FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GABRIEL RUIZ-DIAZ; HYUN

SOOK SONG; CINDY LEE

MARSH; PETER GILLETTE;

PABLO SANDOVAL; YURIY

KASYANOV; LELIA

TENREYRO-VIANA; EDGARDO

GASTON ROMERO LACUESTA;

ROSARIO RAZO ROMERO;

YOUN SU NAM; LAND OF

MEDICINE; UKRAINIAN

AUTOCEPHALOUS ORTHODOX

CHURCH; SEATTLE

MENNONITE CHURCH;

SALECK OULD DAH OULD

SIDINE; HAROLD MICHAEL

CARL LAPIAN,

Plaintiffs - Appellants,

v.

UNITED STATES OF AMERICA;

UNITED STATES CITIZENSHIP

AND IMMIGRATION SERVICES;

UNITED STATES DEPARTMENT

OF HOMELAND SECURITY;

UNITED STATES DEPARTMENT

OF JUSTICE; JANET A.

NAPOLITANO, Secretary of

Department of Homeland

No. 11-35580

D.C. No.

2:07-cv-01881-RSL

ORDER AND

AMENDED OPINION
2 RUIZ-DIAZ V. UNITED STATES

 The Honorable Jed S. Rakoff, Senior United States District Judge for *

the Southern District of New York, sitting by designation.

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
RUIZ-DIAZ V. UNITED STATES 3

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

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.
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
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).
6 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).
RUIZ-DIAZ V. UNITED STATES 7

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 Saturdaywork—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
8 RUIZ-DIAZ V. UNITED STATES

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,
RUIZ-DIAZ V. UNITED STATES 9

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).
10 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.
RUIZ-DIAZ V. UNITED STATES 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.