A-22332670
Decided by Board October 16, 1978.
(1) The respondent, an ordained Minister of Music in the Korean Mission Church, has not established that she qualifies for "special immigrant" status as a minister under section 101(a)(27)(C) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(C), since her training, experience and duties lie primarily in the field of music rather than theology. Ordination by a recognized religious organization is not conclusive as to who qualifies as a minister for purposes of the Act.
(2) Although the respondent claims to have authority to officiate at weddings and funerals and to perform other ministerial functions, she has not in fact been called upon to perform those duties and, hence, has not established that she has satisfied and additional requirement for classification as a minister under section 101(a)(27)(C), specifically, that the religious denomination has a need for her services as a minister.
(3) The immigration judge and the Board have authority to consider an alien's qualifications for classification as a minister under section 101(a)(27)(C). Matter of Wiesinger, Interim Decision 2642 (BIA 1978), distinguished.
CHARGE:
Order: Act of 1952 — Section 241(a)(2) [ 8 U.S.C. 1251(a)(2)] — Nonimmigrant visitor — remained longer than permitted
ON BEHALF OF RESPONDENT: Eddie Yoon, Esquire 6225 North 35th Tacoma, Washington 98407
ON BEHALF OF SERVICE: Kendall B. Warren Trial Attorney
BY: Milhollan, Chairman; Maniatis, Maguire, and Farb, Board Members
In a decision dated March 24, 1978, an immigration judge found the respondent deportable as charged, denied her application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, and granted her the privilege of voluntary departure in lieu of deportation. The respondent has appealed from that decision. The appeal will be dismissed.
The record relates to a 42-year-old widowed female alien, a native and citizen of Korea, who was admitted to the United States on July 18, 1977, as a nonimmigrant visitor. She has remained beyond the authorized length of her stay. Deportability has been established by clear, convincing, and unequivocal evidence on the basis of the respondent's admissions to the factual allegations contained in the Order to Show Cause and the only issue on appeal concerns the denial of her application for adjustment of status.
The respondent claims the immediate availability of an immigrant visa, a statutory prerequisite for a grant of adjustment of status, as a minister of religion pursuant to section 101(a)(27)(C) of the Act, 8 U.S.C. 1101(a)(27)(C). The immigration judge found that the respondent did not qualify as a minister and he accordingly denied her application. We agree with the conclusion reached by the immigration judge.
As redesignated by the 1976 Amendments to the Immigration and Nationality Act, Pub.L. 94-571, 90 Stat. 2703, which took effect January 1, 1977.
Our assumption of jurisdiction over this issue is not precluded by our recent decision in Matter of Wiesinger, Interim Decision 2642 (BIA 1978). The alien in Wiesinger sought adjustment of status as a nonpreference immigrant based upon his claimed entitlement as a religious worker to a Schedule A blanket labor certification. We held that neither the immigration judge nor the Board has jurisdiction to rule upon an alien's qualifications for precertification under Schedule A since that authority is reserved by the regulations to the District Director and, in the absence of approval of precertification by him, the adjustment application must be denied. We find no comparable limitation on the authority of the immigration judge or the Board to consider an alien's qualifications for special immigrant status as a minister of religion under section 101(a)(27)(C) of the Act. Unlike the alien in Wiesinger, whose eligibility for adjustment of status was contigent upon precertification approval by the District Director, a special immigrant under section 101(a)(27)(C) is not subject to the labor certification requirement of the Act. Thus, an inquiry into whether he has satisfied the statutory requirements for classification as a minister is a question of admissibility which, like all other questions of admissibility presented in conjunction with an application for adjustment of status in a deportation proceeding, lies within the jurisdiction of the immigration judge, with review by the Board. Cf. Matter of Ajaelo, Interim Decision 2317 (BIA 1974).
Section 101(a)(27) of the Act provides:
The term "special immigrant" means —
. . . .
(C)(i) an immigrant 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 religious denomination, and whose services are needed by such religious denomination having a bona fide organization in the United States;. . . .
The Act does not provide a definition of the term minister. State Department regulation 22 C.F.R. 42.25, however, contains the following elaboration:
(b) The term "minister", as used in section 101(a)(27)(C) of the Act, means a person duly authorized by a recognized religious denomination having a bona fide organization in the United States to conduct religious worship, and to perform other duties usually performed by a regularly ordained pastor or clergyman of such denomination. The term shall not include a lay preacher not authorized to perform the duties usually performed by a regularly ordained pastor or clergyman of the denomination of which he is a member, and shall not include a nun, lay brother, or cantor.
The record reflects that the respondent was ordained as a Minister of Music on August 21, 1977, by the Korean Mission Church, an independent church in the State of Washington. On the date of her ordination, the church entered into a contract with her, agreeing to employ her as a Minister of Music at a monthly salary of $500.
The contract sets forth the respondent's duties as follows:
The Minister of Music is to minister in the following fields of service:
1. She shall, in consultation with the senior pastor, establish a solid program of Sacred music and Church Choir Ministry.
2. She shall whenever possible seek to bring soul into the Kingdom of God through discipleship training and to inspire the above mentioned congregation.
3. She shall serve on full time basis 40 hours/week for both music and Christian Education.
The respondent was ordained after 16 hours of tutoring in Bible study by the Minister of Evangelism at the church who appeared as a witness in her behalf. He testified that she qualified for ordination as a Minister of Music in view of her background in music and the fact that she had earned a Bachelor of Arts degree in music and a Master's degree in music education from a Christian university. The university required attendance twice a week at chapel and a course in Bible study. Her prior experience consisted of being a choir director for a Presbyterian Church in Seoul, Korea, from April 1975 to February 1976 or 1977, and of being a conductor of a religious choir from December 1971 to February 1972.
The documents in the record are in conflict as to this date. Form MA-7-50A shows February 1977; her "Personal History" statement, originally typed to show February 1977, has an inked correction to show 1976.
Both the senior pastor and the respondent testified that she was authroized to perform all functions of a minister, including officiating at marriages and funerals. It was conceded that she has not performed these functions because her services have not been needed due to the size of the congregation and the availability of two other ministers. The Korean Mission Church has two congregations with a total membership of about 100 families. The congregations are served by three ministers which include the respondent, the Minister of Evangelism, and a Minister of Visitation (Tr. pp. 26 29). When asked how the training of a Minister of Music differs from that of a Minister of Evangelism, the Minister of Evangelism explained that he is required to have theology and Bible training whereas a Minister of Music has an "all music background" (Tr. p. 28).
We believe the conclusion of the immigration judge that the respondent does not meet the requirements of section 101(a)(27)(C) is well-founded. First, we find that the respondent has not established that she is a minister. Although she was ordained, her ordination was based on her music training and not on any theological training or education (Tr. pp. 22, 25, 30). See Matter of Bisulca, 10 I. N. Dec. 712 (R.C. 1963). Although she claims to have authority to officiate at weddings and funerals and can assume preaching and visitation functions at the church (Tr. pp. 11, 27), duties which she has not been called upon to perform, it appears that her primary duties with the congregation relate to music. Her regular duties, in fact, appear to be similar to those of a cantor, and as noted above, a cantor is specifically excluded by 22 C.F.R. 42.25(b) from qualifying as a "minister".
The respondent argues that the fact that she is recognized as an ordained minister by a recognized religious organization should be the end of the inquiry and cannot be challenged. We do not agree that the issuance of a piece of paper entitled "certification of ordination" by a religious organization should be conclusive as to who qualifies as a minister for immigration purposes. Otherwise, Congressional policy in the field of immigration could be readily circumvented by accommodating religious organizations. Inasmuch as Congress did not define the term "minister", we shall look to the ordinary usage of the term. Webster's New International Dictionary, 2nd Edition, G C Merriam Co., Publishers, 1961, defines a minister as "One, usually a priest, who officiates, as at an altar, or administers, as sacraments." The functions of a Minister of Music in the Korean Mission Church are not primarily those of a minister, as that term is used in the everyday sense. Rather, the duties relate primarily to directing the music program of the church. While such persons may be denoted "ministers" by some religious groups, the Act, we find, employs the term in reference to ministers of theology.
Second, the respondent has not established that she is needed as a minister. While her services as a music director appear to be needed, she has not been called upon to perform the duties usually carried out by a regularly ordained pastor or clergyman because the size of the congregation is such that those needs can be served by the other two ministers at the church.
Third, the respondent does not have the required two continuous years of experience, immediately preceding the filing of her application, in carrying on the vocation of minister. Even if we were to assume that her experience with the Korean Mission Church could be counted, that experience is insufficient, for she has been associated with the church only since August 1977. The respondent contends that the time she spent as a choir director in Seoul, Korea, from April 1975 to February 1976 or 1977 should be tacked on her months of experience with the Korean Mission Church to satisfy the two-year period. She maintains that since her duties in Korea were comparable to those of a Minister of Music, she was in fact performing ministerial duties in Korea even though she had not yet been ordained. In view of our finding that the respondent's duties in the United States following her ordination do not qualify as ministerial duties, we are unable to conclude that her duties in Korea as a choir director so qualify.
The respondent also claims that the hearing was unfair because of the nature of the questioning by the immigration judge. She complains that he lacked impartiality and took on a prosecutorial function. From our review of the record we find the immigration judge's questioning to have been within proper judicial bounds.
The respondent prays that if we dismiss her appeal, we afford her the opportunity to apply for third preference status. The respondent does not require our leave to apply for third preference status or for any other relief for which she may be eligible.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the District Director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order.