Gabriel Ruiz-Diaz, et al v. USA, et al

Filing

FILED OPINION (MARY M. SCHROEDER, RONALD M. GOULD and JED S. RAKOFF) AFFIRMED. Judge: MMS Authoring, Judge: RMG , Judge: JSR . FILED AND ENTERED JUDGMENT. [8349912]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIEL RUIZ-DIAZ; HYUN SOOK
SONG; CINDY LEE MARSH; PETER
GILLETTE; PABLO SANDOVAL; YURIY
KASYANOV; LELIA TENREYRO-VIANA;
EDGARDO GASTON ROMERO
LACUESTA; ROSARIO RAZO ROMERO;
YOUN SU NAM; LAND OF MEDICINE;
UKRAINIAN AUTOCEPHALOUS
ORTHODOX CHURCH; SEATTLE
MENNONITE CHURCH; SALECK OULD
DAH OULD SIDINE; HAROLD
MICHAEL CARL LAPIAN,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA; UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES; UNITED
STATES DEPARTMENT OF HOMELAND
SECURITY; UNITED STATES
DEPARTMENT OF JUSTICE; JANET
NAPOLITANO, Secretary of
Department of Homeland Security;
ERIC H. HOLDER Jr., Attorney
General; ALEJANDRO MAYORKAS,
Director of Citizenship and
Immigration Services,
Defendants-Appellees.





No. 11-35580
D.C. No.
2:07-cv-01881-RSL
OPINION



Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
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RUIZ-DIAZ v. UNITED STATES

Argued and Submitted
August 27, 2012—Seattle, Washington
Filed October 5, 2012
Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Jed S. Rakoff,
Senior District Judge.*
Opinion by Judge Schroeder

*The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.

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RUIZ-DIAZ v. UNITED STATES

COUNSEL
Robert Pauw, Seattle, Washington, for plaintiffs-appellants
Gabriel Ruiz-Diaz, et al.
Melissa S. Leibman, Department of Justice, Washington, DC,
for defendants-appellees Unites States of America, et al.

OPINION
SCHROEDER, Circuit Judge:
Plaintiffs represent a class of non-citizen religious workers,
together with the organizations that employ them, who have
been admitted to this country on five-year special immigrant
religious worker visas. They challenge a Justice Department
regulation governing the process by which religious workers
can apply for adjustment of status pursuant to 18 U.S.C.
§ 1255(a). Under the regulation, 8 C.F.R. § 245.2(a)(2)(i)(B),
such employees are among the categories of applicants for
lawful permanent resident (“LPR”) status who cannot file
their visa applications concurrently with the petitions of their
sponsoring employers. The employees must wait for the Citizenship and Immigration Service (“USCIS”) to approve their
employers’ petitions before they can file applications. The
plaintiffs would like to be able to file the employees’ applications concurrently with the petitions of the sponsoring

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employers, as other categories of applicants for LPR status are
permitted to do.
The employment-based immigration visa statute, 8 U.S.C.
§ 1153(b), divides applicants for such visas into categories,
four of which are important here. The first-preference category is for “priority” workers, such as professional athletes
and professors; the second-preference is for professionals who
hold advanced degrees; and the third-preference is for other
skilled and unskilled workers. 8 U.S.C. § 1153(b)(1)-(3). The
fourth-preference category, into which plaintiffs here fall, are
“special immigrants.” 8 U.S.C. § 1153(b)(4). This category
includes religious workers and other specialized groups, such
as certain physicians and international broadcasters. 8 U.S.C.
§ 1101(a)(27).
The regulation at issue here allows concurrent filing for
employees in the first three employment-based immigration
categories: “the alien beneficiary’s adjustment application
will be considered properly filed whether submitted concurrently with or subsequent to the visa petition, provided that it
meets the filing requirements.” 8 C.F.R. § 245.2(a)(2)(i)(B).
The option to file concurrently is not extended to the fourthpreference category, which includes religious workers.
We have seen this case before, when we held that the regulation was not contrary to the statute and remanded to the district court to consider plaintiffs’ remaining contentions. RuizDiaz v. United States, 618 F.3d 1055 (9th Cir. 2010).
On remand, the district court rejected all of the plaintiffs’
remaining arguments, and the plaintiffs now raise three of
them on appeal. They are that the regulation violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.
§ 2000bb-1, and the constitutional protections of equal protection and due process. The contentions all stem from frustration with the lag in the agency’s processing of employers’
petitions and the resulting delay in plaintiffs’ ability to file

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their visa applications. If there is no pending visa application
when a plaintiff’s initial five-year visa expires, unlawful presence time begins to accrue, with deleterious immigration consequences. Therefore, as we have earlier stated, “Ruiz-Diaz’s
real concern is that USCIS does not process the petition for
a special immigrant religious worker visa soon enough.” RuizDiaz, 618 F.3d at 1061.
RELIGIOUS FREEDOM RESTORATION ACT
[1] Plaintiffs’ first contention is that the regulation violates
RFRA because it substantially burdens the exercise of their
religion. RFRA requires the federal government to show that
it is advancing a compelling interest through the least restrictive means possible where the government “substantially burden[s] a person’s exercise of religion,” even where, as here,
the burden results from a rule of general applicability. 42
U.S.C. § 2000bb-1. We have held that the government
imposes a substantial burden “only when individuals are
forced to choose between following the tenets of their religion
and receiving a governmental benefit or coerced to act contrary to their religious beliefs by the threat of civil or criminal
sanctions.” Navajo Nation v. U.S. Forest Serv., 535 F.3d
1058, 1070 (9th Cir. 2008) (en banc) (internal citations omitted).
In Navajo Nation, we cited Sherbert v. Verner, 374 U.S.
398 (1963), as an example of a forced choice that Congress
intended to prevent by passing RFRA. In Sherbert, the
Supreme Court found that an agency’s decision to deny
unemployment benefits because of a claimant’s religious
objection to working on Saturday burdened her exercise of
religion. Under those circumstances, the claimant was forced
to choose between the tenets of her religion—following the
prohibition on Saturday work—and receiving a governmental
benefit—unemployment payments. Id. at 405-06. Also in
Navajo Nation we cited Wisconsin v. Yoder, 406 U.S. 205
(1972), as an example of the second type of substantial bur-

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den on religious exercise RFRA was intended to prevent. In
Yoder, the Supreme Court held that a state criminal statute
that required parents to send their children to public or private
school infringed on the religious liberties of Amish parents
whose beliefs did not permit their children to attend high
school. Id. The Supreme Court in Employment Division v.
Smith, 494 U.S. 872 (1990), overruled Sherbert and Yoder,
and we held in Navajo Nation that by passing RFRA, Congress intended to restore those principles and prevent such
burdens on religious exercise in the future. Navajo Nation,
535 F.3d at 1067-69.
[2] The fundamental flaw in the plaintiffs’ reliance on
RFRA is that the challenged regulation does not affect their
ability to practice their religion. They are subject to removal
after five years because their visas have expired, not because
they are practicing their religion. Their inability to file their
applications concurrently with their employers’ petitions may
well delay religious workers from adjusting status before their
temporary visas expire, but it does not prevent them from
practicing their religion. Nor does the delay in their ability to
file visa applications require plaintiffs to give up any tenet of
their religion to access a government benefit, i.e., LPR status.
As the district court observed, “[g]iving up one’s religious
practices would not improve the chances of obtaining adjustment of status or help the alien avoid deportation: in fact,
abandoning the religious work on which the alien’s admission
was premised could preclude the requested relief.” Accordingly, the regulation does not impose a substantial burden on
plaintiffs’ religious exercise and therefore does not violate
RFRA.
EQUAL PROTECTION
Plaintiffs’ second contention is that the regulation violates
Equal Protection principles on the theory that it discriminates
on the basis of religion. The regulation, of course, does not
target any religious group. It affects all members of the

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fourth-preference visa category who have been admitted on
employment-based visas. See 8 U.S.C. § 1101(a)(27).
[3] Even assuming immigrant religious workers are being
treated differently from other employment-based visa applicants, the difference requires only a rational basis to survive
an Equal Protection challenge. See Fiallo v. Bell, 430 U.S.
787, 792 (1977); Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)
(“In the exercise of its broad power over naturalization and
immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens.”). The government has satisfied that standard. It has shown that there have been concerns about fraud in the religious worker visa program, and as
a result, the government has encountered difficulties in determining which applicants are bona fide religious workers. See,
e.g., U.S. Department of Homeland Security, U.S. Citizenship
and Immigration Services, Office of Fraud Detection and
National Security, Religious Worker Benefit Fraud Assessment Summary (2006); U.S. Government Accountability
Office, Immigration Benefits: Additional Controls and a
Sanctions Strategy Could Enhance DHS’s Ability to Control
Benefit Fraud 4 (2006).
[4] We apply rational basis rather than heightened scrutiny
because we defer to the political branches in the immigration
field. See Mathews, 426 U.S. at 81 (“Since decisions in
[immigration] matters may implicate our relations with foreign powers, and since a wide variety of classifications must
be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more
appropriate to either the Legislature or the Executive than to
the Judiciary.”); Ram v. I.N.S., 243 F.3d 510, 517 (9th Cir.
2001) (“’Line-drawing’ decisions made by Congress or the
President in the context of immigration and naturalization
must be upheld if they are rationally related to a legitimate
government purpose.”). The district court expressed it well
when it concluded:

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The bar on concurrent filings is a rational regulatory
attempt to reduce fraud in the religious worker program. Given the government’s legitimate interest in
reducing fraud and the broad deference courts show
the determinations of political branches in the context of immigration, the bar on concurrent filings
withstands [Equal Protection] scrutiny.
(footnote omitted).
DUE PROCESS
Plaintiffs’ third contention is that the regulation violates
due process. This argument also is rooted in the delays they
experience in having applications processed, delays that often
mean that their five-year visas have expired before their
employers’ petitions can be acted upon. Ruiz-Diaz, 618 F.3d
at 1062 (“[D]elay is in effect denial.”). Delay may indeed be
indicative of a system that is not working effectively. But the
regulatory bar against concurrent filings, enacted for valid
reasons, is not what gives rise to these delays. Rather, the
delays stem from routine processing times.
[5] While the regulation may compound frustration caused
by delay, plaintiffs cannot claim that their due process rights
have been violated unless they have some “legitimate claim
of entitlement” to have the petitions approved before their
visas expire. See Board of Regents v. Roth, 408 U.S. 564, 577
(1972) (requiring a “legitimate claim of entitlement” to a governmental benefit for due process analysis). We have already
held that the adjustment of status statute does not confer a
right to concurrent filings. See Ruiz-Diaz, 618 F.3d at 1061.
In Ruiz-Diaz, we held that the agency reasonably interpreted
the statute to mean that the agency had to approve the
employer’s petition for the visa before it considered the noncitizen’s application. “It is not manifestly contrary to the statute for the agency to accept the applications of alien beneficiaries of special immigrant religious worker visas for filing

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and processing only when [the petitions have been
approved].” Id. Beyond the statute, the plaintiffs point to no
other conceivable source of a claim of entitlement to concurrent filing or to earlier dispositions.
[6] Plaintiffs’ due process argument further relies on cases,
unlike this one, in which individuals had a statutory or constitutional right to the governmental benefit at issue. In Ex Parte
Hull, 312 U.S. 546 (1941), for example, the Supreme Court
struck down a prison regulation requiring all inmate legal
documents to be cleared by the parole board. The Court found
that the regulations prevented prisoners from filing petitions
for writs of habeas corpus and were thus unconstitutional. Id.
at 549. Similarly, in Orantes-Hernandez v. Thornburgh, 919
F.2d 549 (9th Cir. 1990), we upheld an injunction requiring
an immigration agency to give notice to certain refugees of
their statutory right to apply for asylum, because the agency
had impeded the refugees’ ability to apply. Id. at 557. In contrast, here we have explicitly found that the underlying statute
does not confer a right of concurrent application to the plaintiffs. Ruiz-Diaz, 618 F.3d at 1061. Therefore, even if the regulation makes it more difficult for plaintiffs to obtain
adjustment of status, it does not violate due process as there
is no legitimate statutory or constitutional claim of entitlement
to concurrent filings.
In sum, the regulation does not bar religious workers from
applying for adjustment of status. The regulation has only the
practical effect of making it necessary for religious employers
to file visa petitions earlier. There is therefore no violation of
plaintiffs’ due process rights.
AFFIRMED.

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