EMBASSY OF THE BLESSED KINGDOM OF GOD FOR ALL NATIONS CHURCH et al v. HOLDER et al
Filing
15
MEMORANDUM AND/OR OPINIONSIGNED BY HONORABLE HARVEY BARTLE, III ON 8/28/13. 8/28/13 ENTERED AND COPIES EMAILED.(rf, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EMBASSY OF THE BLESSED
KINGDOM OF GOD FOR ALL
NATIONS CHURCH, et al.
v.
:
:
:
:
:
:
:
ERIC H. HOLDER, et al.
CIVIL ACTION
NO. 13-41
MEMORANDUM
Bartle, J.
August 28, 2013
Plaintiffs Embassy of the Blessed Kingdom of God for
all Nations Church, God's Embassy Church, and Mykhaylyk Oleksandr
("Oleksandr") have sued the following defendants in their
official capacities:
Eric H. Holder, the United States Attorney
General; Janet Napolitano, the United States Secretary of the
Department of Homeland Security; Alejandro Mayorkas, the Director
of the United States Citizenship and Immigration Services
("U.S.C.I.S."); and Evangelia Klapakis, the Field Office Director
of U.S.C.I.S. Philadelphia, Pennsylvania Field Office.
Count I
of plaintiffs' complaint seeks judicial review under the
Administrative Procedure Act ("APA"), Count II petitions for a
writ of mandamus, and Count III alleges that the defendants have
violated the Fifth Amendment of the United States Constitution.
The defendants have moved to dismiss partially the
complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules
of Civil Procedure.
Since that filing, we have dismissed as
unopposed all allegations with regard to the Form I-360 Special
Immigrant Religious Worker Petition filed on May 18, 2012 ("2012
Petition") and Count II of the complaint, entitled "Violation of
28 U.S.C. § 1361, The Law of Mandamus."
The defendants are not
moving to dismiss Count I of the complaint, entitled "Violation
of APA, 5 U.S.C. § 702," as it relates to the Form I-360 Special
Immigrant Religious Worker Petition filed on August 31, 2009
("2009 Petition").
All that remains presently for disposition is
Count III of the complaint, entitled "Constitutional Due Process
Claims," as it relates to the 2009 Petition.
The defendants seek
the dismissal of this count under Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim upon which
relief can be granted.
The following facts are undisputed or taken in the
light most favorable to the plaintiffs.
God's Embassy Church,
located in Sacramento, California, ("God's Embassy Church of
Sacramento") sponsored Oleksandr to enter the United States with
an R-1 nonimmigrant religious work visa.
At the time, God's
Embassy Church of Sacramento was affiliated with the Embassy of
the Blessed Kingdom of God for All Nations Church, located in
Ukraine (the "Embassy in Ukraine").
Oleksandr entered the United
States with R-1 nonimmigrant status on April 7, 2008.
A little
more than a year later, God's Embassy Church of Sacramento filed
the 2009 Petition.
In this petition, God's Embassy Church of
Sacramento was acting as an associated and affiliated branch of
the Embassy in Ukraine.
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Over two years later, on November 9, 2011, U.S.C.I.S.
sent a notice of intent to deny the 2009 Petition to which the
plaintiffs timely responded.
While the 2009 Petition was
pending, God's Embassy Church of Sacramento had ceased to be
affiliated with the Embassy in Ukraine.
However, Oleksandr had
established an affiliate of the Embassy in Ukraine in
Philadelphia, Pennsylvania ("God's Embassy Church of
Philadelphia").
The plaintiffs responded to the notice of intent
to deny and explained that God's Embassy Church of Philadelphia
is the "full successor in interest in terms of the religious
representation of" the Embassy of Ukraine and requested that
God's Embassy Church of Philadelphia be substituted for God's
Embassy Church of Sacramento in the 2009 Petition.
On March 21,
2012, U.S.C.I.S. denied the 2009 Petition.
On April 10, 2013, God's Embassy Church of Philadelphia
filed a form I-290B, which was a motion to reconsider the denial
of the 2009 Petition.
This motion was denied by the
Administrative Appeals Office of U.S.C.I.S. on October 24, 2012.
However, before the motion was denied, God's Embassy Church of
Philadelphia had filed the 2012 Petition.
On June 6, 2012,
U.S.C.I.S. informed God's Embassy Church of Philadelphia that it
was holding the 2012 Petition until the motion to reconsider the
denial of the 2009 Petition was addressed.
The plaintiffs filed
their complaint in this court on January 4, 2013.
On May 14,
2013, U.S.C.I.S. issued a decision denying the 2012 Petition.
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The third count of the plaintiffs' complaint, as it
applies to the 2009 Petition, alleges that the denial of the 2009
Petition violates the plaintiffs' due process rights under the
United States Constitution.
Specifically, the plaintiffs aver
that U.S.C.I.S. "violated the due process of law by impermissibly
narrowly interpreting the statute and refusing to allow amendment
of the [2009] Petition despite clear congressional intent to
allow the issuance of immigrant visas to bona fide ministers
affiliated with bona fide religious denominations."
They appear
to claim violations of both substantive and procedural due
process.
The Due Process Clause of the Fifth Amendment to the
United States Constitution guarantees that "no person shall ...
be deprived of life, liberty, or property, without due process of
law."
U.S. Const. amend. V.
The due process protections of the
Fifth Amendment extend to "all persons within the territory of
the United States ... and ... even aliens shall not be ...
deprived of life, liberty, or property without due process of
law."
Wong Wing v. United States, 163 U.S. 228, 238 (1896); see
also Reno v. Flores, 507 U.S. 292, 306 (1993).
The plaintiffs appear to have brought the third count
of their complaint directly under the Fifth Amendment of the
United States Constitution.
The Supreme Court has held that "a
cause of action and a damages remedy can be implied directly
under the Constitution when the Due Process Clause of the Fifth
Amendment is violated."
Davis v. Passman, 442 U.S. 228, 230
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(1979) (citing Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388 (1971)); see also Schweiker v. Chilicky, 487 U.S. 412,
428-429 (1988).1
However, the Supreme Court has further
explained that actions brought directly under the Constitution
are precluded if there is an "alternative, existing process for
protecting the interest."
See Wilkie v. Robbins, 551 U.S. 537,
550 (2007).
There is an alternative existing process for protecting
the plaintiffs' substantive due process interests.
have sued under that process.
Indeed, they
They request the same remedy under
both the APA and the United States Constitution, that is, that
the court declare the denial of the 2009 Petition to be contrary
to law and order the U.S.C.I.S. to grant the 2009 Petition.
The
APA contains a mechanism for reviewing a final agency action
under 5 U.S.C. § 702, which provides that "[a] person suffering
legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof."
§ 702.
5 U.S.C.
Furthermore 5 U.S.C. § 706 provides:
To the extent necessary to decision and when
presented, the reviewing court shall decide
all relevant questions of law, interpret
constitutional and statutory provisions, and
determine the meaning or applicability of the
terms of an agency action. The reviewing
court shall--
1. The Supreme Court has not had occasion to pass upon the right
to equitable relief under claims brought directly under the
Constitution.
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(1) compel agency action unlawfully
withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency
action, findings, and conclusions found to
be-(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance
with law;
(B) contrary to constitutional right,
power, privilege, or immunity;
(C) in excess of statutory
jurisdiction, authority, or limitations, or
short of statutory right;
(D) without observance of procedure
required by law;
(E) unsupported by substantial evidence
in a case subject to sections 556 and 557 of
this title or otherwise reviewed on the
record of an agency hearing provided by
statute; or
(F) unwarranted by the facts to the
extent that the facts are subject to trial de
novo by the reviewing court.
Count I of the plaintiffs' complaint validly seeks injunctive
relief under the APA.
Accordingly, the plaintiff's substantive
due process constitutional claims are precluded.
The plaintiffs have also received procedural due
process.
Procedural due process imposes constraints on
governmental decisions that deprive individuals of certain types
of liberty or property interests.
See Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 569-70 (1972).
When the federal
government seeks to deprive an individual of a liberty or
property interest within the meaning of the Fifth Amendment's Due
Process Clause, the individual must be afforded notice of the
charges and the evidence against him or her and an opportunity to
be heard.
Cleveland Board of Educ. v. Loudermill, 470 U.S. 532,
542, 546 (1985).
However, a full evidentiary hearing is not
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always required.
Id. at 545.
"Due process is flexible and calls
for such procedural protections as the particular situation
demands."
Gilbert v. Homar, 520 U.S. 924, 930 (1997) (citation
omitted).
The plaintiffs were provided with notice and an
opportunity to be heard.
They submitted a response with
objections once they received notice of intent to deny their
petition from U.S.C.I.S.
Then, as noted above, they submitted a
motion to reconsider the denial of the 2009 Petition.
The
Administrative Appeals Office provided an explanation when it
rejected this motion.
This process was sufficient procedural due
process since it provided "the opportunity to be heard at a
meaningful time and in a meaningful manner."
Matthews v.
Eldridge, 424 U.S. 319, 333 (1976) (internal quotations and
citations omitted).
For these reasons, we will grant the motion of the
defendants to dismiss Count III of the plaintiffs' complaint.
Count I of the plaintiffs' complaint, as it relates to the 2009
Petition, remains.
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