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Hawaii v. Ziglar

United States Court of Appeals, Ninth Circuit
Jun 14, 2007
243 F. App'x 224 (9th Cir. 2007)

Summary

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(C) only if they are employed full time

Summary of this case from Love Korean Church v. Chertoff

Opinion

No. 05-15259.

Argued and Submitted November 15, 2006.

Filed June 14, 2007.

Law Office of Nathan W.S. Choi, Honolulu, HI, for Plaintiff-Appellant.

Harry Yee, Office of the U.S. Attorney, Honolulu, HI, Mark C. Walters, Esq., Anh-Thu P. Mai, Esq., U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii, Susan Oki Mollway, District Judge, Presiding. D.C. No. CV-04-00496-SOM.

Before: TROTT, WARDLAW, and W. FLETCHER, Circuit Judges.


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


The Hawaii Saeronam Presbyterian Church ("HSPC") seeks a "special immigrant religious worker" visa for its minister, Kwang Tae Kim. The California Service Center of the U.S. Citizenship and Immigration Services denied HSPC's petition; the Administrative Appeals Office ("AAO") dismissed HSPC's appeal; and the district court affirmed. In this appeal, HSPC contends that it was error for the AAO to require the church to prove that Kim had worked full time as a minister during the two years immediately preceding the visa petition. HSPC further contends that, even if the AAO's interpretation of the law is proper, the church produced sufficient evidence of Kim's full-time employment.

Our review focuses on the AAO's decision, which we analyze "from the same position as the district court." W. Radio Servs. Co. v. Espy, 79 F.3d 896, 900 (9th Cir. 1996). We may reverse that decision only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or is "unsupported by substantial evidence." 5 U.S.C. § 706(2)(A), (E).

By statute, a minister may qualify for a special immigrant religious worker visa only if he (1) has been a member of a bona fide religious denomination for at least two years, (2) "seeks to enter the United States . . . solely for purpose of carrying on the vocation of a minister of that religious denomination," and (3) "has been carrying on such vocation . . . continuously for at least the [immediately preceding] 2-year period." 8 U.S.C. § 401(a)(27)(C); see also 8 U.S.C. § 1153(b)(4). These requirements are restated in regulatory form at 8 C.F.R. § 204.5(m). The applicable statutes and regulations neither expressly require religious workers to carry on their vocations full time during the two years preceding their petitions nor expressly foreclose such a reading. The AAO's adoption of a full-time employment requirement accords with Matter of Faith Assembly Church, 19 I. N. Dec. 391 (BIA 1986), in which the BIA held that "part-time ministerial employment" did not qualify a minister for special immigrant classification under a prior version of § 1101(a)(27)(C). Id. at 393. The BIA explained that the statute "requires the minister to have been and intend to be engaged solely as a minister of a religious denomination." Id. Because the BIA's decision in that case was neither arbitrary nor manifestly contrary to the statute, we conclude that it was reasonable for the AAO to follow the BIA's lead and require a showing of full-time employment. Cf. Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011-14 (9th Cir. 2006) (explaining that Chevron deference is appropriate when the BIA construes an immigration statute in a published disposition).

Substantial evidence supports the AAO's finding that HSPC failed to prove that Kim had worked full time as a minister during the two years immediately preceding its petition. The AAO was legitimately concerned by inconsistencies in HSPC's financial records and by HSPC's failure to provide tax documents, bank statements, or similar information to establish Kim's full-time employment. We agree with the district court that the discrepancies in the record, and HSPC's failure to account fully for those discrepancies, provide a sufficient basis for the AAO's decision.

AFFIRMED.


Summaries of

Hawaii v. Ziglar

United States Court of Appeals, Ninth Circuit
Jun 14, 2007
243 F. App'x 224 (9th Cir. 2007)

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(C) only if they are employed full time

Summary of this case from Love Korean Church v. Chertoff

In Hawaii Saeronam Presbyterian Church v. Ziglar, 243 Fed.Appx. 224, 226 (9th Cir.2007) (per curiam), the petitioning church had failed to submit required forms of evidence showing that the beneficiary worked full-time as a minister, and the financial statements it did submit were inconsistent.

Summary of this case from Redeemed Christian Church of God v. U.S. Citizenship & Immigration Servs.

In Hawaii Saeronam Presbyterian Church v. Ziglar, 243 Fed.Appx. 224, 226 (9th Cir.2007) (unpublished), the petitioning church had failed to submit required forms of evidence showing that the beneficiary worked full-time as a minister, and the financial statements it did submit were inconsistent.

Summary of this case from Redeemed Christian Church of God & Joel Onyema Uzoma v. U.S. Citizenship & Immigration Servs.

In Hawaii Saeronam Presbyterian Church v. Ziglar, 243 Fed. Appx. 222 (9th Cir. 2007), the Court ruled that the BIA's decision in Matter of Faith Assembly Church was neither arbitrary nor manifestly contrary to the statute.

Summary of this case from Ukrainian Autocephalous Orthodox v. Chertoff
Case details for

Hawaii v. Ziglar

Case Details

Full title:HAWAII SAERONAM PRESBYTERIAN CHURCH, Plaintiff-Appellant, v. James W…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jun 14, 2007

Citations

243 F. App'x 224 (9th Cir. 2007)

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