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Gabriel Ruiz-Diaz v. United States

October 5, 2012

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 NAPOLITANO, SECRETARY OF DEPARTMENT OF HOMELAND 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 D.C. No. 2:07-cv-01881-RSL

The opinion of the court was delivered by: Schroeder, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted August 27, 2012-Seattle, Washington

Before: Mary M. Schroeder and Ronald M. Gould, Circuit Judges, and Jed S. Rakoff, Senior District Judge.*fn1

Opinion by Judge Schroeder

OPINION

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 special immigrant religious worker visas. They challenge a Justice Department regulation governing the process by which religious workers can apply for adjustment of status pursuant to 18 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 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 third-preference 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. RuizDiaz v. United States, 618 F.3d 1055 (9th Cir. 2010).

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." RuizDiaz, 618 F.3d at 1061.

RELIGIOUS FREEDOM RESTORATION ACT

[1] 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. ยง 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 ...


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