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Media Alerts - Shalom Pentecostal Church v. Secretary U.S. Dept. of Homeland Security - Third Circuit
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April 14, 2015
  Shalom Pentecostal Church v. Secretary U.S. Dept. of Homeland Security - Third Circuit
Shalom Pentecostal Church v. Secretary U.S. Dept. of Homeland Security - Third Circuit

Headline: Third Circuit Vacates Regulation Requiring That Immigrants Applying for a Religious Worker Visa Must Already Have Lawful Immigration Status

Area of Law: Immigration Law

Issue Presented: Whether a regulation under the Immigration and Nationality Act (INA) that to qualify for a visa as a "special immigrant religious worker," the immigrant must have been carrying on religious work "in lawful immigration status" crosses the line from permissible statutory interpretation by the responsible agency to ultra vires regulation contrary to the clear intent of Congress.

Brief Summary:

The Immigration and Nationality Act (INA) enables an immigrant to obtain a visa as a "special immigrant religious worker" if the immigrant meets certain statutory criteria, including that he has been "carrying on" religious work for at least the two years preceding the filing of the visa petition. This case presents the question whether a requirement imposed by the Citizenship and Immigration Service (CIS) that this religious work have been carried on "in lawful immigration status" crosses the line from permissible statutory interpretation by a federal agency charged with implementing the law to an illegal regulation contrary to the clear intent of Congress. The District Court concluded that the regulation is illegal because it contradicts the plain language of the INA. The Third Circuit Court agreed, in part because this regulation would render superfluous another provision of the INA which specifically allows a person who has received a special immigrant religious worker visa to apply for permanent residence status even if they have worked for as many as 180 days in the United States without authorization. The Court concluded that the plain terms of the "special immigrant religious worker" section of the INA are clear and unambiguous, and they do not require that the applicant have been carrying on his religious work in lawful immigration status. However, the Third Circuit disagreed with the District Court on the remedy. Rather than require that the visa be granted, the Court remanded the case to the District Court with instructions that it be returned to CIS so that it could determine whether the petitioner Alencar met the other requirements for the granting of a special immigrant religious worker visa.

Extended Summary:

In June 1995, Carlos Alencar, a Brazilian national, travelled with his family to the United States on a B-2 nonimmigrant tourist visa, which expired in December 1995. After the visa expired, he remained in this country unlawfully. In 1997l he petitioned the CIS for an I-360 visa, which would give him legal immigration status as a "special immigrant religious worker." That petition was denied, as was a subsequent one he filed in 2001. Despite this, Alencar began working as a senior pastor for the Shalom Pentecostal Church ("the Church") in 1998 and continued in that capacity through the filing of his appeal.

"Special immigrant religious worker" is one of the five categories granted preference for issuance of visas in the INA. This category requires membership in a religious denomination with a bona fide nonprofit religious organization in the United States; intent to enter the United States for the purpose of working as a minister or in another religious vocation; and the "carrying on" of such religious work continuously for at least the two years before applying. This would eventually qualify Alencar to seek permanent residency status.

A third I-360 petition was filed by the Church on Alencar's behalf in 2009. CIS denied the petition. CIS did so solely on the ground that the Church had failed to establish that Alencar had been "performing full-time work in lawful immigration status as a religious worker for at least the two-year period immediately preceding the filing of the petition," a newly promulgated regulation added under 8 C.F.R. 204.5(m)(4) and (11) ("the Regulation") by CIS in 2008. Consistent with the Regulation, the CIS Administrative Appeals Office, an appellant in this case, dismissed the Church's appeal because Alencar's religious employment was not authorized under United States immigration law.

In 2011, Alencar and the Church filed a complaint in the United States District Court for the District of New Jersey to challenge the denial of Alencar's I-360 petition on several grounds, including that the Regulation was ultra vires to the INA. The District Court granted the plaintiffs' motion for summary judgement and invalidated the Regulation on the grounds that the Regulation's added requirement that the religious work be performed under "lawful immigration status" was inconsistent with the unambiguous language and statutory scheme of the INA. Further, the District Court found that any remand would be futile and ordered CIS to grant Alencar's I-360 petition.

The Government appealed to the Third Circuit Court the District Court's decision that the Regulation was illegal. Applying the two-step Chevron analysis, the Court dismissed the Government's argument, finding that Congress has directly and clearly spoken to the question at issue in the plain text of the statute. The Court first noted that the definition of "immigrant" in the INA includes aliens in both legal and illegal immigration status. Next, the Court looked to the ordinary meaning of "carrying on," as it is not defined in the INA, and found that it does not include a requirement of lawfulness. Finally, the Court found that the Regulation's requirements of "lawful immigration status" would render another section of the INA superfluous. This is the section that provides that a specified number of days (180) of unauthorized work will not disqualify special immigrant religious workers from applying for permanent residence status, thereby necessarily assuming that some workers will have engaged in unauthorized employment. This is directly counter to the Regulation, which would not allow a special immigrant religious worker to obtain an I-360 visa, a prerequisite for adjustment of status, if that worker had engaged in even a single day of unauthorized work during the two years preceding the visa petition.

Accordingly the Court struck down the Regulation, but it disagreed with the District Judge's decision to order CIS to grant Alencar his visa. The Court reasoned that CIS had no occasion to consider whether Alencar met the other requirements for the special immigrant religious worker program given the outcome that had been dictated by the Regulation. Therefore, the Court reversed the order granting the petition and remand the case to the District Court with instructions to remand to CIS for further fact-finding on whether Alencar satisfies the remaining criteria.

To read the full opinion, please visit

Panel (if known): Rendell, Greenaway, Jr., and Krause, Circuit Judges

Argument Date: September 8, 2014

Date of Issued Opinion: April 7, 2015

Docket Number: No. 13-4434

Decided: Affirmed District Court's order granting summary judgment and striking portion of INA as ultra vires; Reversed grant of Alencar's petition; Remanded to District Court for further fact-finding and proceedings consistent with this opinion

Case Alert Author: Jaclyn Poulton

Counsel for Appellants: Geoffrey Forney, Esq.; Melissa S. Leibman, Esq. (U.S. Dept of Justice, Office of Immigration Litigation)
Counsel for Appellees: William A. Stock, Esq.
Counsel for Amicus Appellee: Scott D. Pollock, Esq.

Author of Opinion: Judge Krause

Circuit: Third Circuit

Case Alert Supervisor: Professor Mark Anderson

    Posted By: Susan DeJarnatt @ 04/14/2015 09:13 AM     3rd Circuit  

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