Love Korean Church v. Chetoff

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOVE KOREAN CHURCH; DAE SONG 

PARK,

Plaintiffs-Appellants,

v.

MICHAEL CHERTOFF, Secretary of No. 07-55093

the United States Department of

Homeland Security; JONATHAN  D.C. No.

CV-05-09021-RJK

SCHARFEN,* Acting Director of

OPINION

United States Citizenship and

Immigration Service; DONALD W.

NEUFELD, Director of USCIS

California Service Center,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Robert J. Kelleher, District Judge, Presiding

Argued and Submitted

June 2, 2008—Pasadena, California

Filed December 5, 2008

Before: William C. Canby, Jr., Jay S. Bybee, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Canby

*Jonathan Scharfen, is substituted for his predecessor, Emilio T. Gonza-

lez, as Acting Director of the United States Citizenship and Immigration

Service, pursuant to Fed. R. App. P. 43(c)(2).

16019

16022 LOVE KOREAN CHURCH v. CHERTOFF

COUNSEL

Richard Sunghwan Kim, Los Angeles, California, for the

plaintiffs-appellants.

Keith M. Staub, Assistant United States Attorney, Civil Divi-

sion, Los Angeles, California, for the defendants-appellees.

OPINION

CANBY, Circuit Judge:

Love Korean Church (the “Church”) appeals an order of

the district court affirming the Bureau of Citizenship and

Immigration Services’ (“CIS”) revocation of a visa petition

filed by the Church on behalf its choir director. The Church

LOVE KOREAN CHURCH v. CHERTOFF 16023

had sought to have its choir director, a Korean citizen, classi-

fied as a “special immigrant” religious worker within the

meaning of 8 U.S.C. § 1101(a)(27)(C). Because the revoca-

tion of the visa petition was predicated on legal error and

findings of fact unsupported by substantial evidence, we

vacate the judgment of the district court and remand this case

for further consideration by the agency.

BACKGROUND

Love Korean Church is a non-profit religious organization

affiliated with the Korean Presbyterian denomination. The

Church was originally established in the 1980s to meet the

spiritual needs of the growing Korean-American community

in the Los Angeles area. The Church views religious music as

a form of worship and an integral component of its ritual cele-

brations.

Since 1994, the Church has benefitted from the work of

Dae Song Park, a native and citizen of the Republic of Korea.

Park was originally admitted to the United States as a tempo-

rary visitor in January 1994. Shortly after his arrival, he

became a member of the Church and began serving as its

choir director on a volunteer basis. In 1995, Park successfully

adjusted his immigration status to that of a full-time student,

so that he could attend English language courses at a local

school. In January 1997, Park transferred to California Union

University, where he enrolled in music classes and began pur-

suing a Master’s degree in music. Throughout this time and

until September 1998, Park continued serving as the Church’s

volunteer choir director. In October of 1998, when Park’s

application for adjustment of status to religious worker was

pending and permitted employment, the Church hired him as

a full-time salaried choir director.

During the period from March 1997 to November 2001, the

Church filed on Park’s behalf three I-360 petitions for a reli-

gious worker visa. This appeal concerns only the third peti-

16024 LOVE KOREAN CHURCH v. CHERTOFF

tion, which the CIS initially approved.1 In September 2003,

CIS issued a Notice of Intent to Revoke the approved petition,

stating that Park’s “duties do not relate to a traditional reli-

gious function. The tenets of a particular religious denomina-

tion should have significance on the performance of the duties

of the position being offered.”

CIS subsequently revoked the approved third I-360 peti-

tion. CIS found that Park was a full-time student during the

two-year period from November 1999 to November 2001, and

he therefore could not have been carrying on full-time sala-

ried work as choir director for the Church. It also concluded

that the duties listed in the Church’s petition could be per-

formed by a part-time volunteer and did not reflect a full-time

position.

The Church filed an administrative appeal of the decision

revoking the third I-360 petition which the Administrative

Appeals Office (“AAO”) dismissed. First, the AAO pointed

out some discrepancies between two documents submitted by

the Church in support of its petition—a weekly work schedule

and a diagram summarizing Park’s duties between November

1999 and November 2001—and noted that the Church had

submitted no evidence to explain the inconsistencies. The

AAO next concluded that the position as described in the

Church’s weekly work schedule did not qualify as a “religious

occupation” under the statute and regulations because: (1) the

Church failed to establish that all the duties listed in the

weekly work schedule were related to the position of choir

director and were not primarily secular in nature ; and (2) the

position had not been shown to be (a) directly related to the

Church’s religious creed, (b) recognized by the governing

body of its denomination, and (c) traditionally a permanent,

full-time, salaried occupation within the denomination.

1

The first petition was denied. The second was approved but revoked

two days after revocation of the third petition. In the present proceeding,

the Church contests only the revocation of the third petition.

LOVE KOREAN CHURCH v. CHERTOFF 16025

Finally, the AAO concluded that the evidence did not estab-

lish that Park was continuously engaged as choir director dur-

ing the two years immediately preceding the filing of the visa

petition, because the work schedule indicated that Park served

at most thirteen hours per week in music-related activities.2

Park and the Church filed an action for declaratory relief in

the district court, claiming that the revocation of the third I-

360 petition was not supported by “sufficient and good

cause.” The district court granted summary judgment for the

government. This appeal followed.

DISCUSSION

The district court’s jurisdiction to review CIS’ revocation

of the Church’s visa petition is predicated on 28 U.S.C.

§ 1331 and reinforced by the enactment of the Administrative

Procedure Act (“APA”), 5 U.S.C. § 701(a)(2). ANA Int’l, Inc.

v. Way, 393 F.3d 886, 890 (9th Cir. 2004) (holding that visa

revocations pursuant to 8 U.S.C. § 1155 are not made unre-

viewable by either 8 U.S.C. § 1252(a)(2)(B)(ii) or 5 U.S.C.

§ 701(a)(2)). Our appellate jurisdiction arises under 28 U.S.C.

§ 1291, and we review de novo the district court’s grant of

summary judgment. Spencer Enters., Inc. v. United States,

345 F.3d 683, 692 (9th Cir. 2003). Under the APA, we will

reverse an agency’s action if it is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law,”

5 U.S.C. § 706(2)(A), or if its factual findings are “unsup-

ported by substantial evidence,” Mester Mfg. Co. v. INS, 879

F.2d 561, 565 (9th Cir. 1989). To the extent the agency “inter-

pret[ed] its own regulation, even if through an informal pro-

2

The AAO’s dismissal does not rely, as CIS did, on the ground that Park

was not employed full-time because he was a full-time student during the

relevant period. The AAO acknowledges that “the record . . . does not

reflect that the beneficiary attended school during the qualifying two-year

period” and that “the petitioner appears to have paid the beneficiary for his

services during the two years immediately preceding the filing of the visa

petition.”

16026 LOVE KOREAN CHURCH v. CHERTOFF

cess, its interpretation of an ambiguous regulation is

controlling . . . unless ‘plainly erroneous or inconsistent with

the regulation.’ ” Bassiri v. Xerox Corp., 463 F.3d 927, 930

(9th Cir. 2006) (quoting Auer v. Robbins, 519 U.S. 452, 461

(1997)).3

I.

As a threshold matter, we consider whether the existence of

some discrepancies in the materials submitted by the Church

in support of its I-360 petition requires us to affirm the district

court’s judgment without reaching the merits of this appeal.

The Church carried the burden of proof throughout the pro-

ceedings to revoke the previously granted visa petition. 8

U.S.C. § 1361; Tongatapu Woodcraft Haw., Ltd. v. Feldman,

736 F.2d 1305, 1308 (9th Cir. 1984). Moreover, we defer to

the BIA’s reasonable interpretation of § 1361, which makes

“it . . . incumbent upon the petitioner to resolve the inconsis-

tencies by independent objective evidence. Attempts to

explain or reconcile the conflicting accounts, absent compe-

tent objective evidence pointing to where the truth, in fact,

lies, will not suffice.” Matter of Ho, 19 I. & N. Dec. 582, 591-

92 (BIA 1988). Under appropriate circumstances, “[d]oubt

cast on any aspect of the petitioner’s proof may . . . lead to

a reevaluation of the reliability and sufficiency of the remain-

ing evidence offered in support of the visa petition.” Id. at 591

(emphasis added).

3

Contrary to the Church’s contention, our analysis is not affected by the

fact that this case arises out of a visa petition revocation as opposed to the

initial denial of a visa petition. CIS may revoke an approved visa petition

for “good and sufficient cause.” 8 U.S.C. § 1155. The Bureau of Immigra-

tion Appeals (“BIA”) has reasonably interpreted this statutory requirement

to be satisfied if “the evidence of record at the time the decision was

issued . . . warranted . . . [a] denial” of the petition. Matter of Estime, 19

I. & N. Dec. 450, 452 (BIA 1987). We therefore review the agency’s revo-

cation as if it were an initial denial of the Church’s petition. See Garcia-

Quintero v. Gonzales, 455 F.3d 1006, 1012-13 (9th Cir. 2006) (Chevron

deference is appropriate when a multi-member panel of the BIA construes

an immigration statute in a published disposition).

LOVE KOREAN CHURCH v. CHERTOFF 16027

The AAO’s decision in this case did not rest, however, on

an adverse credibility finding based on the inconsistent

records that caused it to reject the Church’s other evidence. It

true that the AAO noted unresolved discrepancies between the

duties of the Church’s choir director as listed in its weekly

work schedule and the summary of those duties contained in

the diagram. The AAO apparently (and properly) resolved

these discrepancies against the Church, which had the burden

of proof. The AAO did not state, however, that the discrepan-

cies tainted the credibility of the other evidence, and it

reached the merits of the Church’s visa petition in light of that

other evidence.4 Because our review of an agency decision is

limited to the reasoning articulated by the agency, SEC v.

Chenery Corp., 318 U.S. 80, 87 (1943), we may not now

reject the entirety of the evidence submitted by the Church

when the agency did not do so. We therefore reach the merits

of the Church’s petition and review the legal and factual suffi-

ciency of the agency’s reasoning, mindful that any inconsis-

tency must be resolved against the petitioner. See Matter of

Ho, 19 I. & N. Dec. at 591.

II.

Turning to the merits of this appeal, we first consider

whether the position of choir director as defined in the

Church’s I-360 petition and supporting materials qualifies as

a “religious occupation” within the meaning of the statute. By

statute, up to 5000 permanent resident visas are set aside

every year for “special immigrant” religious workers other

than ministers. 8 U.S.C. § 1153(b)(4). A “special immigrant,”

as that classification pertains to ministers and other religious

workers, is defined as:

4

We need not decide whether it would be per se “arbitrary” or “capri-

cious” for the agency to indulge in such “falsum in unum, falsum in omni-

bus” fact-finding prerogative without providing an opportunity for a

hearing. 5 U.S.C. § 706(2)(A).

16028 LOVE KOREAN CHURCH v. CHERTOFF

[A]n immigrant, and the immigrant’s spouse and

children if accompanying or following to join the

immigrant, who—

(i) for at least 2 years immediately preceding the

time of application for admission, has been a mem-

ber 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 October 1, 2008, in order to

work for the organization at the request of

the organization in a professional capacity

in a religious vocation or occupation, or

(III) before October 1, 2008, 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, profes-

sional work, or other work continuously for at least

the 2-year period described in clause (i);

8 U.S.C. § 1101(a)(27)(C). The implementing regulation

defines the key term “religious occupation” as follows:

Religious occupation means an activity which

relates to a traditional religious function. Examples

LOVE KOREAN CHURCH v. CHERTOFF 16029

of individuals in religious occupations include, but

are not limited to, liturgical workers, religious

instructors, religious counselors, cantors, catechists,

workers in religious hospitals or religious health care

facilities, missionaries, religious translators, or reli-

gious broadcasters. This group does not include jani-

tors, maintenance workers, clerks, fund raisers, or

persons solely involved in the solicitation of dona-

tions.

8 C.F.R. § 204.5(m)(2). Following CIS’ interpretation of the

term “religious occupation,” the AAO required that all duties

proposed by the Church be related to the position of choir

director and not be primarily secular in nature. It also required

a showing that the position of choir director must have been

“traditionally a permanent, full-time, salaried occupation

within the denomination.” (Emphasis added).5 We consider

and reject each ruling in turn.

A.

We first address whether the AAO decision can be affirmed

because the weekly work schedule does not establish that “all

the duties listed [therein] are related to the position of choir

director and are not primarily secular in nature.” (Emphasis

added). We conclude that the standard imposed by the AAO

—namely, that all the duties of a proposed position must be

“not primarily secular in nature” and must be “related” to reli-

gious activities—is inconsistent with the definition of “reli-

5

In its decision, the AAO articulated two additional grounds for dis-

missing the Church’s appeal—namely, the supposed absence of evidence

in the record that the position of choir director is directly related to the

Church’s religious creed and that the position is defined and recognized

by the governing body of its denomination. At oral argument, counsel for

the government conceded that neither of these findings is supported by

substantial evidence. We therefore reject these rulings for lack of a factual

basis, and do not address the validity of the legal standards they employ.

16030 LOVE KOREAN CHURCH v. CHERTOFF

gious occupation” set forth in the regulation, 8 C.F.R.

§ 204.5(m)(2).

[1] Although the agency’s interpretation of 8 C.F.R.

§ 204.5(m)(2) presents a question of first impression in this

Circuit, we find guidance in the approach adopted by the

Third Circuit in a similar case, Soltane v. U.S. Dept. of Jus-

tice, 381 F.3d 143 (3d Cir. 2004). In Soltane, then-Judge Alito

explained that the regulation’s specific exclusion of certain

workers “who perform wholly secular functions” does “not

mean that a person cannot qualify as having a ‘religious occu-

pation’ if the worker’s job includes both secular and religious

aspects.” Id. at 150. The court noted that the commentary to

the regulation supported the exclusion of some occupations on

the ground that “[i]f [a] job has no religious significance, then

the fact that a person is a member of a religious denomination

working in a facility run by the denomination would not by

itself make that person a religious worker.” Id. (quoting 56

Fed. Reg. 66,965 (Dec. 27, 1991) (emphasis added)). It con-

cluded, however, that “[t]o the extent that the AAO read[s]

§ 204.5(m)(2) as requiring that a ‘religious occupation’

involve only religious functions, . . . its interpretation is incon-

sistent with the text of the regulation and other indications of

the agency’s intent and is accordingly not entitled to defer-

ence.” Id.

[2] We join the Third Circuit in rejecting an interpretation

of 8 C.F.R. § 204.5(m)(2) that would require each discrete

duty of a qualifying religious occupation to be primarily non-

secular and directly related to core religious activity. The reg-

ulation provides illustrative “[e]xamples” of several qualify-

ing positions—“liturgical workers, religious instructors,

religious counselors, cantors, catechists, workers in religious

hospitals or religious health care facilities, missionaries, reli-

gious translators, or religious broadcasters”—as well as some

that do not qualify—“janitors, maintenance workers, clerks,

fund raisers, or persons solely involved in the solicitation of

donations.” 8 C.F.R. § 204.5(m)(2) (emphasis added). The

LOVE KOREAN CHURCH v. CHERTOFF 16031

feature that distinguishes the first group from the second is

not that each discrete duty in a qualifying worker’s daily rou-

tine is religious, “not primarily secular” or directly related to

an exclusively religious activity, as the AAO required in this

case. “It is difficult to imagine any position with any religious

organization that would not involve a small amount of admin-

istrative duties.” Perez v. Ashcroft, 236 F. Supp. 2d 899, 904

(N.D. Ill. 2002). Rather, the unifying feature of the enumer-

ated qualifying occupations is that they carry a quantum of

religious significance. Soltane, 381 F.3d at 150. We therefore

cannot affirm the AAO decision simply because not all the

duties of choir director as described in the work schedule are

primarily non-secular and related to core religious activities.

[3] Having rejected the AAO’s interpretation of 8 C.F.R.

§ 204.5(m)(2), we decline to adopt in the first instance our

own characterization of the quantum of religious activity that

a proposed position must include to qualify under 8 C.F.R.

§ 204.5(m)(2). The regulation defines the key phrase “reli-

gious occupation” as “an activity which relates to a traditional

religious function.” Id. Although the AAO’s current interpre-

tation of this phrase is impermissibly restrictive, we recognize

that the regulation’s language is sufficiently broad to admit of

more than one interpretation. Moreover, we are fully cogni-

zant that no more than 5000 aliens may be admitted each year

as permanent residents pursuant to the religious worker “spe-

cial immigrant” classification.6 8 U.S.C. § 1153(b)(4). We

accordingly leave it to the agency to decide, in the first

instance and on the basis of its expertise, see INS v. Ventura,

537 U.S. 12, 16-17 (2002), whether an occupation that has

merely “some religious significance” suffices under the stat-

ute, Soltane, 381 F.3d at 150, or whether some greater level

is required: for example, that the occupation must be substan-

tially or even primarily comprised of religious duties.

6

Religious workers “seek[ing] to enter the United States . . . solely for

the purpose of carrying on the vocation of a minister of [a] religious

denomination” are not subject to the 5000 visas per year limitation. 8

U.S.C. § 1101(a)(27)(C)(ii)(I) (emphases added); 8 U.S.C. § 1153(b)(4).

16032 LOVE KOREAN CHURCH v. CHERTOFF

B.

We next consider whether the AAO’s decision can be

affirmed because the position of choir director had not “tradi-

tionally [been] a permanent, full-time, salaried occupation

within the denomination.” We conclude that, by requiring the

Church to show that it has traditionally employed a perma-

nent, full-time, and salaried choir director, the AAO imposed

a standard that is inconsistent with the controlling regulation.

[4] The implementing regulation, 8 C.F.R. § 204.5(m)(2),

adopts the term “traditional religious function” to define the

type of employment that may qualify as a “religious occupa-

tion” under the statute. It does not, however, shed light on

what constitutes such a “traditional religious function”; it

merely provides a few examples of qualifying (and non-

qualifying) positions. Accordingly, we recognize that there is

a threshold ambiguity as to the correct interpretation of the

term. See Bassiri, 463 F.3d at 930.

[5] In filling this vacuum, however, the agency has

imposed a standard that is inconsistent with the regulation it

purported to interpret. See id. In illustrating what may consti-

tute a qualifying “traditional religious function,” 8 C.F.R.

§ 204.5(m)(2) provides examples of distinct roles and activi-

ties performed by workers within certain religious denomina-

tions. It does not, however, impose any requirement that such

positions have been filled in the same manner for any dura-

tional period. CIS has unduly focused on the labor history of

the institution filing the petition as opposed to the type of

work described in the petition. This focus is irreconcilable

with the meaning and structure of 8 C.F.R. § 204.5(m)(2).

That a growing church has moved from a volunteer to a paid

worker for a traditional religious function does not change the

traditional religious nature of the work as set forth in the regu-

latory examples.

This is not an instance in which the regulations are drawn

in broad terms and implicitly delegate authority to develop

LOVE KOREAN CHURCH v. CHERTOFF 16033

additional requirements to the adjudicative body. Although 8

C.F.R. § 204.5(m)(2) is itself ambiguous, the following sub-

sections, 8 C.F.R. § 204.5(m)(3)-(4), spell out in detail what

a petitioner must disclose about the proposed “religious occu-

pation”:

(3) Initial evidence. Unless otherwise specified, each

petition for a religious worker must be accompanied

by [e]vidence that the organization qualifies as a

nonprofit organization . . . and . . . [a] letter from an

authorized official of the religious organization in

the United States which . . . establishes . . . [t]hat, if

the alien is to work in another religious vocation or

occupation, he or she is qualified in the religious

vocation or occupation. Evidence of such qualifica-

tions may include, but need not be limited to, evi-

dence establishing that the alien is a nun, monk, or

religious brother, or that the type of work to be done

relates to a traditional religious function.

...

(4) Job offer. The letter from the authorized official

of the religious organization in the United States

must also state . . . how the alien will be paid or

remunerated if the alien will work in a professional

religious capacity or in other religious work. The

documentation should clearly indicate that the alien

will not be solely dependent on supplemental

employment or solicitation of funds for support. In

doubtful cases, additional evidence such as bank let-

ters, recent audits, church membership figures, and/

or the number of individuals currently receiving

compensation may be requested.

8 C.F.R. § 204.5(m)(3)-(4). If the agency intended to impose

a denomination’s payroll history as a threshold requirement,

we have little doubt that such records would have been

16034 LOVE KOREAN CHURCH v. CHERTOFF

included among the detailed substantive and evidentiary

requirements set forth in § 204.5(m)(3)-(4). They were not. It

was therefore unreasonable for the agency to read such a

requirement into 8 C.F.R. § 204.5(m)(2).7

***

[6] In sum, CIS’ interpretation of § 204.5(m)(2) was unrea-

sonable with respect to both the requirements that the AAO

found unsatisfied in this case: (1) that “all of the duties listed

[in the petition be] related to the position of choir director and

. . . not primarily secular in nature,” (emphasis added), and (2)

that the Church must have traditionally employed a perma-

nent, full-time, and salaried choir director.

III.

The AAO also dismissed the Church’s appeal because the

Church had failed to establish that Park had “been carrying on

such vocation, professional work, or other work [as that

described in the proposed position] continuously for at least

the 2-year period [immediately preceding the time of applica-

tion for admission].” 8 U.S.C. § 1101(a)(27)(C)(iii). The

agency concluded that the Church had not satisfied this

requirement because “the evidence does not establish that

[Park] was working full time as a choir director”—i.e., the

proposed position—during the relevant two-year period. In

particular, the AAO pointed to the weekly work schedule,

which indicated “at most[ ] 13 hours per week in music

related activity.”

7

It is of course true that “[i]n appropriate cases, [CIS] may request

appropriate additional evidence relating to the eligibility under section

203(b)(4) of the Act of the religious organization, the alien, or the affili-

ated organization.” 8 C.F.R. § 204.5(m)(3)(iv). This provision, however,

does not authorize CIS to impose, as it did here, additional threshold

requirements that are “plainly erroneous or inconsistent with the regula-

tion[s].” Bassiri, 463 F.3d at 930 (internal quotation marks and citation

omitted).

LOVE KOREAN CHURCH v. CHERTOFF 16035

[7] We cannot affirm the AAO’s decision on this ground.

The AAO did not find that Park was not a full-time, salaried

employee of the Church during the relevant two-year period

—a conclusion that would be squarely contradicted by the

record. Quite differently, it concluded that not enough of the

full-time, salaried work performed by Park was actually

related to music. This approach is contrary to the statute in

two respects. First, although the Church did label the pro-

posed position as “choir director,” music is not necessarily the

only activity of religious significance in the proposed posi-

tion. To the extent that other duties identified in the proposed

position and unrelated to music carried religious significance,

the salaried time spent by Park engaging in those activities

during the relevant two-year period must be credited towards

the required full-time and salaried experience. For example,

by focusing exclusively on music, the AAO apparently

excluded from its calculus several hours dedicated every week

to “prayer”—presumably as religious an activity as one can

imagine. If prayer is a duty under the Church’s choir director

position and Park engaged in prayer as part of his salaried

employment during the relevant two-year period, that time

was clearly spent in “such work” as that for which the Church

seeks the “special immigrant” classification. 8 U.S.C.

§ 1101(a)(27)(C)(iii). Accordingly, it must be credited in

assessing the full-time nature of Park’s experience.

[8] Moreover, the statute requires two years of experience

in “such work” as that of the proposed “religious occupation.”

8 U.S.C. § 1101(a)(27)(C)(iii) (emphasis added). As we have

already explained, however, § 204.5(m)(2), which defines the

key phrase “religious occupation,” does not require that every

duty of a qualifying position be religious in nature or related

to religious activities. It follows, then, that the two-year expe-

rience requirement may similarly be satisfied even if not

every work-related duty in which the beneficiary engaged

during the relevant two-year period was religious in character.

If, for example, the agency on remand should adopt the Third

Circuit’s standard requiring only “some religious signifi-

16036 LOVE KOREAN CHURCH v. CHERTOFF

cance,” Soltane, 381 F.3d at 150, and should conclude that the

Church’s choir director position does have “some religious

significance,” id., then Park would appear to satisfy the expe-

rience requirement announced in § 1101(a)(27)(C)(iii).

Because, as the case is presented to us, the AAO’s decision

does not foreclose this possibility, we cannot affirm its dis-

missal of the Church’s appeal on the ground that it failed to

satisfy the two-year experience requirement pursuant to 8

U.S.C. § 1101(a)(27)(C)(iii).8

CONCLUSION

[9] The AAO’s dismissal of the Church’s appeal rests on an

interpretation of 8 C.F.R. § 204.5(m)(2) that is inconsistent

with the regulation and on factual findings that are unsup-

ported by substantial evidence. Reconsideration of the AAO’s

regulatory interpretation also requires reconsideration of its

application of the two-year experience requirement set forth

in 8 U.S.C. § 1101(a)(27)(C)(iii). Accordingly, we reverse the

judgment of the district court, and vacate the AAO’s decision.

We remand the matter to the district court with instructions to

remand it to the agency for further proceedings consistent

with this opinion.

8

The AAO’s decision does not suggest that Park was not a full-time,

salaried employee of the Church during the relevant two-year period.

Accordingly, we need not reach the separate requirement imposed by the

agency that the beneficiary’s two-year experience in the relevant religious

occupation be accrued in the context of a full-time and salaried employ-

ment relationship. See, e.g., Haw. Saeronam Presbyterian Church v.

Ziglar, 243 Fed. Appx 224, 226 (9th Cir. 2007) (unpublished opinion)

(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(a)(27)(C)(iii) only if they are

employed full time). As our decision makes clear, the inquiry whether a

beneficiary is employed full time and receives a salary for his services

during the relevant two-year period is independent of the question whether

his duties during that time period qualify as work such as that described

in the asserted “religious occupation.”

LOVE KOREAN CHURCH v. CHERTOFF 16037

REVERSED AND REMANDED, WITH INSTRUC-

TIONS.