Ruiz-Diaz v. USA, a recent case permitting concurrent filings for religious workers, has been reversed by the United States Court of Appeals for the Ninth Circuit.
On Aug. 20, a three judge panel on the Ninth Circuit reversed and remanded for further proceedings the district court’s decision (2009 WL 799683) allowing religious workers to file their adjustment of status applications concurrently with the organizations’ employment based immigrant visa petitions. Ruiz-Diaz v. USA, No. 09-35734 (9th Cir. August 20, 2010).
The court only considered the statutory construction argument, so the panel remanded to the district court for consideration of plaintiffs’ causes of action under the Religious Freedom Restoration Act and the U.S. Constitution.
The injunction requiring the agency to accept concurrent filings was vacated, but the order doing so will not take effect until mandate issues, probably around Oct. 11. Therefore, those wishing to file concurrent adjustment of status applications should do so before that date. The injunction also precluded USCIS from relying on unlawful status, presence, or employment that was accrued as a consequence of the challenged regulation barring concurrent filing for religious workers.
Plaintiffs will seek an extension of those provisions to protect class members during the pendency of the ongoing litigation. Class members with pending adjustment of status applications that would be harmed were this provision to end should contact class counsel.
Because of the remand to district court for further proceedings, plaintiffs’ counsel may request information from religious organizations, religious workers, or their counsel, who may be affected by the Ninth Circuit order.
Gabriel Ruiz-Diaz represents a class of alien beneficiaries of special immigrant religious worker visa petitions, and organizations that employ religious workers who maintained that the regulation was invalid under the statute.
The Ninth Circuit attacked the statute, applying Chevron’s two-step analysis (Chevron, USA, Inc. v. Natural Res. Def. Council, Inc, 467 U.S. 837, 1984), concluding that the statute is silent on the timing of visa petitions and applications for adjustment of status. Congress conferred discretion on the Attorney General to devise regulations to implement § 1255(a), and could not say that the agency’s interpretation in 8 C.F.R. § 245.2 (a)(2) (i) (B) is arbitrary, capricious, or manifestly contrary to the statute. The decision stated in part, “This being so, we reverse the judgment and vacate the injunction.”
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com
