, Defendants’ fraud concerns are anything but vague.
Furthermore, it is clear that Congress intended USCIS to revise
its regulations to further prevent fraud.
38 Defendants argue—and the Court agrees—that they have
“reasonably interpret[ted] the statute as permitting USCIS to
require that a petitioner submit evidence of compensation
(salaried or non-salaried) or self-support to demonstrate that
the beneficiary possesses the requisite experience as a
religious worker and member of the religious organization during
the qualifying period.” Defs.’ Reply, ECF No. 47 at 6. The Court
also agrees that the regulations “help[] USCIS detect and deter
fraud and other abuses in the religious worker program.” which
is consistent with Congress’s directive and rational in view of
the agency’s study of this issue. Id.
Accordingly, USCIS’s interpretation of the statute as set
forth in the regulations is both “reasonable and consistent with
the statutory purpose and legislative history,” Bell Atl. Tel.
Cos., 131 F.3d at 1049; and Plaintiffs APA challenge to the
regulations fail at this stage of the analysis.
2. USCIS’s Denials of the Brothers’ Visa Petitions Were Not Arbitrary or Capricious.
Plaintiffs would still be entitled relief in this matter if
USCIS’s denials of the Brothers’ petitions were arbitrary,
accordance with law. 5 U.S.C. §706(2)(A). To make this
determination, the Court considers whether USCIS’s decisions
were “not supported by substantial evidence” or whether USCIS
39 made a “clear error in judgment.” Doe v. U.S. Citizenship &
Immigration Servs., 239 F. Supp. 3d 297, 306 (D.D.C. 2017)
(citations omitted).
Plaintiffs have based their argument on this issue on the
challenged regulations being invalid. See Pls.’ Mot., ECF No.
42-3 at 14-15. Plaintiffs maintain that USCIS erred in denying
the Brothers’ I-360 visa petitions because the Brothers “meet
all of the . . . requirements for a Special Immigrant Religious
worker set out in both the Statute and Regulations” other than
the “extra manufactured requirement of showing that they had
been compensated for the last two years and will be compensated
going forward.” Id. at 15. The Court has already concluded,
however, that 8 C.F.R. §§ 204.5(m)(2) and (11) are not extra
manufactured requirements, rather they reflect a permissible
construction of the INA, as they elaborate on the type and
quantum of evidence a petitioner must provide to demonstrate
that they carry on their religious vocation, and they
accommodate both compensated and uncompensated religious
workers. Accordingly, USCIS’s reliance on the challenged
regulations to deny an I-360 visa petition is not arbitrary,
capricious, or an abuse of discretion.
The Court finds no error in USCIS’s adjudication of the
Brothers’ special immigrant religious worker visa petitions. As
Defendants point out, “Plaintiffs failed to respond to the
40 Agency’s requests for evidence and failed to address the
evidentiary deficiencies discussed in those requests.” Defs.’
Mot., ECF No. 43-3 at 28; see also Eduardo AR at 2-10; Rubio AR
at 2-7; Sasika AR at 2-6. The regulations provide that “[i]f the
petitioner or applicant fails to respond to a request for
evidence or to a notice of intent to deny by the required date,
the benefit request may be summarily denied as abandoned, denied
based on the record, or denied for both reasons.” 8 C.F.R §
103.2(b)(13)(i).
Plaintiffs failed to respond to the RFE for Brother
Eduardo’s reopened petition and Brother Rubio’s and Brother
Sasika’s petitions on the grounds that this litigation was
pending and “the subsequent RFEs should be treated as a nullity
because each was an in artful attempt to deprive the [C]ourt of
its jurisdiction.” Pls.’ Opp’n, ECF No. 45 at 13. Plaintiffs
point to no case, and the Court is aware of none, that supports
this position. Rather, it is generally understood that an agency
may take “voluntary corrective action” after a plaintiff has
initiated litigation, and such action may render a plaintiff’s
claims moot. See Gibbs v. Brady, 773 F. Supp. 454, 457 (D.D.C.
1991). It is not uncommon for USCIS to reopen visa petitions
while litigation is pending, and when USCIS denies a reopened
petition, even if on alternative grounds or in a decision with
different or more clear reasoning, courts look to the final
41 denial when evaluating agency action in an APA claim. See, e.g.,
Fogo De Chao (Holdings) Inc. v. U.S. Dep’t. Homeland Sec., 769
F.3d 1127, 1134 (D.C. Cir. 2014) (evaluating USCIS’s final
decision on the plaintiff’s petition for a temporary visa for
foreign employees with specialized knowledge, where USCIS had
reopened the petition proceedings while the case was pending).
Moreover, even if USCIS’s first denial of Brother Eduardo’s
I-360 visa petition was operative, the Court would still find no
error in the denial. In response to USCIS’s first RFE seeking
evidence pertaining to compensation, the Salesian Society
provided a letter from a Salesian Reverend that claimed a “total
amount of $41,767 each year is paid wholly by the Salesian Order
on Br[other] Eduardo’s behalf,” which included annual tuition
for his Master’s Degree, room and board, personal expenses, and
health insurance. Eduardo AR at 113-14. But the Salesian Society
provided no “IRS documentation” or “comparable evidence” of
those payments, as required by the regulations for evidence of
past work. 8 C.F.R. § 204.5(m)(11). USCIS explained this
deficiency to the Salesian Society both in the initial denial
and on appeal. Eduardo AR at 90; Eduardo AR at 27-29. In view of
the Salesian Society’s representation that it made a number of
payments to Brother Eduardo, the Salesian Society’s failure to
provide any documentary evidence to support those claims, the
plain statement in the regulations requiring documentary
42 evidence, USCIS’s explanation that such evidence is required and
a letter from within the religious organization is insufficient,
and USCIS’s interest in limiting fraud in the religious worker
visa program, the Court concludes that even the initial denial
of Brother Eduardo’s I-360 visa petition was not arbitrary,
capricious, or contrary to law. See U.S. Chamber of Commerce v.
SEC, 412 F.3d 133, 140 (D.C. Cir. 2005) (“[T]he scope of review
under the arbitrary and capricious standard is narrow and a
court is not to substitute its judgment for that of the agency,
. . . [and a court considers whether the agency] has examined
the relevant data and articulated a satisfactory explanation for
its action including a rational connection between the facts
found and the choice made.”).
For these reasons, USCIS’s denials of the Brothers’ I-360
petitions were not arbitrary, capricious, or an abuse of
discretion.
B. The Challenged Regulations Do Not Violate the First Amendment or RFRA
Plaintiffs argue that the challenged regulations, as
applied to religious workers who have taken a vow of poverty,
contravene the Free Exercise and Establishment Clauses of the
First Amendment to the United States Constitution as well as
RFRA. For the reasons set forth below, the Court concludes that
Plaintiffs failed to establish such violations.
43 1. The Compensation Requirements Do Not Violate the Free Exercise Clause
The Free Exercise Clause prohibits Congress from enacting
laws “respecting an establishment of religion.” U.S CONST.,
amend. I § 1. A plaintiff bringing a free exercise case must
“show the coercive effect of the enactment as it operated
against him in the practice of his religion.” School Dist. of
Abington Tp., Pa. v. Schempp, 374 U.S. 203, 223 (1963). “[A]
burden upon religion exists [when governmental action] put[s]
substantial pressure on an adherent to modify his behavior and
to violate his beliefs.” Thomas v. Review Bd. Of Indiana
Employment Security Div., 450 U.S. 707, 718 (1981). “[T]he right
of free exercise does not relieve an individual of the
obligation to comply with a ‘valid and neutral law of general
applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribed (or
proscribes).’” Employment Div., Dept. of Human Resources of
Oregon v. Smith, 494 U.S. 872, 879 (1990) (quoting United States
v. Lee, 455 U.S. 252, 263, n.3 (1982) (Stevens, J, concurring in
judgment).
The Court concludes that Plaintiffs have failed to
establish a Free Exercise Clause violation. Plaintiffs object to
USCIS’s categorization of the support paid on their behalf for
living and other expenses as “non-salaried compensation,”
44 asserting that requiring them to provide corroborating evidence
that such support is paid on their behalf would cause them to
“lie” because, due to their vow of poverty, “[t]he Salesians do
not compensate their ministers.” Pls.’ Opp’n, ECF No. 45 at 11.
But Plaintiffs have not explained how USCIS’s categorization of
the support provided to them as “non-salaried compensation” has
“put substantial pressure on [them] to modify [their] behavior
and to violate [their] beliefs.” Thomas, 450 U.S. at 718. 13
The Supreme Court recently confirmed that it would violate
the Free Exercise Clause for the government to interfere in
matters of faith and doctrine, and the Free Exercise Clause
“protect[s] [religious institution’s] autonomy with respect to
internal management decisions that are essential to the
institution’s central mission.” Our Lady of Guadalupe School v.
Morriseey-Berru, 140 S. Ct. 2049, 2060 (2020). Plaintiffs argue
that “[t]he manner by which the Salesians organize their
budgeting and finance, particularly as it relates to the records
they keep, is a matter of their internal church governance. The
Salesians determination of how to support their religious
workers free from ‘compensation’ is a matter of its basic
exercise of religion.” Pls.’ Supp., ECF No. 53 at 6. However,
13Accordingly, the Court need not reach Plaintiffs’ arguments as to whether the government has shown a compelling state interest that could be satisfied with less restrictive means. Pls.’ Mot., ECF No. 42-3 at 16-19. 45 Plaintiffs have not shown that categorizing the support paid on
their behalf as “unsalaried compensation” and requiring
corroborating evidence of the support interferes with “internal
management decisions that are essential to the institution’s
central mission.” Plaintiffs have not explained how they need to
change any internal management, record keeping, or anything else
to provide evidence that corroborates the support they
undisputedly provide to the brothers.
The petition submitted on behalf of Brother Eduardo
indicates that the Salesian Order pays for the brothers’ needs
such as housing, food, clothing, medical care, etc. See Eduardo
AR at 113. In the case of Brother Eduardo, the Order paid an
annual amount of $41,767 for these needs, plus his tuition. Id.
at 113-114. And when Brother Eduardo taught at the Salesian High
School in New Rochelle, New York, “[t]he school made a lump sum
payment for the teaching activities of all the Salesians. This
payment was sent directly to the Salesian community, which would
then use it for community needs such as food, housing expenses,
health care, and travel.” Eduardo AR at 114. All Plaintiffs were
asked to provide was evidence corroborating the records already
being kept.
46 C. The Compensation Requirements Do Not Violate the Establishment Clause.
The Establishment Clause prohibits the government from,
among other things, favoring one religion over another. See
Agostini v. Felton, 521 U.S. 203, 232 (1997); Larson v. Valente,
456 U.S. 228, 246 (1982). Plaintiffs argue that the challenged
regulations do just that because the Salesian Society is
“impermissibly inhibited from following the dictates of its
religion’s [v]ow of [p]overty,” while “religions that pay their
members, ministers and priests” are not impacted. Pls.’ Mot.,
ECF No. 42-3 at 19-22. As explained supra, however, religious
workers who have taken a vow of poverty are not precluded from
classification as a special immigrant religious worker under the
INA. The regulations, therefore, do not create the
“denominational preference” upon which Plaintiffs’ Establishment
Clause claims are based. Id. As a result, Plaintiffs have not
established that Defendants “acted with the purpose of advancing
or inhibiting religion,” Agostini, 521 U.S. at 232; nor have
they favored one religion over another, Larson, 456 U.S. at 246.
Accordingly, the Court concludes that Plaintiffs have failed to
establish an Establishment Clause violation.
Plaintiffs have also failed to establish that the
challenged regulations violate the Establishment Clause even if
they are facially neutral. See Pls.’ Mot., ECF No. 42-3 at 22.
47 Plaintiffs once again contend that the challenged regulations
“exclude[e] the Plaintiffs as a Catholic order and participants
therein solely because of their faith’s Vow of Poverty and
denying them all the benefit of immigration law and rights as a
result.” Pls.’ Mot., ECF No. 42-3 at 24 (citing Everson v. Board
of Educ. Of Ewing Twp., 330 U.S. 1, 16 (1947)). However, as
explained supra, this is not the case. Plaintiffs need not
“violate a cardinal principal of [their] religious faith,” Pls.’
Mot., ECF No. 42-3 at 24, to obtain a special immigrant
religious worker visa.
D. The Compensation Requirements Do Not Violate RFRA
RFRA, like the Free Exercise Clause, protects religious
exercise. “Congress enacted RFRA in order to provide greater
protection for religious exercise than is available under the
First Amendment.” Holt v. Hobbs, 574 U.S. 352, 357 (2015)
(citing Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 694
(2014)). To that end, RFRA provides that “Government shall not
substantially burden a person’s exercise of religion even if the
burden results from a rule of general applicability.” § 2000bb-
1(a). If the government—which is defined by RFRA to include any
“department” or “agency” of the United States, see § 2000bb-
2(1)—substantially burdens a person’s exercise of religion, RFRA
provides that the person is entitled to an exemption from the
rule unless the government “demonstrates that the burden to the
48 person—(1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering
that compelling governmental interest.” § 2000bb-1(b).
Plaintiffs argue that no religious order whose members
profess a vow of poverty “will be able to work legally in or
immigrate to the United States” because “no member will be
compensated directly or indirectly, [and] it follows that USCIS
will always deny the Petition of any religious order that
includes a [v]ow of [p]overty as its religious praxis.” Pls.’
Mot., ECF No. 42-3 at 24-25. This, they contend, is a
substantial burden of the exercise of religion for any religious
person who has taken a vow of poverty and seeks entry into the
United States as a special immigrant religious worker. Id. They
also suggest that even though they already provide the type of
support that would satisfy the challenged regulations, providing
documentation of that support to USCIS in response to a request
for evidence of “non-salaried compensation” is a burden on their
exercise of religion because to do so would be a “lie.” See
Pls.’ Reply, ECF No. 46 at 46; Pls.’ Supp., ECF No. 53.
As discussed supra, Plaintiffs have not established that
the challenged regulations place a burden on the exercise of
their religion, let alone a substantial one. Plaintiffs claim
that “no member [of the Salesian Society who has taken a vow of
poverty] will be compensated directly or indirectly,” and thus
49 they will never be eligible for a special immigrant religious
worker visa as long as the regulations requiring proof of
salaried or non-salaried compensation remain in place and
unmodified. Pls.’ Mot., ECF No. 42-3 at 24-25. Plaintiffs
financially support their Brothers by covering their “needs for
housing, food, clothing, travel, medical care,” living expenses,
and even tuition for religious studies. Eduardo AR at 113-14.
Defendants have made clear, both in this litigation and to
Plaintiffs during the course of the adjudication of the
Brothers’ I-360 visa petitions, that it categorizes this type of
support as “non-salaried compensation.” See Defs.’ Mot., ECF No.
43-3 at 2, 4, 19-21, 26-28; Defs.’ Reply, ECF No. 47 at 1-4;
Eduardo AR at 23-24; Rubio AR at 15-16; Sasika AR at 15.
Plaintiffs do not need to change any practice to qualify for a
visa. Accordingly, there is no deprivation of a government
benefit that Plaintiffs allege as the substantial burden they
face—that “USCIS will always deny the Petition of any religious
order that includes a Vow of Poverty as its religious praxis.”
Pls.’ Mot., ECF No. 42-3 at 24-25.
The Court is unpersuaded by Plaintiffs’ insistence that
giving USCIS any documentation of the financial support they
provide to their Brothers would constitute a burden on the
exercise of their practice of maintaining a vow of poverty
because it requires them to “tell a lie that they provide the
50 support under the heading of ‘non-salaried compensation.’” See
Pls.’ Reply, ECF No. 46 at 46. The Court appreciates that
Plaintiffs do not consider this financial support to be
“compensation” of any kind. But what matters for the purpose of
a RFRA violation is that despite this semantic disagreement,
Plaintiffs are eligible for special immigrant religious worker
visas without requiring a modification to their religious
practice. See Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C.
Cir. 2008) (finding no RFRA violation where the government
action “does not call for [the plaintiff] to modify his
religious behavior in any way—it involves no action or
forbearance on his part, nor does it otherwise interfere with
any religious act in which he engages”).
In this regard, this case is not unlike Kaemmerling, where
the D.C. Circuit held that the plaintiffs had not stated a claim
for relief under RFRA. Id. at 686. In Kaemmerling, the
Plaintiff alleged that the Federal Bureau of Prison’s extraction
and storage of his DNA information substantially burdened his
religious beliefs concerning the appropriate use of the
“building blocks of life.” Id. at 678-79. The court emphasized
that the “extraction and storage of DNA information are entirely
activities of the FBI, in which Kaemmerling plays no role and
which occur after the BOP has taken his fluid or tissue sample
(to which he does not object).” Id. at 679. Where challenged
51 action “does not call for [the individual] to modify his
forbearance on his part, nor does it otherwise interfere with
any religious act in which he engages, . . . [the government’s
actions] cannot be said to hamper his religious exercise because
they do not ‘pressure [him] to modify his behavior and to
violate his beliefs.’” Id. (citing Thomas, 450 U.S. at 718).
Similarly, here the government’s categorization of the type
of financial support the Salesian Society provides to the
Brothers does not call for the Brothers to modify their
religious practice, including their vow of poverty, nor does it
call for the Salesian Society to modify their practice of
providing support for the Brothers who live out their vow of
poverty. The financial relationship between the Salesian Society
and their Brothers who have taken a vow of poverty may remain as
it is, and Plaintiffs can meet the “compensation” requirements
and be eligible for special immigrant religious worker visas.
Even if the act of providing documentation to USCIS under
the “heading” of “non-salaried compensation” were a burden on
their exercise of religion, see Pls.’ Reply, ECF No. 46 at 46;
it is not a substantial one. Plaintiffs assert that they “have a
sincere religious belief that providing evidence of compensation
would force them to violate their vow of poverty, which is a
basic tenant of their Catholic Order,” Pls.’ Supp., ECF No. 53;
52 and courts defer to a RFRA claimant’s statement of its own
beliefs, so long as that belief is sincerely held, see Hobby
Lobby, 573 U.S. at 134 (“[I]t is not for [courts] to say that [a
person’s] religious beliefs are mistaken or insubstantial.”).
Nonetheless, it is well established that only substantial
burdens on the exercise of religion fall within the scope of
RFRA, Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001);
and it is up to courts to determine, as a matter of law, whether
a challenged law or regulation “substantially” burdens a
claimant’s religious exercise, see Mahoney v. Doe, 642 F.3d
1112, 1121 (D.C. Cir. 2011).
To determine whether the challenged regulations place a
“substantial burden” on Plaintiffs’ religious exercise, we ask
whether the challenged regulations put “substantial pressure” on
Plaintiffs to “modify [their] behavior and to violate [their]
beliefs.” Kaemmerling, 553 F.3d at 678 (quoting Thomas, 450 U.S.
at 718). The Court concludes that they do not. This case is
unlike those cited by Plaintiffs where the challenged law or
regulation placed significant pressure on people to take an
action that contravened the core of their religious beliefs and
practices. See Sherbert v. Verner, 374 U.S. 398, 404 (1963)
(state statute forced a Sabbatarian to choose between forfeiting
unemployment benefits on the one hand and accepting work on the
Sabbath, which would be an abandonment of one of the precepts of
53 her religion, on the other hand); Wisconsin v. Yoder, 406 U.S.
205, 218 (1972) (state law compelling Amish parents to send
their children to high school compelled the Amish to “perform
acts undeniably at odds with fundamental tenets of their
religious beliefs”); Hobby Lobby, 573 U.S. at 726 (company’s
cost of acting in accordance with their religious beliefs by not
providing insurance coverage for contraceptive methods by as
much as $475 million per year). Here, the Brothers need not
abandon their vow of poverty to be eligible for a special
immigrant religious worker visa. The Salesian Society need only
provide documents that support what they have already indicated
is their practice: providing support to Brothers who have taken
a vow of poverty, such as through payment of housing, food,
tuition, health insurance, and other needs.
For these reasons, the Court also rejects Plaintiffs’ RFRA
claims.
V. Conclusion
Accordingly, for the reasons set forth above, the Court
GRANTS Defendants’ Motion for Summary Judgment and DENIES
Plaintiff’s Motion for Summary Judgment. An appropriate order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge September 22, 2021
Related
Cite This Page — Counsel Stack
Salesian Society, Province of St. Philip the Apostle, Inc. v. Cissna, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salesian-society-province-of-st-philip-the-apostle-inc-v-cissna-dcd-2021.