Few people would ever confuse the sultry Blanche DuBois of Tennessee Wiliams' Streetcar Named Desire with a Buddhist monk. Despite their very different appearances and stations in life, they share one survival skill. As Blanche explained to the play's protagonist, Stanley Kowalski, Blanche (and so too the follower of Siddhartha Gautama) have "always depended on the kindness of strangers."
As the Wall Street Journal reported on June 9, however, the U.S. Citizenship and Immigration Services (USCIS) apparently equates the acceptance of kindness from strangers with "unauthorized employment" ("Buddhist Monk Faces Worldly Green-Card Matters - Mr. Jomthong, Who Says His Job Is to 'Promote Peace and Harmony,' Gets Ensnared in U.S. Immigration Bureaucracy [subscription required]").
In effect, this is the conclusion drawn earlier this year by an immigration adjudications officer at the USCIS Nebraska Service Center (NSC) in denying a green card to Venerable Phra Bunphithak Jomthong, a Buddhist Monk assigned to the Wat Buddhapanya Temple in Pomona, California. The NSC refused a green card to Ven. Jomthong, who long ago made perpetual vows of voluntary poverty and the eschewal of money, because -- as the adjudicator claimed -- the monk had been "remunerated since [his] admission [to the U.S.], albeit on a modest, non-salaried basis". The modest remuneration he receives is the food and subsistence needs that members of his faith community give him.
Without solicitation of money on Ven. Jomthong's part, disciples of Buddhism who attend temple services voluntarily provide him with what we learned in law school is a gift. The Internal Revenue Service defines a gift as "[a]ny transfer to an individual, either directly or indirectly, where full consideration (measured in money or money's worth) is not received in return." For a gift to be legally effective, there must be "donative intent" (the conscious desire to make a gift) and the gift must be completed. A completed gift is one "in which the dominion and control of the property is placed beyond the donor's reach."
Because the acceptance of an unsolicited gift is not "employment" under the Immigration and Nationality Act (INA) or USCIS regulations, my Seyfarth Shaw colleague, Catherine Meek, and I took on the pro bono representation of Ven. Jomthong. We filed a complaint and petition for review in federal district court in Los Angeles asking the court to put the burden on the government (as required under the Religious Freedom Restoration Act) to demonstrate a compelling governmental interest in denying the monk a green card, and to show that the green card denial is the least burdensome way to enforce the government's immigration policies. The government has about a month to answer the federal court complaint and petition for review. Trial in district court is set for August 18.
After the complaint was filed, a Supervisor at the NSC issued Ven. Jomthong a Notice to Appear before an immigration judge for a removal hearing (at a date and time to be specified in the future).
Blanche (however unjustly) ended in an insane asylum. Let's hope Ven. Jomthong fares much better. Stay tuned.