Young-Hung Wu v. Immigration and Naturalization Service
YOUNG-HUNG WU, Petitioner, v. IMMIGRATION & NATURALIZATION
SERVICE, Respondent.
C.A. No. 93-70001 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
June 9, 1994, ** Submitted, Pasadena, California ** The panel unanimously finds this case suitable for
submission on the record and briefs and without oral
argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4.
June 27, 1994, Filed
Subsequent History: Reported in Table Case Format at: 28 F.3d 111.
Prior History:
Petition to Review a Decision of the Board of Immigration Appeals. I&NS No. A24-810-165Disposition:
AFFIRMED.Judges:
Before: FARRIS, O'SCANNLAIN and TROTT, Circuit JudgesOpinion:
MEMORANDUM * * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. Young-Hung Wu appeals the decision of the Board of Immigration Appeals affirming the immigration judge's denial of his application for adjustment of status under § 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255. We have jurisdiction pursuant to 8 U.S.C. § 1105a. We review the BIA's factual findings regarding an alien's eligibility for adjustment of status for substantial evidence. See 8 U.S.C. § 1105a(a)(4) (1988); Lee v. INS, 541 F.2d 1383, 1384-86 (9th Cir. 1976). The BIA decision can be reversed only if the evidence presented by Wu was such that a reasonable factfinder would have to conclude that he satisfied the requirements of a special immigrant minister. INS v. Elias-Zacarias, 117 L. Ed. 2d 38, 112 S. Ct. 812, 817 (1992) (applying standard in asylum context). Since the BIA adopted the IJ's evidentiary findings as its own, we review the IJ's factual findings to determine whether the BIA's adoption of those findings is supported by substantial evidence. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992). I.Criteria for Adjustment of Status Section 245 of the INA allows the INS to adjust the status of a nonimmigrant to that of a person admitted for permanent residence. See 8 U.S.C. § 1255(a) (1988). The alien bears the burden of demonstrating that (1) he has applied to an INS District Director for the adjustment, (2) he is eligible to receive an immigrant visa and is admissible to the United states, and (3) an immigrant visa is immediately available to him at the time the application is filed. See id.; Choe v. INS, 11 F.3d 925, 928 (9th Cir. 1993). The BIA denied Wu's application for adjustment of status because Wu failed to establish that he was "eligible" to receive an immigrant visa. II. Special Immigrant Minister An alien is eligible for (though not necessarily entitled to) a special immigrant visa by establishing that he is a "special immigrant minister" under § 101(a)(27)(C) of the INA, 8 U.S.C. § 1101(a)(27)(C) (1988). See 8 U.S.C. § 1204 (1988). Under the pre-1990 version of the INA, Wu had the burden of showing that at the time he applied for adjustment of status, he was an imigrant who continuously for at least two years immediately preceding the time of his application for admission to the United States has been, and who seeks to enter the United States solely for the purpose of carrying on the vocation of minister of a religioius denominiation, and whose services are needed by such religious denomination having a bona fide organization in the United States. 8 U.S.C. § 1101(a) (27) (C) (1988). Wu argus that the BIA adopted an overly restrictive definition of minister. At the time of Wu's Show Cause hearing, the BIA used the State Department's definition of minister, which provided that the term "minister", as used in section 101(a)(27)(C) of the Act, means a person duly authoirzed by a recongized religious denomination aving a bona fide organization in the United States to conduct religious worship, and to perform other duties usually perfomred by a regularly ordained pastor or clergyman of such denomination. The term shall not include a lay preacher nto authorized to perform the duties usually performed by a regulary ordained pastor or clergyman of the denomination of which he is a member, and shall not include a nun, lay brother, or cantor. Matter of Rhee, 16 I & N De. 607, 608-9 (1978) (quoting 1978 version of 22 C.F.R. § 42.25, now codified at 22 C.F.R. § 41.58. The BIA also looks to the ordinary use of the term minister, i.e. the dictionary definiation. Id. at 610 (quoting 1961 edition of Webster's Dictionary: "One, usually a priest, who officiates, as at an altar, or adminsters, as sacraments."). Adoption of the State Department's definition of minister is not unreasonable per se. The problem is that the definition fails to describe the duteies of a minister. Wu correclty argues that the BIA erred in holding that regular duties of a minister can not include engaging "in adivce and counselling similar tot hat of a social worker." An ordained pastor who spends part of his time preaching and part of his time counselling his parishioners is a minister under the ordinary meaning of that term. Cf. In the Matter of Z , 5 I. & N. Dec. 700, 703 (C.O. 1954) (Catholic minister considered a minister even though he taught "in a boarding school; where he was required to teach some academic subjects besides teaching religion and doing religious work." III. Applicable Time Periods Even under the braoder definition of minister, the BIA did no err in concluding that WU was not a special immigrant minister. Wehn an application for adjustment of status is renewed at a deportation hearing, the immigration judge and the BIA consider two different two year time periods to determine whether the alien has been "continuously" carrying on the bvocation of minister: (1) the two years preceding the alien's initial application for adjustment of status before the District Director and (2) the two years preceding the date of the Show Cause Hearing before the immigration judge. See Matter of Lasike, 17 I. & N. Dec. 445, 447 (1980). A. Jume 1982 0 June 1984 Wu's argument that he worked continuously as a minister for two years prior to June 1984 is not supportee by the record. On August 11, 1982 Wu filed an "application for Change of Nonimmigrant Status" with the INS. On that from, he listed his occupation as a "high school teach and social worker." No mention was made of his being a minister. Even if ministerial duties are construed to include non-religious conselling, Wu's August 1982 application may properly be considered in determining his status. B. February 1986 - February 1988 Wu contends that from February 1986 to September 1986, he continued to work at Faith Cumberland Presbyterian Church in San Antonio. Thereafrer, he claims he worked as a minister at the Chinese Christian Fellowship in Haciencda Heights, California until the date of the Show Cause hearing. In addition to his own testimony, Wu introduced a letter from the Hacienda Heights congregation's Chief Executive Officer stating that "Wu as been an extremely active assistant pastor and youth leader of Hacienda Heights Christian Fellowship Church since September of 1986." The letter indicated that while there might be other persons who could minister in limited ways, Mr. Wu is . . . the only person with the proper training, who also speaks both Taiwanese dialect and Mandarin, that we hav been able tolocate." The letter did not specifically list work duties, and it did not state how much gtime he devoted to his different functions. The IJ discounted the Hacienda Hacienda Heights letter. It failed to specifiy the terms of or actual duties of his office . the IJ also noted that the letter contianed language that was virtually idnetical to that in a September 12985 letter written by the pastor at Wu's San Antonio church. While Wu clearly attempted to comply with the statutory requirement, we cannot conclude that evidence presented by Wu is so strtong "that no reaosnable factfinder could fail to find" that he satisfied the requirements of a special immigrant minister. INS v. Eliza-Zacarias, 112 S. Ct. at 817. AFFIRMED
