Shalom Pentecostal Church v. Acting Secretary United States Department of Homeland Security

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 13-4434
_____________

SHALOM PENTECOSTAL CHURCH;
CARLOS ALENCAR

v.

ACTING SECRETARY UNITED STATES DEPARTMENT
OF HOMELAND SECURITY; DIRECTOR UNITED
STATES CITIZENSHIP AND IMMIGRATION SERVICES;
DIRECTOR OF THE CALIFORNIA SERVICE CENTER
OF USCIS; DIRECTOR UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES ADMINISTRATIVE
APPEALS OFFICE, in their official capacity,
Appellants
_____________

Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-11-cv-04491)
District Judge: Honorable Renee Marie Bumb
_____________

Argued: September 8, 2014
 Before: RENDELL, GREENAWAY, JR., and KRAUSE,
Circuit Judges

(Opinion filed April 7, 2015)
_____________

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

Counsel for Appellees

GEOFFREY FORNEY, ESQUIRE (Argued)
United States Department of Justice
Office of Immigration Litigation
Room 6223
450 5th Street, N.W.
Washington, DC 20001

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

SCOTT D. POLLOCK, ESQUIRE
Suite 2200
105 West Madison

2
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 immigrant religious
worker” if the immigrant meets certain statutory criteria,
including that he has been “carrying on” religious work for at
least the two years preceding the filing of the visa petition.
This case presents the question whether 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. None of our sister Courts of
Appeals have yet weighed in on this issue, but the District
Court here concluded that the regulation 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 regulation
but will reverse and remand for further fact-finding on the
remaining visa criteria.

3
I. Factual Background 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 work 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 would 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 religious 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’s

4
appeal, concluding, consistent with the Regulation, that
Alencar’s “religious 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, invalidating 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 below that the
Regulation violates the Religious 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 Appellees 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).

5
 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 ability, (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—the special immigrant religious worker program—
permits ministers 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 permanent resident (LPR) through the special
immigrant religious worker program, an alien 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
of 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 religious denomination

3
At the second step of this process, an alien with an
approved visa petition who is already in the United States
may seek adjustment to LPR status, 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 consulate. 8 C.F.R.
§ 204.5(n).

6
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 minister
or in another religious vocation, and (3) the “carrying on” of
such religious work continuously for 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 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;
(ii) seeks to enter the United States—
(I) solely for the purpose of carrying 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 the

7
 As it is authorized to do under 8 U.S.C. § 1103(a)(3),
CIS has promulgated regulations elaborating on these
statutory qualifications. Under the regulations, the visa
petition procedure begins when either an alien or a person on
the alien’s behalf applies 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 purpose 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 both full time and compensated. 8
C.F.R. § 204.5(m)(2).

In 2008, CIS amended 8 C.F.R. § 204.5(m) to require
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 immigrant 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 work continuously
for at least the 2-year period described in clause
(i).

8 U.S.C. § 1101(a)(27)(C).

8
immigration law.” 8 C.F.R. § 204.5(m)(11). The Regulation
thus disqualifies applicants like Alencar who did “carry on”
otherwise qualifying religious work during the two years
before they filed a visa application but did 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 we 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 Government raises two issues on appeal. First, it
contends that Alencar and the Church lack standing to
challenge the denial of the I-360 petition. Specifically, the
Government 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.

9
 A. Standing

1. Constitutional Standing

Article III of the Constitution requires that a plaintiff
establish standing in order for his case to be justiciable.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992).
Constitutional standing has three elements: injury in fact,
causation, and redressability. Id. at 560-61. Here, the
Government challenges only the third. For an injury to be
redressable, the plaintiff 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 is 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 asserts 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).) Even if an I-360 visa is granted, the Government
points out, an alien is statutorily ineligible 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 in
the United States for one year or more is inadmissible to the
United States for ten years from his date of departure. 8
U.S.C. §§ 1182(a)(9)(B)(i)(II); 1201(g)(1). Alencar worked
in unlawful immigration status for more than 180 days and
has been present unlawfully in the United States for more

10
than one year. Hence, he will be ineligible for adjustment of
status for at least ten years.

This syllogism, 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, redressability 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, where 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 status. While obtaining a visa is a
prerequisite to applying for LPR status, the INA makes clear
that the visa petition process and the adjustment of status
process are distinct. Compare 8 U.S.C. § 1153, with 8 U.S.C.
§ 1255; see Matter of O-----, 8 I & N Dec. 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 . . . .”). Even the
Government acknowledges that “the INA sets forth distinct
criteria 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
Monsanto Co. v. Geertson Seed Farms, where the Court

11
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, 151-53 (2010) (holding that farmers had
standing to challenge 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, that 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 the
visa petition stage the redressability of a different and
potential injury, i.e., Alencar’s prospects for eventual
adjustment 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—ordinarily 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.

12
§§ 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 the injury at that first stage is
redressable by judicial action, and Appellees therefore have
constitutional standing to challenge the denial of the I-360
petition.

2. Regulatory Standing

The Government contends that Alencar cannot
proceed, even if he has Article III standing, because a CIS
regulation, 8 C.F.R. § 103.3(a)(1)(iii)(B), authorizes 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). Courts have relied
on this regulation to uphold 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. 2007); 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).

13
of administrative proceedings, this regulation 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 petition, rendering the alien the “beneficiary” and,
consistent 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 religious workers, “the alien, or any
person in the alien’s behalf” has standing to file. For 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, includes the special immigrant religious worker
himself.

3. The Zone-of-Interests Test

Even where standing is otherwise satisfied, an
aggrieved party may be precluded from pursuing relief if the
interest it seeks to vindicate falls outside the “zone of

6
In any event, the cases relied upon 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 proceedings 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); Maramjaya v. USCIS, No. 06-
2158, 2008 WL 9398947, at *4 (D.D.C. Mar. 26, 2008).

14
interests” protected by the statute invoked. Lexmark Int’l,
Inc. v. Static Control Components, Inc., 134 S. Ct. 1377,
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 labor, 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, the zone-of-interests test for actions
under the APA is “not especially 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 Congress
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 visa petition applicants, and special
immigrant religious workers in particular, are directly related

7
The Supreme Court has criticized the use of
“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 misnomer”). Therefore, erstwhile “prudential
standing” is referred to here as the “zone-of-interests test.”

15
to the purposes of the INA. The statute specifies the five
categories of workers who receive preferential treatment in
the visa process. 8 U.S.C. § 1153(b). For special immigrant
religious workers, it provides visas 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 still seek
permanent residence as long as they have worked no more
than 180 days 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 job, religious workers need
only show that they 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 affirmative steps in the
INA to enable qualified foreign workers to provide services to
religious organizations within the United States. See Patel,
732 F.3d at 636-37 (collecting authority); H.R. Rep. 101-
723(I) (1990); see also Br. of Amicus Curiae American
Immigration 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 Congress
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 Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). If Congress has directly and clearly spoken to the

16
question at issue, our Chevron analysis 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, we carefully
scrutinize the plain text of 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 must . . . interpret the statute
as a symmetrical and coherent regulatory scheme, and fit, if
possible, all parts 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, professional 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”—defined 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 the 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 avocation or

17
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/view/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 should 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” would 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
permanent 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 unauthorized 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 less

18
 Furthermore, in 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” but makes
no mention of “lawfully.” Elsewhere 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 identification 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 aliens who are the victims of severe
human trafficking to engage in employment during the period
they are in “lawful temporary resident status”); 8 U.S.C.
§ 1153(a)(2)(A), (B) (alloting visas 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 the 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. Walker,
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).

19
(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 there can be no doubt Congress was well aware
that special immigrant religious workers may have worked
illegally before applying for legal status: An alien 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 “was 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, the
INA specifically carves out an exception to allow for
adjustment of status—even if the alien engaged 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 backdrop, 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, 902

20
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
distinctions 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
arguments that § 1101(a)(27)(C)(iii) must be read in
connection 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 carved out just such an exception for the
adjustment of status of special immigrant religious workers
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 persuaded that, when Congress directed
CIS to issue regulations specific to fraud in the special
immigrant nonminister religious worker program (the
“Nonminister Program”), it thereby acknowledged ambiguity
in the work qualifications for ministers. Special Immigrant
Nonminister Religious Worker Program Act, Pub. L. No.
110-391, 122 Stat. 4193 (2008); see 8 U.S.C.
§ 1101(a)(27)(C)(ii)(II), (III). The Government submits 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). Some parts of
this rule were clearly designed to address fraud in the

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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 religious 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 particular 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 reauthorizing the
Nonminister Program four times since DHS adopted the
Regulation.9 However, the 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
Religious Worker Program, Pub. L. No. 111-9 § 1, 123 Stat.
989 (2009).

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contradicted by clear and unambiguous evidence of
Congress’s intent, reflected here in the plain language of
§ 1101(a)(27)(C)(iii).

In sum, by its plain terms and consistent with Russello
and applicable canons of statutory construction, 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 the
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, the District Court
concluded that remand would be futile and ordered CIS to
grant the petition because it had offered no alternative ground
for denial of Alencar’s petition. Given the outcome dictated
by the Regulation, however, CIS had no occasion to consider
whether Alencar meets 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 reach its own conclusions
based on 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.

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 * * *

For these reasons, we will affirm that portion of the
District Court’s order granting summary judgment and
striking 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.

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