religion--is obviously required for the INS to determine who does
or does not qualify for a religious worker visa. But nothing in
that definition, which focuses solely on the activity performed
by the applicant and its relationship to a religious function,
even remotely suggests that the background or qualifications
possessed by an applicant might play any part in determining
whether that person qualifies for a visa. Yet INS now argues
that it arrived at the formal training requirement by
“interpreting” that definition.

Nowhere in its memoranda has INS offered any real
explanation of how the formal training requirement can be derived
from the Regulations. I. R. Mem. 7 asserts that it is not
irrational for INS to require that religious worker visa
applicants have formal training in their field and reminds this
Court that the Act delegates to INS the authority for determining
visa eligibility procedures. But that is not what is at issue
here. Perez has not disputed that INS authority extends to the
establishment of visa eligibility procedures, nor has he
contended--at least not for the sake of his challenge to INS
procedures--that the formal training requirement is inherently
irrational. Instead he contends that the formal training
requirement amounts to a substantive rule that was impermissibly
created informally--in violation of APA's requirements.

This Court agrees: Nothing in the Regulations’ definition

13


years all Baptist colleges and seminaries have offered degrees in
music ministry (P. St. §9). Individuals who are hired to lead
music for Baptist congregations must demonstrate a religious
commitment and are considered to be ministers (I. St. 911, P. St.
{21).

On August 25, 1999 El Buen Pastor filed on Perez’ behalf a
form I-360 petition for an immigrant visa and a Form I-485
application for adjustment of status with the INS (I. St. 43).
That visa petition claimed Perez was a “special immigrant
religious worker” under the Immigration and Nationality Act
(“Act”) §203(b) (4), 8 U.S.C. §1153(b) (4),* due to his position as
musical director at El Buen Pastor (I. St. 44).

Under that section, one of a limited number of visas is
available to an immigrant (1) who “for at least 2 years
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,” (2) who

“seeks to enter the United States...to work for the organization

expressing beliefs held by members of the denomination. It is
particularly disingenuous for INS to assert that those documents
consist of “opinion” where I. St. §§8-12 cites to the very same
documents. INS has not cited to any record evidence that
conflicts with any of those documents, and those P. St.
paragraphs are also deemed admitted.

* All further references to the Act will take the form “Act
§--," referring to the Title 8 section numbering rather than to
the Act's internal numbers.


has no such training.

“Religious occupation” is defined in the Regulations as “an
activity which relates to a traditional religious function” (Reg.
§204.5(m)). Nothing in the Regulations refers to the background
or training of people who seek to qualify as religious workers.
I. Mem. 5 argues that it “makes sense” to impose the formal
religious training requirement because religious worker visas are
issued only to individuals whose services are directly related to
the creed of the denomination, not those who work in primarily
administrative, humanitarian or secular positions. INS also
contends that it “has been requiring for years that special
immigrant religious workers have undergone formal religious
training” (I. R. Mem. 5).

On a related note, the INS statement in its initial denial
of Perez’ application that his position was not a “religious
occupation” because it included certain administrative duties--
including sound system setting, piano performance and service
rehearsals--is clearly contrary to the Regulations, which impose
no requirement that for someone to qualify as a religious worker,

he or she must never engage in any secular or administrative

duties. It is difficult to imagine any position with any
religious organization that would not involve a small amount of
administrative duties. Moreover, where being a music director

can qualify under the rubric of “religious worker,” it would be


based on its findings that (1) El Buen Pastor had failed to
establish that the position of music director was a religious
occupation and (2) that the church had failed to establish that
Perez had two years of continuous religious work experience (I
st. 918).

On June 29, 2001 Perez filed this action, contending that
the INS's determination (1) is clearly contrary to the agency’s
own, regulation, (2) was based on a rule not promulgated in
accordance with proper procedures and (3) violates the
Establishment Clause of the First Amendment. After INS brought
the case to issue, the cross-motions for summary judgment
followed.

Standard of Review

Final agency decisions are subject to judicial review under
APA. What deference is due to those decisions depends on the
type of action undertaken by the agency.

When an agency issues a formal interpretation of its
governing statute, speaking to a matter on which the statue is
silent or ambiguous, courts defer to that interpretation as long
as it is not arbitrary, capricious or manifestly contrary to the

statute (Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S.

837, 843-44 (1984)). Formal interpretation occurs when an agency
exercises the legislative authority that the statute implicitly

delegates to it, generally (though not always) through notice-


in a professional capacity in a religious vocation or occupation”
and (3) who “has been carrying on such vocation, professional
work or other work continuously for at least the 2-year period”
preceding the time of application (Act §1101(a) (27) (C)).
“Religious occupation” as used in that section has been defined
by the INS as (8 C.F.R. §204.5(m) (2)%):

an activity which relates to a traditional religious

function. Examples of individuals in religious

occupations include, but are not limited to, liturgical

workers, religious instructors, religious counselors,

cantors, catechists, workers in religious hospitals or

religious health case facilities, missionaries,

religious translators, or religious broadcasters. This

group does not include janitors, maintenance workers,

clerks, fund raisers, or persons solely involved in the

solicitation of donations.

On December 8, 1999 INS requested additional evidence from
El Buen Pastor as to Baptist philosophy and church organization,
as well as verification of Perez’ specific duties as music
director (I. St. 95). That evidence was provided on February 24,
2000 (I. St. §5-13). On April 5, 2000 INS denied the visa
petition on the grounds that the position of “music director” did
not clearly qualify as a religious occupation (I. St. 415). El
Buen Pastor appealed that decision on May 5, 2000, and on

September 19, 2000 the INS Administrative Appeals Office upheld

the earlier denial (I. St. 9§16-17). That determination was

5 Further citations to provisions of 8 C.F.R. (referred to

here as the “Regulations”) will take the form “Reg. § --,” thus
avoiding repeated references to the C.F.R. volume.

5


interpretation relates to ambiguous language in the regulation

(Christensen v. Harris County, 529 U.S. 576, 588 (2000)). In
such cases the agency’s interpretation is controlling unless it
is “plainly erroneous or inconsistent with the regulation” (Auer
v. Robbins, 519 U.S. 452, 461 (1997), citing earlier cases). But
such deference is not warranted when a regulation is not
ambiguous, although the position the agency has adopted
informally is entitled to respect to the extent that it has power
to persuade (Christensen, 529 U.S. at 587-88). Courts must
determine whether a particular agency rule qualifies as
substantive or interpretive, regardless of the label the agency
itself places on it (Hoctor v. United States Dep't of Agric., 82
F.3d 165, 167 (7th Cir. 1996)).

Agency Decision under the Regulation

Perez first contends that INS‘s denial of his visa
application is clearly contrary to the INS Regulations
implementing the Act and must therefore be reversed. Perez
argues that he meets all of the requirements specified by the Act
and the Regulations and, further, that the Regulations contain no
mention of a formal religious training requirement. INS counters
that its imposition of the formal training requirement--and its
denial of Perez’s visa request because he lacks that training--
simply represents a reasonable interpretation of the Regulations

and that Perez' visa application was properly denied because he


we pa (08197) LQ

United States District Court, Northern District of Illinois

Poncetwane (| Milton Shadur | Stn Jee
CASE NUMBER 01 C 5063 DATE 8/5/2002
CASE Alexis D. Perez, et al vs. John Ashcroft et al
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
q@ ao Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
@) Qa Answer brief to motion due___. Reply to answer brief due___.
(4) im Ruling/Hearing onset for at
() oO Status hearing[held/continued to] [set for/re-set for]on__setfor___—sat__—
(6) im Pretrial conference[held/continued to] [set for/re-set for]on__—setfor_—at_
(C) o Trial[set for/re-set for]on___at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) aq This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) General Rule21 CIFRCP41(a\(1) 1 FRCP41(a)(2).
ao) =f [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons stated in this

memorandum opinion and order, (1) both Rule 56 motions are denied, (2) INS’s denial of Perez’ visa
application is vacated and (3) this action is remanded for a limited further proceeding. (10-1, 20-1, 26-1)

di) sof [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document

“Number

No notices required. numberof notices

o | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form,

Copy to judge/magistrate judge,

7

date matted notice

courtroom. i
SN deputy’s sn
initials

UT Diateitime sceive” in
central Clerk’s Office naling deputy nts



received such formal training,*® while Perez urges the opposite
assumption.

Neither assumption is necessary at this point. What is
important is that neither ruling mentions a formal training
requirement at all. That is in sharp contrast to later INS
rulings issued in 1999 and 2000--around the time of Perez’s visa
denial--all of which do mention a formal training requirement,
expressed with the identical phrase: “Persons in [religious
occupations] must complete prescribed courses of training
established by the governing body of the denomination” (P. Ex.
D). By sharp contrast with the earlier rulings, that phrase
appears in all of the later rulings, even those that do not turn
on the question of formal religious training. Such a change in
language strongly suggests that at some point during the 1990s
the INS implemented a new rule requiring that applicants must
have received such formal training to qualify for religious

worker visas.’ This opinion now turns to the question whether

° I. R. Mem. 4 premises the assumption that one of those
applicants must have received formal religious training on the
fact that he had been employed as a missionary/counselor at the
petitioning organization for six years. Under that logic the INS
should have assumed that Perez had also acquired such formal
training, for he had been employed as music director at El Buen
Pastor for several years, in addition to having spent more than
eight years of employment in similar positions with other
congregations.

7 Additional support for that conclusion can be found in a
1996 case involving the issuance of a non-immigrant religious
worker visa under Reg. §214.2(r)--a regulation that includes the

11


patently arbitrary to treat such directly related work as
disqualifying the applicant.

Here, given the detailed--and uncontroverted--description of
the integral role that so many of Perez' musically oriented
activities play in worship services at El Buen Pastor, it is
really beyond dispute that his position as music director
qualifies as a religious occupation. And it is equally apparent
in light of his extensive religiously-grounded work that INS's
insistence--its contention that the absence of “a detailed and
specific course of training” (the language of its Nebraska
Service Center in ruling on Perez' application) somehow
disqualifies him--is an extraordinarily arbitrary and mechanistic
position.

But to turn to the origins and substantive sustainability of
that notion, both parties spend a great deal of energy discussing
two INS rulings (P. Exs. B & C) dating from 1993 and 1994, each
of which involved an INS reversal of a previous visa denial that
had been premised on a finding that the applicant's position was
not a “religious occupation.” Both rulings are silent as to
whether the applicant had or had not received any formal
religious training. Predictably each side puts its own spin on
that fact: INS urges that from the rulings’ silence on the

matter “it is probably safe to assume” that those applicants had

10


and-comment rulemaking or formal adjudication (United States v.
Mead Corp., 533 U.S. 218, 229-31 (2001)). All substantive rules
adopted by an agency--that is, rules that “create law, usually
implementary to an existing law”--must be implemented through

formal rulemaking procedures (Bd. of Trs. of Knox County Hosp. v.

Shalala, 135 F.3d 493, 500 (7th Cir. 1998)).

Mead, 533 U.S. at 234-35 teaches that lesser degrees of
deference are due to informal agency actions--those that do not
conform to the not ice-and-comment or other comparably formal

procedures. As U.S. Freightways Corp. v. Comm'r, 270 F.3d 1137,

1141 (7th Cir. 2001) (internal citations omitted) recently
explained:

After Mead, we know that we give full deference under
Chevron only to regulations that were promulgated with
full notice-and-comment or comparable formalities. We
also know that deference to agency positions is not an
all-or-nothing proposition; more informal agency
statements and positions receive more flexible respect,
in which factors like “the degree of the agency’s care,
its consistency, formality, and relative expertness,
and ...the persuasiveness of the agency’s position,”
are all relevant.

That more flexible approach is intended to ensure that agencies
do not “pass broad or vague regulations through notice-and-
comment procedures, and then proceed to create rules through ad
hoc interpretations that were subject only to limited judicial
review” (id. at 1142).

Informal agency interpretation of any of its own regulations

is entitled to judicial deference, but only when that


1. He selects the worship and praise songs for each
Sunday morning service, setting the order of the songs and
planning the order of the service with the Pastor (P. St.
(20).
2. He types and prints the music program for
congregation members, preparing comments and reflections on
the songs and linking them to relevant Bible verses (id.).
3. He reviews new Christian music for inclusion in the
congregation's repertoire.
4. He prays with and teaches the Bible to the church's
youth group on Saturday nights and provides spiritual
leadership and guidance to all members of the congregation
(BP. St. 921).
Moreover, even before his employment with El Buen Pastor Perez
worked for seven years as the music director of a church in
Maricaibo, Venezuela and for about ten months in the music
department of a church in Wheaton, Illinois (P. st. 422).

El Buen Pastor is a member of the Southern Baptist
denomination (P. St. §1). Baptists believe that music can be a
form of ministry and that they can express their relationship

with God through music (P. St. 48).3 To that end, for over 60

3 I. Resp. does not specifically admit or deny P. St. 948,
11, 12, 15 and 23, describing them as “statement [s] of opinion
not...of material fact.” That is really an improper
characterization of those paragraphs, which are drawn from
documents written by various officials of the Baptist church

3


of “religious occupation” suggests a reasonable “interpretation”
that includes a formal training requirement. This opinion can
assume without deciding that the implementation of a formal
training requirement is within the scope of INS authority under
the Act--but that in no way exempts INS £rom following the
mandatory formal rulemaking procedures before implementing such a
substantive rule. That it failed to do, and its failure is fatal
to the principal gravamen of its denial of Perez' application.

This Court therefore finds INS's denial of Perez’ visa
application on the ground that he lacks formal training as a
music director to be invalid.® INS's decision based on that
ground is vacated.

Conclusion

Neither side is entitled to judgment as a matter of law. As
this opinion has held, INS‘s motion fails because its visa denial
was premised on Perez’ failure to meet a rule that it implemented
in violation of the APA. But Perez’s motion also fails because
the present record does not establish--in a single respect

reserved by INS in its denial ruling--that he meets all other

® Because this Court finds that the formal training
requirement was imposed in violation of the APA, Count III of
Perez's Complaint--that any formal training requirement violates
the First Amendment because it would constitute a government-
imposed a test for determining a “traditional religious function”
that could be inconsistent with or contrary to the religious
teaching and practices of a religious organization--is rendered
moot. This opinion therefore does not reach the arguments

advanced by the parties on that issue.

14


represented, INS would be entitled to reject the visa petition on

Cle. DEatue,

Milton I. Shadur
Senior United States District Judge

that ground.

Date: August 5, 2002

16


outcome-determinative) fact in dispute that would bar victory as
a matter of law, the sum total of their submissions dictates
otherwise (albeit on a ground that surfaced only in the final
stage of the parties' briefing). For the reasons stated in this
memorandum opinion and order, (1) both Rule 56 motions are
denied, (2) INS's denial of Perez’ visa application is vacated
and (3) this action is remanded for a limited further proceeding.
Facts

Perez, a native and citizen of Venezuela, has been a member
of El Buen Pastor since November 1996 (I. St. 42). Since
December 1996 he has worked as that congregation’s music
director, a full-time paid position (I. St. 413, P. St. 418) .?

In that capacity Perez runs the church’s music programs by
organizing and directing several choirs, directing youth music
activities and purchasing and maintaining instruments (P. St.
419). In light of the INS's position described hereafter, it is
particularly appropriate to particularize the extensive nature of
Perez' religiously-oriented activities apart from simply playing

the piano and organ during church services:

2 I. Resp. 418 says INS “doles] not concede that [Perez]
has not done any other work besides working for the church.” In
addition to being non-responsive to the opposition's statement
(P. St. 918 says “Since December of 1996, Perez has served
without interruption as the paid, full-time music director at El
Buen Pastor”), INS has failed to support its assertion with any
citation to the record. Perez’ statement is therefore deemed
admitted under LR 56.1(b) (3) (B) (see Bordelon v. Chicago Sch.
Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000)).

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALEXIS D. PEREZ, et al.,
Plaintiffs,

v.

No. 01 C 5063 DOCKETED

AUG 0 7 2002

JOHN ASHCROFT, et al.,

Defendants.
MEMORANDUM OPINION AND ORDER

Alexis Perez (“Perez”) and Iglesia Bautista El Buen Pastor
(“El Buen Pastor”), invoking judicial review pursuant to 28
U.S.C, §2201(a) and 5 U.S.C. §703 (the Administrative Procedure
Act, or “APA”), seek a declaratory judgment that the final
decision of the United States Immigration and Naturalization
Service (“INS”) denying Perez’ immigration visa petition was
improper. Both sides have moved for summary judgment under Fed.
R. Civ. P. (“Rule”) 56 and have complied with this District
Court’s LR 56.1.*

Even though each of the litigants has proceeded on the

premise that there are no genuine issues of material (that is,

* LR 56.1 is designed to facilitate the resolution of Rule
56 motions by calling for evidentiary statements and responses to
such statements (in each instance with record citations), thus
highlighting the existence or nonexistence of factual disputes.
This opinion cites to INS's LR 56.1(a)(3) statement as “I. St.
--” and to Perez’ 56.1(b) (3) (B) statement of additional facts as
“P. St. § --.” “I. Resp.” designates INS’s brief response to
part of P. St. Perez has not disputed any of the statements in
I. St. This opinion employs the same “I.” and “P.” abbreviations

when referring to the parties’ memoranda. be


the INS properly promulgated that rule.

Promulgation of the Rule

There is no dispute that INS did not engage in any sort of
formal rulemaking process before adopting the requirement of
formal religious training. Perez argues that the INS adopted
that requirement in violation of the APA, because it is a
substantive rule adopted without the use of notice-and-comment or
other formal rulemaking procedures. INS argues to the contrary
that the formal training requirement is simply an interpretation
of the Regulations--more specifically, of the definition of
“religious occupation”--and that therefore no formal rulemaking
was necessary. Perez wins that argument.

As Perez points out, the Regulations define “religious
occupation” solely on the basis of the nature of the work a
person performs:

Religious occupation means an activity which relates to
a traditional religious function.

To be sure, that regulation is not entirely unambiguous in all
respects. Some informal interpretation--for example, a

determination of what qualifies as a “traditional” function of a

same definition of “religious occupation” as the Regulations
here--in which INS explicitly admitted that “an individual may be
seen to be functioning within a religious occupation (for
purposes of an R-1 visa application) even though the individual
has had no prior experience or training in that occupation”
(Tenacre Found. v. INS, 78 F.3d 693, 697 (D.C. Cir. 1996)
(emphasis omitted)).

12


criteria for receipt of a religious worker visa.

Some explanation on that last point is needed. At the end
of the INS ruling, it stated without elaboration that El Buen
Pastor had failed to establish its ability to pay Perez the
proffered wage, as required by Reg. §204.5(g) (2). That issue had
not been raised in the ultimate visa denial nor in any INS
requests for additional information. But INS has again raised it
in a footnote to its most recent submission (I. R. Mem. 1 n.1),
and Perez has responded with a brief submission of his own.
Because that suffices to create a genuine issue of material
fact,® Perez also cannot obtain a final favorable judgment here
and now.

This action is therefore remanded solely to enable El Buen
Pastor to make a showing to INS that it is able to pay Perez the
proffered wage. As and when such a showing is made (as would
appear to pose no problem, given the effort and expense that have
been devoted to the current controversy), INS is ordered to grant
Perez a religious worker visa. If however it were to turn out

that El Buen Pastor cannot pay Perez as it and he have

° INS also found that Perez had failed to demonstrate that
he had been employed as a religious worker for two years prior to
the application, but that finding was based on the rationale that
his position as El Buen Pastor’s music director did not qualify
was a religious occupation because he did not have formal
training (P. Ex. A at 0004). INS does not dispute that Perez had
worked as music director for more than two years at the time he
made his application (see n. 2).

15