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Saturday, July 13, 2024 | Back issues
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Minister Can Pursue Lawsuit Over Visa Denial

(CN) - Homeland Security cannot dismiss claims that it improperly denied a "special immigrant" visa petition to a Brazilian church pastor, a federal judge ruled.

Brazilian citizen Carlos Alencar came to the United States on a six-month B-2 nonimmigrant visitor's visa with his wife and two children in June 1995.

Instead of leaving, Alencar remained in the United States and became a religious minister for Shalom Pentecostal Church in Delran, N.J., in 1998.

In April 2009, on Alencar's behalf, the church filed an I-360 petition - the first step toward gaining permanent residency - under a statute qualifying as "special immigrants" those who have been "carrying on" religious work in the U.S. for two years.

The U.S. Citizenship and Immigration Service (USCIS) denied the petition in July 2009, relying on a Homeland Security regulation that says qualifying religious work must be performed under lawful immigration status.

The USCIS Administrative Appeals Office affirmed in March 2010.

The church and Alencar sued Homeland Security Secretary Janet Napolitano and three USCIS 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 for lack of standing and failure to state a claim. Because he lived unlawfully in the U.S. for more than a year, federal law requires Alencar to return to Brazil, wait 10 years and then seek a visa overseas, the government said.

U.S. District Judge Renée Bumb upheld some claims last week finding that Alencar does have standing on the basis of a constitutional concrete injury.

"Alencar clearly suffered a concrete injury - the denial of the I-360 Petition," Bumb wrote.

The court cannot redress such injuries, but standing does exist, according to the ruling.

"While, accepting defendants' arguments, any victory by plaintiffs would be pyrrhic, that does not alter the fact that this court can grant them the relief they do seek," Bumb added (emphasis in original).

The government failed to convince the court that the "carrying on" language of the statute is ambiguous and silent on the legal status of the work performed, leaving a gap for the Homeland Security regulation to fill.

"Surveying both the plain text of the statute and the statutory context in which it is found, the statute is neither ambiguous, nor silent, and Congress did not leave a gap for regulations to fill," the 17-page opinion states (emphasis in original).

Alencar can advance claims that the regulation improperly imposes a requirement beyond those mandated by the statute.

"The plain text of the statute solely requires that the alien have 'carr[ied] on' work without regard to the legal status of that work. Under these circumstances, the regulation is ultra vires," Bumb wrote.

The judge dismissed the RFRA and constitutional claims, however, holding that they "solely consist of insufficient conclusory allegations."

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