1

2

_FILED _ ENTERED

_LODGED . _ RECEIVED

3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

MJV 2 1 2001. LK

4

SEATTLE, WASHINGTON

5

6 Gabriel Ruiz-Diaz,Hy'u!! Sook Song, Cindy Lee Marsh, ana Gadiel Gomez,
7
Plaintiffs
8
vs.
9
United States of America; 10 U.S. Citizenship and Immigration Services;
U.S. Department ofHoD;leland Security; 11 U.S. Department of JustICe;· .
Emilio Gonzalez, Director of Citizenship and 12 Immigration Services;
Michael Cherthoff, Secret~ of 13 D~artment of Homeland Security
Michael Mukasey, Attorney General
14
Defendants
15

Complaint Class Action

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~--

11111111111111111 11111 110111111.11111111111

1IIIIImill 1111111 111111 11111 II 1111

07-CV-01881-CMP

16
INTRODUCTION
17

18

1. This is a class action lawsuit brought on behalf of certain religious workers

19 who are statutorily eligible to file applications for adjustment of status under INA §24S,

20 8 U.S.C. §1255, but whose applications the Citizenship and Immigration Services

21 ("CIS") refuses to accept.

22

2. Family-based applicants for permanent resident status and non-religious

23 employment-based applicants for permanent resident status can file a petition for an

24 immigrant visa and an application for adjustment of status ("AOS") concurrently.

25 Concurrent filing provides important benefits to both the applicant, and his or her family

26 members. Once CIS accepts the application for adjustment of status for filing, the

27 applicant is allowedto remain in the United States and obtain work authorization

28 pending the final adjudication ofthe petition for an immigrant visa and the application

COMPLAINT - 1

GIBBS HOUSTON PAUW
1000 SECONJ) AVENUE, SUITE 1600 SEA'ITLE, WASHINGTON. 98104·1094
(206)682-1080

,

1 for adjustment of status. Religious workers, however, are denied this benefit.

2

3. It is the policy and practice of CIS to refuse to accept the application for

3 adjustment of status from religious workers until the associated petition for an immigrant

4 visa has been approved. As a result, if there is a delay in the adjudication of the religious

5 worker's petition for an immigrant visa and the applicant's non-immigrant status expires,

6 then that person is required to stop his or her religious work and leave the United States.

7 Commonly, religious workers initially enter the United States in a non-immigrant

8 capacity valid for up to five years. At the end of that time, they may either depart the

9 U.S. or adjust status to permanent resident status if they are continuing in their religious

10 occupation.

11

4. CIS acts unlawfully in refusing to accept the concurrent AOS applications filed

12 by religious workers, whenit accepts such applications from other similarly situated

13 employment-based and family-based applicants for permanent resident status. CIS's

14 policy and practice constitutes a violation of the Immigration and Nationality Act

15 ("INA"); the First Amendment and the Equal Protection Guarantee of the United States

16 Constitution; and the Religious Freedom Restoration Act ("RFRA").

17

5. Plaintiffs and the class members they represent seek judicial review under the

18 Administrative Procedure Act of CIS's policy and practice of refusing to accept

19 applications for adjustment of status, and an order that those applications must be

20· accepted and adjudicated.

21

22

PARTIES

23

6. Plaintiff Cindy Lee Marsh is a citizen of South Africa. She is currently in the

24 United States on a religious worker visa (R-I visa). She works as the Children's

25 MinistryDirector for Impact Church International in Gig Harbor, Washington.

26

7. Plaintiff Gabriel Ruiz-Diaz is a citizen of Mexico. He is currently in the United

27 States on a religious worker visa (R-l visa). He works as the Pastor of the Church of the

28 Nazarene in Kent, Washington.

COMPLAINT - 2

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SEATI'LE, WASHINGTON 98104·1094 (206) 682-1080

•

1

8. PlaintiffHyun Sook Song is a citizen of South Korea. She is currently in the

2 United States on a religious worker visa (R-l visa). She works as the Children's

3 Minister at Zion Castle Church in Federal Way, Washington.

4

9. PlaintiffGadiel Gomez is a citizen of Guatemala. He is currently in the United

5 States on a religious worker visa (R-1 visa). He works as the Pastor of Central

6 Presbyterian Church in Norwichtown, Pennsylvania.

7

10. Defendant United States of America is responsible for the adjudication of the

8 applications for adjustment of status that the Plaintiffs and the class members they

9 represent have filed or will file.

10

11. Defendant U.S. Citizenship and Immigration Services is the administrative

11 agency of the United States that is responsible for the adjudication ofthe applications for

12 adjustment of status that the Plaintiffs and the class members they represent have filed or

13 will file. CIS is a bureau within the Department of Homeland Security.

14

12. Defendant U.S. Department of Homeland Security is the agency of the United

15 States that is ultimately responsible for the enforcement of immigration laws and

16 granting immigration benefits. CIS is a bureau within the Department of Homeland

17 Security.

18

13. Defendant U.S. Department of Justice is an agency also responsible for

19 implementing and enforcing the Immigration and Nationality Act ("INA"). The

20 Executive Office for Immigration review is an agency within the Department of Justice

21 that has responsibility for applying the INA to persons who appear before immigration

22 judges in removal proceedings.

23

14. Defendant Emilio Gonzalez is the Director of CIS.. He is responsible for the

·24 adjudication of the applications for adjustment of status that the Plaintiffs and the class

25 members they represent have filed or will file. He is sued in his official capacity.

26

15. Defendant Michael Chertoffis the Secretary of the Department of Homeland

27 Security. He is the administrative official ultimately responsible for the adjudication of

28 the applications for adjustment of status that the Plaintiffs and the class members they

COMPLAINT - 3

GIBBS HOUSTON PAUW
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(106) 682-1080

1 represent have filed or will file. He is sued in his official capacity as the Secretary of the

2 Department of Homeland Security, the executive officer with authority over the

3 Citizenship and Immigration Services.

4

16. Defendant Michael Mukasey is the Attorney General of the United States. He

5 is the executive officer with authority over the Executive Office for Immigration Review.

6 He is sued in his official capacity.

7

8

JURISDICTION

9

17. This court has jurisdiction pUrsuant to 28 U.S.C. §1331 (federal question

10 jurisdiction); 28 U.S.C. §165l (the All Writs Act); and 28 U.S.C. §1361 Gurisdiction

11 over actions for mandamus). The Administrative Procedures Act, 5 U.S.C. §70l et seq.

12 applies to this lawsuit,

13

14

VENUE

15

18. Venue properly lies in the Western District of Washington pursuant to 28

16 U.S.C. §139l(e) and 28 U.S.C. §1402(b) because the United States government is a

17 defendant, and severahplaintiffs reside in this judicial district.

18

19

FACTUALBACKGROUNP

20

19. United States immigration law distinguishes between nonimmigrants, who

21 have permission to remain in the United States temporarily, see INA §101(a)(l 5), 8

22 U.S.C. §1101(a)(15) (list of nonimmigrant categories) and immigrants, who have

23 permission to reside in the United States permanently, see INA §201(b)(2)(A), 8 U.S.C.

24 §1151(b)(2)(A), and INA §203(a) and (b), 8 U.S.c. §1153(a) and (b) (list of immigrant

25 categories).

26

20. For purposes of this lawsuit, the relevant non-immigrant category is INA

27 §101 (a)(15)(R), which establishes a non-immigrant visa category for certain religious

28 workers. Individuals who qualify for an R visa are allowed to remain in the United

COMPLAINT - 4

GmBS HOUSTON PAUW 1000 SECOND AVENUE, SUITE 1600 SEAITLE, WASHINGrON 98104·1094
(206) 6S2-1080

1 States in order to perform religious work for up to five years. INA §101(a)(15)(R)(ii).

2 Family members (spouse and children) are eligible to remain in the United States as

3 derivative beneficiaries forthe same amount of time. 8 C.F.R. §214.2(r)(8). Ifapproved

4 for an R-visa, the initial period of authorized stay in the United States is valid for a

5 period of up to three years, which can be .extended for a period of two additional years. 8

6 C.F.R. §214.2(r)(4) and (5).

7

21. Immigrant visas are divided into family-based visas, described in INA

8 §201(b)(2)(A), 8 U.S.C. §115 I(b)(2)(A) ("immediate relatives") and §203(a), 8 U.S.C.

9 §l153(a) (other family members), and employment-based immigrant visas, described in

10 INA §203(b), 8 U.S.C. §l153(b).

11

22. The first step in obtaining permanent resident status is for the appropriate

12 family member or employer to file an immigrant visa petition to classify the non-citizen

13 in the appropriate immigrant category. In the case offamily-based immigrant visas, the

14 U.S. citizen family member files a Petition for Alien Relative (Form 1-130) for the.

15 benefit of the non-citizen. In the case of employment-based immigrant visas, for non-

16 citizens who fall under the first three employment categories (INA §203(b)(I), (2), or

17 (3», the U.S. employer files an Immigrant Petition for Alien Worker (Form 1-140). If the

18 non-citizen falls under the fourth employment category (INA §203(b)(4) (religious

19 worker), then the employer (which must be a recognized religious organization) files a

20 Petition for Special Immigrant (Form 1-360). The approval of the visa petition

21 constitutes the agency's finding that the non-citizen is classified in the appropriate

22 immigrant category.

23

23. The second step in the immigration process is for the non-citizen to file an

24 application for permanent resident status (application for adjustment of status) (Form J-

25 485). If the non-citizen is lawfully in the United States on a non-immigrant visa

26 category, he or she can adjust status in the United States pursuant to INA §245, 8 U.S.C.

27 §1255, if the statutory requirements are met. Immediate family members of the primary

28 applicant are considered derivative beneficiaries and can apply to adjust status at the

COMPLAINT - 5

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SEAITLE, WASHINGI'ON 98104-1094
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I same time. INA §203(d), 8 U.S.C. §1153(d).

2

24. Certain individuals who would otherwise be eligible for adjustment of status

3 maybe disqualified by operation of INA §245(c), which provides that individuals who

4 are out of status or who have worked without authorization are not eligible for

5 adjustment of status.

6 .

25. There is no statutory requirement that before the application for adjustment of

7 status (Form 1-485) is filed, an immigrant visa petition (Form 1-130, 1-140, or 1-360)

8 must be approved; the statute provides only that an application for adjustment of status

9 may be filed if the applicant "is eligible to receive an immigrant visa." INA §245(a)(2),

10 8 U.S.C. §1255(a)(2).

II

26. The Immigration Service has taken the position that an immigrant visa

12 petition and an application for adjustment of status can be filed concurrently if the

13 applicant is a family-based petitioner or if the applicant falls under one of the first three

14 employment-based visa categories. In other words, under CIS policies a family-based

15 applicant can can file an 1-130 and 1-485 application concurrently, and a non-religious

16 worker can file an 1-140 and 1-485 application concurrently. However, CIS refuses to

17 accept concurrently filed 1-360 and 1-485 applications from religious workers. In other

18 words, if the applicant is a religious worker, then CIS will refuse to accept the

19 concurrently filed applications.

20

27. Plaintiff Cindy Lee Marsh is in the United States on a religious worker visa.

21 On or about August 28, 2006, Impact Church International filed an 1-360 petition for the

22 benefit of Plaintiff Marsh. This application has not been approved and it is still pending.

23 Plaintiff Marsh is eligible to file an application for adjustment of status. On or about

24 November 8, 2007 Plaintiff Marsh submitted an application for adjustment of status to

25 CIS. Because of its discriminatory policies, CIS has refused to accept or will refuse to

26 accept this application for adjustment of status.

27

28. Plaintiff Gabriel Ruiz-Diaz is in the United States on a religious worker visa.

28 On or about November 16,2007, the Church ofthe Nazarene filed an 1-360 petition for

COMPLAINT - 6

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1000 SECOND AVENUE, SUITE 1600 SEATTLE, WASIDNGTON 98104-1094
(206) 682.1080

•

1 the benefit of Plaintiff Ruiz-Diaz. This application has not been approved and it is still

2 pending. PlaintiffRuiz-Diaz is eligible to file an application for adjustment of status.

3 On or about November 16,2007 Plaintiff Ruiz-Diaz submitted an application for

4 adjustment of status to CIS. Because of its discriminatory policies, CIS has refused to

5 accept or will refuse to accept this application for adjustment of status.

6

29. PlaintiffHyun Sook Song is in the United States on a religious worker visa.

7 On or about May 12,2006, Zion Castle Church filed anI-360 petition for the benefit of

8 Plaintiff Song. This application has not been approved and it is still pending. Plaintiff

9 Song is eligible to file an application for adjustment of status. On or about July 11, 2007

10 Plaintiff Song submitted an application for adjustment of status to CIS. Because of its

11 discriminatory policies, CIS refused to accept this application for adjustment of status

12 and on August 29,2007 CIS returned the application to Plaintiff Song.

13

. 30. Plaintiff Gadiel Gomez is in the United States on a religious worker visa. On

14 or about October 6, 2006, Central Presbyterian Church filed an 1-360 petition for the

15 benefit of Plaintiff Gomez. This application has not been approved and it is still

16 pending. Plaintiff Gomez is eligible to file an application for a~justment of status.

17 Plaintiff Gomez desires to file an application for adjustment of status but he is prevented

18 from doing so because of CIS's discriminatory policies. Planitiff Gomez would file an

19 application for adjustment of status but for CIS's discriminatory and unlawful policy of

20 refusing to accept concurrent filings from religious workers.

21

31. There is no rational basis for CIS to accept concurrently filed AOS

22 applications from family-based applicants and from non-religious employment-based

23 applicants, but to refuse to accept concurrently filed AOS applications filed for the

24 benefit ofreligious workers.

25

32. Plaintiffs Cindy Lee Marsh, Gabriel Ruiz-Diaz, Hyun Sook Song, and Gadiel

26 Gomez, and the class members of this lawsuit are statutorily eligible to file applications

27 for adjustment of status (Form 1-485) and by law their applications should be accepted

28 and adjudicated.,

COMPLAINT - 7

GIBBS HOUSTON PAUW 1000 SECOND AVENUE, SUITE 1600 SEATrLE, WASHINGTON 98104-1094
(1Al6) 682-1080

1

33. The policy of CIS to refuse to accept the applications for adjustment of status

2 from Plaintiffs Cindy Lee Marsh, Gabriel Ruiz-Diaz, Hyun Sook Song, and Gadiel

3 Gomez, and from the class members of this lawsuit, substantially burdens the exercise of

4 religion by Plaintiffs, class members, and by u.S. citizens and permanent residents of the

5 .religious organizations for whom these individuals work.

6

CLASS ACTION ALLEGATIONS

7

34. Plaintiffs bring this action on behalf of themselves and all other persons

8 similarly situated pursuant to F.R.C.P. Rules 23(a) and 23(b). The class, as proposed by

9 plaintiffs, is defined as follows:

10

all individuals (and their derivative family members) currently in the United

States who are beneficiaries of a Petition for Special Immigrant (Religious

11

Worker) (Form 1-360) that has been filed or W111 be filed and who would be

eligible to file an Application for Adjustment of Status (Form 1-48S) but for

12

cnr~ policy codified at 8 C.F.R. §24S.2(a)(2)(i)(B) that th€? immigrant visa

petItIOn (Form 1-360) must be approved before ffie apphcation for

13

adjustment of status can be filed. .

14

3S. The requirements of Rules 23(a) and 23(b)(2) are met in that the class is so

15 numerous that joinder of all members is impracticable (plaintiffs estimate that there are

16 at least between SOO and 1,000 individuals in the defined class); there are questions of

17 law and fact common to the class (whether CIS's policy codified at 8 C.F.R.

18 §24S.2(a)(2)(i)(B) is lawful and constitutional); the claims of the representative parties

19 are typical of the claims of the class; the representative parties will fairly and adequately

20 represent the interests of the class in that their claims are typical of the claims of the

21 class and they.are represented by pro bono counsel with extensive expertise in class

22 action litigation regarding the rights of immigrants; and the party opposing the class has

23 acted on grounds generally applicable to the class, thereby making appropriate final

24 injunctive relief with respect to the class as a whole.

25

IRREPARABLE INJURY

26

36. Plaintiffs, members of the class, and U.S. citizens and permanent residents

27 who employ, worship with and associate with class members have suffered and will

28 suffer irreparable harm because of the challenged policies and practices ofthe

COMPLAINT - 8

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1000 SECOND AVENUE, SUITE 1600
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1 Defendants as described throughout this complaint.

2

3

CAUSES OF ACTION

4

37. The decision of CIS to refuse to accept applications for adjustment of status

5 from Plaintiffs and class members violates the Immigration and Nationality Act, INA

6 §245(a), (c) and (k), 8 U.S.C. § I255(a), (c) and (k), and the Due Process Clause of the

7 United States Constitution.

S

38. Plaintiffs and class members of this lawsuit are statutorily eligible under INA

9 §245, 8 U.S.C. §1255, to file applications for adjustment of status. CIS's refusal to

10 accept the applications for adjustment of status and adjudicate those applications

11 constitutes a violation of the Immigration and Nationality Act and a violation of the Due

12 Process Clause ofthe United States Constitution.

13

39. CIS's policy of refusing to accept concurrently filed 1-360 and 1-485

14 applications for the benefit ofreligious workers, when it accepts concurrently filed 1-130

15 and 1-485 applications for the benefit of family members and also accepts concurrently

16 filed 1-140 and 1-485 applications for the benefit ofnon-religious workers, constitutes

17 unlawful discrimination against religious organizations and religious workers, and

18 violates the Equal Protection Guarantee of the United States Constitution.

19

40. CIS's policy ofrefusing to accept concurrently filed 1-360 and 1-485

20 applications for the benefit ofreligious workers, when it accepts concurrently filed 1-130

21 and 1-485 applications for the benefit of family members and also accepts concurrently

22 filed 1-140 and 1-485 applications for the benefit ofnon-religious workers, constitutes

23 unlawful discrimination against religious organizations and religious workers, and

24 violates the Religious Freedom Restoration Act.

25

41. The refusal of CIS to grant employment authorization to Plaintiffs and class.

26 members who would be eligible to file applications for adjustment of status, but for

27 CIS's policy of not accepting concurrently filed petitions for immigrant visas and

28 applications for adjustment of status, violates the governing regulations and constitutes

COMPLAINT - 9

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1 unlawful discrimination against religious organizations and religious workers, and also

2 violates RFRA and the First Amendment and the Equal Protection Guarantee of the

3 United States Constitution.

4

5

6

REQUEST FOR RELIEF

7

WHEREFORE, Plaintiffs request that this Court grant the following relief:

8

(l) Accept jurisdiction over the claims presented in this lawsuit;

9

(2) Declare that Plaintiffs and class members are statutorily eligible to file

10 applications for adjustment of status, and that the 1-485 applications they have filed shall

11 be deemed to have been filed on the date that such applications are submitted to CIS;

12

(3) Declare that CIS's refusal to accept concurrently filed petitions for religious

13 workers (Form 1-360) and applications for adjustment of status (Form 1-485) violates the

14 Equal Protection Guarantee of the United States Constitution and violates the Religious

15 Freedom Restoration Act;

16

(4) Declare that, for purposes of INA §245(c), 8 U.S.C. §1255(c) and INA

17 §245(k), 8 U.S.C. §1225(k), Plaintiffs and class members who have filed or will

18 concurrently file a Petition for Immigrant Visa (Form 1-360) and Application for

19 Adjustment of Status (Form 1-485) do not thereafter accrue time in which they have

20 failed to maintain continuous lawful status, engaged in unauthorized employment, or

21 otherwise violated the terms and conditions of their immigration status, and that no such

22 period of time shall begin except in accordance with the orders of this Court;

23

(5) Declare that, for purposes of INA §212(a)(9)(B), 8 U.S.C. §1182(a)(9)(B),

24 Plaintiffs and class members who have filed or will concurrently file a Petition for

25 Immigrant Visa (Form 1-360) and Application for Adjustment of Status (Form 1-485) do

26 not thereafter accrue "unlawful presence", and that ''unlawful presence" shall not begin

27 to accrue except in accordance with the orders of this Court;

28

(6) Declare that Plaintiffs and class members who have filed or will concurrently

COMPLAINT - 10

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.. .-

1 file a Petition for Immigrant Visa (Form 1-360) and Application for Adjustment of Status

2 (Form 1-485) are eligible for employment authorization pursuant to 8 C.F.R

3 §274a.l2(c)(9), and order CIS to accept and adjudicate such applications for employment

4 authorization (Form 1-765) in the same manner that such applications filed by other

5 family-based and employment-based applicants are adjudicated;

6

(7) Grant an award of attorneys' fees and costs;

7

(8) Grant such other relief as may be just and reasonable.

8

9

I? Dated this ;;J f ~ day of ~ ~

,2007.

10

11

""2~~ \:::>~{---

12

RobertPauw

Robert Gibbs

13

Mari Matsumoto

GIBBS HOUSTON PAUW

14

Attorney for Plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT - 11

GIBBS HOUSTON PAUW 1000 SECOND AVENUE, SUITE 1600 SEATTLE, WASHINGTON 98104-1094
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 Case 2:07-cv-01881-RSL Document 48 Filed 05/01/2008 Page 1 of 3

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

_________________________________

8

)

GABRIEL RUIZ-DIAZ, et al.,

)

9

) No. C07-1881RSL

Plaintiffs,

)

10

v.

) ORDER GRANTING IN PART PLAINTIFFS’

) MOTION FOR A PRELIMINARY

11 UNITED STATES OF AMERICA, ) INJUNCTION

et al.,

)

12

)

Defendants.

)

13 _________________________________ )

14 This matter comes before the Court on plaintiffs’ “Motion for Preliminary
15 Injunction.” Dkt. # 29. Plaintiffs seek “a preliminary order allowing class members (and their
16 derivative family members) to remain in the United States without accruing unlawful presence
17 and unauthorized employment that would disqualify them from adjustment of status pursuant to
18 INA § 245(c), 8 U.S.C. § 1255(c), and subject them to the 3-year/10-year inadmissibility bar in
19 INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B).” Reply at 1. The Court has denied plaintiffs’
20 motion for class certification in a separate order: the request for preliminary injunction is
21 therefore considered only as to the named plaintiffs and their derivative family members.
22 In determining whether to grant a preliminary injunction, the Ninth Circuit
23 considers: (1) the likelihood of plaintiffs’ success on the merits; (2) the possibility of irreparable
24 injury to plaintiffs if an injunction is not issued; (3) the extent to which the balance of hardships
25 favors plaintiffs; and (4) whether the public interest will be advanced by the injunction. See
26
ORDER GRANTING IN PART PLAINTIFFS’
MOTION FOR A PRELIMINARY INJUNCTION

Case 2:07-cv-01881-RSL Document 48 Filed 05/01/2008 Page 2 of 3

1 Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 456 (9th Cir. 1994); Los Angeles Mem’l Coliseum

2 Comm’n v. Nat’l Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). The analysis is often

3 compressed into a single continuum where the required showing of merit varies inversely with

4 the showing of irreparable harm. See Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc.,

5 204 F.3d 867,874 (9th Cir. 2000). Thus, plaintiffs may be entitled to preliminary relief if they

6 are able to show either (1) probable success on the merits and the possibility of irreparable harm

7 or (2) the existence of serious questions going to the merits and a fair chance of success thereon,

8 with the balance of hardships tipping sharply in favor of an injunction. Miller, 19 F.3d at 456.

9

Having reviewed plaintiffs’ motion and the remainder of the record, the Court

10 finds that plaintiffs have raised serious questions regarding their eligibility for adjustment of

11 status and that they have a fair chance of success on the merits of their declaratory and/or

12 injunctive relief claim. Four of the seven named plaintiffs have already begun to accrue

13 unlawful presence time, thereby reducing the grace period Congress provided for this class of

14 alien following expiration of their visa status. The accrual of unlawful presence time for these

15 individuals (and the potential that plaintiff Gillette will begin accruing time in the future)1 is

16 directly related to defendants’ rejection of their original I-485 applications and threatens

17 plaintiffs’ ability to remain in the United States and/or to seek adjustment of status in the future.

18 Halting the accrual of unlawful presence/unauthorized employment time will continue the

19 current status quo, will prevent irreparable harm to plaintiffs and their families, and will not

20 cause defendants any undue hardship.

21

22

23

24

25

1 Plaintiffs Ekka and Gomez have refiled their I-485 applications and are not in any danger of

accruing unlawful presence time. 26

ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION -2-

Case 2:07-cv-01881-RSL Document 48 Filed 05/01/2008 Page 3 of 3

1

For all of the foregoing reasons, the accrual of unlawful presence/unauthorized

2 employment time against plaintiffs Ruiz-Diaz, Song, Marsh, Gillette, and Sidine is hereby

3 STAYED until this litigation is resolved or further order of this Court. No security shall be

4 required.

5

6

Dated this 30th day of April, 2008.

7

8

A

9

Robert S. Lasnik

10

United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

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24

25

26
ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION -3-

 
 Case 2:07-cv-01881-RSL Document 47 Filed 05/01/2008 Page 1 of 3

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

_________________________________

8

)

GABRIEL RUIZ-DIAZ, et al.,

)

9

) No. C07-1881RSL

Plaintiffs,

)

10

v.

) ORDER DENYING MOTION FOR CLASS

) CERTIFICATION

11 UNITED STATES OF AMERICA, )

et al.,

)

12

)

Defendants.

)

13 _________________________________ )

14 This matter comes before the Court on “Plaintiffs’ Motion for Class Certification.”
15 Dkt. # 12. The seven named plaintiffs seek to go forward with this litigation as representatives

16

of a class, described as follows:

17

All individuals currently in the United States who are beneficiaries of a Petition

18

for Special Immigrant (Religious Worker) (Form I-360) that has been filed or will

19

be filed, and who would be eligible to file an Application for Adjustment of Status

(Form I-485) but for CIS’s policy codified at 8 C.F.R. § 245.2(a)(2)(i)(B) that the

20

Form I-360 petition must be approved before the Form I-485 application can be

21

filed.

22 Defendants agree that this litigation involves issues of law and/or fact that are common to all

23 potential class members. They challenge plaintiffs’ assertions regarding numerosity, typicality,

24

25

26 ORDER DENYING MOTION FOR CLASS CERTIFICATION

Case 2:07-cv-01881-RSL Document 47 Filed 05/01/2008 Page 2 of 3

1 and adequacy of representation, however.1

2

3

Fed. R. Civ. P. 23(a)(1): Numerosity

4

Plaintiffs assert, based on third-party declarations and CIS’ published data, that the

5 prospective class consists of thousands of religious workers whose employers have filed I-360

6 petitions. Motion at 2-3. Defendants object to the imprecision of plaintiffs’ calculations and

7 argue that plaintiffs have failed to show that any of the putative class members have become

8 ineligible for adjustment of status as a result of CIS’ policy of rejecting concurrently-filed I-485

9 applications.

10

Plaintiffs’ have adequately shown that the putative class is numerous. CIS

11 estimates that 3,230 organizations will file I-360 petitions this year, a number which understates

12 the number of employee immigrants involved. See 72 Fed. Reg. 20442, 20448-50 (April 25,

13 2007). All putative class members were allegedly precluded from seeking adjustment of status

14 because of defendants’ discriminatory and unlawful policy: plaintiffs have not alleged, and need

15 not show, that each class member is or will actually become ineligible for adjustment of status.

16 Because plaintiffs have described a large group of similarly-situated individuals, joinder would

17 be impractical and plaintiffs have met their burden of establishing numerosity.

18

19

Fed. R. Civ. P. 23(a)(3) : Typicality

20

The proposed class is comprised of individuals currently living in the United

21 States who are the beneficiaries of I-360 petitions filed on their behalf and who would be

22 eligible to file an I-485 application but for CIS’ policy against concurrent filing. The seven

23

24

1 After plaintiffs filed and defendants opposed the motion for class certification, plaintiffs

submitted a motion to amend their complaint to add additional parties. Plaintiffs have not yet been

25 granted leave to file a second amended complaint, and, for purposes of this motion, the Court has

considered the allegations of and parties to the currently-operative pleading. 26

ORDER DENYING MOTION

FOR CLASS CERTIFICATION

-2-

Case 2:07-cv-01881-RSL Document 47 Filed 05/01/2008 Page 3 of 3

1 named plaintiffs no longer fall within this class definition: six of the plaintiffs are now eligible

2 to file their I-485 applications and one is barred under 8 U.S.C. § 1255(a), not 8 C.F.R.

3 § 245.2(a)(2)(i)(B). Because “a class representative must be part of the class,” typicality does

4 not exist. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 156 (1982).

5

6

Because plaintiffs have failed to establish typicality, the Court need not determine

7 whether plaintiffs will adequately represent the interests of absent class members or whether a

8 class action can be maintained under Fed. R. Civ. P. 23(b).

9

10

For all of the foregoing reasons, plaintiff’s motion for class certification is

11 DENIED.

12

13

Dated this 30th day of April, 2008.

14

15

A

16

Robert S. Lasnik

17

United States District Judge

18

19

20

21

22

23

24

25

26

ORDER DENYING MOTION

FOR CLASS CERTIFICATION

-3-

 
 Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 1 of 17

Judge Robert Lasnik
1

2

UNITED STATES DISTRICT COURT

3

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE
4

GABRIEL RUIZ-DIAZ, HYUN SOOK 5 SONG, CINDY LEE MARSH, PETER 6 GILLETTE, SALECK OULD DAH OULD
SIDINE, PABLO SANDOVAL, YURIY 7 KASYANOV, LELIA TENREYRO-VIANA,
EDGARDO GASTON ROMERO 8 LACUESTA, ROSARIO RAZO ROMERO,
YOUN SU NAM, HAROLD MICHAEL 9 CARL LAPIAN, LAND OF MEDICINE,
UKRAINIAN AUTOCEPHALOUS 10 ORTHODOX CHURCH, SEATTLE
MENNONITE CHURCH,
11

NO. CV07-1881-RSL
PLAINTIFFS’ SECOND AMENDED COMPLAINT

Plaintiffs,
12

v.
13

14 UNITED STATES OF AMERICA,
15 U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF
16 HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, JONATHAN
17 SCHARFEN, Acting Director of Citizenship and Immigration Services,1 MICHAEL
18 CHERTHOFF, Secretary of Department of Homeland Security, MICHAEL MUKASEY
19 Attorney General,

20

Defendants.

21

22

23

24

1 Jonathan Scharfen, Acting Director of Citizenship and Immigration Services is substituted for Emilio T. Gonzalez, former

25 Director of Citizenship and Immigration Services.

PLAINTIFFS’ SECOND AMENDED COMPLAINT - 1

Gibbs Houston Pauw

1000 Second Avenue, Suite 1600

Seattle, WA 98104

206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 2 of 17

INTRODUCTION
1
1. This is a class action lawsuit brought on behalf of certain religious workers who are
2
statutorily eligible to file applications for adjustment of status under INA § 245, 8 U.S.C. § 1255, but
3
whose applications the Citizenship and Immigration Services (CIS) refuses to accept.
4
2. Family-based applicants for permanent resident status and non-religious employment-
5
based applicants for permanent resident status can file a petition for an immigrant visa and an
6 application for adjustment of status (AOS) concurrently. Concurrent filing provides important
7 benefits to both the applicant, and his or her family members. Once CIS accepts the application for
8 adjustment of status for filing, the applicant is allowed to remain in the United States and obtain

9 work authorization pending the final adjudication of the petition for an immigrant visa and the

10 application for adjustment of status. Religious workers, however, are denied this benefit.

11

3. It is the policy and practice of CIS to refuse to accept the application for adjustment

12 of status from religious workers until the associated petition for an immigrant visa has been

13 approved. As a result, if there is a delay in the adjud ication of the religious worker’s petition for an
14 immigrant visa and the applicant’s nonimmigrant status expires, then that person is required to stop
15 his or her religious work and leave the United States. Commonly, religious workers initially enter
the United States in a non- immigrant capacity valid for up to five years. At the end of that time, they
16
may either depart the U.S. or adjust status to permanent resident status if they are continuing in their
17
religious occupation.
18
4. CIS acts unlawfully in refusing to accept the concurrent AOS applications filed by
19
religious workers, when it accepts such applications from other similarly situated employment-based
20
and family-based applicants for permanent resident status. CIS’s policy and practice constitutes a
21
violation of the Immigration and Nationality Act (INA); the First Amendment and the Equal
22
Protection Guarantee of the United States Constitution; and the Religious Freedom Restoration Act
23 (RFRA).
24

25 PLAINTIFFS’ SECOND AMENDED COMPLAINT - 2

Gibbs Houston Pauw 1000 Second Avenue, Suite 1600
Seattle, WA 98104 206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 3 of 17

1

5. Plaintiffs and the class members they represent seek judicial review under the

2 Administrative Procedure Act of CIS’s policy and practice of refusing to accept applications for

3 adjustment of status, and an order that those applications must be accepted and adjudicated.

4

PARTIES

5

6. Plaintiff Gabriel Ruiz-Diaz is a citizen of Mexico. He currently seeks to adjust status

6 as a religious worker. He works as the Pastor of the Church of the Nazarene in Kent, Washington.

7. Plaintiff Hyun Sook Song is a citizen of South Korea. She is currently in the United
7
States on a religious worker visa (R-1 visa). She works as the Children’s Minister at Zion Castle
8
Church in Federal Way, Washington.
9
8. Plaintiff Cindy Lee Marsh is a citizen of South Africa. She currently seeks to adjust
10
status as a religious worker. She works as the Children’s Ministry Director for Impact Church
11
International in Gig Harbor, Washington.
12
9. Plaintiff Peter Gillette is a citizen of Ghana. He currently seeks to adjust status as a

13
religious worker. He works as Priest at St. Mary Catholic Church in Seaview, Washington.

14

10. Plaintiff Saleck Ould Dah Ould Sidine is a citizen of Mauritania. He currently seeks

15 to adjust status as a religious worker. He has worked as a religious teacher at the Zaytuna Institute in

16 Berkeley, California.

17

11. Plaintiff Pablo Sandoval is a citizen of Colombia. He was admitted to the United

18 States on a religious worker visa (R-1 visa). He works as a pastor at Centro Evangelistico de

19 Avivamiento, a church located in Tampa, Florida. He is the beneficiary of a pending I-360 petition

20 filed for his benefit by Worldwide Missionary Movement, Inc, to which the Centro Evangelistico de

21 Avivamiento is affiliated.

22

12. Plaintiff Yuriy Kasyanov is a citizen of the Ukraine. He was admitted to the United

23 States on a religious worker visa (R-1 visa). He works as the priest for St. Michael Ukrainian Orthodox Church, part of the Ukrainian Autocephalous Orthodox Church of North and South
24

25 PLAINTIFFS’ SECOND AMENDED COMPLAINT - 3

Gibbs Houston Pauw 1000 Second Avenue, Suite 1600
Seattle, WA 98104 206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 4 of 17

1 America (UAOC) in Brooklyn, New York. He is the beneficiary of a pending I-360 filed by the

2 UAOC.

3

13. Plaintiff Lelia Tenreryo-Viana is a citizen of Argentina. She was admitted to the

4 United States on a student visa and changed status to a religious worker visa (R-1 visa). She works

5 as the Director of Music Ministry at Saint Cecilia Church in Ashland, Massachusetts. She is the
6 beneficiary of a pending I-360 filed by St. Cecilia Church.
14. Plaintiff Edgardo Gaston Romero Lacuesta is a citizen of Uruguay. He was admitted
7
to the United States on a tourist visa and changed status to a religious worker visa (R-1 visa). He
8
works as pastor for Colonial Heights Baptist Church’s Hispanic church, Iglesia Bautista Vida
9
Abundante in Jackson, Mississippi. He is the beneficiary of a pending I-360 petition filed by
10
Colonial Heights Baptist Church.
11
15. Plaintiff Rosario Razo Romero is a citizen of Mexico. She was admitted to the
12
United States on a religious worker visa (R-1 visa). She works as the Christian Education
13
Coordinator for Sol del Valle Christian School in Sun Valley, California. She is the beneficiary of a
14 pending I-360 petition filed by Sol del Valle Christian School.

15

16. Plaintiff Youn Su Nam is a citizen of South Korea. He is currently in the United

16 States on an unexpired religious worker visa (R-1 visa). He works as the pastor of the Korean

17 Crystal Christian Church in Everett, Washington. He is the beneficiary of a pending I-360 petition

18 filed by Korean Crystal Christian Church.

19

17. Plaintiff Harold Michael Carl Lapian is a citizen of Indonesia. He is currently in the

20 United States on a religious worker visa (R-1 visa). He works as the pastor for the Indonesian

21 Christian Reformed Church in Dover, New Hampshire. He is the beneficiary of a pending I-360

22 petition filed by the Christian Reformed Church in North America.

23

18. Plaintiff Land of Medicine is a California nonprofit religious organization and

501(c)(3) tax-exempt religious organization under the Internal Revenue Service code. Land of
24

25 PLAINTIFFS’ SECOND AMENDED COMPLAINT - 4

Gibbs Houston Pauw 1000 Second Avenue, Suite 1600
Seattle, WA 98104 206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 5 of 17

1 Medicine is a Buddhist organization in the Mahayana Tibetan tradition, located in Soquel,

2 California. Land of Medicine employs religious workers.

3

19. Plaintiff Ukrainian Autocephalous Orthodox Church (UAOC) is a 501(c)(3) tax-

4 exempt organization under the Internal Revenue Service code. UAOC is an orthodox Christian

5 religious organization located Westchester County, New York. UAOC employs religious workers.

6

20. Plaintiff Seattle Mennonite Church (SMC) is a Washington state nonprofit

organization and is tax-exempt under section 501(c)(3) of the Internal Revenue Service code. SMC
7
is a Christian religious organization in the Anabaptist tradition, located in Seattle, Washington.
8
SMC employs religious workers.
9
21. Defendant United States of America is responsible for the adjudication of the
10
applications for adjustment of status that the Plaintiffs and the class members they represent have
11
filed or will file.
12
22. Defendant U.S. Citizenship and Immigration Services (CIS) is the administrative

13
agency of the United States that is responsible for the adjudication of the applications for adjustment

14 of status that the Plaintiffs and the class members they represent have filed or will file. CIS is a

15 bureau within the Department of Homeland Security.

16

23. Defendant U.S. Department of Homeland Security is the agency of the United States

17 that is ultimately responsible for the enforcement of immigration laws and granting immigration

18 benefits. CIS is a bureau within the Department of Homeland Security.

19

24. Defendant U.S. Department of Justice is an age ncy also responsible for implementing

20 and enforcing the Immigration and Nationality Act (INA). The Executive Office for Immigration

21 review is an agency within the Department of Justice that has responsibility for applying the INA to

22 persons who appear before immigration judges in removal proceedings.

23

25. Defendant Jonathan Scharfen is the Acting Director of CIS. He is responsible for

the adjudication of the applications for adjustment of status that the Plaintiffs and the class members
24

they represent have filed or will file. He is sued in his official capacity.
25

PLAINTIFFS’ SECOND AMENDED COMPLAINT - 5

Gibbs Houston Pauw

1000 Second Avenue, Suite 1600

Seattle, WA 98104

206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 6 of 17

1

26. Defendant Michael Chertoff is the Secretary of the Department of Homeland

2 Security. He is the administrative official ultimately responsible for the adjudication of the

3 applications for adjustment of status that the Plaintiffs and the class members they represent have

4 filed or will file. He is sued in his official capacity as the Secretary of the Department of Homeland

5 Security, the executive officer with authority over the Citizenship and Immigration Services.

6

27. Defendant Michael Mukasey is the Attorney General of the United States. He is the

executive officer with authority over the Executive Office for Immigration Review. He is sued in
7
his official capacity.
8
JURISDICTION
9
28. This court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question
10
jurisdiction); 28 U.S.C. § 1651 (the All Writs Act); and 28 U.S.C. § 1361 (jurisdiction over actions
11
for mandamus). The Administrative Procedures Act, 5 U.S.C. § 701 et seq. applies to this lawsuit.
12
VENUE

13
29. Venue properly lies in the Western District of Washington pursuant to 28 U.S.C. §

14 1391(e) and 28 U.S.C. § 1402(b) because the United States government is a defendant, and several

15 plaintiffs reside in this judicial district.

16

FACTUAL BACKGROUND

17

30. United States immigration law distinguishes between nonimmigrants, who have

18 permission to remain in the United States temporarily, see INA § 101(a)(15), 8 U.S.C. § 1101(a)(15)

19 (list of nonimmigrant categories) and immigrants, who have permission to reside in the United States

20 permanently, see INA § 201(b)(2)(A), 8 U.S.C. § 1151(b)(2)(A), and INA § 203(a) and (b), 8 U.S.C.

21 § 1153(a) and (b) (list of immigrant categories).

22

31. For purposes of this lawsuit, the relevant nonimmigrant category is INA §

23 101(a)(15)(R), which establishes a nonimmigrant visa category for certain religious workers.

Individuals who qualify for an R visa are allowed to remain in the United States in order to perform
24

religious work for up to five years. INA § 101(a)(15)(R)(ii). Family members (spouse and children)
25

PLAINTIFFS’ SECOND AMENDED COMPLAINT - 6

Gibbs Houston Pauw

1000 Second Avenue, Suite 1600

Seattle, WA 98104

206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 7 of 17

1 are eligible to remain in the United States as derivative beneficiaries for the same amount of time. 8

2 C.F.R. § 214.2(r)(8). If approved for an R visa, the initial period of authorized stay in the United

3 States is valid for a period of up to three years, which can be extended for a period of two additional

4 years. 8 C.F.R. § 214.2(r)(4) and (5).

5

32. Immigrant visas are divided into family-based visas, described in INA §

6 201(b)(2)(A), 8 U.S.C. § 1151(b)(2)(A) (immediate relatives) and § 203(a), 8 U.S.C. § 1153(a)

(other family members), and employment-based immigrant visas, described in INA § 203(b), 8
7
U.S.C. § 1153(b).
8
33. The first step in obtaining permanent resident status is for the appropriate family
9
member or employer to file an immigrant visa petition to classify the non-citizen in the appropriate
10
immigrant category. In the case of family-based immigrant visas, the U.S. citizen family member
11
files a Petition for Alien Relative (Form I-130) for the benefit of the non-citizen. In the case of
12
employment-based immigrant visas, for non-citizens who fall under the first three employment

13
categories (INA § 203(b)(1), (2), or (3)), the U.S. employer files an Immigrant Petition for Alien

14 Worker (Form I-140). If the non-citizen falls under the fourth employment category (INA §

15 203(b)(4) (religious worker), then the employer (which must be a recognized religious organization)

16 files a Petition for Special Immigrant (Form I-360). The approval of the visa petition constitutes the

17 agency’s finding that the non-citizen is classified in the appropriate immigrant category.

18

34. The second step in the immigration process is for the non-citizen to file an application

19 for permanent resident status (application for adjustment of status) (Form I-485). If the non-citizen

20 is lawfully in the United States on a non- immigrant visa category, he or she can adjust status in the

21 United States pursuant to INA § 245, 8 U.S.C. § 1255, if the statutory requirements are met. 22 Immediate family members of the primary applicant are considered derivative beneficiaries and can 23 apply to adjust status at the same time. INA § 203(d), 8 U.S.C. § 1153(d).

24

25 PLAINTIFFS’ SECOND AMENDED COMPLAINT - 7

Gibbs Houston Pauw 1000 Second Avenue, Suite 1600
Seattle, WA 98104 206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 8 of 17

1

35. Certain individuals who would otherwise be eligible for adjustment of status may be

2 disqualified by operation of INA § 245(c), which provides that individuals who are out of status or

3 who have worked without authorization are not eligible for adjustment of status.

4

36. There is no statutory requirement that before the application for adjustment of status

5 (Form I-485) is filed, an immigrant visa petition (Form I-130, I-140, or I-360) must be approved; the

6 statute provides only that an application for adjustment of status may be filed if the applicant is

eligible to receive an immigrant visa. INA § 245(a)(2), 8 U.S.C. § 1255(a)(2).
7
37. CIS has taken the position that an immigrant visa petition and an application for
8
adjustment of status can be filed concurrently if the applicant is a family-based petitioner or if the
9
applicant falls under one of the first three employment-based visa categories. In other words, under
10
CIS policies a family-based applicant can file an I-130 and I-485 application concurrently, and a
11
non-religious worker can file an I-140 and I-485 application concurrently. However, CIS refuses to
12
accept concurrently filed I-360 and I-485 applications from religious workers. In other words, if the

13
applicant is a religious worker, then CIS will refuse to accept the concurrently filed applications.

14

38. On or about August 28, 2006, Impact Church International filed an I-360 petition for

15 the benefit of Plaintiff Cindy Lee Marsh. At the time, Plaintiff Marsh was in the United States

16 pursuant to an R-1 visa. On or about November 8, 2007 Plaintiff Marsh submitted an application for

17 adjustment of status to CIS. Because of its discriminatory policies, CIS refused to accept that

18 application for adjustment of status on December 7, 2007. As a result, according to the unlawful

19 policies and practices of CIS, Plaintiff Cindy Marsh accrued unlawful presence in the United States

20 since November 21, 2007, the date her R-1 visa expired. On December 7, 2007 CIS approved the I-

21 360 petition that was filed on behalf of Plaintiff Cindy Marsh. Plaintiff Marsh has re- filed her

22 adjustment of status application on December 28, 2007. This application remains pending.

23

39. On or about November 16, 2007, the Church of the Nazarene filed an I-360 petition

for the benefit of Plaintiff Gabriel Ruiz-Diaz, who was in the United States pursuant to a religious
24

worker visa. This petition was approved on January 23, 2008. Plaintiff Ruiz- Diaz is eligible to file
25

PLAINTIFFS’ SECOND AMENDED COMPLAINT - 8

Gibbs Houston Pauw

1000 Second Avenue, Suite 1600

Seattle, WA 98104

206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 9 of 17

1 an application for adjustment of status. On or about November 16, 2007 Plaintiff Ruiz- Diaz

2 submitted an application for adjustment of status to CIS. Because of its discriminatory policies, CIS

3 refused to accept this application for adjustment of status. As a result, according to the unlawful

4 policies and practices of CIS, Plaintiff Ruiz- Diaz has accrued unlawful presence in the United States.

5 On February 12, 2008, CIS acknowledged receipt of Plaintiff Ruiz- Diaz’s re-filed application for

6 adjustment of status. This application remains pending.

40. Plaintiff Hyun Sook Song is in the United States on a religious worker visa. On or
7
about May 12, 2006, Zion Castle Church filed an I-360 petition for the benefit of Plaintiff Song. On
8
or about July 11, 2007 Plaintiff Song submitted an application for adjustment of status to CIS.
9
Plaintiff Song is eligible for adjustment of status. Because of its discriminatory policies, CIS refused
10
to accept this application for adjustment of status and on August 29, 2007 CIS returned the
11
application to Plaintiff Song. On November 27, 2007, CIS denied the I-360 petition that was filed
12
on behalf of Plaintiff Hyun Sook Song. A timely appeal of the denial was filed with the

13
Administrative Appeals Office of Defendant USCIS and remains pending.

14

41. On or about August 1, 2006, the Catholic Archdiocese of Seattle filed an I-360

15 petition for the benefit of Plaintiff Peter Gillette. At the time, Plaintiff Gillette was in the United

16 States on a religious worker visa. This petition was approved on January 3, 2008. Plaintiff Gillette

17 filed his application for adjustment of status, Form I-485, on January 29, 2008. That application

18 remains pending. Plaintiff Gillette would have been able to file his I-485 in August 2006 but for

19 CIS’s discriminatory policies. As a result, according to the unlawful policies and practices of CIS,

20 Plaintiff Peter Gillette has accrued unlawful presence in the United States.

21

42. On or about October 15, 2005, the Zaytuna Institute filed an I-360 petition for the

22 benefit of Plaintiff Saleck Ould Dah Ould Sidine, who was in the United States on a religious worker

23 visa. This petition was approved on January 31, 2008. Plaintiff Sidine is eligible to file an

application for adjustment of status. On or about June 12, 2007, Plaintiff Sidine submitted an
24

application for adjustment of status to CIS. Because of its discriminatory policies, CIS refused to
25

PLAINTIFFS’ SECOND AMENDED COMPLAINT - 9

Gibbs Houston Pauw

1000 Second Avenue, Suite 1600

Seattle, WA 98104

206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 10 of 17

1 accept this application for adjustment of status and on June 22, 2007, CIS returned the application to

2 Plaintiff Sidine. As a result, according to the unlawful policies and practices of CIS, Plaintiff Sidine

3 has accrued unlawful presence in the United States. On February 21, 2008, CIS acknowledged

4 receipt of Plaintiff Sidine’s re- filed application for adjustment of status. That application remains

5 pending.

6

43. On or about April 9, 2007, Worldwide Missionary Movement, Inc. filed an I-360

petition for the benefit of Plaintiff Pablo Sandoval, who was in the United States on a religious
7
worker visa. This petition has not been approved and is still pending. Plaintiff Sandoval is eligible
8
to file an application for adjustment of status. Plaintiff Sandoval desires to file an application for
9
adjustment of status but he is prevented from doing so because of CIS’s discriminatory policies.
10
Planitiff Sandoval would file an application for adjustment of status but for CIS’s discriminatory and
11
unlawful policy of refusing to accept concurrent filings from religious workers.
12
44. On June 29, 2006, Ukrainian Autocephalous Orthodox Church of North and South

13
America filed an I-360 petition for the benefit of Plaintiff Yuriy Kasyanov, who was in the United

14 States on a religious worker visa. This petition has not been approved and is still pending. Plaintiff

15 Kasyanov is eligible to file an application for adjustment of status. Plaintiff Kasyanov filed an

16 application for adjustment of status on March 23, 2008, but because of CIS’s discriminatory policies,

17 it refused to accept this application. As a result, according to the unlawful policies and practices of

18 CIS, Plaintiff Yuriy Kasyanov has accrued unlawful presence in the United States.

19

45. St. Cecilia Church filed an I-360 petition for Plaintiff Lelia Tenreyro-Viana’s benefit,

20 which was received by CIS on March 30, 2007. At the time, Plaintiff Tenreyro-Viana was in the

21 United States on a religious worker visa. That petition remains pending. Plaintiff Tenreyro-Viana is

22 eligible to file an application for adjustment of status. Plaintiff Tenreyro-Viana would file an

23 application for adjustment of status but for CIS’s discriminatory and unlawful policy of refusing to

accept concurrent filings from religious workers. As a result, according to the unlawful policies and
24

practices of CIS, Plaintiff Cindy Marsh has accrued unlawful presence in the United States.
25

PLAINTIFFS’ SECOND AMENDED COMPLAINT - 10

Gibbs Houston Pauw

1000 Second Avenue, Suite 1600

Seattle, WA 98104

206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 11 of 17

1

46. Colonial Heights Baptist Church filed an I-360 petition for Plaintiff Edgardo Gaston

2 Romero Lacuesta’s benefit, which was received by CIS on April 12, 2007. At the time, Plaintiff

3 Romero Lacuesta was in the United States on a religious worker visa. This petition remains

4 pending. Plaintiff Romero Lacuesta is eligible to file an application for adjustment of status.

5 Plaintiff Romero Lacuesta would file an application for adjustment of status but for CIS’s
6 discriminatory and unlawful policy of refusing to accept concurrent filings from religious workers.
As a result, according to the unlawful policies and practices of CIS, Plaintiff Romero Lacuesta has
7
accrued unlawful presence in the United States.
8
47. On November 8, 2007 Sol del Valle Christian School filed an I-360 petition for
9
Plaintiff Rosario Razo Romero’s benefit. At the time, Plaintiff Razo Romero was in the United
10
States on a religious worker visa. This petition remains pending. Plaintiff Razo Romero is eligible
11
to file an application for adjustment of status. On April 30, 2008, Plaintiff Razo Romero filed an
12
application for adjustment of status. Due to its discriminatory and unlawful policy, CIS has or will
13
refuse to accept this application. As a result, according to the unlawful policies and practices of CIS,
14 Plaintiff Razo Romero has accrued unlawful presence in the United States.

15

48. Plaintiff Youn Su Nam is in the United States on a religious worker visa. On March

16 19, 2007, Korean Crystal Christian Church filed an I-360 petition for Plaintiff Nam’s benefit. This

17 petition remains pending. Plaintiff Nam is eligible to file an application for adjustment of status.

18 Plaintiff Nam would file an application for adjustment of status but for CIS’s discriminatory and

19 unlawful policy of refusing to accept concurrent filings from religious workers.

20

49. Plaintiff Harold Michael Carl Lapian is in the United States on a religious worker

21 visa. On January 8, 2008, Christian Reformed Church in North America filed an I-360 for Plaintiff 22 Lapian’s benefit. This petition remains pending. Plaintiff Lapian is eligible to file an application for 23 adjustment of status. Plaintiff Lapian would file an application for adjustment of status but for CIS’s
discriminatory and unlawful policy of refusing to accept concurrent filings from religious workers.
24

25 PLAINTIFFS’ SECOND AMENDED COMPLAINT - 11

Gibbs Houston Pauw 1000 Second Avenue, Suite 1600
Seattle, WA 98104 206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 12 of 17

1

50. Plaintiff Land of Medicine currently employs approximately eight religious workers

2 who were admitted to the United States on R visas. Land of Medicine has filed I-360 petitions on

3 behalf of two of these workers. Land of Medicine intends to employ these two workers on a

4 permanent basis, and would file or would have filed concurrent I-485 applications for adjustment of
5 status but for CIS’s policy of refusing to accept such applications. Land of Medicine and its
6 members are harmed by CIS’s policy of refusing to accept concurrently filed applications for
adjustment of status, and seek to challenge this policy of refusing to accept concurrently filed
7
applications for adjustment of status on behalf of religious workers. Land of Medicine’s ability to
8
provide the religious practices necessary in the Mahayana tradition will be disrupted if their nuns,
9
monks or other religious workers are forced to depart the country because of the expiration of their R
10
visas, and where the I-360s filed for their religious workers’ benefit remain pending. The Buddhist
11
practitioners served by Land of Medicine will no longer be able to receive the spiritual guidance
12
needed.
13
51. Plaintiff Ukrainian Autocephalous Orthodox Church (UAOC) currently employs
14 approximately 15 religious workers who were admitted to the United States on religious worker
15 visas. UAOC has filed an I-360 petition on behalf of one of these workers, and expects to file I-360
16 petitions on behalf of additional religious workers in the near future. UAOC intends to employ these

17 individuals on a permanent basis, and they would file concurrent I-485 applications for adjustment

18 of status but for CIS’s policy of refusing to accept such applications. UAOC and its members are

19 harmed by CIS’s policy of refusing to accept concurrently filed applications for adjustment of status,

20 and seek to challenge this policy of refusing to accept concurrently filed applications for adjustment

21 of status on behalf of religious workers. If UAOC’s religious workers are forced to depart the 22 country at the expiration of their R visa status and prior to the approval of their I-360 petitions, 23 UAOC and its members will be unable to provide or participate in the religious practices essential to
their faith.
24

25 PLAINTIFFS’ SECOND AMENDED COMPLAINT - 12

Gibbs Houston Pauw 1000 Second Avenue, Suite 1600
Seattle, WA 98104 206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 13 of 17

1

52. Plaintiff Seattle Mennonite Church (SMC) currently employs two religious workers

2 who are in the United States on R visas. SMC intends to employ these individuals on a permanent

3 basis, and SMC intends to file I-360 petitions on behalf of these religious workers. They would file

4 concurrent I-485 applications for adjustment of status but for CIS’s policy of refusing to accept such

5 applications. SMC and its members are harmed by CIS’s policy of refusing to accept concurrently

6 filed applications for adjustment of status, and seek to challenge this policy of refusing to accept

concurrently filed applications for adjustment of status on behalf of religious workers.
7
53. There is no rational basis for CIS to accept concurrently filed AOS applications from
8
family-based applicants and from non-religious employment-based applicants, but to refuse to accept
9
concurrently filed AOS applications filed for the benefit of religious workers.
10
54. Plaintiffs and the class members of this lawsuit are statutorily eligible for adjustment
11
of status as of the time they are eligible to file a petition for immigrant visa, and by law their
12
applications should be accepted and adjudicated as of that time, and on the same basis as any other

13
applicant for adjustment of status.

14

55. The policy of CIS to refuse to accept the applications for adjustment of status from

15 Plaintiffs and from the class members of this lawsuit that are filed concur rently with a petition for

16 immigrant visa, or prior to the approval of the I-360, substantially burdens the exercise of religion by

17 Plaintiffs, class members, and by U.S. citizens and permanent residents of the religious organizations

18 for whom these individuals work.

19

CLASS ACTION ALLEGATIONS

20

56. Plaintiffs bring this action on behalf of themselves and all other persons similarly

21 situated pursuant to F.R.C.P. Rules 23(a) and 23(b). The class, as proposed by plaintiffs, is defined 22 as follows:

23

All individuals currently in the United States who are beneficiaries of a Petition

24

for Special Immigrant (Religious Worker) (Form I-360) that has been filed or

will be filed, and who were or would be eligible to file an Application for

25

Adjustment of Status (Form I-485) but for CIS’s policy codified at 8 C.F.R.

PLAINTIFFS’ SECOND AMENDED COMPLAINT - 13

Gibbs Houston Pauw

1000 Second Avenue, Suite 1600

Seattle, WA 98104

206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 14 of 17

§245.2(a)(2)(i)(B) that the Form I-360 petition must be approved before the

1

Form I-485 application can be filed.2

2
57. The requirements of Rules 23(a) and 23(b)(2) are met in that the class is so numerous
3
that joinder of all members is impracticable (plaintiffs estimate that there are at least between 500
4
and 1,000 individuals in the defined class); there are questions of law and fact common to the class
5
(whether CIS’s policy codified at 8 C.F.R. § 245.2(a)(2)(i)(B) is lawful and constitutional); the
6
claims of the representative parties are typical of the claims of the class; the representative parties
7
will fairly and adequately represent the interests of the class in that their claims are typical of the
8
claims of the class and they are represented by pro bono counsel with extensive expertise in class
9 action litigation regarding the rights of immigrants; and the party opposing the class has acted on
10 grounds generally applicable to the class, thereby making appropriate final injunctive relief with
11 respect to the class as a whole.

12

IRREPARABLE INJURY

13

58. Plaintiffs, members of the class, and U.S. citizens, permanent residents, and religious

14 organizations who employ, worship with and associate with class members have suffered and will

15 suffer irreparable harm because of the challenged policies and practices of the Defendants as

16 described throughout this complaint.

17

CAUSES OF ACTION

18

59. The decision of CIS to refuse to accept applications for adjustment of status from

Plaintiffs and class members violates the Immigration and Nationality Act, INA § 245(a), (c) and
19
(k), 8 U.S.C. § 1255(a), (c) and (k), and the Due Process Clause of the United States Constitution.
20
60. The individual plaintiffs and class members of this lawsuit are statutorily eligible under INA
21
§ 245, 8 U.S.C. § 1255, to file applications for adjustment of status. CIS’s refusal to accept the
22

23

2 This definition modifies the previous proposed definition slightly by including those who were eligible to file an 24 Application for Adjustment of Status, but are no longer eligible because (prior to any relief order of the court) they have

exc eeded the 180-day grace period following the expiration of their nonimmigrant visas, making them ineligible for

25 adjustment of status under INA § 245(c) and (k).

PLAINTIFFS’ SECOND AMENDED COMPLAINT - 14

Gibbs Houston Pauw

1000 Second Avenue, Suite 1600

Seattle, WA 98104

206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 15 of 17

1 applications for adjustment of status and adjudicate those applications constitutes a violation of the

2 Immigration and Nationality Act and a violation of the Due Process Clause of the United States

3 Constitution.

4

61. CIS’s policy of refusing to accept concurrently filed I-360 and I-485 applications for

5 the benefit of religious workers, when it accepts concurrently filed I-130 and I-485 applications for

6 the benefit of family members and also accepts concurrently filed I-140 and I-485 applications for

the benefit of non-religious workers, constitutes unlawful discrimination against religious
7
organizations and religious workers, and violates the Equal Protection Guarantee of the United
8
States Constitution.
9
62. CIS’s policy of refusing to accept concurrently filed I-360 and I-485 applications for
10
the benefit of religious workers, when it accepts concurrently filed I-130 and I-485 applications for
11
the benefit of family members and also accepts concurrently filed I-140 and I-485 applications for
12
the benefit of non-religious workers, constitutes unlawful discrimination against religious

13
organizations and religious workers, and violates the Religious Freedom Restoration Act.

14

63. The refusal of CIS to grant employment authorization to Plaintiffs and class members

15 who would be eligible to file applications for adjustment of status, but for CIS’s policy of not

16 accepting concurrently filed petitions for immigrant visas and applications for adjustment of status,

17 violates the governing regulations and constitutes unlawful discrimination against religious

18 organizations and religious workers, and also violates RFRA and the First Amendment and the

19 Equal Protection Guarantee of the United States Constitution.

20

REQUEST FOR RELIEF

21

WHEREFORE, Plaintiffs request that this Court grant the following relief:

22

(1) Accept jurisdiction over the claims presented in this lawsuit;

23

(2) Declare that the individual plaintiffs and class members of this lawsuit are statutorily

eligible to file applications for adjustment of status, and that the I-485 applications they have filed
24

shall be deemed to have been filed on the date that such applications are submitted to CIS;
25

PLAINTIFFS’ SECOND AMENDED COMPLAINT - 15

Gibbs Houston Pauw

1000 Second Avenue, Suite 1600

Seattle, WA 98104

206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 16 of 17

1

(3) Declare that CIS’s refusal to accept concurrently filed petitions for religious workers

2 (Form I-360) and applications for adjustment of status (Form I-485) violates the Equal Protection

3 Guarantee of the United States Constitution and violates the Religious Freedom Restoration Act;

4

(4) Declare that, for purposes of INA § 245(c), 8 U.S.C. § 1255(c) and INA § 245(k), 8

5 U.S.C. § 1225(k), individual plaintiffs and class members who have filed or will concurrently file a

6 Petition for Immigrant Visa (Form I-360) and Application for Adjustment of Status (Form I-485) do

not accrue time in which they have failed to maintain continuous lawful status, engaged in
7
unauthorized employment, or otherwise violated the terms and conditions of their immigration
8
status, and that no such period of time shall begin except in accordance with the orders of this Court;
9
(5) Declare that, for purposes of INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B),
10
individual plaintiffs and class members who have filed or will concurrently file a Petition for
11
Immigrant Visa (Form I-360) and Application for Adjustment of Status (Form I-485) do not accrue
12
unlawful presence, and that unlawful presence shall not begin to accrue except in accordance with

13
the orders of this Court;

14

(6) Declare that the individual plaintiffs and class members of this lawsuit who have filed

15 or will concurrently file a Petition for Immigrant Visa (Form I-360) and Application for Adjustment

16 of Status (Form I-485) are eligible for employment authorization pursuant to 8 C.F.R. §

17 274a.12(c)(9), and order CIS to accept and adjudicate such applications for employment

18 authorization (Form I-765) in the same manner that such applications filed by other family-based

19 and employment-based applicants are adjudicated;

20

(7) Grant an award of attorneys’ fees and costs;

21

(8) Grant such other relief as may be just and reasonable.

22
23 Dated this 15th day of May, 2008.

24

25 PLAINTIFFS’ SECOND AMENDED COMPLAINT - 16

Gibbs Houston Pauw 1000 Second Avenue, Suite 1600
Seattle, WA 98104 206-682-1080

Case 2:07-cv-01881-RSL Document 51 Filed 05/15/08 Page 17 of 17

_/s/ Robert Pauw__________

1

Robert Pauw, WSBA #13613

Robert H. Gibbs, WSBA #5932

2

Mari Matsumoto, WSBA #39227

3

GIBBS HOUSTON PAUW

1000 Second Avenue, Suite 1600

4

Seattle, WA 98104

Phone: 206-682-1080

5

Fax: 206-689-2270

Email: rpauw@ghp- law.net

6

Attorneys for Plaintiffs
7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25 PLAINTIFFS’ SECOND AMENDED COMPLAINT - 17

Gibbs Houston Pauw 1000 Second Avenue, Suite 1600
Seattle, WA 98104 206-682-1080

 
 Case 2:07-cv-01881-RSL Document 21 Filed 12/27/2007 Page 1 of 2

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

_________________________________

8

)

GABRIEL RUIZ-DIAZ, et al.,

)

9

) No. C07-1881RSL

Plaintiffs,

)

10

v.

) TEMPORARY RESTRAINING ORDER

)

11 UNITED STATES OF AMERICA, )

et al.,

)

12

)

Defendants.

)

13 _________________________________ )

14 This matter comes before the Court on plaintiffs’ “Motion for Temporary
15 Restraining Order for Plaintiff Saleck Ould Dah Ould Sidine.” Dkt. # 16. Unlike other
16 members of the plaintiff class, Mr. Sidine is in imminent danger of accruing over 180 days of
17 “unlawful presence” following the expiration of his R-1 visa on July 2, 2007. Plaintiffs seek “a
18 temporary restraining order staying the further accrual of any additional unlawful presence”
19 (Motion at 1) and cite Shi’a Assoc. of the Bay Area v. Chertoff, Case No. 07-10452 (9th Cir.
20 2007), as an example of the type of order sought.
21 Although the procedure for obtaining a temporary restraining order differs from
22 that which is applicable in the preliminary injunction context, the factors considered by the
23 Court are the same. In determining whether to grant a temporary restraining order or a
24 preliminary injunction, the Ninth Circuit considers: (1) the likelihood of plaintiffs’ success on
25 the merits; (2) the possibility of irreparable injury to plaintiffs if an injunction is not issued; (3)
26

TEMPORARY RESTRAINING ORDER

Case 2:07-cv-01881-RSL Document 21 Filed 12/27/2007 Page 2 of 2

1 the extent to which the balance of hardships favors plaintiffs; and (4) whether the public interest

2 will be advanced by the injunction. See Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 456 (9th Cir.

3 1994); Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1201

4 (9th Cir. 1980). The analysis is often compressed into a single continuum where the required

5 showing of merit varies inversely with the showing of irreparable harm. See Prudential Real

6 Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867,874 (9th Cir. 2000). Thus, plaintiffs

7 may be entitled to preliminary relief if they are able to show either (1) probable success on the

8 merits and the possibility of irreparable harm or (2) the existence of serious questions going to

9 the merits and a fair chance of success thereon, with the balance of hardships tipping sharply in

10 favor of an injunction. Miller, 19 F.3d at 456.

11

Having reviewed plaintiffs’ motion and the remainder of the record (including

12 defendants’ response to plaintiffs’ original motion for temporary restraining order (Dkt. # 7)),

13 the Court finds that plaintiffs have raised serious questions regarding the adjustment of status

14 process, that they have a fair chance of success on the merits, that the continued accrual of

15 unlawful presence time would irreparably harm Mr. Sidine, and that a temporary stay simply

16 continues the status quo and will not cause defendants hardship. The accrual of unlawful

17 presence time against Mr. Sidine is hereby STAYED until the preliminary injunction motion

18 noted for hearing on or about February 8, 2008, is decided or further order of this Court. No

19 security shall be required.

20

21

Dated this 27th day of December, 2007.

22

A

23

Robert S. Lasnik

24

United States District Judge

25

26

TEMPORARY RESTRAINING ORDER

-2-

 
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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,

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

v.

UNITED STATES OF AMERICA; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES DEPARTMENT OF JUSTICE; JANET A. NAPOLITANO, Secretary of Department of Homeland

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2

RUIZ-DIAZ V. UNITED STATES

Security; ERIC H. HOLDER, JR., Attorney General; ALEJANDRO MAYORKAS, Director of Citizenship and Immigration Services,
Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted August 27, 2012–Seattle, Washington
Filed October 5, 2012 Amended November 26, 2012
Before: Mary M. Schroeder and Ronald M. Gould, Circuit Judges, and Jed S. Rakoff, Senior District Judge.*
Order; 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

3

SUMMARY**

Immigration
The panel affirmed the district court’s summary judgment in favor of the government in a class action brought by non-citizen religious workers and organizations that employ them. The panel held that regulation 8 C.F.R. § 245.2(a)(2)(i)(B), under which plaintiff employees cannot file visa applications concurrently with the petitions of their sponsoring employers, does not violate the Religious Freedom Restoration Act, because it does not impose a substantial burden on plaintiffs’ religious exercise. The panel held that the regulation does not violate plaintiffs’ equal protection rights, because the government established that its concerns about fraud in the religious worker visa program constituted a rational basis to treat religious workers differently from other employment-based visa applicants. The panel also held that even if the regulation makes it more difficult for plaintiffs to obtain adjustment of status, it does not violate due process because there is no legitimate statutory or constitutional claim of entitlement to concurrent filings.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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4

RUIZ-DIAZ V. UNITED STATES

COUNSEL

Robert Pauw, Seattle, Washington, for plaintiffs-appellants.

Melissa S. Leibman, Department of Justice, Washington, DC, for defendants-appellees.

ORDER
The Opinion filed October 5, 2012, is amended as follows: on slip Opinion page 12168, line 10, delete the following text: special immigrant; on slip Opinion page 12168, line 11, delete the following text: Justice Department; and on slip Opinion page 12168, lines 13–14, amend the following text: 18 U.S.C. § 1255(a) to 8 U.S.C. § 1255(a).

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 religious worker visas. They challenge a regulation governing the process by which religious workers can apply for adjustment of status pursuant to 8 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

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RUIZ-DIAZ V. UNITED STATES

5

before they can file applications. The plaintiffs would like to be able to file the employees’ applications concurrently with the petitions of the sponsoring 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 thirdpreference 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 fourth-preference 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. Ruiz-Diaz v. United States, 618 F.3d 1055 (9th Cir. 2010).

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RUIZ-DIAZ V. UNITED STATES

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 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.” Ruiz-Diaz, 618 F.3d at 1061.

RELIGIOUS FREEDOM RESTORATION ACT

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).

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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 burden 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.

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

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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 fourth-preference visa category who have been admitted on employment-based visas. See 8 U.S.C. § 1101(a)(27).

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,

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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).

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:

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).

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RUIZ-DIAZ V. UNITED STATES

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.

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 non-citizen’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 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.

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11

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 OrantesHernandez 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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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,

No. 11-35580

v.

 D.C. No. 2:07-cv-01881-RSL

UNITED STATES OF AMERICA; UNITED STATES CITIZENSHIP AND

OPINION

IMMIGRATION SERVICES; UNITED

STATES DEPARTMENT OF HOMELAND

SECURITY; UNITED STATES

DEPARTMENT OF JUSTICE; JANET

NAPOLITANO, Secretary of

Department of Homeland Security;

ERIC H. H OLDER Jr., Attorney

General; ALEJANDRO MAYORKAS,

Director of Citizenship and

Immigration Services,

 Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
12165

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12166

RUIZ-DIAZ v. U NITED 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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12168

RUIZ-DIAZ v. U NITED 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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RUIZ-DIAZ v. U NITED STATES

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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RUIZ-DIAZ v. U NITED STATES

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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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12172

RUIZ-DIAZ v. U NITED STATES

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.

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

_________________________________

8

)

GABRIEL RUIZ-DIAZ, et al.,

)

9

) No. C07-1881RSL

Plaintiffs,

)

10

v.

) ORDER GRANTING SECOND MOTION

) FOR CLASS CERTIFICATION

11 UNITED STATES OF AMERICA, )

et al.,

)

12

)

Defendants.

)

13 _________________________________ )

14

This matter comes before the Court on “Plaintiffs’ Second Motion for Class

15

Certification.” Dkt. # 52. The individual named plaintiffs seek to go forward with this litigation

16

as representatives of a class, described as follows:

17

all individuals currently in the United States who are beneficiaries of a Petition for

18

Special Immigrant (Religious Worker) (Form I-360) that has been filed or will be

19

filed, and who were or would be eligible to file an Application for Adjustment of

Status (Form I-485) but for CIS’s policy codified at 8 C.F.R. § 245.2(a)(2)(i)(B)

20

that the Form I-360 petition must be approved before the Form I-485 application

21

can be filed.

22 Defendants do not contest that the proposed class is so numerous that joinder is impractical or

23 that the plaintiffs will fairly and adequately represent the absent class members. They

24 challenge plaintiffs’ assertions regarding commonality and typicality, however, and argue that

25 the requirements of Fed. R. Civ. P. 23(b) are not satisfied.

26
ORDER GRANTING SECOND MOTION FOR CLASS CERTIFICATION

1

Fed. R. Civ. P. 23(a)(2): Commonality

2

Pursuant to Fed. R. Civ. P. 23(a)(2), there must be questions of law and/or fact

3 common to the proposed class in order to justify certification. Defendants argue that

4 commonality does not exist because (i) the claims of the three organizational plaintiffs involve

5 issues of law and fact that are distinct from the issues raised by the individual plaintiffs and

6 (ii) the claims of each individual will turn on unique facts related to their eligibility for

7 adjustment of status. Neither argument defeats commonality.

8

Plaintiffs seek certification of a class of individuals: the organizational plaintiffs

9 have no place in the class and are virtually irrelevant to the class certification analysis. Each

10 and every member of the proposed class would benefit from the resolution of significant legal

11 and factual issues, such as whether CIS’ policy of rejecting I-485 applications for adjustment of

12 status unless and until the agency grants the I-360 immigrant visa petition filed by the

13 applicant’s employer is lawful. Defendants correctly point out that not all of the questions

14 related to the class are common, but there is no requirement that every issue be the same.

15 Where there are substantial questions which, if tried separately, would have to be answered as to

16 each potential class member, this element is satisfied. See Walters v. Reno, 145 F.3d 1032,

17 1045-46 (9th Cir. 1998). The Court finds that there are questions of law and/or fact that are

18 common to all class members.1

19

Fed. R. Civ. P. 23(a)(3): Typicality

20

21 1 Defendants’ first argument regarding commonality barely warrants mention, much less
22 consideration. Plaintiffs could, and apparently did, reasonably assume that commonality was not an

23

issue in this case because defendants had previously failed to address the issue and the Court found that commonality was uncontested. Dkt. # 28 and 47. Parties are not required to put on evidence regarding

24 an uncontested element of a claim: in fact, such evidence could be excluded as irrelevant, wasteful, or prejudicial, depending on the circumstances. Defendants’ waiver argument is an attempt to use their

25 own change in litigation strategy as a sword to trap unwary litigants and to preclude the resolution of

this issue on the merits. 26

ORDER GRANTING SECOND MOTION

FOR CLASS CERTIFICATION

-2-

1

The proposed class is comprised of individuals currently living in the United

2 States who are the beneficiaries of I-360 petitions filed on their behalf and who would have been

3 eligible to file an I-485 application but for CIS’ policy against concurrent filing. The newly-

4 added named plaintiffs, Yuriy Kasyanov, Lelia Tenreyro-Viana, Edgardo Gaston Romero

5 Lacuesta, Rosario Razo Romero, Youn Su Nam, and Harold Michael Carl Lapian, fall within

6 this class definition. Defendants acknowledge that all seven of these individuals “are ineligible

7 to file an I-485 because their I-360 petitions are still pending.” Opposition at 8. Their claims

8 arise from the same circumstances and the same governmental policy as those of the absent class

9 members. Defendants have made no effort to show that these seven plaintiffs have a conflict

10 with the proposed class or that their claims are somehow atypical. See, e.g., Hanon v.

11 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). The Court therefore finds that the

12 claims of Kasyanov, Tenreyro-Viana, Romero Lacuesta, Razo Romero, Nam, and Lapian are

13 typical of the claims of the proposed class.

14

15

Fed. R. Civ. P. 23(b)(2)

16

Having determined that plaintiffs’ proposed class satisfies the four elements of

17 Fed. R. Civ. P. 23(a), the Court must determine whether certification is appropriate under Fed.

18 R. Civ. P. 23(b). Plaintiffs assert that certification is proper under Rule 23(b)(2) because “the

19 party opposing the class has acted or refused to act on grounds that apply generally to the class,

20 so that final injunctive relief or corresponding declaratory relief is appropriate respecting the

21 class as a whole . . . .” Defendants argue that the participation of the organizational plaintiffs in

22 this litigation somehow precludes a finding that injunctive or declaratory relief would be

23 generally applicable to the class as a whole. As discussed above, however, the organizational

24 plaintiffs are not members of the proposed class: their claim for separate forms of relief does

25 not alter the fact that each and every class member would benefit from injunctive or declaratory

26

ORDER GRANTING SECOND MOTION

FOR CLASS CERTIFICATION

-3-

1 relief directed at the government’s policy against concurrent filing. Certification under Fed. R.

2 Civ. P. 23(b)(2) is, therefore, appropriate.

3

4

Class Definition

5

Defendants propose an alternative class definition that would reduce the number

6 of class members over whom the Court has jurisdiction to a small fraction of those encompassed

7 by plaintiffs’ definition. Only those individuals with pending I-360 petitions who have already

8 accrued 180 days of unlawful presence time but are still “lawfully residing” in the United States

9 would fall within defendants’ definition. If presented as a Venn diagram, the area of overlap

10 between the circles would represent the few individuals who remain, unemployed, in the United

11 States after their 180-day grace period expires. There is no reason to restrict the class to only

12 those who have suffered the maximum possible harm from defendants’ policy. Plaintiffs have

13 asserted claims based on unequal treatment: all those adversely affected by the non-concurrent

14 filing policy (i.e., all those treated differently because they are religiously affiliated) should have

15 their claims adjudicated through this class action.

16

17

For all of the foregoing reasons, plaintiff’s second motion for class certification is

18 GRANTED. Plaintiffs Kasyanov, Tenreyro-Viana, Romero Lacuesta, Razo Romero, Nam, and

19 Lapian are designated as class representatives.

20 DATED this 30th day of June, 2008.
21

22

A

23

Robert S. Lasnik

United States District Judge 24

25

26

ORDER GRANTING SECOND MOTION

FOR CLASS CERTIFICATION

-4-

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

_________________________________

8

)

GABRIEL RUIZ-DIAZ, et al.,

)

9

) No. C07-1881RSL

Plaintiffs,

)

10

v.

) ORDER GRANTING PLAINTIFFS’

) MOTION FOR SUMMARY JUDGMENT

11 UNITED STATES OF AMERICA, )

et al.,

)

12

)

Defendants.

)

13 _________________________________ )

14 This matter comes before the Court on plaintiffs’ “Motion for Summary
15 Judgment” (Dkt. # 92), defendants’ “Cross-Motion for Summary Judgment” (Dkt. # 96),
16 defendants “Motion for Continuance of Plaintiffs’ Motion for Summary Judgment and Cross-
17 Motion for Summary Judgment” (Dkt. # 106), and defendants’ “Motion to Amend Pleadings to
18 Include Evidence from Depositions (Dkt. # 114). Having reviewed the memoranda,
19 declarations, and exhibits submitted by the parties, the Court finds as follows:
20

21 A. SUBJECT MATTER JURISDICTION PURSUANT TO 8 U.S.C. § 1252(a)(2)(B)(I) and (ii)
22 Defendants argue that dismissal is appropriate because the Court lacks jurisdiction
23 to review defendants’ discretionary determination. This issue has already been resolved in
24 plaintiffs’ favor. See Dkt. # 46 at 5.
25

26
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT – 1

1 B. IMMIGRATION AND NATIONALITY ACT (“INA”) CLAIM

2

The individual plaintiffs allege that they were statutorily eligible to file

3 applications for adjustment of status, but that their applications were rejected in violation of

4 INA § 245(a), 8 U.S.C. § 1255(a). Section 1255(a) provides that:

5

The status of an alien who was inspected and admitted or paroled into the United

6

States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his

7

discretion and under such regulations as he may prescribe, to that of an alien

lawfully admitted for permanent residence if (1) the alien makes an application for

8

such adjustment, (2) the alien is eligible to receive an immigrant visa and is

9

admissible to the United States for permanent residence, and (3) an immigrant visa

is immediately available to him at the time his application is filed. 10

11 Defendants argue that plaintiffs have no statutory right to concurrently file I-360 visa petitions

12 and I-485 applications for adjustment of status and that the Attorney General has the power to

13 promulgated regulations addressing this issue. The challenged regulation, 8 C.F.R.

14 § 245.2(a)(2)(i)(B), permits some aliens to file concurrently while requiring others, including

15 religious workers, to wait until CIS has approved the employer’s visa petition before filing their

16 application for adjustment of status.1

17

The Court must determine whether 8 C.F.R. § 245.2(a)(2)(i)(B) is a valid exercise

18 of the Attorney General’s discretion to issue regulations regarding adjustment of status or

19 whether it is contrary to the governing statute. Under Chevron U.S.A., Inc v. Natural Resources

20

21

1 Section 245.2(a)(2)(i)(B) provides:

22

If, at the time of filing, approval of a visa petition filed for classification under section

23

201(b)(2)(A)(I), section 203(a) or section 203(b)(1), (2) or (3) of the Act would make a visa immediately available to the alien beneficiary, the alien beneficiary’s adjustment

24

application will be considered properly filed whether submitted concurrently with or

subsequent to the visa petition, provided that it meets the filing requirements contained in

25

parts 103 and 245. For any other classification, the alien beneficiary may file the

adjustment application only after the Service has approved the visa petition. 26

ORDER GRANTING PLAINTIFFS’

MOTION FOR SUMMARY JUDGMENT – 2

1 Defense Council, Inc., 467 U.S. 837, 842 (1984), the first issue is whether Congress has

2 unambiguously expressed its intent regarding the precise questions raised in this case, namely,

3 whether plaintiffs are eligible to apply for adjustment of status and whether they are entitled to

4 concurrent filing. If Congress has clearly spoken, the Court gives effect to “the unambiguously

5 expressed intent of Congress.” Morales-Izquierdo v. Ashcroft, 388 F.3d 1299, 1303 (9th Cir.

6 2004). Where the statutory language is ambiguous and the intent of Congress is unclear, the

7 Court must determine “whether the regulation enacted by the agency is a permissible

8 construction of the statute. If so, we must defer to the agency’s interpretation.” Bona v.

9 Gonzales, 425 F.3d 663, 668 (9th Cir. 2005) (internal citation omitted).

10

Pursuant to 8 U.S.C. § 1255(a)(1), an alien must affirmatively apply for the benefit

11 of adjustment of status: adjustment is not automatic or presumed. Defendants argue that

12 because Congress has not expressly addressed the concurrent filing issue, 8 C.F.R.

13 § 245.2(a)(2)(i)(B) is a valid exercise of the Attorney General’s broad discretion to regulate the

14 “timing and procedures aliens must follow when requesting adjustment . . . .” Opposition (Dkt.

15 # 96) at 7. Plaintiffs do not dispute that the Attorney General has the authority to regulate the

16 manner in which adjustment of status applications are made. The regulation challenged by

17 plaintiffs goes beyond regulating the form of application, the materials to be supplied therewith,

18 or the process of filing, however. Section 245.2(a)(2)(i)(B) prevents, sometimes permanently,

19 otherwise eligible aliens from submitting the application for adjustment of status that is required

20 by 8 U.S.C. § 1255(a)(1). The regulation has been used to affirmatively reject applications for

21 adjustment submitted by members of the plaintiff class. The question before the Court is

22 whether such a regulation is permissible under the statute.

23

Section 1255(a) applies to aliens who were “inspected and admitted or paroled into

24 the United States . . . [or have] an approved petition for classification as a VAWA self-petitioner

25 . . . .” Congress has clearly determined which aliens are eligible to apply for adjustment of

26
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT – 3

1 status. Bona, 425 F.3d at 670-71. Where Congress intended to limit the categories of aliens

2 who are eligible for adjustment of status, it did so explicitly in 8 U.S.C. § 1255(c), as further

3 modified by 8 U.S.C. § 1255(i). See Succar v. Ashcroft, 394 F.3d 8, 25 (1st Cir. 2005).

4 Plaintiffs maintain, and defendants do not contest, that they are statutorily eligible to apply for

5 adjustment of status. Nevertheless, defendants rejected or prevented the filing of their

6 applications on the ground that they did not meet an additional, unmentioned requirement,

7 namely the possession of approved visa petition. Even if 8 C.F.R. § 245.2(a)(2)(i)(B) can

8 properly be characterized as a timing or procedural regulation, it is not a permissible exercise of

9 the Attorney General’s discretion because it conflicts with Congress’ unambiguous

10 determination of who is eligible to apply.

11

Furthermore, the language of 8 C.F.R. § 245.2(a)(2)(i)(B) suggests that it is not a

12 regulation of the application process under § 1255(a)(1), but rather an interpretation of

13 “immediately available” as that phrase is used in § 1255(a)(3). Congress has determined that an

14 alien is eligible for adjustment of status if “an immigrant visa is immediately available to him at

15 the time his application is filed.” 8 U.S.C. § 1255(a)(3). There are at least two possible

16 interpretations of this requirement. First, one could argue that a visa is “immediately available”

17 to an applicant if the Department of State has an immigrant visa number available for

18 distribution on the date the I-485 application is filed. In the alternative, this requirement could

19 mean that the alien must be eligible for immediate assignment of an immigrant visa number, i.e.,

20 that the visa petition filed by the employer on the alien’s behalf has already been approved and

21 the government simply needs to process the I-485 application. Based on the record produced by

22 the parties, the Court assumes that either of these interpretations would be a permissible

23 construction of the statutory language.

24

It appears, however, that defendants declined to choose between the competing

25 interpretations. The challenged regulation either defines “immediately available” differently

26
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT – 4

1 depending on the classification of the applicant or waives the requirement in certain

2 circumstances. The first tact is unreasonable and the second is contrary to Congress’ intent. The

3 effect of 8 C.F.R. § 245.2(a)(2)(i)(B) is to allow certain aliens, such as priority workers under 8

4 U.S.C. § 1153(b)(1), to file applications for adjustment of status if the State Department still has

5 numbers available and a visa petition has been filed. Religious workers, however, may not apply

6 for adjustment of status until CIS has actually approved the visa petition. Under the regulation,

7 having an “immigration visa immediately available” means two different things depending on

8 the classification of the alien. Because there is no canon of statutory construction that allows the

9 same language in the same statutory provision to have two conflicting meanings, the Court finds

10 that, to the extent “immediately available” is defined in multiple ways, the interpretation set

11 forth in 8 C.F.R. § 245.2(a)(2)(i)(B) is not permissible. INS v. Aguirre-Aguirre, 526 U.S. 415,

12 424 (1999) (where deference is appropriate, the question for the court is whether the agency’s

13 interpretation “is based on a permissible construction of the statute”) (quoting Chevron U.S.A.,

14 Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)).

15

In the alternative, one could argue that the Attorney General has determined that

16 approval of a visa petition is necessary to make a visa “immediately available” to an alien

17 beneficiary, but that he waived that requirement for certain non-religious workers through the

18 promulgation of 8 C.F.R. § 245.2(a)(2)(i)(B). The language and syntax of the regulation support

19 this argument. In effect, the Attorney General has interpreted 8 U.S.C. § 1255(a)(3) restrictively

20 and then waived its application to certain classes of aliens. Congress, however, has determined

21 that an immigrant visa must be “immediately available to [the alien] at the time his application is

22 filed.” 8 U.S.C. § 1255(a). The challenged regulation is inconsistent with this statutory

23 requirement to the extent it authorizes defendants to ignore the “immediately available”

24 language for certain categories of applicants. Although the Attorney General is entitled to

25 deference when interpreting ambiguous statutory language, he may not adopt one possible

26
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT – 5

1 interpretation and then ignore the statutory requirement whenever he sees fit.

2

3

For all of the foregoing reasons, the Court finds that 8 C.F.R. § 245.2(a)(2)(i)(B) is

4 an unreasonable and impermissible construction of the governing statute. The Attorney General

5 does not have discretion to choose who is eligible to apply for adjustment of status (that

6 determination having been made by Congress), to interpret the same statutory provision in

7 different ways depending on the classification of the applicant, or to waive a statutory

8 requirement. Defendants may not, therefore, reject or refuse to accept plaintiffs’ applications for

9 adjustment of status based on the regulation barring religious workers from concurrent filing.

10

Having found that 8 C.F.R. § 245.2(a)(2)(i)(B) is inconsistent with the governing

11 statute and therefore invalid, there does not appear to be a need for the Court to evaluate the

12 constitutionality of the regulation or its validity under the Religious Freedom Restoration Act

13 (“RFRA”).2 Plaintiffs’ motion for summary judgment (Dkt. # 92) is GRANTED and

14 defendants’ cross-motion (Dkt. # 96) is DENIED. Plaintiffs have requested various forms of

15 relief in the proposed order submitted with their motion. Dkt. # 92. Although the directives and

16 injunctions sought are properly focused on avoiding or ameliorating the injuries that arise from

17 enforcement of the invalid regulation, the proposed order is far-reaching. Defendants, whose

18 papers addressed the merits of plaintiffs’ claims, have not commented on the propriety of the

19 proposed order.

20

The parties shall, within twenty days of the date of this Order, conduct a good faith

21 conference regarding the form of order and judgment to be entered in this matter. If agreement

22 can be reached, a joint proposed order and judgment shall be submitted on or before April 17,

23

24

2 Defendants’ “Motion for Continuance of Plaintiffs’ Motion for Summary Judgment” (Dkt.

# 106) is therefore DENIED. Defendants’ recent supplementation of the record regarding the RFRA

25 claim (Dkt. # 114) has been accepted for the record, but the Court declines to determine whether RFRA

has been violated. 26

ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT – 6

1 2009, for the Court’s review. If agreement cannot be reached, each side may simultaneously file

2 and serve a proposed order and judgment, with a supporting memorandum, on that date:

3 opposition memoranda, if any, would be due ten days later.

4

Dated this 23rd day of March, 2009.

5

A

6

Robert S. Lasnik

7

United States District Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT – 7

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

_________________________________

8

)

GABRIEL RUIZ-DIAZ, et al.,

)

9

) No. C07-1881RSL

Plaintiffs,

)

10

v.

) ORDER GRANTING DEFENDANTS’

) MOTION FOR SUMMARY JUDGMENT

11 UNITED STATES OF AMERICA, )

et al.,

)

12

)

Defendants.

)

13 _________________________________ )

14 This matter comes before the Court on “Plaintiffs’ Motion for Summary
15 Judgment” (Dkt. # 141) and defendants’ “Cross-Motion for Summary Judgment” (Dkt. # 145).
16 Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court
17 finds as follows:
18 BACKGROUND
19 Plaintiffs represent a class of aliens holding special immigrant religious worker
20 visas. This type of visa is for foreign ministers and other religious workers and allows them to
21 stay in the United States for a maximum of five years. When the five-year period expires, the
22 alien must either depart or seek to adjust his status to that of a lawful permanent resident.
23 Failure to do one of these two things will make the alien’s presence in the United States
24 unlawful. If the alien overstays his visa by 180 days or more without having an adjustment of
25 status application pending before the United States Citizenship and Immigration Service
26
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 1

1 (“CIS”), he will be subject to significant statutory penalties.

2

Adjusting one’s status to that of a lawful permanent resident is a two-step process.

3 The organization that employs the alien must file a Form I-360 visa petition on behalf of the

4 alien. In addition, the alien must file a Form I-485 application for adjustment of status. The

5 order in which these filings may be made has changed over the years and now depends on the

6 category of alien at issue. Prior to 1991, all aliens seeking adjustment of status were permitted

7 to file their application for adjustment of status concurrently with their employer’s visa petition.

8 Between 1991 and 2002, the agency changed the process, such that the employer’s visa petition

9 had to be approved by the agency before the alien could submit an application for adjustment of

10 status. In an effort to make the process more efficient and to improve customer service, the

11 governing regulations were again changed in 2002 to allow alien workers in the first three

12 employment-based preference categories to file their visa petitions and adjustment of status

13 applications concurrently. 8 C.F.R. § 245.2(a)(2)(i)(B). Special immigrant visa holders,

14 including religious workers, were, and still are, excluded from concurrent filing. Thus, members

15 of the plaintiff class may file a Form I-485 application to adjust status only after CIS has

16 approved their employers’ Form I-360 petition.

17

The date on which an alien is eligible to apply for adjustment of status is not

18 immaterial. Failure to have an application pending before CIS1 before the original five-year visa

19 period expires triggers the accrual of unlawful presence time. Every day of unlawful presence

20 reduces the 180-day grace period Congress provided for this class of alien and increases the

21 possibility that the alien or his family members will be detained and/or deported for being out of

22 status. If CIS delays processing the employer’s visa petition long enough, the religious worker

23 must depart from the United States and may lose the opportunity to file an application for

24

25

1 If an alien attempts to file a Form I-485 before obtaining approval of the employer’s visa

petition, CIS rejects the application. 26

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 2

1 adjustment of status. 8 C.F.R. § 245.1(a) (right to apply for adjustment of status is limited to

2 aliens who are physically present in the United States). If the alien remains in the United States

3 for more than 180-days after his original visa expires without being able to submit an application

4 to become a lawful permanent resident, he will be statutorily barred from ever seeking

5 adjustment of status and will be excluded from the United States for a period of three or ten

6 years.

7

Plaintiffs allege that CIS’s policy of rejecting I-485 applications for adjustment of

8 status from religious workers unless and until the I-360 petition filed on their behalf has been

9 approved discriminates against certain classes of immigrants based on their religion and violates

10 the Religious Freedom Restoration Act (“RFRA”), the First Amendment, the Due Process

11 clause, and the Equal Protection clause.2 Plaintiffs seek summary judgment on their RFRA and

12 Equal Protection claims, while defendants seek summary judgment on all of the remaining

13 claims.

14

DISCUSSION

15 A. RELIGIOUS FREEDOM RESTORATION ACT (“RFRA”), 42 U.S.C. § 2000bb-1

16

The Religious Freedom Restoration Act provides that the government “shall not

17 substantially burden a person’s exercise of religion” unless it demonstrates that the regulation

18 furthers a compelling governmental interest and is the least restrictive means of furthering that

19 interest. 42 U.S.C. § 2000bb-1(a)-(b). The fact that the burden on religion results from a rule of

20 general applicability will not save the regulation. Plaintiffs maintain that CIS’ policy of refusing

21 to accept concurrently-filed applications from religious workers substantially burdens their

22 exercise of religion.

23

“Under RFRA, a ‘substantial burden’ is imposed only when individuals are forced

24

25

2 Plaintiffs’ claim that the policy against concurrent filing violates the governing statute, 8

U.S.C. § 1255(a), was dismissed on appeal. Ruiz-Diaz v. U.S., 618 F.3d 1055 (9th Cir. 2010). 26

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 3

1 to choose between following the tenets of their religion and receiving a government benefit

2 (Sherbert [v. Verner, 374 U.S. 398 (1963)]) or coerced to act contrary to their religious beliefs

3 by the threat of civil or criminal sanctions ([Wisconsin v. Yoder, 406 U.S. 205 (1972)].” Navajo

4 Nation v. U.S. Forest Serv., 535 F.3d 1058, 1069-70 (9th Cir. 2008). Plaintiffs argue that the

5 rule against concurrent filing is a substantial burden on their exercise of religion because they

6 face detention, deportation, and statutory penalties if they continue to serve their congregations

7 after their nonimmigrant visas expire. Motion (Dkt. # 141) at 14. Plaintiffs’ argument is based

8 on a causal relationship that is tenuous at best. Plaintiffs are subject to detention, deportation,

9 and statutory penalties not because they are following the dictates of their religion but because

10 their visas have expired. Plaintiffs’ initial authorization to live and work in this country was for

11 a limited period of time. At the expiration of the original visa, the alien is no longer welcome in

12 the United States and will, absent an extension or an adjustment of status, be separated from this

13 country and from the religious community he served while here. The bar against concurrent

14 filing may make it more difficult for religious workers to obtain a timely adjustment of status,

15 but it is not the reason plaintiffs face detention, deportation, and statutory penalties.

16

Plaintiffs’ RFRA argument challenges the overall immigration scheme of the

17 United States, at least to the extent that the scheme relies on visas to control admission to and

18 residence in this country. If plaintiffs’ argument is taken to its logical limits, whenever the

19 government attempts to expel a religious worker from the country it imposes a “substantial

20 burden” on the worker’s exercise of religion because expulsion would remove him from his

21 religious community and interfere with his practice of religion. The Court is willing to assume,

22 for purposes of this motion, that a government policy that effectively takes a religious worker

23 out of his community or deprives a congregation of its choice of clergy imposes a “substantial

24 burden” on the exercise of religion. Nevertheless, the Court finds that, at least in the

25 immigration context, such removals further a compelling government interest. “[T]he power to

26
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 4

1 exclude aliens is inherent in sovereignty, necessary for maintaining normal international

2 relations and defending the country against foreign encroachments and dangers . . . .”

3 Kleindienst v. Mandel, 408 U.S. 753, 765 (1972) (internal quotation marks omitted). Thus,

4 controlling admission to the United States and the circumstances under which aliens may reside

5 here is a compelling governmental interest. The use of visas to grant temporary admittance,

6 authorize certain stateside activities, and establish a departure date furthers that interest, and

7 there is no indication in the record that the visa process, including the power to deport aliens

8 who overstay their visas, is an overly restrictive means of achieving the government’s purpose.

9

If plaintiffs’ argument is interpreted more narrowly so that it is not a challenge to

10 the general immigration scheme but rather a challenge to the specific regulation at issue here,

11 plaintiffs have failed to show that the bar against concurrent filing for religious workers

12 independently imposes a substantial burden on plaintiffs’ exercise of religion under Navajo

13 Nation, 535 F.3d at 1069-70. 8 C.F.R. § 245.2(a)(2)(i)(B) specifies the relative timing for two

14 applications for government benefits or approvals. The delay in plaintiffs’ ability to file a Form

15 I-485 application does not compel plaintiffs to give up the tenets of their religion in order to

16 receive the desired approvals, nor does it coerce plaintiffs to act contrary to their religious beliefs

17 or face civil or criminal sanctions.3 Giving up one’s religious practices would not improve the

18 chances of obtaining adjustment of status or help the alien avoid deportation: in fact, abandoning

19 the religious work on which the alien’s admission was premised could preclude the requested

20 relief. According to the Ninth Circuit, the fact that a regulation may ultimately interfere with

21 plaintiffs’ ability to practice their religion or serve their religious community is “irrelevant” to

22 the substantial burden analysis. Snoqualmie Indian Tribe v. Fed. Energy Regulatory Comm’n,

23 545 F.3d 1207, 1214 (9th Cir. 2008). As long as the bar against concurrent filing neither “forces

24

25 3 The same can be said for the religious organizations that employ the individual plaintiffs.
26
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 5

1 [plaintiffs] to choose between practicing their religion and receiving a government benefit [n]or

2 coerces them into a Catch-22 situation: exercise of their religion under fear of civil or criminal

3 sanction,” it does not impose a substantial burden under RFRA. Id.

4

Because plaintiffs have not shown that the bar on concurrent filing imposes a

5 substantial burden on their free exercise of religion, the government need not show that the

6 regulation furthers a compelling government interest in the least restrictive manner. Navajo

7 Nation, 535 F.3d at 1069. While the immigration laws of this country, including the issuance of

8 time-limited visas, may ultimately prevent the individual plaintiffs from continuing to serve their

9 religious organizations after their visas expire, that burden furthers a compelling government

10 interest and satisfies the dictates of RFRA.

11 B. EQUAL PROTECTION

12

Plaintiffs argue that CIS has treated them differently from other immigrant groups

13 because they work for religious, rather than secular, organizations in violation of the Equal

14 Protection Clause. Plaintiffs maintain that the Court must strictly scrutinize any law burdening

15 the practice of religion and argue that the bar against concurrent filing is not narrowly tailored to

16 further a compelling governmental interest. Because this case involves Congress’ plenary power

17 to control immigration and naturalization, strict scrutiny is not appropriate. Masnauskas v.

18 Gonzales, 432 F.3d 1067, 1070-71 (9th Cir. 2005) (challenge to classification based on national 19 origin subject to rational basis test).4 “‘Line-drawing’ decisions made by Congress or the

20

21

4 But see Gonzalez -Medina v. Holder, __ F.3d __, 2011 WL 1313026 at *2 (9th Cir. April 7,

2011) (“Because Gonzalez-Medina does not allege discrimination on the basis of a suspect class, any

22 differential treatment violates equal protection only if it lacks a ‘rational basis.’”); Abebe v. Mukasey,

23

554 F.3d 1203, 1206 (9th Cir. 2009) (“We note at the outset that the statute doesn’t discriminate against a discrete and insular minority or trench on any fundamental rights, and therefore we apply a standard of

24 bare rationality” to plaintiff’s equal protection claim). Although both cases suggest that something more than a rational relationship might be required if a regulation discriminates on the basis of race, religion,

25 sex, or national origin, neither case actually involved a suspect classification. Nor did they

acknowledge or address Masnauskas’ application of the rational basis test to a classification based on 26

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 6

1 President in the context of immigration and naturalization must be upheld if they are rationally

2 related to a legitimate government purposes.” Ram v. INS, 243 F.3d 510, 517 (9th Cir. 2001).

3 Under the rational relation test, courts presume that immigration statutes and regulations are

4 constitutional. Masnauskas, 432 F.3d at 1071. The person challenging the governmental action

5 has the burden of negating “every conceivable basis which might support it.” Heller v. Doe, 509

6 U.S. 312, 320 (1993). Even if the legislative ends could be better achieved through different

7 means, courts will accept the classification as long as it is rationally related to the government’s

8 purpose. Id.

9

Defendants argue that, for purposes of the Equal Protection analysis, the treatment

10 of special immigrant religious workers should be compared only to the treatment of other

11 beneficiaries of the fourth visa preference category. Even if that were true, defendants

12 acknowledge that some non-religious beneficiaries of the fourth preference category are allowed

13 to file concurrently while religious workers, special immigrant physicians, Iraqi/Afghani

14 translators, and Panama Canal workers are not. Thus, even within the fourth preference

15 category, religious workers are treated less favorably than others within that category.

16

For purposes of this motion, the Court assumes that special immigrant religious

17 workers are treated differently than other similarly-situated aliens. Nevertheless, the Court finds

18 that the bar against concurrent filing is rationally related to the agency’s purpose of deterring

19 fraud in an area where there are virtually no objective standards for determining a religious

20

21 nationality which, like those based on race or sex, is inherently suspect. See Graham v. Richardson, 403
22 U.S. 365, 372 (1971). The Ninth Circuit generally recognizes that the political branches of government

23

have broad and sweeping authority to control “admission, exclusion, removal, naturalization, [and] other matters pertaining to aliens,” and the Supreme Court has held that classifications which would be

24 unacceptable if applied to citizens do not violate equal protection in the immigration context. Abebe, 554 F.3d at 1206; Fiallo v. Bell, 430 U.S. 787, 792-96 (1977). Given the level of deference the

25 judiciary must afford the judgments of the legislative and political branches in this area, the Court finds

that strict scrutiny is not appropriate even where a suspect classification has been used. 26

ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT – 7

1 organization’s need or for evaluating whether a particular applicant is qualified to fill an

2 available position. Government assessments have shown that fraud is a concern in the religious

3 worker visa program, and Congress has indicated that CIS needs to address the problem through

4 regulation. U.S. Government Accountability Office Report, Immigration Benefits: Additional

5 Controls and a Sanctions Strategy Could Enhance DHS’s Ability to Control Benefit Fraud (Dkt.

6 # 9, Ex. D, at 16-17); Special Immigrant Nonminister Religious Program Act, Pub. L. No. 110-

7 391, 122 Stat. 4193, 4193-94 (2008). Although the parties disagree regarding the degree of

8 fraud in the program and/or whether it exceeds the degree of fraud in other visa preference

9 categories, reducing fraud is obviously a concern to the agency regardless of its comparative

10 prevalence.

11

Reducing fraud in a government benefits program is a legitimate government

12 purpose. Prohibiting the concurrent filing of I-360 petitions and I-485 applications may not be

13 the best means toward that end, but the two are rationally related. By requiring religious

14 organizations to file the I-360 petition first, CIS gives itself a period of time in which to

15 investigate the bona fides of the requesting religious organization and the prior work history of

16 the beneficiary before the alien obtains an extension on his residency, employment, and travel

17 authorizations. The bar on concurrent filings is a rational regulatory attempt to reduce fraud in

18 the religious worker program.5 Given the government’s legitimate interest in reducing fraud and

19 the broad deference courts show the determinations of the political branches in the context of

20 immigration, the bar on concurrent filings withstands scrutiny under the Equal Protection

21 Clause.

22

23

24 5 The fact that CIS has made other efforts to reduce fraud, such as imposing heightened
25 documentation requirements, conducting site visits, and reviewing the employer’s tax status, does not mean that the bar on concurrent filing is not a rational means toward that same end.
26
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 8

1 C. DUE PROCESS

2

Defendants seek dismissal of plaintiffs’ due process claim on the ground that

3 plaintiffs are not entitled to file their adjustment of status applications before CIS approves the

4 employers’ visa petitions and therefore have no substantive interest protected by the Due Process

5 Clause. Plaintiffs argue that they are, in fact, statutorily eligible to apply for adjustment of status

6 (even if the decision to grant or deny the application is discretionary) and that the government

7 should not be allowed to deprive them of the chance to apply simply by delaying consideration

8 of the Form I-360 petition.

9

The Ninth Circuit has rejected plaintiffs’ argument that they are statutorily entitled

10 to apply for adjustment of status before CIS approves the employer’s visa petition. The Ninth

11 Circuit found that the statute “is silent regarding when visa petitions and applications for

12 adjustment of status may be accepted and processed in relation to each other” and that the statute

13 does not prohibit consecutive filing. Ruiz-Diaz, 618 F.3d at 1060-61. Thus, the agency could,

14 consistent with the statute, require that the applicant obtain a visa before submitting his Form I-

15 485 application. Plaintiffs argue, however, that the bar against concurrent filing effectively

16 deprives class members of their ability to request adjustment of status if the agency delays

17 processing the visa petition. How this problem creates a due process concern is not clearly

18 stated.

19

Citing Ex Parte Hull, 312 U.S. 546, 548-49 (1941), plaintiffs suggest that any

20 regulation which impairs or abridges plaintiffs’ right to apply to the government for relief is

21 invalid. Ex Parte Hull involved a regulation that impaired a prisoner’s right to access the courts:

22 the offending regulation mandated that prison officials review and approve all court submissions

23 before they could be filed. The Supreme Court invalidated the regulation on the grounds that the

24 state and its officers could not interfere with the submission of a writ of habeas corpus and that

25 the courts, not the state, had the power to determine whether the petition was properly drawn.

26
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 9

1 Mr. Hull’s constitutional privilege of the writ of habeas corpus and right of access to the courts

2 were uncontested. In this case, the Ninth Circuit has already determined that plaintiffs have no

3 statutory, much less constitutional, right to apply for adjustment of status until after they obtain a

4 visa. Plaintiffs therefore have no life, liberty, or property interest in concurrent filing to which

5 the protections of the Due Process Clause could attach.

6

Plaintiffs also suggest that defendants have violated the Due Process Clause

7 whenever they “excessively delayed adjudication of I-360 petitions,” thereby rendering the

8 applicant ineligible for adjustment of status. Plaintiffs’ Reply and Response (Dkt. # 146) at 6-7.6

9 Even if the Court assumes that CIS unreasonably delayed the adjudication of certain I-360

10 petitions, the remedy sought – namely, the invalidation of 8 C.F.R. § 245.2(a)(2)(i)(B) – would

11 not be appropriate. The bar against concurrent filing did not cause or otherwise give rise to the

12 excessive delay about which plaintiffs now complain. If plaintiffs have a right to faster

13 adjudication of the Form I-360 petitions, they should seek to enforce that right in the few

14 instances where it has been violated rather than attempting to invalidate an otherwise reasonable

15 procedural regulation.

16

Other than their assertion that 8 U.S.C. §1255(a) gives them a right to concurrently

17 file, plaintiffs have not identified any other source of an entitlement to have their Form I-485

18 application accepted before a Form I-360 visa issues. Plaintiffs argue that 8 C.F.R.

19 § 245.2(a)(2)(i)(B) improperly interferes with congressional intent because Congress meant to

20 create a mechanism through which aliens could apply for permanent residence status without

21 having to leave the country. Plaintiff’s Reply and Response (Dkt. # 146) at 4. But Congress

22

23

6 Plaintiffs identify a handful of special immigrant religious workers who experienced significant and injurious delays in the adjudication of their I-360 petitions. Plaintiffs’ Reply and

24 Response (Dkt. # 146) at 15. Whether a class action is the appropriate mechanism to handle these delay claims has not been decided by the Court: the class certified on June 30, 2008, is comprised of all

25 individuals who were precluded from concurrent filing, regardless of the length of the delay in resolving

the Form I-360 petition. 26

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 10

1 also conferred on the Attorney General discretion to regulate the process of adjusting status,

2 including the relative timing of the applications. Ruiz-Diaz, 618 F.3d at 1061. One of the

3 regulations the agency issued requires special immigrant religious workers to have an approved

4 visa petition in hand before applying for adjustment of status, a requirement which the Ninth

5 Circuit upheld as consistent with the statute. Absent a legitimate entitlement to apply for

6 adjustment of status before obtaining CIS approval of the I-360 visa petition, no process is

7 constitutionally mandated. Plaintiffs’ due process claim therefore fails as a matter of law.

8 D. FIRST AMENDMENT

9

The parties agree that the threshold for proving a RFRA violation is lower than

10 that required to prove a violation of the First Amendment. For the reasons discussed in Section

11 A above, plaintiffs’ First Amendment claim fails as a matter of law

12

CONCLUSION

13

For all of the foregoing reasons, plaintiffs’ motion for summary judgment (Dkt.

14 # 141) is DENIED and defendants’ cross-motion for summary judgment (Dkt. # 145) is

15 GRANTED. The Clerk of Court is directed to enter judgment in favor of defendants and against

16 plaintiffs.

17

18

Dated this 10th day of May, 2011.

19

A

Robert S. Lasnik

20

United States District Judge

21

22

23

24

25

26
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – 11

 
 Case 2:07-cv-01881-RSL Document 127 Filed 06/11/09 Page 1 of 4

1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 _________________________________

)

8 GABRIEL RUIZ-DIAZ, et al.,

)

)

9

Plaintiffs,

)

v.

)

10

)

UNITED STATES OF AMERICA, )

11 et al.,

)

)

12

Defendants.

)

_________________________________ )

13

No. C07-1881RSL ORDER DIRECTING ENTRY OF JUDGMENT

14

On March 23, 2009, the Court found that 8 C.F.R. § 245.2(a)(2)(i)(B) was an

15 unreasonable and impermissible construction of the governing statute and granted plaintiffs’

16 motion for summary judgment. Rather than sign the proposed order provided with plaintiff’s

17 motion, the Court provided defendants an additional opportunity to consider and comment upon

18 the practical and legal effects of the relief requested. The Court noted that, although the

19 directives and injunctions sought were far-reaching, they were properly focused on avoiding or

20 ameliorating the injuries that arose from enforcement of the invalid regulation. Dkt. # 118 at 6.

21 Having reviewed the memoranda presented by the parties, including the supplemental authority

22 submitted by plaintiffs on June 8, 2009, IT IS HEREBY ORDERED that:

23

(1) The bar against concurrent filings on behalf of religious workers, as set forth in 8

24 C.F.R. § 245.2(a)(2)(i)(B), is an impermissible construction of 8 U.S.C. § 1255(a) and is,

25 therefore, invalid and unenforceable;

26

(2) Defendants shall accept as properly filed adjustment of status applications (Form I-

ORDER DIRECTING ENTRY OF JUDGMENT

Case 2:07-cv-01881-RSL Document 127 Filed 06/11/09 Page 2 of 4

1 485) and employment authorization applications (Form I-765) from individuals who are

2 beneficiaries of petitions for special immigrant visas (Form I-360), whether submitted

3 concurrently with or subsequent to the visa petition, provided the applications meet defendants’

4 valid filing requirements. See 8 C.F.R. §§ 103.2 and 245.2(a)(3); 8 C.F.R. § 274a.13;

5 Instructions on Forms I-485 and I-765. Except as noted in paragraphs (3) and (4), defendants

6 shall adjudicate these applications in the same manner that it adjudicates adjustment of status

7 and employment authorization applications from non-religious worker applicants.

8

(3) Beneficiaries of petitions for special immigrant visas (Form I-360) whose Form I-

9 485 and/or Form I-765 applications were rejected by defendants pursuant to 8 C.F.R.

10 § 245.2(a)(2)(i)(B) and who reapply under paragraph (2) of this Order are entitled to a have their

11 applications processed as if they had been submitted on their original submission date. Any

12 employment authorization that is granted shall be retroactive to the original submission date.

13

(4) For purposes of 8 U.S.C. § 1255(c) and § 1182(a)(9)(B), if a beneficiary of a

14 petition for special immigrant visa (Form I-360) submits or has submitted an adjustment of status

15 application (Form I-485) or employment authorization application (Form I-765) in accordance

16 with the preceding paragraphs, no period of time from the earlier of (a) the date the I-360

17 petition was filed on behalf of the individual or (b) November 21, 2007, through the date on

18 which the United States Citizenship and Immigration Services (“CIS”) issues a final

19 administrative decision denying the application(s) shall be counted as a period of time in which

20 the applicant failed to maintain continuous lawful status, accrued unlawful presence, or engaged

21 in unauthorized employment.

22

(5) A spouse or child of an individual who is the beneficiary of a petition for special

23 immigrant visa (Form I-360) shall, if not otherwise entitled to an immigrant status and

24 immediate issuance of a visa under 8 U.S.C. § 1153(a), (b), or (c), be entitled to the same status

25 and the same order of consideration as the beneficiary.

26

ORDER DIRECTING ENTRY OF JUDGMENT

-2-

Case 2:07-cv-01881-RSL Document 127 Filed 06/11/09 Page 3 of 4

1

(6) The accrual of unlawful presence, unlawful status, and unauthorized employment

2 time against the beneficiaries of pending petitions for special immigrant visas (Form I-360) shall

3 be STAYED for 90 days from the date of this Order to allow the beneficiaries and their family

4 members time in which to file adjustment of status petitions (Form I-485) and/or applications for

5 employment authorization (Form I-765).

6

(7) Defendants shall, within 15 days of the date of this Order, mail and/or e-mail a

7 copy of the attached notice to every person or entity who has a pending I-360 visa petition and to

8 the list of religious, non-governmental, and community organizations maintained by CIS.

9

(8) Defendants shall, within 15 days of the date of this Order, post a copy of the

10 attached notice on the CIS webpage under “Legal Settlement Notices” and maintain the posting

11 for a period of one year. Defendants shall also revise the webpages regarding Forms I-360, I-

12 485, and I-765 to delete references to the bar on concurrent filings and to include a link to the

13 attached notice.

14

(9) The Court shall retain jurisdiction to enforce the terms of this Order. If disputes

15 arise concerning agency compliance, counsel for plaintiffs shall provide written notice of the

16 perceived problem to counsel for defendants. The parties shall meet and confer in an effort to

17 resolve such disputes: any unresolved issues may be brought to the Court’s attention via motion.

18

19

The Clerk of Court is directed to enter judgment in this matter in favor of plaintiffs

20 and against defendants.1

21

22

23

1 In their proposed order, defendants request a stay “pending any appeal taken in this case.”

24

Dkt. # 121 at 4. To justify a stay pending appeal, defendants must show (1) that there is a strong likelihood that they will succeed on the merits of their appeal; (2) that they will suffer irreparable injury

25 if the proceeding is not stayed; (3) that a stay would not substantially injure any other party; and (4) that a stay is in the public’s interest. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Because

26 defendants have not addressed any of the relevant factors, their request for a stay is DENIED.

ORDER DIRECTING ENTRY OF JUDGMENT

-3-

Case 2:07-cv-01881-RSL Document 127 Filed 06/11/09 Page 4 of 4

1

Dated this 11th day of June, 2009.

2 3

A

Robert S. Lasnik

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United States District Judge

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ORDER DIRECTING ENTRY OF JUDGMENT

-4-

 
 AO 450 (Rev. 5/85) JudgmenCt inaa Csiveil C2as:e0r7-cv-01881-RSL Document 128 Filed 06/15/09 Page 1 of 1

United States District Court
WESTERN DISTRICT OF WASHINGTON

GABRIEL RUIZ-DIAZ, et al., v.
UNITED STATES OF AMERICA, et al.

JUDGMENT IN A CIVIL CASE
CASE NUMBER: C07-1881RSL

Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
X Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
Judgment is entered in favor of plaintiffs and against defendants.

June 15, 2009

BRUCE RIFKIN Clerk
/s/Rhonda Stiles By, Deputy Clerk

 
 Case 2:07-cv-01881-RSL Document 129 Filed 06/26/09 Page 1 of 3

1

The Hon. Robert S. Lasnik

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

12

AT SEATTLE

13
GABRIEL RUIZ-DIAZ, et al.
14
Plaintiffs,
15
v.
16
UNITED STATES OF AMERICA, et al.,
17

18

Defendants.

No. C07-1881-RSL DEFENDANTS’ NOTICE RE COMPLIANCE WITH THE JUNE 11, 2009 ORDER

19

20
Defendants here by respectfully provide the Court with notice that United States
21
Citizenship and Immigration Services (“USCIS”) has taken the following steps to comply
22
with the Court’s June 11, 2009 Order:
23
(1) On June 26, 2009, USCIS sent copies of this Court’s Notice of Court’s Order
24
Regarding Beneficiaries Of Pending Petitions For Special Immigrant Religious Worker
25
Visa (Form I-360) (Dkt. 127-2) (“Notice”) and a letter from USCIS further explaining the
26
Notice to beneficiaries of pending I-360 petitions, which is attached to this filing as
27
Exhibit A. USCIS sent such letters to more than 3000 beneficiaries of pending I-360
28

DEFENDANTS’ NOTICE OF COMPLIANCE WITH THE JUNE 11, 2009 ORDER C07-1881-RSL – 1

U. S. DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
450 5th Street, N.W., LSB 6022 WASHINGTON, D.C. 20530 Tel (202) 305-7016; Fax (202) 305-7000

Case 2:07-cv-01881-RSL Document 129 Filed 06/26/09 Page 2 of 3

1 petitions;

2

(2) On June 26, 2009, USCIS sent copies of the Notice (Dkt. 127-2) and a letter

3 from USCIS further explaining the Order and Notice to the list of religious, non-

4 governmental, and community organizations maintained by USCIS;

5

(3) On June 26, 2009, USCIS posted a copy of the Order (Dkt. 127) and the Notice

6 (Dkt. 127-2) on the USCIS webpage in the Legal Settlement Notices section;

7

(4) On or before June 26, 2009, USCIS revised the USCIS webpage by removing

8 all known references to the bar on concurrent filings for special immigrant religious

9 worker visa petitions, and included links to the Order (Dkt. 127) and Notice (Dkt. 127-2)

10 on the I-360, I-485, and I-765 webpages; and

11

(5) On June 26, 2009, USCIS posted a copy of the June 25, 2009 Field Guidance on

12 the USCIS webpage. The June 25, 2009 field guidance is submitted with this Notice to

13 the Court and attached as Exhibit B.

14

15 DATED: June 26, 2009

16

17

Respectfully submitted,

18

TONY WEST

Assistant Attorney General

19

Civil Division

20

DAVID J. KLINE Director, District Court Section

21

Office of Immigration Litigation

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JOSHUA E. BRAUNSTEIN Assistant Director

Office of Immigration Litigation
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By: /s/ Melissa Leibman

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MELISSA LEIBMAN

Trial Attorney

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Office of Immigration Litigation

United States Department of Justice

26

P. O. Box 868 Ben Franklin Station

Washington, DC 20044

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Tel: (202) 305-7016 Fax: (202) 305-7000

E-mail: melissa.leibman@usdoj.gov

28

DEFENDANTS’ NOTICE OF COMPLIANCE WITH THE JUNE 11, 2009 ORDER C07-1881-RSL – 2

U. S. DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
450 5th Street, N.W., LSB 6022 WASHINGTON, D.C. 20530 Tel (202) 305-7016; Fax (202) 305-7000

Case 2:07-cv-01881-RSL Document 129 Filed 06/26/09 Page 3 of 3

1

CERTIFICATE OF SERVICE

2

I HEREBY CERTIFY that on June 26, 2009, I electronically filed the foregoing Notice

3

and its supporting documents with the Clerk of the Court using the CM/ECF system, which will

4

send notification of such filing to the following CM/ECF participants:

5

Robert Pauw

6

E-mail rpauw@ghp-law.net

Robert Gibbs

7

E-mail rgibbs@ghp-law.net

Mari Matsumoto

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E-Mail mmatsumoto@ghp-law.net

GIBBS HOUSTON PAUW

9

1000 Second Avenue, Suite 1600

Seattle, WA 98104-1094

10

Tel 206-682-1080; Fax 206-000-0000

11

12

13
Dated: June 26, 2009.
14

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/s/ Melissa Leibman

Melissa Leibman

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Trial Attorney

Office of Immigration Litigation

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United States Department of Justice

Washington, DC 20044

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DEFENDANTS’ NOTICE OF COMPLIANCE WITH THE JUNE 11, 2009 ORDER C07-1881-RSL – 3

U. S. DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
450 5th Street, N.W., LSB 6022 WASHINGTON, D.C. 20530 Tel (202) 305-7016; Fax (202) 305-7000

 
 CasCea:s0e92-3:0577-3c4v-010878/10-6R/2S0L10DocPuamgeen: t11o3f72 FileIDd:0773/0974/41101 PaDgketE1notrfy2: 25
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JUL 06 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

GABRIEL RUIZ-DIAZ; HYUN SOOK SONG; CINDY LEE MARSH; PETER GILLETTE; SALECK OULD DAH OULD SIDINE; PABLO SANDOVAL; YURIY KASYANOV; LELIA TENREYRO-VIANA; EDGARDO GASTON ROMERO LACUESTA; ROSARIO RAZO ROMERO; YOUN SU NAM; HAROLD MICHAEL CARL LAPIAN; LAND OF MEDICINE; UKRAINIAN AUTOCEPHALOUS ORTHODOX CHURCH; SEATTLE MENNONITE CHURCH,

No. 09-35734 D.C. No. 2:07-cv-01881-RSL Western District of Washington, Seattle
ORDER

Plaintiffs - Appellees,

v.

UNITED STATES OF AMERICA; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES DEPARTMENT OF JUSTICE; MICHAEL AYTES, Acting Deputy Director of Citizenship and Immigration Services; JANET NAPOLITANO, Secretary of Department of Homeland Security; ERIC H. HOLDER, Jr., Attorney General, Attorney General,

Defendants - Appellants.

CasCea:s0e92-3:0577-3c4v-010878/10-6R/2S0L10DocPuamgeen: t21o3f72 FileIDd:0773/0974/41101 PaDgketE2notrfy2: 25
Before: RYMER and N.R. SMITH, Circuit Judges, and WALTER, Senior District Judge. *
The parties are requested to be prepared to discuss the following questions at oral argument: (1) Is the effect of 8 C.F.R. § 245.2(a)(2)(i)(B) to waive the apparent requirement of 8 U.S.C. § 1255(a) that an immigrant visa be “immediately available” at the time of application? (2) Assuming that the regulation does have this effect, upon what does USCIS rely for the authority to waive for certain classifications of alien beneficiaries but not others, and upon what does Ruiz-Diaz rely for his position that the requirement cannot be waived for some beneficiaries but not others?
* The Honorable Donald E. Walter, Senior United States District Judge for Western Louisiana, sitting by designation.
2

 
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5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

_________________________________

8

)

GABRIEL RUIZ-DIAZ, et al.,

)

9

) No. C07-1881RSL

Plaintiffs,

)

10

v.

) ORDER GRANTING IN PART PLAINTIFFS’

) SECOND MOTION FOR A PRELIMINARY

11 UNITED STATES OF AMERICA, ) INJUNCTION

et al.,

)

12

)

Defendants.

)

13 _________________________________ )

14 This matter comes before the Court on “Plaintiffs’ Second Motion for Preliminary
15 Injunction.” Dkt. # 65. Plaintiffs seek an order forestalling the further accrual of unlawful
16 presence time and/or unauthorized employment for all class members1 during the course of this
17 litigation. In addition, plaintiffs argue that Citizenship and Immigration Services (“CIS”) should
18 be compelled to accept applications for adjustment of status (Form I-485) submitted by class
19 members and to allow family members to apply for employment authorization.
20

21

22

1 The Court has certified a class of “all individuals currently in the United States who are

beneficiaries of a Petition for Special Immigrant (Religious Worker) (Form I-360) that has been filed or 23 will be filed, and who were or would be eligible to file an Application for Adjustment of Status (Form I-

24

485) but for CIS’s policy codified at 8 C.F.R. § 245.2(a)(2)(i)(B) that the Form I-360 petition must be approved before the Form I-485 application can be filed.” Dkt. # 87. To the extent defendants’

25 opposition to the preliminary injunction is based on the non-existence of a class, those arguments are now

moot. 26

ORDER GRANTING IN PART PLAINTIFFS’ SECOND

MOTION FOR A PRELIMINARY INJUNCTION

1

In determining whether to grant a prohibitory injunction, the Ninth Circuit

2 considers: (1) the likelihood of plaintiffs’ success on the merits; (2) the possibility of irreparable

3 injury to plaintiffs if an injunction is not issued; (3) the extent to which the balance of hardships

4 favors plaintiffs; and (4) whether the public interest will be advanced by the injunction. See

5 Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 456 (9th Cir. 1994); Los Angeles Mem’l Coliseum

6 Comm’n v. Nat’l Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). The analysis is often

7 compressed into a single continuum where the required showing of merit varies inversely with

8 the showing of irreparable harm. See Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc.,

9 204 F.3d 867,874 (9th Cir. 2000). Thus, plaintiffs may be entitled to preliminary relief if they

10 are able to show either (1) probable success on the merits and the possibility of irreparable harm

11 or (2) the existence of serious questions going to the merits and a fair chance of success thereon,

12 with the balance of hardships tipping sharply in favor of an injunction. Miller, 19 F.3d at 456.

13

Although plaintiffs’ request for an injunction against further accrual of unlawful

14 presence time and/or unauthorized employment is prohibitory in nature, the same cannot be said

15 of some of the other forms of relief requested. The “last uncontested status which preceded the

16 pending controversy” did not involve the acceptance of applications for adjustment of status or

17 the acceptance of applications for new employment authorizations. See GoTo.com, Inc. v. Walt

18 Disney Co., 202 F.3d 1199, 1210 (9th Cir. 2000). A demand for affirmative conduct on the part

19 of defendants – such as the acceptance of applications that are not authorized by existing

20 policies – is subjected to heightened scrutiny by the Court. A mandatory injunction will “not be

21 issued unless the facts and law clearly favor the moving party.” Dahl v. HEM Pharms. Corp., 7

22 F.3d 1399, 1403 (9th Cir. 1993) (citing Anderson v. United States, 612 F.2d 1112, 1114 (9th

23 Cir. 1980)).

24

Having reviewed plaintiffs’ motion and the remainder of the record, the Court

25 finds as follows:

26
ORDER GRANTING IN PART PLAINTIFFS’ SECOND MOTION FOR A PRELIMINARY INJUNCTION -2-

1

(1) Plaintiffs are not challenging the agency’s discretionary decision to grant or deny an

2 application for adjustment of status. Instead, plaintiffs are challenging CIS’ refusal to accept

3 applications that, plaintiffs allege, are authorized by 8 U.S.C. § 1255(a). The Court has

4 “jurisdiction to decide, as a matter of law, whether an alien is statutorily eligible for adjustment

5 of status.” Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1113 (9th Cir. 2007) (internal

6 citations omitted).

7

(2) Plaintiffs allege that CIS’ policy of not accepting concurrently-filed petitions for

8 immigration visas and applications for adjustment of status violates the governing statute,

9 discriminates against certain classes of immigrants based on their religion, and violates the

10 Religious Freedom Restoration Act (“RFRA”), the First Amendment, the Due Process clause,

11 and the Equal Protection clause. Second Amended Complaint at ¶¶ 59-63. Plaintiffs argue that

12 they are likely to succeed in showing that the class members are statutorily eligible to apply for

13 adjustment of status, that CIS’ policy infringes on the free exercise of religion, and that CIS is

14 treating similarly-situated individuals differently. Plaintiffs have raised serious legal and/or

15 factual questions regarding their statutory, RFRA, and Equal Protection claims.2 Based on the

16 limited record currently available, the Court finds that plaintiffs have a fair chance of success on

17 the merits of each of these claims. The Court cannot, however, conclude that the facts and law

18 on any of these claims favor plaintiffs to such an extent that mandatory injunctive relief is

19

20

2 The Court urges defendants to alter their briefing practices as suggested by the Honorable

21 Richard A. Jones, United States District Judge, in Abdalla v. Mukasey, C07-1767RAJ (Dkt. # 16). Repeating a losing argument without acknowledging that the Court has already addressed the issue

22 reflects a lack of care or lack of candor toward the tribunal that cannot be condoned. In response to

plaintiffs’ Equal Protection argument, for example, defendants again assert that the claim must fail 23 because aliens are not a suspect classification. Opposition at 18. The Court rejected this argument in

24

April because it mischaracterizes plaintiffs’ claims, and yet defendants do not even mention the Court’s prior ruling in their memorandum. To the extent defendants feel they must raise every argument at every

25 opportunity in an effort to avoid a waiver, an appropriately-placed footnote noting the Court’s ruling but

reserving the issue for appeal would adequately reflect and protect the record. 26

ORDER GRANTING IN PART PLAINTIFFS’ SECOND MOTION FOR A PRELIMINARY INJUNCTION -3-

1 justified.

2

(3) In order to obtain a prohibitory injunction, plaintiffs must also show that the balance

3 of hardships tips sharply in favor of enjoining the further accrual of unlawful presence time

4 and/or unauthorized employment for all class members during the course of this litigation. The

5 status of the named plaintiffs and their family members is currently fixed by Court order. See

6 Dkt. # 48 and # 69. The unnamed class members, however, are not so protected and have been

7 accruing or will accrue unlawful presence time following the expiration of their visa status.

8

Being out of status for even one day has adverse implications for class members

9 and their families. The most direct and potentially irremediable effects are the reduction in the

10 grace period Congress provided for this class of alien and the increased possibility of detention

11 or deportation for being out of status. If defendants delay the adjudication of employer petitions

12 for immigration visas long enough, class members will have to depart from the United States

13 before they can even file an application for adjustment of status. Defendants state, without any

14 explanation, that being forced to depart from the United States is not an injury. Opposition at 7.

15 The Court is hard-pressed to imagine a more traumatic and irreparable harm than being uprooted

16 from your job, home, and community for an undetermined length of time. By maintaining the

17 status of each class member as it currently exists, the Court will have the opportunity to

18 determine whether defendants’ policy against concurrent filings is lawful without risking

19 irreparable (and potentially unjustified) harm to the class members. The Court finds that halting

20 the accrual of unlawful presence time and/or unauthorized employment for all class members

21 during the pendency of this litigation will continue the status quo ante litem, will prevent

22 irreparable harm to class members and their families, and will not cause defendants any undue

23 hardship.

24

For all of the foregoing reasons, the accrual of unlawful presence/unauthorized

25 employment time against the class members is hereby STAYED until this litigation is resolved

26
ORDER GRANTING IN PART PLAINTIFFS’ SECOND MOTION FOR A PRELIMINARY INJUNCTION -4-

1 or further order of this Court. No security shall be required.

2

3

Dated this 21st day of August, 2008.

4

5

A

6

Robert S. Lasnik

7

United States District Judge

8

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ORDER GRANTING IN PART PLAINTIFFS’ SECOND MOTION FOR A PRELIMINARY INJUNCTION -5-

 
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2

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UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

_________________________________

8

)

GABRIEL RUIZ-DIAZ, et al.,

)

9

) No. C07-1881RSL

Plaintiffs,

)

10

v.

)

AMENDED1 ORDER DENYING

) DEFENDANTS’ SECOND MOTION TO

11 UNITED STATES OF AMERICA, ) DISMISS

et al.,

)

12

)

Defendants.

)

13 _________________________________ )

14 This matter comes before the Court on defendants’ second motion to dismiss
15 pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Dkt. # 86. Defendants argue that the Court lacks
16 subject matter jurisdiction over plaintiffs’ claims and that plaintiffs have failed to state a claim
17 for which relief can be granted. Having reviewed the memoranda and declaration submitted by
18 the parties and heard the arguments of counsel, the Court finds as follows:
19

20 A. STANDING AND MOOTNESS
21 Defendants argue that all of the named plaintiffs except Yuriy Kasyanov lack
22

23

24

1 On November 17, 2008, the parties informed the Court that the I-360 petitions filed on behalf

25 of certain plaintiffs had been approved while the motion to dismiss was pending. Consistent with the

parties’ joint request, the Court has amended its order to reflect these changed circumstances. 26

AMENDED ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS – 1

1 standing because they have not suffered, and are not threatened with, actual harm.2 After this

2 class action litigation was initiated on behalf of the named plaintiffs, the United States

3 Citizenship and Immigration Services (“CIS”) ruled on the I-360 petitions filed by the religious

4 organizations who employ nine of the individuals identified in the Second Amended Complaint.

5 When Gabriel Ruiz-Diaz, Cindy Lee Marsh, Peter Gillette, and Saleck Ould Dah Ould Sindine

6 resubmitted their I-485 applications for adjustment of status under Immigration and Nationality

7 Act (“INA”) § 245, 8 U.S.C. § 1255, CIS accepted them pursuant to its existing policy. These

8 four individuals are no longer in danger of accruing unlawful presence time. The I-360 petitions

9 filed on behalf of Lelia Tenreyro-Viana, Edgardo Gaston Romero Lacuesta, Youn Su Nam,

10 Harold Michael Carl Lapian, Pablo Sandoval, Yuriy Kasyanov, Rosario Razo Romero, and

11 Hyun Sook Song were approved after they were named as plaintiffs in this case.

12

Although defendants present alternative arguments on the grounds of standing and

13 mootness, they have not attempted to show that any of the individual plaintiffs lacked standing

14 at the time they were joined as plaintiffs in this action. The real issue, therefore, is whether

15 some or all of plaintiffs’ claims became moot when CIS subsequently adjudicated the I-360

16 petitions filed on behalf of the named plaintiffs. As was the case when defendants’ filed their

17 original motion to dismiss, defendants have not reconsidered or altered the policy challenged by

18 plaintiffs and have made no attempt to remedy the impacts of the discrimination and

19 constitutional violations that allegedly occurred when plaintiffs’ I-485 applications were rejected

20 without consideration. For the reasons stated in the “Order Denying Defendants’ Motion to

21 Dismiss” (Dkt. # 46 at 2-5), the claims of the individual plaintiffs are not moot.

22

Defendants also argue that the three religious organizations identified as plaintiffs

23

24

2 It is not clear why defendants singled out Yuriy Kasyanov for special mention. He is not

25 mentioned in the argument and his situation appears to be similar to, if not indistinguishable from, some

of the other individual plaintiffs. 26

AMENDED ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS – 2

1 in the Second Amended Complaint lack standing because they are not included in the class

2 definition, they may not file an I-485 application for themselves or on their employee’s behalf,

3 and they do not risk accruing unlawful presence or unlawful employment time. Motion at 6.

4 The fact that the organizational plaintiffs are not members of the class is irrelevant: these

5 entities seek relief on their own behalf for harms caused or threatened by defendants’ policy.

6 The Court already determined that the religious organizations have standing when it allowed

7 plaintiffs to file their Second Amended Complaint. See Dkt. # 50 at 2-3. Defendants’ motion to

8 dismiss offers no new arguments and is an untimely request for reconsideration.

9

10 B. SUBJECT MATTER JURISDICTION PURSUANT TO 8 U.S.C. § 1252(a)(2)(B)(I) and (ii)

11

Defendants argue that dismissal is appropriate because the Court lacks jurisdiction

12 to review defendants’ discretionary determination. This issue has already been resolved. See

13 Dkt. # 46 at 5. Defendants offer no new arguments in support of what is essentially an untimely

14 request for reconsideration.

15

16 C. SUBJECT MATTER JURISDICTION PURSUANT TO THE ADMINISTRATIVE PROCEDURES ACT

17

Defendants argue that, because plaintiffs are challenging a decision that is

18 committed to agency discretion, judicial review is precluded under the Administrative

19 Procedures Act. As noted in the “Order Denying Defendants’ Motion to Dismiss” (Dkt. # 46 at

20 5), whether an alien is statutorily eligible for adjustment of status is not left to agency discretion.

21 Defendants’ conclusion that plaintiffs cannot apply for adjustment of status until their I-360

22 petitions are granted can be judged against meaningful standards, namely the governing statute

23 and constitutional guarantees.3

24

25

3 Defendants also argue that the Court “owes substantial deference to the Attorney General’s

permissible interpretations of the immigration statute and regulations.” Motion at 8. The fact that the 26

AMENDED ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS – 3

1 D. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

2

In the context of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court’s

3 review is generally limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d

4 1476, 1479 (9th Cir. 1996). When determining whether the allegations contained therein state a

5 claim upon which relief can be granted, the allegations are accepted as true and construed in the

6 light most favorable to plaintiff. In re Syntex Corp. Sec. Litig., 95 F.3d 922, 925-26 (9th Cir.

7 1996); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir. 2000). No claim should be

8 dismissed unless it appears beyond doubt that plaintiff can prove no set of facts which would

9 entitle him to relief should be dismissed. Wyler Summit Partnership v. Turner Broadcasting

10 Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998).

11

1. Immigration and Nationality Act (“INA”) Claims

12

The individual plaintiffs allege that they were statutorily eligible to file

13 applications for adjustment of status, but that their applications were rejected in violation of the

14 INA § 245, 8 U.S.C. § 1255. Section 245(a) states in relevant part:

15

The status of an alien . . . may be adjusted by the Attorney General, in his

16

discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for

17

such adjustment, (2) the alien is eligible to receive an immigrant visa and is

admissible to the United States for permanent residence, and (3) an immigrant visa

18

is immediately available to him at the time his application is filed.

19 8 U.S.C. § 1255(a). Defendants argue that plaintiffs have no statutory right to concurrently file
20 I-360 petitions and I-485 applications and that 8 C.F.R. § 245.2(a)(2)(i)(B), which permits some
21 aliens to file concurrently while requiring others, including religious workers, to wait until CIS
22 has approved the employer’s visa petition, is a permissible interpretation of the immigration
23

24

25 Court may ultimately defer to the agency’s interpretation of the governing law does not deprive the Court of jurisdiction to hear this matter.
26
AMENDED ORDER DENYING DEFENDANTS’ SECOND MOTION TO DISMISS – 4

1 statute. 4

2

An alien may apply for adjustment of status if “an immigrant visa is immediately

3 available to him at the time his application is filed.” 8 U.S.C. § 1255(a)(2). There are at least

4 two possible interpretations of this requirement. The most plausible meaning is that the

5 Department of State must have an immigrant visa number available for distribution on the date

6 the I-485 application is filed. One could also interpret this requirement to mean that the alien

7 must be eligible for immediate assignment of an immigrant visa number, meaning that the visa

8 petition filed on the alien’s behalf has already been approved and the government simply needs

9 to process the I-485 application. This interpretation is less plausible, however, because another

10 subsection of § 1255(a) states that the alien simply has to be “eligible to receive an immigrant

11 visa” in order to file an application.

12

Defendants have adopted neither of these interpretations. Instead, defendants

13 issued regulations defining “immediately available” differently depending on the classification

14 of the alien. If an alien is a priority worker under 8 U.S.C. § 1153(b)(1), for example, the visa

15 will be deemed “immediately available” if the State Department still has numbers available and

16 a visa petition has been filed. Visas are not “immediately available” for religious workers under

17 8 U.S.C. § 1153(b)(4), however, until CIS has actually approved the visa petition. 8 C.F.R.

18 § 245.2(a)(2)(i)(B). Defendants did not choose between the possible interpretations of the

19 statute: they simply defined “immediately available” in multiple ways so that the statute affects

20 different groups of aliens differently. Even if the agency’s interpretation of the immigration

21 statute is entitled to deference, defendants have not interpreted the statute so much as rewritten

22 it. Because there is no canon of statutory construction that allows the same language in the same

23

24

4 To the extent defendants are again arguing that plaintiffs seek to have their adjustment of status

25 applications favorably adjudicated, they are mischaracterizing plaintiffs’ claims. See Order Denying

Defendants’ Motion to Dismiss (Dkt. # 46 at 5 n.2). 26

AMENDED ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS – 5

1 statutory provision to have two conflicting meanings, the Court finds that the interpretation set

2 forth in 8 C.F.R. § 245.2(a)(2)(i)(B) is not permissible. INS v. Aguirre-Aguirre, 526 U.S. 415,

3 424 (1999) (where deference is appropriate, the question for the court is whether the agency’s

4 interpretation “is based on a permissible construction of the statute”) (quoting Chevron U.S.A.,

5 Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)). Because plaintiffs

6 may be able to show that defendants’ policy against concurrent filing for religious workers

7 violates the INA, dismissal under Rule 12(b)(6) is not appropriate.5

8

2. Due Process Claims

9

Plaintiffs allege that CIS’s refusal to accept applications for adjustment of status

10 from statutorily eligible class members is a violation of the Due Process Clause of the United

11 States Constitution. Second Amended Complaint at ¶ 59. Defendants argue, however, that

12 because plaintiffs have no life, liberty, or property interest in the outcome of the proceedings, no

13 process is due.6 Defendants rely almost exclusively on Supreme Court authority developed in

14 the prison context (see Ohio Adult Parole Auth. v. Woodard, 532 U.S. 272, 280-81 (1998); Olim

15 v. Wakinekona, 461 U.S. 238, 249-51 (1983)) and Seventh Circuit cases (Cevilla v. Gonzales,

16 446 F.3d 658, 662 (7th Cir. 2006); Hamdan v. Gonzales, 425 F.3d 1051, 1060-61 (7th Cir.

17 2005)). The Supreme Court has placed a high hurdle in front of inmates who seek to challenge

18 inter-prison transfers, clemency determinations, and other discretionary decisions involving

19 prisons. If the governing law imposes no substantive limitations on official discretion when

20

21 5 Only the individual plaintiffs and the absent class members have asserted claims under the INA.
22 See Second Amended Complaint at ¶ 59.

23

6 Defendants also challenge plaintiffs’ assertion that they are statutorily eligible to apply for

24

adjustment of status. Reply at 2-3. Defendants offer no facts or legal analysis: they simply point out that plaintiffs are not eligible for concurrent filing under defendants’ policies. As discussed in Section D.1. of

25 this Order, plaintiffs may be able to show that 8 C.F.R. § 245.2(a)(2)(i)(B) is inconsistent with the governing statute and that they are, in fact, eligible to apply under 8 U.S.C. § 1255(a).
26

AMENDED ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS – 6

1 making these types of decisions, the Supreme Court concludes that the inmate does not have a

2 protected liberty or property interest in the relief sought and that the due process clause does not

3 apply to the procedures used to make the decision. Even where the inmate could cite to a prison

4 regulation that required a particular type of hearing before he could be transferred, the Court

5 reasoned that, although the state chose to afford process, it was not constitutionally mandated

6 because the inmate did not have a legitimate claim of entitlement to the underlying benefit.

7 Olim, 461 U.S. at 250-51.

8

It is not clear whether the “discretionary relief” analysis applies outside the prison

9 context. The Seventh Circuit, citing Olim, has concluded that an alien’s right to due process in

10 the immigration context is not implicated if the relief sought is discretionary. See, e.g., Cevilla,

11 446 F.3d at 662; but see Podio v. INS, 153 F.3d 506, 509 (7th Cir. 1998) (holding that alien’s

12 due process right to a full and fair hearing on his asylum application was violated). The Ninth

13 Circuit generally starts its analysis with the proposition that the guarantee of due process applies

14 to removal proceedings: whether the relief sought is within the official’s discretion is not

15 considered, much less deemed dispositive. See, e.g., Tawadrus v. Ashcroft, 364 F.3d 1099,

16 1103 (9th Cir. 2004) (application for asylum); Agyeman v. INS, 296 F.3d 871, 876-77 (9th Cir.

17 2002) (application for suspension of deportation). The Court need not resolve this apparent

18 conflict in the case law because the benefit plaintiffs’ seek, namely the right to file an I-485

19 application, is not discretionary.

20

By enacting 8 U.S.C. § 1255(a), Congress has identified a class of aliens that is

21 eligible for adjustment of status. Plaintiffs allege, with some support, that they satisfy the

22 eligibility requirements and therefore have a legitimate claim of entitlement to the benefit of

23 applying. In Olim (and some of the other cases cited by defendants), filing an application for

24 clemency, as opposed to obtaining clemency, conferred no benefit on plaintiff. In the

25 circumstances of this case, however, there mere act of applying or, more accurately, of having

26 AMENDED ORDER DENYING DEFENDANTS’ SECOND MOTION TO DISMISS – 7

1 your application accepted and pending, is of value to the alien. A pending I-485 application

2 allows an alien to remain in the United States without accruing unlawful presence time and to

3 file an application for employment authorization. Motion at 2. Assuming that plaintiffs were

4 statutorily eligible to apply for an adjustment of status, defendants’ rejection of their

5 applications deprived plaintiffs of benefits to which they had a reasonable expectation of

6 entitlement. Defendants’ motion to dismiss the class members’ due process claim is therefore

7 denied.

8

3. Religious Organization Claims

9

As noted above, the Court has already determined that the religious organizations

10 assert injuries which, if proven, could be redressed in this action. Defendants argue that,

11 because the religious organizations were aware of the limitations of the R-1 visa program when

12 they hired religious workers, they cannot assert a claim for injuries caused by the bar against

13 concurrent filing. No authority is provided in support of this argument. If, as plaintiffs allege,

14 the bar violates the INA, is unconstitutional, and discriminates based on religion, it is hard to

15 imagine how plaintiffs’ awareness of defendants’ policy immunizes it from challenge. The

16 potential loss of a valued employee through the operation of an unlawful government policy is a

17 cognizable injury properly asserted in this litigation.7

18

4. Religious Freedom Restoration Act Claims

19

Defendants again argued that the Religious Freedom Restoration Act (“RFRA”)

20 does not apply to this case because plaintiffs’ exercise of religion was not substantially burdened

21 by the bar on concurrent filings. Dkt. # 26 at 20; Motion at 17. The Court has already

22 determined that the class members’ allegations, if proven, could support a finding that

23

24

7 In their reply, defendants argue that the religious organizations “cannot and do not present any

evidence or point to any proof to support their” allegations of harm. Reply at 4. In the context of a

25 motion to dismiss, the Court’s review is generally limited to the allegations of the complaint: plaintiffs need not prove their allegations of harm at this stage of the proceeding.
26

AMENDED ORDER DENYING DEFENDANTS’ SECOND MOTION TO DISMISS – 8

1 defendants’ policy substantially burdens plaintiffs’ exercise of religion by threatening to

2 separate them from the religious communities they serve and by interfering with their religious

3 ministries. Dkt. # 46 at 6. Defendants rely upon Navajo Nation v. U.S. Forest Serv., 535 F.3d

4 1058 (9th Cir. 2008), as support for what is essentially an untimely request for reconsideration.

5 Navajo Nation recognizes a “substantial burden on the exercise of religion only when

6 individuals are forced to choose between following the tenets of their religion and receiving a

7 governmental benefit or coerced to act contrary to their religious beliefs by the threat of civil or

8 criminal sanctions.” 535 F.3d at 1075 n.18 (internal citations omitted). As plaintiffs pointed out

9 at oral argument, the government’s policies interfere with the individual plaintiffs’ ability to

10 minister to their religious communities: both the religious organization and the individual

11 plaintiffs face civil and criminal sanctions if they continue to serve. The Court finds no reason

12 to reconsider its prior ruling on this issue.

13

Defendants also challenge the viability of the religious organizations’ RFRA

14 claim. These organizations allege that defendants’ policy against concurrent filings prevents

15 valuable employees from continuing to work and threatens the organization’s ability to provide

16 spiritual guidance to adherents. Second Amended Complaint at ¶¶ 50-52. Assuming, for

17 purposes of this motion, that the workers who are impacted by defendants’ policy are important

18 to the religious services provided by the organizations, these plaintiffs may be able to show that

19 8 C.F.R. § 245.2(a)(2)(i)(B) substantially burdens their exercise of religion.

20

5. Equal Protection Claims

21

Plaintiffs allege that they have been treated differently from other immigrant

22 groups because they work for religious, rather than secular, organizations. Defendants

23 acknowledge that regulations discriminating against an individual based on his or her religion

24 are subject to strict scrutiny. Motion at 17. They argue, however, that 8 C.F.R.

25 § 245.2(a)(2)(i)(B) does not penalize plaintiffs because of their religious affiliation, pointing out

26 AMENDED ORDER DENYING DEFENDANTS’ SECOND MOTION TO DISMISS – 9

1 that other non-religious classes of aliens, such as international broadcasters and Afghan

2 translators, are also precluded from filing concurrently. Defendants offer no case law or

3 analysis regarding the constitutionality of restrictions that discriminate against both suspect and

4 non-suspect classes. It is clear, however, that the Agency’s regulations adversely affect a

5 suspect class, along with others, and has the potential to interfere with a fundamental right. See

6 Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-58 (1988). Based on the existing

7 record and the limited legal authority cited by the parties, the Court is unable to conclude that

8 the allegations of the complaint, if proven, would not entitle plaintiffs to relief on their equal

9 protection claim.

10

6. First Amendment Claims

11

The First Amendment bars Congress from making any law prohibiting the free

12 exercise of religion. Defendants argue that Locke v. Davey, 540 U.S. 712, 718-21 (2004),

13 undermines plaintiffs’ claim that their inability to concurrently file burdens their exercise of

14 religion. In Locke, the Supreme Court found that a ban on using taxpayer money to obtain a

15 divinity degree did not violate the free exercise clause because the law was not designed to

16 suppress religion as much as to avoid the establishment of religion. The Court noted that the

17 ban on funding imposed no sanctions on those seeking divinity degrees, did not exclude

18 ministers from the political affairs of the community, and did not require students to choose

19 between their religious beliefs and receiving a government benefit. After reviewing the state

20 scholarship program as a whole, the Supreme Court found nothing to suggest an animus toward

21 religion.

22

The relevance of Locke is not readily apparent. As the Supreme Court noted, the

23 government regulation at issue in Locke fell within the “joint” between the Establishment Clause

24 and the Free Exercise Clause. How big that joint is and where this case lies have not been

25 analyzed by the parties. In both cases, a government benefit was offered to certain groups. In

26 AMENDED ORDER DENYING DEFENDANTS’ SECOND MOTION TO DISMISS – 10

1 Locke, the benefit was forfeited when the recipient tried to use it to obtain relig ious instruction.

2 In the case at hand, certain individuals were precluded from applying for the benefit because of

3 their religious affiliation. Unlike the ban on funding religious instruction, the record currently

4 before the Court suggests that the bar against concurrent filing triggers legal sanctions for both

5 the employee and the employer and may ultimately result in the exclusion of religious workers

6 from their religious community. Preaching and proselytizing constitute religious activity

7 protected by the Free Exercise Clause (see McDaniel v. Paty, 435 U.S. 618, 631 n.3 (1978)),

8 and plaintiffs may be able to show that the regulatory distinction at issue in this case reflects

9 animus toward religion. Absent further briefing and analysis by the parties, the Court cannot say

10 that plaintiffs will be unable to prove any set of facts which would entitle them to relief under

11 their First Amendment claim.

12

13

For all of the foregoing reasons, defendants’ second motion to dismiss is DENIED.

14

15

Dated this 18th day of November, 2008.

16

A

17

Robert S. Lasnik

18

United States District Judge

19

20

21

22

23

24

25

26 AMENDED ORDER DENYING DEFENDANTS’ SECOND MOTION TO DISMISS – 11

 
 Case 2:07-cv-01881-RSL Document 98 Filed 10/31/08 Page 1 of 11

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

_________________________________

8

)

GABRIEL RUIZ-DIAZ, et al.,

)

9

) No. C07-1881RSL

Plaintiffs,

)

10

v.

) ORDER DENYING DEFENDANTS’

) SECOND MOTION TO DISMISS

11 UNITED STATES OF AMERICA, )

et al.,

)

12

)

Defendants.

)

13 _________________________________ )

14 This matter comes before the Court on defendants’ second motion to dismiss
15 pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Dkt. # 86. Defendants argue that the Court lacks
16 subject matter jurisdiction over plaintiffs’ claims and that plaintiffs have failed to state a claim
17 for which relief can be granted. Having reviewed the memoranda and declaration submitted by
18 the parties and heard the arguments of counsel, the Court finds as follows:
19

20 A. STANDING AND MOOTNESS
21 Defendants argue that all of the named plaintiffs except Yuriy Kasyanov lack
22 standing because they have not suffered, and are not threatened with, actual harm.1 After this
23

24

1 It is not clear why defendants singled out Yuriy Kasyanov for special mention. He is not

25 mentioned in the argument and his situation appears to be similar to, if not indistinguishable from, some

of the other individual plaintiffs. 26

ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS

Case 2:07-cv-01881-RSL Document 98 Filed 10/31/08 Page 2 of 11

1 class action litigation was initiated on behalf of the named plaintiffs, the United States

2 Citizenship and Immigration Services (“CIS”) ruled on the I-360 petitions filed by the religious

3 organizations who employ nine of the individuals identified in the Second Amended Complaint.

4 When Gabriel Ruiz-Diaz, Cindy Lee Marsh, Peter Gillette, and Saleck Ould Dah Ould Sindine

5 resubmitted their I-485 applications for adjustment of status under Immigration and Nationality

6 Act (“INA”) § 245, 8 U.S.C. § 1255, CIS accepted them pursuant to its existing policy. These

7 four individuals are no longer in danger of accruing unlawful presence time. The I-360 petitions

8 filed on behalf of Lelia Tenreyro-Viana, Edgardo Gaston Romero Lacuesta, Youn Su Nam, and

9 Harold Michael Carl Lapian were approved after they were named as plaintiffs in this case.

10 Plaintiffs Pablo Sandoval, Yuriy Kasyanov, and Rosario Razo Romero are still waiting for the

11 adjudication of their I-360 petitions. The I-360 petition filed on behalf of plaintiff Hyun Sook

12 Song was rejected, making her ineligible for adjustment of status.

13

Although defendants present alternative arguments on the grounds of standing and

14 mootness, they have not attempted to show that any of the individual plaintiffs lacked standing

15 at the time they were joined as plaintiffs in this action. The real issue, therefore, is whether

16 some or all of plaintiffs’ claims became moot when CIS subsequently adjudicated the I-360

17 petitions filed on behalf of some of the named plaintiffs. As was the case when defendants’

18 filed their original motion to dismiss, defendants have not reconsidered or altered the policy

19 challenged by plaintiffs and have made no attempt to remedy the impacts of the discrimination

20 and constitutional violations that allegedly occurred when plaintiffs’ I-485 applications were

21 rejected without consideration. For the reasons stated in the “Order Denying Defendants’

22 Motion to Dismiss” (Dkt. # 46 at 2-5), the claims of the individual plaintiffs are not moot.

23

Defendants also argue that the three religious organizations identified as plaintiffs

24 in the Second Amended Complaint lack standing because they are not included in the class

25 definition, they may not file an I-485 application for themselves or on their employee’s behalf,

26

ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS

-2-

Case 2:07-cv-01881-RSL Document 98 Filed 10/31/08 Page 3 of 11

1 and they do not risk accruing unlawful presence or unlawful employment time. Motion at 6.

2 The fact that the organizational plaintiffs are not members of the class is irrelevant: these

3 entities seek relief on their own behalf for harms caused or threatened by defendants’ policy.

4 The Court already determined that the religious organizations have standing when it allowed

5 plaintiffs to file their Second Amended Complaint. See Dkt. # 50 at 2-3. Defendants’ motion to

6 dismiss offers no new arguments and is an untimely request for reconsideration.

7

8 B. SUBJECT MATTER JURISDICTION PURSUANT TO 8 U.S.C. § 1252(a)(2)(B)(I) and (ii)

9

Defendants argue that dismissal is appropriate because the Court lacks jurisdiction

10 to review defendants’ discretionary determination. This issue has already been resolved. See

11 Dkt. # 46 at 5. Defendants offer no new arguments in support of what is essentially an untimely

12 request for reconsideration.

13

14 C. SUBJECT MATTER JURISDICTION PURSUANT TO THE ADMINISTRATIVE PROCEDURES ACT

15

Defendants argue that, because plaintiffs are challenging a decision that is

16 committed to agency discretion, judicial review is precluded under the Administrative

17 Procedures Act. As noted in the “Order Denying Defendants’ Motion to Dismiss” (Dkt. # 46 at

18 5), whether an alien is statutorily eligible for adjustment of status is not left to agency discretion.

19 Defendants’ conclusion that plaintiffs cannot apply for adjustment of status until their I-360

20 petitions are granted can be judged against meaningful standards, namely the governing statute

21 and constitutional guarantees.2

22

23

24

2 Defendants also argue that the Court “owes substantial deference to the Attorney General’s

permissible interpretations of the immigration statute and regulations.” Motion at 8. The fact that the

25 Court may ultimately defer to the agency’s interpretation of the governing law does not deprive the Court of jurisdiction to hear this matter.
26

ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS

-3-

Case 2:07-cv-01881-RSL Document 98 Filed 10/31/08 Page 4 of 11

1 D. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

2

In the context of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court’s

3 review is generally limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d

4 1476, 1479 (9th Cir. 1996). When determining whether the allegations contained therein state a

5 claim upon which relief can be granted, the allegations are accepted as true and construed in the

6 light most favorable to plaintiff. In re Syntex Corp. Sec. Litig., 95 F.3d 922, 925-26 (9th Cir.

7 1996); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir. 2000). No claim should be

8 dismissed unless it appears beyond doubt that plaintiff can prove no set of facts which would

9 entitle him to relief should be dismissed. Wyler Summit Partnership v. Turner Broadcasting

10 Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998).

11

1. Immigration and Nationality Act (“INA”) Claims

12

The individual plaintiffs allege that they were statutorily eligible to file

13 applications for adjustment of status, but that their applications were rejected in violation of the

14 INA § 245, 8 U.S.C. § 1255. Section 245(a) states in relevant part:

15

The status of an alien . . . may be adjusted by the Attorney General, in his

16

discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for

17

such adjustment, (2) the alien is eligible to receive an immigrant visa and is

admissible to the United States for permanent residence, and (3) an immigrant visa

18

is immediately available to him at the time his application is filed.

19 8 U.S.C. § 1255(a). Defendants argue that plaintiffs have no statutory right to concurrently file
20 I-360 petitions and I-485 applications and that 8 C.F.R. § 245.2(a)(2)(i)(B), which permits some
21 aliens to file concurrently while requiring others, including religious workers, to wait until CIS
22 has approved the employer’s visa petition, is a permissible interpretation of the immigration
23

24

25

26

ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS

-4-

Case 2:07-cv-01881-RSL Document 98 Filed 10/31/08 Page 5 of 11

1 statute. 3

2

An alien may apply for adjustment of status if “an immigrant visa is immediately

3 available to him at the time his application is filed.” 8 U.S.C. § 1255(a)(2). There are at least

4 two possible interpretations of this requirement. The most plausible meaning is that the

5 Department of State must have an immigrant visa number available for distribution on the date

6 the I-485 application is filed. One could also interpret this requirement to mean that the alien

7 must be eligible for immediate assignment of an immigrant visa number, meaning that the visa

8 petition filed on the alien’s behalf has already been approved and the government simply needs

9 to process the I-485 application. This interpretation is less plausible, however, because another

10 subsection of § 1255(a) states that the alien simply has to be “eligible to receive an immigrant

11 visa” in order to file an application.

12

Defendants have adopted neither of these interpretations. Instead, defendants

13 issued regulations defining “immediately available” differently depending on the classification

14 of the alien. If an alien is a priority worker under 8 U.S.C. § 1153(b)(1), for example, the visa

15 will be deemed “immediately available” if the State Department still has numbers available and

16 a visa petition has been filed. Visas are not “immediately available” for religious workers under

17 8 U.S.C. § 1153(b)(4), however, until CIS has actually approved the visa petition. 8 C.F.R.

18 § 245.2(a)(2)(i)(B). Defendants did not choose between the possible interpretations of the

19 statute: they simply defined “immediately available” in multiple ways so that the statute affects

20 different groups of aliens differently. Even if the agency’s interpretation of the immigration

21 statute is entitled to deference, defendants have not interpreted the statute so much as rewritten

22 it. Because there is no canon of statutory construction that allows the same language in the same

23

24

3 To the extent defendants are again arguing that plaintiffs seek to have their adjustment of status

25 applications favorably adjudicated, they are mischaracterizing plaintiffs’ claims. See Order Denying

Defendants’ Motion to Dismiss (Dkt. # 46 at 5 n.2). 26

ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS

-5-

Case 2:07-cv-01881-RSL Document 98 Filed 10/31/08 Page 6 of 11

1 statutory provision to have two conflicting meanings, the Court finds that the interpretation set

2 forth in 8 C.F.R. § 245.2(a)(2)(i)(B) is not permissible. INS v. Aguirre-Aguirre, 526 U.S. 415,

3 424 (1999) (where deference is appropriate, the question for the court is whether the agency’s

4 interpretation “is based on a permissible construction of the statute”) (quoting Chevron U.S.A.,

5 Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)). Because plaintiffs

6 may be able to show that defendants’ policy against concurrent filing for religious workers

7 violates the INA, dismissal under Rule 12(b)(6) is not appropriate.4

8

2. Due Process Claims

9

Plaintiffs allege that CIS’s refusal to accept applications for adjustment of status

10 from statutorily eligible class members is a violation of the Due Process Clause of the United

11 States Constitution. Second Amended Complaint at ¶ 59. Defendants argue, however, that

12 because plaintiffs have no life, liberty, or property interest in the outcome of the proceedings, no

13 process is due.5 Defendants rely almost exclusively on Supreme Court authority developed in

14 the prison context (see Ohio Adult Parole Auth. v. Woodard, 532 U.S. 272, 280-81 (1998); Olim

15 v. Wakinekona, 461 U.S. 238, 249-51 (1983)) and Seventh Circuit cases (Cevilla v. Gonzales,

16 446 F.3d 658, 662 (7th Cir. 2006); Hamdan v. Gonzales, 425 F.3d 1051, 1060-61 (7th Cir.

17 2005)). The Supreme Court has placed a high hurdle in front of inmates who seek to challenge

18 inter-prison transfers, clemency determinations, and other discretionary decisions involving

19 prisons. If the governing law imposes no substantive limitations on official discretion when

20

21 4 Only the individual plaintiffs and the absent class members have asserted claims under the INA.
22 See Second Amended Complaint at ¶ 59.

23

5 Defendants also challenge plaintiffs’ assertion that they are statutorily eligible to apply for

24

adjustment of status. Reply at 2-3. Defendants offer no facts or legal analysis: they simply point out that plaintiffs are not eligible for concurrent filing under defendants’ policies. As discussed in Section D.1. of

25 this Order, plaintiffs may be able to show that 8 C.F.R. § 245.2(a)(2)(i)(B) is inconsistent with the governing statute and that they are, in fact, eligible to apply under 8 U.S.C. § 1255(a).
26

ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS

-6-

Case 2:07-cv-01881-RSL Document 98 Filed 10/31/08 Page 7 of 11

1 making these types of decisions, the Supreme Court concludes that the inmate does not have a

2 protected liberty or property interest in the relief sought and that the due process clause does not

3 apply to the procedures used to make the decision. Even where the inmate could cite to a prison

4 regulation that required a particular type of hearing before he could be transferred, the Court

5 reasoned that, although the state chose to afford process, it was not constitutionally mandated

6 because the inmate did not have a legitimate claim of entitlement to the underlying benefit.

7 Olim, 461 U.S. at 250-51.

8

It is not clear whether the “discretionary relief” analysis applies outside the prison

9 context. The Seventh Circuit, citing Olim, has concluded that an alien’s right to due process in

10 the immigration context is not implicated if the relief sought is discretionary. See, e.g., Cevilla,

11 446 F.3d at 662; but see Podio v. INS, 153 F.3d 506, 509 (7th Cir. 1998) (holding that alien’s

12 due process right to a full and fair hearing on his asylum application was violated). The Ninth

13 Circuit generally starts its analysis with the proposition that the guarantee of due process applies

14 to removal proceedings: whether the relief sought is within the official’s discretion is not

15 considered, much less deemed dispositive. See, e.g., Tawadrus v. Ashcroft, 364 F.3d 1099,

16 1103 (9th Cir. 2004) (application for asylum); Agyeman v. INS, 296 F.3d 871, 876-77 (9th Cir.

17 2002) (application for suspension of deportation). The Court need not resolve this apparent

18 conflict in the case law because the benefit plaintiffs’ seek, namely the right to file an I-485

19 application, is not discretionary.

20

By enacting 8 U.S.C. § 1255(a), Congress has identified a class of aliens that is

21 eligible for adjustment of status. Plaintiffs allege, with some support, that they satisfy the

22 eligibility requirements and therefore have a legitimate claim of entitlement to the benefit of

23 applying. In Olim (and some of the other cases cited by defendants), filing an application for

24 clemency, as opposed to obtaining clemency, conferred no benefit on plaintiff. In the

25 circumstances of this case, however, there mere act of applying or, more accurately, of having

26

ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS

-7-

Case 2:07-cv-01881-RSL Document 98 Filed 10/31/08 Page 8 of 11

1 your application accepted and pending, is of value to the alien. A pending I-485 application

2 allows an alien to remain in the United States without accruing unlawful presence time and to

3 file an application for employment authorization. Motion at 2. Assuming that plaintiffs were

4 statutorily eligible to apply for an adjustment of status, defendants’ rejection of their

5 applications deprived plaintiffs of benefits to which they had a reasonable expectation of

6 entitlement. Defendants’ motion to dismiss the class members’ due process claim is therefore

7 denied.

8

3. Religious Organization Claims

9

As noted above, the Court has already determined that the religious organizations

10 assert injuries which, if proven, could be redressed in this action. Defendants argue that,

11 because the religious organizations were aware of the limitations of the R-1 visa program when

12 they hired religious workers, they cannot assert a claim for injuries caused by the bar against

13 concurrent filing. No authority is provided in support of this argument. If, as plaintiffs allege,

14 the bar violates the INA, is unconstitutional, and discriminates based on religion, it is hard to

15 imagine how plaintiffs’ awareness of defendants’ policy immunizes it from challenge. The

16 potential loss of a valued employee through the operation of an unlawful government policy is a

17 cognizable injury properly asserted in this litigation.6

18

4. Religious Freedom Restoration Act Claims

19

Defendants again argued that the Religious Freedom Restoration Act (“RFRA”)

20 does not apply to this case because plaintiffs’ exercise of religion was not substantially burdened

21 by the bar on concurrent filings. Dkt. # 26 at 20; Motion at 17. The Court has already

22 determined that the class members’ allegations, if proven, could support a finding that

23

24

6 In their reply, defendants argue that the religious organizations “cannot and do not present any

evidence or point to any proof to support their” allegations of harm. Reply at 4. In the context of a

25 motion to dismiss, the Court’s review is generally limited to the allegations of the complaint: plaintiffs need not prove their allegations of harm at this stage of the proceeding.
26

ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS

-8-

Case 2:07-cv-01881-RSL Document 98 Filed 10/31/08 Page 9 of 11

1 defendants’ policy substantially burdens plaintiffs’ exercise of religion by threatening to

2 separate them from the religious communities they serve and by interfering with their religious

3 ministries. Dkt. # 46 at 6. Defendants rely upon Navajo Nation v. U.S. Forest Serv., 535 F.3d

4 1058 (9th Cir. 2008), as support for what is essentially an untimely request for reconsideration.

5 Navajo Nation recognizes a “substantial burden on the exercise of religion only when

6 individuals are forced to choose between following the tenets of their religion and receiving a

7 governmental benefit or coerced to act contrary to their religious beliefs by the threat of civil or

8 criminal sanctions.” 535 F.3d at 1075 n.18 (internal citations omitted). As plaintiffs pointed out

9 at oral argument, the government’s policies interfere with the individual plaintiffs’ ability to

10 minister to their religious communities: both the religious organization and the individual

11 plaintiffs face civil and criminal sanctions if they continue to serve. The Court finds no reason

12 to reconsider its prior ruling on this issue.

13

Defendants also challenge the viability of the religious organizations’ RFRA

14 claim. These organizations allege that defendants’ policy against concurrent filings prevents

15 valuable employees from continuing to work and threatens the organization’s ability to provide

16 spiritual guidance to adherents. Second Amended Complaint at ¶¶ 50-52. Assuming, for

17 purposes of this motion, that the workers who are impacted by defendants’ policy are important

18 to the religious services provided by the organizations, these plaintiffs may be able to show that

19 8 C.F.R. § 245.2(a)(2)(i)(B) substantially burdens their exercise of religion.

20

5. Equal Protection Claims

21

Plaintiffs allege that they have been treated differently from other immigrant

22 groups because they work for religious, rather than secular, organizations. Defendants

23 acknowledge that regulations discriminating against an individual based on his or her religion

24 are subject to strict scrutiny. Motion at 17. They argue, however, that 8 C.F.R.

25 § 245.2(a)(2)(i)(B) does not penalize plaintiffs because of their religious affiliation, pointing out

26

ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS

-9-

Case 2:07-cv-01881-RSL Document 98 Filed 10/31/08 Page 10 of 11

1 that other non-religious classes of aliens, such as international broadcasters and Afghan

2 translators, are also precluded from filing concurrently. Defendants offer no case law or

3 analysis regarding the constitutionality of restrictions that discriminate against both suspect and

4 non-suspect classes. It is clear, however, that the Agency’s regulations adversely affect a

5 suspect class, along with others, and has the potential to interfere with a fundamental right. See

6 Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-58 (1988). Based on the existing

7 record and the limited legal authority cited by the parties, the Court is unable to conclude that

8 the allegations of the complaint, if proven, would not entitle plaintiffs to relief on their equal

9 protection claim.

10

6. First Amendment Claims

11

The First Amendment bars Congress from making any law prohibiting the free

12 exercise of religion. Defendants argue that Locke v. Davey, 540 U.S. 712, 718-21 (2004),

13 undermines plaintiffs’ claim that their inability to concurrently file burdens their exercise of

14 religion. In Locke, the Supreme Court found that a ban on using taxpayer money to obtain a

15 divinity degree did not violate the free exercise clause because the law was not designed to

16 suppress religion as much as to avoid the establishment of religion. The Court noted that the

17 ban on funding imposed no sanctions on those seeking divinity degrees, did not exclude

18 ministers from the political affairs of the community, and did not require students to choose

19 between their religious beliefs and receiving a government benefit. After reviewing the state

20 scholarship program as a whole, the Supreme Court found nothing to suggest an animus toward

21 religion.

22

The relevance of Locke is not readily apparent. As the Supreme Court noted, the

23 government regulation at issue in Locke fell within the “joint” between the Establishment Clause

24 and the Free Exercise Clause. How big that joint is and where this case lies have not been

25 analyzed by the parties. In both cases, a government benefit was offered to certain groups. In

26

ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS

-10-

Case 2:07-cv-01881-RSL Document 98 Filed 10/31/08 Page 11 of 11

1 Locke, the benefit was forfeited when the recipient tried to use it to obtain relig ious instruction.

2 In the case at hand, certain individuals were precluded from applying for the benefit because of

3 their religious affiliation. Unlike the ban on funding religious instruction, the record currently

4 before the Court suggests that the bar against concurrent filing triggers legal sanctions for both

5 the employee and the employer and may ultimately result in the exclusion of religious workers

6 from their religious community. Preaching and proselytizing constitute religious activity

7 protected by the Free Exercise Clause (see McDaniel v. Paty, 435 U.S. 618, 631 n.3 (1978)),

8 and plaintiffs may be able to show that the regulatory distinction at issue in this case reflects

9 animus toward religion. Absent further briefing and analysis by the parties, the Court cannot say

10 that plaintiffs will be unable to prove any set of facts which would entitle them to relief under

11 their First Amendment claim.

12

13

For all of the foregoing reasons, defendants’ second motion to dismiss is DENIED.

14

15

Dated this 31st day of October, 2008.

16

17

A

18

Robert S. Lasnik United States District Judge

19

20

21

22

23

24

25

26

ORDER DENYING DEFENDANTS’

SECOND MOTION TO DISMISS

-11-

 
 Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 1 of 20
CLOSED
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:07−cv−01881−RSL

Ruiz−Diaz et al v. United States of America et al Assigned to: Judge Robert S. Lasnik Case in other court: 9th Circuit, 09−35734 Cause: 08:1326 Aliens
Plaintiff

Date Filed: 11/21/2007 Date Terminated: 05/10/2011 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Gabriel Ruiz−Diaz

represented by Robert H. Gibbs GIBBS HOUSTON PAUW 1000 SECOND AVE STE 1600 SEATTLE, WA 98104 206−682−1080 Fax: FAX 689−2270 Email: rgibbs@ghp−law.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Pauw GIBBS HOUSTON PAUW 1000 SECOND AVE STE 1600 SEATTLE, WA 98104 206−682−1080 Fax: FAX 689−2270 Email: rpauw@ghp−law.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Lise Matsumoto GIBBS HOUSTON PAUW 1000 SECOND AVE STE 1600 SEATTLE, WA 98104 206−682−1080 Email: mmatsumoto@lichterassociates.com ATTORNEY TO BE NOTICED

Plaintiff Hyun Sook Song

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Cindy Lee Marsh

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 2 of 20

ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Gadiel Gomez TERMINATED: 05/15/2008

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Peter Gillette

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Saleck Ould Dah Ould Sidine

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Pablo Sandoval

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Pauw (See above for address)

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 3 of 20

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Yuriy Kasyanov

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lelia Tenreyro−Viana

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Edgardo Gaston Romero Lacuesta

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rosario Razo Romero

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 4 of 20

Plaintiff Youn Su Nam
Plaintiff Harold Michael Carl Lapian
Plaintiff Land of Medicine
Plaintiff Ukrainian Autocephalous Orthodox Church

Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED
represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED
represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED
represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED
represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mari Lise Matsumoto

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 5 of 20

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Seattle Mennonite Church

represented by Robert H. Gibbs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Lise Matsumoto (See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States of America
Defendant

represented by Lyle D Jentzer US DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LIT 1331 PENNSYLVANIA AVE NW WASHINGTON, DC 20530−0878 202−616−9095 Fax: 202−305−0192 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Leibman US DEPT. OF JUSTICE CIVIL DIVISION P.O. BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202−305−7016 Email: melissa.leibman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darwin P Roberts US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−7970 Email: darwin.roberts@usdoj.gov TERMINATED: 04/08/2008
J. Michael Diaz UNITED STATES ATTORNEY'S OFFICE 700 STEWART STREET STE 5220 SEATTLE, WA 98101 206−553−4358 Email: michael.diaz@usdoj.gov ATTORNEY TO BE NOTICED

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 6 of 20

US Citizenship and Immigration Services

represented by Lyle D Jentzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Leibman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darwin P Roberts (See above for address) TERMINATED: 04/08/2008

J. Michael Diaz (See above for address) ATTORNEY TO BE NOTICED

Defendant US Department of Homeland Security

represented by Lyle D Jentzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Leibman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darwin P Roberts (See above for address) TERMINATED: 04/08/2008

J. Michael Diaz (See above for address) ATTORNEY TO BE NOTICED

Defendant US Department of Justice

represented by Lyle D Jentzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Leibman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darwin P Roberts (See above for address) TERMINATED: 04/08/2008

J. Michael Diaz (See above for address) ATTORNEY TO BE NOTICED

Defendant
Emilio Gonzalez Director of Citizenship and Immigration Services

represented by Lyle D Jentzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Leibman

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 7 of 20

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darwin P Roberts (See above for address) TERMINATED: 04/08/2008

J. Michael Diaz (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael Chertoff Secretary of Department of Homeland Security

represented by Lyle D Jentzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Leibman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darwin P Roberts (See above for address) TERMINATED: 04/08/2008

J. Michael Diaz (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael B Mukasey Attorney General

represented by Lyle D Jentzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Leibman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darwin P Roberts (See above for address) TERMINATED: 04/08/2008

J. Michael Diaz (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/21/2007
11/21/2007

# Docket Text
1 COMPLAINT against defendant(s) United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, filed by Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song. (Attachments: # 1 Civil cover sheet). (Summons(es) issued)(Receipt # SEA13686) (CL, ) (Entered: 11/23/2007)
2 MOTION for Temporary Restraining Order by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song. (Attachments: # 1Sealed Exhibits A−D# 2 Proposed order)Noting Date 12/3/2007.(CL, ) Modified on 2/5/2008 to seal exhibits per 2/4/08 stipulation and order (RS, ). (Entered: 11/23/2007)

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 8 of 20

11/26/2007 11/27/2007 11/27/2007 11/30/2007 12/04/2007 12/04/2007 12/04/2007 12/11/2007 12/13/2007 12/13/2007 12/18/2007 12/19/2007
12/19/2007

3 NOTICE of Appearance by attorney Darwin P Roberts on behalf of Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Roberts, Darwin) (Entered: 11/26/2007)
4 AFFIDAVIT of Mailing Summons and Complaint by Robert Pauw, Counsel for Plaintiffs to Civil Process Clerk (hand−delivered to U.S. Attorney's Office) on 11/21/07, and served by mail to Michael Mukasey, Michael Chertoff, Emilio T. Gonzalez on 11/23/07, filed by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song. (Matsumoto, Mari) (Entered: 11/27/2007)
5 Stipulated MOTION and [Proposed] Order re Briefing Schedule by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. Noting Date 11/27/2007.(Roberts, Darwin) (Entered: 11/27/2007)
6 STIPULATION AND ORDER by Judge Robert S. Lasnik. The Court RE−NOTES for 12/11/07 Pltf's Motion for Temporary Restraining Order, docket no. 2 , Response Brief ddl 12/4/07, Reply Brief ddl 12/11/07.(CL, ) (Entered: 12/03/2007)
7 RESPONSE, by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, to 2 MOTION for Temporary Restraining Order. (Roberts, Darwin) (Entered: 12/04/2007)
8 DECLARATION of Rodger Pitcairn filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey re 2 MOTION for Temporary Restraining Order (Roberts, Darwin) (Entered: 12/04/2007)
9 DECLARATION of Darwin P. Roberts filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey re 2 MOTION for Temporary Restraining Order (Roberts, Darwin) (Entered: 12/04/2007)
10 NOTICE that the following is RE−NOTED: 2 MOTION for Temporary Restraining Order. Filed by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song. Noting Date 4/11/2008.(Pauw, Robert) (Entered: 12/11/2007)
11 AMENDED COMPLAINT against defendant(s) all defendants, filed by Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song.(Matsumoto, Mari) (Entered: 12/13/2007)
12 MOTION to Certify Class by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song. (Attachments: # 1 Exhibit Plaintiffs' Exhibits A−D in Support of Motion for Class Certification)Noting Date 12/28/2007.(Matsumoto, Mari) (Entered: 12/13/2007)
13 Stipulated MOTION and Proposed Order re Briefing Schedule (Class Certification) by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. Noting Date 12/18/2007.(Roberts, Darwin) (Entered: 12/18/2007)
14 MOTION for Leave to File Response to Plaintiffs' Notice of Renoting Motion for Temporary Restraining Order by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Proposed Order Granting Defendants' Motion for Leave to File Response# 2 Government's Response [Proposed])Noting Date 1/3/2008.(Roberts, Darwin) (Entered: 12/19/2007)
15 ORDER granting 13 Stipulated Motion re briefing schedule re plaintiffs' motion for class certification by Judge Robert S. Lasnik.(RS, ) (Entered: 12/20/2007)

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 9 of 20

12/20/2007 12/20/2007 12/20/2007 12/21/2007
12/27/2007 12/27/2007 01/11/2008
01/14/2008 01/29/2008 02/04/2008 02/05/2008
02/05/2008
02/05/2008
02/05/2008
02/05/2008 02/06/2008 02/06/2008

17 ORDER granting defendants' 14 Motion for Leave to File a Response to Plaintiff's Notice of Renoting Motion for TRO by Judge Robert S. Lasnik.(RS, ) (Entered: 12/21/2007)
18 ORDER TO SHOW CAUSE Show Cause Response due by 1/3/2008 at 4:30pm by Judge Robert S. Lasnik. (RS, ) (Entered: 12/21/2007)
19 Show cause deadline re 18 Order to Show Cause NOTED on motion calendar;Noting Date 1/4/2008. (RS, ) (Entered: 12/21/2007)
16 MOTION for Temporary Restraining Order by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song. (Attachments: # 1 Sealed Exhibit # 2 Proposed Order)Noting Date 12/28/2007.(Pauw, Robert) Modified on 2/5/2008 to seal exhibit per 2/4/08 stipulation and order (RS, ). (Entered: 12/21/2007)
20 WITHDRAWAL of Motion re 2 MOTION for Temporary Restraining Order ; by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song. (Pauw, Robert) (Entered: 12/27/2007)
21 TEMPORARY RESTRAINING ORDER re plaintiffs' 16 Motion for TRO by Judge Robert S. Lasnik.(RS, ) (Entered: 12/28/2007)
22 Second Stipulated MOTION and Proposed Order re Briefing Schedule (Class Certification) by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. Noting Date 1/11/2008.(Roberts, Darwin) (Entered: 01/11/2008)
23 SECOND STIPULATED ORDER granting 22 Stipulated Motion re briefing schedule on plaintiffs' motion for class certification by Judge Robert S. Lasnik.(RS, ) (Entered: 01/14/2008)
24 Stipulated MOTION &Agreed Proposed Order by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song. Noting Date 1/29/2008.(Gibbs, Robert) (Entered: 01/29/2008)
25 ORDER granting 24 Stipulated Motion to seal documents by Judge Robert S. Lasnik.(RS, ) (Entered: 02/05/2008)
26 MOTION to Dismiss by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. Oral Argument Requested. (Attachments: # 1 Proposed Order)Noting Date 2/29/2008.(Roberts, Darwin) (Entered: 02/05/2008)
27 Second DECLARATION of Rodger Pitcairn filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey re 26 MOTION to Dismiss (Roberts, Darwin) (Entered: 02/05/2008)
28 RESPONSE, by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, to 12 MOTION to Certify Class. (Roberts, Darwin) (Entered: 02/05/2008)
29 MOTION for Preliminary Injunction by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)Noting Date 2/29/2008.(Pauw, Robert) (Entered: 02/05/2008)
30 MOTION to Amend Complaint by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song. (Attachments: # 1 Second Amended Complaint)Noting Date 2/22/2008.(Pauw, Robert) (Entered: 02/05/2008)
31 MINUTE ORDER RE−NOTING 29 MOTION for Preliminary Injunction ; Noting Date 2/22/2008. (KERR, ) (Entered: 02/06/2008)
32 EXHIBIT (Redacted) in Support of Second Motion for TRO DKT #16 pursuant to agreed order by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz,

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 10 of 20

02/19/2008 02/19/2008
02/19/2008 02/19/2008 02/19/2008 02/21/2008 02/22/2008 02/26/2008 02/26/2008 02/26/2008
02/29/2008 02/29/2008
03/17/2008 04/08/2008

Hyun Sook Song. (Gibbs, Robert) (Entered: 02/06/2008)
33 RESPONSE, by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, to 29 MOTION for Preliminary Injunction. (Roberts, Darwin) (Entered: 02/19/2008)
34 Second DECLARATION of Darwin P. Roberts filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey re 29 MOTION for Preliminary Injunction (Roberts, Darwin) (Entered: 02/19/2008)
35 RESPONSE, by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, to 30 MOTION to Amend Complaint. (Roberts, Darwin) (Entered: 02/19/2008)
36 REPLY, filed by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song, TO RESPONSE to 12 MOTION to Certify Class (Pauw, Robert) (Entered: 02/19/2008)
37 RESPONSE, by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song, to 26 MOTION to Dismiss. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Pauw, Robert) (Entered: 02/19/2008)
Noting Date Set/Reset per chambers re 29 MOTION for Preliminary Injunction : Noting Date 2/29/2008. (RS, ) (Entered: 02/21/2008)
38 REPLY, filed by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song, TO RESPONSE to 30 MOTION to Amend Complaint (Pauw, Robert) (Entered: 02/22/2008)
39 REPLY, filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, TO RESPONSE to 26 MOTION to Dismiss (Roberts, Darwin) (Entered: 02/26/2008)
40 PROPOSED ORDER (Unsigned) re 29 MOTION for Preliminary Injunction. (Pauw, Robert) (Entered: 02/26/2008)
41 REPLY, filed by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song, TO RESPONSE to 29 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Exhibit A, Declaration of Robert O. Wells# 2 Exhibit Exhibit B, AILA Comment to Proposed Rule# 3 Exhibit Exhibit C, 2002 GAO Report)(Gibbs, Robert) (Entered: 02/26/2008)
42 MOTION to Stay by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. Noting Date 03−21−2008.(Roberts, Darwin) (Entered: 02/29/2008)
43 MOTION Withdraw Request for Oral Argument re 26 MOTION to Dismiss by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. Noting Date 03−21−2008.(Roberts, Darwin) (Entered: 02/29/2008)
44 RESPONSE, by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song, to 42 MOTION to Stay. (Gibbs, Robert) (Entered: 03/17/2008)
45 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. J. Michael Diaz is substituted as counsel for Defendants. Attorney Darwin P Roberts terminated. (Diaz, J.) (Entered: 04/08/2008)

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 11 of 20

05/01/2008 05/01/2008 05/01/2008 05/01/2008 05/05/2008 05/15/2008 05/15/2008 05/15/2008 05/15/2008
05/15/2008
05/15/2008
05/15/2008 05/15/2008
05/15/2008 05/15/2008 05/15/2008
05/15/2008

46 ORDER denying defendants' 26 Motion to Dismiss by Judge Robert S. Lasnik.(RS, ) (Entered: 05/02/2008)
47 ORDER denying plaintiffs' 12 Motion to Certify Class by Judge Robert S. Lasnik.(RS, ) (Entered: 05/02/2008)
48 ORDER granting in part plaintiffs' 29 Motion for Preliminary Injunction by Judge Robert S. Lasnik.(RS, ) (Entered: 05/02/2008)
49 ORDER denying defendants' 42 Motion to Stay Proceedings by Judge Robert S. Lasnik.(RS, ) (Entered: 05/02/2008)
50 ORDER granting 30 Motion to Amend Complaint by Judge Robert S. Lasnik.(RS, ) (Entered: 05/06/2008)
51 Second AMENDED COMPLAINT against defendant(s) all defendants, filed by Peter Gillette, Saleck Ould Dah Ould Sidine, Cindy Lee Marsh, Gadiel Gomez, Gabriel Ruiz−Diaz, Hyun Sook Song.(Matsumoto, Mari) (Entered: 05/15/2008)
52 Second MOTION to Certify Class by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song. Noting Date 5/30/2008; (Matsumoto, Mari) (Entered: 05/15/2008)
53 DECLARATION of Yuriy Kasyanov (Ex. A) filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song re 52 Second MOTION to Certify Class (Matsumoto, Mari) (Entered: 05/15/2008)
54 DECLARATION of Lelia Tenreyro−Viana (Ex. B) filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song re 52 Second MOTION to Certify Class (Matsumoto, Mari) (Entered: 05/15/2008)
55 DECLARATION of Edgardo Gaston Romero Lacuesta (Ex. C) filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song re 52 Second MOTION to Certify Class (Matsumoto, Mari) (Entered: 05/15/2008)
56 DECLARATION of Rosario Razo Romero (Ex. D) filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song re 52 Second MOTION to Certify Class (Matsumoto, Mari) (Entered: 05/15/2008)
57 DECLARATION of Youn Su Nam (Ex. E) filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song re 52 Second MOTION to Certify Class (Matsumoto, Mari) (Entered: 05/15/2008)
58 DECLARATION of Harold Michael Carl Lapian (Ex. F) filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song re 52 Second MOTION to Certify Class (Matsumoto, Mari) (Entered: 05/15/2008)
59 DECLARATION of Pablo Sandoval (Ex. G) filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song re 52 Second MOTION to Certify Class (Matsumoto, Mari) (Entered: 05/15/2008)
60 DECLARATION of Denice Macy (Ex. H) filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song re 52 Second MOTION to Certify Class (Matsumoto, Mari) (Entered: 05/15/2008)
61 DECLARATION of Michael J. Champion (Ex. I) filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song re 52 Second MOTION to Certify Class (Matsumoto, Mari) (Entered: 05/15/2008)
62 DECLARATION of Michael D. Roe (Ex. J) filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song re 52 Second MOTION to Certify Class (Matsumoto, Mari) (Entered: 05/15/2008)

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 12 of 20

05/22/2008 05/22/2008 05/22/2008 05/23/2008 05/27/2008
05/27/2008 05/27/2008 05/28/2008 05/29/2008
05/30/2008 05/30/2008 06/02/2008
06/03/2008

63 STIPULATION and PROPOSED ORDER to Stay Unlawful Presence for Certain Named Plaintiffs by parties. (Pauw, Robert) (Entered: 05/22/2008)
64 MOTION for Extension of Time To File A Response To Plaintiff's Second Motion For Class Certification by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Proposed Order) Noting Date 6/3/2008; (Diaz, J.) (Entered: 05/22/2008)
65 Second MOTION for Preliminary Injunction by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song. (Attachments: # 1 Exhibit Ex. A, Decl. of Fr. McKee, # 2 Exhibit Ex. B, Letters from St. Cecilia Parish) Noting Date 6/6/2008; (Matsumoto, Mari) (Entered: 05/22/2008)
66 STIPULATION AND PROPOSED ORDER Extending Time for Defendants to File a Response by parties re 51 Amended Complaint. (Diaz, J.) (Entered: 05/23/2008)
67 MOTION for Extension of Time To File A Response To Plaintiffs' Second Motion For Preliminary Injunction by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Proposed Order) Noting Date 6/5/2008; (Diaz, J.) (Entered: 05/27/2008)
68 STIPULATION AND ORDER extending time for dfts to file a response to plaintiffs' second amended complaint by Judge Robert S. Lasnik. (RS, ) (Entered: 05/28/2008)
69 STIPULATION AND ORDER allowing plaintiffs to remain in US pending resolution of lawsuit or further order of the court by Judge Robert S. Lasnik. (RS, ) (Entered: 05/28/2008)
70 RESPONSE, by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Gabriel Ruiz−Diaz, Hyun Sook Song, to 64 MOTION for Extension of Time To File A Response To Plaintiff's Second Motion For Class Certification. (Matsumoto, Mari) (Entered: 05/28/2008)
Attorneys Mari Lise Matsumoto, Robert Pauw, Robert H. Gibbs for Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz and Hyun Sook Song added per 51 Second Amended Complaint. (KN, ) (Entered: 05/29/2008)
71 PROPOSED ORDER (Unsigned) re 52 Second MOTION to Certify Class (Matsumoto, Mari) (Entered: 05/30/2008)
72 PROPOSED ORDER (Unsigned) re 65 Second MOTION for Preliminary Injunction (Matsumoto, Mari) (Entered: 05/30/2008)
73 RESPONSE, by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song, to 67 MOTION for Extension of Time To File A Response To Plaintiffs' Second Motion For Preliminary Injunction. (Attachments: # 1 Exhibit Redacted Table Provided to Defendants' Counsel 05−23−2008)(Matsumoto, Mari) (Entered: 06/02/2008)
74 REPLY, filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, TO RESPONSE to 64 MOTION for Extension of Time To File A Response To Plaintiff's Second Motion For Class Certification (Diaz, J.) (Entered: 06/03/2008)

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 13 of 20

06/04/2008 06/05/2008 06/09/2008 06/09/2008 06/10/2008 06/12/2008
06/16/2008 06/16/2008 06/20/2008
06/23/2008 06/24/2008
06/27/2008 06/30/2008

75 ORDER granting defendants' 64 Motion for Extension of Time; plaintiffs' 52 Second MOTION to Certify Class is renoted for 6/13/08 by Judge Robert S. Lasnik.(RS) (Entered: 06/05/2008)
76 REPLY, filed by Defendant United States of America, TO RESPONSE to 67 MOTION for Extension of Time To File A Response To Plaintiffs' Second Motion For Preliminary Injunction (Attachments: # 1 Exhibit Declaration of Lyle Jentzer, # 2 Exhibit Declaration of J. Michael Diaz, # 3 Exhibit Declaration of Dietz Lafort)(Diaz, J.) (Entered: 06/05/2008)
77 ORDER regarding dfts' 67 Motion for Extension of Time; plaintiffs' 65 Second MOTION for Preliminary Injunction is renoted for 6/20/2008 by Judge Robert S. Lasnik.(RS) (Entered: 06/09/2008)
78 RESPONSE, by Defendant United States of America, to 52 Second MOTION to Certify Class. (Diaz, J.) (Entered: 06/09/2008)
79 REDACTION to 20 Withdrawal of Motion by Plaintiff Gabriel Ruiz−Diaz. (Gibbs, Robert) (Entered: 06/10/2008)
80 REPLY, filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song, TO RESPONSE to 52 Second MOTION to Certify Class (Attachments: # 1 Exhibit Ex. A, National Immigration Law Center Overview of States' Driver's License Requirements)(Matsumoto, Mari) (Entered: 06/12/2008)
81 NOTICE of Appearance by attorney J. Michael Diaz on behalf of Defendants US Citizenship and Immigration Services, US Department of Homeland Security, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Diaz, J.) (Entered: 06/16/2008)
82 RESPONSE, by Defendant United States of America, to 65 Second MOTION for Preliminary Injunction. (Attachments: # 1 Exhibit Exhibit A in Support of Opposition, # 2 Exhibit Exhibit B in support of Opposition)(Diaz, J.) (Entered: 06/16/2008)
83 REPLY, filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song, TO RESPONSE to 65 Second MOTION for Preliminary Injunction (Matsumoto, Mari) (Entered: 06/20/2008)
84 NOTICE of Supplemental Authority re 82 Response to Motion ; filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Munaf v. Geren)(Diaz, J.) (Entered: 06/23/2008)
85 REPLY by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song to 84 Notice−Other, of Supplemental Authority. (Pauw, Robert) (Entered: 06/24/2008)
86 Second MOTION to Dismiss by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. Oral Argument Requested. (Attachments: # 1 Exhibit A) Noting Date 7/25/2008; (Diaz, J.) (Entered: 06/27/2008)
87 ORDER granting plaintiffs' 52 Second Motion to Certify Class by Judge Robert S. Lasnik.(RS) (Entered: 07/01/2008)

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 14 of 20

07/21/2008 07/25/2008 08/21/2008 09/30/2008 10/09/2008
10/16/2008
10/17/2008 10/20/2008 10/27/2008 10/28/2008
10/31/2008 11/04/2008

88 RESPONSE, by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song, to 86 Second MOTION to Dismiss. (Matsumoto, Mari) (Entered: 07/21/2008)
89 REPLY, filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, TO RESPONSE to 86 Second MOTION to Dismiss (Diaz, J.) (Entered: 07/25/2008)
90 ORDER granting in part 65 Plaintiffs' Second Motion for Preliminary Injunction by Judge Robert S. Lasnik.(TS, ) (Entered: 08/21/2008)
91 MINUTE ORDER Setting Hearing on 86 Second MOTION to Dismiss : Motion Hearing set for 10/28/2008 at 8:30 AM in Courtroom 15106 before Judge Robert S. Lasnik. (KERR) (Entered: 09/30/2008)
92 MOTION for Summary Judgment by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song. (Attachments: # 1 Exhibit Exh. A − USCIS Memo, # 2 Proposed Order) Noting Date 10/31/2008 (Matsumoto, Mari) (Entered: 10/09/2008)
93 NOTICE OF SUPPLEMENTAL AUTHORITY re 86 Second MOTION to Dismiss ; filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song. (Matsumoto, Mari) (Entered: 10/16/2008)
94 NOTICE of Appearance by attorney J. Michael Diaz on behalf of Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Diaz, J.) (Entered: 10/17/2008)
95 NOTICE of Supplemental Authority ; filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Leibman, Melissa) (Entered: 10/20/2008)
96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Exhibit A, # 2 Proposed Order) Noting Date 11/21/2008 (Leibman, Melissa) (Entered: 10/27/2008)
97 MINUTE ENTRY for proceedings held before Judge Robert S. Lasnik− Dep Clerk: Kerry Simonds; Pla Counsel: Robert Pauw, Robert Gibbs and Mari Matsumoto; Def Counsel: Melissa Leibman and Lyle Jentzer; CR: Barry Fanning; Time of Hearing: 8:30 a.m.; Courtroom: 15106; Motion Hearing held on 10/28/2008 re 86 Second MOTION to Dismiss filed by US Department of Justice, Michael Chertoff, Michael B Mukasey, US Department of Homeland Security, US Citizenship and Immigration Services, Emilio Gonzalez, United States of America. After hearing the arguments of counsel, the Court takes this matter under advisement. (KERR) (Entered: 10/28/2008)
98 ORDER denying defendants' 86 Second Motion to Dismiss by Judge Robert S. Lasnik.(RS) (Entered: 11/03/2008)
99 STIPULATION AND PROPOSED ORDER re Briefing Schedule by parties. (Pauw, Robert) (Entered: 11/04/2008)

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 15 of 20

11/06/2008 11/17/2008
11/18/2008 11/18/2008 11/26/2008 12/01/2008
12/11/2008 12/12/2008 12/15/2008

100 ORDER RE BRIEFING SCHEDULE: RE−NOTING 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment, 92 MOTION for Summary Judgment ; Noting Date 12/15/2008 by Judge Robert S. Lasnik. (RS) (Entered: 11/07/2008)
101 Joint MOTION to Amend 98 Order on Motion to Dismiss,by Plaintiffs Cindy Lee Marsh, Gadiel Gomez, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song, Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. Noting Date 11/17/2008 (Leibman, Melissa) (Entered: 11/17/2008)
102 ANSWER to 51 Amended Complaint by United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey.(Leibman, Melissa) (Entered: 11/18/2008)
103 AMENDED ORDER DENYING DFTS' SECOND MOTION TO DISMISS; re 101 joint motion to Amend by Judge Robert S. Lasnik.(RS) (Entered: 11/19/2008)
104 NOTICE of Supplemental Authority re 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment ; filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Exhibit A: Final Rule (Nov. 26, 2008))(Leibman, Melissa) (Entered: 11/26/2008)
105 REPLY, filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song, TO RESPONSE to 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment, 92 MOTION for Summary Judgment (Attachments: # 1 Exhibit EXH A − DECLARATION OF GEDEON, # 2 Exhibit EX B − DECL OF SILVA, # 3 Errata EXH C − DECL OF SAEED, # 4 Errata EXH D − DECL OF WHITMAN, # 5 Exhibit EXH E − DECL OF MENKINS, # 6 Exhibit EXH F − SOCIAL SECURITY PUBLICATION)(Matsumoto, Mari) (Entered: 12/01/2008)
106 MOTION to Continue Pursuant to Rule 56(f) by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Exhibit A: Correspondence, # 2 Exhibit B: Affidavit, # 3 Proposed Order) Noting Date 12/22/2008, (Leibman, Melissa) (Entered: 12/11/2008)
107 NOTICE OF SUPPLEMENTAL AUTHORITY ; filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song. (Attachments: # 1 Exhibit, # 2 Exhibit)(Matsumoto, Mari) (Entered: 12/12/2008)
108 REPLY, filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, TO RESPONSE to 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment, 106 MOTION to Continue Pursuant to Rule 56(f) MOTION to Continue Pursuant to Rule 56(f), 92 MOTION for Summary Judgment (Attachments: # 1 Exhibit A: H−1B Benefit Fraud &Compliance Assessment)(Leibman, Melissa) (Entered: 12/15/2008)

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 16 of 20

12/17/2008 12/17/2008 12/22/2008 12/23/2008 01/21/2009 03/03/2009 03/09/2009 03/09/2009
03/10/2009

109 RESPONSE, by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song, to 106 MOTION to Continue Pursuant to Rule 56(f) MOTION to Continue Pursuant to Rule 56(f). (Matsumoto, Mari) (Entered: 12/17/2008)
110 CERTIFICATE OF SERVICE by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song re 109 Response to Motion,. (Matsumoto, Mari) (Entered: 12/17/2008)
111 REPLY, filed by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, TO RESPONSE to 106 MOTION to Continue Pursuant to Rule 56(f) MOTION to Continue Pursuant to Rule 56(f) (Leibman, Melissa) (Entered: 12/22/2008)
112 SURREPLY filed by Plaintiff Gabriel Ruiz−Diaz re 106 MOTION to Continue Pursuant to Rule 56(f) MOTION to Continue Pursuant to Rule 56(f) (filed by Ruiz−Diaz et al.) (Pauw, Robert) (Entered: 12/23/2008)
113 ORDER by Judge Robert S. Lasnik. This matter comes before the Court on Defendants' Motion for Continuance of Plaintiffs' Motion for Summary Judgment and Cross−Motion for Summary Judgment. Dkt.# 106 . The Court will consider the pending motions for summary judgment, which were noted on the Courts calendar for December 15, 2008, in the normal course. Defendants' motion for a 56(f) continuance regarding the RFRA claim will be considered along with the underlying paper.(CL). (cc: atty L. Jentzer). (Entered: 01/21/2009)
114 MOTION to Amend 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment,by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Proposed Order, # 2 Supplement Supplemental Reply, # 3 Exhibit Exhibits to Supplemental Reply)(Leibman, Melissa) (Entered: 03/03/2009)
115 SUPPLEMENT re 114 MOTION to Amend 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment, MOTION to Amend 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment, by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Exhibit Correction Page)(Leibman, Melissa) (Entered: 03/09/2009)
116 RESPONSE, by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song, to 114 MOTION to Amend 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment, MOTION to Amend 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment,. (Attachments: # 1 Supplement Plaintiffs' Surreply to Defendants' Supplemental Reply Brief, # 2 Exhibit Exhibit A − Deposition Evidence)(Gibbs, Robert) (Entered: 03/09/2009)
117 SUPPLEMENT re 114 MOTION to Amend 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment, MOTION to Amend 96 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment, by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 17 of 20

03/23/2009 04/17/2009 04/22/2009
04/22/2009
04/24/2009 05/04/2009
05/06/2009 06/08/2009
06/08/2009
06/11/2009 06/15/2009 06/26/2009

Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Exhibit E − Correction Page and Signature for Weldon Nisly)(Leibman, Melissa) (Entered: 03/10/2009)
118 ORDER granting pltf's 92 Motion for Summary Judgment and denying dft's 96 cross motion for summary judgment. The parties shall, within twenty days of this Order, conduct a good faith conference regarding the form of order and judgment to be entered in this matter, by Judge Robert S. Lasnik.(cc: L. Jentzer)(VP) (Entered: 03/24/2009)
119 STIPULATION AND PROPOSED ORDER to Modify Briefing Schedule by parties re 118 Order on Motion for Summary Judgment,. (Matsumoto, Mari) (Entered: 04/17/2009)
120 MEMORANDUM filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song re 92 MOTION for Summary Judgment (Attachments: # 1 Proposed Order Proposed Order)(Matsumoto, Mari) (Entered: 04/22/2009)
121 MEMORANDUM re 118 Order on Motion for Summary Judgment, Proposed Order and Proposed Notice to Class by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Exhibit Proposed Notice to Class)(Leibman, Melissa) (Entered: 04/22/2009)
122 STIPULATION AND ORDER to modify briefing schedule by Judge Robert S. Lasnik. (RS) (Entered: 04/24/2009)
123 RESPONSE by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song re 121 Memorandum,. (Matsumoto, Mari) (Entered: 05/04/2009)
124 RESPONSE by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey re 120 Memorandum,. (Leibman, Melissa) (Entered: 05/06/2009)
125 NOTICE of Supplemental Authority re 120 Memorandum, ; filed by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song. (Attachments: # 1 Exhibit Exh. A − USCIS Memo May 2009)(Matsumoto, Mari) (Entered: 06/08/2009)
126 CERTIFICATE OF SERVICE by Plaintiffs Cindy Lee Marsh, Peter Gillette, Saleck Ould Dah Ould Sidine, Pablo Sandoval, Yuriy Kasyanov, Lelia Tenreyro−Viana, Edgardo Gaston Romero Lacuesta, Rosario Razo Romero, Youn Su Nam, Harold Michael Carl Lapian, Land of Medicine, Ukrainian Autocephalous Orthodox Church, Seattle Mennonite Church, Gabriel Ruiz−Diaz, Hyun Sook Song re 125 Notice−Other, Notice of Supplemental Authority. (Matsumoto, Mari) (Entered: 06/08/2009)
127 ORDER DIRECTING ENTRY OF JUDGMENT by Judge Robert S. Lasnik. (Attachments: # 1 Attachment)(RS) (Entered: 06/11/2009)
128 JUDGMENT BY COURT in favor of plaintiffs and against defendants (RS) (Entered: 06/15/2009)
129 NOTICE of Compliance re 127 Order, by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security,

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 18 of 20

07/22/2009 08/07/2009 08/07/2009 08/07/2009 08/10/2009 08/10/2009 08/12/2009
08/12/2009 09/08/2009 07/07/2010 08/20/2010

US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Exhibit A − Letter Sent with Notices, # 2 Exhibit B− June 25, 2009 USCIS Memorandum)(Leibman, Melissa) (Entered: 06/26/2009)
130 NOTICE of Compliance (Supplemental) re 127 Order, 129 Notice of Compliance,, by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Exhibit USCIS Declaration)(Leibman, Melissa) (Entered: 07/22/2009)
131 NOTICE OF APPEAL (09−35734) as to 127 Order, 128 Judgment by Court, 118 Order on Motion for Summary Judgment, by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey. (Attachments: # 1 Exhibit Judgment and Orders)(Leibman, Melissa) Modified on 8/12/2009 (SA). (Entered: 08/07/2009)
132 Civil Appeals Docketing Statement by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, to be transmitted by Clerk to Circuit Court of Appeals. (Attachments: # 1 Exhibit Judgment and Orders, # 2 Exhibit Representation Statement)(Leibman, Melissa) (Entered: 08/07/2009)
133 REPRESENTATION STATEMENT, by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey, (re: 131 Notice of Appeal,.) (Leibman, Melissa) (Entered: 08/07/2009)
Appeal Fees not required; Government Agency: re 131 Notice of Appeal, filed by US Department of Justice, Michael Chertoff, Michael B Mukasey, US Department of Homeland Security, US Citizenship and Immigration Services, Emilio Gonzalez, United States of America (LMK) (Entered: 08/10/2009)
134 APPEAL NOTIFICATION packet sent to US Court of Appeals re 131 Notice of Appeal, (Attachments: # 1 Docket)(LMK) (Entered: 08/10/2009)
135 TIME SCHEDULE ORDER as to 131 Notice of Appeal, filed by US Department of Justice, Michael Chertoff, Michael B Mukasey, US Department of Homeland Security, US Citizenship and Immigration Services, Emilio Gonzalez, United States of America : Appellant shall notify Appellee regarding transcripts by 9/8/09; Transcript by court reporter due by 10/6/09; Appellants opening brief due by 11/23/09; Appellees response brief due by 12/22/09; Appellants optional reply brief due within 14 days of service of the response brief. (SA) (Entered: 08/12/2009)
USCA Case Number 09−35734 for 131 Notice of Appeal, filed by US Department of Justice, Michael Chertoff, Michael B Mukasey, US Department of Homeland Security, US Citizenship and Immigration Services, Emilio Gonzalez, United States of America. (SA) (Entered: 08/12/2009)
136 TRANSCRIPT REQUEST by Defendants United States of America, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, Emilio Gonzalez, Michael Chertoff, Michael B Mukasey for proceedings held on no dates Requesting Attorney: Melissa Leibman. (Attachments: # 1 Exhibit No Transcripts to be Ordered)(Leibman, Melissa) (Entered: 09/08/2009)
137 ORDER of USCA (09−35734) as to 131 Notice of Appeal, filed by US Department of Justice, Michael Chertoff, Michael B Mukasey, US Department of Homeland Security, US Citizenship and Immigration Services, Emilio Gonzalez, United States of America The parties are requested to be prepared to discuss the following questions at oral argument: SEE ORDER FOR FURTHER INSTRUCTION. (SA) (Entered: 07/07/2010)
138 OPINION of USCA (09−35734−NOT THE MANDATE) as to 131 Notice of Appeal, filed by US Department of Justice, Michael Chertoff, Michael B Mukasey,

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 19 of 20

10/14/2010 11/03/2010 12/02/2010
12/03/2010 12/09/2010 12/14/2010 01/10/2011
01/28/2011
02/11/2011
05/10/2011 05/11/2011 07/08/2011

US Department of Homeland Security, US Citizenship and Immigration Services, Emilio Gonzalez, United States of America; REVERSED AND REMANDED. (LMK) (Entered: 08/23/2010)
139 MANDATE of USCA (09−35734) as to 131 Notice of Appeal, filed by US Department of Justice, Michael Chertoff, Michael B Mukasey, US Department of Homeland Security, US Citizenship and Immigration Services, Emilio Gonzalez, United States of America, The judgment of this Court, entered 8/20/10, takes effect this date. REVERSED AND REMANDED. (SA) (Entered: 10/14/2010)
140 ORDER REQUIRING SUBMISSION OF JOINT STATUS REPORT; Joint Status Report due by 12/3/2010, by Judge Robert S. Lasnik. (RS) (Entered: 11/03/2010)
141 MOTION for Summary Judgment by Plaintiffs Peter Gillette, Gadiel Gomez, Yuriy Kasyanov, Land of Medicine, Harold Michael Carl Lapian, Cindy Lee Marsh, Youn Su Nam, Saleck Ould Dah Ould Sidine, Rosario Razo Romero, Edgardo Gaston Romero Lacuesta, Gabriel Ruiz−Diaz, Pablo Sandoval, Seattle Mennonite Church, Hyun Sook Song, Lelia Tenreyro−Viana, Ukrainian Autocephalous Orthodox Church. (Attachments: # 1 Proposed Order) Noting Date 12/24/2010, (Pauw, Robert) (Entered: 12/02/2010)
142 JOINT STATUS REPORT signed by all parties estimated Trial Days: N/A.. (Leibman, Melissa) (Entered: 12/03/2010)
143 STIPULATION AND PROPOSED ORDER Extending the Briefing Schedule by parties re 141 MOTION for Summary Judgment. (Leibman, Melissa) (Entered: 12/09/2010)
144 STIPULATION AND ORDER AMENDING BRIEFING SCHEDULE AND NOTING DATES RE MOTIONS FOR SUMMARY JUDGMENT; RE−NOTING 141 MOTION for Summary Judgment ; Noting Date 2/11/2011, by Judge Robert S. Lasnik. (RS) (Entered: 12/15/2010)
145 Cross MOTION for Summary Judgment and Response to Plaintiffs' Motion for Summary Judgment by Defendants Michael Chertoff, Emilio Gonzalez, Michael B Mukasey, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, United States of America. (Attachments: # 1 Proposed Order) Noting Date 2/11/2011, (Leibman, Melissa) (Entered: 01/10/2011)
146 RESPONSE, by Plaintiffs Peter Gillette, Gadiel Gomez, Yuriy Kasyanov, Land of Medicine, Harold Michael Carl Lapian, Cindy Lee Marsh, Youn Su Nam, Saleck Ould Dah Ould Sidine, Rosario Razo Romero, Edgardo Gaston Romero Lacuesta, Gabriel Ruiz−Diaz, Pablo Sandoval, Seattle Mennonite Church, Hyun Sook Song, Lelia Tenreyro−Viana, Ukrainian Autocephalous Orthodox Church, to 145 Cross MOTION for Summary Judgment and Response to Plaintiffs' Motion for Summary Judgment. (Pauw, Robert) (Entered: 01/28/2011)
147 REPLY, filed by Defendants Michael Chertoff, Emilio Gonzalez, Michael B Mukasey, US Citizenship and Immigration Services, US Department of Homeland Security, US Department of Justice, United States of America, TO RESPONSE to 141 MOTION for Summary Judgment (Attachments: # 1 Exhibit A: Declaration and I−360 Petition Statistics, # 2 Exhibit B: Visa Statistics)(Leibman, Melissa) (Entered: 02/11/2011)
148 ORDER denying pltfs' 141 Motion for Summary Judgment; granting dfts' 145 Cross Motion for Summary Judgment by Judge Robert S. Lasnik.(RS)(cc: atty Lyle D Jentzer) (Entered: 05/11/2011)
149 JUDGMENT BY COURT, Judgment is entered in favor of defendants and against plaintiffs.(CL) (Lyle D Jentzer) (Entered: 05/11/2011)
150 NOTICE OF APPEAL (11−35580) as to 148 Order on Motion for Summary Judgment, 149 Judgment by Court by Plaintiffs Peter Gillette, Gadiel Gomez, Yuriy Kasyanov, Land of Medicine, Harold Michael Carl Lapian, Cindy Lee Marsh, Youn Su Nam, Saleck Ould Dah Ould Sidine, Rosario Razo Romero, Edgardo Gaston Romero Lacuesta, Gabriel Ruiz−Diaz, Pablo Sandoval, Seattle Mennonite Church, Hyun Sook Song, Lelia Tenreyro−Viana, Ukrainian

Case: 2:07-cv-1881 As of: 06/21/2013 08:06 PM PDT 20 of 20

07/08/2011
10/05/2012 11/26/2012
11/28/2012

Autocephalous Orthodox Church. Filing Fee $455, Receipt number 0981−2486350. (Pauw, Robert) Modified on 7/11/2011; added CCA case number (LMK). (Entered: 07/08/2011)
151 REPRESENTATION STATEMENT, by Plaintiffs Peter Gillette, Gadiel Gomez, Yuriy Kasyanov, Land of Medicine, Harold Michael Carl Lapian, Cindy Lee Marsh, Youn Su Nam, Saleck Ould Dah Ould Sidine, Rosario Razo Romero, Edgardo Gaston Romero Lacuesta, Gabriel Ruiz−Diaz, Pablo Sandoval, Seattle Mennonite Church, Hyun Sook Song, Lelia Tenreyro−Viana, Ukrainian Autocephalous Orthodox Church, (re: 131 Notice of Appeal, 150 Notice of Appeal,,.) (Pauw, Robert) (Entered: 07/08/2011)
152 ORDER of USCA (11−35580−NOT THE MANDATE) as to 150 Notice of Appeal; AFFIRMED. (LMK) (Entered: 10/05/2012)
153 ORDER AND AMENDED OPINION of USCA (NOT THE MANDATE 11−35580) as to 150 Notice of Appeal,, filed by Ukrainian Autocephalous Orthodox Church, Pablo Sandoval, Gabriel Ruiz−Diaz, Land of Medicine, Hyun Sook Song, Seattle Mennonite Church, Youn Su Nam, Yuriy Kasyanov, Lelia Tenreyro−Viana, Harold Michael Carl Lapian, Edgardo Gaston Romero Lacuesta, Peter Gillette, Saleck Ould Dah Ould Sidine, Gadiel Gomez, Cindy Lee Marsh, Rosario Razo Romero AFFIRMED. (SA) (Entered: 11/26/2012)
154 MANDATE of USCA (11−35580) as to 150 Notice of Appeal,, filed by Ukrainian Autocephalous Orthodox Church, Pablo Sandoval, Gabriel Ruiz−Diaz, Land of Medicine, Hyun Sook Song, Seattle Mennonite Church, Youn Su Nam, Yuriy Kasyanov, Lelia Tenreyro−Viana, Harold Michael Carl Lapian, Edgardo Gaston Romero Lacuesta, Peter Gillette, Saleck Ould Dah Ould Sidine, Gadiel Gomez, Cindy Lee Marsh, Rosario Razo Romero. The judgment of this Court, entered October 05, 2012, takes effect this date. AFFIRMED. (SA) (Entered: 11/28/2012)

 
 Law Offices
Gibbs Houston Pauw
1000 Second Avenue Suite 1600 Seattle WA 98104 (206) 682-1080 FAX (206) 689 2270 www.ghp-law.net
November 27, 2007

Robert H. Gibbs Robert Pauw
Neha Chandola Mari Matsumoto

CLASS ACTION LAWSUIT FILED OVER USCIS REFUSAL TO ACCEPT CONCURRENT FILINGS OF ADJUSTMENT OF STATUS APPLICATIONS FOR RELIGIOUS WORKERS

USCIS’s refusal to accept concurrent adjustment of status applications for

special immigrant religious workers is being challenged in a national class action

filed in Seattle on November 23, 2007. Ruiz-Diaz, et al. v. USA, et al., No.

C07-1881 RSL (W.D. Wash.).

Agency policy is to accept “concurrent filing” for family-based and other

employment- based permanent resident applications, but not for religious

workers. Concurrent filing of the underlying visa petition with the adjustment

application, would make it possible for the religious worker and family members

to continue to reside and work in the U.S. beyond the five year limitation on non-

immigrant religious workers, while the agency works through the necessary

investigation of the application. Under current agency practice, CIS adjudication

of the underlying visa petition often takes so long that the five years in

nonimmigrant status expires before the applicant can submit the second stage

application for adjustment of status, thus forcing him/her to stop work and depart

the United States.

The agency policy is challenged as violating the constitutional protections of freedom of religion, equal protection and due process, as well as the Religious Freedom Restoration Act, and the Immigration and Nationality Act.
Named plaintiffs include Gabriel Ruiz-Diaz who is employed by the Church of the Nazarene; Cindy Lee Marsh, employed by the Impact Church International; Hyun Sook Song, employed by the Zion Castle Church; and Gadiel Gomez, employed by the Central Presbyterian Church.
Class certification is sought for a national class of individuals and their derivative family members, who are in the United States, who are beneficiaries of an I-360 Petition that has been filed, or will be filed, and who would be eligible to apply for adjustment of status, but for the refusal of the agency to accept concurrent filing of the I-485 adjustment application.
Plaintiffs’ class counsel previously successfully litigated an individual case in Seattle that required CIS to accept a concurrently filed adjustment application for a religious worker. Hillcrest Baptist Church v. USA, No. 06-1042Z (Feb. 23, 2007). The court found the agency policy to violate the equal protection and due process protections of the Constitution. The agency did not appeal the decision.
Religious workers who meet the class definition do not need to take any specific action in order to be included in the class, and benefit by any court orders entered in this case. Potential class members or their counsel should contact class counsel for an intake form.
Class counsel are particularly interested in talking with counsel who have clients whose R-1 fifth year will expire soon.

For further information, contact class counsel: Robert Pauw or Robert Gibbs at 206-682-1080.; rpauw@ghp-law.net or rgibbs@ghp-law.net.

 
 RELIGIOUS WORKER CLASS ACTION INTAKE FORM
Ruiz‐Diaz v. U.S., No. 07‐1881 RSL (W.D. Wash.)
The information on this form will be kept confidential, and not disclosed to the court of the Department of Homeland Security without permission. Submission of the form is solely so the law firm can gather information about possible class members, and communicate in the event of important developments. Please complete this intake form and fax or email it to Robert Pauw/Robert Gibbs, rpauw@ghp‐law.net; rgibbs@ghp‐law.net ; 206‐ 689‐2270 (fax).
1. Name_______________________________________________________
2. A number______________________ Date of birth__________________
3. Nationality__________________________________________________
4. Address_____________________________________________________
5. Phones(cell, home, work)______________________________________
6. Email _______________________________________________________
7. Attorney name and email ______________________________________
8. Are you married or single? _____________________________________
9. Children’s ages and citizenship _________________________________
10. Religious Employer __________________________________________
11. Location (City) ______________________________________________
12. Denomination _______________________________________________

13. Job title ____________________________________________________ 14. Date you started in R‐1 status__________________________________ 15. Are you currently in R‐1 status and working for the approved
employer? __________________________________________________ 16. Date your five years of R‐1 status will end _______________________ 17. I‐360 filing date and receipt number ____________________________ 18. Any reported problems with the adjudication of the I‐360?
____________________________________________________________ 19. Does your wife and/or child(ren) need work authorization? _______

 
 618 F.3d 1055 (2010)
Gabriel RUIZ-DIAZ; Hyun Sook Song; Cindy Lee Marsh; Peter Gillette; Saleck Ould Dah Ould Sidine; Pablo Sandoval; Yuriy Kasyanov; Lelia
Tenreyro-Viana; Edgardo Gaston Romero Lacuesta; Rosario Razo Romero; Youn Su Nam; Harold Michael Carl Lapian; Land of Medicine; Ukrainian Autocephalous Orthodox Church; Seattle Mennonite Church,
Plaintiffs-Appellees, v.
UNITED STATES of America; United States Citizenship and Immigration Services; United States Department of Homeland Security; United States
Department of Justice; Michael Aytes, Acting Deputy Director of Citizenship and Immigration Services; Janet Napolitano, Secretary of Department of Homeland Security; Eric H. Holder, Jr., Attorney General,
Defendants-Appellants.
No. 09-35734.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 12, 2010. Filed August 20, 2010.
1056*1056 Melissa S. Leibman, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for the defendants-appellants.
Robert Pauw, Gibbs Houston Pauw, Seattle, WA, for the plaintiffs-appellees.
1057*1057 Before: PAMELA ANN RYMER and N. RANDY SMITH, Circuit Judges, and DONALD E. WALTER, Senior District Judge.[*]
OPINION
RYMER, Circuit Judge:

We must decide whether a regulation providing that alien beneficiaries of special immigrant religious worker visa petitions may file an application for adjustment of status only when their visa petition has been approved, 8 C.F.R. § 245.2(a)(2)(i)(B), is a permissible construction of 8 U.S.C. § 1255(a).[1] Section 1255(a) provides that the status of an alien who has been inspected and admitted or paroled into the United States may be adjusted by the Attorney General[2] if the alien makes an application, is eligible to receive an immigrant visa, and an immigrant visa is immediately available when he applies.
Gabriel Ruiz-Diaz represents a class of alien beneficiaries of special immigrant religious worker visa petitions, and organizations that employ religious workers, who maintain that the regulation is invalid under the statute. The district court agreed, granting summary judgment for Ruiz-Diaz. It reasoned that in § 1255(a), Congress clearly determined which aliens are eligible to apply for adjustment of status — those who are "inspected and admitted or paroled" — and the regulation prevents otherwise eligible aliens from submitting an application because they don't meet a requirement that is not in the statute: having an approved visa petition. The court also rejected the government's position that § 245.2(a)(2)(i)(B) simply regulates the application process under § 1255(a)(1), holding instead that the regulation unreasonably interprets "immediately available" as meaning two different things — that a visa number is available when the application is filed (in the case of family and higher preference employment-based beneficiaries), and that an alien must be eligible for immediate assignment of a visa number, i.e., the petition has already been approved (in the case of special immigrant employment-based beneficiaries). Accordingly, after granting summary judgment for Ruiz-Diaz and declaring the bar against concurrent filings in 8 C.F.R. § 245.2(a)(2)(i)(B) invalid, the court issued a permanent injunction requiring the government to accept as properly filed adjustment of status applications for religious workers filed concurrently with visa petitions. The government appealed.
Applying Chevron's two-step analysis,[3] we conclude that the statute is silent on the timing of visa petitions and applications for adjustment of status. Congress conferred discretion on the Attorney General to devise regulations to implement1058*1058 § 1255(a), and we cannot say that the agency's interpretation in 8 C.F.R. § 245.2(a)(2)(i)(B) is arbitrary, capricious, or manifestly contrary to the statute. This being so, we reverse the judgment and vacate the injunction. However, other claims that were mooted by the district court's ruling now present a live controversy, so we remand for further proceedings.[4]
I

Up to 5000 special immigrant visas may be granted to religious workers each year.[5] 8 U.S.C. § 1153(b)(4); 8 U.S.C. § 1101(a)(27)(C). This type of special immigrant visa is for ministers, religious workers in a professional capacity in a religious vocation or occupation, and religious workers in a religious vocation or occupation as defined in § 1101(a)(27)(C). A person seeking a special immigrant religious worker visa may be overseas or in the United States. Many such individuals who are already present in this country are on a nonimmigrant visa (R-1 visa). 8 U.S.C. § 1101(a)(15)(R); 8 C.F.R. § 214.2(r). As with all nonimmigrant visas, the R-1 is issued for a definite duration; a non-immigrant religious worker who holds an R-1 visa may stay for a maximum of five years. 8 U.S.C. § 1101(a)(15)(R)(ii); 8 C.F.R. § 214.2(r)(4)-(6). The alien must depart when the five-year period has expired, unless he has sought to adjust status prior to the R-1 visa's expiration.[6] If he does none of these things, the alien's status will be unlawful and he may begin to accrue an unlawful presence. See 8 U.S.C. § 1255(k). If the alien accrues a period of unlawful presence of more than 180 days, he will be statutorily ineligible for adjustment of status and United States Citizenship and Immigration Services will deny his application. 8 U.S.C. § 1255(c), (k).
A religious organization employer sets the process of obtaining a special immigrant religious worker visa in motion by filing a Form I-360 Petition for Special Immigrant.[7] To qualify, religious workers must have been engaged in the work for which they are applying for at least two years prior to filing the petition. 8 U.S.C. § 1101(a)(27)(C)(iii). The petition is the alien's opportunity to show that he or she may be classified in one of the family or employment preference categories identified in § 1153. Kyung Park v. Holder, 572 F.3d 619, 622 (9th Cir.2009). All special immigrants, including religious workers, are in the fourth preference employment-based category. Id. § 1153(b)(4).
Apart from filing the petition, an alien seeking to adjust status to that of a lawful permanent resident must apply for adjustment of status. This would be on a Form I-485 Application to Register Permanent Residence or Adjust Status. This case involves adjustment of status.
The governing statute is § 1255(a), which allows an alien who has been admitted1059*1059 or paroled into the United States to adjust status in the discretion of the agency, and under regulations the agency may prescribe, if (1) the alien makes an application; (2) the alien is eligible to receive a visa; and (3) a visa is immediately available. In full, § 1255(a) provides:
The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA selfpetitioner may be adjusted by the Attorney General, in his discretion and under such

regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
8 U.S.C. § 1255(a). An alien is "eligible to receive an immigrant visa" if he is eligible to be classified for a family or employment-based visa. See 8 U.S.C. § 1153. An alien is "admissible to the United States for permanent residence" if he is not inadmissible under the grounds listed in § 1182(a). And an immigrant visa is "immediately available" if the priority date for the preference category is current according to the United States Department of State Visa Bulletin issued for the month in which the application for adjustment of status is filed. 8 C.F.R. §§ 245.1(g)(1), 245.2(a)(2)(i)(B). The priority date is fixed on the date when an approved visa petition is filed. 8 C.F.R. § 245.1(g)(2).
8 C.F.R. § 245.2(a)(2)(i)(B) was promulgated on July 31, 2002 as an interim rule to improve efficiency and customer service for certain alien workers filing Form I-140 petitions. Prior to its promulgation, all alien workers were required to obtain approval of the underlying visa petition before applying for adjustment of status.[8]See Allowing in Certain Circumstances for the Filing of Form I-140 Visa Petition Concurrently with a Form I-485 Application, 67 Fed.Reg. 49,561, 49,561 (July 31, 2002). The regulation changed that practice for alien workers in the first three employment-based preference categories, allowing them to file a visa petition and application for adjustment of status at the same time; special immigrant visa applicants — including religious workers — may still only file a Form I-485 Application to Adjust Status with an approved Form I-360 Petition for Special Immigrant. In its final form, the regulation provides:
If, at the time of filing, approval of a visa petition filed for classification under section 201(b)(2)(A)(i),[9] section 203(a)[10] 1060*1060 or section 203(b)(1), (2), or (3)[11] of the Act would make a visa immediately available to the alien beneficiary, 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 contained in parts 103 and 245. For any other classification, the alien beneficiary may file the adjustment application only after the Service has approved the visa petition.
8 C.F.R. § 245.2(a)(2)(i)(B) (footnotes added).
II

We review whether the regulation conflicts with the statute under the two-part test set out in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under step one, we ask whether Congress has spoken to the question. If Congress has done so unambiguously, we accept its statement as controlling. But if Congress has not spoken to the precise issue because the statute is either silent or ambiguous, we go to step two and consider whether the agency's interpretation is a reasonable, permissible construction of the statute. If it is, we defer to the agency. Escobar v. Holder, 567 F.3d 466, 472 (9th Cir.2009); Bona v. Gonzales, 425 F.3d 663, 668 (9th Cir.2005). When, as here, Congress has expressly conferred authority on the agency to implement a statute by regulation, the regulations have "controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. This is particularly true in the immigration context "for executive officials `exercise especially sensitive political functions that implicate questions of foreign relations.'" Negusie v. Holder, ___ U.S. ___, 129 S.Ct. 1159, 1164, 173 L.Ed.2d 20 (2009) (quoting INS v. Abudu, 485 U.S. 94, 100, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)).
Ruiz-Diaz submits that Congress intended for § 1255(a) to provide the full eligibility criteria for filing an application for adjustment of status, and that the regulation contravenes this intent by redefining who is eligible to apply. As he points out, we held in Bona v. Gonzales, 425 F.3d 663 (9th Cir.2005), that § 1255(a) unambiguously defines who is eligible — those who have been "admitted or paroled" into the country — and that a regulation which deemed a paroled alien an "arriving alien" regardless of his parole status was invalid. Id. at 667-70. However, a similar question is not presented here. Unlike the regulation at issue in Bona, § 245.2(a)(2)(i)(B) does not affect who is eligible to apply. Any alien "admitted or paroled" into the United States may apply for adjustment if he is eligible to be classified for a visa and a visa number is current when his application is filed. Thus, the statutory criteria for eligibility are intact.
For this reason, we disagree with the district court that the statute clearly speaks to the precise issue presented. Rather, we conclude at Chevron step one that the statute is silent with respect to when visa petitions and applications for adjustment of status may be accepted and processed in relation to each other. It 1061*1061 says nothing at all about whether they must, or may, be filed concurrently or consecutively, or in what order.
Given congressional silence on the issue of timing, we must decide at Chevronstep two whether the agency's approach is a permissible construction of the statute. In this connection, we note that § 1255(a) confers discretion on the Attorney General to adjust status "under such regulations he may prescribe." Thus, Congress expressly manifested its

intent that the agency regulate the process by which status will be adjusted except for three statutory prerequisites: (1) the alien must make an application; (2) the alien must be eligible to receive an immigrant visa and be admissible; and (3) an immigrant visa must be immediately available to the alien at the time he applies. As the Court stated in Chevron, "[w]e have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer...."467 U.S. at 844, 104 S.Ct. 2778. Thus, we must determine not how we would interpret the statute, but whether the agency's interpretation is reasonable.
Ruiz-Diaz and the district court posit that it is unreasonable for the agency to interpret the same words in the third condition — that an immigrant visa be "immediately available" — differently depending upon the class of worker. In their view, the agency impermissibly interpreted this phrase on the one hand to mean that higher preference workers who do not have an approved visa petition may file for adjustment of status, and on the other hand to mean that religious workers who do not have an approved visa petition may not file for adjustment of status. However, with regard to question before us — whether the agency impermissibly requires alien beneficiaries of special immigrant visa petitions to apply for adjustment of status only after their visa petition is approved — we conclude that the agency's interpretation of the statute is reasonable. Section 1255(a)(3) does not prohibit consecutive filing. Beyond this, the agency has already construed the term "immediately available" in 8 C.F.R. § 245.1(g)(1), which defines the term to mean that the immigrant's priority date for a visa number is current. An application to adjust status may be accepted for filing and processing if the applicant's place on the waiting list is earlier than the date shown in the State Department's Visa Bulletin. Id. For applicants with previously approved visa petitions, their place in the queue is apparent at the time of filing. 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 and processing only when they have a visa in hand, thus making it obvious that the visa number is "immediately available."
Ruiz-Diaz's real concern is that USCIS does not process the petition for a special immigrant religious worker visa soon enough for it to do many of them any good. It takes time for visa petitions to work their way through the system; the government estimates five-six months on average, though in individuals cases it may take longer. From Ruiz-Diaz's perspective the problem is compounded for those religious workers who are present in the country on R-1 non-immigrant visas, because they do not get the benefit of a stay that comes with filing an application for adjustment of status, 8 U.S.C. § 1255(k), and must depart the country when their R-1 visas expire. It is this conundrum that led Ruiz-Diaz to challenge the regulation.

He claims that religious workers such as he who are eligible to apply for adjustment of status will accrue more than 180 days of 1062*1062 unlawful presence while waiting for their visa petitions to be approved. As a practical matter, Ruiz-Diaz contends, the effect is to disable these particular alien beneficiaries from adjustment of status even though they are otherwise eligible under the statute. To Ruiz-Diaz delay is in effect denial. Therefore, he maintains, it is not permissible for the agency to deny applications in this manner. Unfortunate though this consequence may be for the individuals involved, § 1255(a) does not address the speed with which the agency must process petitions. We cannot say that it is unreasonable for the agency to determine that visa petitions for alien beneficiaries of special immigrant religious worker visas must be approved before an application for adjustment of status may be filed and processed.
The parties make additional arguments in support of their positions that we decline to reach. For example, the government suggests that its regulation is justified to reduce fraud in the Special Immigrant Religious Worker Visa Program, and Ruiz-Diaz contends that the regulation offends the Equal Protection Clause and the Religious Freedom Restoration Act. The district court did not consider these claims because its disposition effectively mooted them. Our disposition, however, revives them. We express no opinion on their merits, which we leave to the district court in the first instance.
Having decided that the regulation withstands Chevron review, we reverse the judgment and vacate the injunction. We remand for such other proceedings as the district court deems appropriate.
REVERSED AND REMANDED.
[*] The Honorable Donald E. Walter, Senior United States District Judge for Western Louisiana, sitting by designation.
[1] By contrast, the regulation permits alien beneficiaries of family and higher preference employment-based petitions to file an application to adjust status concurrently with their visa petition.
[2] In May 2006, the Attorney General transferred authority over adjustment of status applications for arriving aliens to the Department of Homeland Security (DHS). See 8 C.F.R. §§ 245.2(a)(1), 1245.2(a)(1) (2006). In general, we refer to the Attorney General because it was he who promulgated the regulation.
[3] Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
[4] Ruiz-Diaz also asserted claims that the regulation violated the Due Process and the Equal Protection Clauses, the First Amendment, and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, et seq.
[5] In addition to religious workers, special immigrant visas are made available to a number of different types of employment-based immigrants, described in 8 U.S.C. § 1101(a)(27), in an amount not to exceed 7.1 percent of the yearly worldwide limit of employment-based immigrant visas. 8 U.S.C. § 1153(b)(4).

[6] An alien who leaves the United States may apply for a different non-immigrant visa or an immigrant visa from abroad.
[7] Aliens applying based on family relationships file a Petition for Alien Relative (Form I-130), and applicants applying based on employment in the first three employment-based preference categories file a Petition for Alien Worker (Form I-140).
[8] Initially, all aliens seeking adjustment of status were permitted to file the visa petition concurrently with the application for adjustment of status. However, on August 9, 1991, the agency promulgated an interim rule requiring employment-based immigrants to obtain an approved visa petition before applying for adjustment of status. Adjustment of Status to That of Person Admitted for Permanent Residence, 56 Fed.Reg. 37,864, 37,864 (Aug. 9, 1991). The rule did not affect immediate relatives and aliens in family-based preference classes filing under §§ 201(b)(2)(A)(i) and 203(a), respectively, who were still permitted to file concurrently. The final rule was issued on October 2, 1991. 56 Fed.Reg. 49,839, 49,839 (Oct. 2, 1991).
[9] INA § 201(b)(2)(A)(i) pertains to immediate relatives (children, spouses and parents) of United States citizens. See 8 U.S.C. § 1151(b)(2)(A)(i).
[10] INA § 203(a) provides for other family members such as unmarried sons and daughters of a United States citizen over the age of 21, spouses and unmarried sons and daughters of legal permanent residents, married sons and daughters of United States citizens, and brothers and sisters of United States citizens. See 8 U.S.C. § 1153(a).
[11] INA § 203(b)(1) applies to immigrants with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers. See 8 U.S.C. § 1153(b)(1). Section 203(b)(2) covers immigrants who are members of professions holding advanced degrees or of exceptional ability. See id. § 1153(b)(2). Section 203(b)(3) concerns skilled workers, professionals, and other qualified immigrants capable of performing unskilled labor for which qualified workers are not available in the United States. See id. § 1153(b)(3).