The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Alexis Perez ("Perez") and Iglesia Bautista El. Buen Pastor ("El Buen
Pastor"), invoking judicial review pursuant to 28 U.S.C. § 2201 (a)
and 5 U.S.C. § 703 (the Administrative Procedure Act, or "APA"), seek
a declaratory judgment that the final decision of the United States
Immigration and Naturalization Service ("INS") denying Perez' immigration
visa petition was improper. Both sides have moved for summary judgment
under Fed. R. Civ. P. ("Rule") 56 and have complied with this District
Court's LR 56.1.*fn1
Even though each of the litigants has proceeded on the premise that
there are no genuine issues of material (that is, outcome-determinative)
fact in dispute that would bar victory as a matter of law, the sum total
of their submissions dictates otherwise (albeit on a ground that surfaced
only in the final stage of the parties' briefing). For the reasons stated
in this memorandum opinion and order, (1) both Rule 56 motions are
denied, (2) INS's denial of Perez' visa application is vacated and (3)
this action is remanded for a limited further proceeding.
Perez, a native and citizen of Venezuela, has been a member of El Buen
Pastor since November 1996 (I. St. ¶ 2). Since December 1996 he has
worked as that congregation's music director, a full-time paid position
(I. St. ¶ 13, P. St. ¶ 18).*fn2
In that capacity Perez runs the church's music programs by organizing
and directing several choirs, directing youth music activities and
purchasing and maintaining instruments (P. St. ¶ 19). In light of the
INS's position described hereafter, it is particularly appropriate to
particularize the extensive nature of Perez' religiously-oriented
activities apart from simply playing the piano and organ during church
1. He selects the worship and praise songs for each
Sunday morning service, setting the order of the songs and
planning the order of the service with the Pastor (P. St.
2. He types and prints the music program for
congregation members, preparing comments and
reflections on the songs and linking them to relevant
Bible verses (id.).
3. He reviews new Christian music for inclusion in the
4. He prays with and teaches the Bible to the church's
youth group on Saturday nights and provides spiritual
leadership and guidance to all members of the congregation
(P. St. ¶ 21).
Moreover, even before his employment with El Buen Pastor Perez worked for
seven years as the music director of a church in Maricaibo, Venezuela and
for about ten months in the music department of a church in Wheaton,
Illinois (P. St. ¶ 22).
El Buen Pastor is a member of the Southern Baptist denomination (P.
St. ¶ 1). Baptists believe that music can be a form of ministry and
that they can express their relationship with God through music (P. St.
¶ 8).*fn3 To that end, for over 60 years all Baptist colleges and
seminaries have offered degrees in music ministry (P. St. ¶ 9).
Individuals who are hired to lead music for Baptist congregations must
demonstrate a religious commitment and are considered to be ministers
(I. St. ¶ 11, p. St. ¶ 11)
On August 25, 1999 El Buen Pastor filed on Perez' behalf a form I-360
petition for an immigrant visa and a Form I-485 application for adjustment
of status with the INS (I. St. ¶ 3). That visa petition claimed
Perez was a "special immigrant religious worker" under the Immigration
and Nationality Act ("Act") § 203(b)(4), 8 U.S.C. § 1153 (b)
(4),*fn4 due to his position as musical director at El Buen Pastor (I.
St. ¶ 4).
Under that section, one of a limited number of visas is available to an
immigrant (1) who "for at least 2 years immediately preceding the time of
application for admission, has been a member of a religious denomination
having a bona fide nonprofit, religious organization in the United
States," (2) who "seeks to enter the United States . . . to work for the
organization in a professional capacity in a religious vocation or
occupation" and (3) who "has been carrying on such vocation, professional
work or other work continuously for at least the 2-year period" preceding
the time of ...