# Petition — Unification Church v. Bell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1079%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 828 ## Text “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.. ... 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. -50a- (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 member- ship is required for participation in the proposed training in this country, the need for 1 1/2 years of additional field work has not been amply justified. (3) The extent to which the mission- ary trainees have engaged in fund solicitation -- which has included the outright sale of merchandise -- is in- consistent with nonimmigrant visitor status and exceeds the bounds of train- ing in such activity. (4) No evidence has been furnished to establish the financial ability of the petitioning church to maintain its missionary trainees in the United States without utilizing their srvices in exten- sive fund-raising operations. -S5la- j is The aliens were admitted - = ae o try (or placed in a deferre — oan svatus) at different times spe training. In view of the fact that no formation has been furnished oom and fiel~ oe clasemplished to date,and eee training “9 actually Pea that the peti- s has not jas an established training program j } ene- which is uniformly applicable to all b ficiaries. sed training luded that the propo oe ee aes unrealistic and unaccep tt would make the peti tive settt have ¢ leted his training and the | age would be tan- activities in which be mee ones in the untenable tamount to placing —e = vice in va respons- peal from the denial ted in of the instant petitions, counsel asser pertinent part as j the Insofar as the decision is Bional com = t fort ee Geos order in NYC-N-42465, the Pe h of the grounds aased urges ‘hehe Regional Commissioner 15 cee EEEE It is not correct to say that there are _."“conflicting representations" as to the nature and extent of the training required under the present petition. The petition involved in NYC-N-42465 indicated that 26 months were required to complete the instruction and training under the program as developed through the date of the peti- tion. The records of the Service regarding earlier submissions by the Unification Church in March 1972, in January 1973, and during January 1974, are not submissions in support of the earlier petition and have not been used as submissions in support of the present petition. (Footnote: The petition stated 24 months as the period required to complete the services or training but the detailed pro- gram of training submitted by the petitioner fixed the period as 26 months. The reference to 24 months appears to be an error. The present petition appears to state 28-32 months. This is also an error. The pro- gram is intended to be for 26 months.) The fact that the Unification Church has expanded and revised the nature of its instruction and training does not indi- cate that the program is not "established" even were the statute and the implementing regulations to be interpreted to require "an established program.” A program is not less “established” merely because it may be modified from time to time. All that is fairly required of an established program is that it be initiated and set on a firm basis. See Webster's Dictionary. An established program does not imply an unchanging one. -53a- The material submitted by the petitioner, summarized in the Order of the Regional Commissioner in NYC-N-42465, meets the requirements of 8 CFR 214.2(4) (iii) to describe the "type of training to be iven" (underlining supplied). The fact phat the regulation itself refers to "training to be given" is itself an indication that there is no requirement that the program be pre- viously established but only that there be a proposed training program. In the context of the regulations, the description of the training appears to be relevant in determining the proportion of time that will be devoted to "productive employment," whether the instruction and the on-the-job training are reasonably related to the position or duties for which the training is intended, whether the train- ing is available in the alien's country, and whether it is necessary for the alien to be trained in the United States. That information has been amply supplied by the petitioner. In this circumstance, reliance upon the assumed "conflicting representa~ tions as to the nature and extent of the training required to prepare the aliens for missionary wor " jis not, in itself, a proper basis for the denial of the petition. The Regional Commissioner has also relied upon the fact that the the "petitioner has completely reversed the ratio of field experience to formal studies" and has con- cluded that the "proposed ratio of class studies to practical training" is "entirely unrealistic". No basis is set forth in the Regional Commissioner's Order for the conclu- sion. -54a- The classroom instruction i is in che petaninsen tee Wisretinéing oe” a on baaae ples of the Unification Churc? ney Shag ote eee is intended to pr “* bapa fic on-the-job training for Be ae pice Moone sorhec The ratio which ha mere ce ae of training to educatio ; nara « Fn ~ y be said to be unrealistic . renee Ser mmigration and Naturalization moe 3, ee on-the-job training pr ee ee which there is no formal figess supendidad waeniia job Sieindaet a only = - raining. this precedent, the petitioner should ber : or pro ing prograne which offered no eaveational ° e Di pe nn pg =r in wreon-42408 Géuns ce a as much when he relied upon a ul a ng that the training offered is "more appropriate to a scho rhan to a training aeaeaa program rather RkKKKKKKKE The Regional Commissi ssioner has al : so ee ane that the emsagnatens bh ee A oe ground" of two years of sieahe sas p and concomitant experience as lay missionaries Staten." prior to coming to the United T pesia fer cone er nee there is no nding in th hn fem 9 A which have node ae a _ we ne and Naturalization Guiles “ag ro mete — intended beneficiaries is that ples of hee Giddbeatean ae “9g ea ~ urch have been selected for Sar Ghiet chadaetant -55a- ’) and because they have devotion to the ascetic life which is required for a missionary in the Unifi- cation Church. None of them has had missionary — comparable to the training and activity which they would obtain in the United States where there is freedom of religion and freedom to proselytize in a community which has diverse religious, racial, and ethnic groups. The proposed of one and a half years for such field experience, which includes the living experience of the missionary group itself, is no greater than comparable periods of time allowed for exchange visitors, students, and for other persons who are acquiring specific skills and a living experience in the United States. ly, the finding that there is “insufficient justification for the grant of H-3 classification to enable (the intended beneficiary) to participate in more than one and one half years of simi- lar field work in this country” is not supported by the record in the absence of any evidence, is arbitrary in view of a demonstrated need for such training, and is capricious in that it makes improper 4istinctions between missionary trainees anc other types of trainees permitted to be trained in the United States. The Regional Commissioner has found that the fund raising which is part of the trainees’ field experience “transcends the normal -M%a- limits of training". The petitioner been informed of the evidence relied wn A the District Director which permits the Regional Commissioner to state that there is outright sale of merchandise” as a part of the fund raising technique. The Unification oh ah oe’ ne in the “sale of merchan- lishments are | a Clete eeich etfer sells offer religious jects to thei parishioners and receive ssetribattons, of- ferings and donations in return. Comparison should be made with the treatment of minis- ters,admitted to the United States to engage in evangelical tours, who are permitted to be supported by offerings contributed at each evangelical meeting”. See Foreign Affairs Manual, “Visas”, 22 CFR 41.25 refer- ring to aliens who are classifiable as 8-1 nonimmigrants, contrary to the ional pero mama ogy thy statement that A. status not “engage in | solicitation of ws ao The Regional Commissioner has arrived at -Siva- -- tted itself to Tr of the 575 B-3 beneficiaries: in addition to other po ty* the yor the expenses of the trainees. of the | a cm 14(h) (4) (iii) states specifically tha “the source Of Ont 5) ..- not material... — extent, therefore, that Gacisien & ee piserict Director and the Order i Regional Commissioner are “xr received by the trainees, the decision is in conflict with the regulation. fact that “no definitive information has been furnished as to their exact dates of This consideration appears to be : Section 248 of the Immigratic PR re mm ak ye of status. They become operative ar as the present beneficiaries are con- cerned only after the H-3 petition has approved. Form I-506 is the prc Ah S btaining information regarding the dates of previous activity in he United States of - otherwi which is required on Form I-129B or ise by the Service for the adjudi- cation of H-3 petitions. . . y bility of a group of H-3 trainees because of the assumed “deviations” of individual trainees. Matter of Okamoto, 10 I. & WN. Dec. 456, suppor tioner. . . In these circumstances it is not warranted to deny the t petition upon a rather flamboyant statement that the approval of the untenable position of abrogating its duties and responsibilities under the Immi- gration laws”. In support of the appeal counsel submitted an Income Statement for the period January 1, 1973 to December 31, 1973 prepared bv the Treasurer of The Holy Spirit Association for the Unification of World Christianity reflecting that the church had a total operating income for 1973 of $11,863,023.31 derived from dona- tions, candle offerings, contributions, book This is to certify that all donations received by members in training in the United States are strictly accounted for by the following system. after the theoretical portion of the Uni- fication Church Training Program, the trainees are required to have a “field experience", in which they travel through a five-state region. They conduct reli- gious rallies, distribute Church litera- ture, witness, hold Bible study classes and weekend seminars, conduct prayer meetings, and other similar activities. To sustain these activities, they receive donations; that is a part of the over-all training pro- gran. -60a- All monies received from donations are col- lected ; Lender. ee enter Director of Nobile Teas i : sions in the cases before us were based entirely the Regional Commis- were not considered on their own merit; @ program of RENT OK Rate 5 ! g ~6le- variance of two months in the length of the program is not significant; that in moet soeee of this type the aliens are outside the States and that because a handful of .~ 7" may have violated local ordinances + program early the others should not consid- ered in the same light; that some individuals accelerated through the that the training program to be ee ae many beneficiaries is ° experience involving persons of eS cultures and multi-ethnic backgrounds; ore it is the desire of the Church to a religions; that experience is gained by ae up centers of training, working on & one~- relationship in the community and through experience and proselytizing they become trained; that such training is necessary and the Service has no basis for concluding that a one-third and two-thirds ratio is not proper. deali with the matter of fund raising, aaa escorted that this facet of training is not a primary activity but is incidental to wit- nessing meetings and discussions; that it is the sone to be humble and allow them to identify with _ Im connection with the matter of fund or counsel submitted a copy of an article -622- entitled "Heavenly Fund Raising" and also @ copy of a paragraph entitled "The Princi- ple of Restoration Through Indemnity" taken from the "Divine Principle", one of the pri- mary texts utilized by the trainees in their educational program. It has also been asserted by counsel that no ome exists without money; that the raising of funds is not an improper activity and that the training of persons to raise funds is also mot improper; that because Americans are recog- mized for their generosity towards religious and philathropic organizations, the Church brings aliens here in order that they can learn how Americans give, and training for such purpose is not invalid; that clergymen come from other countries and it is not in- popropriate for them to appeal for offerings; that because the beneficiaries use a more personal approach or an individualized,appeal; it should not be found to be improper. Im reply to the contention that the Service would lose control of the aliens it was assert- ed that the ileadquarters of the Church in Tarry- town, New York knows where these individuals ere at all times; that they can be requested to appear when and as required; that following the approval of the instant petitions the eliens would be admitted for a period of one year; that the Service would maintain control over each person and any violation of status could be dealt with on an individual basis. Counsel pointed out that the Service was in- correct in assuming that the members of the church abroad had previous missionary training. To the contrary, counsel asserted that these individuals had been members of the Church ~63a- abroad but none had ever been given any speci- fic missionary training which can only be accorded in this country. The record contains a letter dated March l, 1974 from the Missionary Visa Office of the Unification Church in New York, New York addressed to our Service in that city which lists the names of four alien missionary trainees who, it is claimed, have already received H-3 classification. Counsel was un- able to furnish any information concerning these four individuals. Counsel was also unable to furnish any further information concerning the financial status of the peti- tioner. Counsel advised that he would obtain and forward the pertinent data within ten days. At his request counsel was subsequently grant- ed until July 30, 1974 to furnish the addi- tional information. The additional evidence requested has now been received and counsel asserts that the four missionary trainees mentioned above were the beneficiaries of H-3 petitions approved by the District Director of this Service in Wash- ington, D.C. In this connection it has been ascertained that H-3 petitions were approved as claimed by counsel. The relating files in two cases have been sent to the Federal Records Center and the two files still avail- able reflect petitions were approved August 22, 1973 to expire January 18, 1974. The records fail to indicate that these aliens have been granted any extensions of temporary stay or that they have ever departed from the United States. It is now clear that petitions have been approved by this Service for a total of sixteen trainees. No useful purpose would be served in determining at this time whether these -64a- petitions were based on the same set - cumstances or if the training Bn Rte similar. It was mentioned in our decision of May 20, 1974 in the case of Herman ten Bokkel Huinink that the H-3 petition approved in 1972 for 12 Japanese aliens -- who were then abroad -- called for only nine months of classroom work and three months' field experience. In way of response, counsel has merely argued that the missionary training program has been constant- ly undergoing revision. Under the circum- stances, we will consider the instant petitions on the basis of the records at hand. Counsel has furnished additional fin evidence prepared by one William E. — on behalf of the petitioning church. Listed as current assets are such items as "Cash in Bank (s) amounting to $26,272.00 and "Cash on Hand" of $900.00. Fixed Assets including ve- hicles, trailers and furnishings have a de- clared value of $258,722.00 and ten pieces of property are valued at $1,799,450. There has been included a new Income Statement which shows the total operating income for 1973 to have been $2,133,028.31 as compared with $11,663,028.31 reflected in the documentation submitted earlier with the appeal brief. A comparison of the two statements follows: -65a- INCOME STATEMENT January 1, 1973 to December 1, 1973 First Second Statement Statement Operating Income Donations Unification —— $7,341,131.64 $ 341,131.64 National Fund Raising we 8 } candle a eterians! 1,663,930.49 663,930.49 International Training Cen- ter Fund (Shown in first state- ment as Sees el tribu- n= 675,000.00 675,000.00 tri- ow Be 1,272,381.19 272,381.19 TOT. DONATIONS $10,952,443.32 $1,952,443.32 Book Sales 590,396,97 90,396.97 Membership Fees 32.650.00 2,650.00 Other Revenue yan + Pigg OF 87,538.02 87,538.02 TOTAL OPERATING i973, -_ $11,663,028.31 $2,133,028.31 -66a- At this point we are confronted with two different statements purporting to have been the petitioning church's Operating income for 1973. The first statement sub- mitted on appeal showed a total income of $11,663,028.31. the latest such statement submitted reflects substantial reductions in donations received, income from book sales and membership fees to the point that the operating income for the same period was only $2,133,028.31. the latest statement reflects a reduction in operating income amounting to $9,530,000 which has not been explained. Under the circumstances, we find the credibility of the gross income reported (as required by Item 4 of the Form I-129B) to be very much in doubt. In further reviewing this matter, we must express disagreement with counsel's conten- tion that consideration of the beneficiaries' current stay in the United States should be divorced from the adjudication of the instant petitions and reserved for section 248 pro- ceedings. In determining whether the peti- tioning Church has established a bona fide and realistic training program, we must examine the aliens’ previous background in the field. These petitions cannot be iso- lated from the circumstances which caused them to be filed, the activities in which the beneficiaries engaged to date, and the need for their continued presence in this country. The aliens who are all presently in the United States were brought here as nonimmigrant visitors for missionary training, the same purpose for which H-3 Classification is now being sought in their behalf. We Cannot, at this juncture, accord blanket approval to a program which they have already completed to -~67a- varying degrees. Insofar as the instant beneficiaries are conceined, we certainly cannot regard the missionary training pro- gram as prospective in nature. The petitions at hand seek to encompass into the training program 582 aliens who have been admitted to this country as nonimmigrants at different times to undergo missionary train- ing. As pointed out in our previous decision in the case of Herman ten Bokkel Huinink, we have not been furnished any information con- cerning their dates of entry and periods of authorized stay, their current whereabouts, the extent of the formal instruction and field experience which they have accomplished to date, and when their training will be com- pleted. Although we are not in possession of specific data it is evident that the majority of the alien beneficiaries have remained in this country beyond their authorized admis- sion and/or extension period. There is a serious question as to whether many of them would even be eligible for change of non- immigrant status under the provisions of section 248 of the Act. The instant petitions seek to further perpetuate their stay without specifically setting forth the exact nature of the additional training to be accorded them or any justification for same. We do not find the Church has satisfactorily shown it has a program which is uniformly applicable to all beneficiaries. In connection with the proposed training,the petitioner furnished an outline of the study and field program set up for the beneficiaries. This information is identical to that initial- ly furnished with the petitions filed in behalf of Herman ten Bokkel Huinink. However, in connection with certification in the above -68a- case counsel furnished additional and submitted a more eengeehthaive eetinn of the missionary training program which consistes of 24 weeks of study and 72 weeks of field experience or a total of approxi- mately 22 months. This revised program was described in detail in our first decision covering the one beneficiary. Counsel now asserts that regardless of all prior con- sideration, outlines, or statements, the aliens will require a period of 26 months to complete their training. In view of the conflicting representations as to the nature and extent of the training required to pre- pare the aliens for missionary work, we do not find that the Church has an established training program. We also find the proposed ratio of class study to practical training to be entirely unrealistic. It is also abundantly clear that the petitoner's current training program, which calls for three times Seelanes tee as formal study, has been or fund r ° * ec. aT Tay ia 3. 6 8. bee. 363. and Matter -9la- We have also considered the issue of the peti- tioner's inclusion of fund raising -- which encompasses the outright sale of merchandise -- as part of the trainees' field experience. We do not dispute the right of any recog- nized religious or charitable organization, including the instant petitioner, to lawful- ly engage in the solicitation of funds. How- ever, the employment of nonimmigrant aliens for such purpose is not consistent with B-1l or B-2 status, or with the stated intention of the pending H-3 petitions. Even conce- ding arguendo that instruction in fund rais- ing is important to a missionary's training, the manner and extent to which the instant beneficiaries have been utilized towards that end transcends the normal. limits of training. We have considered the necessity of fund solicitation in the light of the fact that the petitioning church -- with a total membership of 10,000 of which 7,000 have been described in oral argument as "“associ- ate members" -- has committed itself to the support of the 575 H-3 beneficiaries, in addition to other nonimmigrants who have been admitted for training, for a period in excess of two years. No evidence has been furnished to substantiate the petitioner's financial ability to assume this obligation and even the basic information relative to its gross annual income has been omitted from Item 4 of the petition, Form I-129-B. At the time of oral argument, the petition- er's representative advised that the church would not entertain any suggestion that fund raising be eliminated as part of the -92a- training program. Despite the assertion that such solicitations are only a small part of the overall field experience, in- formation received from various Service Officers throughouth the United States substantiates that the beneficiaries have been widely and repeatedly 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 desianed primarily for fund raising rather than for training purposes. In addition to the foregoing, we find that the pending petitions seek to encompass into the training program 575 aliens who have been admitted to this country as non- immigrants at different times to undergo missionary training. No definitive in- formation has been furnished as to their exact dates of entry and periods of author- ized stay, their current whereabouts, the extent of the formal instruction and field experience which they have accomplished to date, and when their training will actually be completed. Although it is claimed that all of these aliens are still undergoing training, it is evident from the petitioner's European and Asian Personnel List of Janu- ary 1974 that the overwhelming majority have remained here beyond their authorized admis- sion and/or extension period. The pending H-3 petitions seek to further perpetuate their stay without specifically setting forth the exact nature of the additional training to be accorded them and corroborating the need for same. It has been held that sub- stantial deviation from authorized training -93a- conditions and program established by an H-3 petition violates such status and ren- ders the trainee deportable under section 241(a) (9) of the Act. Matter of Okamoto, 10 I. & N. Dec. 456. The instant peti- tioner has attributed deviations from the training program to "flexibility" and to the fact that it is constantly undergoing revi- sion. The church has not satisfactorily shown that it has an established program which is uniformly applicable to all beneficiaries. It is our view that approval of the peti- tions under the above circumstances would be tantamount to establishing the petition- ing church as the sole determinative authority as to when each of the beneficiaries will have completed his training and the activi- ties in which he may engage. This would place this Service in the untenable position of abrogating its duties and responsibilities under the immigration laws. It is concluded that the training program which has been pro- posed by the petitioner is unrealistic and unacceptable. Accordingly, the denial of the petition will be affirmed. IT IS ORDERED that the District Director's decision denying this petition be and same is hereby affirmed. /s/ REGIONAL COMMISSIONER -94a- APPENDIX B UNITED STATES DEPARTMENT OF JUSTICE Board of Immigration Appeals Washington, D.C. 20530 JAN 14, 1977 File: A2l1 792 001 - New York In re: KEIKO ASAI, ET AL (42 cases) IN DEPORTATION PROCEEDINGS APPEAL ON BEHALF OF RESPONDENTS: David Carliner,Esq. Suite 931 1511 "K" Street, NW Washington, DC 20005 ON BEHALF OF I&N SERVICE: Paul C. Vincent Appellate Trial Attorney Allan A. Shader Trial Attorney ORAL ARGUMENT: March 26, 1975 CHARGES: Order: Section 24l(a) (2), I&N Act (8 U.S.C. 1251(a) (2) - Nonimmi- grant - remained longer than permitted (All) APPLICATION: Termination of the proceedings; alternative, voluntary depart- ure -lh- On November 11, 1974 the immigration judge found the respondents deportable as nonimmi- grant overstays. The respondents appealed. It is their contention that they are still in tle nonimmigrant status in which they were ad- mitted, that their time has not expired, and consequently, that they are not deportable. Their appeal will be dismissed. The record relates to the cases of 42 aliens who were admitted to the United States as non- immigrant visitors. While the individual dates of admission and periods for which they were admitted vary, none of the respondents was admitted for a period beyond September 20, 1974. The respondents are all members of the Uni- fication Church, which brought them to the United States. It was the desire of the Church that the respondents (and other nonimmigrants that it brought here) be able to remain in the United States for a longer period than that for which they had been admitted to stay as visitors. In order to explore how to accom- plish that objective, representatives of the Unification Church met with officials of the Immigration and Naturalization Service during January and February of 1974. During the course of the discussions, Service officials suggested that the subject aliens might qual- ify for a change of nonimmigrant status to that of trainees under section 101 (a) (15) (iii) of the Act. As a result of the discussions, the Unification Church filed petitions to ac- cord the respondents (and others) status as nonimmigrant trainees. The Service, however, did not approve the petitions. On May 23, 1974 the District Di- -2b- rector denied the petitions and certified. his decision to the Regional Commissioner. Thereupon, in some cases, applications to extend the nonimmigrant visitor status of the respondents were filed. These were also denied. In the case of Keiko Asai, for ex- ample, an application for extension was re- ceived by the Service on June 24, 1974 and was denied on September 5, 1974. _In regard to the denials of the visa peti- tions, the Regional Commissioner affirmed the denials on August 21, 1974. An appeal from that decision was taken to the United States District Court of Washington, D.C., which remanded the cases to the Regional Com- missioner for further consideration and a new decision. Meanwhile, the Service commenced these pro- ceedings. When this appeal was originally be- fore us, we were informed that the Service did not intend to enforce the departure of the respondents “unless and until there are final administrative denials of the petitions after proceedings held in accordance with the order of Federal District Judge June L. Green dated March 4, 1975." In view thereof, we entered an order of May 9, 1975 remanding the case to the immigration judge for consideration and decision following the administrative action by the Service. Subsequently, on January 15, 1976, the Re- gional Commissioner reaffirmed his denials. On July 27, 1976 the District Court granted the Service's motion for summary dismissal of the case. An appeal by the respondents to the U.S. Circuit Court of Appeals is pending. Counsel for the respondents, the trial at- -3b- torney, and the immigration judge have now joined in a stipulation requesting the Board to consider the appeal from the immigration judge's order in the deportation case, with- out requiring further action by the immigra- tion judge. In view of the events which have transpired, we shall accede to that request. We shall deny counsel's request for further oral argument. The merits were argued when the case was before us previously.1/ On appeal counsel challenges the immigration judge's assertion that he lacked authority to review the District Director's action in denying the application for extension. Coun- sel contends that the immigration judge does have the power to review a decision of the District Director to terminate the status of a nonimmigrant alien when the decision by the Disrict Director is “arbitrary, capricious, and unwarranted." Alternatively, counsel argues that the re- spondents did not require an extension of 1/ Ina supplemental brief, counsel criti- cizes Matter of Teberan, Interim Decision 2498 (BIA 1976) which he anticipates that we may cite and which was decided subsequent to his oral argument. He desired oral argument in order to present his criticisms orally. We do in fact cite Teberan later; however, our reliance on it is limited to points for which prior authority was already existing, which we cite also. Thus, we do not feel the need to hear further argument in this case. -4b- stay, but are still in the nonimmigrant ~ us in which they were originally ahuitess. an to this point, he puts forth two theories. First he contends that, when a person in stat- us makes an application to extend or change that status, the status remains valid and in force throughout adjudication of the applica- tion, even including appeals to the courts from denials of the application. The second theory on this int is th h Service by virtue of its spemiee not i dane any action against the respondents until final adjudication of their petitions is estopped from deporting these aliens. Counsel contends poe oe ee must be deemed to continue ng appeals to the cou - istrative denials. ae deter ree The immigration judge was correct that he has no authority to review denials by District Directors of applications for extension. The fact that a District Director's decision may oe te oot ge or unwarranted does confer authority over = nigoutal Sumas y the area to the im The question of whether a nonimmigrant’ stay should be extended is a Sanna aubeee within the discretion of the District Direc- tor. Mater of Teberan, Interim Decision 2349 (BIA 1976). fatter of Hosseinpour, Interim Decision 234 , Matter of Halabi, Interim Decision 2322 (BIA 1974), Matter of Sourbis, 11 I&N Dec. 335 (BIA 1965). Immi- gration judges and this Board have no au- thority to review the District Director's decisions regarding extension of stay. See Matter of Halabi, supra, Matter of Sourbis, supra. Issues as to whether an overstay -5b- was justified are not germane to the ques~ tions of the alien's deportability under sec- tion 242(a) (2), Matter of Teberan, supra, Matter of Arao, 13 I&N Dec. 156 (BIA 1969). Counsel cites no authority, and we know of none, in support of his proposition that the status of a person who applies to extend or change his status remains in effect during the adjudication of that application. Even if that were a correct proposition of law, it is questionable that the status would, be- cause of appeals, remain in effect after de- nial of the requested change. Additionally it is questionable whether such a proposition would apply to a visa petition, which is not actually an application for a change in status, and which does not require the pres-~ ence of the beneficiary in the United States during adjudication. Regarding past promises by the Service, it is the position of the Service that it has fulfilled all promises which it made in re- spect to the respondents. The decision by the Service as to when to commence prosecution of these deportation proceedings is a prose- cutorial decision which is not reviewable by the immigration judge or by us and which has no bearing on the immigration status of the respondents. The fact that the Service may, as a matter of policy, decide’ not to take any action against certain aliens pending their pursuit of collateral remedies does not have the effect of continuing the validity of the prior status. A decision of this type is an exercise of prosecutorial discretion. It has no effect on the prior status of the alien. -6b- _ Immigration judges and this Board i judicators not prosecutors, have ae torial discretion. Prosecutorial functions do not lie with the Board nor the immigration judges. Once proceedings have been begun, it is not within the province of the immigration judge (nor this Board on appeal) to review the wisdom of the District Director's action in starting the proceedings, but rather to de- termine whether the deportation charges are sustained by the requisite evidence. Matter of Geronimo, 13 I&N Dec. 680 (BIA 1971), Mat- ter o isi — x: Lennon, Interim Decision 2304 (BIA The remedies being sought b are not relevant to the aeons af oe portability. Their presence in the United States is not required for the pursuit of the petitions for H-3 classification. Furthermore the respondents have now remained in the United States longer than the temporary per- iod for which the H-3 peititons were filed. The petitions were filed to enable the bene- ficiaries to complete a two year training pro- gram. Substantiall SS eae y more than two years have The decisi immi i j i a of the immigration judge is ORDER: The request for nant ta dete q further oral argu- ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily within 86 days from the date of this order or -7b- xtension beyond that time as may be sounaed by the District’ Director; and in ‘: the event of failure so to depart, ry ge spondents shall be deported as provide n the immigration judge's order. Chairman -8b- APPENDIX C UNITED STATES DEPARTMENT OF JUSTICE Immigration and Naturalization Service Western Region San Pedro, California 90731 Office of the Regional Commissioner March 24, 1977 FILE: A20 454 712 - Honolulu IN RE: Yoko Nikkuni APPLICATION FOR ADJUSTMENT OF STATUS TO THAT OF A PERMANENT RESIDENT PURSUANT TO SECTION 245 OF THE IMMIGRATION ACT, AS AMENDED IN BEHALF OF APPLICANT: David Carliner Attorney at Law 931 Investment Building 1511 K Street, N.W. Washington, D.C. 20005 This case is before the Regional Commissioner on certification pursuant to 8 CFR 103.4. The District Director approved the applica- tion by concluding the applicant is exempt from labor certification requirements of section 212(a) (14) of the Immigration and Nationality Act. The applicat is a 32-year-old married female, native and citizen of Japan, who was admitted to the United States on November 30, 1973 as a visitor for pleasure. She was authorized extensions of her temporary stay -lc- to May 29, 1974. After her temporary stay expired she applied for permanent resident status by claiming to be a person who will perform missionary activities for the Uni- fication Church, and indicated the "blanket certification" provision applied in her case. The District Director, in approving the application, concluded the applicant's relationship with the church, her testimony, and statements submitted with the applica- tion indicate she has had sufficient train- ing that qualifies her to engage full-time in furthering the cause of her religion. To establish the bona fides of the appli- cant's claim to labor certification exemption, and as mentioned in the District Director's decision, the applicant submitted: l. A letter from the Unification Church Headquarters in Washington, D.C., requesting on May 8, 1974 that the applicant be given an extension of her temporary stay for six additional months in order to complete a program of study in preparation for missionary assign- ment abroad. 2. On June 18, 1974, a letter from the Uni- fication Church Headquarters in Washing- ton, D.C., indicating the applicant had been selected to work with members on a team basis, to help coordinate team acti- vities. 3. A letter from the State Director of the Unification Church of Hawaii attesting the applicant has been a member of the -2c- Unification Church since 1965 and has been in missionary traini .ann y ng since 4. A statement of the applicant att to her qualifications. She eeaaee "thet she speaks English, has knowledge of the "Divine Principle", a strong desire to help others, and to the satisfaction of three elders of the church she has + 5 peetemma a strong relationship with Other than the aforementioned, the record does not contain any evidence of ordination licenses, diplomas or certificates to estab- lish any training or qualifying background. Schedule A, 29 CFR 60, consists of three categories of employment for which the Secretary of Labor has issued blanket certi- fication under section 212(a) (14) of the Act. Part 60.7, Group III, states: (a) Any person of any religious denomina- tion whose regular profession or occupation is to conduct religious services, which he is authorized by his denomination to perform, and who is seek- ing admission to the United States in order to engage principally in such work. (b) Any person of any religious denomination having a religious commitment, such as a Monk, Nun, Brother, Missionary, and others, who is seeking admission to the United States to perform the duties cre- quired of him by virtue of such commit- ment. -3c- (c) Any other person seeking admission to the United States to perform duties related to the nonprofit operation of a religious organization (1) if the duties which he will perform involve special skills, training and experi- ence which the alien possesses and which are related to the religious objectives of the organization and (2) if he intends to be engaged princi- pally (more than 50% of his working time) in such duties. Examples of persons coming within this subgroup are cantors and translators of religious tracts or texts who have the special capability of conveying through the translation the spiritual message to which such tracts or texts are directed and who will be engaged in such endeavors. An operation may be considered nonprofit for purposes of Group III if the receipts from the operation will be used exclusive-~ ly in furtherance of philanthropic or religious purposes of the organization. The District Director judged the applicant is qualified under paragraph (c) of the regula- tion and implied in his decision that she is qualified also under paragraph (b) of the regulation as a missionary. Therefore, we shall consider both paragraphs in our deci- sion. Paragraph (b) of the regulation has grouped the term "missionary" with "Monk", "Nun" and "Brother," and by so doing it will be consid- ered that all such persons within the group possess similar ecclesiastical levels of -4c- responsibilities and duties. In Christian- ity, this group of people, as defined, have withdrawn from the world for religious rea- ae — live according to a particular e under vows of vert c obedience, Sautiihe tenis’ ite oe ae church. Black's Law Dictionary defines missionary", in church parlance, as a com- mited person who teaches the principles of Christianity, cares for the afflicted and supplies the needy. Missionaries are teachers who are sent to heathen countries to Christianize, Civilize and educate the natives (Appeal of Domestic and Foreign Missionary Society, 30 Pa. 425, 435). It is the spreading of religious d i among nonbelievers. . octrines In order to qualify under paragra the regulation, we hold that po 1 Bog must meet its definition. On the basis of evidence submitted the applicant has estab- lished that she is a devoted and well-versed member of her church, but falls short of the requisites needed to qualify as a missionary for the purposes of 29 CFR 60.7, Group III(b). The applicant has stated that she has - ied for a number of years to gain cod 90 oe of the "Divine Principle," which is the Uni- fication Church's book of interpretation of the Bible, and the doctrine of the movement In researching reliable published documents in order to gain insight into the Unification Church, we have learned that this organization is part of the "Holy Sprit Association for the Unification of World Christianity." Each convert or disciple is infused with the Divine Principle” and is taught its basic -5c- beliefs, as was the applicant. This move- ment is basically Christian and is similar to other Protestant groups who in the past were started in an attempt to unite all Christians. This is denoted even within the name of this church. The work to be done by the applicant is the same required for all members of this denomination, and is not basically different than what is expected and taught by other Protestant faiths. In studying this definition, it is realized that a missionary for any Chris- tian denomination in the United States can only be considered simply as "proselytism," since new church members basically come from other Christian sects within the United States and not from nonbelievers. Chris- tianity is the dominant religion in the United States. In performing duties general- ly defined for a missionary, the applicant would have to be a person that labors to spread the Gospel, especially among a neglected population (In re McCormick, 206 N.Y. 99 N.E. 177). We cannot conscien- tiously consider the United States as a neglected population, religiously speaking. Title 29 CFR 60.2(a)(1) states that blanket labor certification can be issued for the category in question only if there are not sufficient workers who are able, willing, qualified and available for the position. This religious cult claims to have well over 30,000 followers in the United States, all of whom have knowledge of the "Divine Principle." The same can be said of Protestants who have knowledge of the Bible. It is a matter of record that Unification Church missionaries openly proselytize in public places. They also use a lecture, a study club, a rap ~6c- session or even an offer of employment an opening wedge for schnaies estmaste Every member is expected to work at producing converts and money for the sect. It is conclud- ed that all members of the Unification Church can perform the same duties as the applicant. Consequently we hold the applicant is not a missionary within the defines discussed above re igh aay does not qualify for exemp- no abor certification un 29 CFR 60.7, Group III(b). Never nets Paragraph (c) of the regulation remain resolved. This paragraph, as celessia a stated, concerns itself basically with the duties to be performed by the applicant, which involve special skills, training and experience. In the Matter of Blaich, Int. Dec. No. 23 it was held that to meet the criteria Pt blanket certification," it must be estab- lished that the duties to be performed involve special skills, training and experi- ence which are related to the religious objec- tives lt ... organization; that the alien possess ese skills, training and experi ; and that these duties will panel ae note a half of the applicant's working time. Again we go to the record in search of evi- dence to establish the applicant's commitment, religious and secular duties that would quali- fy her for the status she seeks. In the Matter of Blaich, Supra, the applicant was eminently qualified as a religious worker which he estab- lished through his years of study in religious universities and a teacher's college as well as a conventional university. His application was approved because the record in his case overwhelmingly indicated an outstanding -7c- background of formal training, as well as his moral and religious qualifications. In the instant case, the applicant does not have such an eminent background. To the contrary, evidence submitted with the application consists only of letters that claim she has been a mem- ber of the Unification Church since 1965 and ha@ been selected to work with members of the congregation on a team basis because she has knowledge of the "Divine Principle" as well as a desire to help people. To consider the applicant as a qualified religious worker for the purpose of “blanket labor certification" would mean that any knowledgeable active mem- ber of any congregation may be considered like- wise. We hold that an applicant to gualify for "blanket certification" as a religious worker must be more than just a devoted member of the church who diligently follows and practices its religious teachings, as indicated in this case. A religious worker for immigration purposes is considered here as a professional who is dis- tinguished or unique among the other religious workers of the church and possesses a back- ground similar to that in the Matter of Blaich, supra. The applicant in this Case does not meet that criteria. She does not have the educa- tional background, licenses, diplomas or certification of training to place her in a category reserved for religious workers, such as cantors or translators of religious tracts or texts as stated in paragraph (c) of the regu- lation. This regulation never was intended to provide "blanket certification" for all reli- gious people who are knowledgeable and actively participating in its church program, unless they have a similar background as stated in the Matter of Blaich, supra. -Sc- The entire record in this case has been carefully reviewed and considered. We have noticed, incidentally, that the appli- cant, in coming to the United States entered for the purpose of completing a program of missionary work and study. On May 23, 1974, she applied for an additional extension of her temporary stay as a visi- tor for that purpose. However, the appli- cation was denied on the basis that she had failed to establish that the purpose for which she was admitted as a nonimmigrant had not been accomplished. Aliens who seek to enter the United States to perform reli- gious duties, as in this case, are considered to be coming to perform skilled or unskilled labor, and therefore, must obtain labor certi- fication. Even though the regulation states that “blanket certification" as been issued, no provision is made for those training for an occupation within one of the three cate- gories of Schedule A, 29 CFR 60.7, Group III (a), (b) or (c). On the basis of the record, it is concluded that pursuant to 8 CFR 204.2(e) (4) the applicant cannot be considered as having obtained a certification under section 212(a) (14) of the Act, inasmuch as it has heretofore been deter- mined she is not qualified for religious worker classification. The review of the record fails to establish any indication the applicant is entitled to any other immigrant classification or is otherwise exempt the presentation of labor certification. The applicant has not submitted a labor certi- fication and is subject to the requirement. Therefore, she is ineligible under 8 CFR 245.1 (e) for adjustment of status as a nonpreference immigrant. In addition, by failing to comply -9c- with the labor certification requirement she has not acquired a priority date for allocation of immigrant visa, and accord- ingly, has not established that an immi- grant visa is immediately available as required under section 245 of the Act. The District Director's decision will be re- versed and the application denied. ORDER: IT IS ORDERED that the District Director's approval decision be reversed and the application denied. /S/ Ed O'Connor REGIONAL COMMISSIONER WESTERN REGION -10c- APPENDIX D UNITED STATES DEPARTMENT OF JUSTICE Immigration and Naturalization Service 20 West Broadway New York, New York 10007 Refer to this File No. NYC-N 51672 (NIU) Date: Nov. 30, 1976 Holy Spirit Association for the Unification of World Christianity 4 West 43rd Street New York, New York 10036 Att: Neil Albert Stoney DECISION Upon consideration, it is ordered that your Petition to Classify Nonimmigrant as Tempo- rary Worker or Trainee be denied for the following reasons: The petition filed on behalf of the Holy Spirit Association for the Unification of World Christianity of 4 West 43rd Street, New York, New York is to classify 170 Bene- ficiaries as H-3 trainees. The Petition states that the petitioner is an evangelical church, with no formal employees, but with 7,000 full time members. The gross annual income for 1975 was $8,620,342.00 which included donations from the Unification Church of New York but does not indicate all field income. The present occupa- tion of the 170 beneficiaries is listed as "Missionary". During the proposed 5 months -ld- of training they are to receive no salary but will receive room-board and personal expenses valued at $30 to $35 weekly. The purpose of the training as stated is to develop missionaries, lay teachers, and group leaders for the "Holy Spirit Associa- tion for the Unification of World Christian- ity" to serve in their respective countries following advanced educational »rograms, prac- ticums and field experience in the United States". As stated in the petition, "The training will include both classroom instruc- tion, practicums within the training institu- tion, on-the-field experience with close super- vision, review and critique of United States field experience, advanced educational study, and formal training and orientation for Inter- national One World Crusade Team, with specific ecumenical application of experience and in- doctrination acquired in training program in the United States." The petition also gives a breakdown of the time to be spent in the various phases of the training, which in- clude lectures in theology, philosophy, human history, communications, public speaking, field experience and on the job training. Section 101 (a) (15) (H) (iii) of the Immigra- tion and Nationality Act defines an H-3 Trainee as an "alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States as a trainee". Part 214.2(h) (4) (i) of Title 8 of the Code of Federal Reg- ulations states, "In addition to purely in- dustrial establishments, an individual, organization, firm, or other trainer may peti- tion for nonimmigrant trainees on form I-129B for the purpose of giving instruction or -2da- training in agriculture, commerce, finance, government, transportation and the profes- sions." The occupation of the beneficiaries is listed as "Missionary". Volume 1 Definition of Titles, third edition 1965 Page 135, published by the Department of Labor defines missionary as one who "carries religious message to lands and peoples not of own faith to win converts and establish native church. Provides educa- tional, nursing and other services". While the program outlined in the petition may pro- vide some training related to missionary work in terms of carrying the religious message of the "Holy Spirit Association for the Unifica- tion of World Christianity" and training in areas of proselytizing and winning converts to that organization, while not providing training in education, medical, nursing or other service aspects commonly associated with the work of a "missionary" is indica- tive that the mission of the beneficiaries will be to win converts only, without provid- ing any apparent benefits to those they wish to convert. The summary of the training program states, "No trainee will engage in any productive em- ployment in the sense of creating, manufac- turing, selling or distributing any market- able products or performing marketable ser- vices for consumers or other users". While this statement carefully omits aspects of fund raising activities through solicitation from door to door, on street corners and in public places, it does not, on the other hand, State that it will not be part of the program. Since this has been an important part of the previous activities of other young people -3d- connected with the “Holy Spirit Association for the Unification of World Christianity," it is not unreasonable to expect this activ- ity to continue. It is a matter of record that the attorney for the petitioner, in oral argument on previous petitions for H-3 trainees by the same petitioner, admitted that the beneficiaries had participated in fund raising activities but contended they could not be considered productive employ- ment, This contention does not consider that the use of time by the beneficiaries to pro- duce monetary benefits for the petitioner can be defined as productive employment in the same manner that a professional fund raiser is being productive when he produces monetary gains for his employer. When section 101(a) (15) (H) (iii) of the Immi- gration and Nationality Act covering the H-3 Industrial Trainee was added to the Act, it was designed to accomplish the training of alien nonimmigrants in order that they could utilize the benefits of that training in a foreign country. The intent here was for the utilization of this training for the benefit of the trainee and the country of which he was a national. When the Act was revised on April 7, 1970 to broaden the training to en- compass training in agriculture, commerce, finance, government, transportation and the professions the original intent for the util- ization of such training was not changed. The training program as outlined in the instant petition does not conform to this original and current intent of the H-3 trainee in that there are no benefits to be derived from this training except those benefits that would be derived by the "Holy Spirit Association for the Unification of World Christianity”. -4da- When the Immigration and Nationality A amended by the 9lst Congress in 1970, — amendment deleted the word "Industrial" where it appeared in section 101 (a) (15) (H) (iii) of the Act so that the clause would not be lim- ited to an "Industrial" trainee but would broaden the H-3 trainee designation to permit the admission of a trainee in agriculture, commerce, finance, government, transportation and the professions. Since the beneficiaries in the instant petition do not fall within the categories of agriculture, commerce, finance, government or transportation we must assume that the proposed training would pre in a "Profession". , 2 sealieaee In the Matter of Shin (11 I & N Dec. 686) i was found that “since Profession as Gaiteat te section 101(a) (32) of the Immigration and Na- tionality Act as amended by P.L. 89-236 con- templates knowledge or learning - not merely skill of - an advanced type in given field gained by a prolonged course of specialized instruction and study of at least a bacca- laureate level, which is a realistic prereq.:- site to entry into the particular field of en- deavor". In the instant petition no evidence has been submitted to show that the beneficiaries have attained knowledge or learning - not merely skill ’ of an advanced type in the "mission- ary" field or related religious studies gained by prolonged course of specialized in- struction and study of at least a baccalaur- eate level, which is the realistic prerequi- Site to entry as an H-3 trainee into the mis- Sionary field of endeavor. You have failed to establish that the benefic- -5d- jaries will not be engaged in productive em- ployment. You have failed to establish that the beneficiaries will not be engaged in pro- ductive employment. You have failed to estab- lish that the proposed training will be of benefit to anyone except the "Holy Spirit Asso- ciation for the Unification of World Christian- ity". You have failed to establish that the beneficiaries are bona fide H-3 trainees as de- fined in 101(a) (15) (H) (iii) of the Immigration and Nationality Act and part 214.2(h) (4) (i) of Title 8 of the Code of Federal Regulations. -6d- APPENDIX E UNITED STATES DEPARTMENT OF JUSTICE Immigration and Naturalization Service File: A20 351 136 February 25, 1977 In the Matter of ) GERHART WIESINGER . IN DEPORTATION Respondent ) PROCEEDINGS CHARGE: I&N ACT, 1952; Section 241 (a) (2), remained longer LODGES : None APPLICATION: Adjustment of Status, Section 245, nonpreference Voluntary De arture IN BEHALF OF RESPONDENT: IN BEHALF OF SERVICE: David Carliner Arnie R. Brassart Suite 931 Trial Attorney 151l K Street, N.W. Denver, Colorado Washington, D.C. 20005 DECISION OF THE IMMIGRATION JUDGE The respondent is a 24 year old single male alien, a native and citizen of Austria who entered the United States on or about January 22, 1973 at New York, New York, as a visitor for pleasure authorized to stay in the United States until February 6, 1976. The present proceedings were initiated by the Service under the provisions of Section 242 of the Immigration and Nationality Act (8 USC 1252) by the issuance of an Order to Show Cause dated April 16, 1976 alleging the above facts. -le- It further alleges that he has remained in the United States beyond February 6, 1976 without authority of the Service and charges deportability under Section 24l(a)(2) as one who, after admission as a nonimmigrant, has remained in the United States for a longer time than permitted. At a deportation hearing held before me April 27, 1976, respondent through counsel, admitted the allegations and charge in the Order to Show Cause conceding deportability. The Order to Show Cause was then entered into evidence as Exhibit No. l. Respondent was advised that he was eli- gible to apply for administrative relief of voluntary departure and adjustment of status under Section 245 if a visa petition or labor certification had been approved in his behalf. Respondent submitted his appli- cation for status as permanent resident, Form I-485, and supporting documents to apply for adjustment of status to permanent resident under the provisions of Section 245 of said Act (8 USC 1255). He claims that a nonprefer- ence visa i* available to him because as a missionary he qualifies for a labor certificate under the precertification provisions of Sched- ule A, Group III(b) of 29 CFR 60.7. His appli- cation, with supporting documents was received into evidence without objection as Group Exhibit No. 2. In Group Exhibit No. 2, Item 21, Form I-485, respondent states he will seek gainful employ- ment in the United States as a missionary. Form MA 7-50A, Statement of Qualification of Alien, a supporting document within Group Exhibit No. 2, at Item 18 therein shows that -2e- respondent is employed by the Unification Church of America as a missionary listing his duties as follows: "Nightly presentation of the Divine Principle, helps to conduct church activities, including weekly workshops, Sunday School and witnessing activi- ties, counsels members in regards to religious and personal problems. Help to direct and coordinate youth activi- ties. Organizes and conducts weekly prayer meetings and worship services, counsel prospective members in prepara- tion for church membership. Witness to attract others to the church, attends training classes to learn to teach the Divine Principle, attends leader- ship training courses, and attends Bible study classes." Also included as a supporting document in Group Exhibit No. 2 is a letter addressed to respondent on letterhead of The Unifica- tion Church dated June 18, 1974, extending congratulations on his selection to serve in the mission field. _ Exhibit No. 3 is a letter from the Uni- fication Church, United States Headquarters in New York dated March 17, 1976 addressed to the Service Office in Denver, Colorado. In the first paragraph it is stated that the church authorities deem him qualified as a missionary of the Unification Church. Succeeding paragraphs of this letter detail his development within the church and their judgment of his capabilities. The last para- graph states that he was appointed State -3e- Director of the Unification Church of Colo- rado in October 1975, and has maintained that position since. Group Exhibit No. 4 is Notice of Decision Denying Application for Status as Permanent Resident, Form I-291. No weight is given this exhibit as 8 CFR 242.17 allows such relief as sought. Exhibit No. 5 shows that the Holy Spirit Association for the Unification 6f World Christianity is incorporated under the General Nonprofit Corporation law of the State of Cal- ifornia. Exhibit No. 6 is a book titled Divine Principles, which respondent has testified contains the revelations and teachings of Reverend Moon and contains basic doctrines of the Unification Church. Exhibit No. 7 is a book titled Unification Thought. Respondent has testified that this book and Divine Principles form the basic pub- lished doctrines and teachings of Rev. Moon and ailee with the Holy Bible, form the basic literature of the Unification Church. Exhibit No. 8 is a certification that respondent has successfully completed the Missionary Training Program of the Unifica- tion Church of America at Belvedere Internation- al Training Center, Tarrytown, New York dated October 10, 1974. Exhibit No. 9 is a schedule of the Mission- ary Training Program of the Unification Church covering sixteen weeks at Barrytown, New York which respondent testified he completec. -4e- Section 245 of the Act provides: ‘- (a) The status of an alien, other than an alien crewman, who was inspec- ted and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien law- fully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is approved. The evidence establishes that respondent was inspected and admitted into the United States and has made his application for such an adjustment (Group Exhibit No. 2), and is eligible to receive an immigrant visa and is admissible to the United States for permanent residence provided an immigrant visa is immed- iately available to him at the time his appli- cation is approved. The February 1977 Bulletin issued by the Department of State indicates that a nonpreference immigrant visa is avail- able to eligible immigrants. Respondent claims he is eligible to receive a nonpreference immigrant visa because he is seeking admission into the United States as a missionary (Section 303(a)(8) 8 USC 1153(a) (8); and because, he is seeking admission into the United States as a missionary, he has an alien labor certificate issued to him by the Secretary of Labor discharging his duty under the -5e- provisions of Section 212(a) (14) (8 USC 1182(a) (14) of said Act who precertified by regulation aliens in respondent's cate- gory. Schedule A, Group III(b) states: "Any person of any religious denomina- tion having a religious commitment, such as a Monk, Nun, Brother, Missionary, and others, who is seeking admission into the United States to perform the duties required of him by virtue of such commit- ment." Such precertification was recognized by the Board in the unreported case Knut H. Friess, A20 372 482, Buffalo, (BIA-1976) in which the Board states: "Aliens who seek to enter the United States to perform religious duties are considered to be coming to perform skilled or unskilled labor and therefore must obtain a labor certification, al- though they are precertified by regula- tion. 29 C.E.R.60.2(a) (1) and 60.7, Schedule A, Group III(a), (b),and (c). The evidence of record establishes that respondent is a person belonging to a religious denomination (Exhibits 2, 3, 5, 6, and 7). Religion is defined in the American Heritage Dictionary of the English Language, New College Edition, 1969, as follows: "religion. i. The expression of man's belief in and reverance for a superhuman power recognized as the creator and gov- ernor of the universe. 2. Any particular -6e- integrated system of this ex : the Hindu religion. 3. one neseeunss or emotional attitude of one who recog- nizes the existence of a superhuman power or powers. 4. Any objective attended to or pursued with zeal or conscientious devotion: A collector might make a reli- gion of his hobby. 5. Obsolete. Sacred rites or practices. (Middle English religion, from Old French religion, from Latin religion, bond between man and the gods, perhaps from religare, to bind back: re- back + Ligare, to bind, fasten.) The evidence of record establish has a religious commitment ienthits 2, 3 8 and 9) and his testimony describing his work and a typical day's activities beginning at 6:30 a.m. with prayer services continuing through the day with lectures, to give street preaching, counseling, and ending around 10:30 p.m. with prayer services and singing. Based on personal observation, respondent has con- vinced me that he is deeply and sincerely committed to serve his denomination. The word missionary is defined in the abo mentioned dictionary as follows: ae missionary. 1. One who is sent on a mission; especially a person sent to do religious or charitable work in some territory or foreign country. 2. A propagandist - - - adj. 1. Of or per- taining to missions or missionaries. 2. Engaged in the activities of a mis- sion or missionary. 3. Tending to propagandize or use insistent persua- sion: missionary fe _vor. -7e- However, Exhibit No. 3, dated Marcy 17, 1976, submitted to the Service by his employer establishes that respondent is employed as a State Director of the Unifi- cation Church of Colorado since October, 1975. A director is defined in the mentioned dic- tionary as follows: director. 1. One who supervises, controls, or managers. 2. A mem- ber of a board of persons who con- trol or govern the affairs of an institution or corporation. 3a. One whose profession is the super- vision and instruction of the actors in a dramatic production. b. The conductor of an orchestra or chorus. The evidence establishes that respondent is empoyed as a State Director in a managerial capacity rather than as a missionary. The text and examples cited in Schedule A, Part III(b), 29 CFR 60.7, tract with a class of aliens whose commitment appears to be devoted in an area of service. Such text and exam~ ples do not tract with a supervisor, manager, or director. Under the provisions of Section 291 of said Act (8 USC 1361) the burden of proof is placed upon the respondent to establish that he is not subject to exclusion under any provi- sion of the Act. The provisions of Section 212(a) (14)0f said Act excludes aliens from admission into the United States unless the Secretary of Labor has issued a labor certifi- cate in the discharge of his duties. Conse- quently, as respondent has failed to establish that he has such alien labor certification under provisions of Schedule A, Part III(b), f 29 CFR 60.7, I find that ° respondent i Steen aker under the provisions of ethien a) (14) of said Act and his application for stat y ot us aS a permanent resident must be Respondent conceded de portability and oe there remain no other issues of has ae aw, I find that deportability has been established by clea vocal evidence. r, convincing and unequi- Respondent is eligible for vol unt mee, 7d nt Ree of deportation and ww A w granted. He has chos — to Austria if ordered deported ion te nited States. Accordingly, the followin orders are entered. ? ORDER: That the respondent’ Ss appli i for adjustment of status to that e's tae permanent resident is denied. IT IS FURTHER ORDERED that i n lie an order of deportation, respondent — - granted voluntary departure without expense pp ap Magrnine on or before April 23 any extension beyond such date : = gp by + Phage Director, ont — conditions as cor ahekt aaa the District Direc- iT IS FURTHER ORDERED that if fails to depart when and as aia a privilege of voluntary departure shall be withdrawn without further notice or proceed- ings and the following order shall thereupon become immediately effective: respondent shall be deported from the United States to Austria on the charge i i io ge(s) containe in the Order /s/ JESSE M. SELLERS February 25, 1977 -9e- APPENDIX F UNITED STATES DEPARTMENT OF JUSTICE Immigration and Naturalization Service 333 Mt. Elliott Street Detroit, Michigan 48207 Satoe Nake Refer to this File No.: 19450 Exeter A20 659 824 Detroit, MI 48203 Date: Mar 21, 1978 Telephone: (313) 226-3267 DECISION ON APPLICATION FOR STATUS AS PERMANENT RESIDENT Upon consideration, it is ordered that your application for status as a permanent resi- dent be denied for the following reasons: Your application for adjustment of status to lawful permanent resident has been given careful consideration. The application is based upon a claimed exemption from labor cer- tification as a missionary. Title 79, United States Code of Federal Regulations Section 60.7 does provide a blanket labor certifica- tion under Group III to those persons having a religious commitment as a missionary. We are unable to conclude based upon evi- dence thus far presented and the ambiguous description of job duties set forth on the MA 7-50A forms submitted with the application, that the actual activities in which you would be engaged are in any way differentiated from the normal range of activities associated with the rank and file membership of the Unification -lf- Church. Your description of the responsibil- ities and duties of a missionary with the Uni- fication Church is vague and indeed might be associated with any person who is active with and supportive of his church. Therefore, since you have not distinguished yourself in any way from the rank and file membership of the church, you do not fall with- in the ambit of 29 C.F.R. 60.7 and your appli- cation is denied since it is not supported by a valid labor certification. You are granted to March 31, 1978 to effect your departure from the United States volun- tarily, without the institution of proceed- ings to enforce your departure. You must no- tify this office before that date on the en- closed card (Form I-438) of the arrangements you have made to depart from the United States. At the time of your departure from the United States, do not fail to surrender Form I-94, Arrival-Departure Record, in accordance with the instructions on that form. If you fail to depart from the United States by the date specified, proceedings will be instituted to enforce your departure. You may renew your application for status as a perma- nent resident during such proceedings. CERTIFIED cc: David Carliner, Attorney Suite 931 Investment Bldg. 1511 K St., N.W. Washington, D.C. 20005 Sincerely yours, /S/ Lawrence Paretto Acting District Director Enclosure I-438 =2fa --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1079%3A1. Public record. Not legal advice.