FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOVE KOREAN CHURCH; DAE SONG
PARK,
Plaintiffs-Appellants,
v.
MICHAEL CHERTOFF, Secretary of No. 07-55093
the United States Department of
Homeland Security; JONATHAN D.C. No.
CV-05-09021-RJK
SCHARFEN,* Acting Director of
OPINION
United States Citizenship and
Immigration Service; DONALD W.
NEUFELD, Director of USCIS
California Service Center,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Robert J. Kelleher, District Judge, Presiding
Argued and Submitted
June 2, 2008—Pasadena, California
Filed December 5, 2008
Before: William C. Canby, Jr., Jay S. Bybee, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Canby
*Jonathan Scharfen, is substituted for his predecessor, Emilio T. Gonza-
lez, as Acting Director of the United States Citizenship and Immigration
Service, pursuant to Fed. R. App. P. 43(c)(2).
16019
16022 LOVE KOREAN CHURCH v. CHERTOFF
COUNSEL
Richard Sunghwan Kim, Los Angeles, California, for the
plaintiffs-appellants.
Keith M. Staub, Assistant United States Attorney, Civil Divi-
sion, Los Angeles, California, for the defendants-appellees.
OPINION
CANBY, Circuit Judge:
Love Korean Church (the “Church”) appeals an order of
the district court affirming the Bureau of Citizenship and
Immigration Services’ (“CIS”) revocation of a visa petition
filed by the Church on behalf its choir director. The Church
LOVE KOREAN CHURCH v. CHERTOFF 16023
had sought to have its choir director, a Korean citizen, classi-
fied as a “special immigrant” religious worker within the
meaning of 8 U.S.C. § 1101(a)(27)(C). Because the revoca-
tion of the visa petition was predicated on legal error and
findings of fact unsupported by substantial evidence, we
vacate the judgment of the district court and remand this case
for further consideration by the agency.
BACKGROUND
Love Korean Church is a non-profit religious organization
affiliated with the Korean Presbyterian denomination. The
Church was originally established in the 1980s to meet the
spiritual needs of the growing Korean-American community
in the Los Angeles area. The Church views religious music as
a form of worship and an integral component of its ritual cele-
brations.
Since 1994, the Church has benefitted from the work of
Dae Song Park, a native and citizen of the Republic of Korea.
Park was originally admitted to the United States as a tempo-
rary visitor in January 1994. Shortly after his arrival, he
became a member of the Church and began serving as its
choir director on a volunteer basis. In 1995, Park successfully
adjusted his immigration status to that of a full-time student,
so that he could attend English language courses at a local
school. In January 1997, Park transferred to California Union
University, where he enrolled in music classes and began pur-
suing a Master’s degree in music. Throughout this time and
until September 1998, Park continued serving as the Church’s
volunteer choir director. In October of 1998, when Park’s
application for adjustment of status to religious worker was
pending and permitted employment, the Church hired him as
a full-time salaried choir director.
During the period from March 1997 to November 2001, the
Church filed on Park’s behalf three I-360 petitions for a reli-
gious worker visa. This appeal concerns only the third peti-
16024 LOVE KOREAN CHURCH v. CHERTOFF
tion, which the CIS initially approved.1 In September 2003,
CIS issued a Notice of Intent to Revoke the approved petition,
stating that Park’s “duties do not relate to a traditional reli-
gious function. The tenets of a particular religious denomina-
tion should have significance on the performance of the duties
of the position being offered.”
CIS subsequently revoked the approved third I-360 peti-
tion. CIS found that Park was a full-time student during the
two-year period from November 1999 to November 2001, and
he therefore could not have been carrying on full-time sala-
ried work as choir director for the Church. It also concluded
that the duties listed in the Church’s petition could be per-
formed by a part-time volunteer and did not reflect a full-time
position.
The Church filed an administrative appeal of the decision
revoking the third I-360 petition which the Administrative
Appeals Office (“AAO”) dismissed. First, the AAO pointed
out some discrepancies between two documents submitted by
the Church in support of its petition—a weekly work schedule
and a diagram summarizing Park’s duties between November
1999 and November 2001—and noted that the Church had
submitted no evidence to explain the inconsistencies. The
AAO next concluded that the position as described in the
Church’s weekly work schedule did not qualify as a “religious
occupation” under the statute and regulations because: (1) the
Church failed to establish that all the duties listed in the
weekly work schedule were related to the position of choir
director and were not primarily secular in nature ; and (2) the
position had not been shown to be (a) directly related to the
Church’s religious creed, (b) recognized by the governing
body of its denomination, and (c) traditionally a permanent,
full-time, salaried occupation within the denomination.
1
The first petition was denied. The second was approved but revoked
two days after revocation of the third petition. In the present proceeding,
the Church contests only the revocation of the third petition.
LOVE KOREAN CHURCH v. CHERTOFF 16025
Finally, the AAO concluded that the evidence did not estab-
lish that Park was continuously engaged as choir director dur-
ing the two years immediately preceding the filing of the visa
petition, because the work schedule indicated that Park served
at most thirteen hours per week in music-related activities.2
Park and the Church filed an action for declaratory relief in
the district court, claiming that the revocation of the third I-
360 petition was not supported by “sufficient and good
cause.” The district court granted summary judgment for the
government. This appeal followed.
DISCUSSION
The district court’s jurisdiction to review CIS’ revocation
of the Church’s visa petition is predicated on 28 U.S.C.
§ 1331 and reinforced by the enactment of the Administrative
Procedure Act (“APA”), 5 U.S.C. § 701(a)(2). ANA Int’l, Inc.
v. Way, 393 F.3d 886, 890 (9th Cir. 2004) (holding that visa
revocations pursuant to 8 U.S.C. § 1155 are not made unre-
viewable by either 8 U.S.C. § 1252(a)(2)(B)(ii) or 5 U.S.C.
§ 701(a)(2)). Our appellate jurisdiction arises under 28 U.S.C.
§ 1291, and we review de novo the district court’s grant of
summary judgment. Spencer Enters., Inc. v. United States,
345 F.3d 683, 692 (9th Cir. 2003). Under the APA, we will
reverse an agency’s action if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,”
5 U.S.C. § 706(2)(A), or if its factual findings are “unsup-
ported by substantial evidence,” Mester Mfg. Co. v. INS, 879
F.2d 561, 565 (9th Cir. 1989). To the extent the agency “inter-
pret[ed] its own regulation, even if through an informal pro-
2
The AAO’s dismissal does not rely, as CIS did, on the ground that Park
was not employed full-time because he was a full-time student during the
relevant period. The AAO acknowledges that “the record . . . does not
reflect that the beneficiary attended school during the qualifying two-year
period” and that “the petitioner appears to have paid the beneficiary for his
services during the two years immediately preceding the filing of the visa
petition.”
16026 LOVE KOREAN CHURCH v. CHERTOFF
cess, its interpretation of an ambiguous regulation is
controlling . . . unless ‘plainly erroneous or inconsistent with
the regulation.’ ” Bassiri v. Xerox Corp., 463 F.3d 927, 930
(9th Cir. 2006) (quoting Auer v. Robbins, 519 U.S. 452, 461
(1997)).3
I.
As a threshold matter, we consider whether the existence of
some discrepancies in the materials submitted by the Church
in support of its I-360 petition requires us to affirm the district
court’s judgment without reaching the merits of this appeal.
The Church carried the burden of proof throughout the pro-
ceedings to revoke the previously granted visa petition. 8
U.S.C. § 1361; Tongatapu Woodcraft Haw., Ltd. v. Feldman,
736 F.2d 1305, 1308 (9th Cir. 1984). Moreover, we defer to
the BIA’s reasonable interpretation of § 1361, which makes
“it . . . incumbent upon the petitioner to resolve the inconsis-
tencies by independent objective evidence. Attempts to
explain or reconcile the conflicting accounts, absent compe-
tent objective evidence pointing to where the truth, in fact,
lies, will not suffice.” Matter of Ho, 19 I. & N. Dec. 582, 591-
92 (BIA 1988). Under appropriate circumstances, “[d]oubt
cast on any aspect of the petitioner’s proof may . . . lead to
a reevaluation of the reliability and sufficiency of the remain-
ing evidence offered in support of the visa petition.” Id. at 591
(emphasis added).
3
Contrary to the Church’s contention, our analysis is not affected by the
fact that this case arises out of a visa petition revocation as opposed to the
initial denial of a visa petition. CIS may revoke an approved visa petition
for “good and sufficient cause.” 8 U.S.C. § 1155. The Bureau of Immigra-
tion Appeals (“BIA”) has reasonably interpreted this statutory requirement
to be satisfied if “the evidence of record at the time the decision was
issued . . . warranted . . . [a] denial” of the petition. Matter of Estime, 19
I. & N. Dec. 450, 452 (BIA 1987). We therefore review the agency’s revo-
cation as if it were an initial denial of the Church’s petition. See Garcia-
Quintero v. Gonzales, 455 F.3d 1006, 1012-13 (9th Cir. 2006) (Chevron
deference is appropriate when a multi-member panel of the BIA construes
an immigration statute in a published disposition).
LOVE KOREAN CHURCH v. CHERTOFF 16027
The AAO’s decision in this case did not rest, however, on
an adverse credibility finding based on the inconsistent
records that caused it to reject the Church’s other evidence. It
true that the AAO noted unresolved discrepancies between the
duties of the Church’s choir director as listed in its weekly
work schedule and the summary of those duties contained in
the diagram. The AAO apparently (and properly) resolved
these discrepancies against the Church, which had the burden
of proof. The AAO did not state, however, that the discrepan-
cies tainted the credibility of the other evidence, and it
reached the merits of the Church’s visa petition in light of that
other evidence.4 Because our review of an agency decision is
limited to the reasoning articulated by the agency, SEC v.
Chenery Corp., 318 U.S. 80, 87 (1943), we may not now
reject the entirety of the evidence submitted by the Church
when the agency did not do so. We therefore reach the merits
of the Church’s petition and review the legal and factual suffi-
ciency of the agency’s reasoning, mindful that any inconsis-
tency must be resolved against the petitioner. See Matter of
Ho, 19 I. & N. Dec. at 591.
II.
Turning to the merits of this appeal, we first consider
whether the position of choir director as defined in the
Church’s I-360 petition and supporting materials qualifies as
a “religious occupation” within the meaning of the statute. By
statute, up to 5000 permanent resident visas are set aside
every year for “special immigrant” religious workers other
than ministers. 8 U.S.C. § 1153(b)(4). A “special immigrant,”
as that classification pertains to ministers and other religious
workers, is defined as:
4
We need not decide whether it would be per se “arbitrary” or “capri-
cious” for the agency to indulge in such “falsum in unum, falsum in omni-
bus” fact-finding prerogative without providing an opportunity for a
hearing. 5 U.S.C. § 706(2)(A).
16028 LOVE KOREAN CHURCH v. CHERTOFF
[A]n 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 mem-
ber 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 October 1, 2008, 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 October 1, 2008, in order to
work for the organization (or for a bona
fide organization which is affiliated with
the religious denomination and is exempt
from taxation as an organization described
in section 501(c)(3) of Title 26) at the
request of the organization in a religious
vocation or occupation; and,
(iii) has been carrying on such vocation, profes-
sional work, or other work continuously for at least
the 2-year period described in clause (i);
8 U.S.C. § 1101(a)(27)(C). The implementing regulation
defines the key term “religious occupation” as follows:
Religious occupation means an activity which
relates to a traditional religious function. Examples
LOVE KOREAN CHURCH v. CHERTOFF 16029
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 care
facilities, missionaries, religious translators, or reli-
gious broadcasters. This group does not include jani-
tors, maintenance workers, clerks, fund raisers, or
persons solely involved in the solicitation of dona-
tions.
8 C.F.R. § 204.5(m)(2). Following CIS’ interpretation of the
term “religious occupation,” the AAO required that all duties
proposed by the Church be related to the position of choir
director and not be primarily secular in nature. It also required
a showing that the position of choir director must have been
“traditionally a permanent, full-time, salaried occupation
within the denomination.” (Emphasis added).5 We consider
and reject each ruling in turn.
A.
We first address whether the AAO decision can be affirmed
because the weekly work schedule does not establish that “all
the duties listed [therein] are related to the position of choir
director and are not primarily secular in nature.” (Emphasis
added). We conclude that the standard imposed by the AAO
—namely, that all the duties of a proposed position must be
“not primarily secular in nature” and must be “related” to reli-
gious activities—is inconsistent with the definition of “reli-
5
In its decision, the AAO articulated two additional grounds for dis-
missing the Church’s appeal—namely, the supposed absence of evidence
in the record that the position of choir director is directly related to the
Church’s religious creed and that the position is defined and recognized
by the governing body of its denomination. At oral argument, counsel for
the government conceded that neither of these findings is supported by
substantial evidence. We therefore reject these rulings for lack of a factual
basis, and do not address the validity of the legal standards they employ.
16030 LOVE KOREAN CHURCH v. CHERTOFF
gious occupation” set forth in the regulation, 8 C.F.R.
§ 204.5(m)(2).
[1] Although the agency’s interpretation of 8 C.F.R.
§ 204.5(m)(2) presents a question of first impression in this
Circuit, we find guidance in the approach adopted by the
Third Circuit in a similar case, Soltane v. U.S. Dept. of Jus-
tice, 381 F.3d 143 (3d Cir. 2004). In Soltane, then-Judge Alito
explained that the regulation’s specific exclusion of certain
workers “who perform wholly secular functions” does “not
mean that a person cannot qualify as having a ‘religious occu-
pation’ if the worker’s job includes both secular and religious
aspects.” Id. at 150. The court noted that the commentary to
the regulation supported the exclusion of some occupations on
the ground that “[i]f [a] job has no religious significance, then
the fact that a person is a member of a religious denomination
working in a facility run by the denomination would not by
itself make that person a religious worker.” Id. (quoting 56
Fed. Reg. 66,965 (Dec. 27, 1991) (emphasis added)). It con-
cluded, however, that “[t]o the extent that the AAO read[s]
§ 204.5(m)(2) as requiring that a ‘religious occupation’
involve only religious functions, . . . its interpretation is incon-
sistent with the text of the regulation and other indications of
the agency’s intent and is accordingly not entitled to defer-
ence.” Id.
[2] We join the Third Circuit in rejecting an interpretation
of 8 C.F.R. § 204.5(m)(2) that would require each discrete
duty of a qualifying religious occupation to be primarily non-
secular and directly related to core religious activity. The reg-
ulation provides illustrative “[e]xamples” of several qualify-
ing positions—“liturgical workers, religious instructors,
religious counselors, cantors, catechists, workers in religious
hospitals or religious health care facilities, missionaries, reli-
gious translators, or religious broadcasters”—as well as some
that do not qualify—“janitors, maintenance workers, clerks,
fund raisers, or persons solely involved in the solicitation of
donations.” 8 C.F.R. § 204.5(m)(2) (emphasis added). The
LOVE KOREAN CHURCH v. CHERTOFF 16031
feature that distinguishes the first group from the second is
not that each discrete duty in a qualifying worker’s daily rou-
tine is religious, “not primarily secular” or directly related to
an exclusively religious activity, as the AAO required in this
case. “It is difficult to imagine any position with any religious
organization that would not involve a small amount of admin-
istrative duties.” Perez v. Ashcroft, 236 F. Supp. 2d 899, 904
(N.D. Ill. 2002). Rather, the unifying feature of the enumer-
ated qualifying occupations is that they carry a quantum of
religious significance. Soltane, 381 F.3d at 150. We therefore
cannot affirm the AAO decision simply because not all the
duties of choir director as described in the work schedule are
primarily non-secular and related to core religious activities.
[3] Having rejected the AAO’s interpretation of 8 C.F.R.
§ 204.5(m)(2), we decline to adopt in the first instance our
own characterization of the quantum of religious activity that
a proposed position must include to qualify under 8 C.F.R.
§ 204.5(m)(2). The regulation defines the key phrase “reli-
gious occupation” as “an activity which relates to a traditional
religious function.” Id. Although the AAO’s current interpre-
tation of this phrase is impermissibly restrictive, we recognize
that the regulation’s language is sufficiently broad to admit of
more than one interpretation. Moreover, we are fully cogni-
zant that no more than 5000 aliens may be admitted each year
as permanent residents pursuant to the religious worker “spe-
cial immigrant” classification.6 8 U.S.C. § 1153(b)(4). We
accordingly leave it to the agency to decide, in the first
instance and on the basis of its expertise, see INS v. Ventura,
537 U.S. 12, 16-17 (2002), whether an occupation that has
merely “some religious significance” suffices under the stat-
ute, Soltane, 381 F.3d at 150, or whether some greater level
is required: for example, that the occupation must be substan-
tially or even primarily comprised of religious duties.
6
Religious workers “seek[ing] to enter the United States . . . solely for
the purpose of carrying on the vocation of a minister of [a] religious
denomination” are not subject to the 5000 visas per year limitation. 8
U.S.C. § 1101(a)(27)(C)(ii)(I) (emphases added); 8 U.S.C. § 1153(b)(4).
16032 LOVE KOREAN CHURCH v. CHERTOFF
B.
We next consider whether the AAO’s decision can be
affirmed because the position of choir director had not “tradi-
tionally [been] a permanent, full-time, salaried occupation
within the denomination.” We conclude that, by requiring the
Church to show that it has traditionally employed a perma-
nent, full-time, and salaried choir director, the AAO imposed
a standard that is inconsistent with the controlling regulation.
[4] The implementing regulation, 8 C.F.R. § 204.5(m)(2),
adopts the term “traditional religious function” to define the
type of employment that may qualify as a “religious occupa-
tion” under the statute. It does not, however, shed light on
what constitutes such a “traditional religious function”; it
merely provides a few examples of qualifying (and non-
qualifying) positions. Accordingly, we recognize that there is
a threshold ambiguity as to the correct interpretation of the
term. See Bassiri, 463 F.3d at 930.
[5] In filling this vacuum, however, the agency has
imposed a standard that is inconsistent with the regulation it
purported to interpret. See id. In illustrating what may consti-
tute a qualifying “traditional religious function,” 8 C.F.R.
§ 204.5(m)(2) provides examples of distinct roles and activi-
ties performed by workers within certain religious denomina-
tions. It does not, however, impose any requirement that such
positions have been filled in the same manner for any dura-
tional period. CIS has unduly focused on the labor history of
the institution filing the petition as opposed to the type of
work described in the petition. This focus is irreconcilable
with the meaning and structure of 8 C.F.R. § 204.5(m)(2).
That a growing church has moved from a volunteer to a paid
worker for a traditional religious function does not change the
traditional religious nature of the work as set forth in the regu-
latory examples.
This is not an instance in which the regulations are drawn
in broad terms and implicitly delegate authority to develop
LOVE KOREAN CHURCH v. CHERTOFF 16033
additional requirements to the adjudicative body. Although 8
C.F.R. § 204.5(m)(2) is itself ambiguous, the following sub-
sections, 8 C.F.R. § 204.5(m)(3)-(4), spell out in detail what
a petitioner must disclose about the proposed “religious occu-
pation”:
(3) Initial evidence. Unless otherwise specified, each
petition for a religious worker must be accompanied
by [e]vidence that the organization qualifies as a
nonprofit organization . . . and . . . [a] letter from an
authorized official of the religious organization in
the United States which . . . establishes . . . [t]hat, if
the alien is to work in another religious vocation or
occupation, he or she is qualified in the religious
vocation or occupation. Evidence of such qualifica-
tions may include, but need not be limited to, evi-
dence establishing that the alien is a nun, monk, or
religious brother, or that the type of work to be done
relates to a traditional religious function.
...
(4) Job offer. The letter from the authorized official
of the religious organization in the United States
must also state . . . how the alien will be paid or
remunerated if the alien will work in a professional
religious capacity or in other religious work. The
documentation should clearly indicate that the alien
will not be solely dependent on supplemental
employment or solicitation of funds for support. In
doubtful cases, additional evidence such as bank let-
ters, recent audits, church membership figures, and/
or the number of individuals currently receiving
compensation may be requested.
8 C.F.R. § 204.5(m)(3)-(4). If the agency intended to impose
a denomination’s payroll history as a threshold requirement,
we have little doubt that such records would have been
16034 LOVE KOREAN CHURCH v. CHERTOFF
included among the detailed substantive and evidentiary
requirements set forth in § 204.5(m)(3)-(4). They were not. It
was therefore unreasonable for the agency to read such a
requirement into 8 C.F.R. § 204.5(m)(2).7
***
[6] In sum, CIS’ interpretation of § 204.5(m)(2) was unrea-
sonable with respect to both the requirements that the AAO
found unsatisfied in this case: (1) that “all of the duties listed
[in the petition be] related to the position of choir director and
. . . not primarily secular in nature,” (emphasis added), and (2)
that the Church must have traditionally employed a perma-
nent, full-time, and salaried choir director.
III.
The AAO also dismissed the Church’s appeal because the
Church had failed to establish that Park had “been carrying on
such vocation, professional work, or other work [as that
described in the proposed position] continuously for at least
the 2-year period [immediately preceding the time of applica-
tion for admission].” 8 U.S.C. § 1101(a)(27)(C)(iii). The
agency concluded that the Church had not satisfied this
requirement because “the evidence does not establish that
[Park] was working full time as a choir director”—i.e., the
proposed position—during the relevant two-year period. In
particular, the AAO pointed to the weekly work schedule,
which indicated “at most[ ] 13 hours per week in music
related activity.”
7
It is of course true that “[i]n appropriate cases, [CIS] may request
appropriate additional evidence relating to the eligibility under section
203(b)(4) of the Act of the religious organization, the alien, or the affili-
ated organization.” 8 C.F.R. § 204.5(m)(3)(iv). This provision, however,
does not authorize CIS to impose, as it did here, additional threshold
requirements that are “plainly erroneous or inconsistent with the regula-
tion[s].” Bassiri, 463 F.3d at 930 (internal quotation marks and citation
omitted).
LOVE KOREAN CHURCH v. CHERTOFF 16035
[7] We cannot affirm the AAO’s decision on this ground.
The AAO did not find that Park was not a full-time, salaried
employee of the Church during the relevant two-year period
—a conclusion that would be squarely contradicted by the
record. Quite differently, it concluded that not enough of the
full-time, salaried work performed by Park was actually
related to music. This approach is contrary to the statute in
two respects. First, although the Church did label the pro-
posed position as “choir director,” music is not necessarily the
only activity of religious significance in the proposed posi-
tion. To the extent that other duties identified in the proposed
position and unrelated to music carried religious significance,
the salaried time spent by Park engaging in those activities
during the relevant two-year period must be credited towards
the required full-time and salaried experience. For example,
by focusing exclusively on music, the AAO apparently
excluded from its calculus several hours dedicated every week
to “prayer”—presumably as religious an activity as one can
imagine. If prayer is a duty under the Church’s choir director
position and Park engaged in prayer as part of his salaried
employment during the relevant two-year period, that time
was clearly spent in “such work” as that for which the Church
seeks the “special immigrant” classification. 8 U.S.C.
§ 1101(a)(27)(C)(iii). Accordingly, it must be credited in
assessing the full-time nature of Park’s experience.
[8] Moreover, the statute requires two years of experience
in “such work” as that of the proposed “religious occupation.”
8 U.S.C. § 1101(a)(27)(C)(iii) (emphasis added). As we have
already explained, however, § 204.5(m)(2), which defines the
key phrase “religious occupation,” does not require that every
duty of a qualifying position be religious in nature or related
to religious activities. It follows, then, that the two-year expe-
rience requirement may similarly be satisfied even if not
every work-related duty in which the beneficiary engaged
during the relevant two-year period was religious in character.
If, for example, the agency on remand should adopt the Third
Circuit’s standard requiring only “some religious signifi-
16036 LOVE KOREAN CHURCH v. CHERTOFF
cance,” Soltane, 381 F.3d at 150, and should conclude that the
Church’s choir director position does have “some religious
significance,” id., then Park would appear to satisfy the expe-
rience requirement announced in § 1101(a)(27)(C)(iii).
Because, as the case is presented to us, the AAO’s decision
does not foreclose this possibility, we cannot affirm its dis-
missal of the Church’s appeal on the ground that it failed to
satisfy the two-year experience requirement pursuant to 8
U.S.C. § 1101(a)(27)(C)(iii).8
CONCLUSION
[9] The AAO’s dismissal of the Church’s appeal rests on an
interpretation of 8 C.F.R. § 204.5(m)(2) that is inconsistent
with the regulation and on factual findings that are unsup-
ported by substantial evidence. Reconsideration of the AAO’s
regulatory interpretation also requires reconsideration of its
application of the two-year experience requirement set forth
in 8 U.S.C. § 1101(a)(27)(C)(iii). Accordingly, we reverse the
judgment of the district court, and vacate the AAO’s decision.
We remand the matter to the district court with instructions to
remand it to the agency for further proceedings consistent
with this opinion.
8
The AAO’s decision does not suggest that Park was not a full-time,
salaried employee of the Church during the relevant two-year period.
Accordingly, we need not reach the separate requirement imposed by the
agency that the beneficiary’s two-year experience in the relevant religious
occupation be accrued in the context of a full-time and salaried employ-
ment relationship. See, e.g., Haw. Saeronam Presbyterian Church v.
Ziglar, 243 Fed. Appx 224, 226 (9th Cir. 2007) (unpublished opinion)
(according Chevron deference to a BIA published decision holding that
religious workers are “continuously” employed in a religious occupation
for two years as required by § 1101(a)(27)(C)(iii) only if they are
employed full time). As our decision makes clear, the inquiry whether a
beneficiary is employed full time and receives a salary for his services
during the relevant two-year period is independent of the question whether
his duties during that time period qualify as work such as that described
in the asserted “religious occupation.”
LOVE KOREAN CHURCH v. CHERTOFF 16037
REVERSED AND REMANDED, WITH INSTRUC-
TIONS.