The Reedeemed Christian Church of God et al v. Citizenship and Immigration Services

Filing 67

ORDER entered: Uzoma's claims are dismissed for lack of standing. The USCISs motion for summary judgment, (Docket Entry No. 50), is denied. The Redeemed Christian Church's motion for summary judgment, (Docket Entry No. 52), is granted, and the case is remanded to the USCIS for additional review, including of the testimonial evidence the Redeemed Christian Church has submitted.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THE REDEEMED CHRISTIAN CHURCH
OF GOD and JOEL ONYEMA UZOMA,
Plaintiffs,
VS.
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendant.

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May 26, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-13-2170

ORDER GRANTING MOTION TO RECONSIDER, VACATING MAY 13, 2015
OPINION, AND ISSUING AMENDED MEMORANDUM AND OPINION
The Redeemed Christian Church of God and Joel Onyema Uzoma challenge the denial of
an I-360 Petition that the Redeemed Church filed on Uzoma’s behalf. The United States Citizenship
and Immigration Services (“USCIS”) moved for summary judgment. (Docket Entry No. 50). The
plaintiffs responded and cross-moved for summary judgment; the USCIS responded. (Docket Entry
Nos. 52, 53). The court dismissed Uzoma’s claims for lack of standing, denied the USCIS’s motion
for summary judgment, granted the Redeemed Church’s motion for summary judgment in part, and
remanded to the agency. (Docket Entry No. 55).
The USCIS moved for reconsideration, raising four alleged errors: (1) the court granted
summary judgment based on an argument the Redeemed Church did not raise; (2) the court erred
in applying substantial-evidence review to the agency’s factual findings; (3) the court applied the
wrong standard of review in evaluating the agency’s denial of the Redeemed Church’s motion to
reopen; and (4) the court mischaracterized the record evidence and the agency’s decisions. (Docket
Entry No. 60). The Redeemed Church responded, and the USCIS replied. (Docket Entry Nos. 61,
1

66). The USCIS’s briefing on reconsideration correctly pointed out that the court’s May 13, 2015
opinion in part applied the wrong legal standard and was unclear about the final agency action that
was the basis for the remand order.
Based on the pleadings, the motions and responses, the certified administrative record, and
the applicable law, the court grants the USCIS’s motion for reconsideration, vacates the May 13,
2015 Memorandum and Opinion, and issues this amended Memorandum and Opinion in its place.
On reconsideration, the analysis and grounds differ from the prior ruling, but the result is largely
unchanged. On reconsideration, the court grants the Redeemed Church’s motion for summary
judgment and remands this case to the agency to clarify the reasons supporting its denial of the I-360
Petition the Redeemed Church filed on Uzoma’s behalf. In particular, the agency should explain
whether it considered all the evidence submitted, including the testimonial evidence. If not, the
agency should reevaluate its decision in light of that evidence, making credibility and reliability
judgments necessary to rule on the relief the Redeemed Church sought.
The reasons for this ruling are explained below.
I.

Background
A.

I-360 Petitions

To obtain an immigrant religious-worker visa, a worker’s employer must file a Form I-360.
8 C.F.R. § 204.5(m). Under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq.,
an I-360 immigrant visa is for a “special immigrant religious worker.” This visa is available to
ministers and other religious workers operating in either a professional or nonprofessional capacity
in a religious vocation or occupation, as defined in 8 U.S.C. § 1101(a)(27)(C). See also 8 C.F.R.
§ 204.5(m)(2).

2

The I-360 Petition the Redeemed Church filed on Uzoma’s behalf invokes 8 U.S.C. §
1101(a)(27)(C). That section defines “special immigrant”:
(27)

The term “special immigrant” means—
...
(C)
an immigrant, and the immigrant’s spouse and
children if accompanying or following to join the
immigrant, who
...
(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[.]

8 U.S.C. § 1101(a)(27)(C)(ii).
The process for a special-immigrant worker visa begins when a religious organization files
an I-360 Petition on the worker’s behalf. The director of a USCIS field office—here, the Director
of the USCIS California Civil Service Center—reviews the Petition. If it is approved, the
beneficiary may apply for a visa either from abroad or, if already in the United States, to adjust of
status to a lawful permanent resident. Id. If the Petition is denied, the petitioner may appeal to the
Administrative Appeals Office. 8 C.F.R. § 103.3. Under some circumstances, the Director may
certify its decision directly to the Appeals Office. 8 C.F.R. § 103.4.
3

The regulations require religious employers to provide specific information with the I-360
Petition to show the alien’s eligibility for classification as a special immigrant religious worker. The
regulation states:
(m)

Religious workers. This paragraph governs classification of
an alien as a special immigrant religious worker as defined in
section 101(a)(27)(C) of the Act and under section 203(b)(4)
of the Act. 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 as they
are defined in paragraph (m)(5) of this section:
(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 non-profit
religious organization in the United States, or a bona
fide organization which is affiliated with the religious
denomination in the United States.
(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).
The “petitioning organization”—the religious employer—must certify in the petition that it
is a “bona fide non-profit religious organization” or affiliate; that “the alien has worked as a
religious worker for the two years immediately preceding the filing of the application and is
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otherwise qualified for the position offered”; and that “the alien has been a member of the
denomination for at least two years immediately preceding the filing of the application.” 8 C.F.R.
§ 204.5(m)(7). The employer must also certify that “the alien will not engage in secular
employment.” Id. The employer must file evidence showing that it is a religious denomination or
affiliated with one and that the employee is religiously qualified. The employer must also file
evidence of the religious employee’s compensation and prior employment. See 8 C.F.R. §
204.5(m)(8)–(12).
A religious-entity employer may obtain an R-1 nonimmigrant visa for a religious worker to
come to the United States temporarily. While the religious worker is in the United States, the
employer may file an I-360 Petition seeking a special immigrant visa on the worker’s behalf. If
granted, the visa provides the basis for the worker to obtain an adjustment of status to lawful
permanent resident. That is what the Redeemed Christian Church unsuccessfully tried to do for
Uzoma.
B.

The Redeemed Church’s I-360 Petition for Uzoma
1.

The April 2006 Filing

The Redeemed Christian Church is a religious entity incorporated in Texas in December
2003. It obtained tax-exempt status under § 501(c)(3) of the Internal Revenue Code in June 2004.
The Redeemed Christian Church filed an I-129 Petition to have Joel Uzoma, a Nigerian citizen,
admitted into the United States as a nonimmigrant religious worker. Uzoma entered the United
States on October 14, 2003 as a nonimmigrant visitor. (Certified Administrative Record (“CAR”)
118, 719). Uzoma’s wife and son had entered seven days earlier, also as nonimmigrant visitors.
(Id.).

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In November 2003, the USCIS approved the I-129 Petition for Uzoma and related Petitions
for Uzoma’s wife and son. (CAR 118–19, 719). Their admission statuses expired in November
2006. (CAR 719, 747). The Redeemed Christian Church then filed an I-360 Petition on Uzoma’s
behalf in April 2006, seeking to have him classified as a special immigrant religious worker. (CAR
719, 721). The Petition listed Uzoma’s wife and son as derivative beneficiaries. (Id.). The
Redeemed Christian Church included evidence about its tax-exempt status, Uzoma’s qualifications
and experience, his role at the Church, and his financial status. (CAR 723–963).
2.

The Director Denies the Petition

In December 2006, the USCIS sent the Redeemed Christian Church a request for evidence.
The request sought information verifying that the Redeemed Christian Church qualified as a
nonprofit organization, that it had a connection with Uzoma, and that it was able to pay Uzoma until
he obtained lawful permanent residence. (CAR 520–23). The request also asked the Church to
provide evidence about Uzoma’s experience as a religious worker, the requirements of his position,
his work history from 2004 to 2006, the amounts the Church had paid him, and how Uzoma
supported himself and his family. (Id.). Finally, the request asked for Uzoma’s tax returns for 2004
to 2006, W-2s, recent pay stubs, information documenting his immigration status, the letter offering
him employment, and a detailed description of his work responsibilities at the Church. (Id.).
The Redeemed Christian Church responded to this request in February 2007. The Church
provided information on Uzoma’s duties as Pastor-in-Charge of the Redeemed Christian Church’s
Dayspring Chapel. The Church stated that Uzoma had “no supplementary job.” (CAR 574–75,
673). The Church also provided information on Uzoma’s immigration status, his qualifications to
be the Pastor-in-Charge, his tax returns and pay stubs, and the Church’s 2004 financial statement.

6

(CAR 526–43, 578–79, 591–703, 711–12). The Church told the USCIS that it would pay Uzoma
$1,800 per month to start, then $2,000 per month. (CAR 702–03).
The USCIS sent the Redeemed Christian Church a second request for evidence on May 1,
2007. (CAR 453–55). That request asked the Church to explain discrepancies between the salary
it said it paid Uzoma and the salary he declared on his 2004 and 2005 tax returns. (Id.). The request
also asked the Church to explain how Uzoma was supporting himself and his family, given the
limited income he reported on those tax returns. (Id.). The second request sought additional
information on Uzoma’s duties, his finances, his salary and other allowances, and his authorization
to perform religious duties. (Id.).
The Redeemed Christian Church responded to this second request for evidence on May 25,
2007. The Church explained the discrepancies in Uzoma’s salary on the basis that: (1) it included
a housing allowance; (2) there were errors in Uzoma’s reported wage for 2005, and he was in fact
paid $22,424.00 that year rather than the $2,400 per month the Church had reported; (3) the Church
also paid for the Uzoma family’s medical expenses; and (4) Uzoma received “love gifts” from
individual Church members. (CAR 440, 443). The Church included additional evidence about its
own and Uzoma’s finances. (CAR 445–52, 461–76, 484–89). The Church repeated its earlier
statements that Uzoma “neither had any supplementary job anywhere nor solicited any. . . . [Uzoma]
never worked anywhere else in the United States and this is a true statement.” (CAR 440).
On July 20, 2008, the USCIS conducted a site inspection of the Dayspring Chapel. (CAR
436). During the visit, Uzoma claimed that he was paid $2,400 per month, including a housing
allowance, and said that neither he nor his wife had any other employment. (CAR 436–37). During
the same visit, a man identifying himself as a Church representative arrived wearing an EMT

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uniform with the logo of a company located in the same office building as the Church’s Dayspring
Chapel. In its site-inspection report, the USCIS stated that it was unable to determine whether this
man was a Redeemed Christian Church representative or an employee of the other company. (Id.).
On October 7, 2008, the USCIS issued a Notice of Intent to Deny the I-360 Petition. (CAR
289–94, 434–39). The notice stated that a public-records search revealed unauthorized employment
by Uzoma and his wife. Uzoma reportedly owned a business called Heph Technology Services and
his wife owned Cute Apparel. Both businesses had an address in the same office building as the
Dayspring Chapel. (CAR 437). The notice also reported problems with the site inspection and
stated that whether Uzoma could support his family remained unclear. The notice told the
Redeemed Christian Church that it needed to provide additional evidence, including Uzoma’s W-2
forms, the Church’s quarterly wage reports listing Uzoma as a paid employee, and an itemized
record from the Social Security Administration showing whether Uzoma had sought outside
employment. (Id.).
The Redeemed Christian Church responded to the USCIS request on October 30, 2008,
providing all of the documents requested and explaining the deficiencies the USCIS had raised after
the site visit. (CAR 295–433). The Church’s response reiterated that Uzoma had no outside
employment. The response explained that Uzoma had created Heph Technology Services in July
2007 only to buy computers to send to a friend in Nigeria. (CAR 299–300). The response explained
that Uzoma needed a business name to buy the 16 computers his friend wanted and to allow the
Nigerian bank to send the money to pay for the computers back to the United States. (CAR 300–01).
The Church’s response stated that Uzoma “sincerely did not see it as a violation of status in any
way; neither did he have any intention to violate his status,” and explained that Uzoma did not know

8

that registering a business name to buy computers for a friend in Nigeria would violate his status.
(CAR 301). The Church stated that when Uzoma realized the risk, he “ceased from any such
transaction” with Heph Technology Services. (Id.). The response attached Uzoma’s Social Security
record, which did not list any employers besides the Redeemed Christian Church. The record did,
however, show that Uzoma had self-employment earnings from 2004 to 2007. (CAR 309–10).
The Church’s response also stated that Uzoma’s wife was a fashion-merchandising student
at Houston Community College, and that “[s]he established the clothing place primarily as a
practical center for herself in order to intensely practice what she is currently studying in College.”
(Id.). The response stated that Uzoma’s wife did not intend to violate her status and did not believe
that the clothing business she registered was a violation.
The Director of the USCIS California Civil Service Center denied the I-360 Petition on
February 25, 2009. (CAR 286–88). The Director’s denial notice cited the Social Security record
showing that Uzoma received self-employment income for tax years 2004 to 2007, and stated that
“without a Schedule C or other supportive documentation, USCIS cannot determine how this income
was derived.” (CAR 287).
3.

The Appeals Office Remands to the Director

In March 2009, the Redeemed Christian Church appealed the denial. (CAR 155–282). The
Church stated that it had made no misrepresentations and had demonstrated Uzoma’s eligibility for
special immigrant religious-worker status. The Church argued that Uzoma’s involvement with Heph
Technology Services “was an error in [Uzoma’s] judgment which occurred through the wrong
advice of a member attorney.” (CAR 117). The Church explained that “[s]ometimes [sic] last year,”
after a Nigerian friend asked Uzoma to purchase 16 computers and send them to Nigeria, Uzoma

9

asked a congregant who was an attorney for advice. The attorney advised Uzoma “to register a
company in his name to make it authentic,” which he did. The Church stated that Uzoma “did no[t]
intend to conduct a business” and had withdrawn his name from the business’s registration once he
learned that it might violate his immigration status. (Id.).
The Redeemed Christian Church also addressed the self-employment income shown on
Uzoma’s records. The Church explained that the amounts were not from outside employment but
instead from the housing allowance Uzoma received from the Church. (CAR 214–15). The Church
attached a letter from its accountant stating that the self-employment earnings were for housing.
(CAR 180–82, 191).
On January 7, 2010, the Appeals Office remanded the I-360 Petition to the Director for
further action and consideration. (CAR 147–54). The Appeals Office found that one of the statutory
sections the Director relied on in denying the Petition simply did not apply. (CAR 152). The
Appeals Office also rejected the Director’s reliance on Uzoma’s self-reported, self-employment
income, finding that the reported amounts represented Uzoma’s housing allowance. (CAR 153).
But the Appeals Office found that the I-360 Petition could not be approved unless certain issues
were resolved in the Redeemed Christian Church’s favor.
The Appeals Office stated that it was unclear whether Uzoma entered the United States
“solely for the purpose of carrying on the vocation of a minister,” as 8 U.S.C. § 1101(a)(27)(C)(ii)(I)
requires, and that Uzoma’s registration of Heph Technology Services raised questions. (CAR
153–54). The Appeals Office noted that the Church had not submitted evidence supporting its
claims about Uzoma’s business’s registration. The Appeals Office explained:
For instance, it is not clear why [Uzoma] could not order computers
under his own name, and therefore had to create ‘a business name.’
10

With respect to the assertion that Heph Technology Services was
never a business venture for [Uzoma], the director must provide [the
Redeemed Christian Church] an opportunity to submit first-hand
documentation (such as invoices and bank documents) to show how
much the beneficiary spent to order and ship the computers, and how
much he received from his unidentified “friend in Nigeria.” If he
received anything beyond his own expenses in purchasing and
shipping the computers, [it] would be very difficult to consider the
surplus as anything other than business income. Because it is
established and uncontested that [Uzoma] registered a business name
under which he purchased and shipped computers, [the Redeemed
Christian Church] must submit documentary evidence that will
persuasively establish that Heph Technology Services was not, and
was never intended to be, a profit-generating enterprise. Testimonial
claims by the petitioner, the beneficiary, and/or the ‘friend in
Nigeria’ cannot and will not suffice.
(CAR 153–54) (emphasis added).
4.

On Remand, the Director Again Denies the Petition

The USCIS issued a new Notice of Intent to Deny on August 17, 2010, noting that Heph
Technology Services, Unicorn Billing Services, and Cute Apparel were registered to Uzoma or his
wife and had business addresses in the same office building as the Dayspring Chapel. (CAR
142–46). The USCIS followed the Appeals Office’s directions on remand by instructing the
Redeemed Christian Church that it needed to “submit documentary evidence that will persuasively
establish that Heph Technology Services was not, and was never intended to be, a for-profit
enterprise. Testimonial claims by [the Redeemed Christian Church], [Uzoma,] and/or the ‘friend
in Nigeria’ cannot and will not suffice.” (CAR 146).
The Redeemed Christian Church responded to USCIS in September 2010. (CAR 105–41).
The Church claimed that Uzoma’s friend in Nigeria, now identified as Emeka Okoronkwo, had
asked Uzoma to purchase and send him the computers. Okoronkwo would reimburse Uzoma for
the cost. Uzoma initially declined because he was not familiar with the export process. (CAR 110).
11

Uzoma then discussed the request with a lawyer who was a member of the congregation. The
lawyer, identified as John Sekumade, told Uzoma that he would have to register a business name
because Dell would not sell more than five computers at once to an individual, but only to a
business. (Id.). The Church asserted that it was Sekumade, not Uzoma, who registered Heph
Technology Services in his name and in Uzoma’s name, paid for the computers, and received them
at his law office. The law office was located in the same office building as the Dayspring Chapel.
(Id.). The computers were shipped to Okoronkwo in Nigeria. United States Customs officials
seized the computers because there was no commercial invoice. (Id.). The Church informed the
USCIS that Heph Technology Services then created a commercial invoice, which “included all the
other expenses to be incurred in addition to the purchase price, fine paid to US Customs, cost of
shipping and custom payments and unforeseen domestic expenses in Nigeria.” (CAR 111). The
delay and the fine, and the shipping and handling fees, meant that Okoronkwo, Uzoma’s friend in
Nigeria, “sold the computers at a loss.” As a result, Okoronkwo “remitted [a] sales amount which
was less than the cost.” (Id.). The Church asserted that when Uzoma learned that the transaction
might violate his immigration status, he withdrew his name from the business registration and did
not use it again. (Id.).
The Church sent the USCIS documents with its response. The documents USCIS received
included receipts from Dell showing that the computers cost $31,285.56 and were shipped to Uzoma
at Heph Technology Services. The shipping address was in the same office building as the
Dayspring Chapel. (CAR 125). Nigerian wire-transfer requests and bank statements showed that
Caller’s Spring Nigeria Ltd., Okoronkwo’s company, sent Heph Technology Services $28,847.75.
(CAR 127–33). A document from Heph Technology Services entitled “Commercial Invoice No

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A0001” listed the total sales price as $42,000.00, inclusive of “Shipping & Handling to Lagos.”
(CAR 137).
The Church also sent the USCIS testimonial evidence. The Church submitted an affidavit
from Sekumade stating that he and Uzoma had registered Heph Technology Services but that
Sekumade was the only one who paid for the computers. Sekumade testified that the computers
were sold at a loss and that Uzoma did not get any of the money. (CAR 134). The Church also
submitted an affidavit from Okoronkwo stating that he first asked Uzoma to buy the computers in
2007, that Uzoma contacted a lawyer friend in Houston to provide the money, and that Okoronkwo
sold the computers at a loss. (CAR 136).
On October 5, 2010, the Director again denied the I-360 Petition and this time certified the
case to the Appeals Office for review. (CAR 102–04). The Director’s denial explained that the
Redeemed Christian Church “has not been forthright in the evidence submitted.” (CAR 103–04).
Although the Church had provided information about Heph Technology Services in 2007 and 2008,
Harris County records showed that Uzoma had also registered the business name in 2004 and 2005.
Additionally, the denial stated that the $42,000 commercial invoice for the computers from Heph
Technology Services showed that Uzoma had engaged in secular commercial activity because the
invoiced amount was higher than the purchase price. The denial concluded that “the intent of the
transaction, as evidenced by the billing statement, was to obtain a profit.” (Id.). The denial stated
that the Uzomas’ involvement with Cute Apparel and Unicorn Billing Services raised further
suspicions about Uzoma’s secular employment and supported the conclusion that he did not come
to the United States to work solely as a minister. (Id.).
In response to the Notice of Certification, the Redeemed Christian Church submitted

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statements explaining that Uzoma had forgotten about his involvement with Heph Technology
Services in 2004. The Church clarified that Okoronkwo had first asked for Uzoma’s help buying
computers in 2004, that Uzoma had initially agreed but then backed out after learning that the
shipping process was not “straightforward,” and that there was a “misunderstanding” about who
would pay for the computers. (CAR 83). The Church also stated that Cute Apparel and Unicorn
Billing Services were not “real” businesses but merely names Uzoma’s wife registered in
anticipation of obtaining authorization to work. (CAR 84). The Church insisted that neither Cute
Apparel nor Unicorn Billing Services was ever active, but inconsistently stated that Cute Apparel
had rented an office in the same office building as the Dayspring Chapel. The rental stopped when
Uzoma’s wife could no longer afford to pay the rent. (CAR 84–85).
5.

The Appeals Office Denies the Petition

In September 2012, the Appeals Office denied the I-360 Petition after determining that
Uzoma’s secular business activities meant that the Church had not met its burden of showing that
he was working only as a minister. (CAR 79). The Appeals Office acknowledged that the Church
had submitted evidence in response to the remand order, including Sekumade’s affidavit and other
documents relevant to the purchase and sale of the computers. The Appeals Office found that Heph
Technology Services’s loss on the computer sale did not show that Uzoma lacked the intent to make
a profit when he bought and sold the computers and that the Redeemed Christian Church had not
submitted statements from Uzoma or his wife explaining their activities. (CAR 80–81). The
Appeals Office did not analyze the Sekumade or Okoronkwo affidavits, explain why those affidavits
were not considered, or discuss how they factored into the decision to deny the Petition.
6.

The Appeals Office Denies the Motion to Reopen

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The Redeemed Christian Church filed a motion to reopen on October 30, 2012. (CAR 7–76).
The Church clarified that Uzoma had mistakenly registered Heph Technology Services in 2004 and
2005 without realizing that it would violate his immigration status. He had used the business only
once, in 2007. (CAR 12). The Church stated that Uzoma and his wife did not intend to conduct any
business activities. (CAR 12–13). The Church submitted a statement from Uzoma corroborating
the Church’s earlier accounts. (CAR 16–19). Uzoma stated that Okoronkwo first contacted him
about a computer purchase in 2004. After Uzoma learned that Okoronkwo could not pay for the
computers, Uzoma withdrew the name Heph Technology Services. (Id.). Uzoma explained that he
forgot about the business-name registration until Okoronkwo contacted him again in 2007. (Id.).
The Church also included a statement from Uzoma’s wife. She said that Uzoma was not
involved in Cute Apparel but had merely lent his name to register it as a courtesy to her. (CAR 20).
She did not know that registering Cute Apparel and leasing office space for it would violate her
immigration status, and she stopped on learning that it was considered a violation. (Id.). The
Church also submitted bank statements from Heph Technology Services; tax returns for Uzoma and
his wife, amended to show no self-employment income; and documents showing that in 2008,
Uzoma and his wife had withdrawn the three business names. (CAR 21–75).
In May 2013, the Appeals Office denied the motion to reopen. The Appeals Office
considered the Redeemed Christian Church’s motion as a request both to reopen and to reconsider,
and declined both. The Appeals Office found that: (1) the Church had failed to provide meaningful
documentary evidence showing that Uzoma came to the United States solely to work as a minister,
and (2) the testimonial evidence the Church provided to show that Uzoma did not intend to profit
from the three businesses he registered did not meet the Church’s burden. (CAR 4–5). The Appeals

15

Office also noted that the evidence the Church submitted with the motion to reopen, including the
testimonial evidence from Uzoma and his wife could have been provided earlier. (CAR 1–6).
7.

The Redeemed Church and Uzoma File This Suit

The Redeemed Christian Church and Uzoma filed this action under the Administrative
Procedure Act, 5 U.S.C. § 701 et seq., seeking a declaratory judgment that the agency must grant
the I-360 Petition. The USCIS moved, and the plaintiffs cross-moved, for summary judgment. The
parties’ dispute centers on whether it was arbitrary and capricious to deny the I-360 Petition.1
II.

Uzoma’s Standing to Challenge the Denial of His I-360 Petition
A.

Standing

The government moves to dismiss Uzoma’s challenge to the denial of his I-360 Petition for
lack of standing as a visa beneficiary. “Article III of the Constitution limits federal courts’
jurisdiction to certain ‘Cases’ and ‘Controversies.’” Clapper v. Amnesty Int’l, USA, 133 S. Ct. 1138,
1146 (2013). “One element of the case-or-controversy requirement is that [the plaintiff] . . . must
establish that [he or she has] standing to sue.” Raines v. Byrd, 521 U.S. 811, 818 (1997). “To have
standing to sue, the plaintiff must demonstrate injury in fact that is fairly traceable to the defendant’s
conduct and that would be redressed by a favorable judicial decision.” NiGen Biotech, L.L.C. v.
Paxton, 804 F.3d 389, 396 (5th Cir. 2015) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)).
“[A] person suing under the APA must satisfy not only Article III’s standing requirements,
but an additional test: The interest he asserts must be arguably within the zone of interests to be
protected or regulated by the statute that he says was violated.” Match-E-Be-Nash-She-Wish Band
1

In their motion for summary judgment, the plaintiffs do not appear to challenge the Appeal Office’s denial
of their motion to reopen. The issue is the denial of the I-360 Petition.

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of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (quotation marks omitted). Zoneof-interest standing under the APA “is not meant to be especially demanding.” Id. (quotation marks
omitted). “The test forecloses suit only when a plaintiff’s interests are so marginally related to or
inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that
Congress intended to permit the suit.” Id. (quotation marks omitted).
As “[t]he party invoking federal jurisdiction,” the plaintiff “bears the burden of establishing
[standing].” Lujan, 504 U.S. at 561. The plaintiff must meet this burden “with the manner and
degree of evidence required at the successive stages of the litigation.” Cornerstone Christian Schs.
v. Univ. Interscholastic League, 563 F.3d 127, 134 (5th Cir. 2009) (quotation marks omitted).
“When the defendant moves for summary judgment because of lack of standing, . . . the plaintiff
must submit affidavits and comparable evidence that indicate that a genuine issue of fact exists on
the standing issue.” Assoc. of Cmty. Org. for Reform Now v. Fowler, 178 F.3d 350, 357 (5th Cir.
1999) (quotation marks omitted).
B.

Discussion

The federal regulations implementing the Immigration and Nationality Act define an
“affected party” as “the person or entity with legal standing in a proceeding. It does not include the
beneficiary of a visa petition.” 8 C.F.R. § 103.3(a)(1)(iii)(B). The government argues that this
regulation strips a visa beneficiary like Uzoma of standing to sue the USCIS to challenge its denial
of an I-360 Petition. Instead, only the visa petitioner has standing.
The court recently addressed the issue of a beneficiary’s standing to challenge the denial of
an I-360 Petition in Khalid v. DHS, No. 4:12-cv-3492, 2014 WL 793078 (S.D. Tex. Feb. 25, 2014).
In that case, the court held that a religious employee’s interest in coming to or remaining in the

17

United States was only tangentially related to Congress’s purpose in passing the statute. Id. at *8.
“The language of the statute and the cap on the number of special-immigrant visas, added to the
INA’s overall goal of protecting the American labor force, does not show a Congressional concern
to further the interests of religious-worker aliens who seek to come to or remain in the Untied
States.” Id. at *9. The same reasoning applies here. The Immigration and Nationality Act sections
at issue do not protect Uzoma as the beneficiary of an I-360 Petition filed on his behalf. Uzoma’s
claims challenging the I-360 Petition denial are dismissed for lack of standing.
III.

The Motions for Summary Judgment
A.

The Applicable Legal Standards
1.

Summary Judgment

“Summary judgment is required when ‘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.’” Trent v. Wade,
776 F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a)). “A genuine dispute of material
fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Nola Spice Designs, LLC v. Haydel Enters., Inc.,783 F.3d 527, 536 (5th Cir. 2015) (quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “The moving party ‘bears the initial
responsibility of informing the district court of the basis for its motion, and identifying those
portions of [the record] which it believes demonstrate the absence of a genuine issue of material
fact.’” Id. (quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“Where the non-movant bears the burden of proof at trial, the movant may merely point to
the absence of evidence and thereby shift to the non-movant the burden of demonstrating by

18

competent summary judgment proof that there is an issue of material fact warranting trial.” Id.
(quotation marks omitted); see also Celotex, 477 U.S. at 325. Although the party moving for
summary judgment must demonstrate the absence of a genuine issue of material fact, it does not
need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536,
540 (5th Cir. 2005). “A fact is ‘material’ if its resolution in favor of one party might affect the
outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Texas, 560 F.3d 316,
326 (5th Cir. 2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the
motion [for summary judgment] must be denied, regardless of the nonmovant’s response.” United
States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
“Once the moving party [meets its initial burden], the non-moving party must ‘go beyond
the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.’” Nola
Spice, 783 F.3d at 536 (quoting EEOC, 773 F.3d at 694). The nonmovant must identify specific
evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v.
Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden will not be satisfied by ‘some metaphysical
doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only
a scintilla of evidence.’” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding
a summary-judgment motion, the court draws all reasonable inferences in the light most favorable
to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008); see also Nola Spice,
783 F.3d at 536.
When the parties cross-move for summary judgment, the court must review “each motion

19

independently, viewing the evidence and inferences in the light most favorable to the nonmoving
party.” Mid-Continent Cas. Co. v. Bay Rock Operating Co., 614 F.3d 105, 110 (5th Cir. 2010)
(alteration omitted) (quotation marks omitted).
2.

Review of Agency Determinations Under the Administrative Procedure
Act

“[W]hen a party seeks review of agency action under the APA, the district judge sits as an
appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). “The
entire case on review is a question of law.” Id. (quotation marks omitted). “Under the APA, it is
the role of the agency to resolve factual issues to arrive at a decision that is supported by the
administrative record, whereas ‘the function of the district court is to determine whether or not as
a matter of law the evidence in the administrative record permitted the agency to make the decision
it did.’” Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007) (quoting
Occidental Eng’g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir. 1985)). “Summary judgment thus
serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by
the administrative record and otherwise consistent with the APA standard of review.” Id.
Under the Act, agency action may be held unlawful and set aside only if found to be
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). “The arbitrary and capricious standard is highly deferential.” Knapp v. Dep’t of
Agric., 796 F.3d 445, 453 (5th Cir. 2015) (quotation marks omitted). “Arbitrary and capricious
review focuses on whether an agency articulated a rational connection between the facts found and
the decision made . . . .” Id. (quotation marks omitted). Indeed, agency action is arbitrary and
capricious “only when it is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Wilson v. U.S. Dep’t of Agric., 991 F.2d 1211, 1215 (5th Cir.1993)
20

(quotation marks omitted). “The agency decision need only have a rational basis, and it does not
have to be a decision which the court would have made.” Id. In reviewing a challenge to the
agency’s decision, “the focal point for judicial review should be the administrative record already
in existence, not some new record made initially in the reviewing court.” Luminant Generation Co.,
LLC v. EPA, 714 F.3d 841, 850 (5th Cir. 2013) (alteration omitted) (quotation marks omitted).
“A denial by [the USCIS] of an application for a visa may be reversed only if the decision
was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Nat’l
Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, 1475 (5th Cir. 1989) (citing 5 U.S.C. § 706(2)(a)).
“It is well settled that the applicant for a visa bears the burden of establishing eligibility.” Id. While
the district court’s role is to ensure that the USCIS engaged in “reasoned decision-making,” the
agency is “entitled to considerable deference in its interpretation of the governing statute.” Id.
(internal citations omitted).
B.

Discussion

The Redeemed Christian Church argues that the USCIS arbitrarily and capriciously
concluded that the Church failed to show that Uzoma entered the United States solely to be a
minister, and did not have any secular employment. To obtain a religious-vocation visa for a
beneficiary, a petitioner must establish that the beneficiary came to the United States to work fulltime in a compensated position in the vocation of a minister of a bona-fide religious denomination,
and not “in secular employment.” 8 C.F.R. §§ 204.5(m)(2)(i), 204.5(m)(5), 204.5(m)(7)(xi). The
petitioner must provide reliable evidence supporting the visa application. “[I]t is incumbent upon
the petitioner to resolve [any] inconsistencies by independent objective evidence. Attempts to
explain or reconcile [any] conflicting accounts, absent competent objective evidence pointing to

21

where the truth, in fact, lies, will not suffice.” In re Ho, 19 I & N Dec. 582, 591 (BIA 1988).
The Appeals Office found that the Redeemed Church did not meet its burden of proving,
through documentary evidence, that Uzoma did not intend to profit when he registered Heph
Technology Services, Cute Apparel, and Unicorn Billing Services, and when he bought 16 Dell
computers and sold them to a friend in Nigeria. The Director initially denied the I-360 Petition. The
Appeals Office rejected the basis for the denial but remanded to the Director to resolve “an issue
regarding the beneficiary’s secular activities.” (CAR 153). According to the Appeals Office, the
Redeemed Church had not submitted evidence supporting its claim that Uzoma’s involvement with
Heph Technology Services was not secular employment. The Appeals Office instructed the Director
to “provide the petitioner an opportunity to submit first-hand documentation (such as invoices and
bank documents) to show how much the beneficiary spent to order and ship the computers, and how
much he received from his unidentified ‘friend in Nigeria.’” (CAR 154). The Appeals Office noted
that if Uzoma “received anything beyond his own expenses in purchasing and shipping the
computers, then [it] would be very difficult to consider the surplus as anything other than business
income.” (Id.). The Office emphasized that the Redeemed Church had to “submit documentary
evidence that [would] persuasively establish that Heph Technology Services was not, and was never
intended to be, a profit-generating enterprise.” (Id.). The Appeals Office’s decision made clear that
“testimonial” evidence would not be enough. (Id.).
On remand, the Redeemed Church presented documents, including the invoices and bank
documents the Appeals Office had referred to. The documents showed that Heph Technology
Services lost money on the computer transaction. The commercial invoice the Church submitted
billing Okoronkwo for the computers listed a higher invoice amount than Heph Technology Services

22

paid. The invoice stated that the amount billed to Okoronkwo included “Shipping & Handling to
Lagos.” The Church explained that shipping and export fees explained difference between the
amount invoiced to Okoronkwo and the price Heph Technology paid. The Church also submitted
an affidavit from Okoronkwo stating that he had asked Uzoma to loan him money as a friend so that
he could purchase the computers, but Uzoma refused. Instead, Sekumade paid for the computers
on Okoronkwo’s behalf. Sekumade’s affidavit was consistent, stating that he provided all the money
for the computers, that Uzoma received no benefit from the transaction, and that Uzoma’s only job
was as a pastor. (CAR 134–38).
The Director denied the Petition again in October 2010, on the basis that the evidence
showed that Uzoma was involved in secular activity. “[A]lthough the business transaction resulted
in a loss, the intent of the transaction, as evidenced by the billing statement, was to obtain a profit.”
(CAR 104). The Director also found that Unicorn Billing Services and Cute Apparel raised
suspicions that Uzoma had engaged in secular employment because no income from the businesses
was included on Uzoma’s tax returns. (Id.).
The Appeals Office affirmed the denial, finding that Uzoma had engaged in secular business
activities. The Appeals Office acknowledged the evidence showing that Uzoma had not profited
from the computer sale but agreed that the evidence did not show a lack of intent to profit. (CAR
80). The Appeals Office criticized the “majority” of the evidence the Redeemed Church submitted
on remand as testimonial rather than documentary. The Appeals Office noted that its remand order
stated that testimonial claims by the beneficiary and his friend from Nigeria would not suffice to
meet the Church’s burden. At the same time, however, the Appeals Office made clear that its
decision rested in part on the fact that the Church had not submitted a statement from Uzoma or his

23

wife “to explain their activities.” (CAR 81). Although the Appeals Office acknowledged
Sekumade’s affidavit, it did not analyze it or discuss why it was not credible. The Office did not
acknowledge Okoronkwo’s affidavit at all.
The record suggests an arbitrary and capricious approach to the evidence the Church
submitted. The Appeals Office’s remand order had admonished the Church that mere testimonial
statements from Uzoma or his Nigerian friend would not suffice, but it failed to analyze whether the
affidavits from Okoronkwo or Sekumade, in combination with documentary evidence, was enough
to carry the Church’s burden. And despite its previous instructions, the Appeals Office faulted the
Church for not submitting testimonial statements from Uzoma or his wife. The Appeals Office
appears to have changed its position again in later denying the motion to reopen, when the Church
had submitted testimonial statements from Uzoma and his wife. The Appeals Office reasoned that
this evidence should have been submitted earlier, despite its earlier warning about such evidence.
It is unclear why the Appeals Office apparently refused to consider the testimonial evidence
that the Church submitted. The Office is not required to accept testimonial evidence as true, even
if it is uncontradicted, if the agency finds it lacking in credibility. See Soltane v. U.S. Dep’t of
Justice, 381 F.3d 143, 151–52 (3d Cir. 2004) (Alito, J.) (citing Tieniber v. Heckler, 720 F.2d 1251,
1254 (11th Cir. 1983); NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962)). But the Appeals
Office may not reject or disregard evidence simply because it is testimonial. Id. The case the
Appeals Office cited dealt with 8 C.F.R. § 204.6(j)(3), a regulation that explicitly requires certain
forms of documentary evidence. See In re Soffici, 22 I & N Dec. 158, 160 (BIA 1998).2 The statute

2

Similarly, in In re Treasure Craft of Cal., 14 I & N Dec. 190 (Reg. Comm. 1972), the case that Soffici cited,
stronger, documentary proof was needed because the testimonial evidence the petitioner submitted directly
contradicted documentary evidence in the record.

24

and regulations at issue here, including 8 U.S.C. § 1101(a)(27)(C) and 8 C.F.R. §§ 204.5(m)(2)(i),
(5), and (7)(xi), do not require the evidence to be documents rather than affidavits, or require a
certain form of evidence not submitted here.
In the absence of an explicit requirement to submit certain kinds of documentary evidence,
“an agency is generally under at least a minimal obligation to provide adequate reasons explaining
why it has rejected uncontradicted evidence,” including testimonial evidence. Soltane, 381 F.3d at
151 (citing Richard J. Pierce, Jr., 2 ADMINISTRATIVE LAW TREATISE § 11.2 at 791 (2002)). While
the agency can reject testimonial evidence it finds not credible or contradicted by documentary
evidence in the administrative record, see id. at 151–52; In re Treasure Craft of Cal., 14 I & N Dec.
190 (Reg. Comm. 1972), the Appeals Office did not make either finding here, explicitly or
implicitly. The record does not show that the testimony submitted was internally inconsistent or
contradictory so as to justify rejecting or ignoring it and instead relying only on the documents
without the affidavits.
There were inconsistencies between some of the documents the Church submitted earlier and
some of the Church’s more recent explanations, including about when Heph Technology Services
was first registered, whose idea it was to register the name, and why Uzoma’s wife had rented office
space for Cute Apparel and then ended the rental. But the documents and the affidavits were both
internally consistent about these and other facts and uncontradicted by other record evidence. The
receipts, commercial invoice, bank statements, wire transfer requests, tax returns, and Harris County
clerk records were all consistent with the testimonial evidence. The evidence included affidavits
from Sekumade and Okoronkwo that:
•

Heph Technology Services conducted a single transaction;

•

The transaction was Okoronkwo’s idea;
25

•

Sekumade or Uzoma registered a business name—Heph Technology Services;

•

Uzoma never intended to make money from his involvement with Heph Technology
Services, but rather to accommodate Okoronkwo’s one-time request for computers;

•

Sekumade paid for the computers, not Uzoma; and

•

Heph Technology Services lost money on the transaction, and Uzoma received no
money from the transaction.

The USCIS cites cases holding that discrepancies in the record can support a finding that the
beneficiary did not work solely as a minister. But in those cases, the discrepancies clearly showed
secular employment, not merely a limited and transient role in facilitating a transaction for a friend
or spouse. And those cases did not include consistent documentary and testimonial evidence
supporting the petitioner’s claims.
In Hawaii Saeronam Presbyterian Church v. Ziglar, 243 F. App’x 224, 226 (9th Cir. 2007)
(per curiam), the petitioning church had failed to submit required forms of evidence showing that
the beneficiary worked full-time as a minister, and the financial statements it did submit were
inconsistent. In Eastern Orthodox Brotherhood of Kellion of Holy Transfiguration v. Napolitano,
No. 1:13-cv-478, 2014 WL 136202, at **3–4 (N.D. Ohio Jan. 14, 2014), the petitioner itself
submitted a letter stating that the beneficiary had worked “odd jobs” to make money, precluding a
finding that he had worked solely as a minister. In In re Mirza, A75-935-229, 2006 WL 3203661,
at *1 (BIA Aug. 31, 2006), aff’d sub nom. Mirza v. Mukasey, 268 F. App’x 122 (2d Cir. 2008) (per
curiam), the beneficiary admitted that he had worked part-time as a cab driver in addition to working
as a minister. In Ukranian Autocephalous Orthodox Church v. Chertoff, 630 F. Supp. 2d 779 (E.D.
Mich. 2009), the petitioning church gave contradictory information about the beneficiary’s job and
submitted evidence showing that he had permanent residence 200 miles away from the city where
26

he supposedly worked full-time as a minister. The evidence and inconsistent information precluded
finding that he was working as claimed. Id. at 788–89. And in Ogundipe v. Mukasey, 541 F.3d 257,
261 (4th Cir. 2008), undisputed documentary evidence showed that the beneficiary had worked in
“sales” and as an “assistant manager” when the petitioner claimed he was working solely as a
minister. None of these cases held that an agency could disregard testimonial evidence without
making a credibility finding, to conclude that the documentary evidence, considered without
affidavits or statements explaining them, failed to show that the beneficiary worked solely as a
minister.
The refusal to consider testimonial evidence is particularly troubling here because the
Appeals Office first instructed the Church that testimonial evidence would not “suffice” to meet its
burden; later apparently disregarded the testimonial evidence that the Church did submit without
finding it lacking in credibility; and after that faulted the Church for failing to submit testimonial
evidence earlier. The record also shows that the evidence of secular employment here was far less
than in the cases the USCIS cites.
“If the record before the agency does not support the agency action, if the agency has not
considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged
agency action on the basis of the record before it, the proper course, except in rare circumstances,
is to remand to the agency for additional investigation or explanation.” Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985); see also INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam).
When a court remands to an agency to clarify the reasons supporting its decision, the case law
suggests that remand is appropriate without vacating the agency’s order. U.S. Postal Serv. v. Postal
Regulatory Comm’n, 785 F.3d 740, 756 (D.C. Cir. 2015); Am. Bioscience, Inc. v. Thompson, 269
F.3d 1077, 1086 (D.C. Cir. 2001) (remanding without vacating when the court is “unsure of the
27

grounds the agency asserts to defend its action (and, perhaps, where [it] perceive[s] that a ground
poorly articulated might be sufficient to sustain the action)”).
On remand, the agency should clarify whether it considered the testimonial evidence the
Redeemed Church submitted in response to the Appeal Office’s remand order. If not, the agency
should reevaluate its conclusion that Uzoma intended to profit from the computer sale in light of that
evidence. Some questions are whether the Sekumade and Okoronkwo affidavits are credible, and
whether the credible testimonial and documentary evidence together meet the Church’s burden.
Neither was addressed, contributing to this court’s finding of arbitrary and capricious agency action.
IV.

Conclusion
The court recognizes that the USCIS strongly opposes a remand. The USCIS’s brief on

reconsideration was helpful, detailed, and thorough. But, as discussed, the current administrative
record in this case is not as clear as the USCIS insists. Remand will serve the narrow but important
purpose of ensuring that the agency’s seemingly inconsistent treatment of the testimonial evidence
is adequately explained and supported by findings of fact, which will then allow for meaningful
judicial review of the challenged agency action. See SEC v. Chenery Corp., 318 U.S. 80, 95 (1943)
(“We are not suggesting that the [agency] must justify its exercise of administrative discretion in any
particular manner or with artistic refinement. We are not sticking in the bark of words. We merely
hold that an administrative order cannot be upheld unless the grounds upon which the agency acted
in exercising its powers were those upon which its action can be sustained.”). The court expresses
no opinion on whether the Redeemed Christian Church is ultimately entitled to the relief it seeks.
Uzoma’s claims are dismissed for lack of standing. The USCIS’s motion for summary
judgment, (Docket Entry No. 50), is denied. The Redeemed Christian Church’s motion for summary
judgment, (Docket Entry No. 52), is granted, and the case is remanded to the USCIS for additional
28

review, including of the testimonial evidence the Redeemed Christian Church has submitted.

SIGNED on May 26, 2016, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge

29