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O Centro Espirita Beneficiente Uniao Do Veg In The U.S v. Duke

United States District Court, D. New Mexico

December 15, 2017

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,
v.
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 Mexico

          Hans 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

         THIS 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”).[1] 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.

         FINDINGS OF FACT

         Pursuant 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.

         1. The Parties.

         1. UDV 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”).

         2. An 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. 13-1)(“Plaintiffs' Exhibit A1”)(“Religious tenets do not allow compensation of any form.”). See also Motion at 2.

         3. Much of UDV's liturgy is transmitted orally. See Second Tr. at 26:15-16 (Bixby).

         4. UDV “originated in Brazil and is now practiced by close to 20, 000 people in 11 countries.” Complaint ¶ 15, at 7.

         5. J. 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.

         6. J. Garcia is a key religious figure in teaching UDV's oral traditions. See Second Tr. at 29:15-18 (Bixby).

         7. J. Garcia is the “most experienced” UDV member in the United States. Second Tr. at 31:9 (Bixby).

         8. The 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).

         9. If 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).

         10. Previously, J. Garcia had “R-1 nonimmigrant religious worker status”[2] 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”).

         11. D. Garcia is J. Garcia's wife. See Complaint ¶ 17, at 7.

         12. J.H.S.G. is J. Garcia's minor child. See Complaint ¶ 18, at 8.

         13. “Duke is the Acting Secretary of the Department of Homeland Security” and is “sued in her official capacity only.” Complaint ¶ 19, at 8.

         14. “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.

         15. “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.

         16. USCIS is a federal agency within the Department of Homeland Security that reviews immigration petitions. See Complaint ¶ 22, at 9; Plaintiffs' Exhibit A2.

         17. Duke, Cissna, Baran, and USCIS are all agents of, and represent, the United States. Complaint ¶ 23, at 9.

         2. The Timeline of Events.

         18. In 2011, UDV filed an I-129 nonimmigrant R-1 petition[3] on J. Garcia's behalf, which USCIS approved. See Motion at 9; Plaintiffs' Exhibit A6 at 2.

         19. In 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”)

         20. 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”).

         21. 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 denomination.”

         22. An important aspect of UDV's theology, however, is non-compensation of its ministers. See Motion at 2; Plaintiffs' Exhibit A1.

         23. 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' Exhibits A5-A6.

         24. On 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”).

         25. This petition is currently pending, although USCIS has issued a notice of intent to deny it.[4] (dated July 31, 2017)(Receipt No. WAC-16-905-31925), in file November 30, 2017 (Doc. 13-21)(“Plaintiffs' Exhibit D2”).

         26. 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 at 3.

         27. If 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. 12)(“Response”).

         28. On 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”).

         29. 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 C5”).

         30. If 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 R-1 status.”).

         31. 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 . . . .”).

         32. J. 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).

         33. If 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. § 1182(a)(9)(B)(i)(I).

         34. J. “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 (Vrapi).

         35. J. 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).

         CONCLUSIONS OF LAW

         The 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.

         PROCEDURAL BACKGROUND

         The Court will summarize the case's progress and discuss the parties' arguments for and against the Motion.

         1. The Complaint.

         1. The 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.

         2. The 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.

         3. 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.

         2. The Motion.

         4. The 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.

         5. The 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.

         6. The 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.

         7. 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. ...


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