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November 6, 1997


The opinion of the court was delivered by: KESSLER

 This matter is before the Court on Plaintiff's Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 [ # 19] and Defendants' Cross-Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 [ # 18]. Plaintiff seeks declaratory judgment setting aside decisions of the Defendant, Immigration & Naturalization Service ("INS"), denying her Special Immigrant Religious Worker Petition. Plaintiff brings this action under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (the "APA") and the Immigration and Nationality Act of 1990 (the "Act"), as amended, 8 U.S.C. § 1101 et seq.

 Upon consideration of the Cross-Motions, Oppositions, Replies, and the entire record herein, the Defendants' Motion for Summary Judgment is granted and Plaintiff's Motion for Summary Judgment is denied.

 I. Background1

 Plaintiff Porfiria Avena is a native and citizen of the Philippines. Plaintiff has been a member of the Seventh-day Adventist Church for over thirty-four (34) years. Since 1992 Plaintiff has been working for the Pearl River Seventh-day Adventist Church in Staten Island, New York as a Cradle Roll teacher, deaconess, and personal ministries secretary. (A.R. 139.)

 Defendant INS, located within the Department of Justice, is responsible for administration and implementation of the nation's immigration laws.

 On April 14, 1995, Plaintiff submitted an I-360 Petition for classification as a special immigrant *fn2" religious worker with the INS Eastern Regional Service Center. (A.R. at 12.) The Petition was based on her work as a Cradle Roll teacher, deaconess, and personal ministries secretary for the Pearl River Seventh-day Adventist Church. That Petition was denied on November 22, 1996, by Defendant Edward H. Skerrett, the Acting Director of the INS' Office of Administrative Appeals' (the "OAA"). (A.R. at 152-56.)

 Attached to Plaintiff's Petition was a letter dated April 7, 1995, from her pastor, Dr. Rollin Shoemaker. The letter described the current duties for each of Plaintiff's positions of Cradle Roll teacher, deaconess, and personal ministries secretary. (A.R. at 161-162.) As a Cradle Roll teacher, Ms. Avena prepared teaching materials and instructed children. As a deaconess, Ms. Avena cared for the sick and needy, cared for the church and its property, assisted in baptism ceremonies, helped to prepare bread for the Lord's Supper, and took care of bread and wine at the ordinance table. As a personal ministries secretary, Ms. Avena attended and kept the minutes at missionary meetings, ordered supplies, did minor accounting, monitored offerings and available literature, reported on activities of church members and/or ministries, and reported on personal ministries and church accounts at meetings. (A.R. at 161-162.)

 On May 25, 1995, the Vermont Center Director issued a Notice of Action and request for further documentation supporting the claims that Plaintiff was employed for the required two year period in a full-time religious vocation, and that the Pearl River Church had the ability to pay Plaintiff's "proffered wages". *fn3" (A.R. at 153.) Also, the Vermont Center Director requested that Plaintiff submit a detailed listing of the duties required for each position and amount of time spent performing these duties. (A.R. at 153.)

 Accordingly, on August 2, 1995, Plaintiff submitted the requested documentation in support of her response to the Notice of Action. *fn4" Included in this response was a second letter from the pastor of Plaintiff's church. This letter neglected to mention the position of personal ministries secretary in the list of positions held by Plaintiff, and failed to include a breakdown of the hours Plaintiff spent performing her various duties. (A.R. at 139, 154.)

 On September 19, 1995, the Vermont Center Director denied Plaintiff's Petition for Special Immigrant Religious Worker. (A.R. at 152-156.) In his denial the Center Director found that the Plaintiff had not worked continuously on a full-time basis in her religious occupation for a two year period prior to filing her Petition. The Center Director also found that the duties Plaintiff had carried out did not require "any specific religious training beyond that of a dedicated and caring member of the religious organization". (A.R. at 154.) Finally, the Center Director found that the record lacked any detailed listing of the Plaintiff's proposed duties, the hours Plaintiff was to spend each week performing these duties, and evidence of the Pearl River Church's ability to pay the proffered wage. (A.R. at 154.)

 On October 25, 1995, the Commissioner received Plaintiff's Notice of Appeal. On November 21, 1995, Plaintiff submitted a brief and additional evidence in support of her appeal. *fn5"

 On November 22, 1996, the OAA of the INS issued a decision affirming the ruling of the INS Vermont Center Director, and dismissing Plaintiff's appeal on the ground that she "had not established that she had been engaged continuously in a qualifying religious vocation or occupation for two full years immediately preceding the filing of the Petition" and that the proposed employer did not have the ability to pay the Plaintiff the proffered wage. Moreover, the OAA "determined that the petitioner had not established that she was qualified for a religious worker position, or that the position offered qualified as that of a 'religious worker'." (A.R. at 138-145.)

 Plaintiff claims that she is a religious worker and as such is qualified for the requested status under Section 1101(a)(27) of the Act, which permits the classification of individuals qualified to perform the duties of a traditional religious occupation as "special immigrants". Plaintiff challenges the INS decision to deny her I-360 Petition and seeks a declaratory judgment setting aside the decisions of the Vermont Center Director and the OAA. Specifically, Plaintiff argues that: 1) the INS abused its discretion by requesting additional evidence regarding type and duration of employment at the Pearl River Church; 2) the INS misinterpreted 8 C.F.R. § 204.5(g) as it applies to an employer's ability to pay; and 3) the INS decision is inconsistent with its prior rulings.

 II. Standard of Review6

 This Court is bound by a highly deferential standard of review for agency action. Under the APA, an agency's action may be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(a). In making this finding, the Court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). The Court may not substitute its judgment for that of the agency. Id.; Star Lake R. Co. v. Lujan, 737 F. Supp. 103, 107 (D.D.C. 1990, aff'd 288 U.S. App. D.C. 259, 925 F.2d 490 (D.C. Cir. 1991). The Court's role is to ensure that the agency's decision was based on relevant factors and not a "clear error of judgment." Citizens, 401 U.S. 402 at 416, 28 L. Ed. 2d 136, 91 S. Ct. 814. If the "agency's reasons and policy choices . . . conform to 'certain minimal standards of rationality' . . . the rule is reasonable and must be upheld." Small Refiner Lead Phase-Down Task Force v. EPA, 227 U.S. App. D.C. 201, 705 F.2d 506, 521 (D.C. Cir. 1983)(citations omitted).

 Moreover, a court should accept an agency's interpretation of its own regulations unless that interpretation is "plainly erroneous". Mobiletel, Inc. v. FCC, 323 U.S. App. D.C. 255, 107 F.3d 888, 894 (D.C. Cir. 1997). Deference is due even where the petitioner advances a more plausible reading of the statute. General Elec. v. EPA, 311 U.S. App. D.C. 360, 53 F.3d 1324, 1327 (D.C. Cir. 1995). This standard presumes the validity of agency action. Ethyl Corp v. EPA, 176 U.S. App. D.C. 373, 541 F.2d ...

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