Ruiz-Diaz v. United States: RFRA, substantial burden, and the Ninth Circuit's causation-nexus requirement - a wrinkle or a roadblock for future immigration-related religious freedom challenges?

Author:Pollock, Scott D.
Position:Religious Freedom Restoration Act of 1993 - My Religion, My Rules: Examining the Impact of RFRA Laws on Individual Rights

    In Ruiz-Diaz v. United States, (1) the Ninth Circuit Court of Appeals turned back a direct Religious Freedom Restoration Act ("RFRA") challenge to a United States Citizenship and Immigration Services' ("USCIS") regulation that makes it more difficult for non-citizen religious workers to obtain permanent resident status than other workers who apply to immigrate to the United States. (2) The USCIS regulation determines when a religious worker can apply for permanent resident status--it requires religious employers to undergo a two-step process involving pre-approval of a visa petition before allowing the beneficiary of the petition to apply for a "green card." (3) Secular workers, by contrast, can concurrently file the visa petition and application for the green card, and thus complete their immigration process in one step without having to leave the United States at all. (4) Coupled with administrative processing delays, this ensures that at least some religious workers who come to the United States on temporary visas will need to depart the United States and abandon their religious work here, temporarily or possibly permanently. (5)

    The Court rejected the plaintiffs' challenge that this scheme burdened their religious exercise. (6) It found that the statute imposes no duty on USCIS to decide religious worker visa petitions within any particular timeframe, and concluded that USCIS's process did not impose a "substantial burden" on religious works within the Ninth Circuit's definition of the term--specifically, it did not force the religious workers to choose between exercising their religion and obtaining a government benefit, nor did it compel the complainants to abandon their religious exercise as a way to avoid having a civil or criminal penalty imposed on them." (7) The Court further found that the burden of possibly having to leave the U.S. was not due to the plaintiffs' religious exercise, but due to the fact that they would have violated the terms of their temporary status in the U.S. had they stayed. (8)

    As of the date of this publication, Ruiz-Diaz has only been cited once by another federal court since its publication in November 2012." (9) But its implications loom large--recently the USCIS's California Service Center relied on Ruiz-Diaz to deny a request for a religious exemption to a minister who applied for permanent resident status, but who was found to be inadmissible under the Immigration and Nationality Act due to past conduct unrelated to his ministry. (10) It reasoned that the minister's inadmissibility as an immigrant was not caused by his religious exercise, and therefore the denial of his lawful status did not impose a substantial burden on religion. (11) The USCIS found the minister's plight to be analogous to that of the plaintiffs in Ruiz-Diaz and denied his request for an exemption under RFRA. (12)

    This article examines the Ruiz-Diaz decision and its effect on the question of whether and when the refusal of immigration benefits, specifically to religious workers who are prima facie eligible as immigrants under the Immigration and Nationality Act ("INA"), violates RFRA or the Free Exercise Clause of the First Amendment if religious-based exceptions are not made available, even though the INA contains individualized exceptions for secular reasons. It also questions the continued jurisprudential viability of the Navajo Nation case, relied on by the Ninth Circuit as the principal authority to determine when there is a substantial burden on religion. It argues that subsequent Supreme Court decisions point to a broader Congressional intent to protect religion than the Ninth Circuit recognized in Navajo Nation, and that the Ninth Circuit could have come to the same result on narrower grounds. Finally, this article suggests substituting a different "but for" test that would apply to challenges to administrative actions that should trigger strict scrutiny when a statute, regulation, or agency action will result in the separation from religious employment of a non-U.S. citizen due to the application of U.S. immigration laws and procedures to non-religious conduct that do not expressly target religion but still burden it.


    Ministers of religion, religious professionals, and other religious workers in a religious vocation or religious occupation may come to the United States to work for up to five years in temporary R-1 visa status, or permanently as special immigrants under the INA. (13) The requirements to qualify a religious worker for both categories are very similar, though to qualify as a special immigrant, the worker must have been continuously engaged in the vocation or occupation for at least two years. (14) It is not uncommon for a religious worker who is admitted temporarily to ask to remain in the United States for longer than five years or permanently. (15) To accomplish this change in objective, a religious petitioner must file an 1-360 Petition for Special Immigrant Religious Workers and, once that is approved, the foreign national religious worker may apply for adjustment of status in the United States or, if he or she is or will be outside of the United States, apply for an immigrant visa at a U.S. consulate. (16)

    Issues may arise over timing of the various applications. Given the time limits on the R-l visa, (17) if the 1-360 petitioner waits too long or the USCIS processing is delayed, then the religious worker beneficiary of the petition may be forced to leave the United States. It was this situation that the plaintiffs in Ruiz-Diaz challenged. (18)


    In addition to the rules regarding classification as an R-l or special immigrant minister or religious worker, the worker, like all other temporary visitors, workers, and immigrants, is subject to a variety of related substantive and procedural rules, including: inadmissibility grounds that may prevent an individual from entering the United States despite their qualifying in a particular visa category; (19) removability grounds, which are similar but not identical to the inadmissibility grounds, that may require someone already in the United States to be deported; (20) rules relating to admission, changes, and extensions of nonimmigrant status for persons in the United States on nonimmigrant visas in order to remain lawfully in the United States for additional temporary periods; (21) and rules relating to adjustment of status for certain persons who were admitted or paroled into the United States, for whom an immigrant visa is immediately available, and who are admissible to the United States as immigrants. (22)


    Where there is a rule under the INA, there is usually an exception if not multiple exceptions to exceptions. Thus, the majority of rules governing religious workers including those relating to their admission or duration of stay; their applications to change, extend, or adjust their status; or their removal from the United States, are subject to exceptions to the rules in individual cases. (23)

    Congress included numerous waiver provisions in the INA. (24) Many of these are based on the existence of a family member in the United States who might experience the hardship of family separation or worse if the inadmissible or removable foreign national were not allowed to be in the United States (25) These waivers are necessary to mitigate some of the harsh consequences that otherwise attend to strict enforcement of the INA. (26)


    The regulation challenged in Ruiz-Diaz bars concurrent filing of a Form I-360, Petition for Special Immigrant, and the beneficiary's Form I-485, Application to Register Permanent Resident Status or Adjust Status. (27) The Ninth Circuit, basing its result on the Navajo Nation case, reasoned that "[t]he fundamental flaw in the plaintiffs' reliance on RFRA is that the challenged regulation does not affect their ability to practice their religion. They are subject to removal after five years because their visas have expired, not because they are practicing their religion." (28) In addition to the court's prior articulation of "substantial burden" in Navajo Nation, this view inserts an additional, previously unstated, requirement: for government to impose a burden on religious exercise, the challenger's exercise of religion itself must trigger that burden. (29) The court attempts to reinforce its view that there is no substantial burden imposed: "[the plaintiffs'] inability to file their applications concurrently with their employers' petitions may well delay religious workers from adjusting status before their temporary visas expire, but it does not prevent them from practicing their religion." (30)

    But this goes too far, as a matter of logic and law. The delay in adjusting status the court identifies may well constitute a denial of that benefit, resulting in the disruption or loss of religious employment. This actually happens. (31) The rationale also purports to decide what a legitimate religious practice is with the implication that practicing one's religion outside the United States is equal to practicing it in the United States. Not only is this a judgment that federal courts normally try to avoid, (32) it also fails to consider the impact on the U.S. religious organizations that seek to employ the foreign religious workers. (33) But the Ruiz-Diaz panel is nevertheless confident that religious practice in the United States delayed is not the same as religious practice denied:

    Nor does the delay in their ability to file visa applications require plaintiffs to give up any tenet of their religion to...

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