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Monday, June 24, 2024 | Back issues
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Appellate Victory in Pastor’s Visa Battle

(CN) - A Brazilian church pastor who has worked illegally in the United States for 17 years may yet obtain a "special immigrant" visa petition, the 3rd Circuit ruled.

Carlos Alencar came to the United States with his wife and two children in 1995. Though the Brazilian's B-2 nonimmigrant tourist visa expired after six months, he remained in the United States and petitioned for an I-360 visa in 1997, seeking legal immigration status as a special immigrant religious worker.

That application was denied, making Alencar ineligible to work in the United States, but he became a senior pastor for Shalom Pentecostal Church in Delran, N.J., in 1998.

Alencar filed a second petition in 2001, which was also rejected.

The church then filed yet another I-360 petition on Alencar's behalf in April 2009, which the U.S. Citizenship and Immigration Service (CIS) denied months later.

The agency relied on a Homeland Security regulation that says qualifying religious work must be performed under lawful immigration status, for at least two years immediately preceding the filing of the petition.

The CIS Administrative Appeals Office then affirmed in March 2010.

Alencar and the church sued Homeland Security Secretary Janet Napolitano and three CIS officials in August 2011, claiming violations of the Religious Freedom Restoration Act (RFRA), the First Amendment and the equal-protection clause of the U.S. Constitution.

The defendants moved to dismiss, arguing that Alencar must return to Brazil and wait 10 years to seek a visa there because he lived unlawfully in the United States for over a year.

U.S. District Judge Renee Bumb denied the motion on Jan. 14, 2013, finding that Alencar has standing to challenge the regulation based on a constitutional concrete injury.

Though the court dismissed Alencar's RFRA and constitutional claims as "conclusory," it invalidated the Homeland Security regulation that says qualifying religious work must be performed under lawful immigration status.

A three-judge panel of the 3rd Circuit affirmed Tuesday that the regulation is invalid.

"Congress has taken affirmative steps in the [Immigration and Nationality Act] INA to enable qualified foreign workers to provide services to religious organizations within the United States," Judge Cheryl Ann Krause wrote for the Philadelphia-based federal appeals court. "We therefore reject the proposition that Alencar's interests 'are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.'"

The decision goes on to explain that "the INA authorizes an alien who engaged in religious work continuously for the two years preceding the visa application and who meets the other statutory criteria to qualify for an I-360 visa as a special immigrant religious worker."

"As the statute is clear and unambiguous and the regulation is inconsistent with the statute, the regulation is ultra vires," Krause continued.

Uncle Sam failed to show that Alencar cannot proceed because a CIS regulation bans the beneficiary of a petition from filing an administrative appeal.

Federal law "provides that, for special immigrant religious workers, 'the alien, or any person in the alien's behalf' has standing to file," Krause wrote. "For this category of visa petitioner, the alien is not merely a 'beneficiary,' but instead, either directly or through someone on his behalf, has legal standing."

The appeals court also sided with Alencar on other respects, reversing for further fact-finding on whether he satisfies the remaining criteria for the I-360 visa.

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