FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

GABRIEL RUIZ-DIAZ; HYUN SOOK

SONG; CINDY LEE MARSH; PETER

GILLETTE; PABLO SANDOVAL; YURIY

KASYANOV; LELIA TENREYRO-VIANA;EDGARDO GASTON ROMERO

LACUESTA; ROSARIO RAZO ROMERO;YOUN SU NAM; LAND OF MEDICINE;UKRAINIAN AUTOCEPHALOUS

ORTHODOX CHURCH; SEATTLE

MENNONITE CHURCH; SALECK OULD

DAH OULD SIDINE; HAROLD

MICHAEL CARL LAPIAN, No. 11-35580Plaintiffs-Appellants,D.C. No.v. 2:07-cv-01881-RSL

UNITED STATES OF AMERICA; UNITED OPINIONSTATES CITIZENSHIP AND

IMMIGRATION SERVICES; UNITED

STATES DEPARTMENT OF HOMELAND

SECURITY; UNITED STATES

DEPARTMENT OF JUSTICE; JANET

NAPOLITANO, Secretary ofDepartment of Homeland Security;ERIC H. HOLDER Jr., AttorneyGeneral; ALEJANDRO MAYORKAS,Director of Citizenship andImmigration Services,

Defendants-Appellees. Appeal from the United States District Court

for the Western District of WashingtonRobert S. Lasnik, District Judge, Presiding

12165

Argued and SubmittedAugust 27, 2012—Seattle, Washington

Filed October 5, 2012

Before: Mary M. Schroeder and Ronald M. Gould,Circuit Judges, and Jed S. Rakoff,

Senior District Judge.*

Opinion by Judge Schroeder

*The Honorable Jed S. Rakoff, Senior United States District Judge forthe Southern District of New York, sitting by designation.

12166 RUIZ-DIAZ v. UNITED STATES

COUNSEL

Robert Pauw, Seattle, Washington, for plaintiffs-appellantsGabriel Ruiz-Diaz, et al.

Melissa S. Leibman, Department of Justice, Washington, DC,for defendants-appellees Unites States of America, et al.

OPINION

SCHROEDER, Circuit Judge:

Plaintiffs represent a class of non-citizen religious workers,together with the organizations that employ them, who havebeen admitted to this country on five-year special immigrantreligious worker visas. They challenge a Justice Departmentregulation governing the process by which religious workerscan apply for adjustment of status pursuant to 18 U.S.C.§ 1255(a). Under the regulation, 8 C.F.R. § 245.2(a)(2)(i)(B),such employees are among the categories of applicants forlawful permanent resident (“LPR”) status who cannot filetheir visa applications concurrently with the petitions of theirsponsoring employers. The employees must wait for the Citi-zenship and Immigration Service (“USCIS”) to approve theiremployers’ petitions before they can file applications. Theplaintiffs would like to be able to file the employees’ applica-tions concurrently with the petitions of the sponsoring

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employers, as other categories of applicants for LPR status arepermitted to do.

The employment-based immigration visa statute, 8 U.S.C.§ 1153(b), divides applicants for such visas into categories,four of which are important here. The first-preference cate-gory is for “priority” workers, such as professional athletesand professors; the second-preference is for professionals whohold advanced degrees; and the third-preference is for otherskilled and unskilled workers. 8 U.S.C. § 1153(b)(1)-(3). Thefourth-preference category, into which plaintiffs here fall, are“special immigrants.” 8 U.S.C. § 1153(b)(4). This categoryincludes religious workers and other specialized groups, suchas certain physicians and international broadcasters. 8 U.S.C.§ 1101(a)(27).

The regulation at issue here allows concurrent filing foremployees in the first three employment-based immigrationcategories: “the alien beneficiary’s adjustment applicationwill be considered properly filed whether submitted concur-rently with or subsequent to the visa petition, provided that itmeets the filing requirements.” 8 C.F.R. § 245.2(a)(2)(i)(B).The option to file concurrently is not extended to the fourth-preference category, which includes religious workers.

We have seen this case before, when we held that the regu-lation was not contrary to the statute and remanded to the dis-trict court to consider plaintiffs’ remaining contentions. Ruiz-Diaz v. United States, 618 F.3d 1055 (9th Cir. 2010).

On remand, the district court rejected all of the plaintiffs’remaining arguments, and the plaintiffs now raise three ofthem on appeal. They are that the regulation violates the Reli-gious Freedom Restoration Act (“RFRA”), 42 U.S.C.§ 2000bb-1, and the constitutional protections of equal protec-tion and due process. The contentions all stem from frustra-tion with the lag in the agency’s processing of employers’petitions and the resulting delay in plaintiffs’ ability to file

12169RUIZ-DIAZ v. UNITED STATES

their visa applications. If there is no pending visa applicationwhen a plaintiff’s initial five-year visa expires, unlawful pres-ence time begins to accrue, with deleterious immigration con-sequences. Therefore, as we have earlier stated, “Ruiz-Diaz’sreal concern is that USCIS does not process the petition fora special immigrant religious worker visa soon enough.” Ruiz-Diaz, 618 F.3d at 1061.

RELIGIOUS FREEDOM RESTORATION ACT

[1] Plaintiffs’ first contention is that the regulation violatesRFRA because it substantially burdens the exercise of theirreligion. RFRA requires the federal government to show thatit is advancing a compelling interest through the least restric-tive means possible where the government “substantially bur-den[s] a person’s exercise of religion,” even where, as here,the burden results from a rule of general applicability. 42U.S.C. § 2000bb-1. We have held that the governmentimposes a substantial burden “only when individuals areforced to choose between following the tenets of their religionand receiving a governmental benefit or coerced to act con-trary to their religious beliefs by the threat of civil or criminalsanctions.” Navajo Nation v. U.S. Forest Serv., 535 F.3d1058, 1070 (9th Cir. 2008) (en banc) (internal citations omit-ted).

In Navajo Nation, we cited Sherbert v. Verner, 374 U.S.398 (1963), as an example of a forced choice that Congressintended to prevent by passing RFRA. In Sherbert, theSupreme Court found that an agency’s decision to denyunemployment benefits because of a claimant’s religiousobjection to working on Saturday burdened her exercise ofreligion. Under those circumstances, the claimant was forcedto choose between the tenets of her religion—following theprohibition on Saturday work—and receiving a governmentalbenefit—unemployment payments. Id. at 405-06. Also inNavajo Nation we cited Wisconsin v. Yoder, 406 U.S. 205(1972), as an example of the second type of substantial bur-

12170 RUIZ-DIAZ v. UNITED STATES

den on religious exercise RFRA was intended to prevent. InYoder, the Supreme Court held that a state criminal statutethat required parents to send their children to public or privateschool infringed on the religious liberties of Amish parentswhose beliefs did not permit their children to attend highschool. Id. The Supreme Court in Employment Division v.Smith, 494 U.S. 872 (1990), overruled Sherbert and Yoder,and we held in Navajo Nation that by passing RFRA, Con-gress intended to restore those principles and prevent suchburdens on religious exercise in the future. Navajo Nation,535 F.3d at 1067-69.

[2] The fundamental flaw in the plaintiffs’ reliance onRFRA is that the challenged regulation does not affect theirability to practice their religion. They are subject to removalafter five years because their visas have expired, not becausethey are practicing their religion. Their inability to file theirapplications concurrently with their employers’ petitions maywell delay religious workers from adjusting status before theirtemporary visas expire, but it does not prevent them frompracticing their religion. Nor does the delay in their ability tofile visa applications require plaintiffs to give up any tenet oftheir religion to access a government benefit, i.e., LPR status.As the district court observed, “[g]iving up one’s religiouspractices would not improve the chances of obtaining adjust-ment of status or help the alien avoid deportation: in fact,abandoning the religious work on which the alien’s admissionwas premised could preclude the requested relief.” Accord-ingly, the regulation does not impose a substantial burden onplaintiffs’ religious exercise and therefore does not violateRFRA.

EQUAL PROTECTION

Plaintiffs’ second contention is that the regulation violatesEqual Protection principles on the theory that it discriminateson the basis of religion. The regulation, of course, does nottarget any religious group. It affects all members of the

12171RUIZ-DIAZ v. UNITED STATES

fourth-preference visa category who have been admitted onemployment-based visas. See 8 U.S.C. § 1101(a)(27).

[3] Even assuming immigrant religious workers are beingtreated differently from other employment-based visa appli-cants, the difference requires only a rational basis to survivean Equal Protection challenge. See Fiallo v. Bell, 430 U.S.787, 792 (1977); Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)(“In the exercise of its broad power over naturalization andimmigration, Congress regularly makes rules that would beunacceptable if applied to citizens.”). The government has sat-isfied that standard. It has shown that there have been con-cerns about fraud in the religious worker visa program, and asa result, the government has encountered difficulties in deter-mining which applicants are bona fide religious workers. See,e.g., U.S. Department of Homeland Security, U.S. Citizenshipand Immigration Services, Office of Fraud Detection andNational Security, Religious Worker Benefit Fraud Assess-ment Summary (2006); U.S. Government AccountabilityOffice, Immigration Benefits: Additional Controls and aSanctions Strategy Could Enhance DHS’s Ability to ControlBenefit Fraud 4 (2006).

[4] We apply rational basis rather than heightened scrutinybecause we defer to the political branches in the immigrationfield. See Mathews, 426 U.S. at 81 (“Since decisions in[immigration] matters may implicate our relations with for-eign powers, and since a wide variety of classifications mustbe defined in the light of changing political and economic cir-cumstances, such decisions are frequently of a character moreappropriate to either the Legislature or the Executive than tothe Judiciary.”); Ram v. I.N.S., 243 F.3d 510, 517 (9th Cir.2001) (“’Line-drawing’ decisions made by Congress or thePresident in the context of immigration and naturalizationmust be upheld if they are rationally related to a legitimategovernment purpose.”). The district court expressed it wellwhen it concluded:

12172 RUIZ-DIAZ v. UNITED STATES

The bar on concurrent filings is a rational regulatoryattempt to reduce fraud in the religious worker pro-gram. Given the government’s legitimate interest inreducing fraud and the broad deference courts showthe determinations of political branches in the con-text of immigration, the bar on concurrent filingswithstands [Equal Protection] scrutiny.

(footnote omitted).

DUE PROCESS

Plaintiffs’ third contention is that the regulation violatesdue process. This argument also is rooted in the delays theyexperience in having applications processed, delays that oftenmean that their five-year visas have expired before theiremployers’ petitions can be acted upon. Ruiz-Diaz, 618 F.3dat 1062 (“[D]elay is in effect denial.”). Delay may indeed beindicative of a system that is not working effectively. But theregulatory bar against concurrent filings, enacted for validreasons, is not what gives rise to these delays. Rather, thedelays stem from routine processing times.

[5] While the regulation may compound frustration causedby delay, plaintiffs cannot claim that their due process rightshave been violated unless they have some “legitimate claimof entitlement” to have the petitions approved before theirvisas expire. See Board of Regents v. Roth, 408 U.S. 564, 577(1972) (requiring a “legitimate claim of entitlement” to a gov-ernmental benefit for due process analysis). We have alreadyheld that the adjustment of status statute does not confer aright to concurrent filings. See Ruiz-Diaz, 618 F.3d at 1061.In Ruiz-Diaz, we held that the agency reasonably interpretedthe statute to mean that the agency had to approve theemployer’s petition for the visa before it considered the non-citizen’s application. “It is not manifestly contrary to the stat-ute for the agency to accept the applications of alien benefi-ciaries of special immigrant religious worker visas for filing

12173RUIZ-DIAZ v. UNITED STATES

and processing only when [the petitions have beenapproved].” Id. Beyond the statute, the plaintiffs point to noother conceivable source of a claim of entitlement to concur-rent filing or to earlier dispositions.

[6] Plaintiffs’ due process argument further relies on cases,unlike this one, in which individuals had a statutory or consti-tutional right to the governmental benefit at issue. In Ex ParteHull, 312 U.S. 546 (1941), for example, the Supreme Courtstruck down a prison regulation requiring all inmate legaldocuments to be cleared by the parole board. The Court foundthat the regulations prevented prisoners from filing petitionsfor writs of habeas corpus and were thus unconstitutional. Id.at 549. Similarly, in Orantes-Hernandez v. Thornburgh, 919F.2d 549 (9th Cir. 1990), we upheld an injunction requiringan immigration agency to give notice to certain refugees oftheir statutory right to apply for asylum, because the agencyhad impeded the refugees’ ability to apply. Id. at 557. In con-trast, here we have explicitly found that the underlying statutedoes not confer a right of concurrent application to the plain-tiffs. Ruiz-Diaz, 618 F.3d at 1061. Therefore, even if the regu-lation makes it more difficult for plaintiffs to obtainadjustment of status, it does not violate due process as thereis no legitimate statutory or constitutional claim of entitlementto concurrent filings.

In sum, the regulation does not bar religious workers fromapplying for adjustment of status. The regulation has only thepractical effect of making it necessary for religious employersto file visa petitions earlier. There is therefore no violation ofplaintiffs’ due process rights.

AFFIRMED.

12174 RUIZ-DIAZ v. UNITED STATES

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26ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT – 1

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

AT SEATTLE

_________________________________)

GABRIEL RUIZ-DIAZ, et al., )) No. C07-1881RSL

Plaintiffs, ) v. ) ORDER GRANTING DEFENDANTS’

) MOTION FOR SUMMARY JUDGMENTUNITED STATES OF AMERICA, )et al., )

)Defendants. )

_________________________________ )

This matter comes before the Court on “Plaintiffs’ Motion for Summary

Judgment” (Dkt. # 141) and defendants’ “Cross-Motion for Summary Judgment” (Dkt. # 145).

Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court

finds as follows:

BACKGROUND

Plaintiffs represent a class of aliens holding special immigrant religious worker

visas. This type of visa is for foreign ministers and other religious workers and allows them to

stay in the United States for a maximum of five years. When the five-year period expires, the

alien must either depart or seek to adjust his status to that of a lawful permanent resident.

Failure to do one of these two things will make the alien’s presence in the United States

unlawful. If the alien overstays his visa by 180 days or more without having an adjustment of

status application pending before the United States Citizenship and Immigration Service

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1 If an alien attempts to file a Form I-485 before obtaining approval of the employer’s visapetition, CIS rejects the application.

ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT – 2

(“CIS”), he will be subject to significant statutory penalties.

Adjusting one’s status to that of a lawful permanent resident is a two-step process.

The organization that employs the alien must file a Form I-360 visa petition on behalf of the

alien. In addition, the alien must file a Form I-485 application for adjustment of status. The

order in which these filings may be made has changed over the years and now depends on the

category of alien at issue. Prior to 1991, all aliens seeking adjustment of status were permitted

to file their application for adjustment of status concurrently with their employer’s visa petition.

Between 1991 and 2002, the agency changed the process, such that the employer’s visa petition

had to be approved by the agency before the alien could submit an application for adjustment of

status. In an effort to make the process more efficient and to improve customer service, the

governing regulations were again changed in 2002 to allow alien workers in the first three

employment-based preference categories to file their visa petitions and adjustment of status

applications concurrently. 8 C.F.R. § 245.2(a)(2)(i)(B). Special immigrant visa holders,

including religious workers, were, and still are, excluded from concurrent filing. Thus, members

of the plaintiff class may file a Form I-485 application to adjust status only after CIS has

approved their employers’ Form I-360 petition.

The date on which an alien is eligible to apply for adjustment of status is not

immaterial. Failure to have an application pending before CIS1 before the original five-year visa

period expires triggers the accrual of unlawful presence time. Every day of unlawful presence

reduces the 180-day grace period Congress provided for this class of alien and increases the

possibility that the alien or his family members will be detained and/or deported for being out of

status. If CIS delays processing the employer’s visa petition long enough, the religious worker

must depart from the United States and may lose the opportunity to file an application for

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2 Plaintiffs’ claim that the policy against concurrent filing violates the governing statute, 8U.S.C. § 1255(a), was dismissed on appeal. Ruiz-Diaz v. U.S., 618 F.3d 1055 (9th Cir. 2010).

ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT – 3

adjustment of status. 8 C.F.R. § 245.1(a) (right to apply for adjustment of status is limited to

aliens who are physically present in the United States). If the alien remains in the United States

for more than 180-days after his original visa expires without being able to submit an application

to become a lawful permanent resident, he will be statutorily barred from ever seeking

adjustment of status and will be excluded from the United States for a period of three or ten

years.

Plaintiffs allege that CIS’s policy of rejecting I-485 applications for adjustment of

status from religious workers unless and until the I-360 petition filed on their behalf has been

approved discriminates against certain classes of immigrants based on their religion and violates

the Religious Freedom Restoration Act (“RFRA”), the First Amendment, the Due Process

clause, and the Equal Protection clause.2 Plaintiffs seek summary judgment on their RFRA and

Equal Protection claims, while defendants seek summary judgment on all of the remaining

claims.

DISCUSSION

A. RELIGIOUS FREEDOM RESTORATION ACT (“RFRA”), 42 U.S.C. § 2000bb-1

The Religious Freedom Restoration Act provides that the government “shall not

substantially burden a person’s exercise of religion” unless it demonstrates that the regulation

furthers a compelling governmental interest and is the least restrictive means of furthering that

interest. 42 U.S.C. § 2000bb-1(a)-(b). The fact that the burden on religion results from a rule of

general applicability will not save the regulation. Plaintiffs maintain that CIS’ policy of refusing

to accept concurrently-filed applications from religious workers substantially burdens their

exercise of religion.

“Under RFRA, a ‘substantial burden’ is imposed only when individuals are forced

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26ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT – 4

to choose between following the tenets of their religion and receiving a government benefit

(Sherbert [v. Verner, 374 U.S. 398 (1963)]) or coerced to act contrary to their religious beliefs

by the threat of civil or criminal sanctions ([Wisconsin v. Yoder, 406 U.S. 205 (1972)].” Navajo

Nation v. U.S. Forest Serv., 535 F.3d 1058, 1069-70 (9th Cir. 2008). Plaintiffs argue that the

rule against concurrent filing is a substantial burden on their exercise of religion because they

face detention, deportation, and statutory penalties if they continue to serve their congregations

after their nonimmigrant visas expire. Motion (Dkt. # 141) at 14. Plaintiffs’ argument is based

on a causal relationship that is tenuous at best. Plaintiffs are subject to detention, deportation,

and statutory penalties not because they are following the dictates of their religion but because

their visas have expired. Plaintiffs’ initial authorization to live and work in this country was for

a limited period of time. At the expiration of the original visa, the alien is no longer welcome in

the United States and will, absent an extension or an adjustment of status, be separated from this

country and from the religious community he served while here. The bar against concurrent

filing may make it more difficult for religious workers to obtain a timely adjustment of status,

but it is not the reason plaintiffs face detention, deportation, and statutory penalties.

Plaintiffs’ RFRA argument challenges the overall immigration scheme of the

United States, at least to the extent that the scheme relies on visas to control admission to and

residence in this country. If plaintiffs’ argument is taken to its logical limits, whenever the

government attempts to expel a religious worker from the country it imposes a “substantial

burden” on the worker’s exercise of religion because expulsion would remove him from his

religious community and interfere with his practice of religion. The Court is willing to assume,

for purposes of this motion, that a government policy that effectively takes a religious worker

out of his community or deprives a congregation of its choice of clergy imposes a “substantial

burden” on the exercise of religion. Nevertheless, the Court finds that, at least in the

immigration context, such removals further a compelling government interest. “[T]he power to

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263 The same can be said for the religious organizations that employ the individual plaintiffs.

ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT – 5

exclude aliens is inherent in sovereignty, necessary for maintaining normal international

relations and defending the country against foreign encroachments and dangers . . . .”

Kleindienst v. Mandel, 408 U.S. 753, 765 (1972) (internal quotation marks omitted). Thus,

controlling admission to the United States and the circumstances under which aliens may reside

here is a compelling governmental interest. The use of visas to grant temporary admittance,

authorize certain stateside activities, and establish a departure date furthers that interest, and

there is no indication in the record that the visa process, including the power to deport aliens

who overstay their visas, is an overly restrictive means of achieving the government’s purpose.

If plaintiffs’ argument is interpreted more narrowly so that it is not a challenge to

the general immigration scheme but rather a challenge to the specific regulation at issue here,

plaintiffs have failed to show that the bar against concurrent filing for religious workers

independently imposes a substantial burden on plaintiffs’ exercise of religion under Navajo

Nation, 535 F.3d at 1069-70. 8 C.F.R. § 245.2(a)(2)(i)(B) specifies the relative timing for two

applications for government benefits or approvals. The delay in plaintiffs’ ability to file a Form

I-485 application does not compel plaintiffs to give up the tenets of their religion in order to

receive the desired approvals, nor does it coerce plaintiffs to act contrary to their religious beliefs

or face civil or criminal sanctions.3 Giving up one’s religious practices would not improve the

chances of obtaining adjustment of status or help the alien avoid deportation: in fact, abandoning

the religious work on which the alien’s admission was premised could preclude the requested

relief. According to the Ninth Circuit, the fact that a regulation may ultimately interfere with

plaintiffs’ ability to practice their religion or serve their religious community is “irrelevant” to

the substantial burden analysis. Snoqualmie Indian Tribe v. Fed. Energy Regulatory Comm’n,

545 F.3d 1207, 1214 (9th Cir. 2008). As long as the bar against concurrent filing neither “forces

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4 But see Gonzalez -Medina v. Holder, __ F.3d __, 2011 WL 1313026 at *2 (9th Cir. April 7,2011) (“Because Gonzalez-Medina does not allege discrimination on the basis of a suspect class, anydifferential treatment violates equal protection only if it lacks a ‘rational basis.’”); Abebe v. Mukasey,554 F.3d 1203, 1206 (9th Cir. 2009) (“We note at the outset that the statute doesn’t discriminate againsta discrete and insular minority or trench on any fundamental rights, and therefore we apply a standard ofbare rationality” to plaintiff’s equal protection claim). Although both cases suggest that something morethan a rational relationship might be required if a regulation discriminates on the basis of race, religion,sex, or national origin, neither case actually involved a suspect classification. Nor did theyacknowledge or address Masnauskas’ application of the rational basis test to a classification based on

ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT – 6

[plaintiffs] to choose between practicing their religion and receiving a government benefit [n]or

coerces them into a Catch-22 situation: exercise of their religion under fear of civil or criminal

sanction,” it does not impose a substantial burden under RFRA. Id.

Because plaintiffs have not shown that the bar on concurrent filing imposes a

substantial burden on their free exercise of religion, the government need not show that the

regulation furthers a compelling government interest in the least restrictive manner. Navajo

Nation, 535 F.3d at 1069. While the immigration laws of this country, including the issuance of

time-limited visas, may ultimately prevent the individual plaintiffs from continuing to serve their

religious organizations after their visas expire, that burden furthers a compelling government

interest and satisfies the dictates of RFRA.

B. EQUAL PROTECTION

Plaintiffs argue that CIS has treated them differently from other immigrant groups

because they work for religious, rather than secular, organizations in violation of the Equal

Protection Clause. Plaintiffs maintain that the Court must strictly scrutinize any law burdening

the practice of religion and argue that the bar against concurrent filing is not narrowly tailored to

further a compelling governmental interest. Because this case involves Congress’ plenary power

to control immigration and naturalization, strict scrutiny is not appropriate. Masnauskas v.

Gonzales, 432 F.3d 1067, 1070-71 (9th Cir. 2005) (challenge to classification based on national

origin subject to rational basis test).4 “‘Line-drawing’ decisions made by Congress or the

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nationality which, like those based on race or sex, is inherently suspect. See Graham v. Richardson, 403U.S. 365, 372 (1971). The Ninth Circuit generally recognizes that the political branches of governmenthave broad and sweeping authority to control “admission, exclusion, removal, naturalization, [and] othermatters pertaining to aliens,” and the Supreme Court has held that classifications which would beunacceptable if applied to citizens do not violate equal protection in the immigration context. Abebe,554 F.3d at 1206; Fiallo v. Bell, 430 U.S. 787, 792-96 (1977). Given the level of deference thejudiciary must afford the judgments of the legislative and political branches in this area, the Court findsthat strict scrutiny is not appropriate even where a suspect classification has been used.

ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT – 7

President in the context of immigration and naturalization must be upheld if they are rationally

related to a legitimate government purposes.” Ram v. INS, 243 F.3d 510, 517 (9th Cir. 2001).

Under the rational relation test, courts presume that immigration statutes and regulations are

constitutional. Masnauskas, 432 F.3d at 1071. The person challenging the governmental action

has the burden of negating “every conceivable basis which might support it.” Heller v. Doe, 509

U.S. 312, 320 (1993). Even if the legislative ends could be better achieved through different

means, courts will accept the classification as long as it is rationally related to the government’s

purpose. Id.

Defendants argue that, for purposes of the Equal Protection analysis, the treatment

of special immigrant religious workers should be compared only to the treatment of other

beneficiaries of the fourth visa preference category. Even if that were true, defendants

acknowledge that some non-religious beneficiaries of the fourth preference category are allowed

to file concurrently while religious workers, special immigrant physicians, Iraqi/Afghani

translators, and Panama Canal workers are not. Thus, even within the fourth preference

category, religious workers are treated less favorably than others within that category.

For purposes of this motion, the Court assumes that special immigrant religious

workers are treated differently than other similarly-situated aliens. Nevertheless, the Court finds

that the bar against concurrent filing is rationally related to the agency’s purpose of deterring

fraud in an area where there are virtually no objective standards for determining a religious

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5 The fact that CIS has made other efforts to reduce fraud, such as imposing heighteneddocumentation requirements, conducting site visits, and reviewing the employer’s tax status, does notmean that the bar on concurrent filing is not a rational means toward that same end.

ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT – 8

organization’s need or for evaluating whether a particular applicant is qualified to fill an

available position. Government assessments have shown that fraud is a concern in the religious

worker visa program, and Congress has indicated that CIS needs to address the problem through

regulation. U.S. Government Accountability Office Report, Immigration Benefits: Additional

Controls and a Sanctions Strategy Could Enhance DHS’s Ability to Control Benefit Fraud (Dkt.

# 9, Ex. D, at 16-17); Special Immigrant Nonminister Religious Program Act, Pub. L. No. 110-

391, 122 Stat. 4193, 4193-94 (2008). Although the parties disagree regarding the degree of

fraud in the program and/or whether it exceeds the degree of fraud in other visa preference

categories, reducing fraud is obviously a concern to the agency regardless of its comparative

prevalence.

Reducing fraud in a government benefits program is a legitimate government

purpose. Prohibiting the concurrent filing of I-360 petitions and I-485 applications may not be

the best means toward that end, but the two are rationally related. By requiring religious

organizations to file the I-360 petition first, CIS gives itself a period of time in which to

investigate the bona fides of the requesting religious organization and the prior work history of

the beneficiary before the alien obtains an extension on his residency, employment, and travel

authorizations. The bar on concurrent filings is a rational regulatory attempt to reduce fraud in

the religious worker program.5 Given the government’s legitimate interest in reducing fraud and

the broad deference courts show the determinations of the political branches in the context of

immigration, the bar on concurrent filings withstands scrutiny under the Equal Protection

Clause.

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26ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT – 9

C. DUE PROCESS

Defendants seek dismissal of plaintiffs’ due process claim on the ground that

plaintiffs are not entitled to file their adjustment of status applications before CIS approves the

employers’ visa petitions and therefore have no substantive interest protected by the Due Process

Clause. Plaintiffs argue that they are, in fact, statutorily eligible to apply for adjustment of status

(even if the decision to grant or deny the application is discretionary) and that the government

should not be allowed to deprive them of the chance to apply simply by delaying consideration

of the Form I-360 petition.

The Ninth Circuit has rejected plaintiffs’ argument that they are statutorily entitled

to apply for adjustment of status before CIS approves the employer’s visa petition. The Ninth

Circuit found that the statute “is silent regarding when visa petitions and applications for

adjustment of status may be accepted and processed in relation to each other” and that the statute

does not prohibit consecutive filing. Ruiz-Diaz, 618 F.3d at 1060-61. Thus, the agency could,

consistent with the statute, require that the applicant obtain a visa before submitting his Form I-

485 application. Plaintiffs argue, however, that the bar against concurrent filing effectively

deprives class members of their ability to request adjustment of status if the agency delays

processing the visa petition. How this problem creates a due process concern is not clearly

stated.

Citing Ex Parte Hull, 312 U.S. 546, 548-49 (1941), plaintiffs suggest that any

regulation which impairs or abridges plaintiffs’ right to apply to the government for relief is

invalid. Ex Parte Hull involved a regulation that impaired a prisoner’s right to access the courts:

the offending regulation mandated that prison officials review and approve all court submissions

before they could be filed. The Supreme Court invalidated the regulation on the grounds that the

state and its officers could not interfere with the submission of a writ of habeas corpus and that

the courts, not the state, had the power to determine whether the petition was properly drawn.

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6 Plaintiffs identify a handful of special immigrant religious workers who experiencedsignificant and injurious delays in the adjudication of their I-360 petitions. Plaintiffs’ Reply andResponse (Dkt. # 146) at 15. Whether a class action is the appropriate mechanism to handle these delayclaims has not been decided by the Court: the class certified on June 30, 2008, is comprised of allindividuals who were precluded from concurrent filing, regardless of the length of the delay in resolvingthe Form I-360 petition.

ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT – 10

Mr. Hull’s constitutional privilege of the writ of habeas corpus and right of access to the courts

were uncontested. In this case, the Ninth Circuit has already determined that plaintiffs have no

statutory, much less constitutional, right to apply for adjustment of status until after they obtain a

visa. Plaintiffs therefore have no life, liberty, or property interest in concurrent filing to which

the protections of the Due Process Clause could attach.

Plaintiffs also suggest that defendants have violated the Due Process Clause

whenever they “excessively delayed adjudication of I-360 petitions,” thereby rendering the

applicant ineligible for adjustment of status. Plaintiffs’ Reply and Response (Dkt. # 146) at 6-7.6

Even if the Court assumes that CIS unreasonably delayed the adjudication of certain I-360

petitions, the remedy sought – namely, the invalidation of 8 C.F.R. § 245.2(a)(2)(i)(B) – would

not be appropriate. The bar against concurrent filing did not cause or otherwise give rise to the

excessive delay about which plaintiffs now complain. If plaintiffs have a right to faster

adjudication of the Form I-360 petitions, they should seek to enforce that right in the few

instances where it has been violated rather than attempting to invalidate an otherwise reasonable

procedural regulation.

Other than their assertion that 8 U.S.C. §1255(a) gives them a right to concurrently

file, plaintiffs have not identified any other source of an entitlement to have their Form I-485

application accepted before a Form I-360 visa issues. Plaintiffs argue that 8 C.F.R.

§ 245.2(a)(2)(i)(B) improperly interferes with congressional intent because Congress meant to

create a mechanism through which aliens could apply for permanent residence status without

having to leave the country. Plaintiff’s Reply and Response (Dkt. # 146) at 4. But Congress

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26ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT – 11

also conferred on the Attorney General discretion to regulate the process of adjusting status,

including the relative timing of the applications. Ruiz-Diaz, 618 F.3d at 1061. One of the

regulations the agency issued requires special immigrant religious workers to have an approved

visa petition in hand before applying for adjustment of status, a requirement which the Ninth

Circuit upheld as consistent with the statute. Absent a legitimate entitlement to apply for

adjustment of status before obtaining CIS approval of the I-360 visa petition, no process is

constitutionally mandated. Plaintiffs’ due process claim therefore fails as a matter of law.

D. FIRST AMENDMENT

The parties agree that the threshold for proving a RFRA violation is lower than

that required to prove a violation of the First Amendment. For the reasons discussed in Section

A above, plaintiffs’ First Amendment claim fails as a matter of law

CONCLUSION

For all of the foregoing reasons, plaintiffs’ motion for summary judgment (Dkt.

# 141) is DENIED and defendants’ cross-motion for summary judgment (Dkt. # 145) is

GRANTED. The Clerk of Court is directed to enter judgment in favor of defendants and against

plaintiffs.

Dated this 10th day of May, 2011.

ARobert S. LasnikUnited States District Judge

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

GABRIEL RUIZ-DIAZ; HYUN SOOK

SONG; CINDY LEE MARSH; PETER

GILLETTE; SALECK OULD DAH OULD

SIDINE; PABLO SANDOVAL; YURIY

KASYANOV; LELIA TENREYRO-VIANA;EDGARDO GASTON ROMERO

LACUESTA; ROSARIO RAZO ROMERO;YOUN SU NAM; HAROLD MICHAEL

CARL LAPIAN; LAND OF MEDICINE;UKRAINIAN AUTOCEPHALOUS

ORTHODOX CHURCH; SEATTLE

MENNONITE CHURCH,Plaintiffs-Appellees, No. 09-35734

v. D.C. No. 2:07-cv-01881-RSLUNITED STATES OF AMERICA; UNITED

STATES CITIZENSHIP AND OPINIONIMMIGRATION SERVICES; UNITED

STATES DEPARTMENT OF HOMELAND

SECURITY; UNITED STATES

DEPARTMENT OF JUSTICE; MICHAEL

AYTES, Acting Deputy Director ofCitizenship and ImmigrationServices; JANET NAPOLITANO,Secretary of Department ofHomeland Security; ERIC H.HOLDER, Jr., Attorney General,Attorney General,

Defendants-Appellants. Appeal from the United States District Court

for the Western District of WashingtonRobert S. Lasnik, Chief District Judge, Presiding

12509

Argued and SubmittedJuly 12, 2010—Seattle, Washington

Filed August 20, 2010

Before: Pamela Ann Rymer and N. Randy Smith,Circuit Judges, and Donald E. Walter, Senior District Judge.*

Opinion by Judge Rymer

*The Honorable Donald E. Walter, Senior United States District Judgefor Western Louisiana, sitting by designation.

12510 RUIZ-DIAZ v. UNITED STATES

COUNSEL

Melissa S. Leibman, U.S. Department of Justice, Office ofImmigration Litigation, Washington, D.C., for the defendants-appellants.

Robert Pauw, Gibbs Houston Pauw, Seattle, Washington, forthe plaintiffs-appellees.

12512 RUIZ-DIAZ v. UNITED STATES

OPINION

RYMER, Circuit Judge:

We must decide whether a regulation providing that alienbeneficiaries of special immigrant religious worker visa peti-tions may file an application for adjustment of status onlywhen their visa petition has been approved, 8 C.F.R.§ 245.2(a)(2)(i)(B), is a permissible construction of 8 U.S.C.§ 1255(a).1 Section 1255(a) provides that the status of an alienwho has been inspected and admitted or paroled into theUnited States may be adjusted by the Attorney General2 if thealien makes an application, is eligible to receive an immigrantvisa, and an immigrant visa is immediately available when heapplies.

Gabriel Ruiz-Diaz represents a class of alien beneficiariesof special immigrant religious worker visa petitions, and orga-nizations that employ religious workers, who maintain thatthe regulation is invalid under the statute. The district courtagreed, granting summary judgment for Ruiz-Diaz. It rea-soned that in § 1255(a), Congress clearly determined whichaliens are eligible to apply for adjustment of status — thosewho are “inspected and admitted or paroled” — and the regu-lation prevents otherwise eligible aliens from submitting anapplication because they don’t meet a requirement that is notin the statute: having an approved visa petition. The court alsorejected the government’s position that § 245.2(a)(2)(i)(B)simply regulates the application process under § 1255(a)(1),holding instead that the regulation unreasonably interprets

1By contrast, the regulation permits alien beneficiaries of family andhigher preference employment-based petitions to file an application toadjust status concurrently with their visa petition.

2In May 2006, the Attorney General transferred authority over adjust-ment of status applications for arriving aliens to the Department of Home-land Security (DHS). See 8 C.F.R. §§ 245.2(a)(1), 1245.2(a)(1) (2006). Ingeneral, we refer to the Attorney General because it was he who promul-gated the regulation.

12513RUIZ-DIAZ v. UNITED STATES

“immediately available” as meaning two different things —that a visa number is available when the application is filed(in the case of family and higher preference employment-based beneficiaries), and that an alien must be eligible forimmediate assignment of a visa number, i.e., the petition hasalready been approved (in the case of special immigrantemployment-based beneficiaries). Accordingly, after grantingsummary judgment for Ruiz-Diaz and declaring the baragainst concurrent filings in 8 C.F.R. § 245.2(a)(2)(i)(B)invalid, the court issued a permanent injunction requiring thegovernment to accept as properly filed adjustment of statusapplications for religious workers filed concurrently with visapetitions. The government appealed.

Applying Chevron’s two-step analysis,3 we conclude thatthe statute is silent on the timing of visa petitions and applica-tions for adjustment of status. Congress conferred discretionon the Attorney General to devise regulations to implement§ 1255(a), and we cannot say that the agency’s interpretationin 8 C.F.R. § 245.2(a)(2)(i)(B) is arbitrary, capricious, ormanifestly contrary to the statute. This being so, we reversethe judgment and vacate the injunction. However, otherclaims that were mooted by the district court’s ruling nowpresent a live controversy, so we remand for further proceed-ings.4

I

Up to 5000 special immigrant visas may be granted to reli-gious workers each year.5 8 U.S.C. § 1153(b)(4); 8 U.S.C.

3Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837(1984).

4Ruiz-Diaz also asserted claims that the regulation violated the Due Pro-cess and the Equal Protection Clauses, the First Amendment, and the Reli-gious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, et seq.

5In addition to religious workers, special immigrant visas are madeavailable to a number of different types of employment-based immigrants,described in 8 U.S.C. § 1101(a)(27), in an amount not to exceed 7.1 per-cent of the yearly worldwide limit of employment-based immigrant visas.8 U.S.C. § 1153(b)(4).

12514 RUIZ-DIAZ v. UNITED STATES

§ 1101(a)(27)(C). This type of special immigrant visa is forministers, religious workers in a professional capacity in areligious vocation or occupation, and religious workers in areligious vocation or occupation as defined in§ 1101(a)(27)(C). A person seeking a special immigrant reli-gious worker visa may be overseas or in the United States.Many such individuals who are already present in this countryare on a non-immigrant visa (R-1 visa). 8 U.S.C.§ 1101(a)(15)(R); 8 C.F.R. § 214.2(r). As with all non-immigrant visas, the R-1 is issued for a definite duration; anon-immigrant religious worker who holds an R-1 visa maystay for a maximum of five years. 8 U.S.C.§ 1101(a)(15)(R)(ii); 8 C.F.R. § 214.2(r)(4)-(6). The alienmust depart when the five-year period has expired, unless hehas sought to adjust status prior to the R-1 visa’s expiration.6

If he does none of these things, the alien’s status will beunlawful and he may begin to accrue an unlawful presence.See 8 U.S.C. § 1255(k). If the alien accrues a period of unlaw-ful presence of more than 180 days, he will be statutorily inel-igible for adjustment of status and United States Citizenshipand Immigration Services will deny his application. 8 U.S.C.§ 1255(c), (k).

A religious organization employer sets the process ofobtaining a special immigrant religious worker visa in motionby filing a Form I-360 Petition for Special Immigrant.7 Toqualify, religious workers must have been engaged in thework for which they are applying for at least two years priorto filing the petition. 8 U.S.C. § 1101(a)(27)(C)(iii). The peti-tion is the alien’s opportunity to show that he or she may beclassified in one of the family or employment preference cate-

6An alien who leaves the United States may apply for a different non-immigrant visa or an immigrant visa from abroad.

7Aliens applying based on family relationships file a Petition for AlienRelative (Form I-130), and applicants applying based on employment inthe first three employment-based preference categories file a Petition forAlien Worker (Form I-140).

12515RUIZ-DIAZ v. UNITED STATES

gories identified in § 1153. Kyung Park v. Holder, 572 F.3d619, 622 (9th Cir. 2009). All special immigrants, includingreligious workers, are in the fourth preference employment-based category. Id. § 1153(b)(4).

Apart from filing the petition, an alien seeking to adjust sta-tus to that of a lawful permanent resident must apply foradjustment of status. This would be on a Form I-485 Applica-tion to Register Permanent Residence or Adjust Status. Thiscase involves adjustment of status.

The governing statute is § 1255(a), which allows an alienwho has been admitted or paroled into the United States toadjust status in the discretion of the agency, and under regula-tions the agency may prescribe, if (1) the alien makes anapplication; (2) the alien is eligible to receive a visa; and (3)a visa is immediately available. In full, § 1255(a) provides:

The status of an alien who was inspected and admit-ted or paroled into the United States or the status ofany other alien having an approved petition for clas-sification as a VAWA self-petitioner may beadjusted by the Attorney General, in his discretionand under such regulations as he may prescribe, tothat of an alien lawfully admitted for permanent resi-dence if (1) the alien makes an application for suchadjustment, (2) the alien is eligible to receive animmigrant visa and is admissible to the United Statesfor permanent residence, and (3) an immigrant visais immediately available to him at the time his appli-cation is filed.

8 U.S.C. § 1255(a). An alien is “eligible to receive an immi-grant visa” if he is eligible to be classified for a family oremployment-based visa. See 8 U.S.C. § 1153. An alien is “ad-missible to the United States for permanent residence” if heis not inadmissible under the grounds listed in § 1182(a). Andan immigrant visa is “immediately available” if the priority

12516 RUIZ-DIAZ v. UNITED STATES

date for the preference category is current according to theUnited States Department of State Visa Bulletin issued for themonth in which the application for adjustment of status isfiled. 8 C.F.R. §§ 245.1(g)(1), 245.2(a)(2)(i)(B). The prioritydate is fixed on the date when an approved visa petition isfiled. 8 C.F.R. § 245.1(g)(2).

[1] 8 C.F.R. § 245.2(a)(2)(i)(B) was promulgated on July31, 2002 as an interim rule to improve efficiency and cus-tomer service for certain alien workers filing Form I-140 peti-tions. Prior to its promulgation, all alien workers wererequired to obtain approval of the underlying visa petitionbefore applying for adjustment of status.8 See Allowing inCertain Circumstances for the Filing of Form I-140 Visa Peti-tion Concurrently with a Form I-485 Application, 67 Fed.Reg. 49,561, 49,561 (July 31, 2002). The regulation changedthat practice for alien workers in the first three employment-based preference categories, allowing them to file a visa peti-tion and application for adjustment of status at the same time;special immigrant visa applicants — including religiousworkers — may still only file a Form I-485 Application toAdjust Status with an approved Form I-360 Petition for Spe-cial Immigrant. In its final form, the regulation provides:

If, at the time of filing, approval of a visa petitionfiled for classification under section 201(b)(2)(A)(i),9

8Initially, all aliens seeking adjustment of status were permitted to filethe visa petition concurrently with the application for adjustment of status.However, on August 9, 1991, the agency promulgated an interim rulerequiring employment-based immigrants to obtain an approved visa peti-tion before applying for adjustment of status. Adjustment of Status to Thatof Person Admitted for Permanent Residence, 56 Fed. Reg. 37,864, 37,864(Aug. 9, 1991). The rule did not affect immediate relatives and aliens infamily-based preference classes filing under §§ 201(b)(2)(A)(i) and203(a), respectively, who were still permitted to file concurrently. Thefinal rule was issued on October 2, 1991. 56 Fed. Reg. 49,839, 49,839(Oct. 2, 1991).

9INA § 201(b)(2)(A)(i) pertains to immediate relatives (children,spouses and parents) of United States citizens. See 8 U.S.C.§ 1151(b)(2)(A)(i).

12517RUIZ-DIAZ v. UNITED STATES

section 203(a)10 or section 203(b)(1), (2), or (3)11 ofthe Act would make a visa immediately available tothe alien beneficiary, the alien beneficiary’s adjust-ment application will be considered properly filedwhether submitted concurrently with or subsequentto the visa petition, provided that it meets the filingrequirements contained in parts 103 and 245. Forany other classification, the alien beneficiary mayfile the adjustment application only after the Servicehas approved the visa petition.

8 C.F.R. § 245.2(a)(2)(i)(B) (footnotes added).

II

[2] We review whether the regulation conflicts with thestatute under the two-part test set out in Chevron, U.S.A., Inc.v. Natural Resources Defense Council, Inc., 467 U.S. 837(1984). Under step one, we ask whether Congress has spokento the question. If Congress has done so unambiguously, weaccept its statement as controlling. But if Congress has notspoken to the precise issue because the statute is either silentor ambiguous, we go to step two and consider whether theagency’s interpretation is a reasonable, permissible construc-tion of the statute. If it is, we defer to the agency. Escobar v.

10INA § 203(a) provides for other family members such as unmarriedsons and daughters of a United States citizen over the age of 21, spousesand unmarried sons and daughters of legal permanent residents, marriedsons and daughters of United States citizens, and brothers and sisters ofUnited States citizens. See 8 U.S.C. § 1153(a).

11INA § 203(b)(1) applies to immigrants with extraordinary ability, out-standing professors and researchers, and certain multinational executivesand managers. See 8 U.S.C. § 1153(b)(1). Section 203(b)(2) covers immi-grants who are members of professions holding advanced degrees or ofexceptional ability. See id. § 1153(b)(2). Section 203(b)(3) concernsskilled workers, professionals, and other qualified immigrants capable ofperforming unskilled labor for which qualified workers are not availablein the United States. See id. § 1153(b)(3).

12518 RUIZ-DIAZ v. UNITED STATES

Holder, 567 F.3d 466, 472 (9th Cir. 2009); Bona v. Gonzales,425 F.3d 663, 668 (9th Cir. 2005). When, as here, Congresshas expressly conferred authority on the agency to implementa statute by regulation, the regulations have “controllingweight unless they are arbitrary, capricious, or manifestlycontrary to the statute.” Chevron, 467 U.S. at 843-44. This isparticularly true in the immigration context “for executiveofficials ‘exercise especially sensitive political functions thatimplicate questions of foreign relations.’ ” Negusie v. Holder,129 S. Ct. 1159, 1164 (2009) (quoting INS v. Abudu, 485 U.S.94, 100 (1988)).

Ruiz-Diaz submits that Congress intended for § 1255(a) toprovide the full eligibility criteria for filing an application foradjustment of status, and that the regulation contravenes thisintent by redefining who is eligible to apply. As he points out,we held in Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005),that § 1255(a) unambiguously defines who is eligible — thosewho have been “admitted or paroled” into the country — andthat a regulation which deemed a paroled alien an “arrivingalien” regardless of his parole status was invalid. Id. at 667-70. However, a similar question is not presented here. Unlikethe regulation at issue in Bona, § 245.2(a)(2)(i)(B) does notaffect who is eligible to apply. Any alien “admitted orparoled” into the United States may apply for adjustment if heis eligible to be classified for a visa and a visa number is cur-rent when his application is filed. Thus, the statutory criteriafor eligibility are intact.

[3] For this reason, we disagree with the district court thatthe statute clearly speaks to the precise issue presented.Rather, we conclude at Chevron step one that the statute issilent with respect to when visa petitions and applications foradjustment of status may be accepted and processed in rela-tion to each other. It says nothing at all about whether theymust, or may, be filed concurrently or consecutively, or inwhat order.

12519RUIZ-DIAZ v. UNITED STATES

Given congressional silence on the issue of timing, we mustdecide at Chevron step two whether the agency’s approach isa permissible construction of the statute. In this connection,we note that § 1255(a) confers discretion on the AttorneyGeneral to adjust status “under such regulations he may pre-scribe.” Thus, Congress expressly manifested its intent thatthe agency regulate the process by which status will beadjusted except for three statutory prerequisites: (1) the alienmust make an application; (2) the alien must be eligible toreceive an immigrant visa and be admissible; and (3) animmigrant visa must be immediately available to the alien atthe time he applies. As the Court stated in Chevron, “[w]ehave long recognized that considerable weight should beaccorded to an executive department’s construction of a statu-tory scheme it is entrusted to administer . . . .” 467 U.S. at844. Thus, we must determine not how we would interpret thestatute, but whether the agency’s interpretation is reasonable.

[4] Ruiz-Diaz and the district court posit that it is unrea-sonable for the agency to interpret the same words in the thirdcondition — that an immigrant visa be “immediately avail-able” — differently depending upon the class of worker. Intheir view, the agency impermissibly interpreted this phraseon the one hand to mean that higher preference workers whodo not have an approved visa petition may file for adjustmentof status, and on the other hand to mean that religious workerswho do not have an approved visa petition may not file foradjustment of status. However, with regard to question beforeus — whether the agency impermissibly requires alien benefi-ciaries of special immigrant visa petitions to apply for adjust-ment of status only after their visa petition is approved — weconclude that the agency’s interpretation of the statute is rea-sonable. Section 1255(a)(3) does not prohibit consecutive fil-ing. Beyond this, the agency has already construed the term“immediately available” in 8 C.F.R. § 245.1(g)(1), whichdefines the term to mean that the immigrant’s priority date fora visa number is current. An application to adjust status maybe accepted for filing and processing if the applicant’s place

12520 RUIZ-DIAZ v. UNITED STATES

on the waiting list is earlier than the date shown in the StateDepartment’s Visa Bulletin. Id. For applicants with previ-ously approved visa petitions, their place in the queue isapparent at the time of filing. It is not manifestly contrary tothe statute for the agency to accept the applications of alienbeneficiaries of special immigrant religious worker visas forfiling and processing only when they have a visa in hand, thusmaking it obvious that the visa number is “immediately avail-able.”

Ruiz-Diaz’s real concern is that USCIS does not processthe petition for a special immigrant religious worker visa soonenough for it to do many of them any good. It takes time forvisa petitions to work their way through the system; the gov-ernment estimates five-six months on average, though in indi-viduals cases it may take longer. From Ruiz-Diaz’sperspective the problem is compounded for those religiousworkers who are present in the country on R-1 non-immigrantvisas, because they do not get the benefit of a stay that comeswith filing an application for adjustment of status, 8 U.S.C.§ 1255(k), and must depart the country when their R-1 visasexpire. It is this conundrum that led Ruiz-Diaz to challengethe regulation.

[5] He claims that religious workers such as he who areeligible to apply for adjustment of status will accrue morethan 180 days of unlawful presence while waiting for theirvisa petitions to be approved. As a practical matter, Ruiz-Diazcontends, the effect is to disable these particular alien benefi-ciaries from adjustment of status even though they are other-wise eligible under the statute. To Ruiz-Diaz delay is in effectdenial. Therefore, he maintains, it is not permissible for theagency to deny applications in this manner. Unfortunatethough this consequence may be for the individuals involved,§ 1255(a) does not address the speed with which the agencymust process petitions. We cannot say that it is unreasonablefor the agency to determine that visa petitions for alien benefi-ciaries of special immigrant religious worker visas must be

12521RUIZ-DIAZ v. UNITED STATES

approved before an application for adjustment of status maybe filed and processed.

The parties make additional arguments in support of theirpositions that we decline to reach. For example, the govern-ment suggests that its regulation is justified to reduce fraud inthe Special Immigrant Religious Worker Visa Program, andRuiz-Diaz contends that the regulation offends the Equal Pro-tection Clause and the Religious Freedom Restoration Act.The district court did not consider these claims because itsdisposition effectively mooted them. Our disposition, how-ever, revives them. We express no opinion on their merits,which we leave to the district court in the first instance.

Having decided that the regulation withstands Chevronreview, we reverse the judgment and vacate the injunction.We remand for such other proceedings as the district courtdeems appropriate.

REVERSED AND REMANDED.

12522 RUIZ-DIAZ v. UNITED STATES

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ORDER DIRECTING ENTRY OF JUDGMENT

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

AT SEATTLE

_________________________________)

GABRIEL RUIZ-DIAZ, et al., )) No. C07-1881RSL

Plaintiffs, ) v. ) ORDER DIRECTING ENTRY OF

) JUDGMENTUNITED STATES OF AMERICA, )et al., )

)Defendants. )

_________________________________ )

On March 23, 2009, the Court found that 8 C.F.R. § 245.2(a)(2)(i)(B) was an

unreasonable and impermissible construction of the governing statute and granted plaintiffs’

motion for summary judgment. Rather than sign the proposed order provided with plaintiff’s

motion, the Court provided defendants an additional opportunity to consider and comment upon

the practical and legal effects of the relief requested. The Court noted that, although the

directives and injunctions sought were far-reaching, they were properly focused on avoiding or

ameliorating the injuries that arose from enforcement of the invalid regulation. Dkt. # 118 at 6.

Having reviewed the memoranda presented by the parties, including the supplemental authority

submitted by plaintiffs on June 8, 2009, IT IS HEREBY ORDERED that:

(1) The bar against concurrent filings on behalf of religious workers, as set forth in 8

C.F.R. § 245.2(a)(2)(i)(B), is an impermissible construction of 8 U.S.C. § 1255(a) and is,

therefore, invalid and unenforceable;

(2) Defendants shall accept as properly filed adjustment of status applications (Form I-

Case 2:07-cv-01881-RSL Document 127 Filed 06/11/2009 Page 1 of 4

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-2-ORDER DIRECTING ENTRY OF JUDGMENT

485) and employment authorization applications (Form I-765) from individuals who are

beneficiaries of petitions for special immigrant visas (Form I-360), whether submitted

concurrently with or subsequent to the visa petition, provided the applications meet defendants’

valid filing requirements. See 8 C.F.R. §§ 103.2 and 245.2(a)(3); 8 C.F.R. § 274a.13;

Instructions on Forms I-485 and I-765. Except as noted in paragraphs (3) and (4), defendants

shall adjudicate these applications in the same manner that it adjudicates adjustment of status

and employment authorization applications from non-religious worker applicants.

(3) Beneficiaries of petitions for special immigrant visas (Form I-360) whose Form I-

485 and/or Form I-765 applications were rejected by defendants pursuant to 8 C.F.R.

§ 245.2(a)(2)(i)(B) and who reapply under paragraph (2) of this Order are entitled to a have their

applications processed as if they had been submitted on their original submission date. Any

employment authorization that is granted shall be retroactive to the original submission date.

(4) For purposes of 8 U.S.C. § 1255(c) and § 1182(a)(9)(B), if a beneficiary of a

petition for special immigrant visa (Form I-360) submits or has submitted an adjustment of status

application (Form I-485) or employment authorization application (Form I-765) in accordance

with the preceding paragraphs, no period of time from the earlier of (a) the date the I-360

petition was filed on behalf of the individual or (b) November 21, 2007, through the date on

which the United States Citizenship and Immigration Services (“CIS”) issues a final

administrative decision denying the application(s) shall be counted as a period of time in which

the applicant failed to maintain continuous lawful status, accrued unlawful presence, or engaged

in unauthorized employment.

(5) A spouse or child of an individual who is the beneficiary of a petition for special

immigrant visa (Form I-360) shall, if not otherwise entitled to an immigrant status and

immediate issuance of a visa under 8 U.S.C. § 1153(a), (b), or (c), be entitled to the same status

and the same order of consideration as the beneficiary.

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1 In their proposed order, defendants request a stay “pending any appeal taken in this case.” Dkt. # 121 at 4. To justify a stay pending appeal, defendants must show (1) that there is a stronglikelihood that they will succeed on the merits of their appeal; (2) that they will suffer irreparable injuryif the proceeding is not stayed; (3) that a stay would not substantially injure any other party; and (4) thata stay is in the public’s interest. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Becausedefendants have not addressed any of the relevant factors, their request for a stay is DENIED.

-3-ORDER DIRECTING ENTRY OF JUDGMENT

(6) The accrual of unlawful presence, unlawful status, and unauthorized employment

time against the beneficiaries of pending petitions for special immigrant visas (Form I-360) shall

be STAYED for 90 days from the date of this Order to allow the beneficiaries and their family

members time in which to file adjustment of status petitions (Form I-485) and/or applications for

employment authorization (Form I-765).

(7) Defendants shall, within 15 days of the date of this Order, mail and/or e-mail a

copy of the attached notice to every person or entity who has a pending I-360 visa petition and to

the list of religious, non-governmental, and community organizations maintained by CIS.

(8) Defendants shall, within 15 days of the date of this Order, post a copy of the

attached notice on the CIS webpage under “Legal Settlement Notices” and maintain the posting

for a period of one year. Defendants shall also revise the webpages regarding Forms I-360, I-

485, and I-765 to delete references to the bar on concurrent filings and to include a link to the

attached notice.

(9) The Court shall retain jurisdiction to enforce the terms of this Order. If disputes

arise concerning agency compliance, counsel for plaintiffs shall provide written notice of the

perceived problem to counsel for defendants. The parties shall meet and confer in an effort to

resolve such disputes: any unresolved issues may be brought to the Court’s attention via motion.

The Clerk of Court is directed to enter judgment in this matter in favor of plaintiffs

and against defendants.1

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-4-ORDER DIRECTING ENTRY OF JUDGMENT

Dated this 11th day of June, 2009.

ARobert S. LasnikUnited States District Judge

Case 2:07-cv-01881-RSL Document 127 Filed 06/11/2009 Page 4 of 4