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TENACRE FOUND. v. INS OF THE UNITED STATES

July 13, 1995

TENACRE FOUNDATION, Plaintiff,
v.
IMMIGRATION AND NATURALIZATION SERVICE OF THE UNITED STATES, et al., Defendants.



The opinion of the court was delivered by: STANLEY S. HARRIS

 This matter comes before the Court on plaintiff's motion for a preliminary injunction. The Court finds that, although plaintiff has shown a significant likelihood of success on the merits, plaintiff has not shown that it will suffer any irreparable harm absent preliminary injunctive relief. Plaintiff's motion for a preliminary injunction is therefore denied.

 I. BACKGROUND

 Plaintiff Tenacre Foundation ("Tenacre") is a Christian Science facility located in Princeton, New Jersey. Tenacre was founded in 1935; in 1941, Tenacre expanded its facilities to include a school of Christian Science nursing. A Christian Science nurse is not a nurse in the medical sense of the word. Rather, a Christian Science nurse is engaged in a religious ministry, characterized by religious service and the spiritual healing of the ill. Thus, Tenacre selects its nurses not based on any prior technical medical experience, but based upon a demonstrated commitment to the Christian Science faith and to the tenets of Christian Science nursing. Tenacre selects its nurses from members of the First Church of Christ, Scientist, some of whom are foreign nationals.

 Plaintiff twice moved the ESC to reopen and to reconsider the June, 1993, determination, each time providing new affidavits of persons affiliated with the Tenacre facility, including the president of Tenacre, regarding Kihu's status and role at Tenacre. *fn1" A.R. at 132-33. Plaintiff's July, 1993, petition to reopen and to reconsider was granted, but the Director affirmed his June, 1993, decision. The Director again concluded that plaintiff "was seeking the beneficiary as a trainee," that plaintiff therefore was not yet "fully qualified" to be a Christian Science nurse, and that the INS regulations applicable to applicants for an R-1 visa required a showing that the applicant be "qualified to perform the duties of the traditional religious occupation." A.R. at 130. Since the Director determined Kihu to be a "trainee," it was concluded that Kihu could not qualify for an R-1 visa under the applicable INS regulations. Id.

 Plaintiff's November, 1993, motion to reopen and for reconsideration likewise was granted, but the decision to deny Kihu an R-1 visa again was affirmed. On December 9, 1993, the Director of the ESC again determined that Kihu had not yet "become a Christian Science nurse" and that Kihu must be "fully qualified to perform the duties of a traditional religious occupation" before he was eligible to receive an R-1 visa. A.R. at 40. The December, 1993, decision of the ESC was certified to the Administrative Appeals Unit ("AAU") of the INS, and in September, 1994, plaintiff requested an expedited decision in the case of Kihu's application. A.R. at 24.

 On October 11, 1994, the AAU affirmed the decision of the ESC and denied Tenacre's petition for an R-1 visa for Kihu. The AAU rather inexplicably determined that Kihu "did not qualify as a nurse" and "would not be working in an active religious role," because Tenacre's visa petition "was filed to employ the beneficiary as a nurse's aide." A.R. at 3. Additionally, or perhaps alternatively, the AAU determined that "the offered position of nurse's aide . . . does not qualify as a religious occupation which relates to a traditional religious function." A.R. at 4.

 On May 19, 1995, plaintiff filed this suit against the INS. Plaintiff alleged in its complaint that the INS adopted unlawful regulations and interpreted those regulations so as preclude entry-level Christian Science nurses from obtaining R-1 visas, in violation of section 209 of the Immigration and Nationality Act, 8 U.S.C. § 1101 (Supp. 1995) ("INA"), the Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (1993) ("RFRA"), the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"), the Civil Rights Act of 1964, 42 U.S.C. § 1983, and the First and Fifth Amendments to the Constitution. Plaintiff challenges one regulation in particular, § 8 C.F.R. § 214.2(r)(3)(ii)(C)(3), contending that the regulation in effect imposes a prior qualification requirement upon an applicant for an R-1 visa, which requirement does not exist in the INA.

 On June 14, 1995, plaintiff filed a motion for preliminary injunction. Defendants filed an opposition in the form of a motion for summary judgment on June 30, 1995. Plaintiff filed a reply on July 6, 1995, requesting an extension of time within which to file its opposition to defendant's motion for summary judgment until twenty days after the Court's decision on its motion for a preliminary injunction. The Court held a hearing on plaintiff's motion for a preliminary injunction on July 7, 1995.

 II. ANALYSIS

 Injunctive relief is an extraordinary remedy, and the party seeking it bears a substantial burden. American Coastal Line Joint Venture v. United States Lines, Inc., 580 F. Supp. 932, 935 (D.D.C. 1983). This Circuit has adopted a four-part test to determine whether a preliminary injunction should be granted. Plaintiffs must demonstrate that (1) they are likely to prevail on the merits; (2) they will suffer irreparable harm absent the injunction; (3) an injunction would not substantially impair the rights of the defendants or other interested parties; and (4) an injunction would be in the public interest, or at least would not be adverse to the public interest. Sea Containers Ltd. v. Stena AB, 281 U.S. App. D.C. 400, 890 F.2d 1205, 1208 (D.C. Cir. 1989); Washington Metro Area Transit Comm'n v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 842-44 (D.C. Cir. 1977).

 A. Likelihood of Success on the Merits

 Section 101(a)(15)(R) of the INA provides that an alien may be classified as a "nonimmigrant alien" and receive a ...


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