PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13

- 4434

_____________

SHALOM PEN TECOSTAL CHURCH;

CARLOS ALENCAR

v.

ACTING SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; DIRECTOR UNITED

STATES CITIZENSHIP AND IMMIGRATION SERVICES;

DIRECTOR OF THE CALI FORNIA SERVICE CENTER OF USCIS; DIRECTOR UNITED STATES CITIZENSHIP

AND IMMIGRATION SERVICES ADMINISTRATIVE APPEALS OFFICE, in their official capacity, Appellants

_____________

Appeal from the United Sta tes District Court for the District of New Jersey (D.C. No. 1

- 11

- cv

- 0 4491) District Judge: Honorable Renee Marie Bumb

_____________

Argued : September 8, 20142 Before: RENDELL, GREENAWAY, JR., and KRAUSE,

Circuit Judges

( Opinion f

iled April 7 , 2015 )

_____________

WILLIAM A. STOCK , ESQUIRE (Argued) Klasko, Rulon, Sto ck & Seltzer 1601 Market Street, Suite 2600 Philadelphia, PA 19103

Counsel for Appellees

GEOFFREY FORNEY , ESQUIRE (Argued) United States Department of Justice Office of Immigration Li tigation

Room 6223 450 5th Street, N.W. Washington, DC 20 0 01

MELISSA S. LEIBMAN , ESQUIRE United States Department of Justice Office of Immigration Litigation

Room 6022

P.O. Box 868

Ben Franklin Station Washington, DC 20001

Counsel for Appellants

S COTT D. POLLOCK, ESQUIRE

Suite 2200

105 West Madison3 Chicago, IL 60602

Counsel for Amicus Appellee

_____________

OPINION OF THE COURT

_____________

KRAUSE, Circuit Judge

The Immigration and Nationality Act ( INA ) enables an immigrant to obtain a visa as a “special immigr ant religious
worker” if the immigrant meets certain statutory criteria, including that he has been “ carryi n g on ” religious work for at least the two years pr eceding the filing of the visa petition. This case presents the question whet her a requirement imposed in the relevant regulation that this religious work

have been carried on “in lawful immigration status” crosses the line from permissible statutory interpretation by the responsible agency to ultra vires regulation contrary to the clear intent of Congress. N one of our sister C ourts of Appeals have yet weighed in on this issue

, but the District

Court here concluded that the r egulation is ultra vires because

it contradicts the plain language of the INA. Shalom

Pentecostal Church v. Beers , No. 11

- 4491, 2013 U.S. Dist. LEXIS 185091, at *19 (D.N.J. Sept. 16, 2013)

. For the reasons set forth below, we agree . We therefore will affirm
the District Court’s order as to the invalidity of the r egulation

but will reverse and remand for f urth er fact

- finding on the remaining visa criteria.4 I. Factual Ba ckground and Procedural History

A. Alencar’s Visa Application

None of the material facts in this case are disputed. Appellee Carlos Alencar, a Brazilian national, travelled with his family to the United States on a B

- 2 nonimmigrant tourist visa in June 1995. The visa authorized Alencar to stay in the United States until December 1995, but he has remained in the United States unlawfully since the visa expired. Alencar

was not authorized to wo rk under the terms of his B

- 2 visa, nor did he otherwise obtain employment authorization.

Alencar has been seeking legal immigration status as a special immigrant religious worker since 1997, when he first petitioned for an I

- 360 visa petition, which w ould eventually qualify him to seek permanent residency status. That petition and a second petition filed by Alencar in 2001 were both rejected by the United States Citizenship and Immigration Service (CIS)

. Nonetheless, Alencar began working as a

senior pastor for the Shalom Pentecostal Church (the “Church”) in 1998 and continued in that capacity through the filing of this appeal

.

The I

- 360 petition at issue here was filed by the Church on Alencar’s behalf in 2009. CIS again denied the petition and, in this instance, did so on the sole ground that the Church had failed to establish, pursuant to newly promulgated 8 C.F.R. 204.5(m)(4) and (11) (the “Regulation ” ), that Alencar had been “performing full

- time

work in lawful immigration status as a religio us worker for at

least the two

- year period immediately preceding the filing of the petition.” (App. 90 (emphasis added).) The CIS Administrative Appeals Office dismissed the Church’s5 appeal, concluding, consistent with the Regulation, that
Alencar’s “rel igious employment in the United States during the qualifying period was not authorized under United States immigration law.” (App. 66.)

In 2011, Alencar and the Church filed a complaint in

the United States District Court for the District of New Jersey, challenging the denial of the I

- 360 petition on several grounds, including that the Regulation was ultra vires to the

INA. 1 The District Court denied the Government’s motion to dismiss and subsequently granted plaintiffs’ motion for summary judgment, inva lidating the Regulation on the grounds that the statutory language was unambiguous and that the Regulation’s addition of the “lawful status” requirement was inconsistent with the statutory scheme. 2 The District Court further held that any remand would be futile and ordered CIS to grant Alencar’s I

- 360 petition.

1 Alencar and the Church also argued belo w that the

R egulation violate s the Religio us Freedom Restoration Act (42 U.S.C. § 2000bb) and the First and Fourteenth

Amendments of the Constitution of the United States

. The District Court dismissed these claims, and A ppell ees have not challenged those rulings on appeal.

2 The majority of the district courts to have considered this question have come to the same conclusion. See Congregation of the Passion v. Johnson , No. 13

- 2275, 2015 WL 518284, at *7 (N.D. Ill. Feb. 6, 2015); Shia Ass’n of Bay

Area v . United States , 849 F. Supp. 2d 916 (N.D. Cal. 2012). But see Islamic & Educ. Ctr. Ezan of Greater Des Moines v. Napolitano , 826 F. Supp. 2d 1122 (S.D. Iowa 2011).6 B . The Visa Petition Process

The INA provides for preference in the issuance of visas to five categories of workers : ( 1) priority workers

, ( 2) aliens with advanced degrees or of exceptional ab ility

, ( 3)

skilled workers and professionals

, ( 4) special immigrants, including religious workers, and ( 5) foreign investors. 8 U.S.C. § 1153(b)(1)

- (5). The subcategory at issue in this

case

— t he special immi grant religious worker program

— permits minister s and nonminister religious workers to immigrate in legal status to the United States to perform religious work. 8 U.S.C. § 1101(a)(27)(C). In order to become a legal perman ent resident (LPR) through the s pecial immigrant religious w orker program, an ali en or his prospective employer must complete two steps

. First , the applicant must successfully petition CIS for an I

- 360 visa. 8 C.F.R. § 204.5(a), (c), (m)(6). If granted that visa , the alien

may apply to the Attorney General for permanent adjustment

o f status

. 8 U.S.C. § 1255. 3

This case focuses on the first step of this process. The

INA requires that , in order to qualify for an I

- 360 visa as a special immigrant religious worker

, the immigrant must meet

three criteria: ( 1 ) membership in a religiou s denomination

3 At the second step of this process, an alien with an approved visa petition who is alr eady in the Unit ed States may seek adjustment to LPR stat us , subject to a variety of restrictions and the Attorney General’s discretion. 8 U.S.C. § 1255(a). Alternatively, if abroad, an alien may apply for an immigrant visa from the local American consul ate. 8 C.F.R. § 204.5(n).7 with a bona fide nonprofit religious organization in the United States for two years immediately preceding the petition

, ( 2 )

intent to enter the United States or change status within the United States solely for the purpose of working as a m in ister or in another religious vocation

, and ( 3 ) the “ carrying on ” of such religious work continuously fo r at least the two years before applying. 8 U.S.C. § 1101(a)(27)(C)(i)

- (iii). 4

4 In full, this section of the INA provides:

The term “special immigrant” means

—

. . . (C) an immigrant, and the immigrant’s spouse and children if accompanying or following to join the immigrant, who

— (i) for at least 2 ye ars immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; (ii) seeks to enter the United States

— (I) solely for the purpose of c arrying on

the vocation of a minister of that religious denomination, (II) before September 30, 2015, in order to work for the organization at the request of the organization in a professional capacity in a religious

vocation or occupation, or (III) before September 30, 2015, in order to work for the organization . . . at the8 As it is authorized to do under 8 U.S.C. § 1103(a)(3)

, CIS has promul gated regulations elaborating on these
statutory qualifications

. Under the regulations, t he visa petition procedure begins when e ither an alien or a person on
the alien’ s behalf applie s for an I

- 360 visa . That visa, if granted by CIS, classifies an alien as a special immigrant religious worker. The filer must present evidence that the

alien meets the statutory requirements as expounded by the regulations. For example, while the statute requires that the
alien seek to enter the United States “ solely for the p u r pose of carrying on the vocation of a minister

, ” 8 U.S.C. § 1101(a)(27)(C)(ii)(I)

, the regulations specify that the

intended religious work be bot h full time and compensated. 8 C.F.R. § 204.5(m)(2).

In 2008, CI S amended 8 C.F.R. § 204.5(m) to requ ire
that an alien have worked “either abroad or in lawful immigration status in the United States, and . . . continuously

for at least the two

- year period immediately preceding the filing of the petition” to be eligible for classification as a special immi grant religious worker. 8 C.F.R. § 204.5(m)(4) (emphasis added). The amendments also added that “[q]ualifying prior experience . . . if acquired in the United States, must have been authorized under United States

request of the organization in a religious vocation or occupation; and (iii) has been carrying on such vocation, professional work, or other w ork continuously

for at least the 2

- year period described in clause (i).

8 U.S.C. § 1101(a)(27)(C)

.9 immigration law.” 8 C.F.R. § 204.5(m)(11 ). The Regulation thus disqualif

ies applicants like Alencar who did “carry on” otherwise qualifying religious work during the two years

before they file d a visa application but d id so without lawful

status.

II. Jurisdiction and Standard of Review

The Government filed a timely notice of appeal on November 13, 2013. The District Court had jurisdiction pursuant to 5 U.S.C. § 702 of the Administrative Procedure Act (APA) , and w e have jurisdiction to hear this appeal under 28 U.S.C. § 1291. We review the legal conclusions related to standing de novo. Edmonson v. Lincoln Nat’l Life Ins. Co.

, 725 F.3d 406, 414 (3d Cir. 2013). We apply de novo review to the District Court’s grant of summary judgment in a case brought under the APA

. Cyberworld Enter. Techs ., Inc. v. Napolitano , 602 F.3d 189, 195 (3d Cir. 2010).

III. Discussion

The G overnment raises tw o issues on appeal

. First, it

contends that Alencar and the Church lack standing to
cha llenge the denial of the I

- 360 p etition. Specifically, the

Gover nment contests: (1) the constitutional standing of both Alencar and the Church, (2) Alencar’s standing under CIS regulation 8 C.F.R. § 103.3(a)(1)(iii)(B), and (3) Alencar’s right to sue under the INA. Second, the Government argues that the District Court erred in ruling that the Regulation is

ultra vires

. We address these issues in turn

.10 A. Standing

1. Constitutional Standing

Article III of the Constitutio n requires that a plaintiff establish standing in order for his case to be justiciable.

L ujan v. Defenders of Wildlife , 504 U.S. 555, 559

- 60 (1992). Constitutional standing has thr ee elements: injury in fact,

causation

, and redressability. Id. at 560

- 61. Here , the

G overnment challenges only the third

. For an injury to be redressable, the p laintiff must show that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id . at 561 (internal quotation marks and citation omitted)

. If the plaintiff is the object of government action, “there i s ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress
it.” Id. at 561

- 62.

The Government a sserts that no matter the result of this appeal, Alencar will not be eligible for adjustment to LPR

status for at least ten years, so that any victory in the current proceeding will be “pyrrhic.” (Appellants’ Br. 17 (citing App. 36).) E ven if an I

- 360 visa is granted, the Government points out, an alien is statutorily in eligible to adjust status

from within the United States if he worked in unlawful immigration status for more than 180 days

. 8 U.S.C. § 1255(c)(2), (k)(2)

. But an alien who seeks to adjust status

from outside the United States and was present unlawfully i n the United States for one year or more is inadmissible to the United States for ten years from his dat e of departure

. 8 U.S.C. §§ 1182(a)(9)(B)(i)(II); 1201(g)(1)

. A lencar worked in unlawful immigration status for more than 180 days and has been presen t unlawfully in the United States for more11 than one year . Hence, he will be ineligible for adjustment of

status for at least ten years.

This sy llogism , however valid

, does not bear on the question of Alencar’s standing to challenge the denial of his

I

- 360 petition on the basis of the legality of the Regulation

. As a threshold matter, the Government’s contention that relief must be immediate to satisfy constitutional standing finds no support in our precedent. Rather, as the Supreme Court made

clear in Lujan

, r edressability hinges on the availability and likelihood of relief, rather than the immediacy of relief. See

504 U.S. at 561

- 62. Indeed, a requirement of immediate redressability would be particularly inappropriate in the immigration context, whe re there is frequently a lengthy delay between a favorable decision and the availability of

relief. See Scialabba v. Cuellar de Osorio , 134 S. Ct. 2191, 2199 (2014).

In any event, Alencar is seeking a visa at this point , not permanent adjustment of stat us

. While obtaining a visa is a prerequisite to applying for LPR status, the INA makes clear

that t he visa petition process and the adjustment of status

process are distinct

. Compare 8 U.S.C. § 1153

, with 8 U.S.C. § 1255 ; s ee Matter of O

----- , 8 I & N De c. 295, 297 (BIA 1959) (“The visa petition procedure is concerned merely with the question of status. It does not concern itself with substantive questions of inadmissibility . . .

. ”). E ven the Government acknowledges that “the INA sets forth distinct

c riteria for applicants qualifying as special immigrant religious workers (immigrant visa) and for those seeking to adjust status (adjustment of status)

. ” (Appellants’ Br. 31.)

We are guided by the Supreme Court’s approach in

Mon santo Co. v. Geertson Seed Farms , where the Court12 analyzed redressability in the context of multi

- part proceedings based on the availability of relief at a given step

, rather than the likelihood of achieving the ultimate goal. See 561 U.S. 139, 151

- 5 3 (2010) (holding that farmers had standing to challe nge restrictions on an agency’s ability to deregulate a genetically

- engineered product even though their ultimate goal of deregulation could not be achieved without further agency action). In Alencar’s case, t hat step is the petition for an I

- 360 visa. If Alencar satisfies § 1101(a)(27)’s

criteria

, the statute provides in mandatory terms that a visa “shall be made available,” subject to specified numerical

limits. 8 U.S.C. § 1153(b)(4). Thus, as the Sixth Circuit aptly observed in Patel v. USCIS , when an alien’s visa petition is denied, he has “lost a significant opportunity to receive an immigrant visa” and “that lost opportunity is itself a concrete injury.” 732 F.3d 633 , 638 (6th Cir. 2013) (quoting Abboud v. INS , 140 F.3d 843, 847 (9th Cir. 1998)).

The Government’s insistence that we determine at t he visa petition stage the redressability of a different and potential injury, i.e. , Alencar’s prospects for eventual adjustmen t of status, would turn the INA ’ s carefully

considered statutory scheme on its head

. Congress has provided for separate and sequential processes to obtain an I

360 visa and to apply for adjustment of status. Compare 8 U.S.C. § 1153

, with 8 U.S.C. § 1255. At the second stage

, CIS

— not the federal courts

— o rdi narily adjudicates an application for adjustment of status in the first instance, 8 C.F.R. § 245.2(a)(1), and Congress has expressly excluded from judicial review the Attorney General’s discretionary decision regarding final adjustment of status. 8 U.S.C.13 §§ 1252(a)(2)(B)(i) , 1255(a). 5 It would hardly make sense, then, to base an alien’s standing at the first stage on a court’s prognostication about that Executive Branch decision at the

second.

Instead, we hold that t he injury at that first stage is

re dressable by judicial action, and Appellees therefore have

constit utional standing to challenge the denial of the I

- 360 petition

.

2. Regulatory Standing

The Government contends that Alencar cannot proceed, even if he ha s Article III standing, because a CIS regulation , 8 C.F.R. § 103.3(a)(1)(iii)(B), authorize s an administrative appeal only by an “affected party,” which is defined as “the person or entity with legal standing in a proceeding,” and which “does not include the beneficiary of a petition.” 8 C.F.R. § 103.3(a)(1)(iii)(B). C ourts have relied on this regulation t o up hold agency decisions dismissing visa

beneficiaries for lack of standing in the context of administrative proceedings. See, e.g.

, Echevarria v. Keisler

, 505 F.3d 16, 18 (1st Cir. 2 007); Kale v. INS , 37 F . App’x 90 (5th Cir. 2002) (per curiam) (unpublished table decision ).

We cannot agree that this regulation bars Alencar’s

claim here. Even assuming that it applies outside the context

5 If an alien has been placed in deportation or removal proceedings, the Immigration Judge hearing the proceeding has exclusive jurisdiction over the application for adjustment of status, subject to certain exceptions. 8 C.F.R. § 1245.2(a)(1).14 of administrative proceedings, this regulatio n must be read in tandem with 8 C.F.R. § 204.5(c) . As the government points

out, § 204.5(c) provides that, for most of the employment

based visa categories, only the “employer” has standing to file a pet ition, rendering the alien the “beneficiary” and

,

co nsistent with the premise of the Government ’s argument,

not an “affected party” for purposes of standing on administrative appeal. 6 The Government overlooks, however, the specific carve

- out within § 204.5(c) , which provides that

, for special immigrant rel igious workers, “the alien, or any person in the alien’s behalf” has standing to file

. F or this category of visa petitioner, the alien is not merely a “beneficiary

, ” but instead, either directly or through someone

on his behalf , has legal standing. Thus

, contrary to the Government’s position, the “affected party” authorized to

undertake an administrative appeal

, even under CIS regulations

, include s the special im migrant religious worker

him self

.

3. The Zone

- of

- Interest s Test

Even where standing is ot herwise satisfied, an aggrieved party may be precluded from pursuing relief if the

interest it seeks to vindicate fall s outside the “zone of

6 In any event, t he cases relied up on by the Government appear limited to the administrative agency context, leading

some courts to hold that § 103.3(a)(1)(iii)(B) only governs administrative proceeding s and does not apply to standing in

federal court at all. See, e.g.

, Ore v. Clinton , 675 F. Supp. 2d 217, 223 (D. Mass. 2009); Maram jaya v. USCIS , No. 06

- 2158, 2008 WL 9398947, at *4 (D.D.C. Mar. 26, 2008)

.15 interest s ” protected by the statute invoked. Lexmark Int’l, Inc. v. Static Control Components, Inc. , 134 S. Ct. 13 77,

1386

- 89 (2014). The Government argues that Alencar lacks this “zone of interest” or “prudential standing,” 7 baldly asserting that the INA ’s “primary purpose” is “to protect American workers, while providing employers with limited access to foreign lab or, only when absolutely necessary,” and therefore “aliens do not fall within any interest protected by

the statute

. ” (Appellants’ Reply Br. 4

- 5 (internal citations omitted).) However, t he zone

- of

- interest s test for actions

under the APA is “not especial ly demanding,” foreclosing suit “only when a plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congr ess authorized the plaintiff to sue

. ” Lexmark , 134 S. Ct. at 1389 (quoting Match

- E

- Be

- Nash

- She

- Wish Band of Pottawatomi

Indians v. Patchak , 132 S. Ct. 2199, 2210 (2012)).

The text of the INA leaves no doubt that the interests

of employment

- based v isa petition applicants , and speci al immigrant religious worke rs in particular, are directly related

7 The Supreme Court ha s criticized the use o f “prudential standing” to describe this doctrine because the question of whether a plaintiff has a cause of action under a statute hinges on whether Congress has granted the plaintiff a cause of action, rather than whether courts think it should

have done so. Lexmark , 134 S. Ct. at 1386

- 88 (describing the phrase “prudential standing” as “misleading”); see also Ass’n of Battery Recyclers, Inc. v. EPA , 716 F.3d 667, 675

- 76 ( D.C.

Cir. 2013) (Silberman, J., concurring) ( stating “‘prudential standing’ is a m is nomer”). Therefore, erstwhile “prudential standing” is referred to here as the “zone

- of

- interest s test .”16 to the purposes of the INA. The statute specifies th e five categories of workers who receive preferential treatment in the visa process. 8 U.S.C. § 1153(b). For spec ial immigrant religious workers

, it provides visa s to the aliens themselves, rather than to their employers, 8 U.S.C. § 1153(b)(4)

, and it

contains an exception to the general disqualification for unlawful work status, so that these workers may s till seek permanent residence as long as they have worked n o more than 1 80 day s unlawfully

. 8 U.S.C. § 1255(k). Further, while other employment

- based visa applicants require a certification from the Department of Labor that no qualified Americans are available for the j ob, religious workers need only show that t hey have the requisite qualifications. Compare 8 U.S.C. § 1153(b)(3)(C) and 8 U.S.C. § 1182(a)(5)(A) with 8 U.S.C. § 1153(b)(4).

In sum, Congress has taken aff irmative steps in the

INA to enable qualified foreign workers to provide services to relig ious organizations within the United States. See Patel

, 732 F.3d at 636

- 37 (collect ing authority); H.R. Rep. 101

- 723(I) (1990) ; see also Br. of Amicus Curiae American Immig ration Lawyers Association at 3. We therefore reject the proposition that Alencar ’s interests “ are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congr ess intended to permit the suit

. ” Lexmark , 134 S. Ct. at 1389 (quoting Match

- E

- Be

- Nash

- She

- Wish , 132 S. Ct. at 2210 )

.

B. Validity of the Regulation

In addressing the validity of the Regulation , we apply

the two

- step analysis articulated by Chev ron U.S.A., Inc. v. Natural Resources Defense Council, Inc

., 467 U.S. 837 (1984). If Congress has directly and c learly spoken to the17 question at issue

, our Chevron an alysis is complete at step

one
, and Congress’ s unambiguous intent controls

. Id. at 842

- 43. However, if the statute is “ silent or ambiguous

, ” or “[i]f Congress has explicitly left a gap for the agency to fill,” we proceed to the second step and determine whether the

agency ’s construction of the statute is reasonable. Id. at 843.

In the first step of the Chevron analysis , w e carefully scrutinize the plain text o f the statute and apply traditional

tools of statutory construction. Bautista v. Att’y Gen. , 744 F.3d 54, 58

- 68 (3d Cir. 2014)

. Mindful of the Supreme
Court’s mandate that “[a] court mu st . . . interpret the statute as a symmetrical and co herent regulatory scheme, and fit, if possible, all part s into an harmonious whole, ” FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 133 (2000) ( internal citation and quotation marks omitted)

, we also may consider the broader statutory context and examine other parts of the governing statute to determine if the statutory language is silent or ambiguous. See, e.g.

, Scialabba , 134 S.

Ct. at 2204

- 05 (2014).

Here, the statute defines a special immigrant religious worker as an “immigrant” who has been “carrying on such vocation, p rofessional work, or other work continuously for at

least the 2

- year period” preceding the application. 8 U.S.C. § 1101(a)(27)(C)(iii). The term “immigrant”

— d efined by the

INA , with certain exceptions, as “every alien ”

— by its plain

terms includes aliens in both legal and illegal immigration

status. 8 U.S.C. § 1101(a)(15).

Because t he term “carrying on ” is not defined by the INA, we look to its ordinary meaning . Black’s Law Dictionary defines “carry on trade or business” as “to conduct, prosecute or continue a particular avocati on or18 business as a continuous operation or permanent occupation.” Black’s Law Dictionary 214 (6th ed. 1991). Similarly, other dictionaries define “carry on” as “to manage” or “to conduct.” OED Online (December 2014), available at http://www.oed.com/vie w/Entry/ 28252; The American Heritage Dictionary 286 (4th ed. 2009 ) ; Webster’s Third New International Dictionary 344 (1993)

. None of these definitions includes a requirement of lawfulness of the action

or lawful status of the actor.

Moreover, a court s hould interpret a statute so as to “give effect to every word of a statute wherever possible

. ” Leocal v. Ashcroft , 543 U.S. 1, 12 (2004). The Regulation’s requirement that qualifying work under § 1101(a)(27)(C)(iii) be “in lawful immigration status” woul d render another section of the INA, 8 U.S.C. § 1255(k)(2), largely, if not entirely, superfluous. That is, in providing that a specified number of days of unauthorized work will not disqualify special immigrant religious workers from applying for

permane nt resident status, § 1255(k)(2) necessarily assumes that some such workers will have engaged in prior unauthorized employment. Under the Regulation, on the other hand, a special immigrant religious worker could not

obtain an I

- 360 visa

— a prerequisite to applying for adjustment of status under § 1255(k)

— if that worker had engaged in even a single day of unauthorized work during the two years preceding such worker’s I

- 360 visa petition. The Regulation, in effect, would make § 1255(k)(2)’s exemption

for una uthorized work meaningless in most circumstances. 8

8 While both sections could still have force in the

situation where a petitioner worked in unlawful status for less19 Furthermore, i n Russello v. United States , the Supreme

Court observed that “[w]here Congress includes particular language in one section of a statute but omits it from another, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. ” 464 U.S. 16, 23 (1983). Section 1101(a)(27)(C)(iii) states that an alien must “carry on” his religious work “continuously” bu t makes no mention of “lawfully. ” E lsew here within §§ 1101 and 1153, in contrast

, Congress specified no less than six times when it intended to require lawful status as a prerequisite to the grant of certain status or relief. See 8 U.S.C. § 1101(a)(6) (defining a “border crossing identificatio n card” as a document that can be issued only to an alien who is “lawfully admitted” for permanent residence ); 8 U.S.C. § 1101(a)(27)(A) (creating a category of special immigrants for immigrants “lawfully admitted” for permanent residence who are returning from a temporary visit abroad ); 8 U.S.C. § 1101(i)(2) (permitting a liens who are the victim s of severe human trafficking to engage in employment during the period they are in “l awful temporary resident status ” ); 8 U.S.C. § 1153(a)(2)(A), (B) (alloting vis as to the spouses, children, and unmarried sons and daughters of aliens “lawfully admitted” for permanent residence); 8 U.S.C. § 1153(b)(5)

than 180 days and then , during t he two years immediately prior to filing the I

- 360 visa petition

, worked legally in the

United States or worked abroad , the Government cannot negate the canon against superfluity merely by pointing out

that a theoretical exception exists

. See Duncan v. Wa lker

, 533 U.S. 167, 174

- 75 (2001) (applying the canon against superfluity where a construction of the statute would render a word insignificant but not wholly superfluous ).20 (making visas available for qualified immigrant entrepreneurs whose businesses will create full time employment for, among others, aliens “lawfully admitted” for permanent residence or “lawfully authorized” to be employed in the United States)

.

Yet t here can be no doubt Congress was well aware that special immigrant religious workers may have worked illegally before ap plying for legal status: A n a lien seeking permanent adjustment of status under 8 U.S.C. § 1255 , for example, generally is ineligible if he has “continue[d] in or
accept [ ed ] unauthorized employment prior to filing an application for adjustment of status

, ” 8 U.S.C. § 1255(c)(2),

or “w as employed while the alien was an unauthorized alien

, ” 8 U.S.C. § 1255(c)(8). For special immigrant religious

workers who are present in the United States pursuant to lawful admission at the time of the application , however, t he

INA speci fic ally carves out an exception to allow for adjustment of status

— even if the alien eng aged in unauthorized employment

— so long as that unauthorized employment did not exceed 180 days in the aggregate

. See 8 U.S.C. § 1255(k)(2)

. Against this b ackdrop, Congress’s

decision to specify in § 1101(a)(27)(C)(iii) that immigrants carry on their religious work “continuously,” but not “lawfully

, ” is particularly significant

.

We are unswayed by the line of decisions from the Court of Appeals for the D.C. Circuit declining to apply

Russello in the administrative agency context and observing that “a congressional mandate in one section and silence in another” may simply reflect a decision “to leave the question to agency discretion.” Catawba Cnty., N.C . v. EPA , 571 F.3d 20, 36 (D.C. Cir. 2009) (quoting Cheney R. Co. v. ICC , 90221 F.2d 66, 69 (D.C. Cir. 1990)). We have not adopted this reasoning, and, to the contrary, we have concluded that “we must read the statute as written, ” giving meaning to

distinct ions between statutory provisions , rather than rely on implicit assumptions of intent

. Hanif v. Att’y Gen. , 694 F.3d 479, 486 (3d Cir. 2012).

Section 1255(k) (2) also puts to rest the Government’s
argument s that § 1101(a)(27)(C)(iii) must be read in

conne ction with the statutory ban on employers hiring

unauthorized aliens and that the overall structure and purpose of the INA require lawful work absent an explicit exception.

See 8 U.S.C. § 1324a(a)

- (b). Indeed, the argument proves too much, for Congress c arved out just such a n exception for the adjustment of status of special immigrant religious worker s who engaged in unauthorized employment for an aggregate period of up to 180 days and otherwise satisfy § 1255(k)

. 8

U.S.C. § 1255(k)(2).

Nor are we per suaded that , when Congress directed

CIS to issue regulations specific to fraud in the special immigrant non minister religious worker program (the “Nonminister Program”) , it thereby acknowledg ed ambiguity in the work qualifications for ministers. Special I mmigrant Nonminister Religious Worker Program Act, Pub. L. No.

110

- 391, 122 Stat. 4193 (2008); see 8 U.S.C. § 1101(a)(27)(C)(ii)(I I ) , (III). The Government submit s that CIS adopted the Regulation as part of an agency rule intended to improve its “ability to detect and deter fraud,” and that the Regulation therefore necessarily was authorized by Congress.

See Special Immigrant and Nonimmigrant Religious Workers, 73 Fed. Reg. 72

, 276

- 01 (November 26, 2008). S ome parts of

this rule were clearly designed to a ddress fraud in the22 administration of the program, such as the provision authorizing CIS to perform an on

- site inspection of a petitioning religious organization , presumably to confirm

, where relevant, that the alien is actually carrying on the specified r eligious work , as well as to ascertain the organization’s bona fides

. See, e.g.

, 8 C.F.R. § 204.5(m)(12). That purpose is not apparent , however, in a requirement that

such work , actually having been performed, was performed

while the alien was in a parti cular immigration status

. Nor could that requirement, to the extent it is imposed on ministers, conceivably be aimed at fraud in the Nonminister Program.

The Government also argues that Congress indicated its acquiescence to the Regulation by reauthori zing the Nonminister Program four times since DHS adopted the Regulation. 9 However, t he canon of ratification, i.e. , that “Congress is presumed to be aware of an administrative . . . interpretation of a statute and to adopt that interpretation

when it re

- enacts a statute without change,” Lorillard v. Pons

, 434 U.S. 575, 580 (1978)

, has little probative value where , as here, what is re

- enacted is a different subsection of the

statute. See Dep’t of Transp. v. Pub. Citizen , 541 U.S. 752, 770 n.4 (2004). It has even less bearing when it is

9 See Reauthorization of EB

- 5 Regional Center Program, Pub. L. No. 112

- 176 § 3, 126 Stat. 1325 (2012); Department of Homeland Security Appropriations Act, 2010,

Pub. L. No. 111

- 83 § 568(a)(1), 123 Stat. 2142 (2009); Legislative Branch Appropriations, Pub. L. No. 111

- 68 § 133, 123 Stat. 2023 (2009); Special Immigrant Nonminister Relig ious Worker Program, Pub. L. No. 111

- 9 § 1, 123 Stat. 989 (2009).23 contradicted by clear and unambiguous evidence of Congress’s intent, reflected here in the plain language of § 1101(a)(27)(C)(iii).

In sum, b y its plain terms and consistent with Russello and applicable canons of statutor y con struction, the INA

authorizes an alien who engaged in religious work continuously for the two years preceding the visa application and who meets the other statutory criteria to qualify for an I

360 visa as a special immigrant religious worker

. As t he statute is clear and unambiguous and the Regulation is

inconsistent with the statute

, the Regulation is ultra vires and

we do not reach the second step of the Chevron analysis

.

IV. Remedy

Having struck down the Regulation, t he District Court

conclud ed that remand would be futile and ordered CIS to
grant the petition be cause it had offered no alternative ground for denial of Alencar’s petition

. Giv en the outcome dictated by the R egulation, however, CIS had no occasion to consider

whether Alencar meet s the other requirements for the special immigrant religious worker program

. When further fact

finding is necessary to resolve an issue, a court of appeals “ is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reac h its own conclusions

based o n such an inquiry. ” INS v. Ventura , 537 U.S. 12, 16 (2002) (per curiam) (quoting Fla. Power & Light Co. v.

Lorion , 470 U.S. 729, 744 (1985)). Accordingly , we will

reverse the order granting the petition and will remand to the

District Court with instructions to remand to the agency to
address in the first instance whether Alencar satisfies § 1101(a)(27)(C)’s remaining criteria

.24 * * *

For these reasons, w e will affirm th at portion of the

District Court ’s order grant ing summa ry judgment and

strik ing 8 C.F.R. §§ 204.5(m)(4) and (11) as ultra vires

, will

reverse the portion granting Alencar’s petition

, and will

remand to the District Court for proceedings consistent with this opinion.