United Methodist Church of the Good Shepard et al v. Johnson (USCIS AAO) et al Complaint 9-9-2015
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
United Methodist Church of : Case No. ___________
the Good Shepherd :
Qi Bi SHE : Agency No. A-088-294-435
Zhaodeng PENG : A-087-823-488
She Lu Yang Peng : A-087-823-489
Jeh Johnson, Secretary, :
Department of Homeland Security :
Leon Rodriguez, Director :
U.S. Citizenship and :
Immigration Services :
Ron Rosenberg, Acting Chief, :
Administrative Appeals Office :
U.S. Citizenship and Immigration :
Services, Washington, DC :
Kathy Baran, Director, :
California Service Center :
U.S. Citizenship and Immigration :
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 1 of 19
Plaintiffs, the United Methodist Church of the Good Shepherd and Pastors Qi Bi She and
Zhaodeng Peng, by and through counsel, Joseph C. Hohenstein, hereby request this Court to
review the Defendants’ unlawful denial of the petitions and applications for Lawful Permanent
Resident. This Complaint requests the Court to direct Defendants to grant the underlying
petitions and applications for lawful Immigration status in the United States. In support of this
Complaint, Plaintiffs aver as follows:
1. Plaintiff, United Methodist Church of the Good Shepherd, is a lawfully recognized
church located at 10901 Calera Road, Philadelphia, PA 19154. It has submitted petitions
for the maintenance of lawful nonimmigrant status and the approval of Permanent
Resident Status for the other three Plaintiffs in this matter.
2. Qi Bi She (wife Plaintiff or Pastor She), is an ordained minister in the United Methodist
Church. She is the principal applicant for Lawful Permanent Residence in this matter.
Her Alien registration number is A-088-294-435. She currently resides at 4616 4th
Avenue, Brooklyn, NY 11220. On May 1, 2015 the Defendants denied Pastor She's
applications for Lawful Permanent Residence (form I-485).
3. Plaintiff, Zhaodeng Peng (husband Plaintiff or Pastor Peng), is an ordained minister in
the United Methodist Church. He is a derivative applicant for Lawful Permanent
Resident in this matter based on the petitions filed on behalf of his wife Pastor She. His
Alien registration number is A-087-823-488. He currently resides at 4616 4th Avenue,
Brooklyn, NY 11220. On May 1, 2015 the Defendants denied Pastor Peng's applications
for Lawful Permanent Residence (form I-485).
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 2 of 19
4. Plaintiff, She Lu Yang Peng (son Plaintiff), is a derivative applicant for Lawful
Permanent Resident in this matter based on the petitions filed on behalf of his mother
Pastor She. His Alien registration number is A-087-823-489. He currently resides at
4616 4th Avenue, Brooklyn, NY 11220. On May 1, 2015 the Defendants denied young
Mr. Peng's applications for Lawful Permanent Residence (form I-485).
5. Defendant Jeh Johnson, Secretary, Department of Homeland Security, is empowered with
the implementation of benefits and services pursuant to the Immigration and Nationality
Act (INA), 8 U.S.C. § 1101, et. seq. He is sued in his official capacity.
6. Defendant Leon Rodriguez is the Director of the U.S. Citizenship and Immigration
Services (USCIS) and the senior officer of that agency. He is charged under 8 U.S.C. §
1103(c) with all responsibilities delegated to him by the Secretary of the Department of
Homeland Security and authority in the administration of the U.S. Citizenship and
Immigration Services and the Act. He is sued in his official capacity.
7. Defendant Ron Rosenberg, Acting Chief of the Administrative Appeals Office of the
USCIS, is the designee of Defendants Johnson and Rodriguez, empowered with
implementing benefits and services under the INA. He is the individual with appellate
responsibility over the adjudication and action on the petitions and applications at issue
here. He is sued in his official capacity.
8. Defendant Kathy Baran, California Service Center Director for the USCIS, is the
designee of Defendants Johnson and Rodriguez, empowered with implementing benefits
and services under the INA. She has responsibility over the adjudications of the petitions
and applications at issue. She is sued in her official capacity.
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 3 of 19
9. This Court has jurisdiction over this matter. This jurisdiction is provided for by
the INA (8 U.S.C. §1101, et. seq.), and the Administrative Procedures Act (APA) (5
U.S.C. §701 et. seq.) under federal question jurisdiction (28 U.S.C. §1331). In addition,
this Petition is filed as a request for a Writ of Mandamus under 28 U.S.C. §1361 because
the Plaintiffs are owed a duty from the Defendants to provide for a lawful and proper
adjudication of the application for permanent residence that comports with the laws of the
United States. This Complaint seeks to correct the following decisions that are incorrect
as a matter of law:
1) a determination that Pastor She did not properly maintain status in the United
States as a non-immigrant;
2) a decision to deny the I-360 Petition of the Church for Pastor She; and
3) denials of the Plaintiffs’ applications for Permanent Resident status under INA
§245 based on the previous two determinations.
10. The finding that Pastor She, Pastor Peng and their son are not eligible for adjustment of
status is on conflict with federal law and agency policy statements.
11. This Court has jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1331 (federal
question jurisdiction) and § 1361 (action to compel an officer of the United States to
perform his duties or to redress the deprivation of rights, privileges, and immunities
secured to the Plaintiffs by the jurisdictional statutes, and to compel the Defendants to
perform a duty that they owe to the Plaintiffs.
12. Jurisdiction exists under 5 U.S.C. §§ 701-706 (Administrative Procedure Act)(“APA”);
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 4 of 19
8 U.S.C. § 1101 (Immigration and Nationality Act) (“INA”) and the Due Process clause
of the Fifth Amendment and the right to Equal Protection under the 14th
the Constitution of the United States. The APA violations provide the jurisdictional basis
upon which the Court may make a Declaratory Judgment under 28 U.S.C. §2201.
13. To the extent that the Government’s actions in this matter are not supported by
substantial justification, attorneys’ fees are appropriate. The Equal Access to Justice Act,
as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412 (the "EAJA"), provides for the award
of costs and attorney's fees to a prevailing party in litigation against the United States or
one of its agencies. The EAJA has been invoked to justify the award of attorney fees and
costs in immigration cases. See, e.g., Commissioner, Immigration and Naturalization
Service v. Jean, 496 U.S. 154 (1990); accord Dabone v. Thornburgh, 734 F.Supp. 195
(E.D. PA 1990) and Harriott v. Ashcroft, 277 F. Supp. 2d 538, 545-46 (E.D.Pa. 2003).
14. Venue properly lies in the Eastern District of Pennsylvania. Respondent USCIS conducts
business in Philadelphia. The Plaintiffs’ Church is in Philadelphia, Pennsylvania.
EXHAUSTION OF REMEDIES
15. Administrative remedies have been exhausted. The Plaintiffs have filed all of the
required applications and evidence for the USCIS to adjudicate their case. Adjudication
in this case is in error. No administrative appeal exists to challenge the underlying
denials of the I-129 petitions, the I-360 petition and the I-485 applications and the
determination of inadmissibility. The final administrative appeal was denied on or about
May 1, 2015.
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 5 of 19
16. There is no administrative alternative and the Church, together with the She/Peng family,
has no other option but to file the instant complaint to compel agency action or to have
this Court assume jurisdiction over the matter to review an unlawful determination that
will otherwise escape review.
STATEMENT OF THE CASE AND FACTS
17. Pastors She and Peng have been engaged in ministry in the United States for more than
11 years. They are fully ordained ministers and their work has been split between two
parishes, Tian Fu in New York City and the Good Shepherd in Philadelphia. They
continue this work today. Exhibit 1 (Photo of Pastors She and Peng with parishioners);
Exhibit 2 May 17, 2015 (Church of the Good Shepherd bulletin); and Exhibit 3 (Cover
page of book outlining the ten year history of the Tian Fu Church). In 2011 they received
the “Foundation for Evangelism” award within the Methodist Church in “recognition and
appreciation of exemplary leadership in the United Methodist Church and commitment to
the Great Commission of Christ by helping persons experience God's transforming love
through Jesus Christ.” Exhibit 4 (2011 Foundation for Evangelism Award).
18. Their work has been principally funded through the United Methodist Church's General
Board of Global Ministries, which has consistently provided grants for their outreach
work to the Chinese community. This outreach is called the Chinese Ministry Initiative.
Under that program, Pastor's She and Peng began working in Tian Fu in New York from
2004 – 2007. They then expanded the ministry to include Good Shepherd in Philadelphia
in 2007. Throughout the process they have carried on their ministry in both places.
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 6 of 19
Theirs is a ministry that preaches the love of God and the power in a unified church
community. As will be explained below, the denial of the Church's petitions and the
Pastors applications for immigration status did not follow either the spirit or the letter of
the law and should be vacated and reversed.
19. In November 2004, Pastor She received non-immigrant religious worker status based on
a petition filed by the Tian Fu Church in New York. Exhibit 5 (November 15, 2004,
Approval of I-129 Petition with validity date of November 11, 2004 to November 10,
2007 for Qi Bi She). Her son was included as a derivative on that petition and
application. Exhibit 6 (November 15, 2004, Approval of I-539 Application with validity
date of November 11, 2004 to November 10, 2007 for Sheluyang Peng). Almost
concurrently, Pastor Peng received an identical non-immigrant religious worker visa, also
after a petition filed by Tian Fu. Exhibit 7 (November 17, 2004, Approval of I-129
Petition with validity date of November 16, 2004 to November 15, 2007 for Zhaodeng
Peng). For three years the Pastors performed their ministry under the temporary “R-1”
visas through Tian Fu in New York.
20. As some point in May 2007, they also began to do work in Philadelphia with the Church
of the Good Shepherd. On or about July 20, 2007, the Church of the Good Shepherd
filed a petition for Pastor She for permanent resident status (form I-360). The attorney
handling the case at that time, Fengling Liu, did not advise either the Church or the
Pastors to file a change of their status or a new non-immigrant petition (form I-129) to
address and cover the work being performed in Philadelphia. The result was that Pastor
She technically violated her visa status, which allowed her to work only for Tian Fu in
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 7 of 19
New York. The original visa approvals for the Tian Fu Church expired in November
2007. The Church, the Pastors and apparently their attorney all believed that they
continued to be valid as she accepted the new appointment in Philadelphia in early 2007.
21. As a matter of internal church decision making, the funding for the Pastors' Chinese
Ministry always came from the United Methodist Church's General Board of Global
Ministries. Their work spans two geographic conferences of the Church – the New York
Annual Conference and the Eastern Pennsylvania Conference. Both Conferences are part
of the Northeast Jurisdiction of the United Methodist Church, which is one of the five
geographical constituent governing bodies in the U.S.. The five U.S. Jurisdictions
together with seven foreign central conferences form the UMC's General Conference.
22. The Pastors' work for more than 10 years has all been included within these two
conferences that are both within the same “Jurisdiction” and their funding from the same
Board of Global Ministries has remained consistent. While it may be true that the Church
of the Good Shepherd and Tian Fu are organized separately, they are part of the same
denomination and the institutional decisions made with regard to these two Pastors were
always made in accordance with the overall institutional structure of the United
Methodist Church. The Pastors themselves certainly recognized no distinction between
whether they were serving congregants in Philadelphia or New York. To them, the
ministry is the most important thing, not the location in which they perform it.
23. In October 2007, with the I-360 petition for permanent status pending and the upcoming
expiration of their temporary status, the Pastors and the Church of the Good Shepherd,
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 8 of 19
filed a new temporary petition with Pastor She as the principal. Exhibit 8 (November 18,
2007, Approval notice of I-129, Petition with validity date of November 11, 2007 to
November 20, 2009 for Qi Bi She). The intent of this filing was to keep them in lawful
status (a statutory requirement) while the permanent application was pending. Again, the
Church and the Pastors were following the incorrect advice of the attorney and had not
filed this petition earlier in 2007, when Pastor She had actually begun her work in
Philadelphia. This Petition remained pending for more than a year and it was eventually
approved in November 2008. As discussed below, the Defendants eventually revoked
that approval in 2010.
24. In November 2007, after the I-129 petition had been filed, the Church and Pastors
responded to a government Request for Evidence (RFE) on the permanent I-360 petition.
The request focused on issues of whether Pastor She's work was full time and whether
she had been paid during the full time period of her original R-1 status (2004-2007). The
I-360 was denied for the first time on December 3, 2007. Exhibit 9 (USCIS Notice of
Denial Decision for I-360, Petition for Qi Bi She). Through attorney Liu, the Church and
Pastors appealed that decision. Exhibit 10 (January 25, 2008, I-360 Appeal Package to
USCIS Notice of Denial Decision). That appeal resulted in a remand due to a regulatory
change. The case was sent back to the USCIS California Service Center by the USCIS
AAO on December 16, 2008.
25. The USCIS issued another RFE on June 10, 2009. The Plaintiffs, through new counsel,
responded in timely fashion. On December 2, 2009, under applicable regulations, the
Pastors and their son filed form I-485 Applications to Adjust Status requesting to be
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 9 of 19
approved for Lawful Permanent Residence based on the pending I-360. Exhibit 11
(December 2, 2009, I-485, Application to Adjust to Permanent Resident Status Receipt
26. In March 2010 the USCIS took action on the pending I-360 and I-485. It also moved to
revoke the previously approved temporary R visas (referenced above in par. 23). These
actions were all based in findings of the USCIS that Pastor She had violated status by
working in Philadelphia from May 2007 through November 2007 without having filed a
new I-129 R-visa petition for that work. The USCIS held that her work in Philadelphia
constituted unauthorized employment and applied a regulation (8 CFR 204.5(m)) that
purports to require 2 years of lawful employment prior to filing an I-360 petition for a
permanent visa. Due to the fact that the underlying non-immigrant visa was being
retroactively revoked the USCIS reasoned that the underlying employment had not been
lawful and denied the I-360 as well. The I-129 revocation occurred on March 29, 2010
(it had been reopened on March 2, 2010) and the I-360 and I-485 denials occurred on
March 15, 2010.
27. The Plaintiffs, through new counsel, requested review of both the I-129 R-visa and I-360
permanent petitions by filing forms I-290B in April and June 2010. On January 25, 2011,
the AAO denied the I-360 again. Exhibit 12 (AAO Decision regarding I-360 Immigrant
Petition for Special Immigrant Religious Worker). Concurrently, it denied the I-129.
Exhibit 13 (AAO Decision regarding I-129 Nonimmigrant Petition for Religious
28. On February 18, 2011, through new counsel Mr. Kidambi, the Plaintiffs filed concurrent
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requests to review the I-360 denial and a new I-129 Petition that requested nunc pro tunc
recognition of qualifying employment for the disputed time period of May 2007 through
November 2007. Exhibit 14 (Brief/Letter to the AAO Decision with supporting
documents); and Exhibit 15 (February 18, 2011, I-129, Petition for a Nonimmigrant
Worker and a Request for ‘Nunc Pro Tunc’ Change of Employment Status for Qi Bi She
with supporting documents). This filing specifically asserted that Pastor Peng should be
granted permission to have a nunc pro tunc approval based on the failure of her prior
attorney to properly advise her or the Church. Detailed affidavits from all of the parties,
along with evidence of prior counsel’s disciplinary proceedings, were provided.
29. On July 25, 2011 the USCIS denied the temporary I-129 R-1 visa filing. Concurrently it
placed the Pastors in removal proceedings in Immigration Court. Exhibit 16 (July 27,
2011, Notice to Appear for Qi Bi She and Zhao Deng Peng). It did not take action on the
permanent I-360 at that time. On August 25, 2011, the Plaintiffs filed an appeal of the I-
129 R-1 denial. Exhibit 17 (Notice of Appeal or Motion from the Denial of Form I-129).
30. While the removal proceedings were pending, the USCIS again issued denials of both
petitions. The AAO remanded the temporary I-129 R-1 on April 9, 2012. Exhibit 18
(April 9, 2012, AAO Decision regarding I-129 Nonimmigrant Petition for Religious
Worker). However, concurrently it denied the I-360 and I-485 petitions and applications.
Exhibit 19 (May 8, 2012, I-290B Notice of Appeal or Motion to the April 9, 2012 I-129
Decision); and Exhibit 20 (May 8, 2012, I-290B Notice of Appeal or Motion to the April
12, 2012 I-360 Decision). The rationale of the I-360 and I-485 denials was that the
Plaintiffs had not demonstrated they could receive nunc pro tunc relief under regulations
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 11 of 19
at 8 CFR 214.1(c)(4). However, the I-129 remand specifically contemplated making
such a showing, and the remand was based on the determination to allow the Plaintiffs to
make a showing that the delay or failure to file an I-129 in May 2007 was not their fault.
See, 8 CFR 214.1(c)(4)(i) (Delay due to extraordinary circumstances beyond control of
petitioner or beneficiary).
31. After filing proper Motions for Reconsideration to the AAO on the I-360 and I-485, the
Plaintiffs also addressed the pending removal proceedings. Those proceedings were
terminated by stipulation of the Government and the Plaintiffs on July 6, 2012. This
stipulation recognized the Plaintiffs' claims of having received and followed incorrect
advice from prior counsel, in particular attorney Fengling Liu, who failed to have them
file I-129 petitions for nonimmigrant status when Pastor Peng began her work in
Philadelphia in 2007.
32. The Plaintiffs supplemented their cases on all the applications and petitions at the time
the removal proceedings were terminated. Exhibit 21 (July 13, 2012, Additional
Evidentiary Submission to the May 8, 2012 filings on all petitions, I-129, I-360 and I-
485). On February 7, 2013 the USCIS California Service Center again denied the I-129
petition and referred the case to the AAO. The Plaintiffs, through counsel, filed a short
submission, requesting the AAO to recognize the nunc pro tunc nature of the remedy
under the regulation at 8 CFR 214.1(c)(4). Exhibit 22 (February 7, 2013 decision of
USCIS and certification to AAO and February 25, 2013 submission of Plaintiffs in I-129
Request for ‘Nunc Pro Tunc’ Change of Employment).
33. On June 28, 2013 the AAO issued another denial of the I-129 R-visa. Exhibit 23 (June
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28, 2013 AAO I-129 Decision). Concurrently it also issued a denial of the I-360 as well.
Again, Counsel filed Motions to Reconsider both decisions in July 2013. Through
Counsel, the Plaintiffs supplemented their filings in January 2014 when they received
confirmation that an investigation into their prior counsel Fengling Liu would be deferred
since that attorney had already been subjected to discipline for other failures to properly
represent clients. Exhibit 24 (January 28, 2014, Supplement to Motion to Reopen).
34. In January 2015, the Plaintiffs wrote a letter directly to the USCIS AAO). Exhibit 25
(January 24, 2015 letter of Pastor She).
35. The USCIS AAO issued final decisions on May 1, 2015 denying all of the petitions and
applications. Exhibit 26 (May 1, 2015 USCIS decisions).
36. On April 7, 2015 the Third Circuit issued a decision which should have been considered
by the Agency before it issued its May 1, 2015 decisions. That case is Shalom
Pentecostal Church v. Department of Homeland Security, --- F.3d. ---, No. 13-4434 (3d
Cir. Apr 07, 2015). The Court specifically struck down the primary regulation that the
USCIS has used for denial of the underlying I-360 in this matter, 8 CFR 204.5(m). The
Court held that the inclusion of a requirement for two years of lawful work prior to
approval of an I-360 was ultra vires. It stated:
the INA authorizes an alien who engaged in religious work
continuously for the two years preceding the visa application and
who meets the other statutory criteria to qualify for an I-360 visa as
a special immigrant religious worker. As the statute is clear and
unambiguous and the Regulation is inconsistent with the statute,
the Regulation is ultra vires and we do not reach the second step of
the Chevron analysis.
Id at *23.
37. The regulation upon which the I-360 was denied, 8 CFR 204.5(m), was declared ultra
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 13 of 19
vires a month before the USCIS AAO issued its decision. Pastor She is not required to
have been lawfully employed for the full time period before her July 2007 I-360. For
reasons stated below, we contend that she was still in valid lawful status through the
entire proceedings, but even if she was not, the I-360 should have been approved.
38. In a similar vein, the USCIS AAO decision denying the nunc pro tunc I-129 for R-1
nonimmigrant status is similarly flawed. It incorrectly construed the Plaintiffs' July 2013
filing as an appeal and not a Motion to Reopen and Reconsider. More to the point, the
current AAO decision, like the June 28, 2013 decision before it, incorrectly applied a rule
of law intended for determination of ineffective assistance of counsel in Immigration
Court removal proceedings. That rule is embodied in Matter of Lozada, 19 I&N Dec.
637 (BIA 1988). Plaintiffs' counsel substantially complied with the Lozada standard,
providing notice to prior counsel and providing copies of the response received from one
of them. He also provided proof of formal complaints having been filed with the
attorneys' respective state bars.
39. We respectfully assert that compliance with the Lozada standard is demonstrated in the
evidence in the record. However, we also respectfully assert that Lozada is not the rule
by which the regulatory requirement for a late filing to have been outside of the control of
the Petitioner or Beneficiary is to be construed. The regulation at 8 CFR 214.1(c)(4)(i)
does not require demonstration of ineffective assistance per se, it only requires that the
late filing be out of the control of the Petitioner or Beneficiary. In this case, the Plaintiffs
demonstrated that lack of control by showing they had followed incorrect legal advice.
There is no dispute that they followed incorrect legal advice, the USCIS only refuses to
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 14 of 19
recognize the lack of control based on a perception that “petitioner's ineffective assistance
claim was not perfected.” Exhibit 26 (May 1, 2015 I-129 decision at page 2, n.1)1
40. In its May 1, 2015 decisions, the Agency failed to recognize that the ineffective
assistance claim had been perfected.
41. In its May 1, 2015 decisions it also incorrectly applied a rule of law for demonstrating
ineffective assistance, when the regulatory standard required only a showing that a late
filing was delayed “due to extraordinary circumstances beyond the control of the
applicant or petitioner, and the Service finds the delay commensurate with the
circumstances.” 8 CFR 214.1(c)(4). No formal compliance with Lozada is required
since Lozada is applicable only in Immigration Court removal proceedings and not
USCIS visa petition or application proceedings.
42. Pastors She and Peng and their son – and the congregations at Good Shepherd and Tian
Fu that they have served for many years – merit the right to have these I-129 and I-360
petitions and I-485 applications decided in manner that comports with U.S. laws. The
current decision violates the agency's regulation and empowering statute.
CAUSES OF ACTION
The May 1, 2015 decision also cites to Pastor She's January 24, 2015 letter regarding her current work in
translating documents along with her husband and son. This citation fails to account for the more than seven years
that Pastor She spent in the U.S. operating in a bi-lingual environment and learning English. It equated her
statements of a lack of English knowledge in 2007 and acted as if that would not have changed in seven years.
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 15 of 19
Administrative Procedures Act
Violation under 5 U.S.C. 706(2)(A) and (B)
43. Paragraphs 1 through 42 are repeated and reasserted as if fully set forth herein.
44. Defendants’ denial of the I-485 application is in violation of the law, because it was a
categorical denial based on an unlawful interpretation of regulatory and statutory
language. As such, the underlying determination of inadmissibility is in error. The
denial was not based on “...good and sufficient cause...” as required by 8 U.S.C. §1155.
45. Defendants similarly failed to consider any of the Plaintiffs' legal arguments in their I-
485 applications relating to continuing eligibility for both the underlying I-360 petition
and the I-129 petition that would have allowed them to obtain Lawful Permanent
Resident status through adjustment of status.
46. Determination of eligibility for the adjustment of status-unlike the granting of adjustment
itself-is a purely legal question and does not implicate agency discretion. Pinho v.
Gonzalez, 432 F.3d 193, 204 (3rd
47. The Government decision follows a regulation that has been declared ultra vires and
applies an erroneous standard of ineffective assistance to a regulatory requirement to
consider late filed applications for extensions of nonimmigrant status. See, par. 36-42.
48. The Pastors and the Church demonstrated that:
a) the Pastors and their son, maintained lawful nonimmigrant status from the time of
their original entries in 2004;
b) denials and revocations of already approved I-129 and other nonimmigrant
petitions were unlawful;
c) denial of the I-360 filed by the Church of the Good Shepherd for Pastor She failed
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 16 of 19
to follow applicable law; and
d) denials of I-485 adjustment of status applications based on the unlawful denials of
the I-129s and I-360 were also unlawful.
49. The USCIS actions violate the APA because the denials are "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law;" and are "contrary to
constitutional right, power, privilege, or immunity." 5 U.S.C. §706(2)(A) and (B).
Due Process Violation
with Respect to I-485s and related I-129 and I-360 Petitions
50. Paragraphs 1 through 49 are repeated and reasserted as if fully set forth herein.
51. Defendants’ refusal to provide for appropriate review of the denied application violates
52. Defendant’s failure to provide a review of the final filing as a Motion to Reopen and
Reconsider violated substantive Due Process rights and applicable regulations at 8 CFR
103.5. It effectively is an abuse of discretion via a refusal to recognize the existence of
discretion. See, U.S. ex. rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (U.S. Supreme
Court reversed and remanded an INS District Director’s decision on the grounds that he
had not actually exercised discretion).
COUNT III - Request for Attorney’s Fees under EAJA
28 U.S.C. 2412(d) and 5 U.S.C. 504 et seq.
53. Paragraphs 1 through 52 are repeated and reasserted as if fully set forth herein.
54. The denials of the Church's I-129 and I-360 petitions and the Pastors' and their son's
applications for adjustment of status were not substantially justified, as they was not
based on a proper and lawful determination of statutory eligibility for classification in
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 17 of 19
nonimmigrant R-visa status, permanent religious worker status and for maintenance of
status for adjustment purposes.
55. Specifically, the Agency applied one regulation (8 CFR 204.5(m) even after it had been
declared ultra vires and it applied a rule for ineffective assistance of counsel incorrectly
and in a forum to which it did not apply.
56. Award of attorney’s fees in this case is warranted, as the Defendants’ position has no
basis in fact or law.
WHEREFORE, for all of the above stated reasons, Plaintiffs respectfully request this Court to
Order the following relief:
(a) Declare that the denials and revocations of the petitions and applications made by
the Defendants in this matter to be in violation of the law and provide for proper
adjudication of those petitions and applications;
(b) Grant Plaintiffs costs and attorney's fees pursuant to the Equal Access to Justice
Act (EAJA) or other applicable provisions of law as the Court may deem proper.
/s/JOSEPH C. HOHENSTEIN, Attorney for Plaintiff
Pennsylvania Bar #69226; JCH 5208
LAW OFFICE OF JOSPEH C. HOHENSTEIN
190 N. Independence Mall West, Suite 602
Philadelphia, PA 19106
(267)405-6301; (215) 925-5105 –Facsimile; firstname.lastname@example.org
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 18 of 19
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
United Methodist Church of : Case No. ___________
the Good Shepherd :
et. al : Agency No. A-088-294-435
Petitioners : A-087-823-489
Jeh Johnson, Secretary, :
Department of Homeland Security :
et. al. :
CERTIFICATE OF SERVICE
I certify that the enclosed COMPLAINT FOR DECLARATORY JUDGMENT with was
served on the person whose name and address appears below via personal delivery:
Office of the US Attorney
615 Chestnut Street
Philadelphia, PA 19106
___________________________ Date: September 8, 2015
/s/Joseph C. Hohenstein, Esquire
Case 2:15-cv-05037-RBS Document 1 Filed 09/09/15 Page 19 of 19