Ukrainian Church I-360 CaseThis document contains:1.) CSC’s denial2.) AAO’s dismissal3.) Complaint filed in District Court...
Case 2:13-cv-00041-HB Document 1-6 Filed 01/04/13 Page 9 of 62                                                            ...
Case 2:13-cv-00041-HB Document 1-6 Filed 01/04/13 Page 10 of 62WAC-09-238-50528Page 2The petitioner has flied Form I-360, ...
Case 2:13-cv-00041-HB Document 1-6 Filed 01/04/13 Page 11 of 62WAC-09-238-50528Page 3        facilities, an interview with...
Case 2:13-cv-00041-HB Document 1-6 Filed 01/04/13 Page 12 of 62WAC-09-238-50528Page 4       office. She made a phone call ...
Case 2:13-cv-00041-HB Document 1-6 Filed 01/04/13 Page 13 of 62WAC-09-238-50528PageSBased on the information in Pastor Ade...
Case 2:13-cv-00041-HB Document 1-7 Filed 01/04/13 Page 36 of 38                                                           ...
Case 2:13-cv-00041-HB Document 1-7 Filed 01/04/13 Page 37 of 38A8i 705 SIQSnJE;;cuSSION: The Director, California Service ...
Case 2:13-cv-00041-HB Document 1-7 Filed 01/04/13 Page 38 of 38A11J ~105 :&05Pagr: JThr~ ;:;etitioner has not specific.aHy...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 1 of 63  ~JS     44 (Rev. 12/07)                                     ...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 2 of 63                                              UNITED STATES DI...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 3 of 63                              IN THE UNITED STATES DISTRICT CO...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 4 of 63                  IN THE UNITED STATES FEDERAL COURT          ...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 5 of 63subsequent 1-360 Petition, Case #WAC-12-903-45929, on behalf o...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 6 of 635. Defendant/Respondent, Alejandro Mayorkas, the Director of U...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 7 of 63United States or one of its agencies. The EAJA has been invoke...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 8 of 6314. Father Oleksandrs mission was to establish and develop "Go...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 9 of 63Philadelphia and the church in Sacramento. US CIS claimed that...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 10 of 63would summarily dismiss the appeal, because the petitioning c...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 11 of 63establish a new affiliated church in Philadelphia, PA. When S...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 12 of 63                                      COUNT I                ...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 13 of 6330. The USCIS denial of the initial 1-360 Petition and refusa...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 14 of 6333. Due Process is implicated, because the government can not...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 15 of 63Philadelphia, PA affiliate of the "Embassy of the Blessed Kin...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 16 of 63                          IN THE UNITED STATES FEDERAL COURT ...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 17 of 63     I declare under penalty of perjury that the foregoing in...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 18 of 63                          TABLE OF CONTENTSA.    Beneficiarys...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 19 of 63      E                     I IT
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 20 of 63
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 21 of 63
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 22 of 63                                                   ">":,     ...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 23 of 63                                                         · .i...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 24 of 63      E                      I IT
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 25 of 63                                                             ...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 26 of 63                             I IT
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 27 of 63         KHAVINS01~ & ASSOCIATES, P.C.    A PROFESSIONAL CORF...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 28 of 63church in Philadelphia, PA is its full successor in interest ...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 29 of 63        You requested to submit evidence to prove religious a...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 30 of 63comprehensive description ofthe congregation to establish tha...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 31 of 63..De~an:Ir!ll~"llt of HomeKand Se~urity  .c.U S~ Citizenship ...
Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 32 of 63Page 2l1/AC-09-238-S0S28                                     ...
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
Ukrainian Church I-360 Case
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Ukrainian Church I-360 Case

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Ukrainian Church I-360 Case

  1. 1. Ukrainian Church I-360 CaseThis document contains:1.) CSC’s denial2.) AAO’s dismissal3.) Complaint filed in District CourtThere are hundreds of pages of potentially useless exhibitsavailable via PACER.SEE:http://dockets.justia.com/docket/pennsylvania/paedce/2:2013cv00041/471812/EMBASSY OF THE BLESSED KINGDOM OF GOD FOR ALL NATIONS CHURCH etal v. HOLDER et alFiled: January 4, 2013 as 2:2013cv00041Plaintiffs: EMBASSY OF THE BLESSED KINGDOM OF GOD FOR ALL NATIONS CHURCH ,GODS EMBASSY CHURCH and MYKHAYLYK OLEKSANDRDefendants: ERIC H. HOLDER, JANET NAPOLITANO, ALEJANDRO MAYORKAS andEVANGELIA KLAPAKISCause Of Action: Petition for Writ of MandamusCourt: Third Circuit > Pennsylvania > Eastern District CourtType: Other Statutes > Other Statutory Actions
  2. 2. Case 2:13-cv-00041-HB Document 1-6 Filed 01/04/13 Page 9 of 62 Q:$.l:)cparlmcnt of Homel:and Security P.O. Box 10360 Laguna Niguel, CA 92607-0360 U.S. Citizenship and Im.migration ServicesTO: DATE: 111AR 2 l Z612Gods :Embassy Church Petition: Form I-36040 10 FJ. Ccunino RoadSacranento, CA 95821 File: WAC-09-238-50528 DECISIONYour Form I-360, Petition for .t.merasian, Widow(er), or Special Immigrant, flied in behalf ofOleksandrMykb.aylyk has been deniedior.the following reason(s): See AttachmentIf you desire to appeal this decision, you may do so. Your notice of appeal must be filed with this office at theaddn~ss at the top of this page within 30 days of the date of this notice. Your appeal must be filed on Fom1I-290E. A fee of $630.00 is required, payable to U.S. Citizenship and Immigration Services with a check ormoney order from a bank or other institution located in the United States. If no appeal is filed within the timeallovv-ed, this decision will be the final decisbn in this matter.In support of your appeal, you may submit a. brief or other written statement for consideration by thereviewing authority. You may, if necessary, request additional time to submit a brief. Any brief, writtenstatem:=nt, or other evidence not filed with Form I-290B, or any request for additional time for the submissionof a bdef or other material must be sent dire::tly to: DHS/USCIS Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2 090 Washington, DC 20529-2090Any request for additional time for the submission of a brief or other statement must be made directly to theAdministrative Appeals Office (AAO), and must be accompanied by a written explanation for the need foradditional time. An extension of time to file the appeal may not be granted. The appealmay not be fileddirectly with the AAO. The appeal! mmt be fllled at the address at the top of this page.Sincerely, r/-) a .. ~~--~~~"t-~~ ~J <• 7!,;P ---·Rose:cnary Langley MelvilleDirector, California Service CenterEnclosure: Form I-290Bcc: Taciana S. Aristova Fonni·292 www.dhs.gov
  3. 3. Case 2:13-cv-00041-HB Document 1-6 Filed 01/04/13 Page 10 of 62WAC-09-238-50528Page 2The petitioner has flied Form I-360, Petition for Amerasian, Widow or Special Immigrant, pursuant to section203 (b)(4) of the Immigration and Nationaiity Act, seeking classification of the beneficiary as a section101 (a)(27)(C) special immigrmt religious worker.The issue to be discussed is whether the beneficiary will be working for the petitioning organization.8 C.F.R 204.5(m) addresses the requiremE:nts for qualification as a religious worker and states, in pertinentpart: ... a petition may be filed by or for an alien who (either abroad or in the United States) for at least the two years immediately preceding the filing of the petition has been a member of a religious denomination which has a bona fide nonprofit religious organization in the United States. The alien must be coming to the United States solely for the purpose of carrying on the vocation of a minister of that religious denomination, working for the orgmization at the organizations request in a professional capacity in a · religious vocation or occupation, or working in a religious vocation or occupation for the organization ..... .The cited regulation indicates that the beneficiary should be coming to the United States solely for thepurpose of carrying on the vocation of a minister of that religious denomination, working for theorganization at the organizations request in a professional capacity in a religious vocation or occupation,or wcrking in a religious vocation or occupation for the organization ...Additionally 8 CFR 204.5(m)(12) states: Inspections, evaluations. verifications, and compliance reviews. The supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, up to and including an on-site inspection of the petitioning organization. The inspection may include a tour of the organiz<ctions facilities, an interview with the organizations officials, a review of selected orgac-:J.ization records relating to compliance with immigration laws and reg-ulations,. and an interview with any other individuals or review of any other records that the USCIS considers pertinent to the integrity of the organization. An inspection may include the organization headquarters, satellite locations, or the work locations planned for the applicable employee. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such inspection ·will be a condition for approval of any petition. On :~ovember 9, 2 0 1 1 the USCIS issued an Intent to Deny stating the following: 8 C.P.R. 204.5(m)(l2) states: Inspections, evaluations, verifications, and compliance reviews. The supporting evidence submitted may be verified by USCIS through any means detem1ined appropriate by USCIS, up to and including an on-site impection of the petitioning orga.nizatioL The inspection may include a tour of the organizations ATTACHMENT TO K-292
  4. 4. Case 2:13-cv-00041-HB Document 1-6 Filed 01/04/13 Page 11 of 62WAC-09-238-50528Page 3 facilities, an interview with the organizations officials, a review of selected organization records relating to compliance with immigration laws and :regt!Iations, and an interview with any other individuals or review of any other records that the users considers pertinent to the integrity of the organization. An inspection may include the organization headquarters, sateUite locations, or the work locations planned for the applicable employee. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such inspection will be a condition for approval of any petition. The USCIS is in possession of the following information: On April 7, 2008, the USCIS conducted asite visit at the petitioners address, 4010 El Camino Ave., Sacramento, CA 95821. Upon arrival at the petitioners address, the USCIS officer concluded that the facility was being used by several different businesses. However, there were no signs or other items posted identifying the petitioning organization at the site. A phone called was placed on the same day but was unable to reach anybody. A message was left identifying himself and a call back number but the petitioner never called back. On April 28, 2008, another call was placed to the petitioners phone number but was again left unanswered and another message was left for the petitioner to contact the USCIS officer. The petitioner never returned the call. Since no one was available at the petitioners address at the time of the site visit and phone messages remained unreturned, USC1S was unable to verify the existence of the petitioning organization and the validity of the petition. As such, a Notice of Intent to Deny the petition was sent to the petitioner on August 11, 2010. The petitioner responded to the notice on August 18, 2010. However, on September 27, 2010, another compliance review site visit was conducted at the beneficiarys actual work location at 220 Geiger Road, Ste. ·1 01, Philadelphia, PA 19115. Again, there were no signs identifying the petitioning organization ut that address. The officer then proceeded to the alternative address listed on the petition at 9921 Bustleton Ave., PhHiadelphia, PA 19115. This location is identified as the "New World Association of Immigrants", a non-profit support center for Eastern European immigrants. The officer spoke with the manager of the center, Marina Lipkowskaya. Ms. Lipkowskaya knew of the beneficiary and his church on Geiger Road and used to let the beneficiarys church tr;,adl computer classes at the center. She has since lost contact with the beneficiary about a year and a half before from the officers visit. When the beneficiary was intenriewed, he claimed that he had used the support center for church services, addiction counseling, and computer classes that were taught by his wife. The officer then proceeded to the beneficiarys home at 9921 Bustleton A.venue, ilpt. M3, Philadelphia, Pil 191 IS officer vvas met the beneficiar;/s beneficiary Vas at theATTJICI-JMENT TO I-292
  5. 5. Case 2:13-cv-00041-HB Document 1-6 Filed 01/04/13 Page 12 of 62WAC-09-238-50528Page 4 office. She made a phone call to the beneficiary at the address on 220 Geiger Road and he agreed to meet tr1e officer there. During the interview of the beneficiary, he claims that he also runs a missionary training program, drug and alcohol co~eling, and youth progrmns through his religious organization. However, the beneficiary did not provide any evidence of !the connection between theses activities and his church. It has also not been established where theses groups conduct their programs. The beneficiary claims 150 persons are in his congregation and that typically 80 persons attend Sunday services. A copy of the IRS 501 (c)(3) letter from the petitioning organization in Sacramento, CA was included in the evidence with the initial filing of the I-3 60 petition. However, it was discovered that the beneficiary obtained another IRS 501 (c)(3) letter through the International Congress of Churches and Ministers ("ICCM"). The beneficiary claimed that it was beneficial to have established the 501 (c)(3) tax exempt status from more than one source. According to the officer, the ICCM charges a fee of $650 for the privilege of using their 501 (c)(3) letter, and $450 to obtain theArtides of Incorporation. Plus ICCM requires that the Pastor of the church obtain ordination or credentials from the ICCM. Evidence of ordination or credentials from ICCM has not been provided. It has not been established why the beneficiary felt it necessary to obtain another IRS 50 1(c) (3) letter through a third pcrty. Furthermore, it has not been demonstrated with convincing evidence that the petitioning organization in Sacramento, CA and the organization in Philadelphia have a bona fide affiliation.Also, as part of the Intent to Deny, it wa,s requested that the petitioner provide evidence to establishwhether a connection exists between the petitioning organization in Sacramento, CA and the church w·herethe beneficiary has worked at 220 Geiger Road, Unit 101, Philadelphia, PA 19115.As part of the evidence provided in response to the Intent to Deny, the petitioner provided a letter datedNovenber 28, 2011 from Sunday Adelaja, Senior Pastor of the Central Church Embassy of God, Kyiv,Ukraine. In this letter, Pastor Adelaja writes, in part: The Embassy of the Blessed Kingdom of God for All Nations was started in 1994 and currently has over 2 00 churches worldwide. Prior to October 2 0 10, our church was represented in the US by the Embassy of God Church in Sacramento, CA. Tht church waS the head organization in the US, promoting the tenets of our religious teachings and traditions in the US. However, there has been a change and w:e hereby now wish to inform the public and governmental agencies of the United States of America that the Embassy of the Blessed Kingdom of God for All Nations Church in Kiev, Ukraine (mother church to all ~he Embassy of God Churches worldwide including those in USA) no longer recognizes, as a part of its netvvork of churches, the Embassy of God Church in Sacramento, CA, . USA under the leadership of !assily Beli:;kiy. The full "Successor of Interest" of the Embassy of God Church with regard to above referenced functions will henceforth now be the "Embassy Blessed Kingdom of God for All Nations Church" in Philadelphia, • ". l.muer rae leuuersum ORr" D .d I ·!.. l J L. , M kllavlyk £astor Ul.eJ<"SQ"J£tr .. -VI" . •. ~ AITACHMENTTO I-292
  6. 6. Case 2:13-cv-00041-HB Document 1-6 Filed 01/04/13 Page 13 of 62WAC-09-238-50528PageSBased on the information in Pastor Adelaja s letter as described above, the petitioning organization of theinst;mt Form I-360 petition, Gods Embc$SY Church in Sacramento, CA under the leadership of VassilyBeli:;kiy, is presently not recognized as a part of the Embassy of the Blessed Kingdom of God for AllNati.ons Churchs network of churches.Further, there is insufficient evidence in t.he record to show that a valid Successor in Interest relationshipexists between the church in Philadelphia and the church in Sacramento. The successor has not adequatelydetailed the nature of the transfer of ownership of the prior entity, the transfer of rights, obligations, andduties.The regulations indicate that the beneficicxy should be coming to the United States solely for the puposeof carrying on the vocation of a minister of that religious denomination, working for the organization atthe organizations request in a professiond capacity in a religious vocation or occupation, or working in areligious vocation or occupation for the :)rganization. The evidence provided is insufficient to establishthat 6e beneficiaryis and will be employed by the petitioning organization, Gods Embassy Church inSacramento, CA.The response does not overcome the grounds for deniaLIt is incumbent on the petitioner to resolve any inconsistencies in the record by independent objectiveevidence; any attempts to explain or reconcile such inconsistencies, absent competent objective evidencepointing to where the truth lies, will not· suffice. Matter of Ho, 19 I&N Dec. 58 2 (Comm. 19 8 8).The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C.1361. The petitioner has not sustained that burden.Therefore, the petition to classify the beneficiary as a special immigrant religious worker is denied. ATI.tCHMENT TO I-292
  7. 7. Case 2:13-cv-00041-HB Document 1-7 Filed 01/04/13 Page 36 of 38 U.S. Department ofHoi!Ieland Security U.S. Citizenship and Immigration Services Administrative Appeals:Office (AAO) 20 MassachusettS Ave., RW-, MS 2090 Washington, DC 20529-2090 US. Citizenship and Immigration Services GODS E1VllBASSY CHURCH 401 J EL CAMiNO AVENUE SACi~AMENTO, CA 95821 DA,TE: OfElce: CALIFORNIA SERVICE CENTER FILE: A87 705 805 :!OCT 2 4 2GI2 WAC 09 238 50528 Hl RE: Petitioner: GODS EMBASSY CHURCH Beneficiary: OLEKSANDR MYKHAYLYK PITTTION: Immigrant Pe:tition for Special lrnmigrant Religious Worker Pursuant to Section 203(b)(4) of the Immigration andNationality Act (the Act), 8 U.S.C. § ll53(b)(4), as described at Section l01(a)(27)(C) ofthe Act, 8 U.S.C. § 1101(a)(27)(C) 01J BERALF OF PETITIOl!t:R: s::;LF-HEPRESENTED IlJ2TRUCTWNS: Eruclosed please find the decision of the Administrative Appeals Office in your case. All of the d.x:uments related to this matter have been returned to the office that originally decided your case. Please 1:;; advised tbat any further inquiry that ynu might have concerning your case must be made to that office. !Junk you, ~· ,f{ no /n ./ :..J_;J!A..a~f Jle~1.-y l?..hew(),~Hef, Administrative Appeals Office WIY>V.tl.Scis.go v
  8. 8. Case 2:13-cv-00041-HB Document 1-7 Filed 01/04/13 Page 37 of 38A8i 705 SIQSnJE;;cuSSION: The Director, California Service Center, denied the employment-basedin:u:1:lgrant visa petition. The mcKI:ter is now before the Administrative Appeals Office (AAO) onappeEJ.l. The AAO will reject the appeal or, in the alternative, summarily dismiss the appeal.Th.;; :oetitioner seeks to classify the benefkiary as a special in1migrant religious worker pursuant tosection 203(b)(4) of the Irmnigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(4), toperform services as pastor of a church in Philadelphia, Pennsylvania. The director discussedevir~ence tfha:t the petitioning church is no longer affiliated With the church in Philadelphia, andtherdore found the evidence hls:uffitcient to establish that the beneficiary will be employed by thepeiitDni.ng organization.8 C.F.R. § 103.3(a)(1)(iii)(B} states that, for purposes of-appeals, cetiification~? and reopening orre:consideration, "affected party" (in addition to U.S. Citizenshjp and Immigration Services(U~;CIS)) means the person or entity with legal standing in a proceeding.· The USCIS regulationat;;; C.F.R. § 103J(a)(2)(v)(A)(l) states that an appeal ftled by a person or entity not entitled tofHf: it must be rejected as improperly filed. In such a case, US CIS will not refund any filing feeit fr ,a,:;. accepted.Hete, the party that filed the appeal was not the petitioner, but rather an attomey, Tatiana S.}l,_r$·i,:ova. Accompanying the l-290B, Notice of Appeal was a G-28, Notice of Entry ofA:rpearance as Attorney or Represe:ntative, authorizing Ms. Aristova to represent the beneficiary,Okksand!r Mykhaylyk; on appeaL Because Oleksandr Mykhaylyk did not file the petition, he isno·; an affected party, and therefore bJ.s attomey has no standing to file an appeal on thepeli.foner s behalf. 1Ev:;,n if pmperly filed, the AAO would summarily dismiss the appeal. On appeal, Ms. Aristovaacb:wwledges that the beneficiary will not be employed by the petitioner as the petitioningchurch is no longer affiliated with Gods Embassy Church in Philadelphia where the beneficiaryvviJ.l be ·working. Ms. Aristova asserts that Gods Embassy Church in Philadelphia should becoiE:ldered a "substitute" for the origir~cal petitioner. Eligibility must be established at the time offiling. 8 C.P.R.§ 103.2(b)(1)l12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Commr 1971). Ape"Licfoner may not make material char;.g:es to a petition in an effort to make a deficient petitionco-,rfl)nn to USCIS requirements. See Matter oflzwnmi, 22 I&N Dec. 169, 176 (Assoc. Commr-!"9,<):9.) •J - ~ .Tt:e regulation at 8 C.P.R. § 103.3(a)(1)(v) provides that "[a]n officer to whom an appeal is takensh:;U summarily dismiss any appeal vvhc;;n the party concerned fails to identify specifically anyencmeous conclusion ofla1v or statement of fact for the appeal."1 l_ previo~sly subn1itted G-~28 £U.Jlthorized ~·1s. }1.ristova to represent the petitioner for the filing of.the Form !~360 the regulation at 8 C.F.R. § requires thn.t n. nerV G-28 must be submitted on appei:!l to theAhC..! "to authorize representation in order foi ::he appearance to be recognized by DHS." Accordingiy, the AAOc<UlJt recognize Ms. Adstova as authorized tc· represent the petitioner on appeal.
  9. 9. Case 2:13-cv-00041-HB Document 1-7 Filed 01/04/13 Page 38 of 38A11J ~105 :&05Pagr: JThr~ ;:;etitioner has not specific.aHy addressed any erroneous conclusion of law or statement offac.:. Therefore, ifthe appeal were not being rejected, it would have been summarily dismissed. The appeal is rejected or in the alternative summarily dismissed.
  10. 10. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 1 of 63 ~JS 44 (Rev. 12/07) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use ofthe Clerk of Court for the purpose ofmitiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS DEFENDANTS"Embassy of the Blessed Kingdom of God for All Nations Church", JANET NAPOLITANO, US DHS SECRETARY, et al.Ukraine, "Gods Eml;>assy Church", Phjla(jelphia, PA and ~ M!;I/c "././1 Y,l y;.e t;7L E £; J /I .L;"~-~,,.e (b) County of Residence of First Listed Jllilintift t-HILADELPHIA County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTiFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED. (c) Attorneys (Finn Name, Address, and Telephone Number) Attorneys (If Known)Tatiana S. Aristova, Khavinson & Associates, P.C. 10 Schalks UNKNOWNCrossin Road, Suite 501-295 Plainsboro, NJ 08536 II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) o I u.s. Govemment ]!I 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 0 I 0 I Incorporated or Principal Place 0 4 0 4 of Business In This State o 2 U.S. Government o 4 Diversity Citizen of Another State o 2 0 2 Incorporated and Principal Place 0 5 0 5 Defendant of Business In Another State (Indicate Citizenship of Parties in Item III) Citizen or Subject of a o 3 0 3 Foreign Nation 0 6 0 6 Forei COUll IV NATURE OF SUIT (Place an "X" in One Box Only) CONTRACT TORTS FORFEITUREIPENALTY BANKRUPTCY OTHER STATUTES 0 I 10 Insurance PERSONAL INJURY PERSONAL INJURY o 6 I 0 Agriculture o 422 Appeal 28 USC 158 0 400 State Reapportionment o 120 Marine 0 310 Airplane 0 362 Personal Injury- o 620 Other Food & Drug o 423 Withdrawal 0 4 I 0 Antitrust o 130 Miller Act 0 315 Airplane Product Med. Malpractice o 625 Drug Related Seizure 28 USC 157 0 430 Banks and Banking o 140 Negotiable Instrument Liability 0 365 Personal Injury - of Property 21 USC 881 0 450 Conunerce o 150 Recovery of Overpayment 0 320 Assault, Libel & Product Liability o 630 Liquor Laws PROPERTY RIGHTS 0 460 Deportation & Enforcement ofJudgment Slander 0 368 Asbestos Personal o 640 R.R. & Truck o 820 Copyrights 0 470 Racketeer Influenced and o 151 Medicare Act 0 330 Federal Employers Injury Product o 650 Airline Regs. o 830 Patent Corrupt Organizations o 152 Recovery of Defaulted Liability Liability o 660 Occupational o 840 Trademark 0 480 Consumer Credit Student Loans 0 340 Marine PERSONAL PROPERTY SafetylHeaIth 0 490 Cable/Sat TV (Exc!. Veterans) 0 345 Marine Product 0 370 Other Fraud o 690 Other 0 8 I 0 Selective Service o 153 Recovery of Overpayment Liability 0 371 Truth in Lending LABOR SOCIAL SECURITY 0 850 Securities/Commodities/ of Veterans Benefits 0 350 Motor Vehicle 0 380 Other Personal o 710 Fair Labor Standards o 861 HIA (l395ff) Exchange o 160 Stockholders Suits 0 355 Motor Vehicle Property Damage Act o 862 Black Lung (923) 0 875 Customer Challenge o 190 Other Contract Product Liability 0 385 Property Damage o 720 LaborlMgmt. Relations o 863 DIWC/DIWW (405(g» 12 USC 3410 o 195 Contract Product Liability 0 360 Other Personal Product Liability o 730 Labor/Mgmt.Reporting o 864 ssm Title XVI IllI 890 Other Statutory Actions o 196 Franchise Injury & Disclosure Act o 865 RSI (405(g» 0 89 I Agricultural Acts REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS o 740 Railway Labor Act FEDERAL TAX SUITS 0 892 Economic Stabilization Act o 2 10 Land Condemnation 0 441 Voting 0 510 Motions to Vacate o 790 Other Labor Litigation o 870 Taxes (U.S. Plaintiff 0 893 Environmental Matters o 220 Foreclosure 0 442 Employment Sentence o 79 I Emp!. Ret. Inc. or Defendant) 0 894 Energy Allocation Act o 230 Rent Lease & Ejectment 0 443 Housing/ Habeas Corpus: Security Act o 871 IRS-Third Party 0 895 Freedom ofInfOlmation o 240 Torts to Land Accommodations 0 530 General 26 USC 7609 Act o 245 Tort Product Liability 0 444 Welfare 0 535 Death Penalty IMMIGRATION 0 900Appeal of Fee Detennination o 290 All Other Real Property 0 445 Amer. wlDisabilities- 0 540 Mandamus & Other o 462 Naturalization Application Under Equal Access Employment 0 550 Civil Rights o 463 Habeas Corpus - to Justice 0 446 Amer. wlDisabiIities - 0 555 Prison Condition Alien Detainee 0 950 Constitutionality of Other 10 " 0 ... mmi,~ioo State Statutes 0 1 440 Other Civil Rights ActIons V. ORIGIN (Place an "X" in One Box Only) Appeal to District I)ll Original o 2 Removed from 0 3 Remanded from Appellate Court 0 4 Reinstated or Reopened 0 5 Transferred from another dlstnct 0 6 Multidistrict Litigation o 7 Judge from Magistrate Proceeding State Court (specIfy) Judgment VI. CAUSEOFACTION~~~~~----------------------------------------------------------­ Brief description of cause: Complaint tor lJeclaratory Judgment, Complaint under the APA and Petition tor Writ ot Mandamus VII. REQUESTED IN o CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: COMPLAINT: UNDER F.R.CP. 23 JURY DEMAND: 0 Yes eNo VIR RELATED CASE(S) (See instructions): IF ANY JUDGE NONE DOCKET NUMBER RECEIPT # AMOUNT APPL YING IFP ------ JUDGE ----- MAG. JUDGE --------
  11. 11. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 2 of 63 UNITED STATES DISTRKCT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA - DESIGNATION FORM to be lUlsed by counsel to ill1ldicate the category of the case Ifo r [he Jllllr[llose olfassignment to appropriate calendar. / T t· SA t c 0 a lana • rlS ova, Esq.Address of Plaintiff: 10 Schalks Crossing Rd. #501-295 Plainsboro, NJ 08536AddressofDefendantP.O. Box 878 Ben Franklin S t a t i o n , Washington. DC 20044Place of Accident. Incident or Transaction:__U_n_k_n_o_w_n ____,~---_:__:_____ _ _ : _ : C - - _ : _ _ : _ _ _ : _ _ _ , - - - - - - - - -_ __ _ (Use Reverse Side For Additional Space)Does this civil action involve a nongovernmental corporate party with any parent corporation and any publicly held corporation owning 10% or more of Hs stock? (Attach two copies of the Disclosure Statement Form in accordance with Fed.R.Civ.P. 7.1 (a)) Yes 0 N0 0Does this case involve multidistrict litigation possibilities? YesORELATED CASE. IF ANY:Case Number: _ _ _ _ _ _ _ _ _ _ _ Judge _ _ _ _ _ _ _ _ _ _ _ _~_ Date Terminated: _ _ _ _ _ _ _ _ _ __Civil cases are deemed related when yes is answered to any of the following questions:1. Is this case related to property included in an earlier numbered suit pending or within one year previously terminated action in this court? YesO Nom:2. Does this case involve the same issue of fact or grow out of the same transaction as a prior suit pending or within one year previously terminated action in this court? Yes D NoKJ3. Does this case involve the validity or infringement of a patent already in suit or any earlier nunnbered case pending or within one year previously terminated action in this court? Yes D NoG4. Is this case a second or successive habeas corpus. social security appeal. or pro se civil rights case filed by the same individual? Yes D NoillCIVIL: (Place V in ONE CATEGORY ONLY)A. Federal Question Cases: B. Diversity Jurisdiction Cases: 1. 0 Indemnity Contract. Marine Contract. and All Other Contracts 1. 0 Insurance Contract and Other Contracts 2. 0 FELA 2. 0 Airplane Personal Injury3. 0 Jones Act-Personal Injury 3. 0 Assault, Defamation4. 0 Antitrust 4. 0 Marine Personal Injury5. 0 Patent 5. Motor Vehicle Personal Injury 06. 0 Labor-Management Relations 6. 0 Other Personal Iqjury (Please specify)7. 0 Civil Rights 7. 0 Proclucts Liability8. 0 Habeas Corpus 8. 0 Proclucts Liability - Asbestos9. 0 Securities Act(s} Cases 9. 0 All other Diversity Cases10.0 Social Security Review Cases (Please specify)11. N! All other Federal Question Cases (Please specify) ARBITRATION CERTIT~FltCATION ana S Arl t Es (Check Appropriate Category)1. Tatl • S 0 va, q • . counsel of record do hereby certify: o Pursuant to Local Civil Rule 53.2. Section 3 (c) (2). that to the best of my knowledge and belief, the damages recoverable in this civil action case exceed the sum of$150.000.00 exclusive of interest and costs; o Relief other than monetary damages is 85928 Attorney-at-Law Attorney I.D.# NOTE: A trial de novo will be a trial by jury only if there has been connpliance with F.R.C.P. 38.I certify t.hat to my k..nowledge, the wiL~:L.1 case :is not related to any case now pending or <wi.tluin one yeaur pnrevllously terrrrlnated actiofll hll tbif.; j (:(t Lllrtexcept as noted above.DATE:~ _ _ _ _ __ 85928 Attorney-at-Law Attorney LD.#CIV. 609 (6/08)
  12. 12. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 3 of 63 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CASE MANAGEMENT TRACK DESIGNATION FORM"Embassy of the Blessed Kingdom of CIVIL ACTIONGod for All Nations Church" Ukraiile"Gods Embassy Cl1urch" Philadelphia,PA and Mykhaylyk Oleksandr v. : NO.Janet Napolitano, US DHS Secretary,et.al. In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel for plaintiff shall complete a Case Management Track Designation Form in all civil cases at the time of . filing the complaint and serve a copy on all defendants. (See § 1:03 of the plan set forth on the reverse si.de of this form.) In the event that a defendant does not agree with the plaintiff regarding said designatiOln, that defendant shall, with its first appearance, submit to the clerk of court and serve on the plaintiff and all other parties, a Case Management Track Designation Form specifying the track tOi TV hich that defendant believes the case should be assigned. SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS: (a) Habeas Corpus - Cases brought under 28 U.s.C. § 2241 through § 2255. ( ) (b) Social Security - Cases requesting review of a decision of the Secretary of Health and Human Services denying plaintiff Social Security Benefits. ( ) (cl Arbitration - Cases required to be designated for arbitration under Local Civil Rule 53.2. () (d) Asbestos - Cases involving daims for personal injury or property damage from exposure to asbestos. ( ) (e) Special Management - Cases that de not fall into tracks (a) through (d) that are commonly referred to as complex and that need special or intense management by the court. (See reverse side of this form for a detailed explanation of special management cases.) ( ) (f) ~)tandard Management - Cases that do not fall into anyone of the other tracks. (x) --- (~ / :--;:._... Att(l)][lffiey-at-law - Tatiana S. Aristova, Esq Attorney for (215)355-9095 (215)355-9109 tatiana@immigrationwise.com FAX: Number E-Mail Address (elv. (60) llil/lil2
  13. 13. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 4 of 63 IN THE UNITED STATES FEDERAL COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA"Embassy of the Blessed Kingdom ofGod for All Nations Church", Ukraineand"Gods Embassy Church", Philadelphia, PAandMykhaylyk Oleksandr Vs. Case No:Eric H. Holder, A#OS7-705-S05U.S. Attorney GeneralJanet Napolitano, Secretary of the USDepartment of Homeland SecurityAlejandro Mayorkas, Director,US Citizenship and Immigration Services (USCIS)Evangelia Klapakis, District Director,US Citizenship and Immigration Services (USCIS)Philadelphia, PennsylvaniaCOMPLAINT FOR DECLARATORY JUDGMENT, COMPLAINT UNDER THE ADMINISTRATIVE PROCEDURES ACT AND PETITION FOR WRIT OF MANDAMUS1. Plaintiffs, by and through counsel, Tatiana S. Aristova, Esquire, petition thisCourt to review (a) the US Citizenship and Immigration Services (hereinafter theUS CIS) denial of their 1-360 Petition for Amerasian, Widow(er), or SpecialImmigrant, Case #WAC-09-238-50528, on behalf of Oleksandr Mykhaylyk,wherein the US CIS initially delayed adjudication for years and then denied thecase due to structural changes that took place due growth and development of the ., r US affiliate of petitioning and ~b) US 1
  14. 14. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 5 of 63subsequent 1-360 Petition, Case #WAC-12-903-45929, on behalf of OleksandrMykhaylyk despite the fact that the filing fees were duly paid to the US CIS. PARTIES2. PlaintifflPetitioner, "Embassy of the Blessed Kingdom of God for All NationsChurch" in Ukraine is a duly registered Christian Church operating in the countryof Ukraine. PlaintifflPetitioner, "Gods Embassy Church" in Philadelphia, PA, is asubsidiary/affiliate church of "Embassy of the Blessed Kingdom of God for AllNations Church" in Ukraine, located in Philadelphia, PA. PlaintiffIPetitioner,Oleksandr Mykhaylyk is a private individual, formerly employed by "Embassy ofthe Blessed Kingdom of God for All Nations Church" in Ukraine and nowemployed by "Gods Embassy Church" in Philadelphia, PA. He is residing inPhiladelphia, PA. They petition this Court to issue a Writ of Mandamus, requiringthe US CIS to reverse the denial of the above referenced 1-360 Petition on behalf ofOleksandr Mykhaylyk, Case #WAC-09-238-50528, and lor adjudicate subsequent1-360 Petition, Case #WAC-12-903-45929.3. Defendant/Respondent Eric H. Holder, Jr., the Attorney General of the UnitedStates, exercises unique power over the affairs of aliens. See 8 U.S.C. §1l03(a)(1);8 U.S.C. §1l22(a); 8 U.S.C. §§1l26(a) and (c); 8 U.S.C. §§1231(a)(2) and (6). Heis sued in his official capacity only.4. Defendant/Respondent, Janet Napolitano, Secretary of the Department ofHomeland Security, is empowered with the implementation of benefits andservices pursuant to the Immigration and Nationality Act (INA), 8 U.S.C. §1101, etseq. As such, this person is the individual with supervisory responsibility over theadjudication and action on Plaintiffs petitions at issue here. She is sued in her £.r 1 . " ,OHICIa capacny omy" 2
  15. 15. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 6 of 635. Defendant/Respondent, Alejandro Mayorkas, the Director of U.S. Citizenshipand Immigration Services (USCIS), is a senior officer of that agency. He ischarged under 8 U.S.C. §1103(c) with all responsibilities delegated to him by theSecretary of the US Department of Homeland Security and authority for theadministration of the U.S. Citizenship and Immigration Services and theImmigration and Nationality Act. As such, this person is the individual withresponsibility over the adjudication and action on the petitions at issue here. Thisperson is sued in his official capacity only.6. Defendant/Respondent, Evangelia Klapakis, is the District Director of the USCitizenship and Immigration Services in Philadelphia, P A. She is or may becharged with responsibility over the adjudication and action on the Plaintiffspetition at issue here. She is sued in her official capacity only. JURISDICTION7. This action arises out of the Immigration and Nationality Act (INA), 8 U.S.C.§1l01, et. seq. It also arises out of the Administrative Procedures Act (APA) , 5U.S.C. sec. 701, et seq.8. This Court has jurisdiction to consider this Complaint pursuant to 28 U.S.C.§§1331, 1361 and 28 U.S.C. §1651 (the All Writs Act); and 5 U.S.C. §701 et seq.9. Jurisdiction also exists under the U.S. Constitution, Amendment 5, because theGovernment acted arbitrarily and capriciously in denying the 1-360 Petition in thiscase, in violation of the laws and regulations of the United States, as well as inviolation of Due Process and Equal Protection clauses of the US Constitution.10. To the extent that the Governments actions in this matter are not supported bysubstantial justification, attorney fees are appropriate. The Equal Access to Justice as 5 T[J . , ir, lLthe award of costs and attorneys fees to a prevailing party in litigation against the 3
  16. 16. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 7 of 63United States or one of its agencies. The EAJA has been invoked to justify theaward of attorney fees and costs in immigration cases. See, e.g., Commissioner,Immigration and Naturalization Service v. Jean, 496 U.S. 154 (1990). VENUE11. Venue properly lies in the Eastern District of Pennsylvania. Respondentsconduct business in Philadelphia, PA. Two of three Plaintiffs also are located inthis jurisdiction. EXHAUSTION OF REMEDIES12. Administrative remedies have been exhausted. Plaintiffs have exhaustedadministrative remedies as no direct appeal lies from the US CIS denial of the I-360 petition in this case, since the denial in this case was issued by theAdministrative Appeals Office and no further appeals within the agency arepossible. No direct appeal lies from the US CIS refusal to adjudicate thesubsequent 1-360 petition filed on behalf of Oleksandr Mykhaylyk, Case #WAC-12-903-45929. Counsels letters sent to US CIS requesting adjudication of thepetition remain unanswered. STATEMENT OF THE CASE AND FACTS13. Mykhaylyk Oleksandr arrived to the US on or about 04/07/2008, in R-l visastatus (See Exhibit" A"), pursuant to an 1-129, petition for immigrant worker filedby "Gods Embassy Church" located at 4010 El Camino Ave., Sacramento, CA95821, which was the affiliated with "EmbassyGod for All Nations Church" Ukraine. 4
  17. 17. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 8 of 6314. Father Oleksandrs mission was to establish and develop "Gods EmbassyChurch" in Philadelphia, PA.15. On or about, 08/3112009, "Gods Embassy Church" located in Sacramento,CA, filed a pro se form 1-360 on behalf of Mykhaylyk Oleksandr. In this filing,"Gods Embassy Church" was acting as an associated and affiliated branch of"Embassy of the Blessed Kingdom of God for All Nations Church" in Ukraine.See Exhibit "B".16. On or about 11109/2011 (2 years and 2 month after the filing of the 1-360Petition), USCIS requested additional evidence with regard to the petition, citing anumber of concerns, which were adequately addressed in the response to therequest for evidence, a copy of which is attached. See Exhibit "C".17. The response to the request for evidence has explained, among other things,that over the time while 1-360 remained pending before the USCIS, "GodsEmbassy Church", in Sacramento, CA ceased to be affiliated with "Embassy of theBlessed Kingdom of God for All Nations Church" in Ukraine. However, as pastorMykhaylyk Oleksandr was successful in his efforts to establish an affiliate of"Gods Embassy Church" in Philadelphia, PA, "Gods Embassy Church" inPhiladelphia, PA was being substituted on form 1-360 as full successor in interestof "Gods Embassy Church" in Sacramento, CA in terms of representing"Embassy of the Blessed Kingdom of God for All Nations Church" in the UnitedStates.18. On or about 03/2112012, US CIS has denied form 1-360 petition filed on behalfof Mykhaylyk Oleksandr, noting that the petitioning organization on the Form 1-360 petition, "Gods Embassy Church" in Sacramento, CA under the leadership ofVassily Beliskiy was recognized as a part of the Embassy of the Blessed Kingdomof God for All Nations Churchs network of churches at the time of filing, but atthe of adjudication there was allegedly insufficient evidence inshow that a valid successor in interest relationship existed between the church in 5
  18. 18. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 9 of 63Philadelphia and the church in Sacramento. US CIS claimed that successor has notadequately detailed the nature of the transfer of ownership of the entity, thetransfer of rights, obligations, and duties. US CIS stated that regulations indicatethat the beneficiary should be coming to the United States solely for the purpose ofcarrying on the vocation of a minister of that religious denomination, working forthe organization at the organizations request in a professional capacity in areligious vocation or occupation, or working in a religious vocation or occupationfor the organization and that the evidence provided was insufficient to establishthat the beneficiary is and will be employed by the petitioning organization. SeeExhibit "D".19. On or about 04/1012012, the petitioner filed form I-290B, Motion toReopeniReconsider the denial, explaining that, first, eligibility has been establishedat the time of filing and, second, explaining the nature of successorship in interestin this case, which was mission-based, not properly-based. See Exhibit "E".20. On or about 05118/2012, "Gods Embassy Church" filed a new 1-360, Petitionfor Amerasian, Widow(er), or Special Immigrant on behalf of 11ykhaylykOleksandr, Case #WAC-12-903-45929. See Exhibit "F".21. On or about 06/06/2012, US CIS has notified the petitioner that it will not beconsidering the new 1-360 Petition filed on Mykhaylyk Oleksandrs behalf until theappeal of a previously filed 1-360 is adjudicated. See Exhibit G. On or about11116/2012, "Gods Embassy Church" via counsel, objected to this action inwriting and requested due adjudication of the petition. See Exhibit "I". Noresponse from the USCIS has been received.22. On or about 10124/2012, US CIS has denied the Motion to ReopenlReconsider,stating that first, the party that filed the appeal was not the petitioner attorney. USCIS found that Oleksandr Mykhaylyk did not file the I-360 Petition, he was not anaffected therefore his attorney has no an appeal on thepetitioners behalf. US CIS further stated that even if properly filed, the AAO 6
  19. 19. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 10 of 63would summarily dismiss the appeal, because the petitioning church was no longeraffiliated with "Gods Embassy Church" in Philadelphia where the beneficiarywould be working. US CIS acknowledged the request that "Gods EmbassyChurch" in Philadelphia should be considered a "substitute" for the originalpetitioner but stated, inexplicably, that eligibility must be established "at the timeof filing", citing 8 C.F.R. §103.2(b)(1), (12); Matter ofKatigbak, 14 I&N Dec. 45,49 (Commr 1971) and Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm1998) and that "a petitioner may not make material changes to a petition in aneffort to make a deficient petition conform to US CIS requirements". See Exhibit"H". US CIS failed to explain why eligibility was not established at the time offiling the petition when in fact the "Gods Embassy Church" in Sacramento, CAwas a part of the "Embassy of the Blessed Kingdom of God for All NationsChurch" at the time of filing and if not for the US CIS unreasonable delay in theadjudication of the case, would still be at the time of the decision. ld.23. Plaintiffs respectfully submit that the US CIS denial of the initial 1-360immigrant visa petition, Case #WAC-09-238-50528, as well as the US CISdecision to hold the subsequent 1-360 Petition, Case #WAC-12-903-45929, inabeyance are improper and against the law, and demand that the US CIS reverseprior denial and/or immediately adjudicate the second 1-360 Petition filed on behalfof Oleksandr 11ykhaylyk.24. INA Sec. 101(a)(27)(C), 8 U.S.C. Sec. 1101(27)(C) governs admission ofaliens classified as special immigrant religious workers to the US as permanentresidents. To qualify for religious worker status, the alien must have been amember of a religious denomination having a bona fide non-profit religiousorganization in the US. In this case, Plaintiff Oleksandr Mykhaylyk has been amember of "Embassy of the Blessed Kingdom of God for All Nations Church" andwas US be emnloved bv its affiliated ~ d ~Church" in Sacramento, CA to expand the Churchs presence in the US and to 7
  20. 20. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 11 of 63establish a new affiliated church in Philadelphia, PA. When Sacramento, CAchurch filed an 1-360 immigrant visa petition on behalf of Oleksandr Mykhaylyk,he was fully qualified to have his 1-360 approved. Under 8 C.P.R. 204.5(m)(6), thepetition could have been filed by Pastor Oleksandr Mykhaylyk himself, but thechurch chose to file for him as his employer in this case. Over the time that it tookthe US CIS to adjudicate the case, Pastor Oleksandr Mykhaylyk has successfullyestablished a Philadelphia, PA affiliate of the "Embassy of the Blessed Kingdom ofGod for All Nations Church", but "Gods Embassy Church" Sacramento, CAceased its affiliation with the "Embassy of the Blessed Kingdom of God for AllNations Church", leading to the denial of the case, which, Plaintiffs believes, wasimproper. The statute here was created with the clear purpose of allowing ministersof bona-fide religious organizations to remain in the US on a permanent basis. Inthe instant case, this purpose has clearly been fulfilled. It is unconscionable for theUS CIS to first delay adjudication for years and then deny the petition solelybecause of structural changes, which do not affect the main factual basis for thiscase: the Beneficiary was, is, and intends to remain an employee of a bona-fide USchurch, which is an affiliate of the same "Embassy of the Blessed Kingdom of Godfor All Nations Church".25. Based on these facts, the US CIS should have allowed the requestedamendment of the 1-360 Petition in this case. Additionally, it was improper for theUS CIS to suspend the adjudication of the subsequent 1-360 Petition, Case #WAC-12-903-45929, filed by "Gods Embassy Church" in Philadelphia, PA on behalf ofOleksandr Mykhaylyk. The US CIS must adjudicate said petition immediately. 8
  21. 21. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 12 of 63 COUNT I VIOLATION OF APA, 5 U.S.C. §70226. Paragraphs 1 through 25 are averred to as if fully set forth herein.27. The US CIS denial of Plaintiffs 1-360 Petition, Case #WAC-09-238-50528, isunlawful under the APA, because it is arbitrary and capricious as more fully statedabove. The US CIS acted arbitrarily and capriciously in refusing to allow anamendment of the Petitioner on form 1-360, because the structural change here didnot affect the underlying premise that the beneficiary would work for a US affiliateof "Embassy of the Blessed Kingdom of God for All Nations Church".Additionally, the US CIS refusal to adjudicate the second 1-360 Petition filed bythe "Gods Embassy Church" on behalf of Oleksandr Mykhaylyk in this case,#WAC-12-903-45929, is especially egregious in view of the fact that in denyingthe initial 1-360 Petition the US CIS held that "Gods Embassy Church" inPhiladelphia, PA churchs petition is totally different from the one filed by "GodsEmbassy Church" in Sacramento, CA, but in its refusal to adjudicate thesubsequent 1-360 Petition, the US CIS claimed that both petitions are the same.This is unconscionable. The APA, 5 U.S.C. §702, allows a person who is sufferinga legal wrong to seek judicial review.28. Overall, the US CIS denial of the initial 1-360 Petition in this case and refusalto adjudicate the second 1-360 Petition were arbitrary and capricious and inviolation of APA, 5 U.S.C. §702. It merits intervention by this Court. COUNT II VIOLATION OF 28 U.S.C. §1361, THE LAW OF MANDAMUS29. Paragraphs 1 through 28 are repeated 9
  22. 22. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 13 of 6330. The USCIS denial of the initial 1-360 Petition and refusal to adjudicate thesecond 1-360 Petition in this case violate 28 U.S.C. §1361, the law of Mandamus.The action requested of the Government, due adjudication of the applications here,is a "duty owed to the plaintiff." 28 U.S.C, §1361. The INA places a duty on theSecretary of Homeland Security and his designates, the Respondents in this action,to administer and enforce the INA. In this case, the US CIS failed to comply withthe statutory requirements and failed to properly consider Plaintiffs 1-360 Petitionsas more fully stated above.31. The US CIS denial of and refusal to adjudicate the 1-360 Petitions in this casedid not involve any exercise of discretion. See Accardi v. Shaughnessy, 347 U.S260 (1954) (U.S. Supreme Court reversed and remanded an INS District Directorsdecision on the grounds that he had not actually exercised discretion). This casewas based on the erroneous interpretation of the law and the administrativeprocessing requirements by the agency. Failure of the government to properlyadjudicate the 1-360 petitions here and apply the law correctly is a violation of thetype of duty identified in 28 U,S.C. § 1361. Under Mandamus statute, this Courthas the power to compel action to perform that duty, and should direct the US CISto reconsider and/or grant the 1-360 Petition(s) in this case, as the Plaintiffs haveestablished eligibility for the benefit sought. Alternatively, as the US CIS actedarbitrarily and capriciously in denying and/or refusing to consider the Plaintiffs I-360 Petitions, this Court should order that US CIS reconsider its denial andconsider and/or approve the above referenced I-360 Petitions. COUNT III CONSTITUTIONAL DUE PROCESS CLAIMS32. Paragraphs 1 through 31 areherein. 10
  23. 23. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 14 of 6333. Due Process is implicated, because the government can not abuse its authorityor ignore its obligation to act. Accardi, 347 U.S. at 260. The Due Process violationhere is especially egregious, because the US CIS denial of and/or refusal toconsider 1-360 Petitions in this case were arbitrary and capricious. The US CIS hasviolated the due process of law by impermissibly narrowly interpreting the statuteand refusing to allow amendment of the 1-360 Petition despite clear congressionalintent to allow the issuance of immigrant visas to bona fide ministers affiliatedwith bona fide religious denominations. In this case, where a change wasnecessitated by the very fulfillment of the plans for the pastors admission to theUS, i.e. establishment of a thriving of the "Embassy of the Blessed Kingdom ofGod for All Nations Church" affiliate in Philadelphia, PA, over the course of timethat it took the US CIS to adjudicate the 1-360 petition. The US CIS should haveallowed an amendment to the 1-360 Petition since the "Embassy of the BlessedKingdom of God for All Nations Church" has clearly confirmed that the "GodsEmbassy Church" in Philadelphia, PAis a full successor in interest of the "GodsEmbassy Church" in Sacramento, CA in terms of representing the "Embassy of theBlessed Kingdom of God for All Nations Church" in the US. It was improper forthe US CIS to focus on asset-based approach to successorship in interest herewhere it has not been asserted that the church in Philadelphia, PA acquired anyassets or liabilities of "Gods Embassy Church" in Sacramento, CA. The nature ofsuccessorship in this case was different, it was one of religious affiliation, and theUS CIS failed to explain in its decision why such successorship would not beacceptable under the statute, when there is nothing in the statute that shouldpreclude it. The very basis for the 1-360 Petition here was a connection between the"Gods Embassy Church" in Sacramento, CA and the "Embassy of the BlessedKingdom of God for All Nations Church" in Ukraine that was based on a religiousaffiliation, and not on monetary transactions or asset ownership. Therefore, oncethe beneficiary, who was transferred to the US specifically establish a 11
  24. 24. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 15 of 63Philadelphia, PA affiliate of the "Embassy of the Blessed Kingdom of God for AllNations Church", succeeded in doing so, and the function of representing the"Embassy of the Blessed Kingdom of God for All Nations Church" in the US hasshifted from "Gods Embassy Church" in Sacramento, CA to "Gods EmbassyChurch" in Philadelphia, PA, the US CIS should have allowed the substitution anform 1-360 as consistent and complaint with the purpose behind the statute here.The US CIS further violated the due process of law by refusing to adjudicate thesecond duly filed 1-360 petition on behalf of Pastor Oleksandr Mykhaylyk.34. Overall, the USCIS failure to duly consider and approve 1-360 petitions in thiscase violates Due Process as well as the APA. CONCLUSIONWHEREFORE, for all of the above stated reasons, Plaintiffs request this Court toOrder the following relief:(a) Declare the US CIS denial and/or failure to adjudicate Plaintiffs 1-360Petitions to be contrary to law;(b) Order defendants to grant Plaintiffs 1-360 Petitions, and(c) Grant Plaintiffs costs and attorneys fees and such other and further relief thatthis Court may deem proper. Respectfully submitted, Tatiana S. Aristova, Attorney for Plaintiffs, 12
  25. 25. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 16 of 63 IN THE UNITED STATES FEDERAL COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA"Embassy of the Blessed Kingdom ofGod for All Nations Church", Ukraineand"Gods Embassy Church", Philadelphia, PAandMykhaylyk Oleksandr Vs. Case No:Eric H. Holder, A#087-705-805U.S. Attorney GeneralJanet Napolitano, Secretary of the USDepartment of Homeland SecurityAlejandro Mayorkas, Director,US Citizenship and Immigration Services (USCIS)Evangelia Klapakis, District Director,US Citizenship and Immigration Services (USCIS)Philadelphia, Pennsylvania CERTIFICATE OF SERVICE I, Tatiana S. Aristova, Esq., hereby certify that I caused to be served theComplaint for Declaratory Judgment, Complaint under the AdministrativeProcedures Act and Petition for Writ of Mandamus with attachments withregard to the above-captioned matter by placing a true and correct copy thereof in asealed envelope. with postage thereon fully prepaid and causing the same to be ..ll. ~ ...l. "-" 0;/",,- ~ f..,..Imailed by certified mail to the persons at the address set forth below. 13
  26. 26. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 17 of 63 I declare under penalty of perjury that the foregoing in true and correct.Executed on 12128/2012. US DO!, Attorney Office of Immigration Litigation, Civil Division, P.O. Box. 878, Ben Franklin Station, Washington, DC 20044 ERIC H. HOLDER, JR, United States Attorney General U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001 JANET NAPOLITANO, Secretary US Department of Homeland Security, 245 Murray Lane, SW Washington DC 20528 ALEJANDRO MAYORKAS, Director of the US Citizenship and Immigration Service (USCIS), 425 I Street NW Room 3214 Washington, DC 20536 EVANGELIA KLAP AKIS, District Director US Citizenship and Immigration Services (USerS), 1600 Callowhill Street Philadelphia, PA 19130 Respectfully submitted by: Tatiana S. Aristova, Esq. 14
  27. 27. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 18 of 63 TABLE OF CONTENTSA. Beneficiarys Passport and Visa DocumentationB. Receipt Notice re: 1-360 Petition for Amerasian, Widower, or Special Immigrant, Case # WAC-09-238-50528C. Response to the Request to Evidence re: 1-360 Petition for Amerasian, Widower, or Special Immigrant, Case # WAC-09-238-50528D. Decision re: 1-360 Petition for Amerasian, Widower, or Special Immigrant, Case # WAC-09-238-50528E. Receipt Notice re: I-290B Notice of Appeal or Motion and Copy of Appeal re: 1-360 Petition for Amerasian, Widower, or Special Immigrant, Case # WAC-09-238-50528F. Receipt Notice re: 1-360 Petition for Amerasian, Widower, or Special Immigrant, Case # WAC-12-903-45929G. Notice of Abeyance re: 1-360 Petition for Amerasian, Widower, or Special Immigrant, Case # WAC-12-903-45929H. Decision re: 1-290B Notice of Appeal or Motion, Case # WAC-09-238- 505281. Response to Notice of Abeyance re: -360 Petition for Amerasian, Widower, or Special Immigrant, Case # WAC-12-903-45929 15
  28. 28. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 19 of 63 E I IT
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  36. 36. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 27 of 63 KHAVINS01~ & ASSOCIATES, P.C. A PROFESSIONAL CORF10RATION OF ATTORNEYS AT LAW -. 10 Schalks Crossing Roaal~ Suite 501-295, Plainsboro, NJ 08536 Tel: (215) 355-9095 Fax: (215) 355-9109 December 7, 2011usersCalifornia Service CenterP.O. Box 10590Laguna Niguel, CA 92607-0590RE:: IVAC-0923850528AppHcation: 1-360, Petition for AInera:3ian, Widow(er), or Special Immigrantunder section 203(b)(4) oHhe ActPetitioner: Gods Embassy ChurchBeneficiary: Mylchaylyk OReksamdrDear Officer: Please be advised that I was retained to represent "Gods Embassy Church" with regardto tIme above captioned matter. In response to a Request for Evidence, dated November 09, 2011,endm:ed please find the documentation you requested. YOll stated that you have conducted various visits to the petitioners place of business andthe beneficiarys home and raised certailn Issues in this regard. Attached please find thebeneficiarys statement explaining the allieged discrepancies and answering the questions posed.Exhibit 1. You stated that it is unclear why the beneficiary has obtained IRS 501(c)(3) letter viaICCM. Attached please find a letter from ICCM outlining the benefits affiliation which IeeMprovjdes, which has prompted the church tlO apply for IRS 501 (c)(3) via ICCM. Exhibit 4. You stated that IeCM requires evidence of ordination or credentials from ICeM, whichhas I](Jit been provided. See Exhibit 5. You requested evidence to confirm that the petitioning organization in Sacramento, CAllild fh~ church in Philadelphia, PA have a bona fide affiliation. Attached as Exhibit 6 please finda Ketler from the head office of the church in Kiev, Ukraine. explaining that the church inSaCfmITlento, CA was originaUy the main representative of the Gods Embassy Church in the US. r.ul·""r~.., the ehurch is no longer confession, the
  37. 37. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 28 of 63church in Philadelphia, PA is its full successor in interest in.terms of the religious representationof the Gods Embassy Church in the US. Therefore, in view of this change, which took place on2010, after the above referenced petition was filed, we respectfully request that you substitute theongma. petltIOner .ltu. t. e n d S Lffi!Jassy £11- l nhi 1 1 l ~. T1.. employer- • <1 . • • h h 00 D l ...-uurCl11l1 rJ. -IaGmpma, t"A. tHe • --substitution should be allowed, because the Gods Embassy Church in Philadelphia, PA wasactually listed in the original petition as the actual employment location. Pursuant to regulationsat g C.F.R. § 204.5(m)(4), an alien, or any person on behalf of the alien, may file 1-360 visapetition for classification under INA S:ec. 203(b)(4) of the Act as a section 101(a)(27)(C)immigrant religious worker. As nothing in the regulations precludes such substitution, it shouldbe allowed in the instant case. You requested to submit a cUTIenily valid determination letter from the IRS establishingthat the organization is a tax exempt organization. Please see Exhibit 7. Additionally, attachedpleas,e find proof that the exempt status has been recognized by the State of Pennsylvania.Exhibit 8. You requested to submit documentation that establishes the religious nature and purposeof the organization, such as a copy of the organizing instrument of the organization that specifiesthe ]plrposes of the organization for the organization. Attached as Exhibit 9 please find a copy ofthe o1:ganizations By-laws. Attached as Exhibit 10 please find a copy of the organizationsArtIcles oflncorporation. Attached as Exhibit 11 please find proof of the organizations tax IDnumber. Attached as Exhibit 12 please find proof of the organizations registration and addressupdate. You requested to submit organizational literature, such as books, articles, brochures,,eale:ndars, flyers and other literature describing the religious purpose and nature ofthe activitiesoftb_e organization. Attached as Exhibits 13 please find the churcb. flyer(s). Attached as Exhibit14 please find the church newsletter(s}. Attached as Exhibit 15 please find churchs calendar.Attaclted as Exhibit 16 please find a printout of the churchs Facebook page. Attached as Ex.,.l:!ibit17 lplease find proof of internet posting of the church sermons and events (feel free to downloadand Vl"atch if you wish!). Attached as Exhibit 18 please find printout of the churchs website.Attzched as: Exl1ibit 19 please find the chmch literature authored by the beneficiary, pastorOleksandlr Mykhaylyk. Attached as Exhibit 19 please find churchs training materials withregards to "Program for people with addictions: 12 Steps to Freedom." You requested to submit evidence to establish connection between the petitioningorganization in Sacramento, CA and the church in Philadelphia, P A have a bona fide affiliation.Please see Exhibit 6. Please see request to substitute/amend the petitioner in this matter statedabove, You requested to submit evidenee of how petitioner intends to compensate thebeneficiary. Please see financial documentation attached as Exhibits 30-32 and Exhibits 39-40. You requested to submit a religious denomination certification. See attached amendedfonll ii«360, Part 8, Question 6, Exhibit 3~").
  38. 38. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 29 of 63 You requested to submit evidence to prove religious activity at 220 Geiger Rd. location.Please see copy of the lease agreement attached as Exhibit 25. Please note that the lease providesfor automatic extension of the lease upon expiration and that the petitioner is occupying thepremises based on such automatic extension. Attached as Exhibit 27 piease find the petitionerszorl1ng documentation. Attached as Exhibit 28 please find photos of the petitioners location andother relevant documentation. You requested documentation to verify the number of staff and congregants at 220Geiger Rd. location. Please see documentation attached as Exhibit 29. Please see reference lettersatt2~lChed as Exhibit 34. Please see proof of marriages in the church attached as Exhibit 22. You requested evidence that the beneficiary for at least 2 years immediately precedingthe time of application for admission, has: been a member of a religious denomination having abona fide nonprofit, religious organization· in the United States and has been carrying on suchvocation, professional work, or other work continuously for this 2-year period. Please see exhibit37. Attached as Exhibit 38 please find proof of the beneficiarys credentials. LEGAL ARGUMENT IN SUPPORT OF THE PETITIONSecti.on 203(b)(4) of the Act provides classification to qualified special immigrant religiousworkers as described in INA Sec. 101(a)(27)(C), which pertains to an immigrant who:(i) for at least 2 years immediately preceding the time of application for admission, has been amember of a religious denomination having a bona fide nonprofit, religious organization· in theUnited States;Oi) seeks to enter the United States-0) solely for the purpose of carrying on 1true vocation of a minister of that religious denomination,(II) before October 1,2008, in order to work for the organization at the request of theorganization in a professional capacity in a religious vocation or occupation, or(III) before October I, 2008, in order to vifork for the organization (or for a bona fide organizationwhich is affiliated with the religious denomination and is exempt from taxation as anorganization described in section 501(c)(3) of the Internal Revenue Code of 1986) at the requestoftne organization ill a religious· vocation or occupation; and(iii) has been carrying on such vocation, professional work, or other work continuously for atleast the 2-year period described in clause (i). In the instant case, the petitioner and the beneficiary have satisfied the above listedrequIrements. The beneficiary has pllOvlded proof of the two-year period of experience requiredunder the statute. The position offered to him is a traditional religious function: the duties of theposition are directly related to the religious creed of the denomination, specific prescribedreligious training or theological education is required, the position is defined and recognized bythe goveming body ofthe denomination, and the position is a permanent, full-time, salariedoccupation Ivithin the denomination.
  39. 39. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 30 of 63comprehensive description ofthe congregation to establish that the church is a true and bona fideorganizationo The documentation provided establishes the petitioners ability to pay the profferedwage, so fulfilling the requirements of 8 CFR §204.5(g)(2). The job offered is bona fide, asindicated by a specific amount of remuneration and the amount of wage offered. The religiousorganization here has established that it either has or is eligible for the tax-exempt statusaccnrding to Internal Revenue Code §501(c)(3) as it relates to religious organizations,spedlficaHy §170(b)(1)(A)(i 1 Based on the above, the petitioner has established eligibility for the benefit sought underSection 203(b)(4) of the Act. Therefore, I respectfully request your approval ofthe underlying1-360 petition. Very truly yours, .-"-,,, - - --==-=.~",.", ... " <::..~ ~~-= Tatiana S. Aristova, Esq.1 Under the INA, a U.S. nonprofit, religious organization or a nonprofit, religious organization affiliated with aqualified religious denomination, is eligible to benefit from the Special Immigrant Religious Worker classification.However, the AAO has taken the position that only a religious organization classified as a "church" can benefit fromthis Bp,~cial Immigrant Religious Worker dassi.fi.cation. On December 17,2003, USCIS issued a guidancememDrandum stating that I-360s should not be denied merely because petitioner is not a "church" under§ 170{b)(l)(A)(i) of the Internal Revenue Code of 1986, and that an organization may qualifY if it can establish thatits tax dassification was based on religions facwrs and that it operates under principles of a particular faith.Examples of such tax~exempt organizations include colleges, charitable organizations, and similar "non-church"entities affiliated with a religious denomination (i.e., Catholic Social Service, Lutheran Children and FamilySenrictB, the Mennonite Central Committee, etc.). USCIS Memorandum, "Extension of the Special ImmigrantRelig)lous Worker Program and Clarification of Tax Exempt Status Requirements for Religious Organizations"(Dec,. 17,2003). Most recently on March 9, 2004, USCIS confmned that other organizations under §170Cb)(1 )(A) of the nte may qualify for this Special Immigrant Religious Worker classification. USCIS has instructed its field officer£ to consider evidence that establishes the religious nature and purpose of the organization, apart from IRS documentation, when determining whether the Drganization qualifies as a religious organization. See Letter from A;",·"wc~.t,. P. Associate Adjudications Law USeIS, to Elizabeth J. Bedient (Mar . 9, 20(4).
  40. 40. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 31 of 63..De~an:Ir!ll~"llt of HomeKand Se~urity .c.U S~ Citizenship and Immigration Services11.# .- ie ", . .,,;, API!>l,ication!Petltion 1-797E, Nonce of Action 1-36(j, lPetition for Amerasian, Widow(er), or Special Itnm!grant I Rfl:eip,ttll: App~cation/leil:ltiioner I:IVA01)9231850528 GodS Embassy Church N~lti",~ Date . Pa e • Bl!llIJeii~iary g lofS Myl;haylyk, Oleksandr GOlD S EMBASSY. CHURCH Intent to Deny Processing Coversheet 40J[!J] EL CAMINO AVE SACRAlIVtENTO, CA 958211 I IlElrURN THIS BLUE PROCESSING COVERSHEET ON TOP OF YOUR RESI-ONSE TO THE INTENT TO DENY. ; N.((Ite: You ue given until DecentbeIt2:. 2011 in which to submit the requested information to the mdl1llBess at the bottom of this "Donte, RESPONSE T(}l AN INTENT TO DE~ry Foil mOli(~ information, visit our web8~te at 1~vVWeUSciS.gov (QI;rcaU ~Isat 1-800-375-5283 i Teleph,al]lc serect) for the hearing .hn~ajlred: ]~nOO-76i-1833 LCSC13(J~ ws,mo DW I1I TLA You will ilJ~ llll1»tifiedl separately about lllllY IIDtln;er Illpp!ic:lI.ltions or petitions you filed. Save this notice. Please enclose a copy orit JIf YOJill wriill:e to ns :l.tbout1: this case; or if YOlll m~ al!lll!)therr :mpplication based On this decision. Our address is: UseRS - C ilLIFOIW.NlIA SERVICE CENTER lP.O. BOX TIiIl~90. ILAGIUNA NIGUEL, CA 92607-0590 1111111111111111111111111111111111111111111111111111 11111111111111111111111 t~OJl-37S<>521J3 WA C09238S0S28 Form 1-797E (Rev. 05105106)
  41. 41. Case 2:13-cv-00041-HB Document 1 Filed 01/04/13 Page 32 of 63Page 2l1/AC-09-238-S0S28 N"OrICE OF INTENT TO DENYnle petitioner has filed Form 1-360, Petition for Amerasian, Widow or Special hnmigrant, pursuant to section203(b)(4) of the Immigration and Nationality Act, seeking classification of the beneficiary, Oleksandr Mykhaylyk.as a section 101 (a) (27) (C) special inunigrant religious worker. The Director, California Service Center, U.S.Citizenship and Immigration Services (U;;CIS) intends to deny the above petition.When a decision will be adverse ta the p=titioner that is based on information considered by the USCIS and ofw~lich the petitioner is unaware, the users must notify the petitioner and allow a period of time far the Ipetitioner to rebut the information. 8 C.F.R.l 03.2(b)( 16)(i) states in pertinent part; If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by the uscrs and of which the applicant or petitioner is unaware. he/she shall be advised of this far:t and offered an opportunity to rebut the information and present information lin his/her own behalf before the decision is rendered ...g C.F.R. 204.5(m) (12) states: Inspections. evaluations, verifications. and compliance reviews. The supporting evidence submitted may be verified by USGS through any means determined appropriate by USGS, up to and including an on-site i.nspecti.on of the petitioning organization. The inspection may include a tour of the organizaltions facilities, an interview with the organizations officials, a review of selected organization records relating to compliance with immigration laws and regulations, and an interview with allY other individuals or "review of any other records that the users considers perlinem n:o the integrity of the organization. An inspection may include the organiZaJtion headquarters, satellite locations, or the work locations planned for the applicable employee. If USCKS decides to conduct a pre-approval inspection, satisfactory completion of such inspecdon will be a condition for approval of any petition. The USCES is in possession of the follOwing information: On April?, 2008, the uscrs conducted a "ite visit at the petitioners address, 4010 El Camino Ave., Sacr.lmento, CA 95821. Upon arrival at the petitioners address, the USCIS officer concluded that the facility VFas being used by several different busine3ses. However, there were no signs or other items posted identifying the petitioning organization at ~he site. A phone called was placed on the same day but was unable to reach anybody. A message Was left idelIlitlfying himself and a call back number but the petitioner never called back. On April 28, 2008, another call WaJS placed 1:0 the petitioners phone number but was again left unanswered and another message was left for the petitioner to contact the USCIS officer. The petitioner never returned the all. www.llscis.gov

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