2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-26-2004

Soltane v. US Dept Justice

Precedential or Non-Precedential: Precedential

Docket No. 03-1626

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

____________

No. 03-1626

____________

CAMPHILL SOLTANE,

Appellant

 

v.

US DEPARTMENT OF JUSTICE;

IMMIGRATION &

NATURALIZATION SERVICE

 ___________________

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

District Court Judge: Honorable Herbert

J. Hutton

(Civil Action No. 02-0727)

________________

Argued: December 5, 2003

Before: SLOVITER and ALITO, Circuit

Judges, and OBERDORFER, District

Judge*

(Opinion Filed: August 26, 2004)

LAWRENCE H. RUDNICK (Argued)

1608 Walnut Street, Suite 1500

Philadelphia, PA 19103

Counsel for Appellant

PATRICK L. MEEHAN

LAURIE MAGID

VIRGINIA A. GIBSON

SUSAN R. BECKER (Argued)

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

 ____________________

OPINION OF THE COURT

____________________

ALITO, Circuit Judge:

Camphill Soltane (“Camphill”)

appeals a final order of the United States

District Court for the Eastern District of

Pennsylvania affirming the denial of

Camphill’s visa petition on behalf of an

employee sought to be classified as a

“special immigrant religious worker.”

Because that denial was predicated on

legal error and improper findings of

evidentiary deficiency, we vacate the

judgment of the District Court and remand

this case for reconsideration by the agency.

I.

Camphill Soltane is a non-profit

organization, dedicated to providing

services to young adults with mental

disabilities. Rooted in “Anthroposophy”

and the teachings of Rudolph Steiner,

 

*

 The Honorable Louis F. Oberdorfer,

Senior District Judge for the District of

Columbia, sitting by designation.
2

Camphill seeks to create a spiritual

community through cooperative life, social

interaction, and spiritual activity. “The

Camphill Movement is focused on

Christianizing the ordinary aspects of life

for the mentally handicapped as well as for

the fully able members of the community

. . . .” Appellant Br. at 6.

Since 1996, the Chester County

facility of Camphill has employed

Annagret Goetze, a citizen and native of

Germany. Goetze was originally admitted

into the United States in the R-1

classification as a nonimmigrant religious

worker. In 2000, Camphill filed an I-360

immigrant visa petition on behalf of

Goetze with the Immigration and

Naturalization Service (INS).1 This

petition sought to have Goetze classified

as a special immigrant religious worker so

that she could serve in the proposed

position of houseparent, music instructor,

and religious instructor at the Camphill

facility. 

The Vermont Servicing Center of

the INS made a request for further

evidence showing that Goetze had two

years of experience in a religious

occupation and that she had received

specific religious training. App. I at 32.

Camphill responded with explanations of

the training process and the religious

nature of the position, see App. II at 59-61,

as well as a set of literature (some

authored by Steiner) that discussed

Anthroposophy and the “Camphill

Movement” and was presumably

submitted as representative training

material. See App. II at 62-146.2

Notwithstanding the supplemental

submissions, the INS denied Camphill’s

petition in February 2001, finding that

Camphill had failed to establish that

Goetze was to be employed in a religious

occupation, as required under the

regulations. App. I at 31.

Camphill filed a timely appeal with

the Administrative Appeals Unit. In

December 2001, a final administrative

de cisio n wa s rend ered b y the

Administrative Appeals Office (AAO) of

the INS. Reviewing the record de novo,

the AAO affirmed on four independent

grounds, any one of which alone could

have justified the denial: (1) Camphill did

not qualify as a religious organization as

required by 8 U.S.C. § 1101(a)(27)(C); (2)

the proposed position of houseparent was

neither a religious occupation nor a

religious vocation; (3) there was

insufficient evidence to determine whether

Goetze had worked in a religious position

for two years preceding the petition; and

(4) Camphill provided insufficient

evidence to prove that there was a

 

1The INS has ceased to exist as of

March 1, 2003, and has been replaced by

the Bureau of Citizenship and Immigration

Services. We nevertheless use the term

INS throughout this opinion (as do the

briefs) for the sake of consistency.

 

2

For example, App. II at 86 is a sheet

labeled “Study Material” listing several

sources, some of which appear to be

included in the administrative record. 
3

qualifying tender of a job to Goetze.

Camphill appealed for review of the

AAO decision in the Eastern District of

Pennsylvania, under the Administrative

Procedure Act (APA). In February 2003,

the District Court entered judgment against

Camphill, affirming the AAO decision on

all four grounds. This appeal followed.

II.

As a preliminary matter, we are

required to consider the issue of subject

matter jurisdiction, even though neither

party contends that it is lacking here. See

Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534, 541 (1986) (“[E]very federal

appellate court has a special obligation to

satisfy itself not only of its own

jurisdiction, but also that of the lower

courts in a cause under review, even

though the parties are prepared to concede

it.”) (internal quotes omitted). The

jurisdictional question in this case centers

on 8 U.S.C. § 1252(a)(2)(B)(ii), which

provides in pertinent part:

Notwithstanding any other

provision of law, no court

shall have jurisdiction to

review . . . any other

decision or action of the

Atto rney Ge neral th e

authority for which is

specified under this title [8

U.S.C. §§ 1151 et seq.] to

be in the discretion of the

Attorney General, other than

the granting of relief under

[8 U.S.C. § 1158(a)]

[governing asylum].

Id. In this case, the statutory basis for

Camphill’s visa request was 8 U.S.C.

§ 1153(b)(4), which governs the issuance

of preference visas to “certain special

immigrants,” including those engaged in a

“religious occupation or vocation,” see id.

§ 1101(a)(27)(C)(ii). If the AAO’s denial

of Camphill’s visa request constituted a

“decision or action of the Attorney General

the authority for which is specified under

this title to be in the discretion of the

Attorney General,” then unde r

§ 1251(a)(2)(B)(ii) the District Court

lacked jurisdiction to review the agency

action.

The key to § 1251(a)(2)(B)(ii) lies

in its requirement that the discretion giving

rise to the jurisdictional bar must be

“specified” by statute. In other words,

“the language of the statute in question

must provide the discretionary authority”

before the bar can have any effect.

Spencer Enterprises, Inc. v. United States,

345 F.3d 683, 689 (9th Cir. 2003). For

example, in Spencer Enterprises, the Ninth

Circuit found no discretion specified in a

statute that listed “clear[] . . . eligibility

requirements” with instructions that a visa

“shall” issue when those requirements are

met. By contrast, in Urena-Tavarez v.

Ashcroft, 367 F.3d 154 (3d Cir. 2004), we

found that the statute at issue “explicitly

assign[ed]” discretion to the Attorney

General, focusing on the use of specific

language to that end (“discretion” and

“sole discre tion”), together with

instructions that certain actions “may” (as

opposed to “shall”) be taken when any of

the enumerated conditions is satisfied. 
4

The statute at issue in this case

provides:

Visas shall be made

available, in a number not to

exceed 7.1 percent of such

worl dw i d e leve l, t o

qualified special immigrants

described in [8 U.S.C. §

1101(a)(27)] (other than

those desc rib ed i n

subparagraph (A) or (B)

thereof), of which not more

than 5,000 may be made

available in any fiscal year

to special immigrants

described in subclause (II)

or (III) of [8 U.S.C. §

1101(a)(27)(C)(ii)(II) or

(III)], and not more than 100

may be made available in

any fiscal year to special

immigra nts, excludin g

spouses and children, who

are described in [8 U.S.C. §

1101(a)(27)(M)].

8 U.S.C. § 1153(b)(4) (emphasis added). 

A “special immigrant,” as that

classification pertains to ministers and

other religious workers, is defined as:

(C) an immigrant,

and the immigrant's spouse

and ch i ldren i f

accompanying or following

to join the immigrant, who–

 (i) for at least 2

yearsimmediately preceding

the time of application for

admission, has been a

member of a religious

denomination having a bona

fide nonprofit, religious

organization in the United

States;

 (ii) seeks to enter the

United States–

 (I) solly for the purpose

of carrying on the vocation

of a minister of that

religious denomination,

 (II) before October 1,

2008, in order to work for

the organization at the

request of the organization

in a professional capacity in

a religious vocation or

occupation, or

 (III) before October 1,

2008, in order to work for

the organization (or for a

bona fide organization

which is affiliated with the

religious denomination and

is exempt from taxation as

an organization described in

section 501(c)(3) of the

Internal Revenue Code of

1986) at the request of the

organization in a religious

vocation or occupation; and

(iii) has been

carrying on such vocation,

professional work, or other

work continuously for at

least the 2-year period
5

described in clause (i);

8 U.S.C. § 1101(a)(27)(C). 

The language of 8 U.S.C.

§ 1153(b)(4) makes clear that the Attorney

General is required to grant preference

visas to those who fall within certain

numerical limits and qualify as “special

immigrants” under § 1101(a)(27). These

relevant numerical limits are set by statute,

see 8 U.S.C. § 1153(b)(4), and the

definition of “special immigrant” (as

relevant to religious workers) is fairly

detailed and specific, with no explicit

reference to “discretion” as in UrenaTavarez. In fact, 8 U.S.C. § 1153(b)(4)

bears some similarity to the neighboring

provision, 8 U.S.C. § 1153(b)(5), which

was analyzed in Spencer Enterprises, in

that it sets forth specific eligibility

requirements, with instructions that the

visa “shall” issue if those requirements are

met. Accordingly, we do not read

§ 1153(b)(4) as having “specified” that the

granting of the visas in question “be in the

discretion of the Attorney General.”

We note that the dissent in Spencer

Enterprises criticized the majority in that

case for what it believed was an overly

“mechanical” approach, including reliance

on the semantic distinction between “may”

and “shall.” See Spencer Enterprises, 345

F.3d at 696-98. (Beezer, J., dissenting).

We agree that the question of whether

discretionary authority has been specified

by statute should be considered by

examining the statute as a whole. But we

do not think (as the Spencer Enterprises

dissent goes on to suggest) that the use of

marginally ambiguous statutory language,

without more, is adequate to “specific[y]”

that a particular action is within the

Attorney General’s discretion for the

purposes of § 1252(a)(2)(B)(ii). Of

course, in a sense, an agency generally has

“discretion” under Chevron to interpret

ambiguous language used in a statute it

administers. But if that sort of ubiquitous

“discretion” were sufficient by itself to

satisfy § 1252(a)(2)(B)(ii), the effects of

that jurisdictional bar would be sweeping

indeed. We do not believe that Congress

intended such a result.3

For these reasons, we hold that a

preference visa determination under

§ 1153(b)(4) is not a “decision or action of

the Attorney General the authority for

which is specified under this title to be in

the discretion of the Attorney General.”

T h e ju risdictional bar o f

§ 1252(a )(2)(B)(ii) is therefore

inapplicable in this case. 

 

3

Furthermore, if “discretion” under

§ 1251(a)(2)(B)(ii) means nothing more

than the “application of facts to

principles,” see Spencer Enterprises, 345

F.3d at 699 (Beezer, J., dissenting), then it

is hard to imagine any action by the

Attorney General under the relevant title

that would not be deemed discretionary.

For example, the substantial evidence

standard under which we review many

immigration actions contemplates that in

some cases there will be a range of

acceptable outcomes among which an

adjudicator might reasonably choose. 8

U.S.C. § 1252(b)(4)(B).
6

III.

We now turn to the merits of the

appeal. Under the Administrative

Procedure Act, we will reverse agency

action if it is “arbitrary, capricious, [or] an

abuse of discretion,” or “unsupported by

substantial evidence.” 5 U.S.C. § 706;

Spencer Enterprises, 345 F.3d at 693. We

defer to both formal and informal agency

interpretations of an ambiguous regulation

unless those interpretations are “plainly

erroneous or inconsistent with the

regulation.” Bowles v. Seminole Rock &

Sand Co., 325 U.S. 410 (1945); Thomas

Jefferson University v. Shalala, 512 U.S.

504, 512 (1994); Auer v. Robbins, 519

U.S. 452 (1997).4 

A.

We first consider the question

whether Camphill qualifies as a “religious

organization” under § 1101(a)(27)(C).

The associated regulation at 8 C.F.R.

§ 204.5(m)(3) mandates that petitioners

prove eligibility for tax-exempt status

under “section 501(c)(3) of the Internal

Revenue Code of 1986 as it relates to

religious organizations.” Id. The AAO

held that “[o]nly organizations classified,

or classifiable, as ‘churches’ . . . are

qualifying religious organizations for the

purpose of special immigrant religious

worker classification.” App. I at 25.

The government later informed the

Court that “the agency [was] in the process

of issuing a memorandum that . . .

broadens its interpretation of when an

organization may qualify as a ‘bona fide

religious organization,’” and that it

therefore desired to withdraw its argument

that Camphill had not qualified for the

special immigration visa on the ground

that it was not a “church.” Appellee Letter

Br. at 1.

5

 We accept this concession, and

 

4We need not decide whether the AAO

adjudication in this case is best

characterized as “formal” or “informal,”

since the outcome in terms of deference is

the same. See Caruso v. Blockbuster-Sony

Music Entertainment Ctr., 193 F.3d 730,

733 (3rd Cir. 1999); Scott H. Angstreich,

Shoring Up Chevron: A Defense of

Seminole Rock Deference to Agency

Regulatory Interpretations, 34 U.C. Davis

L. Rev. 49, 56 (2000) (“[A]n interpretation

of a regulation in a format lacking the

force of law warrants Chevron-style

deference, but such an interpretation of a

statute does not.”); Note, 114 Harv. L.

Rev. 359, 377-78 (2000) (“The Auer Court

. . . held that agencies can issue

authoritative interpretations of their own

ambiguous regulations outside [the

procedural] strictures [of the APA].”); cf.

U.S. v. Mead Corp., 533 U.S. 218, 227-29

(2001) (agency’s informal interpretation of

a statutory ambiguity does not merit

Chevron deference). 

 

5

See William R. Yates, U.S. Citizenship

and Immigration Services, Extension of

the Special Immigrant Religious Worker

Program and Clarification of Tax Exempt

Status Requirements for Religious

Organizations (December 17, 2003),

availa ble at http://www.ilw.com/

lawyers/immigdaily/doj_news/2004,0113
7

therefore proceed under the assumption

that Camphill qualifies as a “religious

organization.”

B.

We next consider whether the AAO

decision can be affirmed on the ground

that the proposed position of houseparent

is not a “religious occupation.”6 This term

is defined by regulation as follows:

Religious occupation means

an activity which relates to

a traditional religious

function. Examples of

individuals in religious

occupations include, but are

not limited to, liturgical

worke r s , reli giou s

instructors , religiou s

counselors, ca n t ors,

catechists, workers in

religious hospitals or

religio u s health care

facilities, missionaries,

religious translators, or

religious broadcasters. This

group does not include

janitors, main tenance

workers, clerks, fund

raisers, or persons solely

involved in the solicitation

of donations.

8 C.F.R. § 204.5(m)(2) (emphasis added).

The AAO found that the “duties of the

position [of houseparent] involve the care

of the mentally handicapped,” and that

“[s]uch duties are considered a wholly

secular function, even if the facility is

operated by a charitable organization

founded on religious principles.” App. I at

26. The AAO further explained that “[t]he

service interprets the pertinent regulations

to require that such positions are

traditionally full-time salaried positions

requiring specific religious or theological

training,” and that Camphill had failed to

show that the position of houseparent

satisfied this definition. Id. On appeal,

Camphill argues that the INS erred in

interpreting § 204.5(m)(2) in a manner that

excluded the position in which Goetze was

to serve. 

We agree with Camphill that the

AAO improperly applied the regulation in

this case. The characterization of Goetze’s

position as not “relat[ing] to a traditional

religious function” suggests that the

conclusion was predetermined. The AAO

first described what Goetze did in terms

that excluded any mention of the religious

component of her duties—saying that her

job was to care for the mentally

-religiouswker.pdf.

 

6Camphill originally argued that

Goetze’s position also constituted a

“religious vocation,” as that term is

defined in 8 C.F.R. § 204.5(m)(2). The

AAO rejected that position, and Camphill

does not appear to challenge that

determination on appeal. Aside from a

passing reference to the “religious

vocation” term in its brief, Camphill’s

argument is centered entirely on the

meaning of the term “religious

occupation.” See Appellant Br. at 23-28;

Appellant Reply Br. at 8-15.
8

handicapped—and then concluded that she

was performing a secular function because

its own characterization of what she was

doing was secular. The same approach

could be used as a basis for concluding

that most of the positions explicitly listed

in the regulation are secular. For example,

§ 204.5(m)(2) mentions “religious

translators,” who might be described as

performing the function of translation, a

“secular” activity. Similarly, “religious

counselors” perform the function of

counseling troubled individuals, which

could also be characterized as secular.

Accordingly, we believe the AAO’s

analytic approach is inconsistent with the

text of the regulation.

We note that the regulation

specifically excludes certain workers, such

as “janitors” and “maintenance workers,”

who perform wholly secular functions, but

this does not mean that a person cannot

qualify as having a “religious occupation”

if the worker’s job includes both secular

and religious aspects. In this vein, we note

that the commentary accompanying the

promulgation of § 204.5(m)(2) provides

that “[i]f [a] job has no religious

significance, then the fact that a person is

a member of a religious denomination

working in a facility run by the

denomination would not by itself make

that person a religious worker.” 56 Fed.

Reg. 66965 (Dec. 27, 1991) (emphasis

added). We take this language as

suggesting that a job may qualify under the

regulation if it has some religious

significance. To the extent that the AAO

read § 204.5(m)(2) as requiring that a

“religious occupation” involve only

religious functions, we believe that its

interpretation is inconsistent with the text

of the regulation and other indications of

the agency’s intent and is accordingly not

entitled to deference. Thomas Jefferson,

512 U.S. at 512.

Alternatively, if the AAO’s

decision is read as finding that the position

of houseparent involved only secular

functions, we do not find that conclusion

supported by substantial evidence of

record. Camphill consistently testified that

Goetze’s position involved a number of

clearly religious responsibilities, including

“imbuing residents with the religious

values and practices of Camphill[;]

conducting house-based ac tivities,

including practical chores, prayer, festival

celebrations and Bible readings[;]

instructing other staff in the practices and

Christian values of Camphill life[;] [and]

[t]eaching religious subjects and values to

mentally retarded young adults.” App. I at

35. Moreover, the religious texts included

in the administrative record, including

transcripts from a series of lectures entitled

“Curative Education,” App. II at 62-85,

appear to provide some support for

Camphill’s contention that even the

prescribed manner of care for its mentally

handicapped residents involved religious

aspects. The AAO did not analyze or

otherwise engage this evidence, but rather

stated perfunctorily that Goetze’s duties

are “wholly secular.” There is little or no

support in the record for that claim.

Finally, we consider the AAO’s

position that a “religious occupation” must
9

be a “traditionally full-time salaried

position[] requiring specific religious or

theological training.” This interpretation

is similarly questionable. The requirement

that the position be “salaried” appears to

be inconsistent with the list of religious

occupations given in the regulation itself,

which includes positions—perhaps most

notably “missionaries”—who do not

always receive salaries. We further note

that in promulgating the final rules at

issue, the agency explicitly stated that they

had been “revised to account more clearly

for uncompensated volunteers, whose

services are engaged but who are not

technically employees.” 56 Fed. Reg.

66965 (Dec. 27, 1991) (emphasis added).

With respect to the “full-time” and

“religious or theological training”

requirements, assuming for the sake of

argument that such requirements are

consistent with the regulation, we see no

evidence that the position offered by

Camphill would not qualify. Camphill

indicated to the agency that Goetze’s

responsibilities required at least 80 hours

of labor per week, see App. I at 35, and

that she would be working “full-time,”

without “supplemental employment.” Id.

at 36. Camphill also submitted detailed

descriptions of its training process, see

App. II at 59-61, as well as extensive

excerpts from its religious texts in

response to the agency’s request for

training curriculum. See App. I at 32;

App. II at 62-146. Again, there is no

suggestion in the AAO’s opinion that this

evidence was ever considered—only the

bald assertion that Camphill had “not

shown that the position of houseparent is

traditionally a permanent salaried position

or that the duties of the position require

specific religious training.” App. I at 26.

This isinsufficient to constitute substantial

evidence in support of the AAO’s

conclusion.

We need not set forth here a

definitive test regarding when a job may or

may not be characterized as a “religious

occupation.” However, we think it clear

that the AAO has failed to show why the

position offered by Camphill to Goetze in

this case does not qualify. Accordingly,

we cannot sustain the decision of the AAO

on this ground without further evidence or

explanation.

C.

The other two reasons underlying

the AAO’s denial of Camphill’s visa

application had to do with purported

evidentiary deficiencies. Specifically, the

AAO held that Camphill had not proven

that Goetze had two years of continuous

experience in the relevant occupation, see

8 C.F.R. § 204.5(m)(1), nor had it proven

that a “qualifying job offer” had been

tendered to Goetze, see id. § 204.5(m)(4).

It is true that Camphill did no more

than submit a letter explaining (among

other things) that Goetze had been

employed by Camphill for four years, see

App. II at 35, and that she would continue

to receive room, board, medical insurance,

etc., as compensation for her work, see

App. II at 36. On the other hand, the AAO

decision does not explain in any

reasonable detail why this evidence was
10

insufficient. The AAO simply states that

“supporting documentary evidence”

should have been submitted, and cites

Matter of Treasure Craft of California, 14

I. & N. Dec. 190 (Reg. Comm. 1972), for

the proposition that the petitioner in visa

proceedings bears the evidentiary burden

of proof. 

Of course, there is no doubt that

Camphill bore the burden of proof in this

case; again, the critical question is why the

letter presented by Camphill was

insufficient to sustain that burden. In this

respect, Treasure Craft is easily

distinguished from this case. There, the

petitioner went on record as declaring that

competent training in the pottery industry

was not available in Mexico. The

Regional Commissioner deciding the case

took administrative notice of the fact that

Mexico had a thriving pottery trade, and

accordingly held that the assertions by the

petitioner were insufficient to sustain the

burden of proof. Here, by contrast, there

was no similar administrative notice

opposing Camphill’s documentation to the

effect that Goetze did indeed undergo

significant religious training, was

employed by Camphill for two years, and

had been extended a job offer.

“An agency's rejection of

uncontradicted testimony can support a

finding of substantial evidence.” Tieniber

v. Heckler, 720 F.2d 1251, 1254 (11th Cir.

1983); see also NLRB v. Walton Mfg. Co.,

369 U.S. 404, 408 (1962). However, an

agency is generally under at least a

minimal obligation to provide adequate

reasons explaining why it has rejected

uncontradicted evidence. See Richard J.

Pierce, Jr., 2 Administrative Law Treatise

§ 11.2 at 791 (2002). For example, if the

AAO ruling was based on a determination

that Camphill’s assertions were not

credible, then there should have been some

sort of finding regarding credibility, either

explicit or implicit. See Tieniber v.

Heckler, 720 F.2d at 1254 (describing

“strict” and “lenient” approaches by

courts); see also Choratch v. Finch, 438

F.2d 342, 343 (3d Cir. 1971) (“We think it

is not too much to require that an

administrative decision that a claimant is

not eligible . . . be supported by explicit

findings of all facts that are essential to the

conclusion of ineligibility.”). The AAO

makes no effort to explain or suggest why

it rejected Camphill’s detailed letter

explaining the nature of Goetze’s position.

 Furthermore, Camphill notes that

INS regulations place an obligation on the

part of the INS to request additional

evidence if that which was already

submitted is deemed insufficient. See 8

C.F.R. § 103.2(b)(8) (“where there is no

evidence of ineligibility, and initial

evidence or eligibility information is

missing or the Service finds that the

evidence submitted either does not fully

establish eligibility for the requested

benefit or raises underlying questions

regarding eligibility, the Service shall

request the missing initial evidence”)

(emphasis added).7 The INS does not

 

7

For example, although the AAO

mentions that Camphill might have

submitted Goetze’s tax documents to show
11

provide any explanation, either in the

AAO ruling or in its brief on appeal, as to

why this regulation would be inapplicable

in this case.

Because the AAO’s rejection of the

evidence regarding Goetze’s work

experience and job offer does not appear

to be supported by substantial evidence,

we conclude that the AAO decision may

not be sustained on these grounds without

further evidence or explanation.

IV.

None of the arguments advanced by

the AAO in support of the visa denial

withstand scrutiny on appeal. The AAO

clearly did not “consider[] all relevant

[evidentiary] factors” in this case, Florida

Power & Light Co. v. Lorion, 470 U.S.

729, 744 (1985), nor did it properly

interpret its regulation defining “religious

occupation.” The “proper course” is

therefore to “remand to the agency for

additional investigation or explanation.”

Id.

that she had been employed full-time by

Cam phill without engag ing in

supplemental employment, see App. I at

27, it is clear that the initial request for

additional evidence issued by the INS,

while it demanded several items of

information from Camphill, did not make

any demand for tax documents. App. I at

32.