Religious Worker Visas|at Issue in 9th Circuit

(CN) - Arguing before the 9th Circuit, attorneys debated whether a government immigration agency violated the rights of religious workers who applied for special visas.

Sixteen immigrants and sponsoring churches with special religious worker visas sued U.S. Citizenship and Immigration Services in 2007, claiming it violated their rights and the Religious Freedom Restoration Act (RFRA).

Immigrants may apply for a five-year special visa for religious purposes. When that visa expires, the government gives them 180 days to adjust their status.

The plaintiffs argue that the government should allow religious workers to concurrently file applications with their sponsoring organization to adjust their immigration status. Immigration Services' failure to do so violates their right to practice religion, they claim.

Last May, a federal judge in Seattle ruled for the government, and the plaintiffs appealed to the 9th Circuit.

They argued on appeal that the government should let them stay in the United States while their immigration status is adjusted.

Before a three-judge panel last week, attorney Robert Pauw argued that the immigrants were not asking for a major change in the law or visa requirements of Immigration Services, but a narrow exemption to the agency's concurrent filing policy.

U.S. District Judge Jed Rakoff, sitting by designation, asked Pauw how the plaintiffs were substantially burdened by the policy.

"The government policy forces a person to choose between exercising religion and receiving a government benefit, or individuals are forced to cease exercising their religion in order to avoid civil or criminal penalties," Pauw replied.

"Your clients aren't being asked to cease practicing their religion," Circuit Judge Mary Schroeder said. "If they did, they would lose their right to be here on a religious visa in the first place, wouldn't they?"

Pauw mentioned that one of his clients, a Ukrainian Orthodox priest, will soon have an expired visa, and the church does not have someone to replace him.

Schroeder noted that the 9th Circuit previously rejected the argument that the policy violated the law.

"Your real problem is that the system operates too slowly. But that doesn't invalidate the regulation," she said, referring to the circuit's previous decision.

Pauw held firm to his point that a religious worker may have to leave the country, and a church would be deprived of its right to practice religion without another worker to replace him or her.

The judges, Schroeder in particular, grilled Pauw on this point.

"Your argument seems to say that if the church doesn't realize that they need the person until the five years is almost expired, that [the law] entitles the religious worker to stay here indefinitely until [the application] is processed. That can't be right, can it?"

Pauw agreed to use his remaining time to fully answer the judge's question, though he struggled to answer in a way that satisfied the panel.

When government attorney Melissa Liebman took the stand, Rakoff immediately asked her about how long it takes to process religious worker visas.

Liebman said the average time over the past few years has been five months, but some applicants have been delayed much longer.

She noted that other groups are similarly barred from filing concurrent applications, including translators and international broadcasters. Juveniles who have proven that they are abused, abandoned and neglected can also concurrently file under certain circumstances.

"The inability to concurrently file doesn't prevent religious workers from becoming lawful permanent residents," Liebman said. "It merely means that if there is a delay longer than the period of time it takes to finish their status here, that they may be required to temporarily leave the United States."

Liebman added that it is only when someone stays beyond the deadline that they may be ineligible for a change in immigration status.

The requirements do not force people to choose between exercising religious belief and receiving government benefits, she said.

"This regulation does not discriminate," she argued. "It merely provides for processing to ensure that the individuals who apply for a visa petition are qualified before they may go on to the next step. It's not intended to discriminate."

On rebuttal, Pauw reiterated that the Religious Freedom Restoration Act prohibits the government from substantially burdening religious exercise. He argued that the immigrants should be allowed to stay in the United States while their applications are being processed, characterizing it as a "narrow accommodation that RFRA authorized."

Schroeder again disagreed, saying Pauw seemed to suggest that RFRA gives authority to let religious workers stay in the United States.

"It seems like even if you were allowed to file concurrently you would argue that if it takes more time to process it, that RFRA would say you're allowed to stay here," the judge said.

Pauw responded that there is no compelling government interest to force a person to leave the United States. Immigration Services has ways of dealing with fraud and other problems without kicking people out, Pauw argued.

Circuit Judge Ronald Gould thanked the attorneys for their "fine arguments," noting that it is "a tough case."

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