                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-26-2004

Soltane v. US Dept Justice
Precedential or Non-Precedential: Precedential

Docket No. 03-1626




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"Soltane v. US Dept Justice" (2004). 2004 Decisions. Paper 349.
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PRECEDENTIAL                                    (Opinion Filed: August 26, 2004)

       UNITED STATES COURT OF               LAWRENCE H. RUDNICK (Argued)
               APPEALS                      1608 Walnut Street, Suite 1500
        FOR THE THIRD CIRCUIT               Philadelphia, PA 19103
             ____________
                                            Counsel for Appellant
              No. 03-1626
             ____________                   PATRICK L. MEEHAN
                                            LAURIE MAGID
         CAMPHILL SOLTANE,                  VIRGINIA A. GIBSON
                                            SUSAN R. BECKER (Argued)
               Appellant                    615 Chestnut Street, Suite 1250
                                            Philadelphia, PA 19106
                   v.
                                            Counsel for Appellee
   US DEPARTMENT OF JUSTICE;                      ____________________
         IMMIGRATION &
    NATURALIZATION SERVICE                        OPINION OF THE COURT
        ___________________                        ____________________

 ON APPEAL FROM THE UNITED
                                            ALITO, Circuit Judge:
   STATES DISTRICT COURT
 FOR THE EASTERN DISTRICT OF                        Camphill Soltane (“Camphill”)
       PENNSYLVANIA                         appeals a final order of the United States
                                            District Court for the Eastern District of
District Court Judge: Honorable Herbert     Pennsylvania affirming the denial of
                J. Hutton                   Camphill’s visa petition on behalf of an
       (Civil Action No. 02-0727)           employee sought to be classified as a
                                            “special immigrant religious worker.”
           ________________                 Because that denial was predicated on
                                            legal error and improper findings of
        Argued: December 5, 2003            evidentiary deficiency, we vacate the
                                            judgment of the District Court and remand
Before: SLOVITER and ALITO, Circuit         this case for reconsideration by the agency.
 Judges, and OBERDORFER, District
                                                                 I.
               Judge*
                                                   Camphill Soltane is a non-profit
                                            organization, dedicated to providing
   *
    The Honorable Louis F. Oberdorfer,      services to young adults with mental
Senior District Judge for the District of   disabilities. Rooted in “Anthroposophy”
Columbia, sitting by designation.           and the teachings of Rudolph Steiner,
Camphill seeks to create a spiritual              the training process and the religious
community through cooperative life, social        nature of the position, see App. II at 59-61,
interaction, and spiritual activity. “The         as well as a set of literature (some
Camphill Movement is focused on                   authored by Steiner) that discussed
Christianizing the ordinary aspects of life       Anthroposophy and the “C amphill
for the mentally handicapped as well as for       M ovem ent” a nd was presumably
the fully able members of the community           submitted as representative training
. . . .” Appellant Br. at 6.                      material.     See App. II at 62-146.2
                                                  No twiths tanding the su pplem enta l
        Since 1996, the Chester County
                                                  submissions, the INS denied Camphill’s
facility of Camphill has employed
                                                  petition in February 2001, finding that
Annagret Goetze, a citizen and native of
                                                  Camphill had failed to establish that
Germany. Goetze was originally admitted
                                                  Goetze was to be employed in a religious
into the United States in the R-1
                                                  occupation, as required under the
classification as a nonimmigrant religious
                                                  regulations. App. I at 31.
worker. In 2000, Camphill filed an I-360
immigrant visa petition on behalf of                         Camphill filed a timely appeal with
Goetze with the Immigration and                   the Administrative Appeals Unit. In
Naturalization Service (INS). 1       This        December 2001, a final administrative
petition sought to have Goetze classified         d e c i s io n w a s r e n d e r e d b y t h e
as a special immigrant religious worker so        Administrative Appeals Office (AAO) of
that she could serve in the proposed              the INS. Reviewing the record de novo,
position of houseparent, music instructor,        the AAO affirmed on four independent
and religious instructor at the Camphill          grounds, any one of which alone could
facility.                                         have justified the denial: (1) Camphill did
                                                  not qualify as a religious organization as
       The Vermont Servicing Center of
                                                  required by 8 U.S.C. § 1101(a)(27)(C); (2)
the INS made a request for further
                                                  the proposed position of houseparent was
evidence showing that Goetze had two
                                                  neither a religious occupation nor a
years of experience in a religious
                                                  religious vocation; (3) there was
occupation and that she had received
                                                  insufficient evidence to determine whether
specific religious training. App. I at 32.
                                                  Goetze had worked in a religious position
Camphill responded with explanations of
                                                  for two years preceding the petition; and
                                                  (4) Cam phill provided insufficient
                                                  evidence to prove that there was a
     1
      The INS has ceased to exist as of
March 1, 2003, and has been replaced by
                                                     2
the Bureau of Citizenship and Immigration              For example, App. II at 86 is a sheet
Services. We nevertheless use the term            labeled “Study Material” listing several
INS throughout this opinion (as do the            sources, some of which appear to be
briefs) for the sake of consistency.              included in the administrative record.

                                              2
qualifying tender of a job to Goetze.              Id. In this case, the statutory basis for
                                                   Camphill’s visa request was 8 U.S.C.
        Camphill appealed for review of the
                                                   § 1153(b)(4), which governs the issuance
AAO decision in the Eastern District of
                                                   of preference visas to “certain special
Pennsylvania, under the Administrative
                                                   immigrants,” including those engaged in a
Procedure Act (APA). In February 2003,
                                                   “religious occupation or vocation,” see id.
the District Court entered judgment against
                                                   § 1101(a)(27)(C)(ii). If the AAO’s denial
Camphill, affirming the AAO decision on
                                                   of Camphill’s visa request constituted a
all four grounds. This appeal followed.
                                                   “decision or action of the Attorney General
                    II.                            the authority for which is specified under
                                                   this title to be in the discretion of the
       As a preliminary matter, we are
                                                   A t t o r n e y G e n e r a l ,” t h e n un d e r
required to consider the issue of subject
                                                   § 1251(a)(2)(B)(ii) the District Court
matter jurisdiction, even though neither
                                                   lacked jurisdiction to review the agency
party contends that it is lacking here. See
                                                   action.
Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534, 541 (1986) (“[E]very federal                  The key to § 1251(a)(2)(B)(ii) lies
appellate court has a special obligation to        in its requirement that the discretion giving
satisfy itself not only of its own                 rise to the jurisdictional bar must be
jurisdiction, but also that of the lower           “specified” by statute. In other words,
courts in a cause under review, even               “the language of the statute in question
though the parties are prepared to concede         must provide the discretionary authority”
it.”) (internal quotes omitted).        The        before the bar can have any effect.
jurisdictional question in this case centers       Spencer Enterprises, Inc. v. United States,
on 8 U.S.C. § 1252(a)(2)(B)(ii), which             345 F.3d 683, 689 (9th Cir. 2003). For
provides in pertinent part:                        example, in Spencer Enterprises, the Ninth
                                                   Circuit found no discretion specified in a
       Notwithstanding any other
                                                   statute that listed “clear[] . . . eligibility
       provision of law, no court
                                                   requirements” with instructions that a visa
       shall have jurisdiction to
                                                   “shall” issue when those requirements are
       review . . . any other
                                                   met. By contrast, in Urena-Tavarez v.
       decision or action of the
                                                   Ashcroft, 367 F.3d 154 (3d Cir. 2004), we
       Atto rney Ge neral th e
                                                   found that the statute at issue “explicitly
       authority for which is
                                                   assign[ed]” discretion to the Attorney
       specified under this title [8
                                                   General, focusing on the use of specific
       U.S.C. §§ 1151 et seq.] to
                                                   language to that end (“discretion” and
       be in the discretion of the
                                                   “sole discre tion”), to geth er w ith
       Attorney General, other than
                                                   instructions that certain actions “may” (as
       the granting of relief under
                                                   opposed to “shall”) be taken when any of
       [8 U.S.C. § 1158(a)]
                                                   the enumerated conditions is satisfied.
       [governing asylum].

                                               3
      The statute at issue in this case        admission, has been a
provides:                                      member of a religious
                                               denomination having a bona
      Visas shall be made
                                               fide nonprofit, religious
      available, in a number not to
                                               organization in the United
      exceed 7.1 percent of such
                                               States;
      w o rl dw id e leve l, to
      qualified special immigrants                   (ii) seeks to enter the
      described in [8 U.S.C. §                 United States–
      1101(a)(27)] (other than
                                                    (I) solly for the purpose
      those described in
                                               of carrying on the vocation
      subparagraph (A) or (B)
                                               of a minister of that
      thereof), of which not more
                                               religious denomination,
      than 5,000 may be made
      available in any fiscal year                  (II) before October 1,
      to sp e ci al im migrants                2008, in order to work for
      described in subclause (II)              the organization at the
      or (III) of [8 U.S.C. §                  request of the organization
      1101(a)(27)(C)(ii)(II) or                in a professional capacity in
      (III)], and not more than 100            a religious vocation or
      may be made available in                 occupation, or
      any fiscal year to special
                                                   (III) before October 1,
      i m migra n t s , e x c ludin g
                                               2008, in order to work for
      spouses and children, who
                                               the organization (or for a
      are described in [8 U.S.C. §
                                               bona fide o rganization
      1101(a)(27)(M)].
                                               which is affiliated with the
8 U.S.C. § 1153(b)(4) (emphasis added).        religious denomination and
                                               is exempt from taxation as
        A “special immigrant,” as that
                                               an organization described in
classification pertains to ministers and
                                               section 501(c)(3) of the
other religious workers, is defined as:
                                               Internal Revenue Code of
              (C) an immigrant,                1986) at the request of the
      and the immigrant's spouse               organization in a religious
      and       children       if              vocation or occupation; and
      accompanying or following
                                                      (iii)  has     been
      to join the immigrant, who–
                                               carrying on such vocation,
                (i) for at least 2             professional work, or other
      years immediately preceding              work continuously for at
      the time of application for              least the 2-year period


                                           4
       described in clause (i);                     marginally ambiguous statutory language,
                                                    without more, is adequate to “specific[y]”
8 U.S.C. § 1101(a)(27)(C).
                                                    that a particular action is within the
        The language of 8 U.S.C.                    Attorney General’s discretion for the
§ 1153(b)(4) makes clear that the Attorney          purposes of § 1252(a)(2)(B)(ii).         Of
General is required to grant preference             course, in a sense, an agency generally has
visas to those who fall within certain              “discretion” under Chevron to interpret
numerical limits and qualify as “special            ambiguous language used in a statute it
immigrants” under § 1101(a)(27). These              administers. But if that sort of ubiquitous
relevant numerical limits are set by statute,       “discretion” were sufficient by itself to
see 8 U.S.C. § 1153(b)(4), and the                  satisfy § 1252(a)(2)(B)(ii), the effects of
definition of “special immigrant” (as               that jurisdictional bar would be sweeping
relevant to religious workers) is fairly            indeed. We do not believe that Congress
detailed and specific, with no explicit             intended such a result. 3
reference to “discretion” as in Urena-
                                                           For these reasons, we hold that a
Tavarez. In fact, 8 U.S.C. § 1153(b)(4)
                                                    preference visa determination under
bears some similarity to the neighboring
                                                    § 1153(b)(4) is not a “decision or action of
provision, 8 U.S.C. § 1153(b)(5), which
                                                    the Attorney General the authority for
was analyzed in Spencer Enterprises, in
                                                    which is specified under this title to be in
that it sets forth specific eligibility
                                                    the discretion of the Attorney General.”
requirements, with instructions that the
                                                    The     jurisdictional           bar         of
visa “shall” issue if those requirements are
                                                    § 1252( a ) (2 ) ( B ) ( ii ) is t h e re f o re
met.     Accordingly, we do not read
                                                    inapplicable in this case.
§ 1153(b)(4) as having “specified” that the
granting of the visas in question “be in the
discretion of the Attorney General.”                      3
                                                          Furthermore, if “discretion” under
        We note that the dissent in Spencer         § 1251(a)(2)(B)(ii) means nothing more
Enterprises criticized the majority in that         than the “application of facts to
case for what it believed was an overly             principles,” see Spencer Enterprises, 345
“mechanical” approach, including reliance           F.3d at 699 (Beezer, J., dissenting), then it
on the semantic distinction between “may”           is hard to imagine any action by the
and “shall.” See Spencer Enterprises, 345           Attorney General under the relevant title
F.3d at 696-98. (Beezer, J., dissenting).           that would not be deemed discretionary.
We agree that the question of whether               For example, the substantial evidence
discretionary authority has been specified          standard under which we review many
by statute should be considered by                  immigration actions contemplates that in
examining the statute as a whole. But we            some cases there will be a range of
do not think (as the Spencer Enterprises            acceptable outcomes among which an
dissent goes on to suggest) that the use of         adjudicator might reasonably choose. 8
                                                    U.S.C. § 1252(b)(4)(B).

                                                5
                     III.                                                    A.
       We now turn to the merits of the                      We first consider the question
appeal.        Under the Administrative               whether Camphill qualifies as a “religious
Procedure Act, we will reverse agency                 organization” under § 1101(a)(27)(C).
action if it is “arbitrary, capricious, [or] an       The associated regulation at 8 C.F.R.
abuse of discretion,” or “unsupported by              § 204.5(m)(3) mandates that petitioners
substantial evidence.” 5 U.S.C. § 706;                prove eligibility for tax-exempt status
Spencer Enterprises, 345 F.3d at 693. We              under “section 501(c)(3) of the Internal
defer to both formal and informal agency              Revenue Code of 1986 as it relates to
interpretations of an ambiguous regulation            religious organizations.” Id. The AAO
unless those interpretations are “plainly             held that “[o]nly organizations classified,
erroneous or inconsistent with the                    or classifiable, as ‘churches’ . . . are
regulation.” Bowles v. Seminole Rock &                qualifying religious organizations for the
Sand Co., 325 U.S. 410 (1945); Thomas                 purpose of special immigrant religious
Jefferson University v. Shalala, 512 U.S.             worker classification.” App. I at 25.
504, 512 (1994); Auer v. Robbins, 519
                                                               The government later informed the
U.S. 452 (1997).4
                                                      Court that “the agency [was] in the process
                                                      of issuing a memorandum that . . .
   4                                                  broadens its interpretation of when an
    We need not decide whether the AAO
                                                      organization may qualify as a ‘bona fide
adjudication in this case is best
                                                      religious organization,’” and that it
characterized as “formal” or “informal,”
                                                      therefore desired to withdraw its argument
since the outcome in terms of deference is
                                                      that Camphill had not qualified for the
the same. See Caruso v. Blockbuster-Sony
                                                      special immigration visa on the ground
Music Entertainment Ctr., 193 F.3d 730,
                                                      that it was not a “church.” Appellee Letter
733 (3rd Cir. 1999); Scott H. Angstreich,
                                                      Br. at 1. 5 We accept this concession, and
Shoring Up Chevron: A Defense of
Seminole Rock Deference to Agency
Regulatory Interpretations, 34 U.C. Davis             (2001) (agency’s informal interpretation of
L. Rev. 49, 56 (2000) (“[A]n interpretation           a statutory ambiguity does not merit
of a regulation in a format lacking the               Chevron deference).
force of law warrants Chevron-style
                                                        5
deference, but such an interpretation of a               See William R. Yates, U.S. Citizenship
statute does not.”); Note, 114 Harv. L.               and Immigration Services, Extension of
Rev. 359, 377-78 (2000) (“The Auer Court              the Special Immigrant Religious Worker
. . . held that agencies can issue                    Program and Clarification of Tax Exempt
authoritative interpretations of their own            Status Requirements for R eligious
ambiguous regulations outside [the                    Organizations (December 17, 2003),
procedural] strictures [of the APA].”); cf.           availa ble a t h t t p :/ / w w w . i l w . co m /
U.S. v. Mead Corp., 533 U.S. 218, 227-29              lawyers/immigdaily/doj_news/2004,0113

                                                  6
therefore proceed under the assumption                       facilities, missionaries,
that Camphill qualifies as a “religious                      religious translators, or
organization.”                                               religious broadcasters. This
                                                             group does not include
                         B.
                                                             janitors, main tenance
        We next consider whether the AAO                     w orkers, clerks, f u n d
decision can be affirmed on the ground                       raisers, or persons solely
that the proposed position of houseparent                    involved in the solicitation
is not a “religious occupation.” 6 This term                 of donations.
is defined by regulation as follows:
                                                      8 C.F.R. § 204.5(m)(2) (emphasis added).
       Religious occupation means                     The AAO found that the “duties of the
       an activity which relates to                   position [of houseparent] involve the care
       a traditio nal re ligious                      of the mentally handicapped,” and that
       function. Exa mp les of                        “[s]uch duties are considered a wholly
       individuals in religious                       secular function, even if the facility is
       occupations include, but are                   operated by a charitable organization
       not limited to, liturgical                     founded on religious principles.” App. I at
       workers, religious                             26. The AAO further explained that “[t]he
       i n s t r u c t o r s , r e l ig i o u s       service interprets the pertinent regulations
       counselors, cantors,                           to require that such positions are
       catechists, workers in                         traditionally full-time salaried positions
       r e ligious hospitals o r                      requiring specific religious or theological
       r e l i g i o u s h e a l th c a re            training,” and that Camphill had failed to
                                                      show that the position of houseparent
                                                      satisfied this definition. Id. On appeal,
-religiouswker.pdf.                                   Camphill argues that the INS erred in
                                                      interpreting § 204.5(m)(2) in a manner that
       6
        Camphill originally argued that               excluded the position in which Goetze was
Goetze’s position also constituted a                  to serve.
“religious vocation,” as that term is
                                                              We agree with Camphill that the
defined in 8 C.F.R. § 204.5(m)(2). The
                                                      AAO improperly applied the regulation in
AAO rejected that position, and Camphill
                                                      this case. The characterization of Goetze’s
does not appear to challenge that
                                                      position as not “relat[ing] to a traditional
determination on appeal. Aside from a
                                                      religious function” suggests that the
passing reference to the “religious
                                                      conclusion was predetermined. The AAO
vocation” term in its brief, Camphill’s
                                                      first described what Goetze did in terms
argument is centered entirely on the
                                                      that excluded any mention of the religious
meaning of the term “religious
                                                      component of her duties—saying that her
occupation.” See Appellant Br. at 23-28;
                                                      job was to care for the mentally
Appellant Reply Br. at 8-15.

                                                  7
handicapped—and then concluded that she            “religious occupation” involve only
was performing a secular function because          religious functions, we believe that its
its own characterization of what she was           interpretation is inconsistent with the text
doing was secular. The same approach               of the regulation and other indications of
could be used as a basis for concluding            the agency’s intent and is accordingly not
that most of the positions explicitly listed       entitled to deference. Thomas Jefferson,
in the regulation are secular. For example,        512 U.S. at 512.
§ 204.5(m)(2) mentions “religious
                                                           Alternatively, if the AAO’s
translators,” who might be described as
                                                   decision is read as finding that the position
performing the function of translation, a
                                                   of houseparent involved only secular
“secular” activity. Similarly, “religious
                                                   functions, we do not find that conclusion
counselors” perform the function of
                                                   supported by substantial evidence of
counseling troubled individuals, which
                                                   record. Camphill consistently testified that
could also be characterized as secular.
                                                   Goetze’s position involved a number of
Accordingly, we believe the AAO’s
                                                   clearly religious responsibilities, including
analytic approach is inconsistent with the
                                                   “imbuing residents with the religious
text of the regulation.
                                                   values and practices of Camphill[;]
        We note that the regulation                conducting house-based ac tivities,
specifically excludes certain workers, such        including practical chores, prayer, festival
as “janitors” and “maintenance workers,”           celebrations and Bible readings[;]
who perform wholly secular functions, but          instructing other staff in the practices and
this does not mean that a person cannot            Christian values of Camphill life[;] [and]
qualify as having a “religious occupation”         [t]eaching religious subjects and values to
if the worker’s job includes both secular          mentally retarded young adults.” App. I at
and religious aspects. In this vein, we note       35. Moreover, the religious texts included
that the commentary accompanying the               in the administrative record, including
promulgation of § 204.5(m)(2) provides             transcripts from a series of lectures entitled
that “[i]f [a] job has no religious                “Curative Education,” App. II at 62-85,
significance, then the fact that a person is       appear to provide some support for
a member of a religious denomination               Camphill’s contention that even the
working in a facility run by the                   prescribed manner of care for its mentally
denomination would not by itself make              handicapped residents involved religious
that person a religious worker.” 56 Fed.           aspects. The AAO did not analyze or
Reg. 66965 (Dec. 27, 1991) (emphasis               otherwise engage this evidence, but rather
added).     We take this language as               stated perfunctorily that Goetze’s duties
suggesting that a job may qualify under the        are “wholly secular.” There is little or no
regulation if it has some religious                support in the record for that claim.
significance. To the extent that the AAO
                                                          Finally, we consider the AAO’s
read § 204.5(m)(2) as requiring that a
                                                   position that a “religious occupation” must

                                               8
be a “traditionally full-time salaried              shown that the position of houseparent is
position[] requiring specific religious or          traditionally a permanent salaried position
theological training.” This interpretation          or that the duties of the position require
is similarly questionable. The requirement          specific religious training.” App. I at 26.
that the position be “salaried” appears to          This is insufficient to constitute substantial
be inconsistent with the list of religious          evidence in support of the AAO’s
occupations given in the regulation itself,         conclusion.
which includes positions—perhaps most
                                                            We need not set forth here a
notably “missionaries”—who do not
                                                    definitive test regarding when a job may or
always receive salaries. We further note
                                                    may not be characterized as a “religious
that in promulgating the final rules at
                                                    occupation.” However, we think it clear
issue, the agency explicitly stated that they
                                                    that the AAO has failed to show why the
had been “revised to account more clearly
                                                    position offered by Camphill to Goetze in
for uncompensated volunteers, whose
                                                    this case does not qualify. Accordingly,
services are engaged but who are not
                                                    we cannot sustain the decision of the AAO
technically employees.” 56 Fed. Reg.
                                                    on this ground without further evidence or
66965 (Dec. 27, 1991) (emphasis added).
                                                    explanation.
       With respect to the “full-time” and
                                                                         C.
“religious or theological training”
requirements, assuming for the sake of                     The other two reasons underlying
argument that such requirements are                 the AAO’s denial of Camphill’s visa
consistent with the regulation, we see no           application had to do with purported
evidence that the position offered by               evidentiary deficiencies. Specifically, the
Camphill would not qualify. Camphill                AAO held that Camphill had not proven
indicated to the agency that Goetze’s               that Goetze had two years of continuous
responsibilities required at least 80 hours         experience in the relevant occupation, see
of labor per week, see App. I at 35, and            8 C.F.R. § 204.5(m)(1), nor had it proven
that she would be working “full-time,”              that a “qualifying job offer” had been
without “supplemental employment.” Id.              tendered to Goetze, see id. § 204.5(m)(4).
at 36. Camphill also submitted detailed
                                                            It is true that Camphill did no more
descriptions of its training process, see
                                                    than submit a letter explaining (among
App. II at 59-61, as well as extensive
                                                    other things) that Goetze had been
excerpts from its religious texts in
                                                    employed by Camphill for four years, see
response to the agency’s request for
                                                    App. II at 35, and that she would continue
training curriculum. See App. I at 32;
                                                    to receive room, board, medical insurance,
App. II at 62-146. Again, there is no
                                                    etc., as compensation for her work, see
suggestion in the AAO’s opinion that this
                                                    App. II at 36. On the other hand, the AAO
evidence was ever considered—only the
                                                    decision does not explain in any
bald assertion that Camphill had “not
                                                    reasonable detail why this evidence was

                                                9
insufficient. The AAO simply states that             uncontradicted evidence. See Richard J.
“supporting documentary evidence”                    Pierce, Jr., 2 Administrative Law Treatise
should have been submitted, and cites                § 11.2 at 791 (2002). For example, if the
Matter of Treasure Craft of California, 14           AAO ruling was based on a determination
I. & N. Dec. 190 (Reg. Comm. 1972), for              that Camphill’s assertions were not
the proposition that the petitioner in visa          credible, then there should have been some
proceedings bears the evidentiary burden             sort of finding regarding credibility, either
of proof.                                            explicit or implicit. See Tieniber v.
                                                     Heckler, 720 F.2d at 1254 (describing
       Of course, there is no doubt that
                                                     “strict” and “lenient” approaches by
Camphill bore the burden of proof in this
                                                     courts); see also Choratch v. Finch, 438
case; again, the critical question is why the
                                                     F.2d 342, 343 (3d Cir. 1971) (“We think it
letter presented by Camphill was
                                                     is not too much to require that an
insufficient to sustain that burden. In this
                                                     administrative decision that a claimant is
respe ct, Treasure Craft is easily
                                                     not eligible . . . be supported by explicit
distinguished from this case. There, the
                                                     findings of all facts that are essential to the
petitioner went on record as declaring that
                                                     conclusion of ineligibility.”). The AAO
competent training in the pottery industry
                                                     makes no effort to explain or suggest why
was not available in Mexico.             The
                                                     it rejected Camphill’s detailed letter
Regional Commissioner deciding the case
                                                     explaining the nature of Goetze’s position.
took administrative notice of the fact that
Mexico had a thriving pottery trade, and                      Furthermore, Camphill notes that
accordingly held that the assertions by the          INS regulations place an obligation on the
petitioner were insufficient to sustain the          part of the INS to request additional
burden of proof. Here, by contrast, there            evidence if that which was already
was no similar administrative notice                 submitted is deemed insufficient. See 8
opposing Camphill’s documentation to the             C.F.R. § 103.2(b)(8) (“where there is no
effect that Goetze did indeed undergo                evidence of ineligibility, and initial
significant religiou s training, was                 evidence or eligibility information is
employed by Camphill for two years, and              missing or the Service finds that the
had been extended a job offer.                       evidence submitted either does not fully
                                                     establish eligibility for the requested
       “ A n agency's rejection of
                                                     benefit or raises underlying questions
uncontradicted testimony can support a
                                                     regarding eligibility, the Service shall
finding of substantial evidence.” Tieniber
                                                     request the missing initial evidence”)
v. Heckler, 720 F.2d 1251, 1254 (11th Cir.
                                                     (emphasis added).7 The INS does not
1983); see also NLRB v. Walton Mfg. Co.,
369 U.S. 404, 408 (1962). However, an
agency is generally under at least a                       7
                                                           For example, although the AAO
minimal obligation to provide adequate
                                                     mentions that Camphill might have
reasons explaining why it has rejected
                                                     submitted Goetze’s tax documents to show

                                                10
provide any explanation, either in the
AAO ruling or in its brief on appeal, as to
why this regulation would be inapplicable
in this case.
       Because the AAO’s rejection of the
evidence regarding Goetze’s work
experience and job offer does not appear
to be supported by substantial evidence,
we conclude that the AAO decision may
not be sustained on these grounds without
further evidence or explanation.
                     IV.
       None of the arguments advanced by
the AAO in support of the visa denial
withstand scrutiny on appeal. The AAO
clearly did not “consider[] all relevant
[evidentiary] factors” in this case, Florida
Power & Light Co. v. Lorion, 470 U.S.
729, 744 (1985), nor did it properly
interpret its regulation defining “religious
occupation.” The “proper course” is
therefore to “remand to the agency for
additional investigation or explanation.”
Id.




that she had been employed full-time by
C a m p h i l l w i t h o u t e n g ag i n g in
supplemental employment, see App. I at
27, it is clear that the initial request for
additional evidence issued by the INS,
while it demanded several items of
information from Camphill, did not make
any demand for tax documents. App. I at
32.

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