United States District Court, E.D. Missouri, Eastern Division
The Redeemed Christian Church of God Jesus House for All Nations, Plaintiff,
Citizenship and Immigration Services, Respondent.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This matter is before the Court on the parties' cross motions for summary judgment. The motions are ripe for disposition. For the following reasons, the Court will grant defendant's motion and deny plaintiff's motion.
Plaintiff, a member church of The Redeemed Christian Church of God Jesus House for All Nations, filed an I-360 Petition for Amerasian, Widow(er), or Special Worker for a special immigrant religious worker visa on behalf of Olufemi Omotayo to serve as a minister for the church in St. Louis, Missouri. The petition was initially approved and later revoked. Plaintiff seeks review under the Administrative Procedure Act (APA) of the revocation of the I-360 petition. The director determined, and the Administrative Appeals Office (AAO) agreed, that the plaintiff had failed to pass a compliance review and had not submitted credible, consistent evidence regarding Omotayo's compensation. Plaintiff filed a declaratory judgment in this Court alleging the AAO's finding that plaintiff failed the compliance review and revocation of the petition was erroneous. Further, plaintiff alleges that it presented sufficient evidence in rebuttal to the allegations for revocation and for approval of the petition. Defendant, the United States Citizenship and Immigration Services (USCIS), filed a motion for summary judgment. Plaintiff filed its response to defendant's motion and filed its own motion for summary judgment, to which defendant filed a response. Each argues the record before the AAO supports its position.
II. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The scope of judicial review under the APA is limited. Voyageurs Nat. Park Ass'n v. Norton, 381 F.3d 759, 763 (8th Cir. 2004). "[J]udicial review under the APA is limited to the administrative record that was before the agency when it made its decision." Id. at 766. The court will uphold the agency decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Voyageurs, 381 F.3d at 763. The standard of review requires that the court give "agency decisions a high degree of deference." Voyageurs, 381 F.3d at 763. The reviewing court considers "whether the decision was based on consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). The reviewing court "is not empowered to substitute its judgment for that of the agency." Id. "If an agency's determination is supportable on any rational basis, the court must uphold it." Voyageurs, 381 F.3d at 763.
The I-360 Petition: April 15, 2002
Olufemi Omotayo is a native and citizen of Nigeria. He entered the United States on June 12, 2001, with a B-2 nonimmigrant status. On June 5, 2002, plaintiff filed an I-129, Petition for Nonimmigrant Worker on behalf of Omotayo. USCIS granted that petition and, on December 5, 2002, Omotayo's status changed to R-1 nonimmigrant religious worker. That status remained valid from December 5, 2002 to December 5, 2005.
On April 15, 2002, plaintiff filed an I-360 Petition for Amerasian, Widow(er), or Special Worker on Omotayo's behalf seeking classification as a special immigrant religious worker. Olufemi Akano, the church's Administrator/Secretary, submitted a letter to USCIS dated March 25, 2002 describing Omotayo's intended employment. In that letter, he indicated that Omotayo would fill the position of Pastor-in-Charge at the St. Louis church and that Omotayo would be paid $28, 000 annually exclusive of benefits, which included medical coverage, full accommodations, and use of a church vehicle.
On January 9, 2003, USCIS sent plaintiff a request for evidence to establish eligibility for the I-360 immigrant visa including evidence of plaintiff's ability to pay the intended salary. The request noted that Omotayo had entered the United States on a B-2 visitor visa and was not eligible to work. USCIS requested evidence to show that Omotayo had been performing ministerial duties continuously and full-time and was compensated from April 15, 2000 through April 15, 2002. Plaintiff responded on February 6, 2003. On March 12, 2003, USCIS approved the I-360 petition.
Notice of Intent To Revoke: August 29, 2003
On August 29, 2003, USCIS issued a notice of intent to revoke to plaintiff. USCIS indicated that several petitions filed by the Redeemed Christian Church of God had been denied because the beneficiaries were found not to be religious workers. Because Omotayo belonged to the same church, USCIS had concerns that he was not eligible for special immigrant religious worker status. USCIS gave plaintiff fifteen days to offer rebuttal evidence. USCIS revoked the I-360 on December 12, 2003 because plaintiff did not respond to the agency's request for evidence.
Reinstatement of the I-360: April 27, 2004
Plaintiff filed a notice of appeal on January 9, 2004, providing proof that it had submitted the requested evidence to the revocation notice in a timely manner. USCIS reinstated the I-360 on April 27, 2004. USCIS found that a complete review of the record, as well as plaintiff's supporting documentation, overcame the revocation grounds.
Notice of Intent to Revoke: July 20, 2010
On July 20, 2010, USCIS issued a notice of intent to revoke to plaintiff. USCIS had information from the fraud office in St. Louis that a USCIS fraud officer conducted an on-site inspection visit on Monday, July 13, 2009 of plaintiff's church and found it locked and unoccupied. The officer contacted Omotayo by telephone. Omotayo stated he was on a temporary assignment to start a new church in Dallas, Texas, where he rented an apartment and received a salary of $596 per week. Omotayo informed the officer that the St. Louis church is closed on Mondays but would be open on any other day. On Thursday, July 16, 2009, the officer returned to the church and again found it locked and unoccupied. During the July 16 inspection, the officer spoke with an employee from American Family Insurance, the business next door to the church. The American Family Insurance employee told the officer that (in the officer's words) "no one is at the church location on a daily basis and that every great once in a while they see someone there." Because of the findings from the site inspections, USCIS found that plaintiff had failed the religious worker compliance review.
USCIS gave plaintiff thirty days to respond to the notice of intent to revoke and instructed plaintiff to submit various types of evidence to establish the extent of its regular operations. Among other things, USCIS instructed plaintiff to submit documentation from the Internal Revenue Service (IRS) and Social Security Administration (SSA) showing Omotayo's income from 2004 through 2009, as well as copies of recent pay statements.
Plaintiff filed its response on or about August 17, 2010, and provided copies of tax records, W-2 forms, lease agreements, and church records. Plaintiff also submitted a letter in which it responded to USCIS's claims about the compliance review. In that letter, Akano wrote that the pastor was out to lunch when the officer found the church closed; that the building had a front entrance, which was kept locked except during services; that the building had a back office entrance; and that the church did "not understand their [neighbor's] reasons for making [their] observations." Further, Akano stated that Omotayo worked "as a full time Pastor... and he receives a salary of $31, 939.80 from [plaintiff] and will continue to do so for the foreseeable future." Akano also signed an accompanying employer attestation, indicating that Omotayo "will receive a total salary of $30, 869.8." Neither the letter nor the attestation indicated that Omotayo receives, or will receive, any benefits apart from the salary.
The IRS Form W-2 Wage and Tax Statements (or transcripts thereof) submitted show that the plaintiff paid ...