EMBASSY OF THE BLESSED KINGDOM OF GOD FOR ALL NATIONS CHURCH et al v. HOLDER et al

Filing 28

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 3/20/14. 3/20/14 ENTERED AND COPIES EMAILED.(rf, )

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 HOLDER, et al.

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CIVIL ACTION

NO. 13-041

MEMORANDUM
Bartle, J.

March 20, 2014

Plaintiffs Embassy of the Blessed Kingdom of God for All
Nations Church (“Embassy Ukraine”), God’s Embassy Church located in
Philadelphia, Pennsylvania (“Embassy Philadelphia”), and Pastor
Mykhaylyk Oleksandr (“Oleksandr”) bring this action against United
States Attorney General Eric Holder, Secretary of the United States
Department of Homeland Security Rand Beers, Director of the United
States Citizenship and Immigration Services (“USCIS”) Alejandro
Mayorkas, and USCIS District Director Evangelia Klapakis (together
with all defendants, the “Government”) under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 701 et seq.

The plaintiffs seek

to set aside as arbitrary and capricious USCIS’s decision denying a
2009 special immigrant petition filed for Oleksandr’s benefit by
his employer, God’s Embassy Church located in Sacramento,
California (“Embassy Sacramento”).

Before us are the parties’ cross-motions for summary
judgment filed under Rule 56 of the Federal Rules of Civil
Procedure.

The Government has additionally moved to dismiss

Oleksandr as a plaintiff for lack of subject-matter jurisdiction
under Rule 12(b)(1) of the Federal Rules of Civil Procedure.1
I.
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).

When, as here, the parties cross-move for summary judgment

on an administrative record, they “essentially contend[] that no
issue of material fact exists.”

Moros v. Conn. Gen. Life Ins. Co.,

Civil Action No. 12-5468, 2014 WL 323249, at *2 (E.D. Pa. Jan. 29,
2014).

The propriety of an agency’s decision is therefore “a

question of law, and only a question of law.”

Marshall Cnty.

Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993).
Review is limited to the administrative record that existed before
the agency at the time of the decision, which must be judged solely
1

The plaintiffs’ complaint contained an additional count
seeking a writ of mandamus under 28 U.S.C. § 1361. This count
was dismissed as unopposed on August 27, 2013. The plaintiffs
also brought a count seeking relief under the Due Process Clause
of the Fifth Amendment of the United States Constitution. We
dismissed this count under Rule 12(b)(6) of the Federal Rules of
Civil Procedure on August 28, 2013. Embassy of the Blessed
Kingdom of God for All Nations Church v. Holder, Civil Action
No. 13-041, 2013 WL 4551208 (E.D. Pa. Aug. 28, 2013).
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on the grounds raised by the agency.

See Dia v. Ashcroft, 353 F.3d

228, 241 (3d Cir. 2003); C.K. v. N.J. Dep’t of Health & Human
Servs., 92 F.3d 171, 172 (3d Cir. 1996).
II.
This lawsuit concerns USCIS’s denial of a petition filed
by Embassy Sacramento on September 3, 2009 to obtain special
immigrant status for Oleksandr.

Under the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., up to 5,000 visas
are available to “special immigrants” each year.
§ 1153(b)(4).

8 U.S.C.

One type of special immigrant eligible for such a

visa is a religious worker.

Id. § 1101(a)(27)(C).

A religious

worker is an individual who
(i)

for at least 2 years immediately preceding the time
of application for admission, has been a member of
a religious denomination having a bona fide
nonprofit, religious organization in the United
States;
(ii) seeks to enter the United States—
(I)
solely for the purpose of carrying on the
vocation of a minister of that religious
denomination,
(II) before September 30, 2015, in order to work
for the organization at the request of the
organization in a professional capacity in a
religious vocation or occupation, or
(III) before September 30, 2015, in order to work
for the organization (or for a bona fide
organization which is affiliated with the
religious denomination and is exempt from
taxation as an organization described in
section 501(c)(3) of Title 26) at the request
of the organization in a religious vocation
or occupation; and

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(iii) has been carrying on such vocation, professional
work, or other work continuously for at least the
2-year period described in clause (i).
Id. (emphasis added).2

The United States Department of Homeland

Security’s interpretation of this provision hews closely to the
statutory text, explaining in relevant part that
To be eligible for classification as a special
immigrant religious worker, the alien (either
abroad or in the United States) must:
(1) For at least the two years immediately
preceding the filing of the petition have
been a member of a religious denomination
that has a bona fide non-profit religious
organization in the United States.
(2) Be coming to the United States to work in
a full time (average of at least 35 hours
per week) compensated position in one of
the following occupations...:
(i) Solely in the vocation of a minister
of that religious denomination;
(ii) A religious vocation either in a
professional or nonprofessional
capacity; or
(iii) A religious occupation either in a
professional or nonprofessional
capacity.
(3) Be coming to work for a bona fide nonprofit religious organization in the
United States, or a bona fide
organization which is affiliated with the
religious denomination in the United
States.

2

Regulations define “religious denomination” as “a religious
group or community of believers that is governed or administered
under a common type of ecclesiastical government” and that
reflects one or more of a series of traits evidencing a
commonly-held set of beliefs. 8 C.F.R. § 204.5(m)(5). A “bona
fide organization which is affiliated with the religious
denomination” is “an organization which is closely associated
with the religious denomination” that is exempt from taxation
under 26 U.S.C. § 501(c)(3). Id.
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(4)

Have been working in one of the positions
described in paragraph (m)(2) of this
section, either abroad or in lawful
immigration status in the United States,
and after the age of 14 years
continuously for at least the two-year
period immediately preceding the filing
of the petition.

8 C.F.R. § 204.5(m) (emphasis added).
To establish religious worker status, either the alien
or his or her prospective United States employer must petition
USCIS by filing Form I-360.

8 C.F.R. § 204.5(m)(6).

“An

applicant or petitioner must establish that he or she is
eligible for the requested benefit at the time of filing the
benefit request and must continue to be eligible through
adjudication.”

8 C.F.R. § 103.2(b)(1).

eligibility rests with the petitioner.

The burden of proving

8 U.S.C. § 1361.

Oleksandr arrived in the United States in April 2008,
holding a temporary visa obtained for him by Embassy Sacramento.
Oleksandr’s function with this church was to establish and
develop Embassy Philadelphia, which, similar to the California
organization, was to serve as a representative extension of
Embassy Ukraine in the United States.

Philadelphia, it turned

out, was Oleksandr’s place of employment throughout the relevant
time period.

As noted above, on September 3, 2009, Embassy

Sacramento filed a Form I-360 petition on his behalf, acting as
an associated and affiliated branch of Embassy Ukraine.

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After the petition was filed, USCIS undertook an
investigation to determine whether Oleksandr was working for
Embassy Sacramento as required under the statute and
regulations.

See 8 U.S.C. § 1101(a)(27)(C); 8 C.F.R.

§ 204.5(m)(3).

USCIS conducted a site visit in Sacramento

pursuant to this investigation.

The visit revealed that there

were multiple businesses at the address provided by Embassy
Sacramento, and the investigating officer tried and failed to
reach either Oleksandr or Embassy Sacramento.

Unable to verify

that Oleksandr worked for the church or the church’s eligibility
as a bona fide non-profit organization, USCIS sent a notice of
intent to deny the I-360 petition to Embassy Sacramento on
August 11, 2010.
After Embassy Sacramento responded to the notice of
intent to deny, USCIS conducted a second site visit at
Oleksandr’s place of employment in Philadelphia on September 27,
2010.

There were once again no signs showing that the address

listed was used as a church.

The investigating officer

thereafter visited Oleksandr at his home, where Oleksandr
explained that he had been running missionary training, drug and
alcohol counseling, and youth programs in Philadelphia.
In addition, although Embassy Sacramento had
originally provided documentation showing that it was exempt
from taxation under 26 U.S.C. § 501(c)(3), the USCIS
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investigator also discovered that Oleksandr had taken steps to
obtain tax-exempt status for Embassy Philadelphia by
establishing it as a subordinate of an organization called the
International Congress of Churches and Ministers (“ICCM”).3
There is no evidence to suggest that the ICCM is affiliated with
Embassy Sacramento or Embassy Ukraine.

The ICCM had supplied

Oleksandr with a letter approving Embassy Philadelphia as its
subordinate and a copy of correspondence from the Internal
Revenue Service to the ICCM confirming that the organization’s
subordinates would enjoy tax-exempt status.

When asked why he

took this action independently of Embassy Sacramento, Oleksandr
explained that it was beneficial to establish tax-exempt status
through more than one source.
On November 9, 2011, USCIS issued a second notice of
intent to deny the I-360 petition.

It cited the questionable

circumstances surrounding Oleksandr’s affiliation with the ICCM
and the lack of information covering the relationship between
Embassy Sacramento, the petitioning organization, and Embassy
Philadelphia, where Oleksandr worked.

In sum, USCIS had

determined that there was insufficient evidence to demonstrate
any bona fide affiliation between Embassy Sacramento and Embassy
Philadelphia.
3

ICCM charges a $650 fee to obtain subordinate status and
requires the pastors of churches that affiliate with it to
become ordained through the ICCM.
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Embassy Philadelphia, not Embassy Sacramento,
responded to USCIS’s concerns by submitting several exhibits and
an amended I-360 petition that substituted Embassy Philadelphia
for Embassy Sacramento as the petitioning organization.

Along

with this information, Embassy Philadelphia included a
November 28, 2011 letter from Embassy Ukraine explaining that it
no longer recognized Embassy Sacramento as a member of its
network of churches.

According to the letter, Embassy

Philadelphia, under Oleksandr’s leadership, was the “full
‘Successor of Interest’” of Embassy Sacramento’s relationship
with Embassy Ukraine.

USCIS denied the 2009 I-360 petition

because Embassy Sacramento, as the petitioning organization, did
not establish that Oleksandr had been and would be working for it
as required pursuant to 8 U.S.C. § 1101(a)(27)(C) and 8 C.F.R.
§ 204.5(m)(3).
On April 10, 2012, “God’s Embassy Church” attempted to
appeal the denial to the USCIS Administrative Appeals Office
(“AAO”).

The form used to initiate the appeal was signed by

Tatiana Aristova, an attorney who now represents the plaintiffs
in this action.

The form did not reveal which God’s Embassy

entity was responsible for the appeal.

The notice of appearance

accompanying the appeal was executed by Oleksandr on behalf of
“The Embassy of God Church” with an address in Philadelphia and

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not by any representative of Embassy Sacramento, the original
petitioning organization.4
The AAO “reject[ed] the appeal or, in the alternative,
summarily dismiss[ed] the appeal” on October 24, 2012.

The AAO

explained that Ms. Aristova did not have appropriate authority
to file the appeal because she did not represent Embassy
Sacramento, the petitioning organization.

Under relevant

regulations, an appeal not filed by the petitioner must be
rejected.

8 C.F.R. § 103.3(a)(2)(v)(A)(1).

In the alternative,

even if the appeal had been properly filed, the AAO explained
that it would have summarily dismissed it because the evidence
demonstrated that Oleksandr would not be working for Embassy
Sacramento, the petitioning organization, in the future.

The

AAO could not recognize the attempted substitution of Embassy
Philadelphia for Embassy Sacramento as the petitioner because
“[e]ligibility must be established at the time of filing.”
III.
We first discuss the Government’s motion to dismiss the
claim of Oleksandr under Rule 12(b)(1) of the Federal Rules of
Civil Procedure for lack of subject-matter jurisdiction on the

4

Embassy Philadelphia also filed a new Form I-360 for Oleksandr
in May 2012. USCIS denied this new petition on May 14, 2013
because Oleksandr had not applied for employment authorization
as required. Embassy Philadelphia appealed this denial, though
it is unclear to whom it did so. According to the plaintiffs’
brief, adjudication of the appeal is presently pending.
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ground that he lacks constitutional standing.

Our jurisdiction is

limited under Article III of the United States Constitution to
“cases or controversies,” and one element of this “bedrock
requirement” is standing to sue.

Reilly v. Ceridian Corp., 664

F.3d 38, 41 (3d Cir. 2011) (quoting Raines v. Byrd, 521 U.S. 811,
818 (1997)).

Constitutional standing exists when a plaintiff

demonstrates injury-in-fact, causation, and redressability.

Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
According to the Government, Oleksandr does not have
constitutional standing because he has not suffered “an invasion of
a legally protected interest” sufficient to show an injury-in-fact,
and he has not demonstrated that a favorable decision would redress
any injury he conceivably could have suffered.

See Ballentine v.

United States, 406 F.3d 806, 814 (3d Cir. 2007).

The Government

reasons that since Oleksandr, a mere beneficiary of the 2009 I-360
petition, does not have standing to appeal the denial of that
petition as a regulatory matter, he also does not have standing as
a constitutional matter.

See 8 C.F.R. § 103.3(a)(1)(iii)(B).

The

Government cites a body of cases from other courts that concern
visa matters other than I-360 petitions.

See, e.g., Echevarria v.

Keisler, 505 F.3d 16, 18 (1st Cir. 2007); Ibraimi v. Chertoff,
Civil Action No. 07-3644, 2008 WL 3821678, at *3 (D.N.J. Aug. 12,
2008).

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This authority notwithstanding, we will follow the wellreasoned decision of the district court in Shalom Pentecostal
Church v. Napolitano.

Civil Action No. 11-4491, 2013 WL 162986, at

*3 (D.N.J. Jan. 15, 2013).

In Shalom Pentecostal, the court

decided that the non-petitioning beneficiary of an I-360 petition
for a special immigrant religious worker classification has
constitutional standing to contest USCIS action in federal court.
Shalom Pentecostal, 2013 WL 162986, at *3.
The court noted the key distinction between standing to
pursue a regulatory appeal and standing as a constitutional matter:
To be sure, a number of courts have held that
the beneficiary of a visa petition, like [the
alien], has no standing to challenge visa
petition proceedings.... These [c]ourts,
however, have grounded that finding in the
regulatory requirement that only the
petitioner, and not the petition's
beneficiary, are considered an “affected
party” with “legal standing” to file an appeal
of an unfavorable visa petition decision....
But whether a litigant has constitutional
standing to sue in federal court “is not
dependent on any agency regulation.”
Id. (citations omitted).

The court in Shalom Pentecostal concluded

that the alien had indeed suffered an injury-in-fact under Lujan in
the form of denial of an I-360 petition filed for his benefit.

Id.

The alien further demonstrated redressability, since a favorable
decision would result in the granting of the I-360 petition sought.
Id. at *4.

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The present case is substantially identical to Shalom
Pentecostal in this respect.

Oleksandr is the beneficiary of the

2009 I-360 petition, not the affected party.

As such, even

assuming that he does not have standing to appeal the denial of
that petition to the AAO as a regulatory matter, see 8 C.F.R.
§ 103.3(a)(1)(iii)(B), Oleksandr has suffered a concrete,
particularized injury-in-fact because the Form I-360 filed for his
benefit has been denied, foreclosing to him an opportunity to
lawfully remain and work in the United States.
2013 WL 162986, at *3.

Shalom Pentecostal,

A favorable decision in the instant lawsuit

would serve to redress that injury by setting aside the denial of
the I-360 petition as arbitrary and capricious.
U.S.C. § 706(2)(A).

Id. at *4; 5

Therefore, Oleksandr has demonstrated the

requirements for constitutional standing under Lujan, and we
conclude that we have subject-matter jurisdiction over his claims.
Id.; Lujan, 504 U.S. at 560-61.

The motion of the Government to

dismiss Oleksandr for lack of subject-matter jurisdiction will be
denied.
IV.
We turn to USCIS’s denial of the 2009 I-360 petition
filed by Embassy Sacramento for Oleksandr’s benefit.

When

reviewing agency action under the APA, we must “hold unlawful and
set aside agency action” that is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.”
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5 U.S.C.

§ 706(2)(A).

An agency action is arbitrary and capricious if the

agency
has relied on factors which Congress has not
intended it to consider, entirely failed to
consider an important aspect of the problem,
offered an explanation for its decision that
runs counter to the evidence before the
agency, or is so implausible that it could not
be ascribed to a difference in view or the
product of agency expertise.
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983).

“The scope of review under this standard ‘is

narrow and a court is not to substitute its judgment for that of
the agency.’”

Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Kempthorne,

497 F.3d 337, 347 (3d Cir. 2007) (quoting Motor Vehicle Mfrs., 463
U.S. at 43).
In the present action neither Oleksandr, nor his
attorney, nor Embassy Philadelphia has met the requirements
necessary as an administrative matter to appeal the denial of the
2009 I-360 petition to the AAO.

To appeal the denial of an I-360

petition, “[t]he affected party must submit an appeal on Form
I-290B.”

8 C.F.R. § 103.3(a)(2)(i).

The “affected party” is “the

person or entity with legal standing in a proceeding.”
§ 103.3(a)(1)(iii)(B).

8 C.F.R.

“It does not include the beneficiary of a

visa petition,” even though an alien could file an I-360 petition
on his or her own behalf at the outset.
§ 204.5(m)(6).

Id. § 103.3(a)(1)(iii)(B);

An appeal filed by a person other than the affected

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party must be rejected as improperly filed.

8 C.F.R.

§ 103.3(a)(2)(v)(A)(1).
The affected party in this matter was Embassy
Sacramento, the original petitioner.
appeal.

It did not file the AAO

Instead, the appeal was filed through the plaintiffs’

present attorney in the name of “God’s Embassy Church” without
any further identification.

The notice of appearance

accompanying the appeal, executed by Oleksandr himself, shows
that a “God’s Embassy Church” with a Philadelphia address
authorized Ms. Aristova to represent it.

This stands in

contrast to the original I-360 petition executed by Embassy
Sacramento’s President and listing “God’s Embassy Church” with
an address in Sacramento, California as the petitioning
organization.

Because Embassy Sacramento did not file the

appeal, the AAO properly rejected it under duly promulgated
regulations.
Nowhere do the plaintiffs challenge the validity of the
regulations upon which the AAO relied, and we have been directed to
no statute governing who may file an administrative appeal of a
denial of a religious worker petition.

We therefore have no basis

upon which to question the AAO’s decision to reject the appeal as
improperly filed.

See Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984).
judgment will be granted in favor of the Government.
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Summary

Even if the appeal had been properly filed, USCIS’s
decision to deny the 2009 I-360 petition would still survive our
review.

The denial was in fact a series of decisions, all

ultimately grounded in the failure to meet the requirement that the
beneficiary is “coming to work for a bona fide non-profit religious
organization in the United States, or a bona fide organization
which is affiliated with the religious denomination in the United
States.”

8 C.F.R. § 204.5(m)(3).

It is the plaintiffs’ position

that these decisions are “ultra vires” because Oleksandr had a
continuous relationship with Embassy Ukraine, and no specific
statutory or regulatory provision prohibits substitution of a
petitioner.
Unfortunately for the plaintiffs, the standard of review
in this case forecloses their argument.

See Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
The Government based its decisions on factors Congress intended it
to consider, specifically the existence of a prospective employment
relationship, or lack thereof, between the beneficiary and a nonprofit religious denomination or associated non-profit
organization.

8 U.S.C. § 1101(a)(27)(C); 8 C.F.R. § 204.5(m)(3).

The evidence demonstrates a schism between Embassy Ukraine and
Embassy Sacramento, a separation between Embassy Sacramento and
Oleksandr, and no relationship between Embassy Sacramento and
Embassy Philadelphia.

The evidence also shows Oleksandr’s
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problematic attempt to establish Embassy Philadelphia’s non-profit
status through the ICCM.

The plaintiffs have not established any

relationship between the ICCM and Embassy Ukraine or the ICCM and
Embassy Sacramento.

The Government could not initially find

Embassy Sacramento at its given address when it went looking for
it.

In addition, the Government found no existing church at the

address for Embassy Philadelphia.
in this city.

Oleksandr was found at his home

USCIS therefore made a plausible determination that

Embassy Ukraine’s substitution of Embassy Philadelphia as its
“daughter church” was insufficient to overcome the serious gaps in
the record regarding Oleksandr’s employment in the United States by
a qualified organization.

See Motor Vehicle Mfrs., 463 U.S. at 43.

Furthermore, the plaintiffs have not given any specific
explanation why USCIS’s decision “runs counter to the evidence
before the agency.”

Id.

They rely instead on an argument that the

attempted replacement of Embassy Sacramento as the petitioner was
not material and should have been permitted in the absence of a
specific statutory prohibition.
An agency’s interpretation of its own regulations is
entitled to deference when it is not plainly erroneous or
inconsistent with the regulations.

Chase Bank USA, N.A. v. McCoy,

131 S. Ct. 871, 880 (2011) (quoting Auer v. Robbins, 519 U.S.
452, 461 (1997)).

In this case, USCIS’s regulations contain

detailed evidentiary requirements to establish a prospective
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employment relationship between the I-360 beneficiary and the
employing organization.

8 C.F.R. § 204.5(m)(6)-(12).

Given the

importance of the employment relationship to religious worker
eligibility, USCIS interpreted these regulations not to permit
substitution of an employer.

This interpretation is neither

plainly erroneous nor inconsistent with the regulations and is
therefore entitled to deference.

Chase Bank, 131 S. Ct. at 880.

USCIS’s denial of the I-360 petition on this ground was therefore
not arbitrary or capricious.

Of course, our deferral to USCIS’s

interpretation that substitution is not permissible under its
regulations also gives added support to our conclusion that the
AAO’s decision to reject the plaintiffs’ attempted appeal as
improperly filed was not arbitrary or capricious.

8 C.F.R.

§ 103.3(a)(1)(iii)(B).
By the same token, the plaintiffs’ contention that
Oleksandr was eligible for religious worker status at the time the
original I-360 petition was filed in 2009 does not mean that the
attempted substitution of petitioners was not a valid reason to
deny the petition.

We note that the AAO stated in its opinion that

“[e]ligibility must be established at the time of filing.”

The AAO

also cited 8 C.F.R. § 103.2(b)(1), which provides more fully that a
“petitioner must establish that he or she is eligible for the
requested benefit at the time of filing the benefit request and

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must continue to be eligible through adjudication.”

8 C.F.R.

§ 103.2(b)(1) (emphasis added).
USCIS obtained information during the course of
adjudication that Embassy Sacramento would not be employing
Oleksandr in the future and that Embassy Sacramento was not closely
affiliated with a religious denomination as required under
8 C.F.R. § 204.5(m)(3).

The agency had further reason to question

Embassy Philadelphia’s eligibility as a bona fide non-profit
religious organization under that regulation because Embassy
Philadelphia had apparently obtained tax-exempt status by becoming
a subordinate of the ICCM, a third-party entity that was related to
neither Embassy Sacramento, the organization that had originally
sought religious worker status for Oleksandr, nor Embassy Ukraine,
the entity at the head of Oleksandr’s religious denomination.
Thus, even if the AAO appeal had been properly filed, the agency’s
decision summarily to dismiss it on the merits comported with dulypromulgated regulations, the validity of which the plaintiffs do
not challenge.

See C.F.R. § 103.2(b)(1).

USCIS’s decision was

therefore not arbitrary or capricious.
In sum, as the Government has aptly stated, the
plaintiffs “have simply failed to show that USCIS was required to
grant the Form I-360 filed by a Sacramento church (that is not a
party to this lawsuit) after an investigation showed that it was no

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longer affiliated with the church where the beneficiary was
actually employed.”
Accordingly, we will grant the cross-motion of the
Government for summary judgment and we will deny that of the
plaintiffs.

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