Nat'l Capital Presbytery v. Mayorkas

567 F.Supp.3d 230

NATIONAL CAPITAL PRESBYTERY et al., Plaintiffs,

v.Alejandro N. MAYORKAS et al., Defendants.¹

Civil Action No. 18-2681 (TJK)

United States District Court, District of Columbia.

Signed October 19, 2021

Olsi Vrapi, Noble & Vrapi, P.A., Albuquerque, NM, Thomas K. Ragland, Clark Hill PLC, Washington, DC, for Plaintiffs.

Katherine Boyd Palmer-Ball, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants Kirstjen M. Nielsen, L. Francis Cissna, U.S. Citizenship And Immigration Services, United States of America.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

Plaintiffs challenge Defendants' denial of National Capital Presbytery's petition to renew the nonimmigrant religious worker visa for one of its congregation's ministers. They argue the denial violated the Religious Freedom Restoration Act and the Administrative Procedure Act. They also seek a writ of mandamus. Before the Court are the parties' cross-motions for summary judgment. For the reasons explained below, the Court will grant both motions in part and deny them in part and remand the matter to the agency for further proceedings.

I. Background

A. Statutory and Regulatory Background

"The Immigration and Nationality Act allows ministers and other religious workers to enter and stay in the United States under a non-immigrant visa, known as an R-1 visa, for up to five years." Iglesia Pentecostal Casa de Dios Para Las Naciones, Inc. v. Duke , 718 F. App'x 646, 648 (10th Cir. 2017) ; see also 8 U.S.C. § 1101(a)(15)(R), (27)(C)(ii) ; 8 C.F.R. §§ 204.5(m), 214.2(r). "To obtain the visa, a religious organization seeking to hire and sponsor an R-1 applicant petitions the United States Citizenship and Immigration Services ("USCIS")." Iglesia Pentecostal , 718 F. App'x at 648. "The petitioner must: (1) establish that the R-1 applicant has been a member of the same denomination as the petitioner for at least two years preceding the petition ... and (2) demonstrate its intention and ability to compensate the R-1 applicant." Id.

A petitioner can show how it intends to compensate an R-1 applicant by submitting several types of documents to USCIS. See 8 C.F.R. § 214.2(r)(11). The petitioner must "state how the petitioner intends to compensate the alien, including specific monetary or in-kind compensation, or whether the alien intends to be self-supporting. In either case, the petitioner must submit verifiable evidence explaining how the petitioner will compensate the alien." Id. Evidence of compensation "may include past evidence of compensation for similar positions; budgets showing monies set aside for salaries, leases, etc.; verifiable documentation that room and board will be provided; or other evidence acceptable to USCIS." Id. § 214(r)(11)(i). If the petitioner can submit IRS documents "such as IRS Form W-2 or certified tax returns," it must do so. Id. If not, "the petitioner must submit an explanation for the absence of IRS documentation, along with comparable, verifiable documentation." Id. The petitioner "must prove by a preponderance of evidence that he or she is eligible for the benefit sought." Matter of Chawathe , 25 I & N. Dec. 369, 375 (2010).

B. Procedural Background

Presbyterian Church USA is the largest Presbyterian denomination in the United States. ECF No. 23-1 ¶ 1. The Church is divided into many regional presbyteries, which are subdivided into local congregations. Id. The Church, regional presbyteries, and local congregations are all distinct legal entities, but they act as "one ecclesiastical body." Id. National Capital Presbytery ("NCP") is a regional presbytery and Mizo Presbyterian Church ("Mizo") is a local congregation within NCP's geographic bounds. ECF No. 1-4 at 2. Both are chartered entities under the Presbyterian Church. ECF No. 23-1 ¶¶ 2, 4. The Church's governing document is the Book of Order. Id. ¶ 3. Section G-2.0505 of the Book allows presbyteries, including NCP, to "recognize the ordination and receive as a member of presbytery a new immigrant minister" for "immigrant fellowships and congregations." Id.

In 2014, NCP filed an I-129 petition for an R-1 visa for Reverend Lal Engzau, an ordained Presbyterian minister and citizen of Myanmar. Id. ¶ 5 NCP represented that it would offer Rev. Engzau $43,041 in annual compensation: "$16,786 for wages; $14,868 for housing; $3,684 for utilities; $2,703 for ‘Self Employment Contribution Act’; and $5,000 for medical insurance." ECF No. 19-2 ¶ 21. In 2015, USCIS approved the petition, ECF No. 23-1 ¶ 5, and in April of that year, Rev. Engzau and his wife were admitted to the United States. ECF No. 1-2 at 5.

In July 2017, NCP petitioned to renew Rev. Engzau's visa.² ECF No. 19-2 ¶ 1. In its petition, NCP represented that it would offer the following compensation package to Rev. Engzau: "$33,000 for wages; $3,000 for ‘Self Employment Contribution Act’; and $14,000 for medical insurance." ECF No. 19-2 ¶ 2. This reconfiguration of Rev. Engzau's compensation package reflected NCP's decision in 2016 to structure his compensation to "combine salary, housing and utility payments in to a salary." ECF No. 1-2 at 5. NCP also attested that it was "willing and able to provide salaried or non-salaried compensation to [Rev. Engzau]," ECF No. 19-2 ¶ 3, and certified that it was the "Employing Organization," id. ¶ 4.

NCP submitted several documents with its petition. The documents included Rev. Engzau's employment contract, Mizo church's budget, checks from Rev. Engzau's personal checking account to a utility company, and proof that Mizo had made out three checks to Rev. Engzau in June 2017—two for $1,375 for the pay periods of that month, and a third check for $105.47 with "TA" written in the memo line. Id. ¶¶ 6–8, 11. The documents also included a housing contract showing that Rev. Engzau and his wife were tenants under a lease signed by Mizo, and that Mizo was responsible for lease payments of $11,358, $7,400, and $14,500 in 2015, 2016, and 2017, respectively. Id. ¶ 9–10.

NCP also provided various tax documents. Id. ¶ 12. Rev. Engzau's 2015 W-2 reflected Mizo paid him a salary of $12,979 and provided housing worth $12,979. Id. ¶ 13. His 2015 Form 1040 also showed he received a salary of $12,979. Id. ¶ 14. His 2016 W-2 stated that he received a salary and housing from Mizo, both worth $16,000. Id. ¶ 15. And his 2016 Form 1040 likewise reflected a salary of $16,000. Id. ¶ 16. None of the petition documents reported any health insurance or utility payment compensation to Rev. Engzau. Id. ¶¶ 17–18.

In September 2017, USCIS issued a request for evidence ("RFE") pertaining to, among other things, Rev. Engzau's compensation. Id. ¶¶ 22–23. USCIS raised two compensation-related issues. Id. ¶¶ 24–25. First, USCIS noted that the documents NCP submitted revealed that Mizo—not NCP—compensated Rev. Engzau in violation of the requirement "that the petitioner compensate the beneficiary, not a third-party organization." ECF Nos. 1-5 at 4; 19-2 ¶ 24; 23-1 ¶ 7. Second, USCIS stated that "even if third-party compensation were permissible, no evidence of medical insurance was found, and the wage and tax statement reflects that Mizo [ ] provided a salary less than $16,786." ECF No. 1-5 at 4.

NCP responded to USCIS by submitting a letter from Reverend Karen Chamis. ECF No. 19-2. ¶ 26. Rev. Chamis explained that "based on [the Presbyterian Church's] connectional theology [ ] [NCP] petitioned for Rev. Lal Engzau to serve at the Mizo church." Id. ¶ 27. Rev. Chamis submitted additional documents to USCIS, including: (1) a portion of a residential dwelling lease listing Rev. Engzau and his wife as tenants and showing rent of $1,450 per month for May 2015 through April 2016; (2) an addendum to the residential lease dated April 2016 extending its terms through May 2017; (3) a 2016 IRS Form 1095-A (Health Insurance Marketplace Statement) reflecting health insurance coverage for Rev. Engzau and his wife, and reflecting annual total costs of about $6,000; and (4) dental insurance cards for both of them and a dental health plan application summary. Id. ¶ 28. NCP also submitted a bank account statement showing more than sufficient funds to pay Rev. Engzau's salary going forward. ECF No. 23-1 ¶ 8.

In January 2018, the Director of the USCIS California Service Center denied NCP's renewal petition. ECF No. 19-2 ¶ 31. The Director concluded the record did not credibly establish that NCP intended to provide Rev. Engzau the petition's proposed compensation for two reasons. Id. First, NCP had not shown it, as the petitioner, intended to compensate Rev. Engzau because it did not "control[ ] the funds of [Mizo] or can otherwise legally require that [Mizo] provide any particular amount or form of compensation to the beneficiary." ECF No. 1-1 at 4–5. Second, the Director found that NCP had not shown that it could pay Rev. Engzau the stated compensation because "[e]ven if [Mizo] acts on [NCP's] behalf, the fact that [NCP], through [Mizo], did not provide the beneficiary a salary of $16,786 in 2016 in accordance with the terms of the prior petition casts doubt on [NCP's] intention to provide the beneficiary a salary of $33,000 in accordance with the terms of the instant position." Id. at 5. The Director added that NCP's other evidence did not "acknowledge or address the [intended compensation] inconsistency," id. , nor establish, by preponderance of the evidence, that NCP "intend[ed] to provide the beneficiary the proposed compensation." Id.

NCP appealed the denial to the USCIS Administrative Appeals Office ("AAO"). ECF No. 19-2 ¶ 38. NCP acknowledged the "inconsistent reporting of the compensation package" between the initial Form I-129 petition and the renewal petition. Id. ¶ 41. But it explained it had "changed its compensation guidelines in between the two filings which created some appearance that the compensation packages were very different and that Reverend Engzau was not getting paid what the church...