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PEREZ v. ASHCROFT

August 7, 2002

ALEXIS D. PEREZ, ET AL., PLAINTIFFS,
V.
JOHN ASHCROFT, ET. AL., DEFENDANTS.



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.

Facts

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 services:

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. ¶ 20).
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 congregation's repertoire.
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 ...


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