United States District Court, N.D. Illinois, Eastern Division
CONGREGATION OF THE PASSION, HOLY CROSS PROVINCE and REV. ALFREDO OCAMPO, Plaintiffs,
JEH JOHNSON, Secretary of U.S. Department of Homeland Security; LEON RODRIGUEZ, Director of U.S. Citizenship and Immigration Services, and KATHY BARAN, Director of USCIS California Service Center, Defendants
For Fr. Alfredo Ocampo, Congregation of the Passion, Holy Cross Province (a.k.a. the Passionists), Plaintiffs: Christina Joan Murdoch, Scott D. Pollock & Associates, P.C., Chicago, IL; Scott D. Pollock, Scott D. Pollock & Associates, Chicago, IL.
For Secretary Janet Napolitano, Secretary, U.S. Deparment of Homeland Security, Director Alejandro Mayorkas, U.S. Citizenship and Immigration Services (" USCIS" ), Acting Director Donna Campagnolo, Acting Director, USCIS California Service Center, Defendants: Genevieve Kelly, LEAD ATTORNEY, U.S. Department of Justice, Office of Immigration Litigation, District Court Section, Washington, DC; Melissa Sher Leibman, LEAD ATTORNEY, U.S. Dept Of Justice, Civil Division - Office Of Immigation Litigation, Washington, DC; AUSA, Craig Arthur Oswald, United States Attorney's Office (NDIL), Chicago, IL.
MEMORANDUM OPINION AND ORDER
John J. Tharp, Jr., United States District Judge.
The plaintiffs, Congregation of the Passion (the " Passionists" ) and Rev. Alfredo Ocampo (" Ocampo" ), bring this action against the Secretary of the U.S. Department of Homeland Security, the Director of U.S. Citizenship and Immigration Services (" USCIS" ), and the Director of USCIS's California Service Center for violations of the Administrative Procedure Act (the " APA" ), the Religious Freedom Restoration Act (" RFRA" ), and the First and Fifth Amendments. The plaintiffs challenge portions of the USCIS regulations pertaining to special immigrant religious workers as well as USCIS's denial of the Passionists' petition to qualify Ocampo for a special immigrant religious worker visa. The parties have cross-moved for summary judgment. For the reasons set forth below, the Court grants the plaintiffs' motion and denies the defendants' motion.
The Passionists are an international Roman Catholic order of priests, brothers, nuns, sisters, and laity. Ocampo is a native and citizen of Mexico who has lived in the United States since 1994. He began working as a vowed member of the Passionists in 2004, was ordained as a priest in 2011, and currently serves as a priest with
the Passionists' community in Houston, Texas; this community is part of the Passionists' Holy Cross Province, which is based in Park Ridge, Illinois. Although Ocampo entered the United States lawfully on a B-2 visitor visa in 1994, he has been unlawfully present in the country since that visa expired in 1995. For reasons that will be explained below, his U.S. citizen brother filed an I-130 petition to classify Ocampo as the sibling of a U.S. citizen in 1998 and the Passionists filed an I-360 petition to classify Ocampo as a special immigrant religious worker in 2012.
Ocampo seeks classification as a special immigrant religious worker so that he may apply for an adjustment of his immigrant status to lawful permanent resident. The Immigration and Nationality Act (the " INA" ) permits certain individuals (primarily those already in the United States) to adjust their status to become lawful permanent residents. See 8 U.S.C. § 1255. Through the adjustment of status process, a person who is already in the country is " assimilated to the position of an applicant for entry into the United States." Samirah v. Holder, 627 F.3d 652, 656 (7th Cir. 2010) (quoting Palmer v. INS, 4 F.3d 482, 484 (7th Cir. 1993)) (internal quotation marks omitted). The primary adjustment of status mechanism, which is set forth in § 1255(a), is not available to most individuals who are in an unlawful immigration status or who have previously violated U.S. immigration laws. See 8 U.S.C. § 1255(c) (listing eight categories of aliens who, absent exceptions, cannot use the subsection (a) adjustment of status mechanism, chiefly due to violations of U.S. immigration laws). Notably, however, the statute also provides four specialized adjustment of status mechanisms which are available to those who may not meet the requirements of § 1255(a). See id. § 1255(i) (for certain aliens who do not qualify to adjust status under subsection (a), including those in unlawful immigration status); id. § 1255(j) (for certain aliens who supplied useful information for criminal investigations); id. § 1255(l) (for certain victims of trafficking); id. § 1255(m) (for certain victims of crimes against women). Approval of applications to adjust status under § 1255 is discretionary. See, e.g., id. § 1255(a) (" [t]he status of an alien . . . may be adjusted by the Attorney General, in his discretion" ); id. § 1255(i)(2) (" the Attorney General may adjust the status of the alien" ).
Ocampo hopes to qualify for adjustment of status under the procedure set forth in § 1255(i). To apply for adjustment of status under § 1255(i), an alien: (1) must be physically present in the United States; (2) must be within one of the classes listed in § 1255(c); (3) must be the beneficiary of a petition for classification under § 1154, or an application for labor certification under § 1182(a)(5)(A), that was filed by April 30, 2001; (4) must have been physically present in the United States on December 21, 2000, unless the petition for classification or application for labor certification was filed on or before January 14, 1998; and (5) must have an immigrant visa immediately available to him or her based on an approved visa petition. See 8 U.S.C. § 1255(i)(1);
8 C.F.R. § 245.2(a)(2)(i); see also 8 U.S.C. § 1255(i)(2)(B).
Ocampo currently meets all but one of these requirements. He meets the first requirement because he is physically present in the United States. He meets the second requirement because he fits within at least one of the classes listed in § 1255(c). See 8 U.S.C. § 1255(c)(2) (" an alien . . . who . . . accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed . . . to maintain continuously a lawful status since entry into the United States" ). He meets the third requirement based on the I-130 petition which was filed by his brother on January 14, 1998, and approved by USCIS on December 29, 1998. See Administrative Record, Dkt. 13-1, at 20; see also ...