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Society of the Divine Word Synopsis 6-28-2012

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Special Immigrant Religious Worker (Minister) Visa Victory. Both sides could have handled their parts better.

Special Immigrant Religious Worker (Minister) Visa Victory. Both sides could have handled their parts better.

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  • 1. SOCIETY OF THE DIVINE WORD, Chicago Province (“SVD”) and Rev.Zhongxue (“Paul”) CHEN v. NAPOLITANO et. al.According to the Compliant in this case filed on October 10, 2011: “USCIS denied the petition on September 17, 2011 on the ground that Rev. Chen did not have the required two years of experience in a religious vocation because he was not authorized to accept employment in the United States until January 19, 2011.”However, this particular denial has an Administrative Appeal available. Is one tobelieve that AAO issued a decision on the appeal in a mere three weeks after theinitial denial decision by the Service Center Director? While, if the facts presentedin the Complaint are true and correct and no substantive material fact has beenwithheld, I can see the merit in the appeal, but it appears premature and destinedfor a quick dismissal for lack of subject jurisdiction and ripeness. They dragged it out until AAO decided the case.8 CFR §§ 204.5 Petitions for employment-based immigrants. The I-360 was granted. The position of INS Associate Commissioner for Examinations no longer exists. That authority was(n) Closing action — exercised by the AAU which was created in 1983. In 1994, the AAU (Administrative Appeals Unit) became the Administrative Appeals Office (AAO) under a Director, now a Chief.(2) Denial. The denial of a petition for classification under section 203(b)(1),203(b)(2), 203(b)(3), or 203(b)(4) of the Act (as it relates to special immigrantsunder section 101(a)(27)(C) of the Act) shall be appealable to the AssociateCommissioner for Examinations. The petitioner shall be informed in plainlanguage of the reasons for denial and of his or her right to appeal.Sure enough eventually the lawsuit was “Voluntarily Dismissed” on May 24, 2012,in response to a Joint Motion to Dismiss filed on May 18, 2012, after the I-360petition was granted on May 14, 2012.
  • 2. Case: 1:11-cv-07103 Document #: 28 Filed: 05/18/12 Page 1 of 2 PageID #:313 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISIONSOCIETY OF THE DIVINE WORD, )Chicago Province (“SVD”); and )Rev. Zhongxue (“Paul”) CHEN ) ) Plaintiffs, ) No.: 1:11-cv-7103 ) v. ) )Janet NAPOLITANO, Secretary, U.S. )Dep’t. of Homeland Security; ) Honorable William T. HartAlejandro MAYORKAS, Director, )United States Citizenship and Immigration )Services (“USCIS”); and, ) Date of Presentment: May 24, 2012Rosemary LANGLEY MELVILLE, )Director, USCIS California Service Center ) ) Defendants. )____________________________________) JOINT STIPULATION TO DISMISS UNDER FED. R. CIV. P. 41(a)(1)(A)(ii) Under Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiffs (collectively referred toas “SVD”) and Defendants (collectively referred to as “USCIS”) hereby stipulate that: 1. This case seeks review over USCIS’s denial of immigration Form I-360 for Special Immigrant Religious Worker (Minister) filed by SVD. 2. On May 14, 2012, USCIS approved SVD’s Form I-360. 3. As a result of such approval, this case, including SVD’s Motion for Summary Judgment (ECF No. 18) is now moot and should be dismissed, with prejudice, and 4. SVD will not seek attorney’s fees or costs under the Equal Access to Justice Act, or any other provision of law, associated with this case. Each party will bear its own fees and costs.
  • 3. Case: 1:11-cv-07103 Document #: 28 Filed: 05/18/12 Page 2 of 2 PageID #:314DATED: May 18, 2012 STUART F. DELERY Acting Assistant Attorney General Civil Division DAVID J. KLINE Director, District Court Section Office of Immigration Litigation ELIZABETH J. STEVENS Assistant Director, District Court Section Office of Immigration Litigation/s/ Scott D. Pollock BY: /s/ Aram A. GavoorSCOTT D. POLLOCK ARAM A. GAVOORScott D. Pollock & Associates, P.C. Trial Attorney, District Court Section105 W. Madison, Suite 2200 Office of Immigration LitigationChicago, IL 60602 U.S. Department of Justice, Civil DivisionPhone: (312) 444-1940 P.O. Box 868, Ben Franklin StationFax: (312) 444-1950 Washington, D.C. 20044Email: spollock@lawfirm1.com Phone: (202) 305-8014 Fax: (202) 616-8962Attorney for Plaintiffs Email: Aram.Gavoor@usdoj.gov Attorneys for Defendants
  • 4. Case: 1:11-cv-07103 Document #: 1 Filed: 10/07/11 Page 1 of 8 PageID #:1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION )SOCIETY OF THE DIVINE WORD, )Chicago Province (“SVD”) and Rev. )Zhongxue (“Paul”) CHEN ) ) Plaintiffs, ) ) v. ) No. )Janet NAPOLITANO, Secretary, U.S. )Department of Homeland Security; )Alejandro MAYORKAS, Director, )United States Citizenship and )Immigration Services (“USCIS”); and )Christina POULOS, Director, )California Service Center ) ) Defendants. ) COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Nature of the Action 1. This action complains that the defendants acted unlawfully when they denied a Form I-360 petition filed by SVD, a Roman Catholic religious order, to classify one of its missionary priests, Rev. Zhongxue (Paul) Chen, as a special immigrant religious worker. 2. Plaintiffs request declaratory and injunctive relief, finding that defendants acted unlawfully when they denied SVD’s petition to classify Rev. Chen as a special immigrant religious worker.
  • 5. Case: 1:11-cv-07103 Document #: 1 Filed: 10/07/11 Page 2 of 8 PageID #:2 Jurisdiction and Venue3. The Court has subject matter jurisdiction in this action pursuant to the following statutory provisions: 28 U.S.C. §§ 1331 (federal question jurisdiction); 1346(a)(2) (United States as a defendant); and 28 U.S.C. § 2201 (declaratory judgments).4. This action arises under various federal laws: the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 (judicial review to declare agency actions unlawful and order relief); the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27)(C); and U.S. Citizenship and Immigration Services regulations 8 C.F.R. § 204.5(m)(1)-(4).5. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e). The defendants are officers or employees of the United States or agencies of the United States acting in their official capacity. The Parties6. Plaintiff SOCIETY OF THE DIVINE WORD, Chicago Province (or “SVD” as it is known from its name in Latin, Societas Verbi Divini) is a Roman Catholic order of international missionary priests and religious brothers based in Techny, Illinois. The SVD’s Chicago Province provides priests to serve at Roman Catholic parishes and other locations throughout Illinois; other states east of the Mississippi River, including Wisconsin, Iowa, Pennsylvania, and New Jersey; Canada; and the Caribbean Islands. As an international religious order, the SVD is a regular and frequent user of the defendants’ visa services 2
  • 6. Case: 1:11-cv-07103 Document #: 1 Filed: 10/07/11 Page 3 of 8 PageID #:3 in order to facilitate travel and admission of its foreign-born members for purposes of religious work, study, visits, and observances in the United States.7. Plaintiff Rev. Zhongxue CHEN, SVD, is a 40 year old national and citizen of the Peoples Republic of China. He was ordained as a Roman Catholic priest in May 2008 and has been a professed member in vows with the SVD since March 2002.8. Defendant Janet NAPOLITANO is sued in her official capacity as the Secretary of the Department of Homeland Security. The Secretary of Homeland Security is responsible for the administration and enforcement of laws related to the immigration of foreign nationals.9. Defendant Alejandro MAYORKAS is sued in his official capacity as the Director of the U.S. Citizenship and Immigration Services (USCIS). He is responsible for the administration of USCIS, the agency under the Department of Homeland Security that adjudicates petitions for immigrant visas to the United States.10. Defendant Christina POULOS is sued in her official capacity as the USCIS’s Director of the California Service Center (CSC), located in Laguna Niguel, California. She is responsible for the administration of the CSC, the USCIS service center that adjudicates petitions for special immigrant religious workers, including the one denied by the defendants in this case. Statement of the Facts11. Rev. Zhongxue Chen, SVD, also known by his religious name of Paul, entered the United States on August 20, 2004 as an F-1 nonimmigrant student. On 3
  • 7. Case: 1:11-cv-07103 Document #: 1 Filed: 10/07/11 Page 4 of 8 PageID #:4 May 17, 2008, he was awarded a Master of Divinity degree from Catholic Theological Union (CTU) in Chicago. As a member of the SVD, he was ordained as a Roman Catholic priest on May 24, 2008.12. The SVD originally intended for Rev. Chen to serve in Hong Kong, where his knowledge of the Chinese language could be well utilized. But China failed to timely renew Rev. Chen’s passport prior to the expiration of his F-1 status, despite his applying for the passport five months in advance of the end of his studies in the U.S.13. On July 8, 2008, Rev. Chen timely applied to change his nonimmigrant status from F-1 student to that of a B-1/B-2 nonimmigrant visitor, by filing a Form I- 539, Application to Change Nonimmigrant Status and documents in support of his request, with the USCIS’s California Service Center (CSC). The CSC initially denied the request. But after extensive and protracted litigation, USCIS granted Rev. Chen’s request to change his status on January 3, 2011. As part of a settlement agreement with USCIS, Rev. Chen and SVD agreed that SVD would promptly petition for R-1 status under 8 U.S.C. § 1101(a)(15)(R) for Rev. Chen after USCIS granted him B-1/B-2 status.14. Rev. Chen and SVD complied with this agreement by petitioning for Rev. Chen’s change to R-1 status on January 18, 2011. USCIS granted Rev. Chen a change to R-1 status the following day.15. Between the expiration of Rev. Chen’s F-1 status and the grant of his R-1 status, Rev. Chen remained committed to living a religious life as an ordained priest in the SVD’s formation house. During this period, he carried on his 4
  • 8. Case: 1:11-cv-07103 Document #: 1 Filed: 10/07/11 Page 5 of 8 PageID #:5 vocation through participation in religious services within the SVD. He regularly celebrated Mass and the other sacraments as required by Canon Law and the SVD Constitutions, engaged in personal devotions, performed his share of the household chores at the formation house, audited post-graduate classes in religion at the nearby Catholic Theological Union, and studied in Loyola University’s Pastoral Counseling program. 16. Rev. Chen did not engage in unauthorized employment at any time. Since being granted R-1 status, Rev. Chen has been serving as a priest at the St. Anselm’s and St. Elizabeth’s parishes in Chicago, Illinois. 17. On May 4, 2011, SVD filed an I-360 petition to classify Rev. Chen as a special immigrant religious worker. 18. SVD included evidence with this petition of Rev. Chen’s ordination nearly three years earlier and of the activities he engaged in to carry on his vocation since that time. 19. USCIS denied the petition on September 17, 2011 on the ground that Rev. Chen did not have the required two years of experience in a religious vocation because he was not authorized to accept employment in the United States until January 19, 2011.Statutory Scheme to Provide Special Immigrant Status to Members of a Religious Vocation 20. The Immigration and Nationality Act provides that a religious organization may file an immigrant visa petition for certain people who have been 5
  • 9. Case: 1:11-cv-07103 Document #: 1 Filed: 10/07/11 Page 6 of 8 PageID #:6 members of its denomination for at least two years. 8 U.S.C. §§ 1101(a)(27)(C), 1153(b)(4), 1154(a)(1)(G)(i).21. To qualify, the person must be coming to the United States for one of the following three purposes: 1) to carry on the vocation of a minister of that religious denomination; 2) to serve with the religious denomination in a religious vocation or religious occupation in a professional capacity; or 3) to serve with the religious denomination in a religious vocation or religious occupation in a non-professional capacity. Id., § 1101(a)(27)(C)(ii).22. In addition, the person must have been carrying on their religious vocation or religious work continuously for at least two years immediately preceding their application for admission. Id., § 1101(a)(27)(C)(iii). USCIS’s regulations state that a person may not use unauthorized employment in the United States to meet the latter requirement. 8 C.F.R. § 204.5(m)(4). But someone carrying on a religious vocation has always been able to meet this requirement through activities other than employment in a strictly religious occupation; such as study, religious contemplation, or non-religious work not inconsistent with the person’s religious vocation. See Matter of Z-, 5 I & N Dec. 700, 703 (BIA 1954); 9 Foreign Affairs Manual (FAM) 42.32(d)(1)N6; U.S. State Department cable, Guidelines for Adjudicating R-1 Nonimmigrant Visas, 3 (February 2001), Posted on AILA InfoNet at Doc. No. 01022690. Causes of Action I. Administrative Procedure Act: USCIS acted contrary to law in concluding that someone carrying on a religious vocation for two years in the United States must have had employment authorization. 6
  • 10. Case: 1:11-cv-07103 Document #: 1 Filed: 10/07/11 Page 7 of 8 PageID #:723. This claim is brought against Defendants Napolitano, Mayorkas, and Poulos in their official capacities as persons who are responsible for processing SVD’s petition to classify Rev. Chen as a special immigrant religious worker.24. The applicable law does not require people who have taken vows in a religious vocation to show two years of employment in a religious occupation to qualify for classification as special immigrant religious workers.25. Rather they need only show that they have carried on their religious vocation by engaging in activities consistent with that vocation for the two-year period prior to the filing of the visa petition.26. Rev. Chen has been carrying on his religious vocation at least since his ordination as a priest in May 2008, more than two years before SVD filed a petition to classify him as a special immigrant religious worker in May 2011.27. USCIS’s conclusion that Rev. Chen cannot be classified as a special immigrant religious worker because he cannot show two years of authorized employment in the United States is therefore contrary to law and violates the Yes, it was incorrect BUT there was an Administrative Administrative Procedure Act. Appeal available to AAO that needed exhaustion! II. Administrative Procedure Act: USCIS’s regulation purporting to require that people carrying on a religious vocation in the United States have been employment authorized is ultra vires.28. The INA does not require people who have taken vows in a religious vocation to be engaged in employment for two years to qualify for special immigrant religious worker status. It requires only that they have been carrying on their religious vocation for two years. 7
  • 11. Case: 1:11-cv-07103 Document #: 1 Filed: 10/07/11 Page 8 of 8 PageID #:8 29. To the extent USCIS’s regulation, 8 C.F.R. 204.5(m)(4) requires members of a religious order who are in a religious vocation to show two years of lawful employment to qualify for special immigrant religious worker status, it exceeds USCIS’s regulatory authority and is invalid. Prayer for Relief WHEREFORE, plaintiffs Society of the Divine Word and Rev. Zhongxue Chen pray that the Court: 1. Declare the defendants’ actions to be unlawful and in violation of the Administrative Procedure Act and the Immigration and Nationality Act; 2. Order the defendants to take such corrective action as may be appropriate, including but not limited to, granting SVD’s petition to classify Rev. Chen as a special immigrant religious worker; 3. Grant such further relief, including injunctive relief, attorney fees, and costs of this action, as may be just, lawful, and equitable. Respectfully submitted, s/Scott D. Pollock________ Scott D. Pollock Attorney for the PlaintiffsScott D. PollockScott D. Pollock & Associates, P.C.105 West Madison Street, Suite 2200Chicago, Illinois 60602Telephone: (312) 444-1940Fax: (312) 444-1950spollock@lawfirm1.com 8
  • 12. Case: 09-56790 01/28/2011 ID: 7628446 DktEntry: 33 Page: 1 of 1 FILED UNITED STATES COURT OF APPEALS JAN 28 2011 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALSSOCIETY OF THE DIVINE WORD No. 09-56790CHICAGO PROVINCE, SVD andZHONGXUE PAUL CHEN, D.C. No. 2:09-cv-02944-GAF- VBK Plaintiffs - Appellants, Central District of California, Los Angeles v. They rather ridiculously had TWO cases going in TWO U.S. jurisdictionsJANET NAPOLITANO, Secretary, ORDER and that was ONE too many.Department of Homeland Security; et al., ______________________________ It all worked out in the end. I really Defendants - Appellees. want to see the AAO decision (or was it decided as a MOTION at CSC?).Before: SCHROEDER and TALLMAN, Circuit Judges, and JARVEY, DistrictJudge.* Pursuant to the stipulation of the parties, Appellants’ Motion to Dismiss isGRANTED. This appeal is dismissed with prejudice. Fed. R. App. P. 42(b). Eachparty shall bear its own costs on appeal. The mandate shall issue forthwith. * The Honorable John A. Jarvey, District Judge for the U.S. DistrictCourt for Southern Iowa, Davenport, sitting by designation.