Soltane v. US Dept Justice

• Court: Court of Appeals for the Third Circuit
• Decided: August 26, 2004
• Docket: 03-1626
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

8-26-2004

Soltane v. US Dept Justice Precedential or Non-Precedential: Precedential

Docket No. 03-1626

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Recommended Citation "Soltane v. US Dept Justice" (2004). 2004 Decisions. Paper 349. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/349

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UNITED STATES COURT OF LAWRENCE H. RUDNICK (Argued) APPEALS 1608 Walnut Street, Suite 1500 FOR THE THIRD CIRCUIT Philadelphia, PA 19103 ____________ Counsel for Appellant No. 03-1626 ____________ PATRICK L. MEEHAN LAURIE MAGID CAMPHILL SOLTANE, VIRGINIA A. GIBSON SUSAN R. BECKER (Argued) Appellant 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 v. Counsel for Appellee US DEPARTMENT OF JUSTICE; ____________________ IMMIGRATION & NATURALIZATION SERVICE OPINION OF THE COURT ___________________ ____________________

ON APPEAL FROM THE UNITED ALITO, Circuit Judge: STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF Camphill Soltane (“Camphill”) PENNSYLVANIA appeals a final order of the United States District Court for the Eastern District of District Court Judge: Honorable Herbert Pennsylvania affirming the denial of J. Hutton Camphill’s visa petition on behalf of an (Civil Action No. 02-0727) employee sought to be classified as a “special immigrant religious worker.” ________________ Because that denial was predicated on legal error and improper findings of Argued: December 5, 2003 evidentiary deficiency, we vacate the judgment of the District Court and remand Before: SLOVITER and ALITO, Circuit this case for reconsideration by the agency. Judges, and OBERDORFER, District I. Judge* Camphill Soltane is a non-profit organization, dedicated to providing * The Honorable Louis F. Oberdorfer, services to young adults with mental Senior District Judge for the District of disabilities. Rooted in “Anthroposophy” Columbia, sitting by designation. and the teachings of Rudolph Steiner, Camphill seeks to create a spiritual the training process and the religious community through cooperative life, social nature of the position, see App. II at 59-61, interaction, and spiritual activity. “The as well as a set of literature (some Camphill Movement is focused on authored by Steiner) that discussed Christianizing the ordinary aspects of life Anthroposophy and the “C amphill for the mentally handicapped as well as for M ovem ent” a nd was presumably the fully able members of the community submitted as representative training . . . .” Appellant Br. at 6. material. See App. II at 62-146.2 No twiths tanding the su pplem enta l Since 1996, the Chester County submissions, the INS denied Camphill’s facility of Camphill has employed petition in February 2001, finding that Annagret Goetze, a citizen and native of Camphill had failed to establish that Germany. Goetze was originally admitted Goetze was to be employed in a religious into the United States in the R-1 occupation, as required under the classification as a nonimmigrant religious regulations. App. I at 31. worker. In 2000, Camphill filed an I-360 immigrant visa petition on behalf of Camphill filed a timely appeal with Goetze with the Immigration and the Administrative Appeals Unit. In Naturalization Service (INS). 1 This December 2001, a final administrative petition sought to have Goetze classified d e c i s io n w a s r e n d e r e d b y t h e as a special immigrant religious worker so Administrative Appeals Office (AAO) of that she could serve in the proposed the INS. Reviewing the record de novo, position of houseparent, music instructor, the AAO affirmed on four independent and religious instructor at the Camphill grounds, any one of which alone could facility. have justified the denial: (1) Camphill did not qualify as a religious organization as The Vermont Servicing Center of required by 8 U.S.C. § 1101(a)(27)(C); (2) the INS made a request for further the proposed position of houseparent was evidence showing that Goetze had two neither a religious occupation nor a years of experience in a religious religious vocation; (3) there was occupation and that she had received insufficient evidence to determine whether specific religious training. App. I at 32. Goetze had worked in a religious position Camphill responded with explanations of for two years preceding the petition; and (4) Cam phill provided insufficient evidence to prove that there was a 1 The INS has ceased to exist as of March 1, 2003, and has been replaced by 2 the Bureau of Citizenship and Immigration For example, App. II at 86 is a sheet Services. We nevertheless use the term labeled “Study Material” listing several INS throughout this opinion (as do the sources, some of which appear to be briefs) for the sake of consistency. included in the administrative record.

2 qualifying tender of a job to Goetze. Id. In this case, the statutory basis for Camphill’s visa request was 8 U.S.C. Camphill appealed for review of the § 1153(b)(4), which governs the issuance AAO decision in the Eastern District of of preference visas to “certain special Pennsylvania, under the Administrative immigrants,” including those engaged in a Procedure Act (APA). In February 2003, “religious occupation or vocation,” see id. the District Court entered judgment against § 1101(a)(27)(C)(ii). If the AAO’s denial Camphill, affirming the AAO decision on of Camphill’s visa request constituted a all four grounds. This appeal followed. “decision or action of the Attorney General II. the authority for which is specified under this title to be in the discretion of the As a preliminary matter, we are A t t o r n e y G e n e r a l ,” t h e n un d e r required to consider the issue of subject § 1251(a)(2)(B)(ii) the District Court matter jurisdiction, even though neither lacked jurisdiction to review the agency party contends that it is lacking here. See action. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (“[E]very federal The key to § 1251(a)(2)(B)(ii) lies appellate court has a special obligation to in its requirement that the discretion giving satisfy itself not only of its own rise to the jurisdictional bar must be jurisdiction, but also that of the lower “specified” by statute. In other words, courts in a cause under review, even “the language of the statute in question though the parties are prepared to concede must provide the discretionary authority” it.”) (internal quotes omitted). The before the bar can have any effect. jurisdictional question in this case centers Spencer Enterprises, Inc. v. United States, on 8 U.S.C. § 1252(a)(2)(B)(ii), which 345 F.3d 683, 689 (9th Cir. 2003). For provides in pertinent part: example, in Spencer Enterprises, the Ninth Circuit found no discretion specified in a Notwithstanding any other statute that listed “clear[] . . . eligibility provision of law, no court requirements” with instructions that a visa shall have jurisdiction to “shall” issue when those requirements are review . . . any other met. By contrast, in Urena-Tavarez v. decision or action of the Ashcroft, 367 F.3d 154 (3d Cir. 2004), we Atto rney Ge neral th e found that the statute at issue “explicitly authority for which is assign[ed]” discretion to the Attorney specified under this title [8 General, focusing on the use of specific U.S.C. §§ 1151 et seq.] to language to that end (“discretion” and be in the discretion of the “sole discre tion”), to geth er w ith Attorney General, other than instructions that certain actions “may” (as the granting of relief under opposed to “shall”) be taken when any of [8 U.S.C. § 1158(a)] the enumerated conditions is satisfied. [governing asylum].

3 The statute at issue in this case admission, has been a provides: member of a religious denomination having a bona Visas shall be made fide nonprofit, religious available, in a number not to organization in the United exceed 7.1 percent of such States; w o rl dw id e leve l, to qualified special immigrants (ii) seeks to enter the described in [8 U.S.C. § United States– 1101(a)(27)] (other than (I) solly for the purpose those described in of carrying on the vocation subparagraph (A) or (B) of a minister of that thereof), of which not more religious denomination, than 5,000 may be made available in any fiscal year (II) before October 1, to sp e ci al im migrants 2008, in order to work for described in subclause (II) the organization at the or (III) of [8 U.S.C. § request of the organization 1101(a)(27)(C)(ii)(II) or in a professional capacity in (III)], and not more than 100 a religious vocation or may be made available in occupation, or any fiscal year to special (III) before October 1, i m migra n t s , e x c ludin g 2008, in order to work for spouses and children, who the organization (or for a are described in [8 U.S.C. § bona fide o rganization 1101(a)(27)(M)]. which is affiliated with the 8 U.S.C. § 1153(b)(4) (emphasis added). religious denomination and is exempt from taxation as A “special immigrant,” as that an organization described in classification pertains to ministers and section 501(c)(3) of the other religious workers, is defined as: Internal Revenue Code of (C) an immigrant, 1986) at the request of the and the immigrant's spouse organization in a religious and children if vocation or occupation; and accompanying or following (iii) has been to join the immigrant, who– carrying on such vocation, (i) for at least 2 professional work, or other years immediately preceding work continuously for at the time of application for least the 2-year period

4 described in clause (i); marginally ambiguous statutory language, without more, is adequate to “specific[y]” 8 U.S.C. § 1101(a)(27)(C). that a particular action is within the The language of 8 U.S.C. Attorney General’s discretion for the § 1153(b)(4) makes clear that the Attorney purposes of § 1252(a)(2)(B)(ii). Of General is required to grant preference course, in a sense, an agency generally has visas to those who fall within certain “discretion” under Chevron to interpret numerical limits and qualify as “special ambiguous language used in a statute it immigrants” under § 1101(a)(27). These administers. But if that sort of ubiquitous relevant numerical limits are set by statute, “discretion” were sufficient by itself to see 8 U.S.C. § 1153(b)(4), and the satisfy § 1252(a)(2)(B)(ii), the effects of definition of “special immigrant” (as that jurisdictional bar would be sweeping relevant to religious workers) is fairly indeed. We do not believe that Congress detailed and specific, with no explicit intended such a result. 3 reference to “discretion” as in Urena- For these reasons, we hold that a Tavarez. In fact, 8 U.S.C. § 1153(b)(4) preference visa determination under bears some similarity to the neighboring § 1153(b)(4) is not a “decision or action of provision, 8 U.S.C. § 1153(b)(5), which the Attorney General the authority for was analyzed in Spencer Enterprises, in which is specified under this title to be in that it sets forth specific eligibility the discretion of the Attorney General.” requirements, with instructions that the The jurisdictional bar of visa “shall” issue if those requirements are § 1252( a ) (2 ) ( B ) ( ii ) is t h e re f o re met. Accordingly, we do not read inapplicable in this case. § 1153(b)(4) as having “specified” that the granting of the visas in question “be in the discretion of the Attorney General.” 3 Furthermore, if “discretion” under We note that the dissent in Spencer § 1251(a)(2)(B)(ii) means nothing more Enterprises criticized the majority in that than the “application of facts to case for what it believed was an overly principles,” see Spencer Enterprises, 345 “mechanical” approach, including reliance F.3d at 699 (Beezer, J., dissenting), then it on the semantic distinction between “may” is hard to imagine any action by the and “shall.” See Spencer Enterprises, 345 Attorney General under the relevant title F.3d at 696-98. (Beezer, J., dissenting). that would not be deemed discretionary. We agree that the question of whether For example, the substantial evidence discretionary authority has been specified standard under which we review many by statute should be considered by immigration actions contemplates that in examining the statute as a whole. But we some cases there will be a range of do not think (as the Spencer Enterprises acceptable outcomes among which an dissent goes on to suggest) that the use of adjudicator might reasonably choose. 8 U.S.C. § 1252(b)(4)(B).

5 III. A. We now turn to the merits of the We first consider the question appeal. Under the Administrative whether Camphill qualifies as a “religious Procedure Act, we will reverse agency organization” under § 1101(a)(27)(C). action if it is “arbitrary, capricious, [or] an The associated regulation at 8 C.F.R. abuse of discretion,” or “unsupported by § 204.5(m)(3) mandates that petitioners substantial evidence.” 5 U.S.C. § 706; prove eligibility for tax-exempt status Spencer Enterprises, 345 F.3d at 693. We under “section 501(c)(3) of the Internal defer to both formal and informal agency Revenue Code of 1986 as it relates to interpretations of an ambiguous regulation religious organizations.” Id. The AAO unless those interpretations are “plainly held that “[o]nly organizations classified, erroneous or inconsistent with the or classifiable, as ‘churches’ . . . are regulation.” Bowles v. Seminole Rock & qualifying religious organizations for the Sand Co., 325 U.S. 410 (1945); Thomas purpose of special immigrant religious Jefferson University v. Shalala, 512 U.S. worker classification.” App. I at 25. 504, 512 (1994); Auer v. Robbins, 519 The government later informed the U.S. 452 (1997).4 Court that “the agency [was] in the process of issuing a memorandum that . . . 4 broadens its interpretation of when an We need not decide whether the AAO organization may qualify as a ‘bona fide adjudication in this case is best religious organization,’” and that it characterized as “formal” or “informal,” therefore desired to withdraw its argument since the outcome in terms of deference is that Camphill had not qualified for the the same. See Caruso v. Blockbuster-Sony special immigration visa on the ground Music Entertainment Ctr., 193 F.3d 730, that it was not a “church.” Appellee Letter 733 (3rd Cir. 1999); Scott H. Angstreich, Br. at 1. 5 We accept this concession, and Shoring Up Chevron: A Defense of Seminole Rock Deference to Agency Regulatory Interpretations, 34 U.C. Davis (2001) (agency’s informal interpretation of L. Rev. 49, 56 (2000) (“[A]n interpretation a statutory ambiguity does not merit of a regulation in a format lacking the Chevron deference). force of law warrants Chevron-style 5 deference, but such an interpretation of a See William R. Yates, U.S. Citizenship statute does not.”); Note, 114 Harv. L. and Immigration Services, Extension of Rev. 359, 377-78 (2000) (“The Auer Court the Special Immigrant Religious Worker . . . held that agencies can issue Program and Clarification of Tax Exempt authoritative interpretations of their own Status Requirements for R eligious ambiguous regulations outside [the Organizations (December 17, 2003), procedural] strictures [of the APA].”); cf. availa ble a t h t t p :/ / w w w . i l w . co m / U.S. v. Mead Corp., 533 U.S. 218, 227-29 lawyers/immigdaily/doj_news/2004,0113

6 therefore proceed under the assumption facilities, missionaries, that Camphill qualifies as a “religious religious translators, or organization.” religious broadcasters. This group does not include B. janitors, main tenance We next consider whether the AAO w orkers, clerks, f u n d decision can be affirmed on the ground raisers, or persons solely that the proposed position of houseparent involved in the solicitation is not a “religious occupation.” 6 This term of donations. is defined by regulation as follows: 8 C.F.R. § 204.5(m)(2) (emphasis added). Religious occupation means The AAO found that the “duties of the an activity which relates to position [of houseparent] involve the care a traditio nal re ligious of the mentally handicapped,” and that function. Exa mp les of “[s]uch duties are considered a wholly individuals in religious secular function, even if the facility is occupations include, but are operated by a charitable organization not limited to, liturgical founded on religious principles.” App. I at workers, religious 26. The AAO further explained that “[t]he i n s t r u c t o r s , r e l ig i o u s service interprets the pertinent regulations counselors, cantors, to require that such positions are catechists, workers in traditionally full-time salaried positions r e ligious hospitals o r requiring specific religious or theological r e l i g i o u s h e a l th c a re training,” and that Camphill had failed to show that the position of houseparent satisfied this definition. Id. On appeal, -religiouswker.pdf. Camphill argues that the INS erred in interpreting § 204.5(m)(2) in a manner that 6 Camphill originally argued that excluded the position in which Goetze was Goetze’s position also constituted a to serve. “religious vocation,” as that term is We agree with Camphill that the defined in 8 C.F.R. § 204.5(m)(2). The AAO improperly applied the regulation in AAO rejected that position, and Camphill this case. The characterization of Goetze’s does not appear to challenge that position as not “relat[ing] to a traditional determination on appeal. Aside from a religious function” suggests that the passing reference to the “religious conclusion was predetermined. The AAO vocation” term in its brief, Camphill’s first described what Goetze did in terms argument is centered entirely on the that excluded any mention of the religious meaning of the term “religious component of her duties—saying that her occupation.” See Appellant Br. at 23-28; job was to care for the mentally Appellant Reply Br. at 8-15.

7 handicapped—and then concluded that she “religious occupation” involve only was performing a secular function because religious functions, we believe that its its own characterization of what she was interpretation is inconsistent with the text doing was secular. The same approach of the regulation and other indications of could be used as a basis for concluding the agency’s intent and is accordingly not that most of the positions explicitly listed entitled to deference. Thomas Jefferson, in the regulation are secular. For example, 512 U.S. at 512. § 204.5(m)(2) mentions “religious Alternatively, if the AAO’s translators,” who might be described as decision is read as finding that the position performing the function of translation, a of houseparent involved only secular “secular” activity. Similarly, “religious functions, we do not find that conclusion counselors” perform the function of supported by substantial evidence of counseling troubled individuals, which record. Camphill consistently testified that could also be characterized as secular. Goetze’s position involved a number of Accordingly, we believe the AAO’s clearly religious responsibilities, including analytic approach is inconsistent with the “imbuing residents with the religious text of the regulation. values and practices of Camphill[;] We note that the regulation conducting house-based ac tivities, specifically excludes certain workers, such including practical chores, prayer, festival as “janitors” and “maintenance workers,” celebrations and Bible readings[;] who perform wholly secular functions, but instructing other staff in the practices and this does not mean that a person cannot Christian values of Camphill life[;] [and] qualify as having a “religious occupation” [t]eaching religious subjects and values to if the worker’s job includes both secular mentally retarded young adults.” App. I at and religious aspects. In this vein, we note 35. Moreover, the religious texts included that the commentary accompanying the in the administrative record, including promulgation of § 204.5(m)(2) provides transcripts from a series of lectures entitled that “[i]f [a] job has no religious “Curative Education,” App. II at 62-85, significance, then the fact that a person is appear to provide some support for a member of a religious denomination Camphill’s contention that even the working in a facility run by the prescribed manner of care for its mentally denomination would not by itself make handicapped residents involved religious that person a religious worker.” 56 Fed. aspects. The AAO did not analyze or Reg. 66965 (Dec. 27, 1991) (emphasis otherwise engage this evidence, but rather added). We take this language as stated perfunctorily that Goetze’s duties suggesting that a job may qualify under the are “wholly secular.” There is little or no regulation if it has some religious support in the record for that claim. significance. To the extent that the AAO Finally, we consider the AAO’s read § 204.5(m)(2) as requiring that a position that a “religious occupation” must

8 be a “traditionally full-time salaried shown that the position of houseparent is position[] requiring specific religious or traditionally a permanent salaried position theological training.” This interpretation or that the duties of the position require is similarly questionable. The requirement specific religious training.” App. I at 26. that the position be “salaried” appears to This is insufficient to constitute substantial be inconsistent with the list of religious evidence in support of the AAO’s occupations given in the regulation itself, conclusion. which includes positions—perhaps most We need not set forth here a notably “missionaries”—who do not definitive test regarding when a job may or always receive salaries. We further note may not be characterized as a “religious that in promulgating the final rules at occupation.” However, we think it clear issue, the agency explicitly stated that they that the AAO has failed to show why the had been “revised to account more clearly position offered by Camphill to Goetze in for uncompensated volunteers, whose this case does not qualify. Accordingly, services are engaged but who are not we cannot sustain the decision of the AAO technically employees.” 56 Fed. Reg. on this ground without further evidence or 66965 (Dec. 27, 1991) (emphasis added). explanation. With respect to the “full-time” and C. “religious or theological training” requirements, assuming for the sake of The other two reasons underlying argument that such requirements are the AAO’s denial of Camphill’s visa consistent with the regulation, we see no application had to do with purported evidence that the position offered by evidentiary deficiencies. Specifically, the Camphill would not qualify. Camphill AAO held that Camphill had not proven indicated to the agency that Goetze’s that Goetze had two years of continuous responsibilities required at least 80 hours experience in the relevant occupation, see of labor per week, see App. I at 35, and 8 C.F.R. § 204.5(m)(1), nor had it proven that she would be working “full-time,” that a “qualifying job offer” had been without “supplemental employment.” Id. tendered to Goetze, see id. § 204.5(m)(4). at 36. Camphill also submitted detailed It is true that Camphill did no more descriptions of its training process, see than submit a letter explaining (among App. II at 59-61, as well as extensive other things) that Goetze had been excerpts from its religious texts in employed by Camphill for four years, see response to the agency’s request for App. II at 35, and that she would continue training curriculum. See App. I at 32; to receive room, board, medical insurance, App. II at 62-146. Again, there is no etc., as compensation for her work, see suggestion in the AAO’s opinion that this App. II at 36. On the other hand, the AAO evidence was ever considered—only the decision does not explain in any bald assertion that Camphill had “not reasonable detail why this evidence was

9 insufficient. The AAO simply states that uncontradicted evidence. See Richard J. “supporting documentary evidence” Pierce, Jr., 2 Administrative Law Treatise should have been submitted, and cites § 11.2 at 791 (2002). For example, if the Matter of Treasure Craft of California, 14 AAO ruling was based on a determination I. & N. Dec. 190 (Reg. Comm. 1972), for that Camphill’s assertions were not the proposition that the petitioner in visa credible, then there should have been some proceedings bears the evidentiary burden sort of finding regarding credibility, either of proof. explicit or implicit. See Tieniber v. Heckler, 720 F.2d at 1254 (describing Of course, there is no doubt that “strict” and “lenient” approaches by Camphill bore the burden of proof in this courts); see also Choratch v. Finch, 438 case; again, the critical question is why the F.2d 342, 343 (3d Cir. 1971) (“We think it letter presented by Camphill was is not too much to require that an insufficient to sustain that burden. In this administrative decision that a claimant is respe ct, Treasure Craft is easily not eligible . . . be supported by explicit distinguished from this case. There, the findings of all facts that are essential to the petitioner went on record as declaring that conclusion of ineligibility.”). The AAO competent training in the pottery industry makes no effort to explain or suggest why was not available in Mexico. The it rejected Camphill’s detailed letter Regional Commissioner deciding the case explaining the nature of Goetze’s position. took administrative notice of the fact that Mexico had a thriving pottery trade, and Furthermore, Camphill notes that accordingly held that the assertions by the INS regulations place an obligation on the petitioner were insufficient to sustain the part of the INS to request additional burden of proof. Here, by contrast, there evidence if that which was already was no similar administrative notice submitted is deemed insufficient. See 8 opposing Camphill’s documentation to the C.F.R. § 103.2(b)(8) (“where there is no effect that Goetze did indeed undergo evidence of ineligibility, and initial significant religiou s training, was evidence or eligibility information is employed by Camphill for two years, and missing or the Service finds that the had been extended a job offer. evidence submitted either does not fully establish eligibility for the requested “ A n agency's rejection of benefit or raises underlying questions uncontradicted testimony can support a regarding eligibility, the Service shall finding of substantial evidence.” Tieniber request the missing initial evidence”) v. Heckler, 720 F.2d 1251, 1254 (11th Cir. (emphasis added).7 The INS does not 1983); see also NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). However, an agency is generally under at least a 7 For example, although the AAO minimal obligation to provide adequate mentions that Camphill might have reasons explaining why it has rejected submitted Goetze’s tax documents to show

10 provide any explanation, either in the AAO ruling or in its brief on appeal, as to why this regulation would be inapplicable in this case. Because the AAO’s rejection of the evidence regarding Goetze’s work experience and job offer does not appear to be supported by substantial evidence, we conclude that the AAO decision may not be sustained on these grounds without further evidence or explanation. IV. None of the arguments advanced by the AAO in support of the visa denial withstand scrutiny on appeal. The AAO clearly did not “consider[] all relevant [evidentiary] factors” in this case, Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985), nor did it properly interpret its regulation defining “religious occupation.” The “proper course” is therefore to “remand to the agency for additional investigation or explanation.” Id.

that she had been employed full-time by C a m p h i l l w i t h o u t e n g ag i n g in supplemental employment, see App. I at 27, it is clear that the initial request for additional evidence issued by the INS, while it demanded several items of information from Camphill, did not make any demand for tax documents. App. I at 32.