                    FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GABRIEL RUIZ-DIAZ; HYUN               No. 11-35580
SOOK SONG ; CINDY LEE
MARSH ; PETER GILLETTE;                  D.C. No.
PABLO SANDOVAL; YURIY               2:07-cv-01881-RSL
KASYANOV ; LELIA
TENREYRO -VIANA ; EDGARDO
GASTON ROMERO LACUESTA ;             ORDER AND
ROSARIO RAZO ROMERO ;              AMENDED OPINION
YOUN SU NAM ; LAND OF
MEDICINE ; UKRAINIAN
AUTOCEPHALOUS ORTHODOX
CHURCH ; SEATTLE
MENNONITE CHURCH ;
SALECK OULD DAH OULD
SIDINE ; HAROLD MICHAEL
CARL LAPIAN ,
        Plaintiffs - Appellants,

               v.

UNITED STATES OF AMERICA ;
UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES ;
UNITED STATES DEPARTMENT
OF HOMELAND SECURITY ;
UNITED STATES DEPARTMENT
OF JUSTICE ; JANET A.
NAPOLITANO , Secretary of
Department of Homeland
2                 RUIZ-DIAZ V . UNITED STATES

 Security; ERIC H. HOLDER,
 JR ., Attorney General;
 ALEJANDRO MAYORKAS,
 Director of Citizenship and
 Immigration Services,
         Defendants - Appellees.


         Appeal from the United States District Court
           for the Western District of Washington
          Robert S. Lasnik, District Judge, Presiding

                    Argued and Submitted
             August 27, 2012–Seattle, Washington

                   Filed October 5, 2012
                 Amended November 26, 2012

 Before: Mary M. Schroeder and Ronald M. Gould, Circuit
     Judges, and Jed S. Rakoff, Senior District Judge.*

                            Order;
                  Opinion by Judge Schroeder




  *
    The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
                  RUIZ-DIAZ V . UNITED STATES                          3

                           SUMMARY**


                            Immigration

     The panel affirmed the district court’s summary judgment
in favor of the government in a class action brought by
non-citizen religious workers and organizations that employ
them.       The panel held that regulation 8 C.F.R.
§ 245.2(a)(2)(i)(B), under which plaintiff employees cannot
file visa applications concurrently with the petitions of their
sponsoring employers, does not violate the Religious
Freedom Restoration Act, because it does not impose a
substantial burden on plaintiffs’ religious exercise. The panel
held that the regulation does not violate plaintiffs’ equal
protection rights, because the government established that its
concerns about fraud in the religious worker visa program
constituted a rational basis to treat religious workers
differently from other employment-based visa applicants.
The panel also held that even if the regulation makes it more
difficult for plaintiffs to obtain adjustment of status, it does
not violate due process because there is no legitimate
statutory or constitutional claim of entitlement to concurrent
filings.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4              RUIZ-DIAZ V . UNITED STATES

                         COUNSEL

Robert Pauw, Seattle, Washington, for plaintiffs-appellants.

Melissa S. Leibman, Department of Justice, Washington, DC,
for defendants-appellees.


                          ORDER

    The Opinion filed October 5, 2012, is amended as
follows: on slip Opinion page 12168, line 10, delete the
following text: special immigrant; on slip Opinion page
12168, line 11, delete the following text: Justice Department;
and on slip Opinion page 12168, lines 13–14, amend the
following text: 18 U.S.C. § 1255(a) to 8 U.S.C. § 1255(a).


                         OPINION

SCHROEDER, Circuit Judge:

    Plaintiffs represent a class of non-citizen religious
workers, together with the organizations that employ them,
who have been admitted to this country on five-year religious
worker visas. They challenge a regulation governing the
process by which religious workers can apply for adjustment
of status pursuant to 8 U.S.C. § 1255(a). Under the
regulation, 8 C.F.R. § 245.2(a)(2)(i)(B), such employees are
among the categories of applicants for lawful permanent
resident (“LPR”) status who cannot file their visa applications
concurrently with the petitions of their sponsoring employers.
The employees must wait for the Citizenship and Immigration
Service (“USCIS”) to approve their employers’ petitions
               RUIZ-DIAZ V . UNITED STATES                   5

before they can file applications. The plaintiffs would like to
be able to file the employees’ applications concurrently with
the petitions of the sponsoring employers, as other categories
of applicants for LPR status are permitted to do.

    The employment-based immigration visa statute, 8 U.S.C.
§ 1153(b), divides applicants for such visas into categories,
four of which are important here. The first-preference
category is for “priority” workers, such as professional
athletes and professors; the second-preference is for
professionals who hold advanced degrees; and the third-
preference is for other skilled and unskilled workers.
8 U.S.C. § 1153(b)(1)–(3). The fourth-preference category,
into which plaintiffs here fall, are “special immigrants.”
8 U.S.C. § 1153(b)(4). This category includes religious
workers and other specialized groups, such as certain
physicians and international broadcasters.         8 U.S.C.
§ 1101(a)(27).

    The regulation at issue here allows concurrent filing for
employees in the first three employment-based immigration
categories: “the alien beneficiary’s adjustment application
will be considered properly filed whether submitted
concurrently with or subsequent to the visa petition, provided
that it meets the filing requirements.”             8 C.F.R.
§ 245.2(a)(2)(i)(B). The option to file concurrently is not
extended to the fourth-preference category, which includes
religious workers.

    We have seen this case before, when we held that the
regulation was not contrary to the statute and remanded to the
district court to consider plaintiffs’ remaining contentions.
Ruiz-Diaz v. United States, 618 F.3d 1055 (9th Cir. 2010).
6               RUIZ-DIAZ V . UNITED STATES

    On remand, the district court rejected all of the plaintiffs’
remaining arguments, and the plaintiffs now raise three of
them on appeal. They are that the regulation violates the
Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.
§ 2000bb-1, and the constitutional protections of equal
protection and due process. The contentions all stem from
frustration with the lag in the agency’s processing of
employers’ petitions and the resulting delay in plaintiffs’
ability to file their visa applications. If there is no pending
visa application when a plaintiff’s initial five-year visa
expires, unlawful presence time begins to accrue, with
deleterious immigration consequences. Therefore, as we
have earlier stated, “Ruiz-Diaz’s real concern is that USCIS
does not process the petition for a special immigrant religious
worker visa soon enough.” Ruiz-Diaz, 618 F.3d at 1061.

    RELIGIOUS FREEDOM RESTORATION ACT

    Plaintiffs’ first contention is that the regulation violates
RFRA because it substantially burdens the exercise of their
religion. RFRA requires the federal government to show that
it is advancing a compelling interest through the least
restrictive means possible where the government
“substantially burden[s] a person’s exercise of religion,” even
where, as here, the burden results from a rule of general
applicability. 42 U.S.C. § 2000bb-1. We have held that the
government imposes a substantial burden “only when
individuals are forced to choose between following the tenets
of their religion and receiving a governmental benefit or
coerced to act contrary to their religious beliefs by the threat
of civil or criminal sanctions.” Navajo Nation v. U.S. Forest
Serv., 535 F.3d 1058, 1070 (9th Cir. 2008) (en banc) (internal
citations omitted).
                RUIZ-DIAZ V . UNITED STATES                    7

    In Navajo Nation, we cited Sherbert v. Verner, 374 U.S.
398 (1963), as an example of a forced choice that Congress
intended to prevent by passing RFRA. In Sherbert, the
Supreme Court found that an agency’s decision to deny
unemployment benefits because of a claimant’s religious
objection to working on Saturday burdened her exercise of
religion. Under those circumstances, the claimant was forced
to choose between the tenets of her religion—following the
prohibition on Saturday work—and receiving a governmental
benefit—unemployment payments. Id. at 405–06. Also in
Navajo Nation we cited Wisconsin v. Yoder, 406 U.S. 205
(1972), as an example of the second type of substantial
burden on religious exercise RFRA was intended to prevent.
In Yoder, the Supreme Court held that a state criminal statute
that required parents to send their children to public or private
school infringed on the religious liberties of Amish parents
whose beliefs did not permit their children to attend high
school. Id. The Supreme Court in Employment Division v.
Smith, 494 U.S. 872 (1990), overruled Sherbert and Yoder,
and we held in Navajo Nation that by passing RFRA,
Congress intended to restore those principles and prevent
such burdens on religious exercise in the future. Navajo
Nation, 535 F.3d at 1067–69.

     The 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. Their 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. Nor does the delay in their
ability to file visa applications require plaintiffs to give up
8               RUIZ-DIAZ V . UNITED STATES

any tenet of their religion to access a government benefit, i.e.,
LPR status. As the district court observed, “[g]iving up one’s
religious practices would not improve the chances of
obtaining adjustment of status or help the alien avoid
deportation: in fact, abandoning the religious work on which
the alien’s admission was premised could preclude the
requested relief.” Accordingly, the regulation does not
impose a substantial burden on plaintiffs’ religious exercise
and therefore does not violate RFRA.

                  EQUAL PROTECTION

    Plaintiffs’ second contention is that the regulation violates
Equal Protection principles on the theory that it discriminates
on the basis of religion. The regulation, of course, does not
target any religious group. It affects all members of the
fourth-preference visa category who have been admitted on
employment-based visas. See 8 U.S.C. § 1101(a)(27).

    Even assuming immigrant religious workers are being
treated differently from other employment-based visa
applicants, the difference requires only a rational basis to
survive an Equal Protection challenge. See Fiallo v. Bell,
430 U.S. 787, 792 (1977); Mathews v. Diaz, 426 U.S. 67,
79–80 (1976) (“In the exercise of its broad power over
naturalization and immigration, Congress regularly makes
rules that would be unacceptable if applied to citizens.”). The
government has satisfied that standard. It has shown that
there have been concerns about fraud in the religious worker
visa program, and as a result, the government has
encountered difficulties in determining which applicants are
bona fide religious workers. See, e.g., U.S. Department of
Homeland Security, U.S. Citizenship and Immigration
Services, Office of Fraud Detection and National Security,
               RUIZ-DIAZ V . UNITED STATES                   9

Religious Worker Benefit Fraud Assessment Summary
(2006); U.S. Government Accountability Office, Immigration
Benefits: Additional Controls and a Sanctions Strategy Could
Enhance DHS’s Ability to Control Benefit Fraud 4 (2006).

    We apply rational basis rather than heightened scrutiny
because we defer to the political branches in the immigration
field. See Mathews, 426 U.S. at 81 (“Since decisions in
[immigration] matters may implicate our relations with
foreign powers, and since a wide variety of classifications
must be defined in the light of changing political and
economic circumstances, such decisions are frequently of a
character more appropriate to either the Legislature or the
Executive than to the Judiciary.”); Ram v. I.N.S., 243 F.3d
510, 517 (9th Cir. 2001) (“‘Line-drawing’ decisions made by
Congress or the President in the context of immigration and
naturalization must be upheld if they are rationally related to
a legitimate government purpose.”). The district court
expressed it well when it concluded:

       The bar on concurrent filings is a rational
       regulatory attempt to reduce fraud in the
       religious worker program.          Given the
       government’s legitimate interest in reducing
       fraud and the broad deference courts show the
       determinations of political branches in the
       context of immigration, the bar on concurrent
       filings withstands [Equal Protection] scrutiny.

(footnote omitted).
10              RUIZ-DIAZ V . UNITED STATES

                      DUE PROCESS

    Plaintiffs’ third contention is that the regulation violates
due process. This argument also is rooted in the delays they
experience in having applications processed, delays that often
mean that their five-year visas have expired before their
employers’ petitions can be acted upon. Ruiz-Diaz, 618 F.3d
at 1062 (“[D]elay is in effect denial.”). Delay may indeed be
indicative of a system that is not working effectively. But the
regulatory bar against concurrent filings, enacted for valid
reasons, is not what gives rise to these delays. Rather, the
delays stem from routine processing times.

     While the regulation may compound frustration caused by
delay, plaintiffs cannot claim that their due process rights
have been violated unless they have some “legitimate claim
of entitlement” to have the petitions approved before their
visas expire. See Board of Regents v. Roth, 408 U.S. 564,
577 (1972) (requiring a “legitimate claim of entitlement” to
a governmental benefit for due process analysis). We have
already held that the adjustment of status statute does not
confer a right to concurrent filings. See Ruiz-Diaz, 618 F.3d
at 1061. In Ruiz-Diaz, we held that the agency reasonably
interpreted the statute to mean that the agency had to approve
the employer’s petition for the visa before it considered the
non-citizen’s application. “It is not manifestly contrary to the
statute for the agency to accept the applications of alien
beneficiaries of special immigrant religious worker visas for
filing and processing only when [the petitions have been
approved].” Id. Beyond the statute, the plaintiffs point to no
other conceivable source of a claim of entitlement to
concurrent filing or to earlier dispositions.
                RUIZ-DIAZ V . UNITED STATES                    11

     Plaintiffs’ due process argument further relies on cases,
unlike this one, in which individuals had a statutory or
constitutional right to the governmental benefit at issue. In
Ex Parte Hull, 312 U.S. 546 (1941), for example, the
Supreme Court struck down a prison regulation requiring all
inmate legal documents to be cleared by the parole board.
The Court found that the regulations prevented prisoners from
filing petitions for writs of habeas corpus and were thus
unconstitutional. Id. at 549. Similarly, in Orantes-
Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990), we
upheld an injunction requiring an immigration agency to give
notice to certain refugees of their statutory right to apply for
asylum, because the agency had impeded the refugees’ ability
to apply. Id. at 557. In contrast, here we have explicitly
found that the underlying statute does not confer a right of
concurrent application to the plaintiffs. Ruiz-Diaz, 618 F.3d
at 1061. Therefore, even if the regulation makes it more
difficult for plaintiffs to obtain adjustment of status, it does
not violate due process as there is no legitimate statutory or
constitutional claim of entitlement to concurrent filings.

     In sum, the regulation does not bar religious workers from
applying for adjustment of status. The regulation has only the
practical effect of making it necessary for religious employers
to file visa petitions earlier. There is therefore no violation of
plaintiffs’ due process rights.

    AFFIRMED.
