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LINDENBERG v. UNITED STATES DOJ

March 11, 1987

Christof-Andreas Lindenberg and Camphill Village, U.S.A., Inc., Plaintiffs,
v.
United States Department of Justice, Immigration & Naturalization Service, Defendants



The opinion of the court was delivered by: GASCH

 Honorable Oliver Gasch, Senior Judge, United States District Court for the District of Columbia.

 I. INTRODUCTION

 This action for declaratory relief is before the Court on cross-motions for summary judgment. Plaintiffs Christof-Andreas Lindenberg and Camphill Village, USA, Inc., seek a determination from this Court that a denial by the Immigration and Naturalization Service ("INS") of a visa petition filed on behalf of Lindenberg was not in accordance with law. Joining the INS as a defendant in this action is the Department of Justice. Defendants seek affirmance of the administrative order accomplishing deportation.

 II. BACKGROUND

 Plaintiff Lindenberg was born in Germany and is now a citizen of Great Britain. In November of 1981, the United States first admitted Lindenberg as a temporary worker pursuant to section 1101(a)(15)(H)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (the "Act"). *fn1" Lindenberg was granted this status for being an individual of "distinguished merit and ability" who planned to live temporarily in the United States upon invitation from a nonprofit organization, namely, Camphill Village.

 Since entering the United States in 1981, Lindenberg has rendered services as a teacher and director of music and art therapy and "service holder" of religious services at Camphill Village in Copake, New York. *fn2" Camphill Village, a member of the Camphill Association of North America, is described by plaintiffs as a nonprofit, nonsectarian, religious organization providing residential therapeutic communities for mentally handicapped children and adults. *fn3" The bylaws of the Camphill Association indicate that the organization is dedicated to providing human services for the mentally retarded through cooperative life, social interaction and spiritual activity. See Plaintiffs' Exhibit A. Based on "anthroposophy," or the teachings of Rudolf Steiner, the Camphill movement is focused toward "Christianizing" the ordinary aspects of life for the mentally handicapped. The bylaws summarize the organization's underlying principles by quoting the following words of Rudolf Steiner:

 Id.

 The record contains in Lindenberg's own words (from his article in The Cresset, the Journal of the Camphill Movement) how he explained the significance of the seasons to those to whom he was seeking to minister:

 
Christmas and Easter have become symbolic of winter's night and nature's resurrection in spring. Whitsun, the event during early summer, only leads up to the new chord which is much less known as a Christian festival: St. John's, on the 24th of June, makes us remember the birth of the great Christ preparer, the Baptist. With it summer has truly begun and some say it lasts to the day of John's beheading at the end of August and what normally is known as the holidays would thus become the Holy Days of St. John. Not much Christian tradition is connected with this ancient festival but in many places a renewal of the meaning of this festival is attempted.
 
Least is known about the Christian side of the festival of St. Michael, the Archangel. St. Michael, as the spiritual leader of our age, is also the leader to the Christ impulse in our time. Michaelmas is celebrated on the 29th of September during the harvest season and a great many melodies and songs turn to him asking as it were his aid in the battle which ensues.
 
These festivals form the main themes of the symphony of the year with its four movements.

 A.R. at 211. Eventually they learned a four voice Bach Chorale. Lindenberg explains how he taught his mentally retarded pupils to sing harmony.

 
In the next two classes it got better. The children wanted to sing. We sang humming songs, question-and-answer songs, and songs related to the subjects of school lessons. Regular time was spent to "get Barry" -- and John, and others -- "in tune", trying to start on the one and only tone which seemed forthcoming, adding one tone above and one below. The others waited and knew: it is essential that John, for instance, also sings in tune. The joy of being in tune was great. It meant being integrated, tuned in also socially to a big, singing class. No-one would say to you anymore, "You are out of tune, better rather be quiet!"
 
To sing rounds, in Class 4, also helped social development. To hold a voice against one another and still to achieve harmony together was something worth working for. Listening belonged to the program too, first a short melody on the recorder, later motifs from, for instance, a Handel or Telemann sonata, played on the alto recorder. The lyre accompanied all efforts in learning to listen and to sing.
 
We learned eventually to sing in different voices, also in different languages. In Class 7 (they were mostly 13-year-olds) we attempted for the first time a 4-voiced Bach Chorale. We learned it in the original German words, whose meaning the children knew. In a free translation it goes as follows:
 
"What my God wills that shall be done His will it is the best
 
To help he is ever ready -- those who trust in him
 
He helps, in need, the good God and punishes in measure.
 
Who has faith in him and builds on him Him -- he will never forsake."

 A.R. at 222.

 On April 23, 1985, Lindenberg filed a visa petition with the INS seeking a "third preference classification" under the Act. See 8 U.S.C. § 1153(a)(3) (1978 & 1986 Supp.). Under this classification, visas are made available to qualified immigrants who will substantially benefit the economy, culture or welfare of the United States because they are "members of the professions" or "persons of exceptional ability in the sciences or arts" and their services are sought by a U.S. employer. Id. Under the Act, persons seeking this classification must submit an "alien labor certification" from the Department of Labor ("DOL") as well as a visa petition based upon an offer of employment. See 8 U.S.C. § 1182(a)(14) (1978 & 1986 Supp.); 8 C.F.R. § 204.1(d)(1) (1985). Under the DOL regulations, some aliens are exempted from the individual labor certification requirement and may receive "blanket certification" if they have "religious commitment" and plan to work for a "nonprofit religious organization." 20 C.F.R. § 656.10(c), Schedule A, Group III(2) (1986).

 On September 4, 1985, Lindenberg's visa application was denied by the INS District Director in Albany, New York. *fn4" See Plaintiffs' Exhibit B. That decision found that Lindenberg did not qualify for the Group III(2) exemption because he would be employed as a music therapist, and this is a lay occupation. On March 5, 1986, the Associate Commissioner for INS Examinations dismissed Lindenberg's appeal from the District Director's decision. The Commissioner confirmed the decision below that Lindenberg's position was secular in nature. In addition, the Commissioner found that the Camphill organization was a "nondenominational, nonsectarian institution" not connected with any religious denomination and therefore not included within the meaning of the term "religious organization" in the Group III(2) regulations. See Plaintiffs' Exhibit D.

 Lindenberg commenced this suit on April 23, 1986. On June 24, 1986, this Court approved a stipulation remanding the matter to INS to reconsider Lindenberg's eligibility for "pre-certification" under Schedule A, Group III(2) and to consider whether he may alternatively qualify under Schedule A, Group II. Upon reconsideration, the Associate Commissioner affirmed the findings below on October 14, 1986. See Plaintiffs' Exhibit E. The Commissioner held that, even assuming Camphill could qualify as a nonprofit, religious organization, Lindenberg's occupation of music therapy is typically a secular pursuit and does not constitute "religious work." Additionally, the Commissioner found that Lindenberg failed to meet the high standards of professional excellence required for Group II certification.

 For these reasons, Lindenberg's visa petition has been denied. He now seeks a declaration from this Court that he is entitled to pre-certification under the Group III(2) classification.

 III. DISCUSSION

 A. Jurisdiction

 This Court's jurisdiction over the case at bar rests upon 8 U.S.C. § 1329 (1978), which confers jurisdiction to district courts of the United States for all causes arising under Title II of the Immigration and Nationality Act, 8 U.S.C. § 1151 et seq. See Hom Sin v. Esperdy, 239 F. Supp. 903 (S.D.N.Y. 1965). Additionally, this Court has general jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff Lindenberg has exhausted his administrative remedies.

 B. Standard of Review

 The defendant correctly asserts that the granting of preference visas is within the sound discretion of the INS. The exercise of that discretion, nonetheless, must be grounded upon findings of fact supported by reasonable substantial and probative evidence on the record considered as a whole. 8 U.S.C. § 1105(a) (1976). See Wing Ding Chan v. INS, 203 U.S. App. D.C. 396, 631 F.2d 978, 980-81 (D.C. Cir. 1980), cert. denied, 450 U.S. 921, 67 L. Ed. 2d 349, 101 S. Ct. 1371 (1981); Unification Church v. INS, 547 F. Supp. 623, 627 (D.D.C. 1982), aff'd, 246 U.S. App. D.C. 98, 762 F.2d 1077 (D.C. Cir. 1985). Errors of law by INS may invalidate the agency decision. Kaliski v. District Director, INS, 620 F.2d 214, 216 (9th Cir. 1980). Moreover, the discretion of the INS must not be abused, "i.e., be without rational explanation, depart without rational explanation from established policies, or 'rested on an impermissible basis . . . or . . . other considerations that Congress could not have intended to make relevant.'" Unification Church v. INS, 547 F. Supp. at 627 (quoting Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966)). See also Administrative Procedure Act, 5 U.S.C. § 706(2)(A). And, of course, the Court may not substitute its judgment for that of the administrative agency and is limited to an examination of the record to ascertain if discretion has been abused.

 C. Application of Statutory and Regulatory Scheme

 From the foregoing, it is evident that the agency decision is fatally flawed in the following respects. First, the Commissioner has ruled that Camphill is not a religious organization. His decision and rationale is set forth as Plaintiffs' Exhibit D. It reads as follows:

 
Because the organization offering the petitioner/beneficiary employment in this proceeding is a nondenominational, nonsectarian institution, it is concluded the petitioner has failed to establish his employment the immediate past two years has been for a qualifying religious organization. Similarly, the petitioner has failed to establish he is seeking to enter the United States for the purpose of working for a religious organization. Many non-profit or not-for-profit social agencies espouse non-denominational, non-sectarian philosophical goals, (the Boy Scouts of America, the Daughters of the American Revolution, et cetera), but are not recognized religious organizations affiliated with a specific, identifiable religion. As remarked above, a thorough review of the ...

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