Salesian Society, Province of St. Philip the Apostle, Inc. v. Cissna

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SALESIAN SOCIETY, PROVINCE OF
ST. PHILIP THE APOSTLE, INC., et
al.,

Plaintiff,

v. Civ. Action No. 18-0477 (EGS)

ALEJANDRO MAYORKAS, 1 et al.,

Defendants.

MEMORANDUM OPINION

Pursuant to the Immigration and Nationality Act (“INA”),

special immigrant visas are available each year to qualified

ministers of religious denominations that have bona fide

religious organizations in the United States. 8 U.S.C. §

1153(b)(4). For a foreign minister to qualify for a special

immigrant visa under the INA, he or she must be seeking to enter

the United States solely for the purpose of carrying on the

vocation of a minister, and must have been carrying on that

vocation for at least the two years before the time he or she

applied for the visa. 8 U.S.C. § 1101(a)(27)(C). The INA also

1Pursuant to Federal Rule of Civil Procedure 25(d), the Court
substitutes as defendants Secretary of Homeland Security
Alejandro Mayorkas for former Secretary Kirstjen M. Nielsen and
Senior Official Performing the Duties of Director of the U.S.
Citizenship and Immigration Services Tracy Renaud for former
Director L. Francis Cissna.
1
makes up to 5,000 special immigrant visas available each year to

non-minister religious workers who seek to work in religious

vocations or occupations for a religious organization in the

United States and who have been carrying on that work for at

least the two years before the time they applied for the visa. 8

U.S.C. § 1153(b)(4); 8 U.S.C. § 1101(a)(27)(C)(ii)(II)-(III). As

required by the INA, U.S. Citizenship and Immigration Services

(“USCIS”) has issued regulations that elaborate on the

qualifications required by statute that an immigrant seeking a

special immigrant religious worker visa must demonstrate. 8

U.S.C. § 1103(a)(3); 8 C.F.R. § 204.5(m).

At issue in this action are provisions of USCIS’s

regulations that require ministers and other religious workers,

or the religious organizations filing on their behalf, to submit

evidence with their special immigrant religious worker visa

petitions that shows: (1) they will be working in a “compensated

position” when they enter the United States, which “may include

salaried or non-salaried compensation”; and (2) they received

salaried or non-salaried compensation for the religious work

they performed in the two years before filing their petition, or

they received no salary during that time but provided for their

own support. 8 C.F.R. § 204.5(m)(2), (10), (11).

Plaintiffs—Salesian Society, Province of St. Philip the

Apostle, Inc. (“Salesian Society”); Brother Eduardo Alberto

2
Chincha Leon (“Brother Eduardo”), Brother Juan-Pablo Rubio-

Olivares (“Brother Rubio”), and Brother Sasika Nalaka

Lokuhettige (“Brother Sasika”)—challenge these regulations as

well as the denial of the Brothers’ visa petitions based, among

other things, on the challenged regulations. As Plaintiffs

allege in their Complaint, “[t]he gravamen of the Plaintiffs’

claim is that the Defendants have illegally imposed a

requirement that the Plaintiffs must prove financial

compensation despite the fact that, as is the case with all

professed Salesians, Brother Eduardo, Brother Sasika and Brother

Rubio, have taken a vow of poverty consistent with the Salesian

Society’s long-standing basic religious tenants.” Am. Comp., ECF

41 ¶ 1. Plaintiffs claim 8 C.F.R. § 204.5(m)(2) and (m)(11)

violate: (1) the Administrative Procedures Act (“APA”) because

they “impose restrictions not contemplated by the [INA] and that

directly contradict the INA,” making them ultra vires,

arbitrary, capricious, and not in accordance with the law; (2)

the Free Exercise and Establishment Clauses of the First

Amendment because they discriminate against religious

organizations whose ministers have taken a vow of poverty and

inhibit the interests of those religious organizations while

preferencing others; and (3) the Religious Freedom Restoration

Act (“RFRA”), 42 U.S.C. § 2000bb et seq., because, for ministers

who have taken a vow of poverty and for their religious

3
organizations, they substantially burden the exercise of

religion. 2

Defendants disagree with Plaintiffs’ characterization of

the challenged regulations, stating that ministers and other

religious workers who have taken a vow of poverty can satisfy

the requirements by providing satisfactory evidence of their

religious organization’s direct or indirect financial support,

which could take the form of payment for housing, food, or

tuition for religious studies, among other things, or by

providing evidence of the religious worker’s self-support in the

absence of compensation. When interpreted correctly, Defendants

argue, these regulations are not in conflict with the INA.

Rather, the regulations establish the type and quantum of

evidence necessary to satisfy the INA’s requirements that

special immigrant religious workers be coming to the United

States “solely for the purpose of carrying on the vocation of

minister” or “to work” in a professional or non-professional

capacity “in a religious vocation” and that they have been

carrying on those vocations for at least two years before

applying. To ensure a special immigrant religious worker meets

2 Plaintiffs also alleged equal protection and due process claims
under the Fifth and Fourteenth Amendments to the United States
Constitution. Am. Compl., ECF No. 41 ¶ 109. Plaintiffs did not
move for summary judgment on those claims. See generally Pls.’
Mot., ECF No. 42-3. Accordingly, Plaintiffs have waived those
claims.
4
those qualifications, and to adhere to Congress’ directive to

reduce fraud in this particular visa program, Defendants argue

that regulations requiring evidence that the petitioner receives

a salary or indirect financial support are a permissible

construction of the statute. Defendants also maintain that

because the regulations as written already accommodate the

Salesian Brothers and other religious workers who have professed

a vow of poverty—and in this case, Plaintiffs have simply failed

to submit any of the acceptable forms of evidence—the challenged

regulations do not violate the First Amendment or RFRA.

Pending before the Court are Plaintiffs’ April 10, 2019

Motion for Summary Judgment, ECF No. 42; and Defendants’ May 1,

2019 Cross-Motion for Summary Judgment, ECF No. 43. 3 On September

18, 2018, the Court informed the parties that Plaintiffs’

motions for injunctive relief would be consolidated with the

merits pursuant to Federal Rule of Civil Procedure 65(a)(2).

Min. Order (Sept. 18, 2018). The parties agree that the Court

has before it all relevant evidence in the case. 4 Upon

3 Defendants’ April 20, 2018 Motion to Dismiss, ECF No. 14; and
Plaintiffs’ November 16, 2018 Motion for Summary Judgment, ECF
No. 27; are MOOT in light of Plaintiffs’ Amended Complaint, ECF
No. 41. Plaintiffs’ August 15, 2018 Motion for Temporary
Restraining Order, ECF No. 20, is also MOOT in light of USCIS’s
adjudication of the Brothers’ visa petitions that were the
subject of that motion.

4 Federal Rule of Civil Procedure 65(a)(2) permits the Court to,
“[b]efore or after beginning [a] hearing on a motion for a
5
consideration of the parties’ submissions, the applicable law,

and the entire record herein, the Court DENIES Plaintiffs’

Motion for Summary Judgment; and GRANTS Defendants’ Cross-Motion

for Summary Judgment. 5

I. Background

A. The Immigration and Nationality Act

The INA governs the issuance of visas to foreign nationals

seeking to enter the United States, and broadly speaking, it

provides for two categories of visa applicants:

“‘nonimmigrants,’ who plan to stay in the country only

temporarily, and ‘immigrants, who plan to stay

permanently.” Save Jobs USA v. Dep’t of Homeland Sec., 942 F.3d

504, 506 (D.C. Cir. 2019) (citing 8 U.S.C. § 1184(b) (“Every

alien ... shall be presumed to be an immigrant until he

establishes ... that he is entitled to a nonimmigrant status.”);

and citing 8 U.S.C. § 1101(a)(15) (setting forth nonimmigrant

classifications)).

preliminary injunction, . . . advance the trial on the merits
and consolidate it with the hearing.” Fed. R. Civ. P. 65(a)(2).
A decision on the merits is appropriate where, as here, “the
record is sufficient for a determination on the merits under the
summary judgment standard.” See March for Life v. Burwell, 128
F. Supp. 3d 116, 124 (D.D.C. 2015). Both parties contend that
the record is sufficient for a determination on the merits here,
and the Court agrees.

5Plaintiffs’ March 15, 2018 Motion for Preliminary Injunction,
ECF No. 6, is also DENIED in view of this Memorandum Opinion and
Order.
6
 With respect to the allocation of immigrant visas, the INA

provides preference for “employment-based immigrants” who fall

within five categories of workers: (1) priority workers,

including those with extraordinary ability in the sciences,

arts, education, business or athletics, outstanding professors

and researchers, and certain multinational executives and

managers; (2) those with advanced degrees or of exceptional

ability in certain professions; (3) skilled workers and

professionals; (4) “special immigrants,” and (5) foreign

investors. See 8 U.S.C. § 1153(b)(1)-(5). As relevant here, the

INA defines “special immigrants” to include ministers and other

religious workers. See 8 U.S.C. § 1101(a)(27)(C).

The term “special immigrant” means—
. . .
(C) an 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, 2021,
in order to work for the
organization at the request
of the organization in a
professional capacity in a

7
 religious vocation or
occupation, or
(III) before September 30, 2021,
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,
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)(i)-(iii).

In short, the INA makes visas available for qualified

ministers and other religious workers to immigrate in legal

status to the United States to perform religious work. See

Shalom Pentecostal Church v. Acting Sec’y U.S. Dep’t of Homeland

Sec., 783 F.3d 156, 159 (3d Cir. 2015). To obtain a special

immigrant religious worker visa, a minister or other religious

worker, or their employer, must file an I-360 petition, see 8

U.S.C. § 1154(a)(1)(G)(i); and if USCIS approves the petition,

the religious worker can either apply for a visa from abroad, or

for adjustment of their status to a lawful permanent resident if

he or she is already in the United States, 8 U.S.C. §

1153(b)(4). Up to 5000 such visas are available each year. 8

U.S.C. § 1153(b)(4).

8
 B. USCIS’s Implementing Regulations

Under the current USCIS regulations pertaining to special

immigrant religious workers, an I-360 petition for a minister or

non-minister religious worker seeking such classification must:

(1) For at least two years immediately
preceding the filing of the petition have
been a member of a religious denomination
that has a bona fide non-profit religious
organization in the United States.

(2) Be coming to the United States to work in
a full time (average of at least 35 hours
per week) compensated position . . .

(i) Solely in the vocation of a
minister of that religious
denomination;
(ii) A religious vocation either in a
professional or nonprofessional
capacity; or
(iii) A religious occupation either in
a professional or nonprofessional
capacity.

(3) Be coming to work for a bona fide non-
profit religious organization in the
United States, or a bona fide
organization which is affiliated with the
religious denomination in the United
States.

(4) Have been working in one of the positions
described in paragraph (m)(2) of this
section, either abroad or in lawful
immigration status in the United States,
and after the age of 14 years
continuously for at least the two-year
period immediately preceding the filing
of the petition. The prior religious work
need not correspond precisely to the type
of work to be performed. A break in the

9
 continuity of the work during the
preceding two years will not affect
eligibility so long as:

(i) The alien is still employed as a
religious worker;
(ii) The break did not exceed two
years; and
(iii) The nature of the break was for
further religious training or for
sabbatical that did not involve
unauthorized work in the United
States. However, the alien must
have been a member of the
petitioner’s denomination
throughout the two years of
qualifying employment.

8 C.F.R. § 204.5(m)(1)-(4).

As relevant here, the regulations also establish

evidentiary standards petitioners must meet to prove future

compensation and prior employment. See id. § 204.5(m)(8)-(11).

Subsection 204.5(m)(10) identifies the evidence USCIS requires

from petitioners to prove future compensation, and §

204.5(m)(11) identifies the evidence USCIS requires from

petitioners to prove past compensation. Regarding future

compensation, a petitioner must include initial evidence of how

the religious organization employer intends to compensate the

minister, which “may include[] salaried and non-salaried

compensation.” Id. § 204.5(m)(10). “This evidence 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

10
evidence acceptable to USCIS.” Id. IRS documentation is

required, though if such evidence is not available the religious

organization may provide an explanation for its absence along

with comparable, verifiable documentation. Id. Regarding past

compensation, the regulations provide as follows:

If the alien was employed in the United States
during the two years immediately preceding the
filing of the application and:

(i) Received salaried compensation, the
petitioner must submit IRS
documentation that the alien received
a salary, such as an IRS Form W-2 or
certified copies of income tax
returns.

(ii) Received non-salaried compensation,
the petitioner must submit IRS
documentation of the non-salaried
compensation if available.

(iii) Received no salary but provided for
his or her own support, and provided
support for any dependents, the
petitioner must show how support was
maintained by submitting with the
petition additional documents such as
audited financial statements,
financial institution records,
brokerage account statements, trust
documents signed by an attorney, or
other verifiable evidence acceptable
to USCIS.

If the alien was employed outside the United
States during such two years, the petitioner
must submit comparable evidence of the
religious work.

Id. § 204.5(11).

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 In this action, Plaintiffs argue that 8 CFR §§ 204.5(m)(2) and

(11) violate the APA, the First Amendment, and RFRA; and they

challenge USCIS’s denial of the Brothers’ petitions based on

Plaintiffs’ failure to meet the requirements set forth in those

regulations. See Pl.’s Mot., ECF No. 42-3 at 9-10. 6

C. Factual Background

Brothers Eduardo, Rubio, and Sasika are members of the

Salesian Society, which is an international Roman Catholic

Religious Order with more than 15,000 priests, brothers,

deacons, and novices in more than 130 countries, including the

United States. Pls.’ Statement of Facts (“Pls.’ SMF”), ECF No.

42-2 ¶¶ 1, 2; Defs.’ Resp. to Pls.’ SMF (“Defs.’ Resp. SMF”),

ECF No. 43-2 ¶¶ 1, 2. Brothers Eduardo, Rubio, and Sasika have

each taken a vow of poverty, which is a vow that the Salesian

Society requires of all of its priests and brothers, prohibiting

them from “personal monetary, financial, material or other

compensation of any kind.” Pls.’ SMF, ECF No. 42-2 ¶ 15, 16, 22,

36; Defs.’ Resp. SMF, ECF No. 43-2 ¶ 15, 16, 22, 36.

The Salesian Society filed I-360 petitions with USCIS for

Brothers Eduardo, Rubio, and Sasika to receive special immigrant

religious worker classifications so they could obtain legal

6When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
12
permanent immigrant status to perform religious work in the

United States. 7 Members of the Salesian Society often transfer

between communities as needed to fulfill the Order’s religious

mission. Pls.’ SMF, ECF No. 42-2 ¶ 4; Defs.’ Resp. SMF, ECF No.

43-2 SMF ¶ 4. Based on religious, cultural, and linguistic

abilities, the Salesian Society transfers members domestically

and/or internationally so that they may contribute to different

communities and gain experience serving in various parts of the

world. Pls.’ SMF, ECF No. 42-2 ¶ 5; Defs.’ Resp. SMF, ECF No.

43-2 ¶ 5. In response to the I-360 petitions, USCIS denied all

three as described below.

1. First Denial of Brother Eduardo’s I-360 Petition

The Salesian Society filed an I-360 Petition for Brother

Eduardo on May 2, 2016. Pls.’ SMF, ECF No. 42-2 ¶ 6; Defs.’

Resp. SMF, ECF No. 43-2 ¶ 6; Defs.’ Statement of Facts (“Defs.’

SMF”), ECF No. 44-1 ¶ 1; Pls.’ Resp. to Defs.’ SMF (“Pls.’ Resp.

SMF”), ECF No. 45-1 ¶ 1; Eduardo AR at 96-108, 136-209. Brother

7 The parties filed a joint appendix that contains copies of the
portions of the Administrative Record (“AR”) that are cited or
otherwise relied upon by the parties in their summary judgment
briefing. See Joint Appendix, ECF No. 49. The joint appendix
contains three parts: (1) the administrative record relating to
Brother Eduardo’s I-360 petition (“Eduardo AR”), ECF No. 49-1;
(2) the administrative record relating to Brother Rubio’s I-360
petition (“Rubio AR”), ECF No. 49-2; and (3) the administrative
record relating to Brother Sasika’s I-360 petition (“Sasika
AR”), ECF No. 49-3. All citations in this Memorandum Opinion are
to the administrative record page numbers.
13
Eduardo is a Peruvian citizen who became a Salesian Brother in

2011. Pls.’ SMF, ECF No. 42-2 ¶ 26; Defs.’ Resp. SMF, ECF No.

43-2 ¶ 26.

On March 9, 2017, USCIS issued a Request for Evidence

(“RFE”) in response to Brother Eduardo’s Petition. Pls.’ SMF,

ECF No. 42-2 ¶ 7; Defs.’ Resp. SMF, ECF No. 43-2 ¶ 7; Defs.’

SMF, ECF No. 44-1 ¶ 2; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 2;

Eduardo AR at 129-33. USCIS sought: (1) evidence pertaining to

Brother Eduardo’s compensation; 8 (2) evidence pertaining to his

minister position; 9 and (3) information about Brother Eduardo and

8 Specifically, USCIS’s letter directed the Salesian Society and
Brother Eduardo to “[d]escribe the complete package of
compensation being offered.” Eduardo AR at 132. “IRS
documentation, such as IRS Form W-2 or certified tax returns, if
available. If IRS documentation is unavailable, submit an
explanation for the absence of IRS documentation, along with
comparable, verifiable documentation.” Id.

9 USCIS directed the Salesian Society and Brother Eduardo to
submit: (1) “a copy of the alien’s certification of ordination
or similar documents reflecting acceptance of the alien’s
qualifications as a minister in the religious denomination;” and
(2) “documents reflecting acceptance of the alien’s
qualifications as a minister in the religious denomination, as
well as evidence that the alien has completed any course of
prescribed theological education at an accredited theological
institution normally required or recognized by that religious
denomination, including transcripts, curriculum, and
documentation that establishes that the theological institution
is accredited by the denomination.” Eduardo AR at 132.
Alternatively, USCIS directed that for denominations that do not
require a prescribed theological education, petitioners submit
evidence of: (1) “The denomination’s requirements for ordination
to minister;” (2) “The duties allowed to be performed by virtue
of ordination;” (3) The denomination’s levels of ordination, if
14
his work history. 10 Defs.’ SMF, ECF No. 44-1 ¶ 2; Pls.’ Resp.

SMF, ECF No. 45-1 ¶ 2; Eduardo AR at 129-33. By June 1, 2017,

the Salesian Society filed a response to that RFE that consisted

of a letter authored by Reverend Timothy Zak, the Acting

Provincial of the Salesian Society, as well as three documentary

exhibits related to Brother Eduardo’s minister position and

religious work. Pls.’ SMF, ECF No. 42-2 ¶ 8; Defs.’ Resp. SMF,

any;” and (4) “The alien’s completion of the denomination’s
requirements for ordination.” Id.
10 USCIS advised that the Salesian Society and Brother Eduardo

could submit the following evidence to show that Brother Eduardo
had been working continuously for at least two years before the
filing of the petition: (1) “Experience letters written by
authorized representatives of previous and current employers
with direct personal knowledge of the work experience that
include a breakdown of duties performed in the religious
position for an average week”; and, (2) for petitioners employed
outside the United States during the two-year period, evidence
of the religious work comparable to, for those who received
salaried compensation, “IRS documentation that the alien
received a salary, such as an IRS Form W-2 or certified copies
of income tax returns,” for those who received non-salaried
compensation, “IRS documentation of the non-salaried
compensation if available,” or for those who received no salary
but provided for his or her own support, “additional documents
such as audited financial statements, financial institution
records, brokerage account statements, trust documents signed by
an attorney, or other verifiable evidence acceptable to USCIS.”
Eduardo AR at 132. USCIS further provided that “[i]f required
evidence of compensation does not exist or cannot be obtained,”
the Salesian Society and Brother Eduardo must “demonstrate this
and submit secondary evidence,” or “[i]f secondary evidence does
not exist or cannot be obtained,” they must “demonstrate the
unavailability of both the required evidence and relevant
secondary evidence, and submit two or more affidavits, sworn to
or affirmed by persons who are not parties to the petition who
have direct personal knowledge of the compensation.” Id. 133.
15
ECF No. 43-2 ¶ 8; Defs.’ SMF, ECF No. 44-1 ¶ 3; Pls.’ Resp. SMF,

ECF No. 45-1 ¶ 3; Eduardo AR at 109-28.

With respect to compensation, Reverend Zak stated that

Brother Eduardo “has relinquished all worldly goods as part of

his vow of poverty.” Eduardo AR at 113. “As is the case with all

Salesian brothers, all of Br[other] Eduardo’s needs are met by

the Salesian community, including all his needs for housing,

food, clothing travel, medical care, etc.” Id. Reverend Zak went

on to explain:

In addition, the Salesian community pays for
all of Br[other] Eduardo’s educational
expenses. As part of his religious vocation
and formation for the priesthood, he is
currently studying at Immaculate Conception
School of Theology at Seton Hall University
where he is pursuing a Master’s Degree in
Theology. All of the expenses associated with
Br[other] Eduardo’s enrollment at Seton Hall
are paid for by the Salesian Community. These
include:
• Annual tuition of $21,194
• Room, board, and personal expenses of
$1,500 per month ($18,000 per year)
• Health insurance of $2,573 per year
This total amount of $41,767 each year is paid
wholly by the Salesian Order on Br[other]
Eduardo’s behalf.

Eduardo AR at 113-14. Reverend Zak further explained that “while

teaching at the Salesian High School in New Rochelle, New York,

[Brother Eduardo] received no salary or compensation. The school

made a lump sum payment for the teaching activities of all the

Salesians. This payment was sent directly to the Salesian

16
community, which would then use it for community needs such as

food, housing expenses, health care, and travel.” Eduardo AR at

114.

On June 28, 2017, USCIS denied Brother Eduardo’s I-360

Petition. Pls.’ SMF, ECF No. 42-2 ¶ 10; Defs.’ Resp. SMF, ECF

No. 43-2 ¶ 10; Defs.’ SMF, ECF No. 44-1 ¶ 4; Pls.’ Resp. SMF,

ECF No. 45-1 ¶ 4; Eduardo AR at 87-95. Citing 8 C.F.R. §

204.5(m)(11), the June 28, 2017 denial letter stated that “[t]he

issue is whether you submitted required evidence of compensation

for the beneficiary’s past work.” Eduardo AR at 89. USCIS

concluded that the evidence required by the regulations “was not

found.” Eduardo AR at 90. USCIS characterized Reverend Zak’s

letter as “appear[ing] to describe [Brother Eduardo’s] past

compensation as including monetary compensation of $18,000 per

year, annual tuition of $21,194, room and board, and health

insurance of $2,573.” Id. “However, IRS documentation or

secondary evidence of this compensation was not found, nor a

demonstration that such evidence is unavailable.” Id. USCIS

stated that Reverend Zak’s letter, “although providing necessary

context,” “does not appear to satisfy the tertiary evidence

requirements of the regulation at 8 C.F.R. § 103.2(b)(2)(i)”

because it was “from a representative of your organization” and

“you are a party to the petition.” Id. USCIS continued, “simply

going on record with unsupported statements without supporting

17
documentary evidence does not satisfy the burden of proof in

these proceedings.” Id. (citing Matter of Soffici, 22 I&N Dec.

158, 165 (Comm. 1998) (citing Matter of Treasure Craft of

California, 14 I&N Dec. 190 (Reg. Comm. 1972))).

Following this denial, the Salesian Society filed an I-290B

form, appealing the USCIS’s June 28, 2017 decision. Pls.’ SMF,

ECF No. 42-2 ¶ 12; Defs.’ Resp. SMF, ECF No. 43-2 ¶ 12; Defs.’

SMF, ECF No. 44-1 ¶ 6; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 6;

Eduardo AR at 30-86. The Salesian Society argued that “[n]o

compensation or salary is required, provided, or allowed to

Salesian Brothers, all of whom have taken lifelong vows of

poverty.” Eduardo AR at 41. “[T]he statute and regulations,” the

Salesian Society argued, “do not require, ‘compensation;’

rather, they require that the Beneficiary, ‘has been carrying on

such vocation.’” Id. The Salesian Society contended that they

“have fully documented the fact that the Beneficiary has been

carrying on his religious vocation on a full-time basis since

August 16, 2011.” Id. 43. The Salesian Society also presented

new evidence of its “financial ability to support Brother

Eduardo.” Id. 43-44. That evidence included documentary evidence

of the Salesian Society’s net assets and its tax-exempt status.

Id.

USCIS denied the Salesian Society’s appeal on September 14,

2017. Pls.’ SMF, ECF No. 42-2 ¶ 13; Defs.’ Resp. SMF, ECF No.

18
43-2 ¶ 13; Defs.’ SMF, ECF No. 44-1 ¶ 8; Pls.’ Resp. SMF, ECF

No. 45-1 ¶ 8; Eduardo AR at 27-29. USCIS stated that “[t]he

petition was denied because you did not submit evidence of past

employment,” and the Salesian Society’s representation that “No

compensation . . . is required, provided, or allowed” would

“provide an independent ground for denial [because] [t]he

regulation at 8 C.F.R. § 204.5(m)(2) explicitly requires that

the alien be coming to work in a ‘compensated position.’”

Eduardo AR at 27. USCIS also stated that “whether you directly

provided the beneficiary monetary compensation or whether you

provided him non-salaried compensation for which you paid, you

must submit supporting documentation of this that complies with

the evidentiary requirements set forth in the regulation.”

Eduardo AR at 28. Finally, USCIS stated that the evidence of the

Salesian Society’s financial ability to support Brother Eduardo

was insufficient to satisfy the evidentiary requirements because

it did not demonstrate that the Salesian Society paid non-

salaried compensation such as room, board, and personal expenses

or health insurance as the Salesian Society represented it had.

Eduardo AR at 28.

After USCIS denied the appeal, the Salesian Society

initiated this suit on February 28, 2018. See Compl., ECF No. 1.

19
 2. Final Denial of Brother Eduardo’s I-360 Petition

After the Salesian Society initiated this suit, USCIS

reopened Brother Eduardo’s I-360 petition on March 22, 2018.

Defs.’ SMF, ECF No. 44-1 ¶ 11; Pls.’ Resp. SMF, ECF No. 45-1 ¶

11; Eduardo AR at 20-26. USCIS issued a new RFE that day for

Brother Eduardo’s petition, requesting more evidence from the

Salesian Society than it had in the first RFE. USCIS asked for

evidence to support the Salesian Society’s representations that

Brother Eduardo professed his vows in 2011, taught Religion and

History at the Salesian High School, pursued his master’s degree

in Theology at the Jerusalem Campus in Israel, and was at that

time studying at Seton Hall University. Eduardo AR at 23. USCIS

again sought evidence demonstrating the Salesian Society paid

for all of Brother Eduardo’s expenses, and USICS detailed the

acceptable evidence of this “non-salaried compensation.” Eduardo

AR at 23-24. 11 USCIS also sought evidence showing Brother Eduardo

would be working as a minister, and USCIS again detailed the

11Such acceptable evidence includes but is not limited to:
verifiable evidence of financial support, including
stipends/allowances and room and board; evidence of medical
insurance coverage in the form of insurance cards or insurance
payments; documentation of stipends provided in the form of
processed checks or paystubs; or “other evidence acceptable to
USCIS.” Eduardo AR at 23-24.
20
acceptable evidence to support a “minister” classification.

Eduardo AR at 24. 12

The Salesian Society never responded to the second RFE for

Brother Eduardo’s I-360 petition. Defs.’ SMF, ECF No. 44-1 ¶ 17;

Pls.’ Resp. SMF, ECF No. 45-1 ¶ 17; Eduardo AR at 3. USCIS

accordingly issued a final decision on Brother Eduardo’s I-360

petition on February 4, 2019, denying the petition for

abandonment pursuant to 8 C.F.R § 103.2(b)(13)(i). Defs.’ SMF,

ECF No. 44-1 ¶ 18; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 18; Eduardo

AR at 2-10. USCIS further noted the following deficiencies with

Brother Eduardo’s petition: (1) it failed to establish Brother

Eduardo had been continuously employed as a religious worker for

at least the two year period immediately preceding the filing of

the petition; (2) it failed to show that Brother Eduardo had

received non-salaried compensation as the Salesian Society

claims; and (3) it failed to establish that Brother Eduardo is

qualified as a “minister” and would engage in that position in

the United States. See id.

12Such acceptable evidence includes but is not limited to: a
copy of Brother Eduardo’s certificate of ordination; evidence
Brother Eduardo had completed any courses or education normally
required or recognized by the Salesian Society, including
transcripts, curriculum, or other documentation establishing
accreditation; or other evidence of the Salesian Society’s
requirements for ordination, duties allowed to be performed,
levels of ordination, and Brother Eduardo’s completion of the
Salesian Society’s requirements. Eduardo AR at 24.
21
 3. Denial of Brother Rubio’s and Brother Sasika’s I-360
Petitions

Following the initiation of this lawsuit, the Salesian

Society also filed I-360 petitions on behalf of Brother Rubio

and Brother Sasika. Defs.’ SMF, ECF No. 44-1 ¶ 24, 29; Pls.’

Resp. SMF, ECF No. 45-1 ¶ 24, 29; Rubio AR at 20-119; Sasika AR

at 19-144.

On July 30, 2018, USCIS issued a RFE for Brother Rubio’s

Petition; and on October 9, 2018, USCIS issued a RFE for Brother

Sasika’s Petition. Pls.’ SMF, ECF No. 42-2 ¶ 34; Defs.’ Resp.

SMF, ECF No. 43-2 ¶ 34; Defs.’ SMF, ECF No. 44-1 ¶ 25, 30; Pls.’

Resp. SMF, ECF No. 45-1 ¶ 25, 30; Rubio AR at 14-19; Sasika AR

at 12-15. In both RFEs, USCIS requested evidence showing the

brothers had worked continuously for at least the two-year

period immediately preceding the filing of the petitions, and

USCIS also requested evidence of salaried or non-salaried

compensation for the brothers. Pls.’ SMF, ECF No. 42-2 ¶ 35;

Defs.’ Resp. SMF, ECF No. 43-2 ¶ 35; Defs.’ SMF, ECF No. 44-1 ¶

26, 31; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 26, 31; Rubio AR at 18-

19; Sasika AR at 14.

The Salesian Society did not respond to either RFE. USCIS

therefore issued final decisions denying Brother Rubio’s and

Brother Sasika’s petitions on February 13, 2019. Defs.’ SMF, ECF

No. 44-1 ¶ 27, 32; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 27, 32; Rubio

22
AR at 2-7; Sasika AR at 2-6. USCIS denied the petitions based on

abandonment and evidentiary deficiencies, specifically a failure

to demonstrate that the brothers worked previously as religious

workers and that the Salesian Society had provided them with

non-salaried compensation. Defs.’ SMF, ECF No. 44-1 ¶ 27, 28,

32, 33; Pls.’ Resp. SMF, ECF No. 45-1 ¶ 27, 28, 32, 33; Rubio AR

at 2-7; Sasika AR at 2-6.

D. Procedural Background

Plaintiffs filed their Motion for Summary Judgment on April

10, 2019, see ECF No. 42; and Defendants filed their Cross-

Motion for Summary Judgment on May 1, 2019, see ECF No. 43. The

parties filed responses and replies and briefing on the motions

was complete by May 31, 2019. The parties subsequently filed

their Joint Appendix on August 13, 2019. ECF No. 49. Thereafter,

on January 14, 2021, the Court granted Plaintiffs’ request for

leave to file a supplemental memorandum, see Min. Order (Jan.

14, 2021); and briefing on Plaintiffs’ supplemental memorandum

was complete on February 26, 2021. The motions are now ripe for

the Court’s adjudication.

II. Legal Standard

Summary judgement is appropriate where “there is no genuine

issue as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). When

plaintiffs invoke the APA to seek review of an agency’s

23
decision, they typically present a pure question of law, and

summary judgment “serves as the mechanism for deciding, as a

matter of law, whether the agency action is supported by the

administrative record and otherwise consistent with the APA

standard of review.” Las Ams. Immigration Advoc. Ctr. v. Wolf,

507 F. Supp. 3d 1, 17 (D.D.C. 2020) (citing Wilhelmus v. Geren,

796 F. Supp. 2d 157, 160 (D.D.C. 2011)). The APA “sets forth the

procedures by which federal agencies are accountable to the

public and their actions subject to review by the courts.”

Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). Under the

APA, courts must set aside agency action that is “(A) arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law; (B) contrary to constitutional right,

power, privilege, or immunity; (C) in excess of statutory

jurisdiction, authority, or limitations, or short of statutory

rights; [or] (D) without observance of procedure required by

law.” 5 U.S.C. § 706(2)(A)-(D). Under the APA’s “narrow”

standard of review, “a court is not to substitute its judgment

for that of the agency,” Motor Vehicle Mfrs. Ass’n of U.S., Inc.

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); and

“will defer to the [agency’s] interpretation of what [a statute]

requires so long as it is ‘rational and supported by the

record,’” Oceana, Inc. v. Ross, 454 F. Supp. 3d 62, 68 (D.D.C.

2020).

24
 When plaintiffs challenge an agency’s decision on

constitutional grounds, however, “a court does not defer to the

agency’s pronouncement on constitutional issues.” NYC

C.L.A.S.H., Inc. v. Carson, 442 F. Supp. 3d 200, 209 (D.D.C.

2020). Instead, “a court’s review of ‘constitutional challenges

to agency actions . . . is de novo.’” Poett v. United States,

657 F. Supp. 2d 230, 241 (D.D.C. 2009) (quoting Cullman Reg’l

Med. Ctr. v. Shalala, 945 F. Supp. 287, 293 (D.D.C. 1996)). The

Court must make “an independent assessment of a citizen’s claim

of constitutional right when reviewing agency decision-making,”

and such “[i]ndependent judicial judgment is especially

appropriate in the First Amendment area.” Id. (quoting Lead

Indus. Ass’n v. Envtl. Prot. Agency, 647 F.2d 1130, 1173-74

(D.C. Cir. 1980); Porter v. Califano, 592 F.2d 770, 780 (5th

Cir. 1979)).

III. Analysis

For the reasons explained more fully below, the Court

concludes that the challenged regulations are not in conflict

with the INA and instead reflect USCIS’s permissible

construction of the statute. And, because the regulations

expressly permit petitioners, including the Salesian Brothers,

to provide evidence of non-salaried compensation, that is,

direct or indirect financial support such as payment for room

25
and board, tuition, or other living expenses, the challenged

regulations do not violate the First Amendment or RFRA.

A. The Challenged Regulations Do Not Violate The APA, Nor Do
USCIS’s Denials of the Brothers’ Visa Petitions Violate
The APA.

Plaintiffs first contend that Defendants exceeded their

statutory authority under the INA in promulgating the challenged

regulations requiring a special immigrant religious worker visa

petitioner to work in a “compensated position.” Plaintiffs argue

these regulations “impose restrictions not contemplated by the

[INA] and that directly contradict the INA” and for that reason

are ultra vires, arbitrary, capricious, and not in accordance

with law. Pls.’ Mem. P. & A. Mot. Summ. J. (“Pls.’ Mot.”), ECF

No. 42-3 at 10. Plaintiffs further argue that the denials of the

petitions, to the extent they were based on the challenged

regulations, were arbitrary and capricious. Id.

Defendants respond that the regulations allow petitioners

to prove both salaried and non-salaried compensation, or that

they received no compensation at all but provided for their own

support. Defs.’ Mem. P. & A. Cross Mot. Summ. J. & Opp’n

(“Defs.’ Mot. & Opp’n”), ECF No. 43-3 at 23. “Non-salaried

compensation,” Defendants explain, allows religious workers who

have taken a vow of poverty to qualify for the visa program by

providing proof that they receive financial support from their

religious organization. Id. at 27-28. Defendants argue that

26
these regulations are not in conflict with the INA, and they

reflect USCIS’s permissible construction of the statute. Id. at

21-31. Defendants also maintain that USCIS’s denial of the

Brothers’ visa petitions was “fully supported by the

administrative record and consistent with the limited scope of

APA review.” Id. at 30.

1. USCIS’s Interpretation of the INA In Its Implementing
Regulations Is Permissible

In reviewing an agency’s interpretation of a statute

Congress has entrusted it to administer, the Court’s analysis is

governed by Chevron U.S.A. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). Under step one of the Chevron

analysis, “[i]f the intent of Congress is clear, that is the end

of the matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.” Id.

at 842-43. In determining whether the statute unambiguously

expresses the intent of Congress, the court should use all the

“traditional tools of statutory construction,” including looking

to the text and structure of the statute, as well as its

legislative history, if appropriate. Chevron, 467 U.S. at 843,

n.9. “When the statute is clear, the text controls and no

deference is extended to an agency’s interpretation in conflict

with the text.” Adirondack Med. Ctr. v. Sebelius, 29 F. Supp. 3d

25, 36 (D.D.C. 2014) (citing Chase Bank USA, N.A. v. McCoy, 562

27
U.S. 195 (2011)). Under step two of the Chevron analysis, if

Congress “has not directly addressed the precise question” at

issue, the agency’s interpretation of the statute is entitled to

deference so long as it is “reasonable” and not otherwise

“arbitrary, capricious, or manifestly contrary to the statute.”

Chevron, 467 U.S. at 843-44.

a. Chevron Step One

The first step in the Chevron analysis is to look at the

plain language of the statute. A person applying for “special

immigrant” religious worker status must “for at least two years

immediately preceding the time of the application . . . ha[ve]

been a member of a religious denomination having a bona fide

nonprofit, religious organization in the United States.” 8

U.S.C. § 1101(a)(27)(C)(i). The person must be seeking to enter

the United States “solely for the purpose of carrying on the

vocation of a minister of that religious denomination” and must

“have been carrying on such vocation, professional work, or

other work continuously for at least the 2-year period described

[supra].” Id. § 1101(a)(27)(C)(ii)-(iii). The statute does not

define “carrying on” or “vocation,” nor does it set forth a list

of criteria for establishing that a special immigrant is coming

to the United States “solely for the purpose of carrying on the

vocation of minister” or “to work” in a “religious vocation,”

nor for establishing that he was “carrying on such vocation” for

28
the two years before he filed his visa petition. See generally 8

U.S.C. § 1101(a)(27)(C)(i)-(iii).

USCIS’s implementing regulations require, among other

things, that the petitioner demonstrate that the beneficiary

“has the requisite experience both as a minister and a member of

the religious organization during that qualifying period” by

providing verifiable evidence that the alien: (1) received

salaried compensation; (2) received non-salaried compensation;

or (3) that the religious worker received not compensation and

provided for his or her own financial support. 8 C.F.R. §

204.5(m)(11)(i)-(iii). The regulations also require that the

petitioner demonstrate the beneficiary is coming to the United

States to work in a full time “compensated position” by

providing verifiable evidence of “how the petitioner intends to

compensate the alien . . . which may include salaried or non-

salaried compensation.” 8 C.F.R. §§ 204.5(m)(2) and (10).

Plaintiffs argue that the regulations violate the APA and

are ultra vires because the statute does not require that the

religious worker be in a compensated position. Pls.’ Mot., ECF

No. 42-3 at 12; see also Pls.’ Reply, ECF No. 45 at 5 (“Congress

has spoken to the precise question at issue” and has allowed

“both compensated and uncompensated work.”) Defendant responds—

and the Court agrees—that “the regulation does not require

evidence of salaried compensation to the exclusion of other

29
types of compensation or even non-compensatory arrangements the

organization may have with a religious worker.” Defs.’ Mot., ECF

No. 43-3 at 27.

The challenged regulations permit petitioners to prove

“compensation” with evidence that they received non-salaried

compensation, which Defendants interpret to include the type of

financial support Plaintiffs contend should be sufficient.

Defs.’ Mot. & Opp’n, ECF No 43-3 at 23, 27-28. I-360 visa

petitioners can establish that a beneficiary carried on a

vocation or religious work for the two-year period before

applying for the visa with sufficient evidence that the

beneficiary “received salaried compensation” or “received non-

salaried compensation.” 8 C.F.R. § 204.5(m)(11)(i)-(ii). The

regulations also permit a petitioner to prove that the

beneficiary provided self-support if he received no compensation

of any kind. 8 C.F.R. § 204.5(m)(11)(iii). Likewise, an I-360

visa petitioner can establish that the beneficiary is coming to

the United States “solely for the purpose of carrying on the

vocation of a minister,” with evidence relating to compensation

that “may include salaried or non-salaried compensation.” 8

C.F.R. § 204.5(m)(2), (10). Enumerated examples of such evidence

include “budgets showing monies set aside for salaries, leases,

etc.; verifiable documentation that room and board will be

30
provided; and other evidence acceptable to USCIS.” 8 C.F.R. §

204.5(m)(10).

For example, in response to Brother Eduardo’s I-360 visa

petition upon first review, USCIS explained that the support

provided to Brother Eduardo as described by Reverend Zak

appeared to describe past compensation, but the Salesian Society

must provide documentary evidence to substantiate it. Eduardo AR

at 89. USCIS never stated that the support that the Salesian

Society provided to Brother Eduardo did not satisfy the

requirement, they simply said there was insufficient

documentation to verify Reverend Zak’s representation. Id.

Later, upon reopening Brother Eduardo’s I-360 petition, USCIS

explained that evidence of non-salaried compensation sufficient

to satisfy the regulations may include but was not limited to:

verifiable evidence of financial support, including

stipends/allowances and room and board; evidence of medical

insurance coverage in the form of insurance cards or insurance

payments; documentation of stipends provided in the form of

processed checks or paystubs; or “other evidence acceptable to

USCIS.” Eduardo AR at 23-24.

Plaintiffs rely heavily on Shalom Pentecostal Church v.

Acting Secretary U.S. Department of Homeland Security, 783 F.3d

156 (3d Cir. 2015), to contend that any requirement that asks a

petitioner to prove he carries on a religious vocation with

31
evidence of the religious organization’s payment of salaried or

non-salaried compensation is impermissible because it is not

written into the statute directly. Pls.’ Mot., ECF No. 42-3 at

12-13. But that reliance is misplaced. In Shalom, the Court of

Appeals for the Third Circuit (“Third Circuit”) held that USCIS

could not enforce a regulation that required a religious worker

to have completed his two years of past religious work “in

lawful status” in the United States. Id. at 167. In Plaintiffs’

view, the Shalom court invalidated the “in lawful status”

regulatory provisions “because they imposed requirements beyond

those stated in § 1101(a)(27(C) . . . [because] [t]he INA itself

made no such requirement of lawful work.” Pls.’ Mot., ECF No.

42-3 at 12-13. Plaintiffs, however, miss important distinctions

between this case and Shalom. First, USCIS did not argue that

the “in lawful status” regulation was an exercise of its

authority to establish the type or quantum of evidence necessary

to meet the past-work requirement of the statute. See generally,

Shalom, 783 F.3d 156. Second, the “in lawful status” regulation

rendered other provisions of the INA related to a special

immigrant religious worker’s legal immigration status

superfluous. See id. at 165 (“The Regulation, in effect, would

make § 1255(k)(2)’s exemption for unauthorized work meaningless

in most circumstances.”). Third, when the Third Circuit

concluded that absence of “in lawful status” in the statute

32
itself reflected Congress’s intent not to preclude USCIS from

making lawful status a requirement by regulation, it did so by

relying on precedent that the United States Court of Appeals for

the District of Columbia Circuit (“D.C. Circuit”) has held will

not apply to APA claims in this circuit. See id. at 166 (“We are

unswayed by the line of decisions from the Court of Appeals for

the D.C. Circuit declining to apply Russello [v. United States,

464 U.S. 16, 23 (1983)] in the administrative agency context.”).

Moreover, as explained supra, the regulations do not require

that the religious worker be in a compensated position.

“[I]n an administrative setting . . . Congress is presumed

to have left to reasonable agency discretion questions that it

has not directly resolved.” Cheney R.R. Co. v. ICC, 902 F.2d 66,

69 (D.C. Cir. 1990). Here, Congress’s silence as to how a

religious worker would establish that he is “carrying on” his

“vocation,” and its silence as to whether a religious

organization’s payment of salaried or non-salaried compensation

is relevant to whether the worker carries on his vocation for

the organization, does not compel the Court to conclude that

Congress intended to preclude USCIS from implementing the

challenged regulations. Indeed, the INA authorizes USCIS to

promulgate regulations “elaborating on the[] statutory

qualifications” for a classification as a special immigrant

religious worker. See Shalom, 783 F.3d at 160; 8 U.S.C. §

33
1103(a)(3). Plaintiffs’ argument that Congress’s use of the

words “carrying on” and “vocation” demonstrate that it was not

silent as to compensation but instead provided a clear

expression of intent, see Pls.’ Opp’n, ECF No. 45 at 6-7; Pls.’

Mot., ECF No. 42-3 at 12-13 (claiming Congress chose that

language “recognizing that most men and women in vocations take

a vow of poverty that precludes compensation”); is unpersuasive

because Plaintiffs have provided no legal support for this

argument, see id.

In construing a different portion of the implementing

regulations, those that define “religious occupation,” the

District Court observed that “[o]n its face the statute does not

specifically describe the type or quantum of evidence which must

be produced in order for an applicant to qualify as a special

immigrant religious worker,” noting that the regulations provide

a short, non- exhaustive list of examples of religious

occupations.” Avena v. I.N.S., 989 F. Supp. 1, 5 (D.D.C. 1997).

The same reasoning applies to the challenged regulations here.

Accordingly, the Court concludes that the challenged regulations

survive the first step of the Chevron analysis, and they are not

ultra vires. This result is consistent with decisions from other

jurisdictions recognizing USCIS’s authority to investigate a

religious organization employer’s ability to pay a petitioner

seeking a special immigrant religious worker visa. See Madrasah

34
Islamiah, Inc. v. Dep’t Homeland Sec., Civ. Action No. H-12-

3492, 2015 WL 632090 (S.D. Tex. Feb. 13, 2015) (citing Woody's

Oasis v. Rosenberg, No. 1:13–cv–367, 2014 WL 413503, at *3 (W.D.

Mich. Feb. 4, 2014) (“The Court finds this long-standing

precedent persuasive, and agrees that the USCIS has the

authority to investigate an employer's ability to pay.”)).

b. Chevron Step Two

Under Chevron step two, the Court will uphold USCIS’s

interpretation as long as it is a “permissible construction of

the statute,” Chevron, 467 U.S. at 843; and considers “whether

the [agency] has reasonably explained how the permissible

interpretation it chose is ‘rationally related to the goals of’

that statute.” Petit v. U.S. Dep’t. of Educ., 675 F.3d 769, 785

(D.C. Cir. 2012) (citations omitted). The Court will “defer to

the [agency’s] interpretation if it is reasonable and consistent

with the statutory purpose and legislative history.” Bell Atl.

Tel. Cos. V. FCC, 131 F.3d 1044, 1049 (D.C. Cir. 1997).

Defendants explain that USCIS issued the challenged

regulations in 2008 to “help eliminate or reduce fraud in the

religious worker program.” Defs.’ Mot., ECF No. 43-3 at 26

(citing 73 Fed. Reg. 72,276-01) (summary of USCIS’s rationale

for the final rule that became effective in 2008). At the time

the rule was enacted, the federal government “had identified

many incidents of fraud in the religious worker program,” and

35
“USCIS estimated that as many as one-third of applications and

petitions filed for religious worker admission were fraudulent.”

Id. Accordingly, for a petitioner to demonstrate that he or she

worked in a religious vocation or occupation before applying for

a special immigrant religious worker visa, the comments to the

final rule explain that the petitioner could provide verifiable

evidence of “past compensation or support to demonstrate the

required previous two years of religious work.” Id. Defendants

further emphasize that, as discussed supra, while the

regulations ask for verifiable evidence of compensation to prove

a petitioner has carried on their religious work before coming

to the United States, the regulations also accommodate religious

workers who could demonstrate that they worked but did not

receive a salary. 8 C.F.R. § 204.5(m)(11) (providing for

petitioners who received non-salaried compensation, such as room

and board, or petitioners who received no salary but provided

their own support). Defendants assert that “[a]t no time did the

Agency issue any request that could not be met but for the

religious workers’ vow of poverty.” Defs.’ Mot., ECF No. 43-3 at

28.

Plaintiffs maintain that the challenged regulations are

directly at odds with the INA, for the reasons discussed at the

first step of the Chevron analysis, and they therefore do not

respond to Defendants’ arguments at step two of the Chevron

36
analysis. See Pls.’ Opp’n, ECF No. 45 at 6 (“Nothing in the

original statutory language needs clarifying. There is,

therefore no need to move to the second step of the Chevron

analysis.”). Plaintiffs do dispute Defendants’ arguments

concerning the need to reduce fraud in the religious worker visa

program, describing the concerns about fraud as “vague” and

related to “unspecified religious worker filings in the past.”

Pls.’ Mot., ECF No. 42-3 at 26. Plaintiffs also argue that

“Defendants’ concern about fraud should only permit them to

present those concerns to Congress with a request that Congress

amend that statutes in order to eliminate or minimize the

fraud.” Pls.’ Opp’n, ECF No. 45 at 10.

However, Congress did direct USCIS to address the incidents

of fraud in the religious worker visa program. In 2008, Congress

took up legislation to extend the non-minister provisions of the

religious worker visa program. See Special Immigrant Nonminister

Religious Worker Program Act, Pub. L. No. 110-391, 122 Stat.

4193 (2008). The legislative history shows Congress intended

USCIS to address their concerns regarding fraud with rule making

that would immediately follow passage of the law. See 59 Cong.

Rec. H2284-H2289 (daily ed. Apr. 15, 2008). The legislation

addressed the religious worker program for immigrants in

religious vocations or occupations, not immigrants in the

vocation of minister. Pub. L. No. 110-391, 122 Stat. 4193

37
(2008). However, Plaintiffs have not argued that Congress’s

fraud concerns extended only to non-ministers.

A number of Members of Congress expressed the need for

preventing fraud in the program, as religious workers visas were

reportedly the visa type with the highest incidents of fraud and

were “known as some of the most difficult to adjudicate” to

prevent fraud. 59 Cong. Rec. H2287 (daily ed. Apr. 15, 2008)

(statement of Sen. King). Members of Congress discussed various

reports on this issue, noting for example that in 2004, a

Venezuelan national was convicted for visa fraud after “he had

filed 179 fraudulent petitions for religious ministers. In

addition to creating fraudulent certificates of ordination,

diplomas and other supporting documentation, he also obtained a

valid 501(c)(3) tax exemption from recognized religious

organizations without their knowledge.” Id. Ultimately, as

passed, the Special Immigrant Nonminister Religious Worker

Program Act of 2008 extended the non-minister religious worker

program but also required the Secretary of Homeland Security to

“issue final regulations to eliminate or reduce fraud related to

the granting of special immigrant status” for non-minister

religious workers. Pub. L. 110-391, 122 Stat. 4193 (2008).

Accordingly, Defendants’ fraud concerns are anything but vague.

Furthermore, it is clear that Congress intended USCIS to revise

its regulations to further prevent fraud.

38
 Defendants argue—and the Court agrees—that they have

“reasonably interpret[ted] the statute as permitting USCIS to

require that a petitioner submit evidence of compensation

(salaried or non-salaried) or self-support to demonstrate that

the beneficiary possesses the requisite experience as a

religious worker and member of the religious organization during

the qualifying period.” Defs.’ Reply, ECF No. 47 at 6. The Court

also agrees that the regulations “help[] USCIS detect and deter

fraud and other abuses in the religious worker program.” which

is consistent with Congress’s directive and rational in view of

the agency’s study of this issue. Id.

Accordingly, USCIS’s interpretation of the statute as set

forth in the regulations is both “reasonable and consistent with

the statutory purpose and legislative history,” Bell Atl. Tel.

Cos., 131 F.3d at 1049; and Plaintiffs APA challenge to the

regulations fail at this stage of the analysis.

2. USCIS’s Denials of the Brothers’ Visa Petitions Were
Not Arbitrary or Capricious.

Plaintiffs would still be entitled relief in this matter if

USCIS’s denials of the Brothers’ petitions were arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law. 5 U.S.C. §706(2)(A). To make this

determination, the Court considers whether USCIS’s decisions

were “not supported by substantial evidence” or whether USCIS

39
made a “clear error in judgment.” Doe v. U.S. Citizenship &

Immigration Servs., 239 F. Supp. 3d 297, 306 (D.D.C. 2017)

(citations omitted).

Plaintiffs have based their argument on this issue on the

challenged regulations being invalid. See Pls.’ Mot., ECF No.

42-3 at 14-15. Plaintiffs maintain that USCIS erred in denying

the Brothers’ I-360 visa petitions because the Brothers “meet

all of the . . . requirements for a Special Immigrant Religious

worker set out in both the Statute and Regulations” other than

the “extra manufactured requirement of showing that they had

been compensated for the last two years and will be compensated

going forward.” Id. at 15. The Court has already concluded,

however, that 8 C.F.R. §§ 204.5(m)(2) and (11) are not extra

manufactured requirements, rather they reflect a permissible

construction of the INA, as they elaborate on the type and

quantum of evidence a petitioner must provide to demonstrate

that they carry on their religious vocation, and they

accommodate both compensated and uncompensated religious

workers. Accordingly, USCIS’s reliance on the challenged

regulations to deny an I-360 visa petition is not arbitrary,

capricious, or an abuse of discretion.

The Court finds no error in USCIS’s adjudication of the

Brothers’ special immigrant religious worker visa petitions. As

Defendants point out, “Plaintiffs failed to respond to the

40
Agency’s requests for evidence and failed to address the

evidentiary deficiencies discussed in those requests.” Defs.’

Mot., ECF No. 43-3 at 28; see also Eduardo AR at 2-10; Rubio AR

at 2-7; Sasika AR at 2-6. The regulations provide that “[i]f the

petitioner or applicant fails to respond to a request for

evidence or to a notice of intent to deny by the required date,

the benefit request may be summarily denied as abandoned, denied

based on the record, or denied for both reasons.” 8 C.F.R §

103.2(b)(13)(i).

Plaintiffs failed to respond to the RFE for Brother

Eduardo’s reopened petition and Brother Rubio’s and Brother

Sasika’s petitions on the grounds that this litigation was

pending and “the subsequent RFEs should be treated as a nullity

because each was an in artful attempt to deprive the [C]ourt of

its jurisdiction.” Pls.’ Opp’n, ECF No. 45 at 13. Plaintiffs

point to no case, and the Court is aware of none, that supports

this position. Rather, it is generally understood that an agency

may take “voluntary corrective action” after a plaintiff has

initiated litigation, and such action may render a plaintiff’s

claims moot. See Gibbs v. Brady, 773 F. Supp. 454, 457 (D.D.C.

1991). It is not uncommon for USCIS to reopen visa petitions

while litigation is pending, and when USCIS denies a reopened

petition, even if on alternative grounds or in a decision with

different or more clear reasoning, courts look to the final

41
denial when evaluating agency action in an APA claim. See, e.g.,

Fogo De Chao (Holdings) Inc. v. U.S. Dep’t. Homeland Sec., 769

F.3d 1127, 1134 (D.C. Cir. 2014) (evaluating USCIS’s final

decision on the plaintiff’s petition for a temporary visa for

foreign employees with specialized knowledge, where USCIS had

reopened the petition proceedings while the case was pending).

Moreover, even if USCIS’s first denial of Brother Eduardo’s

I-360 visa petition was operative, the Court would still find no

error in the denial. In response to USCIS’s first RFE seeking

evidence pertaining to compensation, the Salesian Society

provided a letter from a Salesian Reverend that claimed a “total

amount of $41,767 each year is paid wholly by the Salesian Order

on Br[other] Eduardo’s behalf,” which included annual tuition

for his Master’s Degree, room and board, personal expenses, and

health insurance. Eduardo AR at 113-14. But the Salesian Society

provided no “IRS documentation” or “comparable evidence” of

those payments, as required by the regulations for evidence of

past work. 8 C.F.R. § 204.5(m)(11). USCIS explained this

deficiency to the Salesian Society both in the initial denial

and on appeal. Eduardo AR at 90; Eduardo AR at 27-29. In view of

the Salesian Society’s representation that it made a number of

payments to Brother Eduardo, the Salesian Society’s failure to

provide any documentary evidence to support those claims, the

plain statement in the regulations requiring documentary

42
evidence, USCIS’s explanation that such evidence is required and

a letter from within the religious organization is insufficient,

and USCIS’s interest in limiting fraud in the religious worker

visa program, the Court concludes that even the initial denial

of Brother Eduardo’s I-360 visa petition was not arbitrary,

capricious, or contrary to law. See U.S. Chamber of Commerce v.

SEC, 412 F.3d 133, 140 (D.C. Cir. 2005) (“[T]he scope of review

under the arbitrary and capricious standard is narrow and a

court is not to substitute its judgment for that of the agency,

. . . [and a court considers whether the agency] has examined

the relevant data and articulated a satisfactory explanation for

its action including a rational connection between the facts

found and the choice made.”).

For these reasons, USCIS’s denials of the Brothers’ I-360

petitions were not arbitrary, capricious, or an abuse of

discretion.

B. The Challenged Regulations Do Not Violate the First
Amendment or RFRA

Plaintiffs argue that the challenged regulations, as

applied to religious workers who have taken a vow of poverty,

contravene the Free Exercise and Establishment Clauses of the

First Amendment to the United States Constitution as well as

RFRA. For the reasons set forth below, the Court concludes that

Plaintiffs failed to establish such violations.

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 1. The Compensation Requirements Do Not Violate the Free
Exercise Clause

The Free Exercise Clause prohibits Congress from enacting

laws “respecting an establishment of religion.” U.S CONST.,

amend. I § 1. A plaintiff bringing a free exercise case must

“show the coercive effect of the enactment as it operated

against him in the practice of his religion.” School Dist. of

Abington Tp., Pa. v. Schempp, 374 U.S. 203, 223 (1963). “[A]

burden upon religion exists [when governmental action] put[s]

substantial pressure on an adherent to modify his behavior and

to violate his beliefs.” Thomas v. Review Bd. Of Indiana

Employment Security Div., 450 U.S. 707, 718 (1981). “[T]he right

of free exercise does not relieve an individual of the

obligation to comply with a ‘valid and neutral law of general

applicability on the ground that the law proscribes (or

prescribes) conduct that his religion prescribed (or

proscribes).’” Employment Div., Dept. of Human Resources of

Oregon v. Smith, 494 U.S. 872, 879 (1990) (quoting United States

v. Lee, 455 U.S. 252, 263, n.3 (1982) (Stevens, J, concurring in

judgment).

The Court concludes that Plaintiffs have failed to

establish a Free Exercise Clause violation. Plaintiffs object to

USCIS’s categorization of the support paid on their behalf for

living and other expenses as “non-salaried compensation,”

44
asserting that requiring them to provide corroborating evidence

that such support is paid on their behalf would cause them to

“lie” because, due to their vow of poverty, “[t]he Salesians do

not compensate their ministers.” Pls.’ Opp’n, ECF No. 45 at 11.

But Plaintiffs have not explained how USCIS’s categorization of

the support provided to them as “non-salaried compensation” has

“put substantial pressure on [them] to modify [their] behavior

and to violate [their] beliefs.” Thomas, 450 U.S. at 718. 13

The Supreme Court recently confirmed that it would violate

the Free Exercise Clause for the government to interfere in

matters of faith and doctrine, and the Free Exercise Clause

“protect[s] [religious institution’s] autonomy with respect to

internal management decisions that are essential to the

institution’s central mission.” Our Lady of Guadalupe School v.

Morriseey-Berru, 140 S. Ct. 2049, 2060 (2020). Plaintiffs argue

that “[t]he manner by which the Salesians organize their

budgeting and finance, particularly as it relates to the records

they keep, is a matter of their internal church governance. The

Salesians determination of how to support their religious

workers free from ‘compensation’ is a matter of its basic

exercise of religion.” Pls.’ Supp., ECF No. 53 at 6. However,

13Accordingly, the Court need not reach Plaintiffs’ arguments as
to whether the government has shown a compelling state interest
that could be satisfied with less restrictive means. Pls.’ Mot.,
ECF No. 42-3 at 16-19.
45
Plaintiffs have not shown that categorizing the support paid on

their behalf as “unsalaried compensation” and requiring

corroborating evidence of the support interferes with “internal

management decisions that are essential to the institution’s

central mission.” Plaintiffs have not explained how they need to

change any internal management, record keeping, or anything else

to provide evidence that corroborates the support they

undisputedly provide to the brothers.

The petition submitted on behalf of Brother Eduardo

indicates that the Salesian Order pays for the brothers’ needs

such as housing, food, clothing, medical care, etc. See Eduardo

AR at 113. In the case of Brother Eduardo, the Order paid an

annual amount of $41,767 for these needs, plus his tuition. Id.

at 113-114. And when Brother Eduardo taught at the Salesian High

School in New Rochelle, New York, “[t]he school made a lump sum

payment for the teaching activities of all the Salesians. This

payment was sent directly to the Salesian community, which would

then use it for community needs such as food, housing expenses,

health care, and travel.” Eduardo AR at 114. All Plaintiffs were

asked to provide was evidence corroborating the records already

being kept.

46
 C. The Compensation Requirements Do Not Violate the
Establishment Clause.

The Establishment Clause prohibits the government from,

among other things, favoring one religion over another. See

Agostini v. Felton, 521 U.S. 203, 232 (1997); Larson v. Valente,

456 U.S. 228, 246 (1982). Plaintiffs argue that the challenged

regulations do just that because the Salesian Society is

“impermissibly inhibited from following the dictates of its

religion’s [v]ow of [p]overty,” while “religions that pay their

members, ministers and priests” are not impacted. Pls.’ Mot.,

ECF No. 42-3 at 19-22. As explained supra, however, religious

workers who have taken a vow of poverty are not precluded from

classification as a special immigrant religious worker under the

INA. The regulations, therefore, do not create the

“denominational preference” upon which Plaintiffs’ Establishment

Clause claims are based. Id. As a result, Plaintiffs have not

established that Defendants “acted with the purpose of advancing

or inhibiting religion,” Agostini, 521 U.S. at 232; nor have

they favored one religion over another, Larson, 456 U.S. at 246.

Accordingly, the Court concludes that Plaintiffs have failed to

establish an Establishment Clause violation.

Plaintiffs have also failed to establish that the

challenged regulations violate the Establishment Clause even if

they are facially neutral. See Pls.’ Mot., ECF No. 42-3 at 22.

47
Plaintiffs once again contend that the challenged regulations

“exclude[e] the Plaintiffs as a Catholic order and participants

therein solely because of their faith’s Vow of Poverty and

denying them all the benefit of immigration law and rights as a

result.” Pls.’ Mot., ECF No. 42-3 at 24 (citing Everson v. Board

of Educ. Of Ewing Twp., 330 U.S. 1, 16 (1947)). However, as

explained supra, this is not the case. Plaintiffs need not

“violate a cardinal principal of [their] religious faith,” Pls.’

Mot., ECF No. 42-3 at 24, to obtain a special immigrant

religious worker visa.

D. The Compensation Requirements Do Not Violate RFRA

RFRA, like the Free Exercise Clause, protects religious

exercise. “Congress enacted RFRA in order to provide greater

protection for religious exercise than is available under the

First Amendment.” Holt v. Hobbs, 574 U.S. 352, 357 (2015)

(citing Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 694

(2014)). To that end, RFRA provides that “Government shall not

substantially burden a person’s exercise of religion even if the

burden results from a rule of general applicability.” § 2000bb-

1(a). If the government—which is defined by RFRA to include any

“department” or “agency” of the United States, see § 2000bb-

2(1)—substantially burdens a person’s exercise of religion, RFRA

provides that the person is entitled to an exemption from the

rule unless the government “demonstrates that the burden to the

48
person—(1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering

that compelling governmental interest.” § 2000bb-1(b).

Plaintiffs argue that no religious order whose members

profess a vow of poverty “will be able to work legally in or

immigrate to the United States” because “no member will be

compensated directly or indirectly, [and] it follows that USCIS

will always deny the Petition of any religious order that

includes a [v]ow of [p]overty as its religious praxis.” Pls.’

Mot., ECF No. 42-3 at 24-25. This, they contend, is a

substantial burden of the exercise of religion for any religious

person who has taken a vow of poverty and seeks entry into the

United States as a special immigrant religious worker. Id. They

also suggest that even though they already provide the type of

support that would satisfy the challenged regulations, providing

documentation of that support to USCIS in response to a request

for evidence of “non-salaried compensation” is a burden on their

exercise of religion because to do so would be a “lie.” See

Pls.’ Reply, ECF No. 46 at 46; Pls.’ Supp., ECF No. 53.

As discussed supra, Plaintiffs have not established that

the challenged regulations place a burden on the exercise of

their religion, let alone a substantial one. Plaintiffs claim

that “no member [of the Salesian Society who has taken a vow of

poverty] will be compensated directly or indirectly,” and thus

49
they will never be eligible for a special immigrant religious

worker visa as long as the regulations requiring proof of

salaried or non-salaried compensation remain in place and

unmodified. Pls.’ Mot., ECF No. 42-3 at 24-25. Plaintiffs

financially support their Brothers by covering their “needs for

housing, food, clothing, travel, medical care,” living expenses,

and even tuition for religious studies. Eduardo AR at 113-14.

Defendants have made clear, both in this litigation and to

Plaintiffs during the course of the adjudication of the

Brothers’ I-360 visa petitions, that it categorizes this type of

support as “non-salaried compensation.” See Defs.’ Mot., ECF No.

43-3 at 2, 4, 19-21, 26-28; Defs.’ Reply, ECF No. 47 at 1-4;

Eduardo AR at 23-24; Rubio AR at 15-16; Sasika AR at 15.

Plaintiffs do not need to change any practice to qualify for a

visa. Accordingly, there is no deprivation of a government

benefit that Plaintiffs allege as the substantial burden they

face—that “USCIS will always deny the Petition of any religious

order that includes a Vow of Poverty as its religious praxis.”

Pls.’ Mot., ECF No. 42-3 at 24-25.

The Court is unpersuaded by Plaintiffs’ insistence that

giving USCIS any documentation of the financial support they

provide to their Brothers would constitute a burden on the

exercise of their practice of maintaining a vow of poverty

because it requires them to “tell a lie that they provide the

50
support under the heading of ‘non-salaried compensation.’” See

Pls.’ Reply, ECF No. 46 at 46. The Court appreciates that

Plaintiffs do not consider this financial support to be

“compensation” of any kind. But what matters for the purpose of

a RFRA violation is that despite this semantic disagreement,

Plaintiffs are eligible for special immigrant religious worker

visas without requiring a modification to their religious

practice. See Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C.

Cir. 2008) (finding no RFRA violation where the government

action “does not call for [the plaintiff] to modify his

religious behavior in any way—it involves no action or

forbearance on his part, nor does it otherwise interfere with

any religious act in which he engages”).

In this regard, this case is not unlike Kaemmerling, where

the D.C. Circuit held that the plaintiffs had not stated a claim

for relief under RFRA. Id. at 686. In Kaemmerling, the

Plaintiff alleged that the Federal Bureau of Prison’s extraction

and storage of his DNA information substantially burdened his

religious beliefs concerning the appropriate use of the

“building blocks of life.” Id. at 678-79. The court emphasized

that the “extraction and storage of DNA information are entirely

activities of the FBI, in which Kaemmerling plays no role and

which occur after the BOP has taken his fluid or tissue sample

(to which he does not object).” Id. at 679. Where challenged

51
action “does not call for [the individual] to modify his

religious behavior in any way—it involves no action or

forbearance on his part, nor does it otherwise interfere with

any religious act in which he engages, . . . [the government’s

actions] cannot be said to hamper his religious exercise because

they do not ‘pressure [him] to modify his behavior and to

violate his beliefs.’” Id. (citing Thomas, 450 U.S. at 718).

Similarly, here the government’s categorization of the type

of financial support the Salesian Society provides to the

Brothers does not call for the Brothers to modify their

religious practice, including their vow of poverty, nor does it

call for the Salesian Society to modify their practice of

providing support for the Brothers who live out their vow of

poverty. The financial relationship between the Salesian Society

and their Brothers who have taken a vow of poverty may remain as

it is, and Plaintiffs can meet the “compensation” requirements

and be eligible for special immigrant religious worker visas.

Even if the act of providing documentation to USCIS under

the “heading” of “non-salaried compensation” were a burden on

their exercise of religion, see Pls.’ Reply, ECF No. 46 at 46;

it is not a substantial one. Plaintiffs assert that they “have a

sincere religious belief that providing evidence of compensation

would force them to violate their vow of poverty, which is a

basic tenant of their Catholic Order,” Pls.’ Supp., ECF No. 53;

52
and courts defer to a RFRA claimant’s statement of its own

beliefs, so long as that belief is sincerely held, see Hobby

Lobby, 573 U.S. at 134 (“[I]t is not for [courts] to say that [a

person’s] religious beliefs are mistaken or insubstantial.”).

Nonetheless, it is well established that only substantial

burdens on the exercise of religion fall within the scope of

RFRA, Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001);

and it is up to courts to determine, as a matter of law, whether

a challenged law or regulation “substantially” burdens a

claimant’s religious exercise, see Mahoney v. Doe, 642 F.3d

1112, 1121 (D.C. Cir. 2011).

To determine whether the challenged regulations place a

“substantial burden” on Plaintiffs’ religious exercise, we ask

whether the challenged regulations put “substantial pressure” on

Plaintiffs to “modify [their] behavior and to violate [their]

beliefs.” Kaemmerling, 553 F.3d at 678 (quoting Thomas, 450 U.S.

at 718). The Court concludes that they do not. This case is

unlike those cited by Plaintiffs where the challenged law or

regulation placed significant pressure on people to take an

action that contravened the core of their religious beliefs and

practices. See Sherbert v. Verner, 374 U.S. 398, 404 (1963)

(state statute forced a Sabbatarian to choose between forfeiting

unemployment benefits on the one hand and accepting work on the

Sabbath, which would be an abandonment of one of the precepts of

53
her religion, on the other hand); Wisconsin v. Yoder, 406 U.S.

205, 218 (1972) (state law compelling Amish parents to send

their children to high school compelled the Amish to “perform

acts undeniably at odds with fundamental tenets of their

religious beliefs”); Hobby Lobby, 573 U.S. at 726 (company’s

cost of acting in accordance with their religious beliefs by not

providing insurance coverage for contraceptive methods by as

much as $475 million per year). Here, the Brothers need not

abandon their vow of poverty to be eligible for a special

immigrant religious worker visa. The Salesian Society need only

provide documents that support what they have already indicated

is their practice: providing support to Brothers who have taken

a vow of poverty, such as through payment of housing, food,

tuition, health insurance, and other needs.

For these reasons, the Court also rejects Plaintiffs’ RFRA

claims.

V. Conclusion

Accordingly, for the reasons set forth above, the Court

GRANTS Defendants’ Motion for Summary Judgment and DENIES

Plaintiff’s Motion for Summary Judgment. An appropriate order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
September 22, 2021

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