This week’s News from the Courts was prepared by new SSB attorney Elisa Taub and covers a highly important case calling on USCIS to accept concurrent filing of I-360 and I-485 petitions.  

Hillcrest Baptist Church v. United States ,
No. C06-1042Z, 2007 U.S. Dist. LEXIS 12782 (W.D. Wa. Feb. 23, 2007)  

This case arose out of USCIS’ denial of the plaintiffs’ concurrently filed applications for permanent residence and adjustment of status.  The court rendered two key holdings:  1) that it had subject matter jurisdiction to consider the plaintiffs’ claims; and 2) that the government’s policy of allowing non-religious workers to concurrently file their applications for permanent residence and adjustment of status but not allowing religious workers the same ability violates the Equal Protection component of the Due Process Clause of the Fifth Amendment.   

The plaintiffs are Canadian citizens who initially came to the United States on valid R visas.  Before their R visas expired, the plaintiffs concurrently filed I-360s and I-485s to apply for permanent residence and adjustment of status.  The USCIS repeatedly rejected the plaintiffs’ I-485s as having been prematurely filed and at one point sent them a letter stating, “For I-485 applications may not be filed simultaneously with form I-360 petitions for religious workers.”  The plaintiffs were ultimately placed in removal proceedings.  

After making several unsuccessful attempts to persuade the government to reopen and reconsider their case, the plaintiffs sued the government seeking to reverse USCIS’ decision to deny their applications, to order that the applications be approved and to order that one plaintiff’s employment authorization be approved retroactive to his application date.  The plaintiffs argued that, by not allowing religious workers to file their applications for permanent residence and adjustment of status concurrently, as non-religious workers can, the government discriminated against religious workers in violation of the Equal Protection part of Due Process Clause of the Fifth Amendment.  

Subject Matter Jurisdiction:  First, the Court considered a circuit split as to whether an applicant for adjustment of status may seek judicial review of a denial of the application in the district court prior to renewing the request in the context of removal proceedings.  Ultimately, however, the Court relied on Ninth Circuit precedent to hold that the plaintiffs were not required to exhaust their administrative remedies by raising the issue in removal proceedings and could properly seek redress before the district court.  

Second, the court rejected the government’s argument that the REAL ID Act, which eliminates district court jurisdiction over final orders of removal, prevented the court from hearing this case, because there was no final order of removal in this case.  

Equal Protection:  The government failed to respond to or oppose the plaintiffs’ argument that the government’s policy of accepting concurrent filings of permanent residence and adjustment of status applications from non-religious workers but not from religious workers violates the Equal Protection component of the Due Process Clause of the Fifth Amendment.  Accordingly, the court held for the plaintiffs on all of their arguments and granted all of their requested relief.

Print This Page

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.