Ruiz-Diaz et al v. United States of America et al, No. 2:2007cv01881 - Document 148 (W.D. Wash. 2011)
Court Description: ORDER denying pltfs' 141 Motion for Summary Judgment; granting dfts' 145 Cross Motion for Summary Judgment by Judge Robert S. Lasnik.(RS)(cc: atty Lyle D Jentzer)
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Ruiz-Diaz et al v. United States of America et al Doc. 148 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 _________________________________ 8 ) ) ) Plaintiffs, ) v. ) ) UNITED STATES OF AMERICA, ) et al., ) ) Defendants. ) _________________________________ ) GABRIEL RUIZ-DIAZ, et al., 9 10 11 12 13 No. C07-1881RSL ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 14 This matter comes before the Court on “Plaintiffs’ Motion for Summary 15 Judgment” (Dkt. # 141) and defendants’ “Cross-Motion for Summary Judgment” (Dkt. # 145). 16 Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court 17 finds as follows: 18 BACKGROUND 19 Plaintiffs represent a class of aliens holding special immigrant religious worker 20 visas. This type of visa is for foreign ministers and other religious workers and allows them to 21 stay in the United States for a maximum of five years. When the five-year period expires, the 22 alien must either depart or seek to adjust his status to that of a lawful permanent resident. 23 Failure to do one of these two things will make the alien’s presence in the United States 24 unlawful. If the alien overstays his visa by 180 days or more without having an adjustment of 25 status application pending before the United States Citizenship and Immigration Service 26 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 1 Dockets.Justia.com 1 (“CIS”), he will be subject to significant statutory penalties. Adjusting one’s status to that of a lawful permanent resident is a two-step process. 2 3 The organization that employs the alien must file a Form I-360 visa petition on behalf of the 4 alien. In addition, the alien must file a Form I-485 application for adjustment of status. The 5 order in which these filings may be made has changed over the years and now depends on the 6 category of alien at issue. Prior to 1991, all aliens seeking adjustment of status were permitted 7 to file their application for adjustment of status concurrently with their employer’s visa petition. 8 Between 1991 and 2002, the agency changed the process, such that the employer’s visa petition 9 had to be approved by the agency before the alien could submit an application for adjustment of 10 status. In an effort to make the process more efficient and to improve customer service, the 11 governing regulations were again changed in 2002 to allow alien workers in the first three 12 employment-based preference categories to file their visa petitions and adjustment of status 13 applications concurrently. 8 C.F.R. § 245.2(a)(2)(i)(B). Special immigrant visa holders, 14 including religious workers, were, and still are, excluded from concurrent filing. Thus, members 15 of the plaintiff class may file a Form I-485 application to adjust status only after CIS has 16 approved their employers’ Form I-360 petition. The date on which an alien is eligible to apply for adjustment of status is not 17 18 immaterial. Failure to have an application pending before CIS1 before the original five-year visa 19 period expires triggers the accrual of unlawful presence time. Every day of unlawful presence 20 reduces the 180-day grace period Congress provided for this class of alien and increases the 21 possibility that the alien or his family members will be detained and/or deported for being out of 22 status. If CIS delays processing the employer’s visa petition long enough, the religious worker 23 must depart from the United States and may lose the opportunity to file an application for 24 25 26 1 If an alien attempts to file a Form I-485 before obtaining approval of the employer’s visa petition, CIS rejects the application. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 2 1 adjustment of status. 8 C.F.R. § 245.1(a) (right to apply for adjustment of status is limited to 2 aliens who are physically present in the United States). If the alien remains in the United States 3 for more than 180-days after his original visa expires without being able to submit an application 4 to become a lawful permanent resident, he will be statutorily barred from ever seeking 5 adjustment of status and will be excluded from the United States for a period of three or ten 6 years. Plaintiffs allege that CIS’s policy of rejecting I-485 applications for adjustment of 7 8 status from religious workers unless and until the I-360 petition filed on their behalf has been 9 approved discriminates against certain classes of immigrants based on their religion and violates 10 the Religious Freedom Restoration Act (“RFRA”), the First Amendment, the Due Process 11 clause, and the Equal Protection clause.2 Plaintiffs seek summary judgment on their RFRA and 12 Equal Protection claims, while defendants seek summary judgment on all of the remaining 13 claims. DISCUSSION 14 15 A. RELIGIOUS FREEDOM RESTORATION ACT (“RFRA”), 42 U.S.C. § 2000bb-1 16 The Religious Freedom Restoration Act provides that the government “shall not 17 substantially burden a person’s exercise of religion” unless it demonstrates that the regulation 18 furthers a compelling governmental interest and is the least restrictive means of furthering that 19 interest. 42 U.S.C. § 2000bb-1(a)-(b). The fact that the burden on religion results from a rule of 20 general applicability will not save the regulation. Plaintiffs maintain that CIS’ policy of refusing 21 to accept concurrently-filed applications from religious workers substantially burdens their 22 exercise of religion. “Under RFRA, a ‘substantial burden’ is imposed only when individuals are forced 23 24 25 26 2 Plaintiffs’ claim that the policy against concurrent filing violates the governing statute, 8 U.S.C. § 1255(a), was dismissed on appeal. Ruiz-Diaz v. U.S., 618 F.3d 1055 (9th Cir. 2010). ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 3 1 to choose between following the tenets of their religion and receiving a government benefit 2 (Sherbert [v. Verner, 374 U.S. 398 (1963)]) or coerced to act contrary to their religious beliefs 3 by the threat of civil or criminal sanctions ([Wisconsin v. Yoder, 406 U.S. 205 (1972)].” Navajo 4 Nation v. U.S. Forest Serv., 535 F.3d 1058, 1069-70 (9th Cir. 2008). Plaintiffs argue that the 5 rule against concurrent filing is a substantial burden on their exercise of religion because they 6 face detention, deportation, and statutory penalties if they continue to serve their congregations 7 after their nonimmigrant visas expire. Motion (Dkt. # 141) at 14. Plaintiffs’ argument is based 8 on a causal relationship that is tenuous at best. Plaintiffs are subject to detention, deportation, 9 and statutory penalties not because they are following the dictates of their religion but because 10 their visas have expired. Plaintiffs’ initial authorization to live and work in this country was for 11 a limited period of time. At the expiration of the original visa, the alien is no longer welcome in 12 the United States and will, absent an extension or an adjustment of status, be separated from this 13 country and from the religious community he served while here. The bar against concurrent 14 filing may make it more difficult for religious workers to obtain a timely adjustment of status, 15 but it is not the reason plaintiffs face detention, deportation, and statutory penalties. 16 Plaintiffs’ RFRA argument challenges the overall immigration scheme of the 17 United States, at least to the extent that the scheme relies on visas to control admission to and 18 residence in this country. If plaintiffs’ argument is taken to its logical limits, whenever the 19 government attempts to expel a religious worker from the country it imposes a “substantial 20 burden” on the worker’s exercise of religion because expulsion would remove him from his 21 religious community and interfere with his practice of religion. The Court is willing to assume, 22 for purposes of this motion, that a government policy that effectively takes a religious worker 23 out of his community or deprives a congregation of its choice of clergy imposes a “substantial 24 burden” on the exercise of religion. Nevertheless, the Court finds that, at least in the 25 immigration context, such removals further a compelling government interest. “[T]he power to 26 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 4 1 exclude aliens is inherent in sovereignty, necessary for maintaining normal international 2 relations and defending the country against foreign encroachments and dangers . . . .” 3 Kleindienst v. Mandel, 408 U.S. 753, 765 (1972) (internal quotation marks omitted). Thus, 4 controlling admission to the United States and the circumstances under which aliens may reside 5 here is a compelling governmental interest. The use of visas to grant temporary admittance, 6 authorize certain stateside activities, and establish a departure date furthers that interest, and 7 there is no indication in the record that the visa process, including the power to deport aliens 8 who overstay their visas, is an overly restrictive means of achieving the government’s purpose. 9 If plaintiffs’ argument is interpreted more narrowly so that it is not a challenge to 10 the general immigration scheme but rather a challenge to the specific regulation at issue here, 11 plaintiffs have failed to show that the bar against concurrent filing for religious workers 12 independently imposes a substantial burden on plaintiffs’ exercise of religion under Navajo 13 Nation, 535 F.3d at 1069-70. 8 C.F.R. § 245.2(a)(2)(i)(B) specifies the relative timing for two 14 applications for government benefits or approvals. The delay in plaintiffs’ ability to file a Form 15 I-485 application does not compel plaintiffs to give up the tenets of their religion in order to 16 receive the desired approvals, nor does it coerce plaintiffs to act contrary to their religious beliefs 17 or face civil or criminal sanctions.3 Giving up one’s religious practices would not improve the 18 chances of obtaining adjustment of status or help the alien avoid deportation: in fact, abandoning 19 the religious work on which the alien’s admission was premised could preclude the requested 20 relief. According to the Ninth Circuit, the fact that a regulation may ultimately interfere with 21 plaintiffs’ ability to practice their religion or serve their religious community is “irrelevant” to 22 the substantial burden analysis. Snoqualmie Indian Tribe v. Fed. Energy Regulatory Comm’n, 23 545 F.3d 1207, 1214 (9th Cir. 2008). As long as the bar against concurrent filing neither “forces 24 25 3 26 The same can be said for the religious organizations that employ the individual plaintiffs. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 5 1 [plaintiffs] to choose between practicing their religion and receiving a government benefit [n]or 2 coerces them into a Catch-22 situation: exercise of their religion under fear of civil or criminal 3 sanction,” it does not impose a substantial burden under RFRA. Id. 4 Because plaintiffs have not shown that the bar on concurrent filing imposes a 5 substantial burden on their free exercise of religion, the government need not show that the 6 regulation furthers a compelling government interest in the least restrictive manner. Navajo 7 Nation, 535 F.3d at 1069. While the immigration laws of this country, including the issuance of 8 time-limited visas, may ultimately prevent the individual plaintiffs from continuing to serve their 9 religious organizations after their visas expire, that burden furthers a compelling government 10 interest and satisfies the dictates of RFRA. 11 B. EQUAL PROTECTION Plaintiffs argue that CIS has treated them differently from other immigrant groups 12 13 because they work for religious, rather than secular, organizations in violation of the Equal 14 Protection Clause. Plaintiffs maintain that the Court must strictly scrutinize any law burdening 15 the practice of religion and argue that the bar against concurrent filing is not narrowly tailored to 16 further a compelling governmental interest. Because this case involves Congress’ plenary power 17 to control immigration and naturalization, strict scrutiny is not appropriate. Masnauskas v. 18 Gonzales, 432 F.3d 1067, 1070-71 (9th Cir. 2005) (challenge to classification based on national 19 origin subject to rational basis test).4 “‘Line-drawing’ decisions made by Congress or the 20 21 22 23 24 25 26 4 But see Gonzalez -Medina v. Holder, __ F.3d __, 2011 WL 1313026 at *2 (9th Cir. April 7, 2011) (“Because Gonzalez-Medina does not allege discrimination on the basis of a suspect class, any differential treatment violates equal protection only if it lacks a ‘rational basis.’”); Abebe v. Mukasey, 554 F.3d 1203, 1206 (9th Cir. 2009) (“We note at the outset that the statute doesn’t discriminate against a discrete and insular minority or trench on any fundamental rights, and therefore we apply a standard of bare rationality” to plaintiff’s equal protection claim). Although both cases suggest that something more than a rational relationship might be required if a regulation discriminates on the basis of race, religion, sex, or national origin, neither case actually involved a suspect classification. Nor did they acknowledge or address Masnauskas’ application of the rational basis test to a classification based on ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 6 1 President in the context of immigration and naturalization must be upheld if they are rationally 2 related to a legitimate government purposes.” Ram v. INS, 243 F.3d 510, 517 (9th Cir. 2001). 3 Under the rational relation test, courts presume that immigration statutes and regulations are 4 constitutional. Masnauskas, 432 F.3d at 1071. The person challenging the governmental action 5 has the burden of negating “every conceivable basis which might support it.” Heller v. Doe, 509 6 U.S. 312, 320 (1993). Even if the legislative ends could be better achieved through different 7 means, courts will accept the classification as long as it is rationally related to the government’s 8 purpose. Id. 9 Defendants argue that, for purposes of the Equal Protection analysis, the treatment 10 of special immigrant religious workers should be compared only to the treatment of other 11 beneficiaries of the fourth visa preference category. Even if that were true, defendants 12 acknowledge that some non-religious beneficiaries of the fourth preference category are allowed 13 to file concurrently while religious workers, special immigrant physicians, Iraqi/Afghani 14 translators, and Panama Canal workers are not. Thus, even within the fourth preference 15 category, religious workers are treated less favorably than others within that category. 16 For purposes of this motion, the Court assumes that special immigrant religious 17 workers are treated differently than other similarly-situated aliens. Nevertheless, the Court finds 18 that the bar against concurrent filing is rationally related to the agency’s purpose of deterring 19 fraud in an area where there are virtually no objective standards for determining a religious 20 21 22 23 24 25 26 nationality which, like those based on race or sex, is inherently suspect. See Graham v. Richardson, 403 U.S. 365, 372 (1971). The Ninth Circuit generally recognizes that the political branches of government have broad and sweeping authority to control “admission, exclusion, removal, naturalization, [and] other matters pertaining to aliens,” and the Supreme Court has held that classifications which would be unacceptable if applied to citizens do not violate equal protection in the immigration context. Abebe, 554 F.3d at 1206; Fiallo v. Bell, 430 U.S. 787, 792-96 (1977). Given the level of deference the judiciary must afford the judgments of the legislative and political branches in this area, the Court finds that strict scrutiny is not appropriate even where a suspect classification has been used. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 7 1 organization’s need or for evaluating whether a particular applicant is qualified to fill an 2 available position. Government assessments have shown that fraud is a concern in the religious 3 worker visa program, and Congress has indicated that CIS needs to address the problem through 4 regulation. U.S. Government Accountability Office Report, Immigration Benefits: Additional 5 Controls and a Sanctions Strategy Could Enhance DHS’s Ability to Control Benefit Fraud (Dkt. 6 # 9, Ex. D, at 16-17); Special Immigrant Nonminister Religious Program Act, Pub. L. No. 110- 7 391, 122 Stat. 4193, 4193-94 (2008). Although the parties disagree regarding the degree of 8 fraud in the program and/or whether it exceeds the degree of fraud in other visa preference 9 categories, reducing fraud is obviously a concern to the agency regardless of its comparative 10 prevalence. Reducing fraud in a government benefits program is a legitimate government 11 12 purpose. Prohibiting the concurrent filing of I-360 petitions and I-485 applications may not be 13 the best means toward that end, but the two are rationally related. By requiring religious 14 organizations to file the I-360 petition first, CIS gives itself a period of time in which to 15 investigate the bona fides of the requesting religious organization and the prior work history of 16 the beneficiary before the alien obtains an extension on his residency, employment, and travel 17 authorizations. The bar on concurrent filings is a rational regulatory attempt to reduce fraud in 18 the religious worker program.5 Given the government’s legitimate interest in reducing fraud and 19 the broad deference courts show the determinations of the political branches in the context of 20 immigration, the bar on concurrent filings withstands scrutiny under the Equal Protection 21 Clause. 22 23 24 25 26 5 The fact that CIS has made other efforts to reduce fraud, such as imposing heightened documentation requirements, conducting site visits, and reviewing the employer’s tax status, does not mean that the bar on concurrent filing is not a rational means toward that same end. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 8 1 C. DUE PROCESS Defendants seek dismissal of plaintiffs’ due process claim on the ground that 2 3 plaintiffs are not entitled to file their adjustment of status applications before CIS approves the 4 employers’ visa petitions and therefore have no substantive interest protected by the Due Process 5 Clause. Plaintiffs argue that they are, in fact, statutorily eligible to apply for adjustment of status 6 (even if the decision to grant or deny the application is discretionary) and that the government 7 should not be allowed to deprive them of the chance to apply simply by delaying consideration 8 of the Form I-360 petition. The Ninth Circuit has rejected plaintiffs’ argument that they are statutorily entitled 9 10 to apply for adjustment of status before CIS approves the employer’s visa petition. The Ninth 11 Circuit found that the statute “is silent regarding when visa petitions and applications for 12 adjustment of status may be accepted and processed in relation to each other” and that the statute 13 does not prohibit consecutive filing. Ruiz-Diaz, 618 F.3d at 1060-61. Thus, the agency could, 14 consistent with the statute, require that the applicant obtain a visa before submitting his Form I- 15 485 application. Plaintiffs argue, however, that the bar against concurrent filing effectively 16 deprives class members of their ability to request adjustment of status if the agency delays 17 processing the visa petition. How this problem creates a due process concern is not clearly 18 stated. 19 Citing Ex Parte Hull, 312 U.S. 546, 548-49 (1941), plaintiffs suggest that any 20 regulation which impairs or abridges plaintiffs’ right to apply to the government for relief is 21 invalid. Ex Parte Hull involved a regulation that impaired a prisoner’s right to access the courts: 22 the offending regulation mandated that prison officials review and approve all court submissions 23 before they could be filed. The Supreme Court invalidated the regulation on the grounds that the 24 state and its officers could not interfere with the submission of a writ of habeas corpus and that 25 the courts, not the state, had the power to determine whether the petition was properly drawn. 26 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 9 1 Mr. Hull’s constitutional privilege of the writ of habeas corpus and right of access to the courts 2 were uncontested. In this case, the Ninth Circuit has already determined that plaintiffs have no 3 statutory, much less constitutional, right to apply for adjustment of status until after they obtain a 4 visa. Plaintiffs therefore have no life, liberty, or property interest in concurrent filing to which 5 the protections of the Due Process Clause could attach. Plaintiffs also suggest that defendants have violated the Due Process Clause 6 7 whenever they “excessively delayed adjudication of I-360 petitions,” thereby rendering the 8 applicant ineligible for adjustment of status. Plaintiffs’ Reply and Response (Dkt. # 146) at 6-7.6 9 Even if the Court assumes that CIS unreasonably delayed the adjudication of certain I-360 10 petitions, the remedy sought – namely, the invalidation of 8 C.F.R. § 245.2(a)(2)(i)(B) – would 11 not be appropriate. The bar against concurrent filing did not cause or otherwise give rise to the 12 excessive delay about which plaintiffs now complain. If plaintiffs have a right to faster 13 adjudication of the Form I-360 petitions, they should seek to enforce that right in the few 14 instances where it has been violated rather than attempting to invalidate an otherwise reasonable 15 procedural regulation. Other than their assertion that 8 U.S.C. §1255(a) gives them a right to concurrently 16 17 file, plaintiffs have not identified any other source of an entitlement to have their Form I-485 18 application accepted before a Form I-360 visa issues. Plaintiffs argue that 8 C.F.R. 19 § 245.2(a)(2)(i)(B) improperly interferes with congressional intent because Congress meant to 20 create a mechanism through which aliens could apply for permanent residence status without 21 having to leave the country. Plaintiff’s Reply and Response (Dkt. # 146) at 4. But Congress 22 6 23 24 25 26 Plaintiffs identify a handful of special immigrant religious workers who experienced significant and injurious delays in the adjudication of their I-360 petitions. Plaintiffs’ Reply and Response (Dkt. # 146) at 15. Whether a class action is the appropriate mechanism to handle these delay claims has not been decided by the Court: the class certified on June 30, 2008, is comprised of all individuals who were precluded from concurrent filing, regardless of the length of the delay in resolving the Form I-360 petition. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 10 1 also conferred on the Attorney General discretion to regulate the process of adjusting status, 2 including the relative timing of the applications. Ruiz-Diaz, 618 F.3d at 1061. One of the 3 regulations the agency issued requires special immigrant religious workers to have an approved 4 visa petition in hand before applying for adjustment of status, a requirement which the Ninth 5 Circuit upheld as consistent with the statute. Absent a legitimate entitlement to apply for 6 adjustment of status before obtaining CIS approval of the I-360 visa petition, no process is 7 constitutionally mandated. Plaintiffs’ due process claim therefore fails as a matter of law. 8 D. FIRST AMENDMENT The parties agree that the threshold for proving a RFRA violation is lower than 9 10 that required to prove a violation of the First Amendment. For the reasons discussed in Section 11 A above, plaintiffs’ First Amendment claim fails as a matter of law CONCLUSION 12 For all of the foregoing reasons, plaintiffs’ motion for summary judgment (Dkt. 13 14 # 141) is DENIED and defendants’ cross-motion for summary judgment (Dkt. # 145) is 15 GRANTED. The Clerk of Court is directed to enter judgment in favor of defendants and against 16 plaintiffs. 17 18 Dated this 10th day of May, 2011. 19 A 20 Robert S. Lasnik United States District Judge 21 22 23 24 25 26 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 11
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