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Denied religious worker i 360 case calif district court decision appealed to 9th cir

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  • 1. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 1 of 16 Page ID #:570123 JS-645678 UNITED STATES DISTRICT COURT9 CENTRAL DISTRICT OF CALIFORNIA1011 SOL DEL VALLE CHRISTIAN SCHOOL ) NO. CV 10-1414 SJO (JEMx) and HILDA CIRA REYES, )12 ) Plaintiffs, )13 ) ORDER GRANTING DEFENDANTS MOTION ) TO DISMISS14 ) v. ) [Docket No. 10]15 ) UNITED STATES OF AMERICA; )16 ALEJANDRO MAYORKAS, Director of ) USCIS; and MARILYN P. WILES, )17 Director Nebraska Service Center, ) )18 ) )19 Defendants. ) )2021 This matter is before the Court on Defendants Motion to Dismiss pursuant to Rules 12(b)(6)22 and 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiffs filed an Opposition on June 18,23 2010, to which Defendants replied.24 The Court found this matter suitable for disposition without oral argument and vacated the25 hearing set for July 19, 2010. See Fed. R. Civ. P. 78(b). For the following reasons, Defendants26 Motion is GRANTED.27 //28 //
  • 2. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 2 of 16 Page ID #:5711 I. BACKGROUND2 A. Substantive Facts3 For purposes of the instant Motion, all facts set forth in Plaintiffs complaint are taken as4 true. On September 29, 2008, Plaintiff Sol Del Valle Christian School ("Sol"), a nonprofit5 corporation, filed an I-360 petition for a special immigrant religious worker visa on behalf of plaintiff6 Hilda Cira Reyes ("Reyes"), a religious teacher.1 (Compl. ¶¶ 1, 2.) At the time Sol filed the7 petition, the pre-amended version of the regulation at 8 C.F.R. § 204.5(m)(2), which interpreted8 8 U.S.C. § 1101(a)(27)(C), was in effect. The pre-amended version of 8 C.F.R. § 204.5(m)(2)9 defines "religious occupation" as follows:10 Religious occupation means an activity which relates to a traditional religious11 function. Examples of individuals in religious occupations include, but are not limited12 to, liturgical workers, religious instructors, religious counselors, cantors, catechists,13 workers in religious hospitals or religious health care facilities, missionaries, religious14 translators, or religious broadcasters. This group does not include janitors,15 maintenance workers, clerks, fund raisers, or persons solely involved in the16 solicitation of donations.17 8 C.F.R. § 204(m)(2) (2007).18 On November 26, 2008, the United States Citizenship and Immigration Services ("USCIS")19 amended the provisions of the regulation at 8 C.F.R. § 204.5(m)(2) issuing a new provision20 defining "religious occupation" as follows:21 (A) The duties must primarily relate to a traditional religious function and be22 recognized as a religious occupation within the denomination.23 (B) The duties must be primarily related to, and must clearly involve, inculcating or24 carrying out the religious creed and beliefs of the denomination.2526 127 An I-360 form refers to a Petition for Special Immigrant that an employer files on behalf of a religious worker in order to enable that non-citizen to receive an immigrant visa pursuant to28 I.N.A. § 203(b)(4), 8 U.S.C. § 1153(b)(4). 2
  • 3. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 3 of 16 Page ID #:5721 (C) The duties do not include positions that are primarily administrative or support2 such as janitors, maintenance workers, clerical employees, fund raisers, persons3 solely involved in the solicitation of donations, or similar positions, although limited4 administrative duties that are only incidental to religious functions are permissible.5 (D) Religious study or training for religious work does not constitute a religious6 occupation, but a religious worker may pursue study or training incident to status.7 8 C.F.R. § 204.5(m)(5) (2008).8 On February 13, 2009, the Director of the USCIS denied the I-360 visa petition because9 Reyes is an English and Spanish language teacher - a position that does not qualify as a "religious10 occupation" under 8 C.F.R. § 204.5(m)(5).2 (See Compl. ¶ 20.) USCIS based its decision on its11 review of the submissions submitted by Sol, including Reyess affidavit, in which she states that12 she "teaches grade school children appropriate methods imparting secular state approved13 curriculum standards, as well as Christian values and religious studies in both English and14 Spanish." (Notice of Decision, Ex. A.) In the Notice of Decision, the USCIS Director concluded15 that "the mere fact that an individual is a member of a religious denomination working in a facility16 run by that religious denomination does not establish that the job relates to a traditional religious17 function. Rather, the duties of the position must be directly related to the religious creed of the18 denomination, defined and recognized by the governing body of the denomination, and is19 traditionally a permanent, full-time, salaried occupation within the denomination." (Id.)20 On June 12, 2009, Sol appealed USCISs denial of Sols I-360 visa petition to the21 Administrative Appeals Office ("AAO"). (Compl. ¶ 22.) On January 22, 2010, the AAO determined22 that the USCIS properly denied Sols visa petition and affirmed the USCIS decision. (Compl. ¶23 26.)24252627 2 USCIS is an agency within the U.S. Department of Homeland Security that is responsible28 for the adjudication of immigrant visa petitions. 3
  • 4. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 4 of 16 Page ID #:5731 On November 12, 2009, Sol filed an I-485 adjustment of status application on behalf of2 Reyes.3 (Compl. ¶ 25.) On January 20, 2010, USCIS denied Reyess third I-485 application.3 (Compl. ¶ 25.) Sol filed a motion to reopen USCISs denial of Reyess I-485 application. (Compl.4 ¶ 25.) Following Plaintiffs filing of the complaint, on March 16, 2010, the Director of the USCIS5 Nebraska Service Center reopened USCISs determination of Reyess I-485 application and6 affirmed the USCISs denial of the application. (Mot. 7:14-16.)7 Plaintiffs allege that Defendants erred in failing to classify one of Sols teachers as a8 "special immigrant religious worker" pursuant to 8 U.S.C. § 1101(a)(27)(C) and denying Sols I-3609 visa petition. (See Compl. ¶¶ 30-38.) Plaintiffs further allege that the USCIS erred in denying10 Sols I-360 visa petition because the USCIS applied the "more restrictive" amended regulation at11 8 C.F.R. § 204.5(m), rather than the pre-amendment version of the regulation in effect on the date12 that Sol filed the petition. (Compl. ¶ 31.)13 B. Procedural History14 On February 25, 2010, Plaintiffs Sol and Reyes filed a complaint against Defendants United15 States of America; Alejandro Mayorkas ("Mayorkas"); Marilyn P. Wiles ("Wiles"); and Christina16 Poulos alleging claims for: (1) violation of the Religious Freedom Restoration Act pursuant to 4217 U.S.C. § 2000bb, et seq.; (2) violation of the First Amendment Free Exercise Clause; (3) violation18 of right to equal protection under the Fifth Amendment; (4) violation of right to due process under19 the Fifth Amendment; (5) violation of the Administrative Procedures Act ("APA"); and (6) violations20 of the Immigration and Nationality Act ("INA") pursuant to INA § 203(b)(4) and INA § 245(a).21 Plaintiffs seek declaratory relief requesting that the Court declare: (1) that USCISs22 regulation pursuant to 8 C.F.R. § 204.5(m) defining a professional religious occupation is an23 impermissible interpretation of 8 U.S.C. § 1107(a)(27)(C); (2) that Sols I-360 petition for special24 immigrant religious worker visa should be granted, or in the alternative, that USCIS allow Plaintiffs25 to supplement the petition with additional evidence; (3) that Reyes "not accrue any unlawful26 employment" under the INA § 245( c), 8 U.S.C. § 1225 and INA § 245(k), U.S.C. § 1225(k); and2728 3 An I-485 form is filed by a person seeking permanent resident status. 4
  • 5. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 5 of 16 Page ID #:5741 (4) that Reyes "not accrue any unlawful presence" for purposes of INA § 212(a)(9)(B). Plaintiffs2 also request relief in the form of an injunction and a writ of mandamus ordering USCIS to apply3 the pre-amendment version of the regulations interpreting 8 U.S.C. § 1107(a)(27)(C) to Sols4 special immigrant worker visa petition. Plaintiffs do not request relief for damages.5 On June 14, 2010, Defendants United States of America, Mayorkas, and Wiles (together6 "Defendants") filed the instant Motion to dismiss the complaint.7 II. LEGAL STANDARD8 A. Rule 12(b)(6)9 A complaint survives a motion to dismiss where it "contain[s] sufficient factual matter,10 accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.11 Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court12 properly dismisses a complaint on a Rule 12(b)(6) motion based upon the "lack of a cognizable13 legal theory or the absence of sufficient facts alleged under the cognizable legal theory." Balistreri14 v. Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir. 1990). When considering a 12(b)(6) motion15 to dismiss for failure to state a claim, a court must "accept as true all allegations of material fact16 and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 21317 F.3d 443, 447 (9th Cir. 2000). Although a pleading need not include "detailed factual allegations,"18 it must be "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 12919 S. Ct. at 1949. Conclusory allegations or allegations that are no more than legal conclusions "are20 not entitled to the assumption of truth." Iqbal, 129 S. Ct. at 1950. In other words, a pleading that21 merely offers "labels and conclusions," a "formulaic recitation of the elements," or "naked22 assertions" will not be sufficient. Id. at 1949 (internal citations and quotation marks omitted).23 "When there are well-pleaded factual allegations, a court should assume their veracity and24 then determine whether they plausibly give rise to an entitlement of relief" based on the relevant25 substantive standard. Iqbal, 129 S. Ct. at 1950. The plaintiffs must allege "plausible grounds to26 infer" that their claims rise "above the speculative level." Twombly, 544 U.S. at 555-56. However,27 the complaint need only state "enough facts to state a claim to relief that is plausible on its face."28 Id. at 570. A well-pleaded complaint may proceed even if it appears "that a recovery is very 5
  • 6. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 6 of 16 Page ID #:5751 remote and unlikely." Id. at 555 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).2 "Determining whether a complaint states a plausible claim for relief" is "a context-specific task that3 requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.4 Ct. at 1950.5 As a general rule, the court may not consider materials other than the facts alleged in the6 complaint when ruling on a motion to dismiss. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir.7 1996). The court may, however, consider materials outside of the complaint if the complaint8 references the materials, and their authenticity is not disputed. See Branch v. Tunnell, 14 F.3d9 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 30710 F.3d 1119 (9th Cir. 2002) (on a motion to dismiss, courts may properly review "documents whose11 contents are alleged in the complaint and whose authenticity no party questions, but which are not12 physically attached to the plaintiffs pleading").13 B. Rule 12(b)(1)14 Standing under Article III of the Constitution is a constitutional limitation on a courts subject15 matter jurisdiction and cannot be granted by statute. See Cetacean Cmty. v. Bush, 386 F.3d16 1169, 1174 (9th Cir. 2004).17 In order to establish standing to assert a claim, a plaintiff must do the following: (1)18 demonstrate an injury in fact, which is concrete, distinct and palpable, and actual or imminent; (2)19 establish a causal connection between the injury and the conduct complained of; and (3) show a20 substantial likelihood that the requested relief will remedy the alleged injury in fact. See21 McConnell v. Federal Election Comm’n, 540 U.S. 93, 225-26 (2003).22 Because standing relates to a federal court’s subject matter jurisdiction under Article III, it23 is properly raised in a motion to dismiss under Fed. R. Civ. P. 12(b)(1), not Rule 12(b)(6). White24 v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The Ninth Circuit has noted a distinction between25 facial and factual jurisdictional attacks under Rule 12(b)(1). White, 227 F.3d at 1242 ("Rule26 12(b)(1) jurisdictional attacks can be either facial or factual."). "Where the motion presents a facial27 jurisdictional attack - that is, where the motion is based solely on the allegations in the complaint -28 the court must accept these allegations as true. Where, however, the challenge is factual - where 6
  • 7. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 7 of 16 Page ID #:5761 it is based on extrinsic evidence, apart from the pleadings - the court may resolve factual disputes2 in order to determine whether it has jurisdiction." Natl Licensing Assn, LLC v. Inland Joseph Fruit3 Co., 361 F. Supp. 2d 1244, 1247 (E.D. Wash. 2004) (citing Roberts v. Corrothers, 812 F.2d 1173,4 1177 (9th Cir. 1987)). The court, however, may not resolve these disputes "if issues of jurisdiction5 and substance are intertwined, that is, if the jurisdictional question is dependent on the resolution6 of factual issues going to the merits." Id. (quoting Roberts, 812 F.2d at 1177).7 "It is the responsibility of the complainant clearly to allege facts demonstrating that he is a8 proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial9 powers." Warth v. Seldin, 422 U.S. 490, 518 (1975). "For the purposes of ruling on a motion to10 dismiss for want of standing, both the trial and the reviewing courts must accept as true all11 material allegations of the complaint, and must construe the complaint in favor of the complaining12 party." Id. at 501; Takhar v. Kessler, 76 F.3d 995, 1000 (9th Cir. 1996). "At the same time, it is13 within the trial courts power to allow or to require the plaintiff to supply, by amendment to the14 complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff’s15 standing. If, after this opportunity, the plaintiffs standing does not adequately appear from all16 materials of record, the complaint must be dismissed." Warth, 422 U.S. at 501-02.17 III. DISCUSSION18 A. Motion to Dismiss Pursuant to 12(b)(6)19 Defendants move to dismiss Plaintiffs claims on the ground that Plaintiffs fail to allege any20 facts that show that Reyes was eligible for a special immigration religious worker visa in its I-36021 petition to the USCIS. (See Mot. 3:11-14.)22 1. Claim One: Religious Freedom Restoration Act23 In Plaintiffs first claim, Plaintiffs allege that USCISs denial of Sols petition violated the24 Religious Freedom Restoration Act of 1993 ("RFRA"). (Compl. ¶ 30.)25 Under the RFRA, the government cannot "substantially burden a persons exercise of26 religion even if the burden results from a rule of general applicability," unless the government can27 show that the rule is in furtherance of a "compelling governmental interest" and is the "least28 restrictive means" of furthering that governmental interest. 42 U.S.C. § 2000bb-1. The Ninth 7
  • 8. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 8 of 16 Page ID #:5771 Circuit recognizes a "substantial burden on the exercise of religion only when individuals are2 forced to choose between following the tenets of their religion and receiving a governmental3 benefit or coerced to act contrary to their religious beliefs by the threat of civil or criminal4 sanctions." Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008).5 Here, Plaintiffs allegation is conclusory. Plaintiffs fail to allege any facts whatsoever to6 demonstrate that the government action at issue, namely USCISs decision to deny Sols I-3607 visa petition, substantially burdens the exercise of their religion in violation of the RFRA. Thus,8 Plaintiffs have failed to meet the pleading standard applicable on a motion to dismiss. See Iqbal,9 129 S. Ct. at 1949 (the pleading standard under Rule 8 of the Federal Rules of Civil Procedure10 demands more than "an unadorned, the-defendant-unlawfully-harmed-me accusation") (citing11 Twombly, 550 U.S. at 555). Accordingly, the Court dismisses Plaintiffs first claim for relief.12 2. Claim Two: First Amendment Free Exercise Clause13 In Plaintiffs second claim, Plaintiffs allege that Defendants denial of Sol’s I-360 petition14 violates Plaintiffs First Amendment rights to free exercise. (Compl. ¶ 30.)15 The First Amendment of the United States Constitution protects the "free exercise" of16 religion. U.S. CONST. Amend. I. In Sherbert v. Verner, the Supreme Court articulated the17 balancing test that has traditionally been utilized to analyze claims brought under the free exercise18 clause. 374 U.S. 398, 403 (1963). Under this test, government actions that substantially burden19 a religious practice must be justified by a compelling state interest and must be narrowly tailored20 to achieve that interest. Id. Under the test, the plaintiff must first establish that the government21 has placed a substantial burden on his or her free exercise of religion. Vernon v. City of Los22 Angeles, 27 F.3d 1385, 1393 (9th Cir. 1994).23 In Plaintiffs complaint, it is unclear how Plaintiffs intend to make out a claim for a violation24 of their right to the free practice of their religion. Plaintiffs merely allege a First Amendment25 violation (Compl. ¶ 30), but fail to allege any facts in support of their claim. There is no allegation26 that the conduct by Defendants placed any burden at all on their practice of religion. See Vernon,27 27 F.3d at 1393. As currently pled, Plaintiffs threadbare allegations fail to meet the pleading28 8
  • 9. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 9 of 16 Page ID #:5781 standard under Rule 8, and thus Plaintiffs fail to state a claim upon which relief may be granted.2 Iqbal, 129 S. Ct. at 1949. Accordingly, the Court dismisses Plaintiffs second claim for relief.3 3. Claim Three: Equal Protection4 Plaintiffs allege that Defendants have violated their rights to equal protection under the Fifth5 Amendment. (Compl. ¶¶ 31, 32.)6 Equal protection under the Fifth Amendment guarantees no substantive rights or liberties.7 Doe v. U.S., 419 F.3d 1058, 1062 (citing Harris v. McRae, 448 U.S. 297, 322 (1980)). Rather, it8 entrenches a right to be free from discrimination based on impermissible statutory classifications9 and other governmental action. Id. Where such classification is not predication on membership10 in a suspect or quasi-suspect class, the Constitution requires only that the classification rest on11 grounds reasonably related to the achievement of any legitimate governmental objective. Id.12 In their complaint, Plaintiffs again fail to plead enough facts to raise a right to relief above13 the speculative level. Plaintiffs fail to identify a class of similarly-situated persons who are being14 treated more favorably. Furthermore, Plaintiffs fail to allege that they are being treated differently15 from other aliens applying for the special immigrant religious worker visa. Without any other16 allegations of fact in support of their claim, Plaintiffs have failed to meet the pleading standard17 under Rule 8. Iqbal, 129 S. Ct. at 1949. Thus, Plaintiffs fail to state a claim upon which relief may18 be granted. Accordingly, the Court dismisses plaintiffs third claim for relief.19 4. Claim Four: Due Process20 In Plaintiffs fifth claim, Plaintiffs allege that Defendants violated their Fifth Amendment21 rights to due process. (Compl. ¶¶ 31,32,33.) Plaintiffs allege that the USCIS’s denial of Sols I-22 360 visa petition and the AAO’s denial on appeal, based on an application of the amended23 regulation at 8 C.F.R. § 204.5(m), was a violation of their due process rights. (Compl. ¶¶ 31, 33.)24 Plaintiffs allege that they were not afforded an opportunity to submit additional evidence in light25 of the recent amendments to the regulation. (Compl. ¶ 26.)26 The Fifth Amendment prohibits the United States from depriving persons of "life, liberty, or27 property without due process of law." U.S. CONST. amend. V. As a threshold requirement to any28 due process claim, the plaintiffs must show that they have a protected property or liberty interest. 9
  • 10. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 10 of 16 Page ID #:5791 Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-71 (1972). To establish a liberty2 or property interest, the plaintiff must demonstrate that the Constitution or a federal or state statute3 grants him a protected right. See Kwai Fun Wong v. United States, 373 F.3d 952, 967-68 (9th Cir.4 2004).5 In their complaint, Plaintiffs fail to allege what Reyess protected interest was or how it was6 deprived by the USCISs action. Because aliens do not have a liberty interest upon application7 or approval of a visa petition at the discretion of the agency, Plaintiffs cannot allege that Reyes8 had a protected interest in the I-360 application for visa. See Wright v. INS, 379 F.2d 275, 2769 (6th Cir. 1967); Tongatapu Woodcraft Hawaii, Ltd., 736 F.2d at 1308 ("[A] visa petition is not the10 same thing as a visa. An approved visa petition is merely a preliminary step in the visa application11 process. . . .It does not guarantee that a visa will be issued, nor does it grant the alien any right12 to remain in the United States.")13 Even if Plaintiffs had protected interests, they received notice and an opportunity to be14 heard "at a meaningful time and in a meaningful manner." See Matthews v. Eldridge, 424 U.S.15 319, 333 (1976). Plaintiffs were able to submit evidence with the I-360 petition to the USCIS and16 this evidence was duly considered as demonstrated in the USCIS’s Notice of Decision. Plaintiffs17 also had an opportunity to submit additional evidence on appeal of the decision to the AAO, and18 the AAOs decision was accompanied by an explanation of its reasoning for the denial. Plaintiffs19 have failed to meet the pleading standards under Rule 8, and thus, Plaintiffs fail to state a claim20 for relief. Iqbal, 129 S. Ct. at 1949. Accordingly, the Court dismisses Plaintiffs’ fourth claim for21 relief.22 5. Claim Five: APA23 Plaintiffs claim that the USCIS abused its discretion in denying Plaintiffs petition and seek24 judicial review of the denial under the APA. Plaintiffs allege that the USCIS erred in applying the25 amended regulation at 8 C.F.R. § 204(m) because it "is an impermissible interpretation" of the26 statute under 8 U.S.C. § 1101(a)(27)(C). (Compl. ¶ 34.)27 The APA does not provide district courts with jurisdiction to entertain actions for judicial28 review; rather it establishes a cause of action for declaratory or injunctive relief that can be 10
  • 11. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 11 of 16 Page ID #:5801 maintained by any person injured by a federal "agency action" and thus gives rise to federal2 question jurisdiction under 28 U.S.C. § 1331. See Idaho Watersheds Proj. v. Hahn, 307 F.3d 815,3 830 (9th Cir. 2002). The APA authorizes suit by "[a] person suffering legal wrong because of4 agency action, or adversely affected or aggrieved by agency action within the meaning of a5 relevant statute." 5 U.S.C. § 702. "[A]gency action" is defined in § 551(13) to include "the whole6 or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or7 failure to act." 5 U.S.C. § 551(13). Under the APA, a reviewing court may hold unlawful and set8 aside agency action if the action is found to be "arbitrary, capricious, an abuse of discretion, or9 otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A); Mt. St. Helens Mining and10 Recovery Ltd. Partnership v. U.S., 384 F.3d 721, 727 (9th Cir. 2004). When a private party11 challenges a federal agencys interpretation and application of a statute, the reviewing court uses12 a two-step inquiry. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-4313 (1984).14 Agencies are afforded Chevron deference in interpreting the statutes they are charged with15 enforcing. Az. State Bd. for Charter Schs. v. U.S. Dept of Educ., 464 F.3d 1003, 1006-07 (9th Cir.16 2006). Therefore, the court must "look first to the statutory text to see whether Congress has17 spoken directly to the question at hand." Id. at 1006 (internal quotation marks and citation18 omitted). If Congress has spoken clearly, "that is the end of the matter," and the plain language19 controls." Id. On the other hand, if the statutory text is ambiguous, the court must "defer to the20 agencys interpretation if it is based on a permissible construction of the statute." Id. at 1006-0721 (internal quotation marks and citation omitted).22 The interpretation at issue here is a regulation. "The fair measure of deference to an23 agency administering its own statute has been understood to vary with circumstances, and courts24 have looked to the degree of the agencys care, its consistency, formality, and relative expertness,25 and to the persuasiveness of the agencys position." Id. at 1007 (quoting United States v. Mead26 Corp., 533 U.S. 218, 228 (2001) (footnotes omitted)). "To the extent an agency interpret[ed] its27 own regulation, even if through an informal process, its interpretation of an ambiguous regulation28 is controlling . . . unless plainly erroneous or inconsistent with the regulation." Love Korean 11
  • 12. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 12 of 16 Page ID #:5811 Church v. Chertoff, 549 F.3d 749, 754 (9th Cir. 2008) (quoting Bassiri v. Xerox Corp., 463 F.3d2 927, 930 (9th Cir. 2006)). Even where an agency interpretation is not entitled to Chevron3 deference, a court will defer to it to the extent it has the "power to persuade." Mead, 533 U.S. at4 234-35 (internal citations omitted); cf. Padash v. I.N.S., 458 F.3d 1161, 1168 n.6 (9th Cir. 2004).5 This Court first addresses whether the position of grade school teacher as defined in Sols6 I-360 petition and supporting materials qualifies as a "religious occupation" within the meaning of7 the statute under 8 U.S.C. § 1101(a)(27)(C). The statutory provisions under 8 U.S.C. §8 1101(a)(27)(C) defines a "special immigrant" as that classification pertains to ministers and other9 religious workers, as follows:10 [A]n immigrant, and the immigrants spouse and children if accompanying or11 following to join the immigrant, who–12 (i) for at least 2 years immediately preceding the time of application for admission,13 has been a member of a religious denomination having a bona fide nonprofit,14 religious organization in the United States;15 (ii) seeks to enter the United States–16 (I) solely for the purpose of carrying on the vocation of a minister of that religious17 denomination,18 (II) before October 1, 2008, in order to work for the organization at the request of the19 organization in a professional capacity in a religious vocation or occupation, or20 (III) before October 1, 2008, in order to work for the organization (or for a bona fide21 organization which is affiliated with the religious denomination and is exempt from22 taxation as an organization described in section 501( c)(3) of Title 26) at the request23 of the organization in a religious vocation or occupation; and,24 (iii) has been carrying on such vocation, professional work, or other work25 continuously for at least the 2-year period described in clause (i)26 8 U.S.C. § 1101(a)(27)(C). The associated regulation as amended in 2008 and codified at 8 §27 C.F.R. § 204.5(m)(5), defines the key term "religious occupation" as follows:28 12
  • 13. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 13 of 16 Page ID #:5821 (A) The duties must primarily relate to a traditional religious function and be2 recognized as a religious occupation within the denomination.3 (B) The duties must be primarily related to, and must clearly involve, inculcating or4 carrying out the religious creed and beliefs of the denomination.5 (C) The duties do not include positions that are primarily administrative or support6 such as janitors, maintenance workers, clerical employees, fund raisers, persons7 solely involved in the solicitation of donations, or similar positions, although limited8 administrative duties that are only incidental to religious functions are permissible.9 (D) Religious study or training for religious work does not constitute a religious10 occupation, but a religious worker may pursue study or training incident to status.11 8 C.F.R. § 204(m)(5).12 The amended regulation at 8 C.F.R. § 204.5(m)(5) adopts the term "traditional religious13 function" to define the type of employment that may qualify as a "religious occupation" under the14 statute. However, the regulation does not shed light on what constitutes a "traditional religious15 function" and provides only a few examples of qualifying and non-qualifying occupations. The16 Ninth Circuit has recognized a threshold ambiguity as to the correct interpretation of the term. See17 Love Korean Church, 549 F.3d at 757. Thus, the Court next turns to the agencys interpretation18 of the term.19 In its Notice of Decision, the USCIS focused on the evidence that was submitted by the20 petitioner Sol and determined that "the entire description of [Reyess] duties did not reflect any21 responsibilities that resemble religious teachings incorporated in her daily academic routine."22 (Notice of Decision, Ex. A., 3.) The USCIS determined that "the nature of the activity to be23 performed must embody the tenets of the particular religion" and specifically, "constitute[ ] the24 practice of the religion." (Id.) The USCIS reasoned that the mere fact that an individual member25 of a religious denomination works in a facility run by that religious denomination does not establish26 that the job relates to a traditional religious function. (Id.) The USCIS noted that the evidence that27 Reyess primary duties as a grade school teacher were to teach secular subjects such as English28 13
  • 14. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 14 of 16 Page ID #:5831 and Spanish was insufficient to establish that Reyes’s duties primarily relate to a traditional2 religious function. (Id.)3 The AAO dismissed Sols appeal based on the evidence of Sols description of Reyess4 duties submitted in the initial USCIS determination and on additional evidence submitted on5 appeal to the AAO. The AAO articulated several grounds for affirming USCISs denial. First, the6 AAO noted that Reyess primary duties as a grade school teacher were to teach secular subjects7 such as English and Spanish, and that such duties "do not have a full religious significance8 embody[ing] the tenets of that particular religious denomination." (AAO Decision, Ex. B., 4.) The9 AAO also noted that Sols stated purpose in its articles of incorporation was to "promote the10 general welfare of developmentally disabled children, adolescents and adults." (Id. at 5.) The AAO11 concluded that the additional evidence that Reyes "leads her students in daily prayers" and12 "weekly chapels" is insufficient to establish that her duties primarily relate to a traditional religious13 function. (See AAO Decision at 4.)14 Second, the AAO found that dismissal was warranted on the ground that Sol had failed to15 establish that it is a bona fide nonprofit religious organization in accordance with 8 C.F.R. §16 204.5(m)(8). Sol failed to submit documentation to establish that it is covered under the group17 exemption granted to the Christian Reformed Church or that it has been granted an individual tax-18 exempt status as a religious organization under the Internal Revenue Code. (AAO Decision, Ex.19 B., 6-7.)20 Finally, the AAO also found that dismissal was also warranted on the ground that Sol failed21 to submit a signed attestation in accordance with 8 C.F.R. § 204.5(m)(7). (AAO Decision , Ex. B.,22 7.)23 The USCISs denial of Sols I-360 petition and AAOs dismissal of Sols appeal rests on an24 interpretation of 8 C.F.R. § 204.5(m)(5) that is consistent with the regulation and on factual25 findings based on the evidence submitted by Sol. The regulation under 8 C.F.R. § 204(m)(5) is26 ambiguous as to what constitutes a "religious occupation" under the statute. Under Chevron,27 which gives deference to the agencys interpretation of immigration laws, the Court finds that the28 USCISs and the AAOs decision was based on a reasonable and permissible construction of the 14
  • 15. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 15 of 16 Page ID #:5841 statute. Therefore, the Court gives deference to the agencys decision in this matter. Because2 Plaintiffs cannot state a claim under the APA, the Court dismisses Plaintiffs fifth claim for relief.3 6. Claim Six: Violation of the INA4 Plaintiffs allege that the USCIS violated INA § 203(b)(4), however the complaint fails to5 state a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal6 theory. Balistreri v. Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir. 1990). Thus, the Court7 dismisses Plaintiffs sixth claim for relief.8 B. Motion to Dismiss Pursuant to 12(b)(1)9 Plaintiffs allege that the USCIS violated the Immigration and Nationality Act ("INA")10 pursuant to § 245(a) for failing to approve of Reyess I-485 adjustment of status application.11 (Compl. ¶ 37.)12 Defendants contend that Plaintiffs lack standing to raise a claim challenging the USCISs13 decision to deny Reyess I-485 adjustment of status application. (Mot. 12:2-4.)14 The Court concludes that Plaintiffs have failed to establish that they have standing to raise15 a claim for relief regarding USCISs decision to deny Reyess I-485 adjustment of status. Neither16 Sol nor Reyes has suffered an "actual or imminent" injury sufficient to confer standing in this action17 and Plaintiffs fail to allege any injuries. Furthermore, Plaintiffs cannot allege that Reyes was18 eligible for adjustment of status when Plaintiffs filed the I-485 petition, because the USCIS19 previously denied Reyess special immigrant religious worker visa petition, the AAO affirmed the20 USCISs denial on appeal, and Reyes did not hold an immigrant visa that was immediately21 available to her at the time the I-485 visa application was filed. See 8 U.S.C. § 1255(a)(2) (an22 alien may apply for adjustment of status if "an immigrant visa is immediately available to him at23 the time his application is filed").24 Thus, the Court dismisses Plaintiffs claims challenging USCISs decision to deny Reyess25 I-485 adjustment of status application for lack of jurisdiction WITH PREJUDICE.26 In sum, the Court concludes that the USCISs decision regarding Sols I-360 visa petition27 was based on a permissible construction of the statute under 8 C.F.R. § 204.5(m) and there is28 thus, no basis on which this Court could grant the relief requested. 15
  • 16. Case 2:10-cv-01414-SJO-JEM Document 24 Filed 10/06/10 Page 16 of 16 Page ID #:5851 IV. CONCLUSION2 In accordance with the foregoing, the Court hereby GRANTS Defendants Motion to3 Dismiss pursuant to 12(b)(6) and 12(b)(1). Because Plaintiffs can not comply with the Federal4 Rules of Civil Procedure, the Court dismisses Plaintiffs claims one through six as it relates to5 Plaintiffs I-360 petition WITH PREJUDICE. The Court also dismisses Plaintiffs claims challenging6 USCISs decision to deny Reyess adjustment of status WITH PREJUDICE.7 IT IS SO ORDERED.89 Dated: October 6, 2010.1011 S. JAMES OTERO12 UNITED STATES DISTRICT JUDGE13141516171819202122232425262728 16