United States District Court, D. New Mexico
O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEG IN THE U.S.; JOSE CARLOS GARCIA; DANIELLE HOUNSELL SILVA GARCIA and J.H.S.G., a minor, Plaintiffs,
ELAINE DUKE, Acting U.S. Secretary of Homeland Security; L. FRANCIS CISSNA, Director of U.S. Citizenship and Immigration Services; KATHY BARAN, Director of U.S. Citizenship and Immigration Services California Service Center; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, an agency of the United States, in their official capacity, and UNITED STATES OF AMERICA, Defendants.
Attorneys for the Plaintiffs James D. Tierney Acting United
States Attorney Brandon Fyffe Assistant United States
Attorney United States Attorney's Office Albuquerque, New
Harris Chen Francesca Genova Office of Immigration Litigation
Civil Division United States Department of Justice
Washington, D.C. Attorneys for the Defendants
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Plaintiffs'
Motion for Temporary Restraining Order and/or Preliminary
Injunctive Relief and Request for Emergency Ex Parte Hearing,
filed November 20, 2017 (Doc.
5-1)(“Motion”). The Court held hearings
on November 21, 2017 and December 1, 2017. The primary issues
are: (i) whether the procedural requirements of the
Administrative Procedure Act, 5 U.S.C. § 706
(“APA”), apply to the Motion for an injunction;
(ii) whether the Religious Freedom Restoration Act, 42 U.S.C.
§ 2000bb-1 (“RFRA”), claim of the
Plaintiffs' O Centro Espirita Beneficiente Uniao Do Veg
in the United States (called “UDV” by its members
and the Court), Jose Carlos Garcia, Danielle Hounsell Silva
Garcia, and J.H.S.G. (collectively “the
Plaintiffs”) has a substantial likelihood of success on
the merits; (iii) whether the Plaintiffs are likely to suffer
irreparable injury absent a preliminary injunction; (iv)
whether the threatened injury to the Plaintiffs outweighs the
injury an injunction could cause the Defendants Elaine Duke,
L. Francis Cissna, Kathy Baran, United States Citizenship and
Immigration Services, and the United States of America
(collectively “the Defendants”); (v) whether the
injunction would be adverse to the public interest; and (vi)
whether the Plaintiffs have met a disfavored preliminary
injunction's heightened requirements. The Court concludes
that: (i) the APA's procedural requirements do not apply
to this Motion, because the Motion seeks injunctive relief
under RFRA, and not under the APA; (ii) the Plaintiffs'
RFRA claim has a substantial likelihood of success on the
merits; (iii) the Plaintiffs are likely to suffer irreparable
injury absent a preliminary injunction; (iv) the threatened
injury to the Plaintiffs outweighs the injury an injunction
could cause the Defendants; (v) the injunction would not be
adverse to the public interest; and (vi) the Plaintiffs have
met a disfavored preliminary injunction's heightened
requirements. Because the Court concludes that narrower
relief is appropriate than that requested, the Court will
grant the Motion in part and deny it in part.
to rule 52(a)(2) of the Federal Rules of Civil Procedure, the
Court makes findings of fact and conclusions of law to
support its disposition of the Motion. See
Fed.R.Civ.P. 52(a)(2), 65(d)(1). The Court will first
introduce the parties and then outline the timeline of events
in this case. The Court will then discuss the arguments for
and against the Motion.
is a Christian spiritualist religious organization.
See Complaint for Declaratory Judgment, Injunctive
Relief, and Writ of Mandamus ¶ 15, at 7, filed November
14, 2017 (Doc. 1)(“Complaint”).
important aspect of UDV's theology is non-compensation of
its ministers. See I-129 Petition for a Nonimmigrant
Worker at 11, filed with USCIS December 15, 2011 (Receipt No.
WAC-12-052-50599), in file November 30, 2017 (Doc.
A1”)(“Religious tenets do not allow compensation
of any form.”). See also Motion at 2.
of UDV's liturgy is transmitted orally. See
Second Tr. at 26:15-16 (Bixby).
“originated in Brazil and is now practiced by close to
20, 000 people in 11 countries.” Complaint ¶ 15,
Garcia holds a high-level clerical position in UDV,
“akin to a Cardinal of the Catholic Church, ” and
“has been a member and leader in the organization for
decades.” Complaint ¶ 16, at 7. See
Plaintiffs' Exhibit A1 at 23.
Garcia is a key religious figure in teaching UDV's oral
traditions. See Second Tr. at 29:15-18 (Bixby).
Garcia is the “most experienced” UDV member in
the United States. Second Tr. at 31:9 (Bixby).
only other people who are J. Garcia's equivalent live in
Brazil “and most of them have jobs that require their
presence in Brazil in order to [sustain] their
families.” Second Tr. at 34:14-17 (Bixby).
J. Garcia had to leave the United States it would break the
chain of UDV's oral tradition. See Second Tr. at
35:1-4 (Vrapi, Bixby).
Previously, J. Garcia had “R-1 nonimmigrant religious
worker status” in the United States. Complaint ¶
16, at 7. See Approval Notice for I-129 Petition for
a Nonimmigrant Worker at 2 (dated December 6, 2012)(Receipt
No. WAC-12-052-50599), in file November 30, 2017 (Doc.
13-6)(“Plaintiffs' Exhibit A6”).
Garcia is J. Garcia's wife. See Complaint ¶
17, at 7.
J.H.S.G. is J. Garcia's minor child. See
Complaint ¶ 18, at 8.
“Duke is the Acting Secretary of the Department of
Homeland Security” and is “sued in her official
capacity only.” Complaint ¶ 19, at 8.
“Cissna is the Director of United States Citizenship
and Immigration Services” (“USCIS”), an
agency within the Department of Homeland Security. Complaint
¶ 20, at 8. Cissna is also sued only in his official
capacity. See Complaint ¶ 20, at 8.
“Baran is the Director of the United States Citizenship
and Immigration Services California Center.” Complaint
¶ 21, at 8. Baran is also sued only in her official
capacity. See Complaint ¶ 21, at 8.
USCIS is a federal agency within the Department of Homeland
Security that reviews immigration petitions. See
Complaint ¶ 22, at 9; Plaintiffs' Exhibit A2.
Duke, Cissna, Baran, and USCIS are all agents of, and
represent, the United States. Complaint ¶ 23, at 9.
The Timeline of Events.
2011, UDV filed an I-129 nonimmigrant R-1
petition on J. Garcia's behalf, which USCIS
approved. See Motion at 9; Plaintiffs' Exhibit
A6 at 2.
2014, UDV filed another I-129 nonimmigrant R-1 petition on J.
Garcia's behalf to extend his legal status in the United
States. See I-129 Petition for a Nonimmigrant Worker
at 1, filed with USCIS December 3, 2014 (Receipt No.
WAC-15-043-50803), in file November 30, 2017 (Docs. 13-7 and
13-8)(“Plaintiffs' Exhibit B1”)
USCIS approved this petition on December 16, 2015.
See Approval Notice for I-129 Petition for a
Nonimmigrant Worker at 1 (dated December 16,
2015)(WAC-15-043-50803), in file November 30, 2017 (Doc.
13-13)(“Plaintiffs' Exhibit B6”).
USCIS originally intended to deny one or both of UDV's
R-1 petitions, because J. Garcia is neither financially
compensated nor part of an established missionary program.
See Notice of Intent to Deny at 2-3 (dated July 31,
2012)(Receipt No. WAC-12-052-50599), in file November 30,
2017 (Doc. 13-4)(“Plaintiffs' Exhibit A4”);
Notice of Intent to Deny at 2-3 (dated October 15,
2015)(Receipt No. WAC-15-043-50803), in file November 30,
2017 (Doc. 13-11)(“Plaintiffs' Exhibit B4”).
See also 8 C.F.R. 214.2(r)(11)(i)(“Initial
evidence [supporting an R-1 petition] must state how the
petitioner intends to compensate the alien, including
specific monetary or in-kind compensation, or whether the
alien intends to be self-supporting.”); 8 C.F.R.
214.2(r)(11)(ii)(A)(“If the alien will be
self-supporting, the petitioner must submit documentation
establishing that the position the alien will hold is part of
an established program for temporary, uncompensated
missionary work, which is part of a broader international
program of missionary work sponsored by the
important aspect of UDV's theology, however, is
non-compensation of its ministers. See Motion at 2;
Plaintiffs' Exhibit A1.
USCIS granted at least one of these R-1 petitions despite its
regulations by giving J. Garcia an exemption under RFRA, 42
U.S.C. § 2000bb-1(a)-(b). See Plaintiffs'
July 1, 2016, UDV filed an I-360 Petition for Religious
Worker on J. Garcia's behalf. See I-360 Petition
for Religious Worker at 1, filed with USCIS July 1, 2016
(Receipt No. WAC-16-905-31925), in file November 30, 2017
(Doc. 13-20)(“Plaintiffs' Exhibit D1”).
This petition is currently pending, although USCIS has issued
a notice of intent to deny it. (dated July 31,
2017)(Receipt No. WAC-16-905-31925), in file November 30,
2017 (Doc. 13-21)(“Plaintiffs' Exhibit D2”).
USCIS stated in its notice of intent to deny that it intends
to deny this I-360 petition because J. Garcia is not a
compensated minister. See Plaintiffs' Exhibit D2
granted, the I-360 petition would not give J. Garcia legal
status in the United States, but it would permit him
“to apply for adjustment of status within the United
States.” Defendants' Response to Plaintiffs'
Motion For Temporary Restraining Order and/or Preliminary
Injunctive Relief at 11, filed November 30, 2017 (Doc.
July 7, 2017, UDV filed a third R-1 petition on J.
Garcia's behalf. See I-129 Petition for a
Nonimmigrant Worker at 3, filed with USCIS July 7, 2017
(Receipt No. WAC-17-197-50769), in file November 30, 2017
(Doc. 13-14)(“Plaintiffs' Exhibit C1”).
USCIS denied this petition, because J. Garcia is not a
compensated minister nor does he participate in an
established missionary program. See Denial Decision
for I-129 Petition for Nonimmigrant Worker at 5 (dated
October 31, 2017)(Receipt No. WAC-17-197-50769), in file
November 20, 2017 (Doc. 13-19)(“Plaintiffs' Exhibit
granted, this R-1 petition would have given J. Garcia legal
status until November 27, 2017. See Response at 4;
Plaintiffs' Exhibit C1 at 22 (“Petitioner now seeks
an extension through November 27, 2017, allowing Petitioner
to retain Mr. Garcia as a full-time religious worker for the
duration of the period that a beneficiary is allowed to hold
USCIS also denied D. Garcia and J.H.S.G.'s accompanying
applications, because their legal statuses are wholly tied to
J. Garcia's. See Motion at 10. See also
8 C.F.R. 214.2(r)(4)(ii) (“The spouse and unmarried
children under the age of 21 of an R-1 alien may be
accompanying or following to join the R-1 alien . . .
Garcia and his family now have no legal status in the United
States. See Plaintiffs' Exhibit C5 (denying J.
Garcia's most recent R-1 petition).
J. Garcia remains unlawfully present in the United States for
more than 180 days and leaves the country, he cannot return
for three years. See 8 U.S.C. §
“Garcia's religious duties have also been severely
hindered . . . as he has been unable to travel [outside of
the United States] to important religious meetings (as
required by someone of his degree of responsibility under
church law) for fear of being denied entry back into the
United States.” Reply at 5. See Tr. at 58:9-15
Garcia engages in sincere religious exercises on UDV's
behalf. See Second Tr. at 29:15-18
(Bixby)(testifying that J. Garcia is a key religious figure
in teaching UDV's oral tradition).
Court will first summarize the procedural background of this
case. The Court will also describe important aspects of the
hearings. The Court will then make conclusions of law.
Court will summarize the case's progress and discuss the
parties' arguments for and against the Motion.
Plaintiffs assert several claims against the Defendants.
First, the Plaintiffs argue that the Defendants have made
“a clear governmental directive to this particular
Church to change what they believe in in order to obtain an
R-1 visa, ” which the Plaintiffs assert violates the
First Amendment to the Constitution of the United States of
America. Complaint ¶ 28, at 10-11. Next, the Plaintiffs
contend that the Defendants erroneously denied J.
Garcia's R-1 petition, and that the Court should issue a
declaratory judgment saying that the petition should be
approved. See Complaint ¶ 52, at 17. The
Plaintiffs next allege several APA violations, including that
the denial of the R-1 petition is arbitrary and capricious,
see Complaint ¶ 57, at 17, and that the
regulation used to deny the petition is ultra vires,
see Complaint ¶ 56 at 17. The Plaintiffs also
allege that the Defendants have “unreasonably delayed
adjudication of Plaintiffs' I-360 petition.”
Complaint ¶ 58, at 17.
Plaintiffs next request relief under the Mandamus Act, 28
U.S.C. § 1361. The Plaintiffs contend that
“Defendants have failed to properly adjudicate
Plaintiffs' petitions in conformity with RFRA, ”
thereby entitling the Plaintiffs to mandamus relief.
Complaint ¶ 60, at 18.
Finally, the Plaintiffs allege that “the United States
is judicially estopped from taking diametrically opposed
positions in relation to Plaintiff UDV. An order of the court
estopping the United States and its agents from holding a
contrary position than their previous position is therefore
warranted.” Complaint ¶ 2, at 18.
Plaintiffs move the Court to grant a temporary restraining
order and/or a preliminary injunction ordering the Defendants
to grant the most recent R-1 petition and to adjudicate the
pending I-360 petition within fourteen days of the
Court's order. See Motion at 15. The Plaintiffs
first argue that they are likely to prevail on the merits of
their claim. See Motion at 12. They contend that the
Defendants misunderstand RFRA's application to this case
and that the compensation regulation, 8 C.F.R. §
214.2(r)(11)(i)-(ii), is ultra vires. See Motion at
12-13. The Plaintiffs further argue: “Even if the
regulation [is] not ultra vires, there still is no compelling
interest in advancing the regulation as to this Church when
application of this regulation directly impinges on a firmly
held belief of the organization.” Motion at 13.
Plaintiffs next assert that they will suffer irreparable
injury if the Court does not grant injunctive relief.
See Motion at 13. According to the Plaintiffs, if
they “accrue more than 180 days of unlawful presence,
even if the pending I-360 petition is approved, they will not
be able to adjust status in the United States and become
permanent residents. They will be forced to leave the United
States.” Motion at 13. Accordingly, the Plaintiffs
argue, UDV would “be left without a minister and the
entire United States congregation will be left without a
trusted overseer duly appointed by the highest authority of
the church.” Motion at 13. The Plaintiffs add that,
without legal status, they cannot renew their Florida
driver's licenses. Motion at 13.
Plaintiffs continue that the balance of harms favors them.
Motion at 14. They argue that the “irreparable injury
mentioned above demonstrates that the injury to Plaintiffs
far outweighs any administrative harm that an injunction will
cause Defendants.” Motion at 14. They add that the
“only potential interest they could advance by their
decision is to adhere strictly to a regulation that has no
support in the statute.” Motion at 14.
Finally, the Plaintiffs contend that granting injunctive
relief serves the public interest, because “it restores
the public's faith in government officials doing their
job properly and in a timely manner and not arbitrarily and
capriciously changing long standing positions.” Motion
at 14. The Plaintiffs briefly add that the Court should waive
injunctive relief's bond requirement, and conclude that
the Court should order the Defendants to reverse their
decision on the R-1 petition and grant it, along with the
applications for J. ...