Petition — Unification Church v. Bell
Supreme Court brief1978
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“a Supreme Court, U. S,
FILED ,
| MAY 26 1972?
IN THE MICHAEL RODAK, JR., CLERK
Supreme Court of the United
October Term, 1977
\o —=1 695
UNIFICATION CHURCH
Petitioner,
v.
ATTORNEY GENERAL
OF THE UNITED STATES
KEIKO ASAI, e¢ a/.
Petitioners,
v
IMMIGRATION AND NATURALIZATION SERVICE
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
David Carliner
Carliner & Gordon
Attorney for Petitioners
Su.te 931
1511 K Street, N.W.
Washington, D.C. 20005
RS Pe PPE rrr ere reer er i
EE tee ch into daevodasveseveenae ras il
OE 6c. ck bs se bdec 66240 2 hands 60 08 ii
Constitutional provisions, statutes and
EE SINE oc bs ccc conwewonns od od ae v
ac dind chs cel) chun cinetechedh oe es 1
Reasons for granting writ .............00600eeeee 14
Cs baie nhcke sce ccdiledasii caves 38
Appendix A (Unification Church) ............... la
Opinion of the court of appeals ............... la
Memorandum opinion of the district
MR idintendddcdete bee weed 19a
Memorandum opinion of the district
Ch, Si Ms cccecs de ddedewre seed 27a
Decision of regional commissioner,
SD. Bh, HPs Kc Ge aR PEN w es dé cNVeowese 34a
Decision of regional commissioner,
BE Ol Wn LoL ie oto Jack is bu bwes 45a
Decision of regional commissioner,
Sey Ge TEE ab 00 0 6daWh dude cd sb eedecese 73a
Appendix B (Keiko Asai) ..........-2cccccccces 1b
Decision of Board of Immigration
Appeals, January 14, 1977
ERG ci ccchstcene teh tedaduacecee iste: Ic
I thio dhe s eS been dtebud iegeds 1d
IE cuens d6b00s%0ee baeekasnseses cous le
CITATIONS
Cases:
Accardi v. Shaughnessy,
EE cs. oa cvavasccseaied 23, 29
Armstrong v. Manzo,
ns oboe cetebesees 35
Ashbacker Radio Corp. v. F.C.C.,
er a ree oe 34, 35
Califano v. Sanders,
430 U.S. 99 (1977) .......cceceeeeee seuss 6, 33
Campos v. INS, 402 F. 2d 758
RS ee ee ree Oe er 37
Cantwell v. Connecticut,
CR Ee ee eer 17
The Chinese Exclusion Case,
kt: vhenetckua 36
Committee for Public Education &
Religious Liberty v. Nyquist,
GTS WS. THE AGED 5 oncccccccccccccccccss 16
Fiallo v. Bell,430 U.S. 787 (1977) ..........00085 36
Follett v. McCormick, 321 U.S. 573 (1943) .... 27, 29
Foti v. INS, 375 U.S. 217 (1963) ...........2006. 38
Fowler v. Rhode Island,
i: it nee tebe eens hbase eens 29
INS v. Stamisic, 395 U.S. 62 (1965) ..........644. 35
ICC v. Louisville & N.R. Co.,
227 U.S, OB (IDES)... 0... cc ccccccccccccccce: 33
Japanese Immigrant Case, 189 U.S. 86 (1903) ..... 32
Kleindienst v. Mandel,
408 U.S. 753 (1972) ............ i, 10, 17, 18, 36
Knauff v. Shaughnessy,
338 U.S. 537 (1950) ............eeeeeeeeeeee 37
Kwok v. INS, 392 U.S. 206 (1967) ..........644. 38
Lemon v. Kurtzman, 403 U.S. 602 (1971) ........ 16
Mahler v. Eby, 264 U.S. 32 (1924) ........00005 33
Mathews v. Diaz, 426 U.S. 67 (1975) ............ 37
Matter of Brantigan,
11 I&N Dec. 493 (B.I.A. 1966) ...........000- 9
Matter of Sourbis,
11 I&N Dec. 335 (B.I.A. 1965) ............00. 12
Meek v. Pittinger, 421 U.S. 358 (1975) ........... 16
Murdock v. Pennsylvania,
319 U.S. 105 (1942) .......... iii, 24-5, 26, 27, 28
NLRB ». Pipefitters, 429 U.S. 507 (1976) ...... 18, 22
NLRB v. The Catholic Bishop of Chicago,
es 4 3 , Pe eile 2 ear oe 15
Pierre v. U.S., 547 F.2d 128 (Sth Cir. 1977)
judgment vacated, 434 U.S. 962 (1977) ........ 36
Roemer v. Maryland Public Works Board,
ce ee eusncis 16
Securities & Exchange Commission v.
Chenery Corp., 318 U.S. 80 (1942) ........ iii, 18, 22
Southern Railway Co. v. Virginia,
a ci wc oun dusddbess 6édees 33
Stokes v. INS, 393 F. Supp. 24
ti ens ea 2 37
Sung v. McGrath, 339 U.S. 23 (1950) ............ 35
U.S. v. Nixon, 418 U.S. 683 (1974) ..........4.. 29
United States ex rel Ulrich v. Kellog,
30 F.2d 984, cert. denied, sub nom. United
States ex rel. Ulich v. Simpson,
SIN TEE, GUI 210 iG oh boc Vee ee 13
Vitarelli v. Seaton, 359 U.S. 535 (1959) .......... 29
Walz v. Tax Commission, 397 U.S. 664 (1970) .... 16
Wolman v. Walter, 433 U.S. 229 (1977) ......... 16
Constitution & Statutes: Miscellaneous:
Annual Report, Immigration & Naturalization
United States Constitution, First Amendment ... ii, v .
'¥, EE ETT 22
7,9, 14, 15, 17, sconse, S976. 9p
24, 25, 26 H.R. Rep. No. 1086, 87th Cong.. Ist Ses.
. ed in Foti v. U.S. ......... 38
Administrative Procedure Act, 5 U.S.C. 701 ....... 6 SPSHIEER, Guanes 4
erpreter Releases 73, Feb. 24, 1978,
Immigration & Nationality Act ng ese by Senoed Castillo before House
= en ans te 1101 (a) (15) ceccees v, 31 Judiciary Subcommittee on Immigration,
- 106(a), 8 U.S.C. 110Safe) ............ 37, 38 ~— a hiatetitaes 36
Sec. 212(d)(3), 8 U.S.C. 1182 (d)(3) ........... 17 Citizenship & In
Sec. 214a, 8 U.S.C. 1184............ v, 17, 18, 34
Sec. 241(a)(2), 8 U.S.C. 1251 (a)(2)........... 12
Sec. 242(b), 8 U.S.C. 1252(b) ............. vi, 34
Regulations:
te 9 5 Pee see 29, 30
8 CFR 103.2(b)(2) ..........0-0-. vii, 7, 8, 29, 30
ft: § * ee ee 29,30
8 CFR 214.2(h)(4) ........... vili, 3, 6, 22, 28, 31
8 CFR 214.2(h)(6) ......... ix, 7, 8, 10, 29, 30, 31
OCP 204008.. ... << cccksecce cdQeueneee 22
DEBE. OOP 6 vccesdedsiceicccetenk eee 6
Se Ge GSD os coc 00050 kde eee eee 2
eS FS re 28
29 CFR 60.7 Schedule A, Group III(b) ......... 24
Foreign Affairs Manual, Volume 9-Visas,
23 ©.F.R. 43.25, Pas. BD, 4G os iivdeisices 2
IN THE
Supreme Court of the Anited States
October Term, 1977
No.
UNIFICATION CHURCH
Petitioner,
v.
ATTORNEY GENERAL
OF THE UNITED STATES
KEIKO ASAI, e¢ a/.
Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE
PETITION OR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitioners pray that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for
the District of Columbia Ciscuit which affirms the decision
of the United States District Court for the District of Col-
umbia and which sustained final orders of deportation by
the Board of Immigration Appeals.
OPINIONS BELOW
The opinion of the court of appeals was rendered on
March 1, 1978 and is unreported, and is set forth in Ap-
pendix at pp. la-18a. The opinions of the District Court
are unreported and are set forth in the Appendix at pp.
19a-26a and 27a-33a.
753 (1972), modify one of the findings and con-
JURISDICTION vert it into a ‘‘threshold,’’ ‘‘facially legitimate
The judgment of the court of appeals was entered on and bona fide reason’’ in order to sustain, the
March 1, 1978, Appendix A, pp. la-18a. The jurisdiction administrative finding?
of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
Whether in adjudicating petitions to permit che
training of alien missionaries in the United
States, the Immigration and Naturalization Ser-
vice, consonant with the Free Exercise of Religion -
Clause of the First Amendment, may determine
whether a religious organization has an
‘“established and realistic training program’’ or
if it is ‘‘appropriate for the purpose for which it
is intended?’’
Whether the refusal to approve a missionary
training program upon the grounds that it is
‘‘too scholastic’, is not ‘‘firmly established’’,
has an ‘‘improper ratio of field experience to
classroom instruction’, is not ‘‘uniform’’, is
‘‘unnecessary’’, not ‘‘useful’’, and involves ‘‘ex-
cessive fund raising’’, is an interference with a
church’s right to the free exercise of its religion
and is a violation of the First Amendment?
Whether in reviewing an administrative decision
by the Immigration and Naturalization Service
which has relied upon many factors relating to
the ‘‘administration, the development, need, ef-
fectiveness, and utility of a bona fide training
program’’ to determine that the program is not
bona fide, the court of appeals may, upon the
authority of K/eindienst v. Mandel, 408 U.S.
Whether the modification of the administrative
findings and the failure to judge the grounds
upon which the administrative order was based is
in conflict with Securities and Exchange Commi-
sion v. Chenery Corp., 318 U.S. 80 (1942)?
. Whether the fact that a religious body relies
upon fund-raising to support its trainees in the
United States may, consonant with Murdock v.
Pennsylvania, 319 U.S. 105 (1942), be used as a
basis for determining that the training program
is not bona fide where the administrative regula-
tions preclude consideration of the ‘‘source of
any remuneration received by a trainee and
whether or not any benefit will accrue to the
petitioner?
Whether in circumstances where the Immigra-
tion and Naturalization Service permits commer-
cial and industrial employers to obtain approval
of training programs regardless whether the
trainees are engaged in ‘‘productive
employment,’ Ahe denial of petitions for a train-
ing program by a religious body upon the
ground that trainees will be engaged in fund-
raising is a permissible discrimination against a
religious institution?
Whether the procedures for adjudicating the
petitions for the approval! of a training program
have conformed with the administrative regula-
tions where the district director, who is vested
with responsibility to make the initial decision,
has failed, as required by the regulation, to per-
mit the petitioner ‘‘to inspect and rebut’’ ‘‘any
evidence not submitted by the petitioner’’
‘‘when an adverse decision is proposed’’ and
when the ‘‘denial decision of the district direc-
tor’’ has failed to ‘‘set forth the pertinent facts
adduced from the evidence considered and
give(n) the specific reasons for the decision in the
light of the facts’’?
Whether the failure to comply with the specific
terms of the administrative regulations may be
regarded as not “prejudicial” where it is found
that the regional commissioner, who functions in
an appellate capacity, has ‘‘fulfilled his obliga-
tions,’’ not withstanding the fact that the
regional commissioner failed to remand the case
to the district director and failed to ‘‘set forth
the pertinent facts adduced from the evidence
considered’’ in rendering an adverse decision?
Whether procedures, which permit a district
director to deny an application for an extension
of stay in the United States, without an inter-
view, a hearing, findings of fact, or an oppor-
tunity to submit supporting evidence; give con-
clusive effect to the district director's decision in
a deportation proceeding; and bar the immigra-
tion judge from determining whether the appli-
cant is a bona fide nonimmigrant and not sub-
ject to deportation, conform with Section 242(b)
of the Immigration and Nationality Act, 8
U.S.C. 1251(b), and meet the requirements of
due process for deporting an alien from the
United States.
iv
CONSTITUTIONAL PROVISIONS,
STATUTES, AND REGULATIONS INVOLVED
The First Amendment to the United States Constitu-
tion provides in pertinent part:
“Congress shall make no law respecting an
establishment of sia or prohibiting the free
exercise thereof .
Section 101(a)(15) of the Immigration and Nationali-
ty Act, as amended, 8 U.S.C. 1101(a)(15), provides:
‘‘The term ‘immigrant’ means every alien except
an alien who is within one of the following
classes of nonimmigrant alicns -
(H) an alien having a residence in a foreign
country which he has no intention of abandon-
ing . . .(ii) who is coming ep Sie to the
United States as a trainee;
Section 214 of the Act as amended, 8 U.S.C. 1184, pro-
vides in part:
‘*(c) The question of importing any alien as
a nonimmigrant under section 101(a) (15)(H) or
(L) in any specific case or specific cases shall be
determined by the Attorney General, after con-
sultation with appropriate agencies of the
Government, upon petition of the importing
employer. Such petition shall be made and ap-
proved before the visa is granted. The petition
shall be in such form and contain such informa-
tion as the Attorney General shall prescribe. The
approval of such a petition shall not, of itself, be
Vv
procedure for determining the deportability of an alien
construed as establishing that the alien is under this section.’’
. — 4
Section 242(b) of the Immigration and Nationality Act,
8 U.S.C. 1252(b), provides, in part:
8 C.F.R. 103.2(b)(2) (1974 ed.) provides in pertinent
part:
'(2) Inspection of evidence. An applicant or
"*(b) A special inquiry officer shall conduct pro- petitioner shall be permitted to inspect the
c under this section to determine the
deportability of any alien, and. . . shall make
determinations, including orders of deportation.
Determination of deportability in any case sha!l
be made only upon a record made in a pro-
ceeding before a special inquiry offficer. . . .
ceedings before a special inquiry officer ac-
ron under the provisions of this section shall be
in accordance with such regulations, not incon-
sistent with this Act, as the Attorney General
shall prescribe. Such regulations shall include re-
quirements that -
the alien shall be given notice, reasonable
nt the damnmne eee
charges against him and of the time and place at
which the proceedings will be held;
= ili be valid
4) no decision of deportability shall be va
unless it is based upon reasonable, substantial,
and probative evidence.
The procedure so prescribed shall be the sole and exclusive
vi
i tN ta ey
record of proceeding which constitutes the basis
for the decision, except as hereinafter provided.
If the decision will be adverse to the applicant or
petitioner on the basis of derogatory
evidence considered by the Service and of which
the applicant or petitioner is unaware, he shall
be advised thereof and offered an Opportunity to
rebut it and present evidence in his behalf before
the decision is rendered, except that classified
evidence shall not be made available to him.
Any explanation, rebuttal, or evidence presented
by or in behalf of the applicant or petitioner
shall be included in the record of proceeding. A
determination of statutory ineligibility shall not
be valid unless based on evidence contained in
the record of proceeding. In exercising discre-
tionary power when considering an application
of petition, the district director or the officer in
charge, in any case in which he is authorized to
make the decision, may consider and base his
decision upon information not contained in the
record and not made available for inspection by
the applicant or petitioner, provided the
regional commissioner has determined that such
information is classified under Executive Order
No. 11652 of March 8, 1972 (37 F.R. 5209,
March 10, 1972; effective June 1, 1972), that it is
relevant to the disposition of the case and, in his
vu
discretion, has .comtluded that its —
would be prejudicial to he national security
safety. If the decision of the district director or
officer in charge is based in whole of in patt
upon information not contained in the record,
the decision shall so state agd cite the authority
therefor.’’
8 Code of Federal Regulations 214.2(h)(4)(1974 ed.)
provides:
*(4) Petition for alien trainee - (i) General. In
addition to purely industrial establishments, an -
individual, organization, firm, or other trainer
may petition for nonimmigrant trainees on Form
1-129B for the purpose of giving instruction of
training in agriculture, commerce, —
government, transportation, and the profes-
em Gi Productive employment. The aaee
any remuneration received by a trainee a
whether or not any benefit will accrue to
petitioner are not material, but a trainee shall
not be permitted to engage in —
employment if eX will displace
ited States resident. . .
er Description of training. There shall be
attached to each petition for a trainee a state-
ment describing the kind of training to be =~
and setting forth the proportion of that time -
will be devoted to =. eh t;
r of hours that w ; é
ra ec instruction, and in on-the-job po~
ing without supervision; the position of —_
for which this training will prepare him; th
reason why sych training cannot be obtained in
vill
ee es
BEST COPY AVAILABLE
ee a ee ow
a
i
the alien's country, and why it is necessary for
the alien to be trained in the United States.”’
8 Code of Federal Regulations 214.2(h)(6)(1974 ed.)
provides:
“'(6) Decision. In adjudicating the petition,
the district director shall consider all the
evidence submitted, and such other evidence as
he may independently require or procure to
assist his adjudication. If an adverse decision is
proposed on the basis of any evidence not sub-
mitted by the petitioner, he shall be so notified
before a final decision is made and invited to in-
spect and rebut such evidence. The petitioner
shall be notified of the decision and, if the peti-
tion is denied, of the reasons therefor and of his
right to appeal in accordance with the provisions
of Part 103 of this chapter. A denial decision of
the district director shall set forth the pertinent
facts adduced from the evidence considered and
give the specific reasons for the decision in the
light of the facts and the relating provisions of
section 101(a)(15)(H) of the Act.”’
pg
;
)
.
)
:
STATEMENT
H-3 Petitions by Unification Church
for the Training of Missionaries
The Unification Church,' also known as The Holy
Spirit Association for the Unification of World Christiani-
ty, is an interfaith religious movement, begun in 1954 and
now established in approximately 40 countries, with an in-
ternational membership in 1974 of 500,000 to 1,000,000,
including 10,000 members in the United States, of whom
3,000 were full-time missionaries operating from 10
regional headquarters in the United States. In developing
its worldwide evangelical program, the Church established
centralized facilities at Tarrytown and Barrytown, New
York to train missionaries. The United States was selected
as the place for the training particularly because of the
freedom of religion in this country and of the inter-
religious, multiethnic and interracial character of its
population, as well as because of the growing universal use
of the English language by people throughout the world.
Church, J.A. 4, 14, 23-27, 47-75, 100-111.
Because the membership of the Church was
predominantly in foreign countries and its missionaries
were to be brought to the United States for training, the
Church sought to comply with the relevant immigration
laws. After obtaining advice from officers of the Immigra-
tion and Naturalization Service? regarding the appropriate
method for bring aliens to the United States to participate
in a missionary training program, Church officials in
' Hereafter referred to as the Church.
? Hereafter referred to as INS.
she
1972-73 undertook * in B-1 or B-2 00
missionary trainees pete n Consuls abroad
visas from various
ultimate time req
44.
made in the original letter. Church, J.A. 1
agneed suggestion © approval of H-3 trainee
was Erle » pilot petiion for the : ¥. A.
status for one of
24-25.
~2 iene a to the
Depart of religion deuring % Pee, nor plan 10 take
engage in an evange and who will be
th LL
In accordance with this understanding, the Church
filed a visa petition on February 11, 1974 on behalf of one
missionary trainee, Herman Ten Bokkel Huinink. Subse-
quently, the Church filed three other petitions, one for
574 missionary trainees, another for three missionary
trainees, and the third for five missionary trainees. The
petitions and the supporting exhibits indicated that the
training program would consist of instruction in Chris-
tianity, the philosophy and principles of the Unification
Church, comparative religion, leadership training, church
business practice, and field experience in missionary ac-
tivities. Church, J.A. 5, 25, 44-75, 90-116.
On April 4, 1974, the district director denied the H-3
petition for Herman Ten Bokkel Huinink on the grounds
that the training program was ‘‘inadequately described,’’
that it was ‘‘more appropriate to a scholastic . . . than toa
training program’, that field training in ‘‘fund raising by
solicitation on the street. . . is. . . not usually found in
bona fide training situations’’ and did not entail adequate
supervision to prevent possible abuse and ruled that the
proposed training program is not ‘‘contemplated by the
pertinent section of the Act.’’ The decision was certified to
the regional commissioner for review. Church, J.A. 2, 5-6,
76.
On review before the regional commissioner, the
Church contended that the statute, as implemented by the
administrative policy, provided for instruction in any
‘field of endeavor’’, necessarily including the field of
religious endeavors; that the Church had complied with
the requirements of 8 C.F.R. 214.2(h)(4)(iii) for a descrip-
tion of the proposed training program; that the district
-3.
i rly
's finding that the program was imprope
rerer ert is anvificial: that his findings regarding wort
raising are based on evidence not disclosed to the C _
and 2 contrary to the substantial evidence in the recor
nary activity, which
range of the field experience im missio ~
included witnessing, street preaching, classroom ene
minars, revival tours by international, interreligious,
pememeer teams; and that there was close supervision oO
fund-raising activity. Church, J.A. 6-8, 77-89.
ional commissioner,
On oral argument before the regio
the Church was informed for the first time that the —
upon which the district director's — -~ poor
ocluded ‘‘adverse information”’ regarding the s°
ot fend. No opportunity had been provided prior to =
district director's decision to inspect or rebut
evidence. Church, J.A. 9, 80.
i issi ing also on INS
ional commissioner, relying ais
re e not included in the record or made available to =
Church affirmed the district director's decision on May
20, 1974. He:
“erated at the outset that it is neither our inten-
Pr desire to take issue with the —
upon which the Unification Church was vy
ed, to question the intense devotion = i
members have shown to their spiritual | , - s
to challenge the trainees’ wholehearted nd
tion to the work of the church and the = mis
sionary duties which they have — r- —
only concerned in this proceeding wi ‘ - o
mining whether the petitioner has an estab-s?
and realistic training program, if it is ———
to accomplish the purpose of which it is intend-
.4-
ed, and whether it is in conformity with the im-
migration laws and regulations.’’ App. 89a.
In his decision, the regional commissioner found that
there was no established training program, that the ratio of
classroom to practical training was unrealistic, that the
training was unnecessary in view of prior experience of the
intended missionaries, that the program was designed
primarily for fund raising and was excessive, that the
Church had not shown that it could support the trainees,
and that if the program were approved, the Service would
surrender control over the alien trainees.
In conclusion, the regional commissioner found ‘‘that
the training program which was proposed by the (Church)
is unrealistic and unacceptable.’ App. 94a. On May 23,
1974 the district director denied the three remaining peti-
tions, involving 582 missionary trainees, based upon the
regional commissioner's decision. Church, J.A. 9, 10,
77-89.
On the second appeal to the regional commissioner,
in addition to its earlier challenge of the district director's
original decision, the Church contended that the evidence
substantiated the fact that there is an ‘‘established training
program;’’ that the objection to the ratio of class studies to
training is arbitrary and capricious; that the findings that
the trainees were already experienced missionaries is fac-
tually wrong; that the findings regarding the fund raising
activities conducted by the Church disregarded the
substantial evidence in the record, are an impermissible
discrimination against the religious activities of the Church
in the light of INS approval of fund raising activities of
4p
commercial and industrial establishments that are permit-
ted to use trainees in income-producing functions, and is
in conflict with 8 C.F.R. 214.2 (h) (4) (iii); that the
Church had shown by substantial evidence that it has suffi-
cient assets and income to support the missionaries while
undergoing their training in the United States; and that
the information sought by INS regarding the individual
trainees was not required by the administrative regulations
or the prescribed form until following the approval of the
H-3 petition, when the trainee, pursuant to 8 C.F.R. 248,
seeks to change his nonimmigrant status in the United
States. Church, J.A. 10-13, 136-143.
On August 21, 1974, the regional commissioner affirm-
ed the district director’s denial of the petitions. He
doubted the credibility of the income statements submit-
ted by the Church, reasserted his belief that the training
program was unrealistic and not ‘‘established’’ and that
the Service would not be able to control the training,
acknowledged that Service regulations precluded con-
sideration of the source of a trainee’s remuneration but
held the regulation ‘‘did not envision the unique cir-
cumstances which presently confront us,’’ suggested that
the missionary trainees might be regarded as engaging in
productive employment, doubted that the training would
be useful to the trainees, held that ‘‘it has not been
satisfactorily established that the nature and amount of
training which it is proposed to accord the beneficiaries in
this country will actually prepare them to perform their
missionary functions abroad,’’ and concluded that the
training program ‘‘is not within the provisions of the
statute or regulations.’’ App. 71a.
The Church thereafter on September 10, 1974 sought
judicial review’ of the regional commissioner's decisions,
* The action was brought under the Administrative Procedure Act 5
Try prior to this Court's ruling in Califano v. Sanders, 430
$.99 (1977).
,
A ee ee -
Se ee Oe eee te WP em ORB ke ne we oe
on - i.
challenging them upon the grounds, inter alia, that the
decisions were made in violation of the requirements of
the administrative regulations, erroneously interpreted the
relevant sections of the Immigration and Nationality Act,
and that, to the extent that the decisions were based upon
the intended instructional and training activities as mis-
sionaries of the Unification Church, are a violation of the
Free Excercise Clause of the First Amendment.
On cross-motions for summary judgment, the district
court found it necessary to consider only one of the
grounds raised by the complaint: the failure of the district
director to comply with the provisions of 8 C.F.R. 103.2
(b)(2) (1974) and of 8 C.F.R. 214.2 (h)(6) (1974), requir-
ing disclosure of derogatory evidence to the petitioner with
an opportunity of rebuttal before a final decision is made.
The district court found that the INS had not complied
with the “‘affirmative duty .. . to proffer the informa-
tion to the petitioner for his inspection’ and remanded
the case to the regional commissioner to be reopened ‘‘to
provide (the Church) the opportunity to inspect and rebut
the adverse information.’’ In its memorandum opinion
the court stated that the INS ‘‘must then reconsider its
denial of all four petitions’, and entered an order reman-
ding the case to the ‘Regional Director’’ (sic) holding the
motions for summary judgment in abeyance ‘‘ pending the
receipt of the new decisions by the Regional Commis-
sioner’. App. 33a.
On remand, the regional commissioner ‘“‘reopened’’ the
cases ‘so that adverse information may be presented to the
petitioner for examination and the matters thereafter
reconsidered on the basis of representations made in re-
buttal.’’ Order of regional commissioner, May 2, 1975;
Church, J.A. 149-150. In the reopened proceedings, the
Me
‘onal commissioner failed to reopen che original deci-
ins endens by the district director and to erent
cases to that officer to permit compliance with 8 C.F.R.
214.2 (h)(6), which seemed to be intended by the _
of the district court's memorandum opinion. Inst ; a
made various materials available for a, -
the examiner to speculate which of the ‘‘mass ne :
ferentiated statements and reports’’ had been relied upon
in rendering the adverse decisions. The regional ome
sioner also declined to accord the Church the availabi uy )
the procedures set forth in 8 C.F.R. 103.2 (b) whic are
customarily relied upon by INS in obtaining —
cluding rebuttal evidence, in the determination of —
tions and petitions. See exchange of letters, Car con
Regional Commissioner, September 3-8, 1975. Church,
J.A. 151, 152-153, 154.
Pursuant to permission granted by the re ewe ve
issioner, the Church made ‘‘representations
ao “hie evidence’ in the files of the INS, read fairly
and in the context of the full investigative reports —
ing the activities of Church members, established ( on G
missionary teams were, in fact, attempting to utilize eir
educational training in working as missionaries in inter-
national, inter-religious, and interracial living —.
that they engaged in ‘witnessing’, street poy se
support activities for revival tours, as well as -_ a.
unique to the Unification Church through the o ae ~
tea, flowers, candles, peanuts, and candy . 7 (and) tha
the method of fund raising has religious over-
tones. .. .’’Church, J.A. 155-176.
oe am
On January 15, 1976, the regional commissioner
cluded that his prior ‘‘decision was proper and ——
material submitted in rebuttal of adverse information _
not establish a basis for overruling that decision; that the
-8-
5
4
i
:
|
“i
a
¥
:
|
Church has not met the ‘‘burden imposed . . . by regula-
tion,’ citing Matter of Brantigan, 11 1 & N Dec. 493
(B.I.A. 1966); and that it has not ‘‘shown that the
(challenged) decision is without a rational basis or that it is
arbitrary, capricious, or an abuse of discretion.” App. 34a,
44a.
On July 27, 1976, the district court again considered
cross motions for summary judgment and, finding that the
Attorney General is ‘‘entitled to judgment as a matter of
law’’, granted his motion for summary judgment. In its
memorandum opinion, the district court found that the
regional commissioner ‘‘acted within his prerogative in
not referring the petitions to the district director for an in-
itial decision ... (i)n the absence of regulation
specifically providing for such a procedure on remand.”’
The court also found that although the district director
‘did not specify which items of derogatory information he
relied upon,’’ the ‘‘access to the entire administrative
file’’ afforded to the Church and the ‘‘some measure of
specificity’ set out in the Regional Commissioner's deci-
sions were ‘‘legally sufficient and afforded (the Church)
full apprisal of the information and materials relied upon
by the Service.’’ App. 27a - 33a.
The district court rejected the Church’s contention
that the Attorney General exceeded his statutory authority
in imposing requirements upon the Church which are not
mandated by the statute and dismissed the Church's claim
that the ‘‘attempt to supervise and control (its) missionary
training activities (as being in conflict) with the free exer-
cise clause of the First Amendment’’ with the statements
that ‘‘no argument has been advanced that the Service has
interfered with or restricted the rights of United States
citizens to pursue their personal religious beliefs. Inciden-
tal restrictions, if any, on alien individuals’ rights to the
-9-
free exercise of their chosen religion resulting from defen-
dant’s enforcement of the immigration laws were in-
substantial and outweighed by the necessity for enforce-
ment of said law’’. App. 25a
On appeal, the District of Columbia Circuit affirmed
the decision of the district court. It held that the failure to
remand the case to the district director to comply with the
requirements of 8 C.F.R. 103.2 (b) (2) and 214.2 (h) (6)
was not prejudicial error; that the finding ‘‘essentially’’ of
the regional commissioner that ‘‘the Church was not train-
ing the intended beneficiaries of its H-3 petitions at all,
but was using them to solicit funds to support the
Church’’ could not be said to be an abuse of discretion,
but was merely a ‘‘legitimate threshold determination that
the Church's training program was not bona fide;'’ and
that the actions of the INS did not amount to ‘‘imposing
standards for the conduct of a religious training program,’’
citing Kleindienst v. Mandel, 408 U:S. 753, 769-70
(1972). App. la - 18a.
After the denial of the H-3 petitions by the New York
district director and the initial affirmance of the denial by
northeast regional commissioner, Asai filed an application
for the extension of her stay in the United States ‘‘to com-
plete (her) mission for the Church.’’ Asai, R. 189. The
district director denied her application on September 5,
1974, stating as his reason that she ‘‘failed to establish that
the purpose for which (she) was admitted has not been ac-
complished and that (her) requested extension is not mere-
ly an attempt to prolong (her) stay indefinitely."’
-10-
Asai, R. 170.’ She was instructed ‘‘to depart the United
States not later than September 20, 1974.'" Asai, R. 170.
No interview, no hearing, no opportunity was afford-
ed to Asai to establish that the purpose for which she was
admitted to the United States had not yet been ac-
complished and that she had no purpose to ‘‘prolong her
stay in the United States indefinitely.’’ Asai, R. 42-45.
When Asai failed to leave the United States, an order
was served upon her to show cause why she should not be
deported upon the ground that she had remained in the
United States beyond September 20, 1974, without
authority. Asai, R. 155.
At her deportation hearing, Asai denied that she was
‘‘authorized to remain in the United States only tarough
September 20, 1974"’ and that ‘“‘she remained in this
country thereafter without authority,’’ (Asai, R. 102),
claiming that she had been brought to the United States as
a B-1 nonimmigrant under arrangements originally sug-
gested by the INS officials, and that she was to be permit-
ted to remain in the United States pending the ‘‘final ad-
judication’’ of the H-3 petition on her behalf. Testimony
was admitted into the record that the purpose for which
she, among other trainees, had come to the United States
had not yet been accomplished, specifically that her train-
ing program was for a period of two years, that it had not
Suggestions had been made by INS officers that missionary
trainees of the Unification Church had ‘‘engaged in services and ac-
subsequently as a basis for Geponabilin Aad B. 155, 170.
-11-
yet been completed, (Asai, R. 138-142) and that there was
no plan or intention by her to remain in the United States
indefinitely. Asai, R. 142.
The immigration judge, relying upon Matter of Sour-
bis, 11 1 & N Dec. 335 (B.1.A. 1965), ruled that he does
not have ‘‘jurisdiction to make any determination as to the
propriety of the district director's decision’’ to require Asai
to leave the United States by September 20, 1974, (Asai,
R. 80-81); and basing his decision solely upon the district
director's order, found the petitioner's deportability ‘‘has
been established by clear, convincing, and unequivocal
evidence.’’ Asai, R. 78, 85.
The Board of Immigration Appeals agreed, holding
that regardless whether the district director's decision
ordering Asai to leave the United States ‘‘may be arbitrary,
capricious, or unwarranted, does not confer authority over
the area to the immigration judges .. . . Issues as to
whether an overstay was justified are not germane to the
questions of the alien’s deportability under Section 241 (a)
(2)'’ and that regardless of ‘‘any promises by the Service’’
to permit Asai, among other missionary trainees to remain
in the United States pending adjudication of their peti-
tions, the ‘‘decision by the Service as to when to com-
mence prosecution of these deportation proceedings is a
prosecutorial decision which is not reviewable by the im-
migration judge. . . and which has no bearing on the im-
migration status of the respondents (Petitioners).’’ App.
Sb-6b.
In its review of the order of deportation, the court of
appeals held that ‘‘petitioner’s deportation hearing did
not lack due process."’ App. 17a.
As the predicate for its decision, the lower court held
that ‘‘the granting of an extension (of stay in the United
-12-
ee Te
States to a nonimmigrant) is. . . a political decision com-
mitted to executive discretion, and is conceptually
analogous to the original granting of a visa.’’ Citing its
own prior decision in 1929, United States ex rel. Ulrich v.
Kellogg, 30 F. 2d 984, 986, cert. denied, sub nom. United
States ex rel. Ulrich v. Stimson, 279 U.S. 868 (1929), in-
volving an alien not within the United States, the Court
held that ‘due process of law requires no hearing if an ap-
plication for visa is denied."’
Since the petitioner was a lawfully admitted alien at
the time of her application for an extension of the period
of her temporary stay, the Court held that,
“the requirements of due process were met in
these circumstances by the availability of judicial
review under the Administrative Procedure Act
to determine if the district director's decision was
‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.’
Since the district director's denial of the peti-
tioner's application did not violate due process,
neither did the immigration judge's reliance
upon it. . . . (Citations omitted) App. 17a.
-13-
REASON FOR GRANTING THE WRIT
Preliminary Statement
The treatment accorded to the Unification Church, as in-
dicated in the decision below, as well as in other decisions
which have been set forth in Appendix, 1c-2f. fairly in-
dicates that the Unification Church has been given treat-
ment by the Immigration and Naturalization Service
which is reminiscent of the conduct of state and local
governments in an earlier generation toward the Jehovah's
Witnesses. The result then was a series of historic decisions
by this Court affirming the First Amendment right of free
exercise of religion of persons who are not of ‘‘orthodox
religious faiths’.
What permeates all of the decisions by the regional com-
missioner here, and of the INS generally, is a barely con-
cealed intention to deny the petitions and applications of
the Unification Church and their members upon any and
all grounds possible. The findings are bizarre: a missionary
must be a ‘‘person who labors to spread the Gospel,
especially among a neglected population... and
(because) we cannot conscientiously consider the United
“che responsibilities and duties of a missionary with the
Unification Church. . . might be associated with any per-
son who is active with and supportive of his
Church. . . .(Since the applicant). . . has not distinguish-
ed himself in any way from the rank and file membership
of the church. . . "’ he is not eligible for classification as a
missionary (App. if); rae Riel
religious messages to lands and peoples not of own faith to
win converts and establish native churches. Provides
educational, nursing and other services. . (and that
-14-
because). . . the mission of beneficiaries (of an H-3 train-
ing program) will be to win converts only, without pro-
ere, SOY sepenas TONES so. tee Soe wees 98 com
-»"" the application cannot be approved (App. 3d);
sania! es talus uecie G te ‘profession’’, in
order for a missionary to qualify for training as a mis-
sionary, he must show that he has ‘‘attained knowledge or
learning---not merely skills---of an advanced type in the
‘missionary’ field of related religious studies, gained by
prolonged course or specialized instruction and study of at
least a baccalaureate level, which is a realistic prerequisite
to entry as an H-3 trainee into the missionary field of
endeavor’ (App. 5d).
With decisions such as these being rendered by district
directors, regional commissioners, and immigration judges
of the Immigration and Naturalization Service, it seems of
compelling importance for this Court to review the deci-
sion below, if today’s objects of governmental hostility are
to be given the protection which is afforded under our
Constitution for free exercise of religion.
Two substantial constitutional questions, touched upon in
previous decisions by this Court but never before decided,
are raised by the ruling of the District of Columbia Circuit
— one affecting the First Amendment right to the free ex-
ercise of religion by a Church under the Immigration &
Nationality Act;° the other, the nature of the process due
to aliens, lawfully admitted as nonimmigrants, who are ex-
pelled from the United States.
® A similar question ing the ication of the National
ean megeetes — oh rr
Church is i this National Labor
Relanon! Board's The Cato Bubop of Chicago @t al., No.
re
Petitions by Unification Church
The crux of the first issue appears in the principal
decision rendered by the regional commissioner stating the
INS criteria in adjudicating the petitions filed by the
Church for the training of its alien missionaries in the
United States:
‘‘We are only concerned in this proceeding with
determining whether the petitioner has an
established and realistic training program, if it is
appropriate to accomplish the purpose for which
it is intended, and whether it is in conformity
with the Immigration laws and regulations.’’
App. 89a.
It must be indisputable that the decisions of this Court for-
bid such intrusion in the conduct of a missionary training
program by a religious denomination. Wo/man v. Walter,
433 U.S. 229 (1977); Roemer v. Maryland Public Works
Board, 426 U.S. 736, 748 (1976); Meek v. Pittenger, 421
U.S. 385, 395-96 (1975; Committee for Public Education
& Religious Liberty v. Nyquist, 413 U.S. 756, 774 (1973);
Lemon v. Kurtzman, 403 U.S. 602, 612 (1971); and Walz
v. Tax Commission, 397 U.S. 664 (1970).
In its attempt to preserve a decision which, on its face, in-
volves the most ‘‘excessive governmental a
with religion’’ possible (Meek v. Pittenger, op. cit.,
538), the Court below held that it ‘ail bis ae Oe
question of whether the INS’’ has ‘authority to pass on the
administration, development, need, effectiveness, and
utility of a bona fide training program.’ App. 8a. Instead,
it relied upon an elliptical construction of one of the many
findings made by the regional commissioner to uphold the
administrative decision that the training program was not
‘bona fide.”’
-16-
(A) The holding by the court below that ‘‘the ac-
tions of the INS in this case did not amount to. . . an in-
ion. . _-(in). . . the conduct of a religious training
program’’ and that ‘‘the commissioner merely made a
legitimate threshold determination that the Church's
training program was not bona fide’’ involves the question
whether this Court's opinion in K/eindienst v. Mandel,
408 U.S. 753 (1972), has been properly applied here. See
also Cantwell v. Connecticut, 310 U.S. 296 (1939), in-
validating a statute that vested power in a secretary of ~
public welfare council to grant authorization to make
solicitations if he found that a cause was ‘‘religious,’’
‘‘bona fide’’, and ‘‘conformed to reasonable standards of
efficiency and integrity."’
The First Amendment rights of professors who ‘‘wish(ed)
to hear, speak, and debate’’ with an alien who was ineligi-
ble for admission to the United States were only
‘implicated’ in Mande/. 408 U.S. at 765. The petitioner
here, however, has a direct First Amendment right to be
free from intrusion in its religious training program by a
government agency acting upon its petition to train alien
missionaries in the United States. Moreover, whereas in
Mandel, this Court reviewed the exercise of ‘‘discretion’’
under 8 U.S.C. 1182 (d)(3), not otherwise defined, in
refusing to admit an alien into the United States ‘‘tem-
porarily despite his inadmissibility,’’ the right of the
Unification Church to obtain INS approval of its training
program for alien missionaries who seek to enter the
United States® is derived from statutory pro-
’ There is no issue here the admissi ha pein
Sedo of tock
shall not, of itself ny a
visions which authorize the Attorney General to determine
‘‘petition(s) of the importing employer’ ‘‘after consulta-
tion with appropriate agencies of the Government’’, and
to define the conditions under which an ‘‘alien as a
nonimmigrant’’ shall be admitted to the United States to
be prescribed by regulations. 8 U.S.C. 1184 (a), (c).
By contrast with Mande/, where this Court did not resort to
a judicial reconstruction of the reasons given by the At-
torney General to preserve his basis for a negative excercise
of discretion in order to sustain the administrative deci-
sion, the court below was required to ignore most of the
administrative findings, to enlarge and modify the
regional commissioner's findings regarding fund-raising,
and then to elevate one of his many reasons to be a
‘*legitimate threshold determination.’’ App. 9a.
In view of the fact that the decision below is bottomed
upon the holding of this Court in Mande/, a review of the
applicability of Mande/ to circumstances in which the exer-
cise of discretion is circumscribed by regulation is war-
ranted here. Such review is impelled especially because it is
the religious training program of the Unification Church
which is at issue here, rather than the admissibility of the
alien trainees to the United States.
(B) It has been a familiar rule, often cited, variously
applied, but never disturbed, since Securities & Exchange
Commission v. Chenery Corp., 318 U.S. 80, 87, 88 (1942)
that ‘‘the grounds upon which an administrative order
must be judged are those upon which the record discloses
that its action is based,’’ unless the decision ‘‘already
made . . . should properly be based on another ground
within the power of the appellate court to formulate.’’ Na-
tional Labor Relations Board v. Pipefitters, 429 U.S. 507,
522, 555, N. 9 (1976).
-18-
The record here indicates that the lower court indulged in
more than a grammatical construction of the ad-
ministrative decision where it stated, ‘‘Essentially, the
commissioner found that the Church was not training the
intended beneficiaries of its H-3 petitions at all, but in-
stead was using them to solicit funds to support the
Church,’’ citing the record at J.A. 88, 180. App. 9a.
The regional commissioner made no such finding at Chur-
ch, J.A. 88, App. 92a-93a. He stated:
‘“‘We have also considered the issue of the peti-
tioner’s inclusion of fund raising--which encom-
passes the outright sale of merchandise--as part
of the trainees’ field experience. We do not
dispute the right of any recognized religious or
charitable organization, including the instant
petitioner, to lawfully engage in the solicitation
of funds. However, the employment of nonim-
migrant aliens for such purpose is not consistent
with B-1 or B-2 status, or with the stated inten-
tion of the pending H-3 petitions. Even con-
ceding arguendo that instruction in fund raising
is important to a missionary’s training, the man-
ner and extent to which the instant beneficiaries
have been utilized towards that end transcends
the normal limits of training.
We have considered the necessity for fund
solicitation in the light of the fact that the peti-
tioning church--with total membership of
10,000 of which 7,000 have been described in
oral argument as ‘‘associate members’’--has
committed itself to the support of the 575 H-3
beneficiaries, in addition to other nonim-
migrants who have been admitted for training,
for a period in excess of two years. No evidence
-19-
has been furnished to substantiate the peti-
tioner’s financial ability to assume this obliga-
tion and even the basic information relative to its
gross annual income has been omitted from Item
4 of the petition, Form 1-129-B. At the time of
oral argument, the petitioner's representative
advised that the church would not entertain any
suggestion that fund raising be eliminated as
part of the training program. Despite the asser-
tion :hat such solicitations are only a small part
of the overall field experience, information
received from various Service officers throughout
the United States substantiates that the
beneficiaries have been widely and repeatdly
engaged in such pursuit. We are led to the in-
escapable conclusion that the petitioner's current
training program, which calls for three times as
much field work as formal study, has been
designed primarily for fund raising rather than
for training purposes.’’ App. 92a-93a.
However the above statement of reason given by the
regional commissioner may be read, there is no language
in it which justifies a judicial construction that ‘‘the com-
missioner found that the Church was not training the in-
tended beneficiaries of its H-3 petitions at all, but instead
was using them to solicit funds to support the Church.’”*
maken b an ooldanee te the sesegh ehecher any benotaciioe all
petition ha oe, Cages. Sane Eee cere.
the proposed tmining program wh. How the fund-
raising activities of ‘ Lm ¢- pt ne Ginette a wel oe
aliens not currently covered an H-3
petition--"’ A Rake aeen — ———o-
i
-20-
Neither do the views set forth by the regional commis-
sioner at Church, J.A. 180 (App. 40a) support the lower
court’s construction of his findings. As pertinent here, the
decision states:
‘“‘We contend that the evidence of record sub-
mitted by the Petitioner fails any reasonable test
to substantiate a viable training program within
the interpretation of law for the 20 months of
practical experience for 583 beneficiaries. A good
portion of the trainees’ activities must be viewed
as productive employment. This presumption is
not contingent on the beneficiary receiving a
salary, only that he is performing the day-by-day
duties that are necessary in the operation of the
Petitioner's endeavors. The record establishes
these functionary duties are being performed by
the 583 beneficiaries under consideration. We
submit that the evidence does not require a
highly skilled interpretation to reach this conclu-
sion."’
This finding is not at all a conclusion that the trainees’ ac-
tivities are ‘‘essentially fund-raising.’’ All that is said is
that ‘‘a good portion of the trainees’ activities must be
regarded as productive employment.’’ Even that employ-
ment is described as ‘‘the day-by-day duties that are
necessary in the operation of the petitioner's endeavors’
and described as ‘‘functionary duties.’’ Since the record
establishes that one of the purposes of the training pro-
gram is to create ‘‘an international, interreligious, inter-
racial living situation, both at the training center and in
the field experience’, Church, J.A. 106, the functionary
duties necessarily included those daily activities which are
required for housekeeping in a living situation, including
the housing, feeding, transportation, and provision of per-
sonal needs for the participants.
fhe
In any event, reliance upon the ground that the activities
of the missionary trainees is ‘‘productive employment’ is
precluded by the administrative regulation. 8 C.F.R.
214.2 (h) (4) (ii) explicitly provides with regard to produc-
tive employment: ‘‘(W)hether or not any benefit will ac-
crue to the petitioner (is) not material... .’’ All that is
precluded is that ‘‘a trainee shall not be permitted to
engage in productive employment if such employment
will displace a United States resident,’’ a contention not
made here.
The disposition which the court below gave to the ad-
ministrative decision seems clearly to be in conflict with
the rule established by Chenery. Not only did the gloss
which the court applied to the an transmute them,
but the court ignored the fact that the findings, whether as
originally made or modified, are based on considerations
forbidden by the administrative regulations. Cf. Nationa/
Labor Relations Board v. Pipefitters, op. cit.
Although this problem is familiar and recurrent in judicial
review of administrative decisions and perhaps, standing
alone, would require no renewed special attention by this
Court, it is suggested that in the circumstances here, where
fundamental constitutional freedoms have been impinged
upon by the administrative agency, the review of this par-
ticular issue by this Court is warranted especially because
of the frequent decisions by the Immigration and
Naturalization Service in questions relating to religious oc-
cupations.°
%In FY 1976, 1,387 ‘‘religious workers’’ were beneficiaries of oc-
cupational preference petitions or admitted otherwise as im-
migrants based u cir religious occupation. One hundred
ninety-six were itted as temporary workers. Annual Report,
Immigration and Naturalization Service, 1976, pp. 57, 97. No
statistics are set forth for the number of alien rel: $ workers
denied admission or for petitions and applications involving
religious training rams of religious educational institutions.
Cf. 8 C.F.R. 2145 ©) which set forth requirements for the ap-
proval of educational institutions for the attendance of nonim-
migrant students. Among other requirements, unless an ——
ontinue
x *
Decisions on each of these applications, rendered initial-
ly and sometimes finally by an INS district director, ac-
ting for the Attorney General, involve the exercise of
religious freedom in the country.'° Illustrations of recent
rulings are set forth in Appendices C-F.
Footnote 9 continued
is owned and operated as a public educational institution or is listed
by the Office of Education as an ‘‘accredited’’ institution, it must
submit evidence that ‘‘it confers upon its graduates recognized
bachelor, master, doctor, professional, or divinity degrees, of if it
does not confer such degrees that its credits have been accepted un-
conditionally by at least three institutions of higher learn-
ing. . . (that meet the accreditation requirements)."’ condi-
tions effectively preclude virtually all post secondary religious
educational institutions except those which are recognized
theological seminaries preparing students for the ministry. In addi-
tion, the regulation precludes the approval of ‘‘avocational’’ in-
stitutions.
'© The decisions, it is worth noting, are of a piece. While a variety
of reasons have been set forth for denials, as in the petition here,
there is a uniformity of result which suggests the on the
part of INS to deny all - nee ae filed by members
of the Unification Church, regardless of their merit. (App. 1c-2f).
Especially relevant here is a letter, with Accardi v Shaughnessy,
347 U.S. 260 (1953), implications of prejudgment, by the acting
New York district director to the assistant regional commissioner
for travel control in the northeast region. The letter which concerns
the first H-3 petition filed here, was written prior to the decision re-
quired to be made by the district director and states: ‘‘The attached
petition and supporting documents are forwarded for your advice
and guidance inasmuch as the matter is somewhat controversial in
mature.’" Church, J.A. 156. Although the letter refers to
‘numerous instances’’ of solicitation of funds B-1 or B-2
nonimmigrants, there is no further explanation why the matter
would be ‘‘somewhat controversial.’ As noted elsewhere, fund
— is permitted to B-1 ministers engaged in evangelical tours.
(See Infra at p.28). While there may have been uncertainty regar-
ding INS policy, this type of doubt does not usually rise to the
threshold of a ‘‘controversy."’
-23-
One which is now pending before the INS central office is
a decision by the western regional commissioner in which
an application for permanent residence by a missionary
was denied on the ground, among others, that because
‘‘Christianity is the dominate (sic) religion in the United
States,’’ ‘‘missionary activities in this country, can only be
considered as ‘proselytism,’ '’ a missionary being required
‘‘to be a person that (sic) labors to spread the Gospel,
especially among a neglected population. . . . (S)ince we
cannot conscientiously consider the United States as a
neglected population, religiously speaking,’’ the applicant
could not be regarded as a missionary within the meaning
of 29 C.F.R. 60.7, Schedule A, Group III(b). App.6c.
Inasmuch as INS rulings dealing with religious occupations
have never before been addressed by this Court, the ad-
ministrative practice, as exemplified below and illustrated
by numerous other decisions not easily susceptible to
judicial scrutiny, warrants review because of the sensitive
and substantial constitutional questions involved. Cf.
Murdock v. Pennsylvania, 319 U.S.105 (1942) and the
series of decisions in its wake involving Jehovah's
Witnesses who were subject to the same treatment that the
record here reflects has been given to members of the
Unification Church in their proselytizing efforts in various
places. Church, J.A. 155-176.
(C) A further question, the ultimate one, as framed
by the court of appeals, is the right of a religious body in
the United States to use its alien missionaries to engage in
fund-raising.
The program conducted by the Unification Church is not
unlike that described and affirmed as a First Amendment
right in Murdock v. Pennsylvania, 319 U.S. i105, 108
(1942):
‘*Petitioners spread their interpretations of the
-24-
Bible and their religious beliefs largely through
the hand distribution of literature by full or part
time workers. They claim to follow the example
of Paul, teaching ‘‘publickly, and from house to
house.’’ Acts 20:20. They take literally the man-
date of the Scriptures, ‘‘Go ye into all the world,
and preach the gospel to every creature.’ Mark
16:15. In doing so they believe that they are
cbeying a commandment of God.
The hand distribution of religious tracts is an
age-old form of missionary evangelism—as old as
the history of printing presses. It has been a po-
tent force in various religious movements down
through the years. This form of evangelism is
utilized today on a large scale by various religious
sects whose colporteurs carry the Gospel to
thousands upon thousands of homes and seek
through personal visitations to win adherents to
their faith. It is more than preaching; it is more
than distribution of religious literature. It is a
combination of both. Its purpose is as
evangelical as the revival meeting. This form of
religious activity occupies the same high estate
under the First Amendment as do worship in the
churches and preaching from the pulpits. It has
the same claim to protection as the orthodox and
conventional exercises of religion. It also has the
same claim as the others to guarantees of
freedom of speech and freedom of press.’’
The court of appeals regarded analogous activities'' by the
intended beneficiaries of the H-3 petitions here as a
justifiable determination that ‘‘the Church's training pro-
gtam was not bona fide.’’ App. 9a. The predicate of the
regional commissioner's finding, which the court of ap-
peals did not stop to examine, covered a wider ambit. Each
basis of the decision by the regional commissioner raised
additional constitutional and other questions regarding
the free exercise of religion insofar as they involve fund-
raising.
(1) The regional commissioner reached ‘ ‘the in-
escapable conclusion that the petitioner’s current
program. . . has been designed primarily for fund raising
rather than for training purposes.’’ He based his conclu-
sion upon what he regarded as the ‘‘necessity for fund
solicitation in the light of the fact that the petitioning
Church -- with a total membership of 10,000 of which
7,000 (are) ‘associate members’ -- has committed itself to
the support of the 575 H-3 beneficiaries, in addition to
other nonimmigrants who had been admitted for training,
for a period in excess of two years.’’ App. 92a.
Even were it so that the evidence which the regional com-
missioner has relied upon to hold that the training pro-
gram ‘‘has been designed primarily for fund-raising,’’ his
conclusion that it was necessary in order to support the 575
beneficiaries appears contrary to the teachings of this
a The record indicates that the trainees were engaged in a program
of ‘witnessing, street ane. ~~ phe omen re scluding the re-
a of offerings for
owers, candles, uts, woe whic were said to be sym-
bolic of Church doctrine. (Church, | A.83, 85- 86). The regional
commissioner characterized the transactions as the ‘‘outright sale of
merchandise.’ (App. 92a) Cf. Murdock v. Pennsylvania, op. cit. at
111: “‘The mere that the religious literature is ‘sold’ by
itinerant preachers rather than ‘donated’ does not transform
evangelism into a commercial enterprise.’
-26-
Court in the cases involving ‘‘peddling or selling’’ of
literature and religious objects by evangelical and other
religious groups:
“It is plain that a religious organization needs
funds to remain a going concern. But an
itinerant evangelist, however misguided or in-
tolerant he may be, does not become a mere
book agent by selling the Bible or religious tracts
to help defer his expenses or to sustain him.
Freedom of speech, freedom of the press,
freedom of religion, are available to all, not
merely to those who can pay their own way.’’
Murdock v. Pennsylvania, \d. at 111.
See also Follett v. McCormick, 321 U.S. 573, 577 (1943):
‘Freedom of religion is not merely reserved for
those with a long purse.”’
The thrust of these opinions by the Supreme Court,
although relating to licenses and taxes imposed upon per-
sons selling religious literature, raises a substantial doubt
regarding the administrative decisions that a training pro-
gram for alien missionaries is other than bona fide if the
missionary trainees are engaged in fund-raising activities to
support themselves.
(2) Apart from the question whether the need for
the missionary trainees to support themselves and to help
finance the Church renders their training program not
bona fide, the decisions here are in conflict with the ad-
ministrative regulations. In his final decision denying the
Church’s H-3 petitions, the regional commissioner stated
that he could consider the ‘‘alien’s activities which result
in a source of income for the Petitioner, when, as in this
instance, money is directly generated by the beneficiary-
trainee and the Petitioner has designated such soliciting to
-27-
be encompassed in his program.’’ App. 42a.
However, 8 C.F.R. 214.2 (h) (4) (ii) states: ‘‘Productive
employment: The source of any renumeration received by
a trainee and whether or not any benefit will accrue to the
petitioner are not material.’’
(3) The violation of the regulation here is
discriminatory against religious institutions in view of the
fact that under the regulation, INS approves such petitions
submitted by commercial and industrial firms which
receive income derived from the services which the trainees
perform for their employers. The fact that the Church is
engaged in religious activity, with no resulting marketable
merchandise to finance its missionary movement, should
not be used to disfavor it when commercial and industrial
establishments are permitted to use the income producing
activities of their trainees both for wages for the trainees
and for profit. The effect of the regional commissioner's
decision is to discriminate against institutions that do not
produce products, sell merchandise or perform roy -
must engage in ‘‘fund-raising.’’ Cf. Murdock v
sylvania, op. cit. at 115: Freedom of press, freedom Se
speech, freedom of religion are in preferred position.’
(4) The application of the regulations here also
result in a discrimination against religious workers who are
not ‘‘duly authorized ministers’’ of a ‘‘recognized
religious sect or denomination ‘exercising duties usually
performed by a regularly ordinated pastor or clergyman.”
The Immigration and Naturalization Service will permit
such persons to be ‘‘maintained through offerings, ”* but
“‘lay preachers. . . . cantors, lay brothers, or nuns’’ and, 4
; missionaries may not seek such offerings. App.
7la; 22 C. F.R. 42.25.
-28-
That such a discrimination is in conflict with the settled
decisions of this Court seems plain. See Fo//ett v. McCor-
mick, op. cit. at 576, 577; Fowler v. Rhode Island, 345
U.S. 67 (1952).
The questions suggested above are of obvious constitu-
tional import and justify review by this Court.
(D) Accardi v. Shaughnessy, 347 U.S. 260 (1953),
long ago established the principle for the Immigration and
Naturalization Service, and applied generally, that an ad-
ministrative agency must comply with its own regulations.
Vitarelli v. Seaton, 359 U.S. 535 (1959); United States v.
Nixon, 418 U.S. 683 (1974).
There can be no doubt that INS failed to comply with its
regulations for the adjudication of the present H-3 peti-
tions. The circuit court held that it was unnecessary to
decide this question’? (App. 6a-7a) because the Church
has not been prejudiced, citing 8 C.F.R. 103.1
(m)(11),103.3.
That the issue is not simply formalistic is underscored by
the differences between the administrative process for a
decision made by the district director and for the one made
by the regional commissioner on appeal.
'2 The court of — misstated the procedural issue raised here.
The issue was not whether ‘‘it was error for the district court not to
have remanded the case to the district director’’ rather than to the
regional commissioner. No issue is made of the district court's re-
mand to the regional commissioner. What was error, the Church
contended, was the failure of the regional commissioner, after re-
mand, to order reopening of the proceedings before the district
director in order to overcome the district director's prior failure to
comply with 8 C.F.R. 103.2 (b)(2) and 214.2 (h)(6).
-29-
8 C.F.R. 103.1(m)(11) delegates to regional commissioners
only ‘‘appellate jurisdiction’’ of various decisions, in-
cluding petitions for temporary workers or trainees. At
103.3, the regulations state that ‘‘[a]n appeal, cross-
appea!, answers thereto and accompanying brief, if any,
shall become part of the record of proceeding... .”’
Subsection (c) provides for oral argument, but makes no
reference, as would be expected in hearings before ap-
pellate bodies, for the submission of additional evidence.
The procedures specified for the appellate jurisdiction of
the regional commissioner are to be contrasted with those
for district directors who are granted authority ‘‘under the
executive direction ‘of a regional commissioner’’ to ad-
judicate the grant or denial or any application or petitions
submitted to the Service. 8 C.F.R. 103.1(n). It is in con-
nection with the determinations. by the district director,
not those of the regional commissioner, that thé provisions
of 8 C:F.R. 214.2(h)(6)'come into play, as the regulation
explicitly. seates.' Sintifar language appears at 8 C.F.R.
103.2(b)(2).
The regional commissioner’s decision is not de novo, be-
ing a review on appeal. The decision he made here telling-
ly notes the difference. In reconsidering his own prior deci-
sion on remand from the district court, the regional com-
missioner held that the standard which the Church was re-
quired to meet is to show that it,
‘“‘has met the burden imposed . . .by regula-
tion . . .or that (challenged)decision is without a
rational basis or that it is arbitrary, capricious, or
an abuse of discretion.’’ App. 44a.
Although the regional commissioner has stated that‘ ‘peti-
tioner has not met the burden imposed upon him by regu-
lation,’’ that reference in the context of the regulations
-30-
necessarily relates to the evidence submitted to the district
director, not to any independent submission to the
regional commissioner. The regional commissioner's state-
ment that the Church has not shown that the ‘‘challenged
decision’ is without a rational basis or that it is arbitrary,
Capricious, or an abuse of discretion,’’ is derived, of
course, from the usual standard for judicial review of ad-
ministrative decisions. It is obviously out of place here,
where the Church has established by the district court’s
first ruling (App. 27a-32a) that the initial decision by the
district director, never vacated, was improperly reached.
Since the rulings below have denied to the Church the
right assured by 8 U.S.C. 1101(a)(15)(H)(iii) and 8 C.F.R.
214.2(h)(4)(6) to have an initial decision on its petition
made by the district director, with the opportunity to
rebut adverse evidence, without a tilting hand put on the
regional commissioner’s scale of justice by a prior un-
favorable decision, it can scarcely be said that the pro-
cedures used here were not prejudicial.
The court of appeals also found that the regiona! commis-
sioner ‘‘has fulfilled his obligations under the regulations
when . . .he has made available to the (petitioner) the en-
tire file and can reasonably claim to have based his decision
that the Church’s missionary program was in actuality a
means of fund solicitation rather than a bona fide training
program on the ‘overall import of the evidence con-
sidered.’ ’’ App. 7a-8a.
However, the relevant regulation, 8 C.F.R. 214.2(h)(6),
imposes the obligation upon the ‘‘district direc-
tor . . . (to) set forth the pertinent facts adduced from the
evidence considered and (to) give the specific reasons for
the decision in the light of the facts... .”’
mm.
It seems obvious that the purpose served in vesting this
obligation upon the district director is not merely to re-
quire him to make a reasoned decision based upon factual
findings but to provide a basis for review on appeal. By
merging the functions of the district director and the
regional commissioner here, the coursof appeals has, in ef-
fect, deprived the Church of the procedures afforded by
the administrative regulations for a properly rendered de
novo decision made by the district director and its review
by the regional commissioner.
Given the other important questions presented in this
petition, it is suggested that the failure of the court of ap-
peals below to hold the INS to compliance with its regula-
tions is appropriate for review by this court.
Deportation Proceedings Against Asai
Since the Japanese Immigrant Case, 189 U.S. 86 (1903), it
has been settled that there is no power:
‘‘to cause an alien who has entered the country,
and has become subject in all respects to its
jurisdiction, and a part of its population,
although alleged to be illegally here, to be taken
into custody and deported without giving him
all opportunity to be heard upon the questions
involving his right to be and remain in the
United States. No such arbitrary power can exist
where the principles involved in due process of
law are recognized.’’ 189 U.S. at 100, 101.
The holding of the District of Columbia Circuit that
despite the fact that Asai was denied ‘‘a!l opportunity to
be heard upon the questions involving her right to be and
remain in the United States’’ before the immigration
judge in her deportation hearing, nonetheless ‘‘re-
-32.-
quirements of due process were met . . . by the availabili-
ty of judicial review ... ' is in conflict with the leading
decisions of this Court in JCC v. Louisville & N.R. Co.,
227 U.S. 88, 91 (1913) and in Southern Railway Company
v. Virginia, 290 U.S. 190 (1933).
In Southern Railway Company, the statute gave the
highway commissioner, an executive officer, power to
direct the construction of grade crossings, without notice
or hearing, when, in his opinion, it was necessary for
public safety and convenience, permitting the corporation
commission to approve or to modify construction plans.
Although the statute authorized judicial review for ‘‘ar-
bitrary actions,’’ this Court invalidated the procedure,
holding ‘‘there is nothing to indicate what the Court
would deem arbitrary action or how this could be
established in the absence of evidence or hearing.’’ 290
U.S. at 194, 198.
The decision is also in conflict with Mahler v. Eby, 264
U.S. 32, 36, 45 (1924). Mad/er invalidated a deportation
warrant because the Secretary of Labor failed to fulfill the
requirements that he find ‘‘after hearing’’ that an alien,
convicted of specified offenses, is an ‘‘undesirable resident
of the United States’. 264 U.S. at 36. This Court held
there, ‘‘when an administrative agency is required as a
condition precedent to an order to make a finding of facts,
the validity of the Order must rest upon the needed fin-
ding. If it is lacking, the Order is ineffective.’’ 164 U.S. at
45. Obviously, the need to make a finding after hearing
'SThe reference by the court of appeals to the Administrative Pro-
cedure Act as the source of jurisdiction has been undermined by the
recent holding of this Court in Califano v. Sanders, 430 U.S. 99,
105 (1977), decided a year before before the District of Columbia
Circuit decision.
-33-
cannot be met if the hearing is given only after the finding
by a reviewing court on judicial review.
It is no answer to say that the requisite finding is made, as
here, if the hearing and subsequent finding are limited
solely to the questions, whether a decision was rendered by
the district director permitting Asai to remain in the
United States only until September 24, 1974 and whether
she has remained beyond the date authorized.
This view of the nature of a due process hearing invites the
question whether the procedures applied by the Board of
Immigration Appeals and upheld by the District of Col-
umbia Circuit comply with the principle adopted by this
court in Ashbacker Radio Corp. v. FCC, 326 U.S. 327
(1945). The court below distinguished Ashbacker because
it is said to have concerned ‘‘a statutory interpretation of
conflicting sections of the Federal Communications
Act. . .”’ while here, there is no ‘‘contradiction between
8 U.S.C. 1184(a) authorizing the Attorney General to ad-
mit nonimmigrants for such time as he may by regulations
prescribe, and 8 U.S.C. 1252(b) requiring that special in-
quiry officers conduct proceedings to determine the depor-
tability of aliens.’’
The lower court shifted Asai’s claim for relief from a re-
quest that the court ‘‘pass on the validity of INS’ inter-
pretation of its own regulations making these decisions,
reached without the opportunity for a hearing, binding on
an Immigration Judge during a deportation hearing,’’
(App. 16a) to one that, ‘‘it disturb the regulation’’
established by the Attorney General to authorize district
directors to decide whether extensions should be granted.
(App. 17a). The latter request was not made by Asai, but
only that the regulations be harmonized to meet the con
-34.
stitutional and statutory requirements of a due process
hearing,'‘that is, one which is ‘‘fair,’’ Sung v. McGrath,
339 U.S. 23, 40 (1950) and ‘‘meaningful,’’ Armstrong v.
Manzo, 380 U.S. 545, 552 (1965).
Setting aside the incorrect rationale relied upon by the
court of appeals, the distinction which it cited does not ap-
pear to make a legal difference to the merit of Asai’s re-
quest to construe the regulations to afford her a full hear-
ing before an immigration judge. In Ashbacker, this Court
held ‘‘while the statutory right of the petitioner to hear-
ing. . .has, in form been preserved, it has, as a practical
matter, been substantially nullified by the grant of the
.. .application ...’’ to the competing applicant. 326
U.S. at 334. The two competing applicants in Ashbacker
at least had hearings, although separate, before the same
licensing body. Here, Asai has had no hearing, no oppor-
tunity to be heard before the director who denied her ap-
plication to remain in the United States; the hearing
before the immigration judge was more circumscribed
than the hearings in Ashbacker, there being no ‘‘jurisdic-
tional bar’’ to the consideration of Ashbacker’s applica-
tion. Here, conclusive effect has been given to the district
director's denial of Asai’s application for an extension of
her stay in the United States.
Assuming that the two regulations adopted by the At-
torney General are in actual conflict, the question whether
the Ashbacker rule is intended to be constricted only to
situations in which there is a statutory interpretation of
conflicting sections of an act of Congress but not to an in-
terpretation of conflicting regulations adopted by the Ex-
ecutive obviously is a major question affecting the right of
due process in administrative hearings. The specific issue
here is of critical importance, of course, to aliens who are
subject to deportation proceedings as a result of findings
and decisions made by district directors acting without any
of the elements of due process. Cf. Immigration and
Naturalization Service v. Stanisic, 395 U.S. 62 (1965),
'4 Brief for petitioners below, pp. 19-21. Reply Brief, 10-11.
-35-
in which this Court recognized ‘‘the distinction between a
determination whether an alien is statutorily deportable
--something never co:.tested by respondent (contrary to
Asai’s challenge here) -- aud a determination whether to
grant political asylum to an otherwise properly deportabie
alien.’’ Cf. Pierre v. United States, $47 F.2d (Sth. Cir.
1977); judgment vacated, 434 U.S. 962 (1977), following
a decision by the Commissioner of Immigration and
Naturalization that ‘‘the fairest and most efficient manner
of dealing with claims for asylum by aliens at U.S. ports of
entry’’ would be to allow the applicants for admission to
have evidentiary hearings in their asylum claims before im-
migration judges. See Statement by INS Commissioner
Leonel Castillo before House Judiciary Subcommittee on
Immigration, Citizenship, and International Law;
February 8, 1978, Press Release, Dep't of Justice, 55 Inter-
preter Releases 73, 82-83 (Feb. 24, 1978).
The court below justified its decision that the immigration
judge’s conclusive reliance upon the district director's
denial of petitioner’s application for an extension of stay
did not violate due process by treating her challenge before
the immigration judge as a request for a de novo deter-
mination of the application and analogizing all applica-
tions for extensions by nonimmigrants, although lawfully
admitted to the United States, to an application for a visa
before a Consular official abroad by an alien who is not in
the United States.
Although this Court has held that ‘‘an unadmitted and
nonresident alien had no constitutional right of entry to
this country as a nonimmigrant or otherwise,’’ K/eindienst
v. Mandel, op. cit. at 762; has repeatedly sustained the
plenary power of Congress to exclude and deport aliens on
whatever grounds, The Chinese Exclusion Case, 130 U.S.
581 (1889) and its progeny of cases through Fial/o v. Bell,
430 U.S. 787 (1977); and has held as to an
-36-
alien seeking entry to the United States, that ‘‘whatever
the procedure authorized by Congress is, it is due process
as far as an alien denied entry is concerned,’’ Knauff v.
Shaughnessy, 338 U.S. 537, 544 (1950); the question
whether an alien, admitted to the United States, who seeks
a statutory benefit under the Immigration and Nationality
Act, is circumscribed by these decisions has never been
determined by this Court. Cf. Campos v. INS, 402 F.2d
758 (9th Cir. 1968).
The view that ‘‘granting an extension’’ of a stay in the
United States of a nonimmigrant alien is a ‘political deci-
sion committed to executive discretion’’ is far reaching in
its implications as to the nature of the rights of lawfully ad-
mitted nonimmigrant aliens in proceedings before the Im-
migration and Naturalization Service. Cf. Stokes v. INS,
393 F. Supp. 14 (S.D.N.Y. 1976), requiring a due process
hearing prior to the denial of a visa petition on behalf of
an alien spouse.
In view of the recent holding of this Court in Mathews v.
Diaz, 426 U.S. 67 (1975), that ‘‘even one whose presence
in this country is unlawful, involuntary, or transitory,’’ is
entitled ‘‘to the protection of the due process clause,’’ the
question whether an ancillary determination, regardless
whether ‘‘political’’, cannot be challenged in a deporta-
tion hearing before an immigration judge, prior to the
finding of deportability, deserves review by this Court.
An additional factor is that the decision on this issue below
seems especially questionable in view of the legislative
history of Section 106(a) of the Immigration and Na-
tionality Act, 8 U.S.C. 1105a(a). The suggestion that the
ancillary determinations affecting deportability are
reviewable in a deportation hearing comports with the
legislative purpose ‘‘to create a single, separate, statutory
forrm of judicial review of administrative orders for the
-
deportation . . .of aliens... .’’ Foti v. INS, 375 U.S.
217, 225 (1963), citing H.R. Rep. No. 1086, 87th Cong.,
Ist Sess. 22-23 (1961). See also Kwok v. INS, 392 U.S.
206, 215 (1967). The bifurcated decision-making process
which the District of Columbia Circuit upholds here
makes the two-step procedure of obtaining judicial review
which Congress sought to eliminate a possible three-step
walk. The alternative of seeking judicial review in district
courts ‘‘to determine if the district director's decision was
arbitrary, capricious, and an abuse of discretion, or other-
wise not in accordance with the law,’’ carries with it the
right of appeal of that decision to a circuit court of appeals,
while presumably, in the meantime, the deportation pro-
ceedings against the alien are stayed. Following the
ultimate judicial disposition of the challenge to the district
director's decision, the alien would still retain the right to
challenge a fina! order of deportation in a circuit court of
appeals pursuant to 8 U.S.C. 1105(a).
In view of the fact that the alternative proposed by the
court of appeals invites a proliferation of litigation dealing
with the same subject matter, this is a further considera-
tion meriting review of the decision below.
CONCLUSION
For the reasons suggested above, it is urged that this peti-
tion for writ of certiorari should be granted.
Respectfully submitted,
DAVID CARLINER
931 Investment Building
1511 K Street, N.W.
Washington, D.C. 20005
-38-
APPENDIX A
Notice: This opinion is subject to formal revision before publicati
— the poy ~~ e - U.S.App.D.C. Reports. Users a —
notify Clerk of any formal errors in order that corrections
made before the bound volumes go to press. i vest
Ruited States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 76-1909
UNIFICATION CHURCH a/k/a HOLY SPIRIT ASSOCIATION
FOR THE UNIFICATION OF WORLD CHRISTIANITY,
APPELLANT
Vv.
THE ATTORNEY GENERAL FOR THE UNITED STATES
Appeal from the United States District Court
for the District of Columbia
(D.C. Civil 74-1840)
No. 77-1400
KEIKO ASAI, ET AL., PETITIONERS
v.
IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT
Petition for Review of an Order of the
Immigration and Naturalization Service
Argued December 12, 1977
Decided March 1, 1978
David Carliner, for appellant/petitioner.
Richard I. Chaifetz, Attorney, Department of Justice,
for appellee/respondent.
Before: BAZELON, Chief Judge, LEVENTHAL and RoB-
INSON, Circuit Judges.
Opinion for the Court filed by Chief Judge BAZELON.
BAZELON, Chief Judge: The Unification Church, also
known as the Holy Spirit Association for the Unification
of World Christianity, is an interfaith religious move-
ment with membership in approximately 40 countries.
The Church has established facilities at Tarrytown and
Barrytown, New York, to train missionaries needed to
staff its worldwide evangelical program. These two cases
concern the efforts of the Church to bring aliens to the
United States for missionary training at these facilities.
In No. 76-1909 the Church appeals the Immigration and
Naturalization Service’s denial of the Church’s petitions
to have these aliens admitted as “trainees” under 8 U.S.C.
§ 1101 (a) (15) (H) (iii). See 8 U.S.C. §1184(ce). In
*8 U.S.C. § 1101 (a) (15) (H) (iii) reads, in the pertinent
part, that:
The term “immigrant” means every alien except an
alien who is within one of the following classes of non-
immigrant aliens—
-2a-
No. 77-1400, the Church urges us to vacate deportation
orders lodged against these aliens and to
deportation hearings until the validity of its H
tions* is conclusively determined.
I
A district director of the Immigration and Naturaliza-
tion Service (INS) initially denied the Church’s H-3
petitions. Joint Appendix (J.A.) at 76, 125-30." His
(H) an alien having a residence in a foreign country
which he has no intention of abandoning . . . (iii) who
0 ee eee a ee States as a
trainee .
Before an iin can achieve “H-8” status, an employer must
file an acceptable petition with the attorney general. 8 U.S.C.
§$ 1184(c) states:
The question of importing any alien as a nonimmigrant
under section 1101(a) (15) (H) or (L) of this title in
any specific case or specific cases shal] be determined by
the Attorney General, after consultation with appropri-
ate agencies of the Government, upon petition of the im-
porting employer. Such petition shall be made and ap-
proved before the visa is granted. The petition shall be
in such form and contain such information as the At-
torney General shall prescribe. The approval of such a
petition shall not, of itself, be construed as establishing
that the alien is a nonimmigrant.
These petitions are termed “H-3” petitions.
* See note 1 supra.
* The district director concluded that the Church had
failed to specifically or adequately describe the training
of classroom training, practice teaching anc public speak-
ing, is more appropriate to a scholastic program rather
than to a training program as contemplated under sec-
tion 101(a) (15) (H) (iii) of the Immigration and Na-
-3a-
4
decision was affirmed by the Northeast regional commis-
sioner. J.A. at 77. The commissioner stated that:
The record further reveals that many of the benefi-
ciaries—as well as other aliens not currently covered
by an approved or pending H-3 petition—were lo-
cated in various towns and cities throughout the
United States engaged in the sale of such merchan-
dise as tea, flowers, candles, peanuts and candy in
shopping centers, on the streets, and on a door-to-
door basis, and soliciting donations on behalf of the
Unification Church. In a number of instances, ar-
rests by police authorities resulted because the solici-
tation of funds was in violation of local o:dinances.
Some of these aliens had been in this country less
than a few weeks’ time, one such individual having
been admitted about one week earlier. Many of the
aliens encountered by Service officers were found to
be in the United States unlawfully by reason of hav-
ing remained here beyond their authorized period of
stay.
J.A. at 80. The commissioner concluded:
Despite the assertion that such solicitations were
only a small part of the overall field experience, in-
formation received from various Service officers,
throughout the United States substantiates that the
tionality Aét. Consequently, approval of this petition
would, in effect, permit the petitioner to circumvent the
regulations governing the admission of nonimmigrant
students. The second phase of the proposed training dur-
ing which the beneficiary would acquire experience in the
field consists, in part, of fund raising by solicitation on
the street. This aspect of the program is a condition of
employment not u.ually found in bona fide trainee situa-
tions. Moreover, the petitioner has not established that
trainees engaged in soliciting funds would receive suffi-
cient supervision to prevent possible abuses inherent in
such a situation.
J.A. at 76.
-4a-
5
beneficiaries have been widely and repeatedly en-
gaged in such pursuit. We are led to the inescspable
conciusion that the petitioner’s current training pro-
gram, which calls for three times as much field work
as formal study, has been designed primarily for
fund raising rather than for training purposes.
J.A. at 88.
The Church sought review in district court under the
Administrative Procedure Act, arguing that these pas-
sages revealed that the commissioner had violated INS
regulations prohibiting decisionmaking on the basis of
adverse information not made available to the affected
party. See 8 C.F.R. §$§108.2(b) (2), 214.2(h) (6)
(1977). The district court agreed and remanded the
case “to the Regional Commissioner” ordering that it be
reopened to provide the plaintiff the opportunity to in-
spect and rebut the adverse information.” J.A. at 32:
Civil Action No. 74-1340. (D.D.C. 4 March 1975).
On remand the regional commissioner made available
to the Church all adverse information in his files; the
Church submitted a2 memorandum in response to this
information. The commissioner reaffirmed his earlier
decision, and his ruling was in turn affirmed by the dis-
trict court. Civil Action No. 74-1340 (D.D.C. 27 July
1976). The Church appeals.‘
*8 C.F.R. § 103.2(b) (2) (1977) states that no applicati
presented to the Service can be denied on the basis of —
tory evidence unless the applicant is “advised thereof and
offered an opportunity to rebut it and present evidence in his
behalf before the decision is rendered.” In the adjudication
of petitions for alien trainees, 8 C.F.R. § 214.2(h) (6) (1977)
provides that: ; “If an adverse decision is proposed on the
basis of any evidence not submitted by the petitioner, he shall
be so notified before a final decision is made and invited to
inspect and rebut such evidence.”
"SO Seas aes Oe cape We sinks
is case an application for approval of a train
program was filed on February 11, 1974. The petition
-5Sa-
The Church argues, first, that it was error for the
district court not to have remanded the case to the dis-
trict director. The Church contends that this mistake
was harmful because the regional commissioner’s deter-
minations are not de novo and because he will set aside
the decisions of a district director only if they are arbi-
trary and capricious.
We find it unnecessary to decide whether the case
should have been remanded to the district director. We
note that the Church had initially challenged an action
of the regional commissioner. When the district court
ordered the case remanded to the commissioner, he might
have felt obligated by the order to himself proceed in the
matter. We need not pursue the problem, however, be-
cause it suffices to conclude that we see no prejudice to
the Church from the procedure that was followed.
The Administrative Procedure Act requires us to take
“due account . . . of the rule of prejudicial error.” 5
U.S.C. § 706. While the doctrine under which appellate
courts ignore harmless error may not insulate officials or
agencies to the same extent that it will trial judges,
still it has material application. Braniff Airways, Inc.
represented that the training program would have a dura-
tion of 26 months. It was also represented that the ap-
proximately 585 alien beneficiaries had already entered
this country in a variety of different nonimmigrant classi-
fications and that they had all commenced the training
course. Since 26 months from the date of application
passed in April or May of 1976, it is reasonable to assume
that all of the proposed beneficiaries have completed their
training program and should by now have departed the
United States.
Brief for appellees at 26-27.
We cannot agree with this argument for the simple reason
that there is no evidence in the record whether any benefici-
aries of the Church’s H-3 petition have in fact begun, much
less completed, the proposed training program.
-6a-
7
v. CAB, 379 F.2d 458, 465-66 (D.C.Cir. 1967). We can-
not hold on this record that appellant has been preju-
diced by the remand to the regional commissioner. The
commissioner invited appellant to introduce new evidence,
J.A. at 154, and appellant neither proffered nor intro-
duced any. Moreover, we do not find that the commis-
sioner’s decision was as constricted in scope as repre-
sented by appellant. The commissioner stated that:
The Petitioner has not met the burden imposed
upon him by regulation—Matter of Brantigan, 11
I. & N. Dec. 493—nor has he shown that the (chal-
lenged) decision is without a rational basis or that it
is arbitrary, capricious, or an abuse of discretion.
Accordingly, the denial of the petitions will be af-
firmed and the appeals will be dismissed.
J.A. at 182. Even assuming that “the (challenged) deci-
sion” referred to is that of the district director rather
than the regional commissioner’s own prior decision, the
commissioner independently concluded that appellant had
not met “the burden imposed upon him by regulation.”
This conclusion is not beyond the commissioner’s author-
ity under INS regulations. See 8 C.F.R. §§ 103.1(m)
(11), 103.8 (1977).°
* Appellant also contends that the regional commissioner
violated 8 C.F.R. 214.2(h) (6) which requires that the “per-
tinent facts” that are relied upon be “set forth” with the
“specific reasons for the decision in the light of the facts... .”
Although the commissioner concededly permitted the Church
access to the entire administrative file, appellant claims that it
“was left to speculate which of the mass of undifferentiated
statements and reports in the file were ‘pertinent facts’ for the
purpose of rendering an adverse decision.” Brief for appel-
lant at 14.
We find, however, that the commissioner has fulfilled his
obligations under the regulations when, as in this case, he
has made available to the appellant the entire file, and can
reasonably claim to have based his decision that the Church’s
-Ja-
The Church also argues on appeal that the regional
commissioner abused his discretion in denying its H-3
petitions. It contends that the INS has authority only to
decide if a proposed training program is bona fide, and
that it has “no authority to pass on the administration,
development, need, effectiveness, and utility of a bona
fide training program.”" Brief for appellant at 19. We
need not reach the question of whether the INS can rely
on any of these criteria,* however, since in our view the
missionary program was in actuality a means of fund solici-
tation rather than a bona fide training program on “the ro aa
all import of the evidence considered.” J.A. at 178.
* See note 1 supra for the statutory f i
OY pot neck ry framework governing
*The INS takes the i i ideri
wsttiten, position that in considering an H-3
the Service must determine both whether the training
program in question is a bona fide program and whether
a necessity exists for that particular training program.
This is necessary because Congress intended in enacting
8 U.S.C. 1101 (a) (15) (H) (iii) to provide training which
would be useful to the economic development of the vari-
ous foreign nations involved. S. Rep. 1515, 81st Cong.,
2d Sess., 567-573 [1950]. If the program in question does
not prepare the trainee to perform useful services in his
native land, it is highly questionable whether the pro-
gram is one which Congress envisioned i
eg An oned when it enacted
Brief for appellee at 12-13. INS tions i
petition to set out “the reasons ym lolitas amma che
obtained in the alien’s country, and why it is necessary for
the alien to be trained in the United States.” 8 C.F.R
§ 214.2(h) (4) (iii). In this case the regional commissioner
had concluded that since “the practice of public fund solicita-
tion is frowned upon by people of most other countries,” the
Church had not demonstrated “that any fund raising tech-
niques or related knowledge acquired in the United States
will be utilized by these aliens when they return to their re-
spective native lands.” J.A. at 148.
[Continued]
-B8a-
9
commissioner justifiably determined that the Church’s
training program was not bona fide. Essentially, the
commissioner found that the Church was not training
the intended beneficiaries of its H-3 petitions at all, but
instead was using them to solicit funds to support the
Church. J.A. at 88, 180. We cannot say that this find-
ing constitutes an abuse of discretion.
We also conclude that the denial of its H-3 petitions
did not deprive the Church of any First Amendment
rights. While we agree with appellant that the attorney
general is not vested by statute with the responsibility
of imposing standards for the conduct of a religious
training program, brief for appellant at 14, we find that
the actions of the INS in this case did not amount to
such an intrusion. As required by statute, the commis-
sioner merely made the legitimate threshold determina-
tion that the Church’s training program was not bona
fide. Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972).
* [Continued]
Suffice it to say that Senate Report No. 1515 does not appear
to stand for the proposition for which it is cited by the INS.
In fact the Report states that “[t]he promotion of trainee
programs has been adopted as part of the United States
foreign policy as a means of spreading a better understanding
of our country among the peoples of the world, and assisting
in the rehabilitation of war-devastated countries.” Jd. at 571-
72. In any event the Report is not a particularly reliable
source of insight into congressional intent, since it was com-
posed in response to a Senate resolution to investigate the im-
migration system and did not accompany any actual legislation.
Moreover, the Report actually recommended that a special
classification for trainee nonimmigrants not be created, id.
at 573, a recommendation set aside two years later by the
82d Congress when it enacted § 101 (a) (15) (H) (iii) of the
Immigration and Nationality Act of 1952, 66 Stat. 168.
-9a-
10
II
The approximately 585 beneficiaries of the Church’s
H-3 petitions were variously admitted to the United
States as visitors for business or as visitors for pleasure.
See 8 U.S.C. § 1101(a) (15) (B). The parties have stipu-
lated that this court treat Keiko Asai as representative
of these beneficiaries.*
When the Northeast regional commissioner denied the
Church’s H-3 petitions, Asai applied for an extension of
her stay in the United States. On September 5, 1974,
the district director denied her application, stating as
his reason that she “failed to establish that the purpose
for which [she was] admitted has not been accomplished
and that [her] requested extension is not merely an
attempt to prolong [her] stay indefinitely.” Appendix
(App.) at 17. Asai was instructed “to depart from the
United States not later than September 20, 1974.” Id.
No hearing was held before the district director.
When Asai failed to depart the United States by Sep-
tember 20, an Order was served upon her to show cause
why she should not be deported. At her deportation hear-
ing, the Immigration Judge ruled that her deportability
had “been established by clear, convincing, and unequivo-
cal evidence.” Id. at 13. Relying on Matter of Sourbis,
11 I & N Dec. 335 (1965), he ruled that it was not
necessary for him to determine whether the purpose for
which she was admitted to the United States had been
accomplished or whether she was merely attempting to
* The parties have agreed that “the administrative record
relating to Matter of Asai contains all of the relevant materials
required for this court to determine the issues; (and) that the
administrative records relating to the remaining named peti-
tioners are not required for the presentation of the factual and
legal questions to this court in considering the present appeal.”
Brief for petitioner at 2 n.4.
-10a-
11
prolong her stay indefinitely, because he did “not have
jurisdiction to make any determination as to the propriety
of the District Director’s decision.” App. at 9. The Judge
also ruled that the INS was under no obligation to stay
deportation proceedings pending a final judicial resolu-
tion of the Church’s H-3 petitions. On appeal, the Judge’s
decision was sustained by the Board of Immigration
Appeals.” In No. 77-1400, Asai petitions this court for
review.”
” Asai failed to depart voluntarily, and a warrant of de-
portation was issued on April 18, 1977.
3 The INS argues that this petition should be dismissed for
lack of venue. We do not agree.
Section 106(a)(2) of the Immigration and Nationality
Act, as amended, Sept. 26, 1961, Pub.L. 87-301, 75 Stat. 651,
8 U.S.C. § 1105(a) (2), provides:
the venue of any petition for review under this section
shall be in the judicial circuit in which the administrative
proceedings before a special inquiry officer were con-
ducted in whole or in part, or in the judicial circuit
wherein is the residence, as defined in this Act, of the
petitioner, but not in more than one circuit.
Section 101(a) (38) of the Act, 8 U.S.C. § 1101 (a) (33), de-
fines residence as follows:
The term “residence” means the place of general abode;
the place of general abode of a person means his prin-
cipal, actual dwelling place in fact, without regard to
intent.
This definition represents a codification of the Supreme
Court’s holding in Savorgnan v. United States, 338 U.S. 491
(1950), see H.R.REP. No. 1365, 82d Cong., 2d Sess. 33 (1952),
in which the Court noted that, as distinguished from domicile
or permanent residence, intent is not material to establish
actual residence, principal dwelling place, or place of abode.
In this case, the petitioners’ affidavits indicate that their
“official residence” for the purpose of al] communications
in the United States was originally established in Washing-
ton, D.C. Although having thereafter lived “temporarily” in
-lla-
12
Asai argues, first, that this court should invalidate the
deportation order issued against her and stay all further
deportation hearings pending a final judicial determina-.
tien of the Church’s H-3 petitions. Asai claims that the
deportation proceedings render her ineligible under 8
New York, petitioners state that they have now resumed their
residency in Washington. No effort is made to conceal the
motive behind their return to the District, it being to secure
venue before this court for the appeal of their deportations.
Respondent alleges that despite these statements, the peti-
tioners do not, in fact, reside in Washington, D.C. Respond-
ent’s affidavits on this issue, however, are less than dispositive.
In fact, all they conclusively indicate is that petitioners have
only spent a brief time physically present in Washington.
Currently, they note, petitioners are outside Washington, en-
gaging in “missionary” work in various parts of the country.
From this respondent concludes that petitioners have note
been present in Washington long enough to establish residency
and, therefore, must be considered residents of New York.
The fact that petitioners have spent only a short time physi-
cally present in the District, however, does not foreclose their
having established residency here. Residency does not require
continuous physical presence; in fact,
“Principal” admits of multiple stopping-places, just as
“general abode” admits of other specific habitation not
so qualified. . . . Thus, it is a question of fact in each in-
stance as to which is the “principal dwelling place.”
Toy Teung Kwong v. Acheson, 97 F.Supp. 745, 747 (N.D.
Calif. 1951). Consequently, there being no direct evidence
contrary to petitioners’ claims that they have abandoned their
New York residency, the remaining facts, on balance, favor
a finding that petitioners have now established residency in
Washington. Since, as the INS acknowledges, a major purpose
of section 1105a(a) (2) was to speed up the review of depor-
tation orders, and since the parties in this case have agreed
that all other similarly situated potential litigants will be
bound by the decision of this court on the merits, see note 9
supra, thus resulting in the expeditious disposition of approxi-
mately 175 pending matters before the INS, we hold that
venue exists.
-l2a-
13
U.S.C. § 1258 to change her nonimmigrant status to that
of a trainee should a court ultimately decide that the
Church’s H-3 petitions be granted.* She requests relief
under the Administrative Procedure Act, 5 U.S.C. § 705,
which she urges authorizes this court to “issue all neces-
sary and appropriate process to postpone the effective
date of an agency action or to preserve status or rights
pending conclusion of the review proceedings.” ™*
Putting aside the fact that we have today upheld the
INS’s denial of the Church’s H-3 petitions, we find peti-
tioner’s argument to be without merit. Section 1258 of
Title 8 of the United States Code states:
The Attorney General may, under such conditions
as he may prescribe, authorize a change from any
nonimmigrant classification to any other nonimmi-
grant classification in the case of any alien lawfully
admitted to the United States as a nonimmigrant
who is continuing to maintain that status, ....
(Emphasis added.)
12 Following the order of the district court that the Church’s
H-3 petitions be reconsidered by the regional commissioner,
the INS deferred action to enforce the departure of the peti-
tions’ beneficiaries until entry of the district court’s final
decision. The question, therefore, is whether the deportation
proceedings should be stayed pending this court’s decision
and any further judicial appeals.
13 Petitioner argues that the APA requires the INS itself
to preserve her status and rights pending the conclusion of
judicial review. Brief for petitioner at 27. We need only point
out, however, that § 705 states only that, even if justice re-
quires such a stay, an agency “may postpone the effective
date of action taken by it, pending judicial review.” (Emphasis
added.)
Although there is considerable discussion in petitioner’s
brief about various representations made by INS officials, peti-
tioner does not rely on an estoppel theory, as indeed she cannot,
having not demonstrated any detrimental reliance on these
representations.
-l3a-
14
It is not clear from the statute whether an applicant
nonimmigrant must continue to maintain his “status” only
until he petitions for a change in classification,* or
whether he must continue to maintain it until his petition
is granted. In either case, however, the vacating of the
deportation order would not assist Asai in the assertion
of her rights under the statute. There is no question
that Asai was maintaining her status within the meaning
of INS regulations when she initially filed to change to
an H-3 nonimmigrant classification.** Her later deporta-
% This appears to be the position taken by the INS in its
regulations. See 8 C.F.R. § 248.1(a), (b) (1977), note 15
infra.
8 The pertinent INS regulations are to be found at 8 C.F.R.
§ 248.1(a), (b) (1977):
§ 248.1 Eligibility.
(a) General. ...[A]ny alien lawfully admitted to the
United States as a nonimmigrant, . . . who is continuing
to maintain his nonimmigrant status, may apply to have
his nonimmigrant classification changed to any nonim-
migrant classification other than that of a fiancee or
fiance under section 101 (a) (15) (K) of the Act.
(b) Maintenance of status. In determining whether
an applicant has continued to maintain his nonimmigrant
status, the district director shall consider whether the
alien has remained in the United States for a longer period
than that authorized by the Service, and shall consider
any conduct by the applicant relating to his maintenance
of the status from which the applicant is seeking a change.
An applicant may not be considered as having maintained
his nonimmigrant status within the meaning of this sec-
tion if he failed to submit his application for change of
nonimmigrant classification before his authorized tempo-
rary stay in the United States had expired, unless the
district director in his discretion is satisfied that the
failure to file a timely application was excusable, that the
alien has not otherwise violated his nonimmigrant status
and is a bona fide nonimmigrant, and the alien is not the
subject of deportation proceedings under Part 242 of this
chapter.
-l4a-
15
tion cannot change that fact.’* On the other hand, if the
statute is interpreted as requiring the applicant alien to
continue to maintain his status until a change in classi-
fication is granted, the deportation proceedings are equally
irrelevant. Asai ceased to maintain her status on Sep-
tember 20, 1974, when she failed to depart the United
States as instructed by the district director. App. at 19.
We conclude, therefore, that vacating the deportation or-
ders issued against the beneficiaries of the Church’s H-3
petitions will not serve to protect their rights under 8
U.S.C. § 1258 pending final judicial review of their case.
Asai’s second argument in this petition is that her
deportation hearing lacked due process of law because
the Immigration Judge refused to consider de novo the
district director’s denial of her application for an exten-
sion of her stay. The director had determined that Asai
had “failed to establish that the purpose for which [she
was] admitted has not been accomplished and that [her]
requested extension is not merely an attempt to prolong
[her] stay.” Asai’s position is that the director’s con-
clusion rests upon findings of fact, yet she was provided
neither with notice of these proposed findings nor with
a hearing in which to refute them.
** Thus the Board of Immigration Appeals stated specifically
that “[t]he remedies being sought by the respondents are not
relevant to the question of their deportability. Their presence
in the United States is not required for the pursuit of the peti-
tions for H-3 classification.” App. at 5.
Given this observation of the Board of Immigration Appeals,
we feel confident in interpreting the reference in § 248.1 (b)
to deportation proceedings as indicating merely an additional
factor that a district director may consider if an alien has
failed to submit an application for a change in nonimmigrant
classification “before his authorized temporary stay in the
United States had expired.” Asai, of course, applied before
her temporary stay had expired.
-15a-
16
The INS contends that we have no jurisdiction under
8 U.S.C. §1105a(a) to review decisions of a district
director that are collateral to a deportation proceeding.’
Such decisions, the INS urges, are reviewable in district
court. See Cheng Fan Kwok v. INS, 392 U.S. 206, 210
oe Butterfield v. INS, 409 F.2d 170 (D.C. Cir.
1969).
Petitioner responds that she is not asking this court to
review the decisions of the district director, but to pass
on the validity of INS’s interpretation of its own regula-
tions making these decisions, reached without the oppor-
tunity for a hearing, binding on an Immigration Judge
during a deportation proceeding. See Matter of Sourbis,
11 I & N Dec. 335 (1965); 8 C.F.R. §§ 103.1(f), 214.1
(a), 242.16 (1977).
We agree that we have jurisdiction to consider this
question, embracing as it does a final determination
“made during a proceeding conducted under § 242(b) [8
U.S.C. § 1252(b)].” Cheng Fan Kwok v. INS, 392 U.S.
206, 216 (1968). Nevertheless, we find that petitioner’s
deportation hearing did not lack due process.
There is no specific statute that grants the attorney
general the authority to extend the stay of a nonimmi-
grant in the United States. Section 1184(a) of Title 8
of the United States Code, however, authorizes the at-
torney general to admit nonimmigrants “for such time”
as he “may by regulations prescribe.” The attorney gen-
78 U.S.C. §1105a(a) provides that the procedures pre-
scribed by the Administrative Orders Review Act, 28 U.S.C.
§ 2341, et seq.
shall apply to, and shall be the sole and exclusive pro-
cedure for, the judicial review of all final orders of de-
portation heretofore or hereafter made against aliens
within the United States pursuant to administrative pro-
ceedings under section 242(b) of this Act [8 U.S.C.
§1252(b)]....
-l6a-
17
eral has authorized district directors to decide whether
extensions should be granted; these decisions are made
without a hearing and without appeal. See 8 C.F.R.
§ 241.1(a) (1977). The granting of an extension is thus
a political decision committed to executive discretion, and
is conceptually analogous to the original granting of a
visa. See 8 U.S.C. § 1201(a) (1970). Due process of law
requires no hearing if an appiication for a visa is
denied. See United States ex rel. Ulrich v. Kellogg, 30
F.2d 984, 986 (D.C.Cir.), cert. denied sub nom. United
States ex rel. Ulrich v. Stimson, 279 U.S. 868 (1929).
While we are aware that petitioner was a lawfully ad-
mitted alien at the time of her application for an exten-
sion of the period of her temporary stay, we hold that
the requirements of due process were met in these cir-
cumstances by the availability of judicial review under the
Administrative Procedure Act to determine if the district
director’s decision was “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). Cf. Foti v. INS, 375 US. 217,
228 & n.15 (1963).
Since the district director’s denial of petitioner’s ap-
plication did not violate due process, neither did the Im-
migration Judge’s reliance on it at her deportation pro-
ceeding. The attorney general is authorized by statute
to delegate the duties and powers conferred upon him by
the Immigration and Nationality Act, 8 U.S.C. § 1103,
and we will not disturb the regulations he has established
delegating these powers unless they violate the Act or the
Constitution.”
1* The cases petitioner presses upon us are unavailing to
establish her position. Ashbacker Radio Corp. v. FCC, 326 U.S.
327 (1945), concerned a statutory interpretation of conflict-
ing sections of the Federal Communications Act, id. at 329-30,
whereas we do not find any contradiction between 8 U.S.C.
§ 1184(a), authorizing the Attorney General to admit nonim-
-l7a-
| UNITED STATES DISTRICT COURT
18 FOR THE DISTRICT OF COLUMBIA
We therefore affirm the decision of the Board of Im-
migration Appeals in No. 77-1400, and we affirm the de-
cision of the district eourt in No. 76-1909. | UNIFICATION CHURCH,
So ordered. |
Plaintiff,
y. Civil Action
No. 74-1340
THE ATTORNEY GENERAL FOR
THE UNITED STATES,
ee ee ee ee ee eee ee eee ee ee
Defendant.
MEMORANDUM OPINION
This matter is back before the Court on
cross-motions for summary judgment. This
Court by Memorandum Opinion and Order dated
| March 4, 1975 determined that defendant had
not followed his own procedures with respect
| to the admission of derogatory information
concerning the plaintiff into the administra-
tive record. The Court found that defend-
ant had failed to advise plaintiff that de-
rogatory information would be used and had
failed to offer plaintiff an opportunity to
rebut such information and to present evi-
dence in its own behalf as required by 8
C.F.R. 103.2(b) (2) and 214.2(b) (6).
‘ coe Court ordered the case remanded to the
—— Regional Director of the Immigration and
— for such time as he may by regulations prescribe, Naturalization Service "for oa specific pur-
ms Tee. — —— comme sae Apr cog pose of allowing the plaintiff to comment on
proceedings depo ity ens. and rebut such evidence as was considered by
Similarly Mahler v. Eby, 264 U.S. 82 (1924), rested squarely
on questions of statutory interpretation; the case determined
what factual findings were necessary to support an order of
deportation under the Act of May 10, 1920, ¢. 174, 41 Stat. | ~19a-
-~18a-
the Regional Commissioner" in his decision
affirming the denial of the Church's petition
to classify various non-immigrant aliens as
trainees pursuant to 8 U.S.C. § 1101l(a) (15)
(h) (iii) (1970).
The motions for summary judgment were
held in abeyance pending the receipt of the
new decisions by the Regional Commissioner.
The decision by the Regional Commissioner
was rendered on Feburary 15, 1976. The Church
seeks a declaratory judgment that the denial
by the Immigration and Naturalization Service
of the Church's petition was arbitrary, capri-
cious and otherwise not in accordance with the
law.
The facts as recited in this Court's
prior Memorandum Opinion are repeated herein |
in the interest of clarity.
The Unification Church is a religious
organization chartered under the laws of the
State of New York and with its headquarters
in Washington, D.C. The Church maintains
missionary training facilities in Tarrytown
and Barrytown, New York. Since 1972, aliens
have entered this country and engaged in the
activities of the Church. Most have been ad-
mitted under the immigration laws as temporary
visitors for business or pleasure. But a small
number of Japanese were admitted pursuant to a
petition approved on June 7, 1972 as non-immi-
grant missionary trainees. The exact number
of aliens who have entered the country and who
remain at the present time is subject to some
dispute. The Church alleges that it has com-
plete records of all such aliens at its Central
Missionary Visa Office in Washington, D.C.
-20a-
Beginning in January 1974, plaintiff's
representatives filed four visa petitions in
an effort to obtain clarification of the
immigration status of plaintiff's trainees.
The first petition number NYC-N-42465, was
filed on behalf of Herman ten Bokkel Huinink.
The other three petitions, number NYC-N-43048
on behalf of 574 aliens, number NYC-N-43367
on behalf of three aliens, and number NYC-N
43579 on behalf of five aliens, were filed
shortly thereafter. During the time the peti-
tions were under administrative consideration,
no extensions of the temporary stay visas were
granted. The parties dispute the reasons for
the failure to extend these visas.
On April 4, 1974, the District Director
of the Immigration and Naturalization Service
denied the initial petition and certified it
for review to the Regional Commissioner in
Burlington, Vermont. Oral argument was heard
on May 9, 1974. Thereafter, on May 20, 1974,
the Regional Commissioner affirmed the Dis-
trict Director's decision. On May 23, and
June 6, 1974, the District Director denied
three additional petitions. Their denial was
also certified to the Regional Commissioner.
Argument was held in New York City on July ll,
1974, and on August 31, 1974, the Regional
Commissioner affirmed the District Director's
denial of the three petitions. Plaintiff filed
suit on September 10, 1974. Following remand
to the Immigration and Naturalization Service
and consideration of plaintiff's “Memorandum
in Reply to Adverse Information,” the Regional
Director's decision was rendered on January 15,
1976. The decision concluded that the prior
decision had been proper and that the rebuttal
material submitted by the petitioner did not
establish an adequate basis for overturning the
-?la-
decisions of the Commissioner.
The Attorney General is charged with the
administration of the laws relating to the immi-
gration and naturalization of aliens and is
specifically empowered in section 214(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1184
(c), to determine whether petitions to classify
aliens as trainees should be granted.
Section 214 of the Act, as amended, provides:
(c) The question of importing any alien
as a non-immigrant under section 101l(a)
(15) (H) or (L) in any specific case or
specific cases shall be determined by the
Attorney General, after consultation with
appropriate agencies of the Government,
upon petition of the importing employer.
Such petition shall be made and approved
before the visa is granted. The petition
shall be in such form and contain such
information as the Attorney General shall
prescribe. The approval of such a petition
shall not, of itself, be construed as
establishing that the alien is a nonimmi-
grant.
Section 10l(a) (15) of the Immigration and '
Nationality Act, as amended, 8 U.S.C. §1101 (a)
(15), provides:
The term “immigrant" means every alien ex-
cept an alien who is within one of the fol-
lowing classes of nonimmigrant aliens -
(H) an alien having a residence in a
forign country which he has no intention
of abandoning. ..
-22a-
(iii) who is coming temporarily to
the United States as a
trainee ...
Plaintiff initially maintains that the
Service has failed to comply with the opinion
and order of this Court dated March 4, 1975.
Plaintiff contends that the Regional Commis-
sioner erred by reopening the appeals decided
by the District Director, permitting plaintiff
to examine material contained in the adminis-
trative record and to reply to adverse informa-
tion contained therein, reconsidering his own
decisions dismissing the appeals and ordering
once again that the appeals be dismissed.
Plaintiff contends that the proper procedure
on remand would have been for the Regional
Commissioner to reopen the case and remand the
petitions to the District Director for recon-
sideration and for compliance with Service
regulations, and if an adverse ruling were
rendered by the District Director, an appeal
to the Regional Commissioner for review would
lie. In the absence of regulations specifi-
cally providing for such a procedure on remand,
the Regional Commissioner acted within his pre-
rogative in not referring the petitions to the
District Director for initial decision. Since
the only function involved was the weighing of
rebuttal presentations of the plaintiff, there
was no function which could better have been
served by a referral to the District Director.
Secondly, plaintiff contends that the pro-
cedures followed by the District Director in
denying plaintiff's petitions were deficient in
that the Director did not specify which items
of derogatory information he relied upon.
The Regional Commissioner, however, afforded
plaintiff access to the entire administrative
-23a-
file in order to allow plaintiff to prepare
a meaningful rebuttal. The Regional Commis-
sioner also set out with some measure of
specificity the information relied upon by
the Service in denying plaintiff's petition.
The procedures utilized by the Service were
legally sufficient and afforded plaintiff
petitioner full apprisal of the, information
and materials relied upon by the Service.
Likewise, plaintiff's other arguments regard-
ing procedural irregularities are without merit.
Plaintiff also maintains thet the Attorney
General has exceeded his statutory authority
by imposing requirements on the petitioner which
are not mandated by the immigration laws. The
Court determines that the Attorney General was
not acting beyond the scope of his statutory
authority when he considered,among other rele-
vant factors, the administration, effectiveness
and utility of plaintiff's training program.
Having determined that the Immigration and
Naturalization Service and the Attorney General
acted within the scope of their authority and
followed the requisite procedural requirements,
the Court must consider whether the Attorney
General's decision was “arbitrary, capricious,
an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. §706(2) (a).
See, Pesikoff v. Secretary of Labor, 501 F.2d
(D.C. Cir. 1974); Camp v. Pitts, 411 U.S.
138 (1973). After a careful review of the ad-
ministrative record, the Court determines that
the decision of the Attorney General and/or his
agents was based on a consideration of the rele-
vant factors and did not involve a clear error
of judgment on his part. The decision contained
a rational basis and was not "arbitrary, capri-
cious, an abuse of discretion, or otherwise not
in accordance with law."
-24a-
The Regional Commissioner, in determin-
ing that plaintiff had not submitted a bona
fide training program, indicated that the
training program was neither well established
nor realistic and was not appropriate to accom-
plish the purpose for which it was established.
The Commissioner also determined that the train-
ing program was devoted largely to fund raising
efforts on behalf of plaintiff in contravention
of the purpose envisioned by 8 U.S.C. § 1101
(a) (15) (BH) (iii). Defendant's determina-
tions based on these and other considerations
specified in the Regional Commissioner's deci-
sion do not constitute an arbitrary or capricious
decision, nor an abuse of the discretion vested
in the Attorney General. The Court may not
subsitute its own judgment for that of the
authority possessing the authority and the ex-
pertise to make such determinations. Secre-
tary of Labor v. Farino, 490 F.2d 885 (7th
Cir. 1973).
Finally, plaintiff maintains that defend-
ant's attempt to supervise and control plain-
tiff's missionary training activities conflicts
with the free exercise clause of the First Amend-
ment. No argument has been advanced that the
Service has interfered with or restricted the
rights of United States citizens to pursue the
personal religious beliefs. Incidental restric-
tions, if any, on alien individual's rights to
the free exercise of their chosen religion
resulting from defendant's enforcement of the
immigration laws were insubstantial and out-
weighed by the necessity for enforcement of
said law.
/s/
UNITED STATES DISTRICT JUDGE
Dated: July 26, 1976
-25a-
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNIFICATION CHURCH,
Plaintiff,
Civil Action
No. 74-1340
Vv.
THE ATTORNEY GENERAL FOR
THE UNITED STATES,
ee eee ee ee ee ee eet ee
Defendant.
ORDER
This matter having come before the Court
on cross motions for summary judgment, the
Court having considered the motions and the
other papers filed herein, including the com-
plete administrative record, and the Court
having determined that there exist no genuine
issues of material fact and that the defendant
is entitled to judgment as a matter of law,
and in accordance with the Memorandum Opinion
filed herein, it is by the Court, this 26th
day of July, 1976,
ORDERED that plaintiff's motion for sum-
mary judgment should be, and hereby is, denied,
and it is further
ORDERED that defendant's motion for summary
judgment should be, and hereby is, granted and
this matter is dismissed.
UNITED STATES DISTRICT JUDGE
-26a-
ee
FILED, March 4, 1975,
James F. Davey, Clerk
Civil Action No. 74-1340
MEMORANDUM OPINION
This matter is before the Court on cross
motions for summary judgment. Plaintiff, the
Unification Church, filed suit on Septem-
ber 10, 1974. The Church seeks a declara-
tory judgment that the denial by the Immigra-
tion and Naturalization Service of the Church's
petition to classify various nonimmigrant
aliens as trainees pursuant to 8 U.S.C.
§ 1101(a) (15) (II) (iii) (1970) is arbitrary,
Capricious or otherwise not in accordance
with law.
The Unification Church is a religious organi-
zation chartered under the laws of the State
of New York and with its headquarters in Wash-
ington, D.C. The Church maintains missionary
training facilities in Tarrytown and Barry-
town, New York. Since 1972, aliens have
entered this country and engaged in the acti-
vities of the Church. Most have been admitted
under the immigration laws as temporary visitors
for business or pleasure. But a small number
of Japanese were admitted pursuant to a peti-
tion approved on June 7, 1972 as non-immigrant
missionary trainees. The exact number of
aliens who have entered the country and who
remain at the present time is subject to some
dispute. The Church alleges that it has complete
records of all such aliens at its Central Mis-
sionary Visa Office in Washington, D.c.
-27a-
Beginning in January 1974, plaintiff's
conmtnannakines filed four visa petitions
in an effort to obtain clarification of
the immigration status of plaintiff's train-
ees. The first petition, number NYC-N-
42465, was filed on behalf of Herman ten
Bokkel Huinink. The other three petitions,
number NYC-N-43048 on behalf of 574 aliens,
were filed shortly thereafter. During the
time the petitions were under administra-~
tive consideration, no ro ay
rary stay visas were granted.
cation , Fntnn. the reasons for the failure
to extend these visas.
il 4, 1974, the District Director
of tan tnntaeehians and Naturalization Serv-
ice denied the initial petition and certi-
fied it for review to the Regional Commis-
sioner in Burlington, Vermont. Oral argu-
ment was heard on May 9, 1974. Thereafter,
on May 20, 1974, the Regional Commissioner
affirmed the District Director's decision.
On May 23, and June 6, 1974, the District
Director denied the three additional peti-
tions. Their denial was also certified to
the Regional Commissioner. Argument was ‘
held in New York City on July ll, 1974, an
on August 21, 1974, the Regional yaaa ge aaa
affirmed the District Director's denial o
the three petitions.
intiff asserts numerous grounds which,
Patong nl mandate the declaratory relief
it seeks. Only one ground need be consid-
ered at this juncture. The Church alleges
that the Immigration and Naturalization ‘err
Service violated its own regulations in fal
ing to give it the opportunity to rebut
-28a-
adverse evidence relied upon by the Region-
al Commissioner in his decision of May 20,
1974 affirming the denial of the petition
relating to Mr. Huinink.
8 C.F.R. §103(b) (2) (1974) states that no
application presented to the Service can be
denied on the basis of derogatory evidence
unless the applicant is "advised thereof
and offered an Opportunity to rebut it and
present evidence in his own behalf before the
decision is rendered." In the adjudication
of petitions for alien trainees, 8 C.F.R.
§214.2(b) (6) (1974) provides that: "If an
adverse decision is proposed on the basis of
any evidence not submitted by the petitioner,
he shall be so notified before a final deci-
sion is made and invited to inspect and rebut
such evidence."
The Regional Commissioner's decision
on petition number NYC-N-42465 states:
"The record further reveals that many
of the beneficiaries -- as well as other
aliens not currently covered by an approved
or pending petition ~- were located in
various towns and cities throughout the
United States engaged in the sale of such
merchandise as tea, flowers, candles, pea-
nuts and candy in shopving centers, on the
streets, and on a door-to-door basis, and
soliciting donations on behalf of the Unifi-
cation Church. In a number of instances,
arrests by police authorities resulted because
the solicitation uf funds was in violation of
local ordinances. Some of these aliens had
been in this country less than a few weeks'
time, one such individual having been ad-
mitted about one week earlier. Many of the
-29a-
aliens encountered by Service officers
were found to be in the United States
unlawfully by reason of having remained
here beyond their authorized period of
stay." Regional Commissioner's Decision
of May 20, 1974 at 4.
Further, the opinion states:
"Despite the assertion that such
solicitations were only a small part
of the overall field experience, informa-
tion received from variaus Service Offi-
cers throughout the United States
substantiates that the beneficiaries have
been widely and repeatedly engaged in such
pursuit. We are led to the inescapable
conclusion that the petitioner's current
training program, which calls for three
times as much field work as formal study,
has been designed primarily for fund ;
raising rather than for training purposes.
Regional Commissioner's Decision of May 10,
1974 at 12.
its opposition filed on February 5, 1975,
che Sabeumas admits. that the District Direc-
tor relied upon certain evidence in reaching
his decision on the first petition, but that
plaintiff was aware of this evidence by gy .
of appeal to the Regional Commissioner and tha
it did not formally request to see the evidence
and did not try to rebut it. Further, the
defendant argues that the plaintiff did not ob-
ject to its use and that it waived its rights
to raise that issue at a later time. Like ‘
argument is made in reyard to the denial of the
other petitions. .
-30a-
The decision of the District Director, Sol
Marks, on the initial petition, does not re-
flect the use of the adverse evidence as
claimed by the defendant, but it is clear
that the Regional Director did rely in part
upon such evidence in addition to the reasons
of the District Director. In this regard,
the transcript of the hearing held on May 9,
1974 states:
MR. CARLINER: Yes, but what I'm attempting
to say is that you can approve the peti-
tion based upon the evidence that has been
produced. If you disapprove the petition,
I won't say specifically it is inappropriate
to disapprove upon grounds which haven't been
relied upon by the District Dire€tor. But I
don't think that's good administrative
practice because we are reviewing the District
Director's decision and, if you're going to
use new grounds, we should have an opportunity
to meet them. All we've been able to do here
is that we were put on notice by Mr. Mark's
decision that he had specific reasons for
turning down the petition. . ." Trans-
cript of May 9, 1974 at 55-56.
At the second oral argument held on July 11,
1974, plaintiff's counsel again voiced objec-
tion to the use of adverse information with-
out the opportunity to rebut. Transcript of
July 11, 1974 at 2-3.
Clearly there was no waiver by the plaintiff
of the rights afforded it under the regulations.
Its objection was preserved. The regulations
represent an accommodation between the need
for a decision based upon all the evidence
from whatever source and the right in an
-3la-
adjudicatory proceeding to confront and
cross-examine that evidence. See K.
Davis, Administrative Law Treatise, §15.08
T1958) .They place an affirmative duty
upon the Immigration and Naturalization
Service to proffer the information to the
petitioner for his inspection. Such was
not done in this case.
The case must be remanded to the Regional
Commissioner and reopened to provide the
plaintiff the opportunity to inspect and
rebut the adverse information. The Immi-
gration and Naturalization Service must then
reconsider its denial on all four petitions.
When this process is completed and if the
denials are affirmed, the case will then be
in a posture for review on the merits by the
Court.
/s/
JUNE L. GREEN
U.S. District Judge
Dated: March 4, 1975
-32a-
FILED March 4, 1975 -
John F. Davey, Clerk
Civil Action No. 74-1340
ORDER
In accordance with the
. Memorandum ini
rhe es on this date, it is by the mote” wate”
th day of March, 1975. a
ORDERED that the ca j
' se is reman
enn Director of the santevatton ian -
| pe per aagere Service for the specific purpos
Owing the plaintiff to comment on Sad’ cobut
such evidence as w j
pte as considered by the defendant;
Phat ORDERED that the motions for summar
judgment are held in abeyance pending the te.
ceipt of the new decisi i
pane dine Remmnd cisions by the Regional
Ls/
JUNE L. GREEN
IU.S. District Judge
-33a-
UNITED STATES DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
Northeast Regional Office
Burlington, Vermont
FILES: NYC-N-42465 (New York)
NYC-N-43048 (New York)
NYC-N-43367 (New York)
NYC-N-43579 (New York)
: itions of Holy Spirit Association
he ton he Unification of World Chris-
tianity a/k/a Unification Church in
behalf of one (1) alien, five hundred
seventy-four (574) aliens, three (3)
aliens and five (5) aliens respect-
ively.
GRANTS
PETITIONS TO CLASSIFY ALIENS OF NONIMMI
PURSUANT TO THE PROVISIONS OF SECTIONS 214(c)
AND 10l(a) (15) (h) OF THE IMMIGRATION AND
NATIONALITY ACT, AS AMENDED
IN BEHALF OF PETITIONER: David Carliner, Esq.
1709 New York Avenue,N.W.
Washington, D.C. 20006
These cases are before us on remand
from the United States District Court for
the District of Columbia. Pursuant to the
directive of the Court, the Service hes re-
opened on its own motion the above four cases
and provided the Petitioner an opportunity to .
inspect and rebut all adverse information whic
was considered by the Regional Commissioner in
rendering his earlier denials of said petitions.
-34a-
On October 22, 1975, counsel for Peti-
tioner submitted his comments on the adverse
evidence in the form of a memorandum in reply
to adverse information. In his memorandum
counsel objects to the freedom afforded him in
replying to the adverse information and requests
that we direct him in the exact manner that his
rebuttal should be formulated and submitted. We
have left to counsel's discretion the broad
latitude of his presentation for rebuttal as
provided by regulation 8 CFR 103.2(b) (1). The
above reference prescribes that any additional
information or evidence may be submitted in
like form as the Griginal supporting documen-
tation of the petition or application. Counsel
also comments on the voluminous amount of
materials furnished for his review and notes on
the lack of the Regional Commissioner's speci-
ficity with the adverse information furnished.
Counsel implies that the Regional Commissioner
is remiss in not providing the Petitioner the
specifics within the adverse information on
which his decision was based. We respectfully
disagree with counsel's objection on this point
and contend the Petitioner has been provided an
Opportunity to review all evidence impugning
the petitions’ approval that was considered by
the Regional Commissioner.
We urge that the Regional Commissioner's
decision relative to the above petitions was
based on the overall import of the evidence con-
Sidered. It was an overview of all factors and
not a matter of limiting our considerations to
a few specifics. The conclusions rendered were
based upon our interpretation of the entire
record. Counsel seeks to encumber the Service
with an undue burden not contemplated within
3S CFR 103.2 by urging that the Regional
-35a-
Commissioner circumscribe the basis for his
denial of the petitions to a few specific
items.
Counsel urges the exclusion of various
factors considered by the Regional Commissioner
in these proceedings. We submit that since the
visa petition adjudication and review is an
administrative proceeding, civil in nature,
the rules of evidence followed criminal cases
in the courts are not controlling. Our cri-
teria in appraising evidence in this admini-
trative proceeding is whether it has probative
value - and relative to the issues - and wheth-
er its use is consistent with a fair proceed-
ing.
It is asserted in the transcript of the
oral argument heard on May 9, 1974, that the
Petitioner keeps a close record on everyone in
the United States who is involved with the Uni-
fication Church. A reasonable conclusion fol-
lows that the Petitioner was certainly aware of
the past actions of the benficiaries while parti-
cipating in church fund-raising activities. We
submit that the Petitioner could not reasonably
believe that the Service would ignore these fund-
raising activities or arrests in connection with
them in considering the instant petitions.
The records of apprehension furnished
the Petitioner in our adverse information are
identifiable to various individual aliens in the
United States under the direct auspices of the
petitioning church. These aliens when processed
by Service or local civil authorities were parti-
cipating in a fund-raising program administered
by the Petitioner that is not unlike his proposed
training activities now under consideration.
-3Sa-
The kKegional Commissioner's reference to
arrests’ records was not made in Fesetieaates
to the individual beneficiary's eligibility
but to demonstrate their conduct in general
while under the Petitioner's supervision.
For example, one of these arr ’
records relate to an individual who meni»
ed in Ocean Springs, Miss. on June 16, 1974
The report indicates that numerous complaints
had been received on the subject and his col-
leagues for going door to door in residential
neighborhoods and soliciting monies from the
citizenry. The report also shows that the sub-
ject was warned by local authorities on June 15
1974, to not solicit monies without a permit.
We contend that the evidence
in this case reasonably supports pd a oe
Commissioner's conclusion i.e., that the field
activities of the Petitioner, which comprise
two thirds of the training time, are to solicit
monies rather than provide substantial training.
Counsel has stated that t i
failed to sustain its Sakeiakenn saiees aan ca
field experience portion of the Petitioner's
program appears to be primarily a fund-raising
program. He charges that the Regional Commis-
sioner's decision was made in utter disregard
of the substantial evidence submitted by the
Petitioner. We contend that his opinion that
the supporting documentation of the petition
fairly establishes that the fund raising is
merely an incidental part of the overall reli-
gious training program of missionary activity
is purely conjecture on counsel's part - reached
by giving a desired and favorable interpretation
of the evidence and the impeachment of any fac-
tors not congenial to his views.
-37a-
He articulately brushes the picture of the
beneficiaries only receiving donations from
benefactors who feel a strong commitment toward
the Petitioner's aspirations and goals, an opin-
ion not corroborated by evidence of record.
Counsel has euphemized the sale of selected
articles, i.e., the exchange of an article for money.
Counsel has stated in oral testimony that ina
hard light the exchange may be viewed in the
light of a sale. The Petitioner confirmed that
the article given by the solicitor does have a
minimum fixed price, and the exchange in the
final analysis is conditioned upon the receipt
of money.
Page 7 of Record of oral argument of
May 9, 1974, reads as follows:
Ee Carliner:umnere is no question that
the Unification Church does raise funds by,
what they prefer to call, the soliciting of
donations on the street and I can't deny there
may have been abusiveness and maybe the tech-
nique varies from person to person ~ but the
exchange of peanuts, of candy, of flowers, of
geraniums and of candies, is not intended to be
a sale of merchandise as one would... although
if you look at it very coldly, it is a sale -
the person does not get the candy, I suppose,
unless he makes a contribution and it may very
well be . .. I've seen material which indicates
er.
We believe that a stiffer brush approach
would convey a more realistic interpretation on
the money-soliciting activities of the Petitioner.
Under Section 101(a) (15) (h) (iii) of the
Immigration and Nationality Act, it is contem-
plated that the training received be substantial,
-Va-
the beneficiary must have the background and
education to adequately assimilate the desig-
nated training... Such training cannot be a
continuation in the form of practical experience
Se an already acquired expertise. It has been
eld that the training of an individual must
— him more than further day-by-day, on-the-
re experience and application of his skills for
e sake of higher degree of proficiency, Matter
of Treasure Craft of California, Int. Dec. No
2163 (1972).
; We have held that the ratio i-
tioners training program of amotio 20
months'field experience versus 10 months'
classroom training is unrealistic. Counsel has
stated that this is a gratuitous conclusion
not supported hv evidence of record. He con-
tends that it is arbitrary and capricious to
deny the present petitions on the ground that
the training program is disproportionate to
jae ye a program." In the Matter of
easure Craft of California, supra i
guidelines are set forth on i
rFona fide training program for "-3 trainees
The decision states in part:
"A training program designed principal
for the purpose of seevidian the seg
ficiaries substantial and meaningful
training can reasonably be expected to
offer more than learing 'the separate
duties when, as, and where its oppor-
tunity affords.' Training in this man-
er will provide the beneficiaries little
if any, training which is not incidental.
to the employment of any worker in a posi-
tion which involves purely productive
Jabor." Emphasis added.
-39a-
We contend that the evidence of record
submitted by the Petitioner fails any reason-
able test to substantiate a viable training
program within the interpretation of law for
the 20 months of practical experience for 583
beneficiaries. A good portion of the trainees'
activities must be viewed:-as productive employ-
ment. This presumption is not contingent on
the beneficiary receiving a salary,only that
he is performing the day-by-day duties that
are necessary in the operation of the Petition-
er's endeavors. The record establishes these
functionary duties are being performed by the
583 beneficiaries under consideration. We
submit that the evidence does not require a
highly skilled interpretation to reach this
conclusion.
We submit that counsel is in error in
his assumption that an alien's past participa-
tion in the Petitioner's training program is
not now germane. Relativity arises to the mat-
ter in question because the same aliens are the
beneficiaries of the said petitions. As stated
by counsel, such possible violation of the
alien's nonimmigrant status could correctly be
applied should he be an applicant for a change
in nonimmigrant status under Section 248 of the
Act. However, his background and any training
which he may have already received is relative
to the question at hand in determining if the
prospective program for which he is being
petitioned is realistic; that if it is substan-
tial in the light of his past experience and
training or is it merely a repetition of
acquired knowledge. Additionally, the benefici-
aries ability to assimilate specified criteria
outlined in any training program must be
-tO0a-
a
considered.Judgment on the trainees capability
must be drawn from his past. The prior experi-
ence and training of an alien are factors to be
considered in adjudicating an H-3 training
petition. Matter of Miyazaki Travel Agency,
Inc., 10 I. & N. Dec. 644. Here it was held
that a beneficiary who had been employed as a
travel agent for the last three years was in-
eligible for a 50-week training program in the
same capacity.
On his belief that it was not required,
the Petitioner has declined to furnish much of
the information requested on the beneficiaries
prior training and activities while in the United
States under his supervision. We will not fur-
ther argue his prerogative on this issue but do
submit only that if, as in this case, there ex-
ists sufficient doubt to warrant denial, the
Service is not required to conduct an outside
investigation to resolve the issue. Matter of
Holmes, Int. Dec. No. 2274 (BIA 1974). The
burden of establishing eligibility in visa
petition proceedings never shifts from the Peti-
tioner to the Government, notwithstanding counsel's
argument to the contrary.
The Petitioner is seeking trainee status
for 583 aliens by four petitions and in doing
so must show that the training specified in each
petition is relative to each and every beneficiary.
The proposed training on one petition may not be
administered on an individual basis at the dis-
cretion or selection of the Petitioner based on
his interpretation of the individual's needs.
If the Petitioner desires an individual train-
ing program then each beneficiary must be sup-
ported by a separate petition designating a
training program geared to such individual's needs.
-4la-
Counsel holds that the source of the bene-
ficiaries’ income is precluded from considera-
tion by 8 CPR 214(h) (4) (ii) and contents that
it should be struck from the Regional Commis-
sioner's judgment in the petition. We believe
the souce of beneficiaries’ income is relative
invoked the fund-raising activities directly
into issue. The beneficiaries’ remuneration
is being derived from a fund-raising solicita-
tion program which the Petitioner has designa-
latitude was given to permit the prospective
trainee to receive a salary or living allow-
ance while in the United States from either
his foreign employer or United States host.
The salary for the trainee is not a control-
ling factor or subject to local salaries or
fair labor standards becuase the primary pur-
pose of che beneficiaries’ presence in the
United States is to participate in and
assimilate a sut mtial training program -
a@ program well defined and tied to a specific
time schedule and goal. We do not believe the
statute relied on by counsel in addressing
this issue precludes the Regional Commissioner
from considering the alien's activities which
result in a source of income for the Peti-
tioner when, as in this instance, money is
directly generated by the beneficiary-trainee
and the Petitioner has designated such solicit-
ing to be encompassed in his prograz.
We disagree with counsel in his analogy
that denial of the petitions is a violation of
the Petitioner's free exercise clause of the
First Amendment. The petitions in question
~4la-
were denied because the Petitioner failed to
satisfactorily establish a bona fide training
program within the interpretation of law. This
conclusion by the Regional Commissioner does
any way idge the Petitioner's exer-
cise of religious freedom. a
Counsel has also criticized the ion-
al Commissioner for not according the peri-
tioner and the beneficiaries procedures under
8 CPR 103.2 which, as he states, are customari-
ly utilized by the Immigration and Naturaliza-
tien Service in determining the eligibility of
Jiens to the benefits of petitions and for
randum that the Regional Commissioner by not
offering the Petitioner and beneficiaries the
opportunity to testify in person before a
service officer has denied them, as a group or
by individual, an opportunity to present their
case with all desired exposure. It is our posi-
tion that Service prerogative to not inter-
view all prospective beneficiaries as requested
by counsel did not pretermit the Petitioner
from any avenue of information that he wished to
pursue, and to submit the results of his in-
quiries by affidavit for consideration by
the Regional Commissioner.
In view of the foregoing, it has been
concluded the decision of the Regional Commis-
sioner was proper and the material submitted on
reputtal of adverse information does not estab-
lish a basis for overruling that decision.
August 21, 1974.
-4h-
The Petitioner has not met the burden
imposed upon him by regulation Matter
ntigan, 11 I. 6 N. Dec. 493 ~ nor has he
wm that the (challenged) decision is with-
out a rational basis or that it is arbitrary,
Files: NYC-N-43048 (New York)
NYC-N-43367 (New York)
NYC-N-43579 (New York)
In re: Petitions of Holy Spirit Association
for the Unification of World Chris-
tianity a/k/a Unification Church in
behalf of five hundred seventv-four
(574) aliens, three (3) aliens and
five (5) aliens respectively.
PETITIONS TO CLASSIFY ALIENS AS NONIMMIGRANTS
RSUANT TO THE PROVISIONS OF SECTIONS 214(c)
AND 101 (a) (15) (8) OP THE IMMIGE
NATIONALITY ACT, AS AMENDED.
IN BEHALF OF PETITIONER: David Carliner, Esq.
1709 New York Ave.NW
Suite 305
Washington, D.C. 20006
(Heard in Oral Argument)
These matters are before the Regional
Commissioner on appeal from the denial of the
petitions to classify the beneficiaries as
nonimmigrant trainees under section 101 (a) (15)
(#) (iii) of the Immigration and Nationality Act,
as amended. Inasmuch as the facts in all three
cases are similar, a single decision will be
entered.
The petitions and accompanying documenta-
tion reflect that formal instruction and
-4Se-
centers, mobile evangelical units and of
<> and foun the takaed Gataen ab aaah oS
ether Resto nent ee ee ee cutee Aa
coming or in the event there are insufficient
3 rogram will aid
in obtaining funds from other nations to pro-
vide for the missi ons to pro-
petitioner claims chet Ge 0 oe Ta
for the training of missionaries. _ t
seerts that euntenns facilties _
following considerations:
: ¢ heritage
of the United States
Scosthent cuviasmnent Ser asees
training.
The great movement toward spiritual
concerns in the United States pro-
vides the best atmosphere for training
new missiona , :
It is necessary to standardize trainir
of all missionaries and churct :.
and therefore one central rey
been developed.
h concluded that there
oho aaa iderations also dictate
ties and set of training ‘lie
one staff rather t! faci
in the —_wo aan train missionaries
where there tional setting
is a mixture of all possi-
ble races, religions, nationalities,
e beliefs. This place is the
tates. ,
English is nec ay a
and is one common denominator for
Europe and Asia and this is available
in the United States.
In connection with the proposed training the
instant petition for 574 aliens reflects a
period of from 28 to 32 months required to com-
plete such training whereas the other two
petitions reflect that a period of 24 months
will be required to complete the same train-
ing. The supporting evidence submitted by
the petitioner indicates that the complete
program is still being developed but basic-
ally it will consist of five levels of two
months’ study each interspersed with four
periods of four months’ field experience for
a total duration of 26 months. There has been
presented evidence in the nature of a general
ee eS Soe eS @ roster
pertinent
criteria which has er
mine eligibility for 2m a ‘ te
-67e-
fulfill in order to receive a certificate
of successful completion. The overall
program has been set forth in detail
as follows:
A. LEVEL 1
1. Divine Principle lectures
2. Bible study
3. Voc theory
4. Rev. Moon's speeches
5S. Group and individual counsel-
ling
6. History of Christianity
7. Introduction to Philosophy
8. English
9. Sports
B. LEVEL it
l. Divine Principle Lectures
2. Bible study
3. VOC theory
4. Rev. Moon's speeches
5. and individual counseling
6. Public relations
7. Comparative religions
9. English
10. Sports
C. LEVEL iit
Divine Principle lectures
Bible study
voc theory
Unification Thought
Rev. Moon's speeches
Group and individual counseling
New testament theolocy
-46a-
8. Unified Economics
9. English
10. Sports
- Divine Principle lectures
- Bible stody
« VOC theory
- Unification Thought
- Public relations
- Basic church business practice |
Unified Science :
8. Bible source study
9. English
10. Sports
ll. Individual leadership training
(counselling and training
directed at fulfillment of each
trainees' newly assigned mission
responsibility.)
It is noted the petitioner has stated that
training consists of five levels of study
although the detailed description of the
courses to be offered reflects the academic
program is actually divided into four levels.
The petitioner states that in the entire
program there is emphasis placed on the field
experience portion of the training, both in
time alloted and in examination, grading and
final examination. It is asserted that while
it may be sufficient for non-missionaries of
various fields and professions to train pri-
marily by lecture and examination, it certainly
is not the case for missionaries; that each
missionary must demonstrate capability to love
and serve others, to the extent of great self-
sacrifice, and these capacities are the result
of actual life experience rather than by class-
room or laboratory techniques alone.
-49a-
The instant petition for 574 trainees was
denied by the District Director on May 23,
1974. The other two petitions were denied
on June 6, 1974. The District Director's
decision in all three cases was as follows:
The petitioner seeks to accord the
several beneficiaries of your peti-
tion classification as trainees.
On April 4, 1974 in connection with
your petition NYC-N-42465 seeking
similar classification for another
beneficiary you were informend of the
denial and its certification to the
Regional Commissioner.
By order of the Regional Commissioner
dated tay 20, 1974, the denial of the
petition was affirmed. Inasmuch as
the issues of the instant petition are
exactly those of your prior petition
it must be found that the decision
previously reached, and of which you
are aware, must apply to the instant
petition.
The District Director's denial of these
three H-3 petitions was based on the Region-
al Commissioner's findings in the case of
Herman ten Bokkel Huinink, file NYC-42463,
in which the petitioner's overall missionary
training program was carefully examined. In
our affirmation of the District Director's
Decision, the following pertinent factors
were mentioned.
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(1) There is a serious question as
to whether the petitioning church has
an established training program inas-
much as they have, in a relatively
brief period of time, altered the
length of the proposed instruction,
the nature of the training and the
ratio of field experience to formal
classroom studies. Moreover, the
petitions call for 28-32 months'
training whereas the program which
has been outlined only covers an
approximate 22-month period.
(2) The evangelistic mission of the
Church requires its members to engage
in lay missionary work. Inasmuch as a
background of two years' church m
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