Immigrating to the United States has been a dream of several--Indian religious entities. Its staff are no exception. Sadhguru too (professing to be Yogi of Mr. Kailash) came to United States on a religious visa and then applying for permanent residency as a religious person. The pending case discussed here, relates to a Hindu temple in New Jersey and its workers aspiration to become permanent residents of United States. And for the same, they now claim that they have been trafficked to United States. The attorneys of course would grab such an opportunity declare themselves as championing the cause of oppressed aliens. Attorneys gets to make money. This case provides insights of some engaging areas of laws—some explored and others new.
This lawsuit is a class action filed in New Jersey federal court bringing serious allegation against Bochaasanwasi Shri Akshara Purushottam Swaminarayan Sanstha(BAPS). BAPS is a well known Hindu temples organization. It has several temples operating worldwide. It commenced construction of a largest Hindu temple complex in Robbinsville, New Jersey. BAPS needed help to build its structure and it sponsored several people on R-1 religious visa. The lawsuit says that the BAPS committed serious crime,
BAPS India’s city of registration is Ahmedabad, in the state of Gujarat. BAPS India recruited the Plaintiffs and other R-1 workers in India, drafted and submitted documents containing false information for the purpose of securing R-1 visas for the workers, seized the Plaintiffs’ and other R-1 workers’ passports while they were in India.
These are very serious allegations, but one could also say exaggeration, especially when one knows the Indian cultural nuances and aware of the awareness of the workers. It evokes primitive Raj specter. However, for now, it is important to understand basics of this visa before we get into the nitty-gritty of this case.
R-1 visa beneficiary is someone coming to United States to engage in religious works. And to obtain an immigrant religious-worker visa, the worker's employer (BAPS) must file Form I–360. An I–360 immigrant visa is a ‘special immigrant religious worker’ visa available to ministers and religious workers who operate in a professional or nonprofessional capacity in a religious vocation or occupation as defined in 8 U.S.C. § 1101(a)(27)(C). The special immigrant worker visa process begins with a religious organization (the petitioner BAPS) filing an I–360 Petition on behalf of the intended religious worker (the beneficiary, the religious workers suing BAPS). The petition is reviewed by the USCIS, and if it is approved, the beneficiary-religious worker can apply for a visa either from abroad or for adjustment of his or her status to a lawful permanent resident if he or she is already in the United States.
To obtain a religious-vocation visa for these workers, BAPS must have established that these religious workers came to the United States to work full-time in a compensated position in the vocation of a minister of a bona-fide religious denomination, and not “in secular employment.”
Also, at the time of the application, these religious workers should have been associated with a recognized religious organization for more than two years, and that they are coming to the United States for a period of five years or less, to work “in a religious occupation or vocation.” And the implementing law defines such a vocation. “Religious occupation means an activity which relates to a traditional religious function. Examples of individuals in religious occupations include, but are not limited to, liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, missionaries, religious translators, or religious broadcasters. This group does not include janitors, maintenance workers, clerks, fund raisers, or persons solely involved in the solicitation of donations.” 8 C.F.R. § 204.5(m)(2).
It is important to see the compensation aspect of the workers. As one of the main grievance is that they are not being compensated adequately. These religious workers before they were granted R-1 visa must have had the Petitioner BAPS “submit verifiable evidence explaining how the petitioner will compensate the alien or how the alien will be self-supporting.” 8 C.F.R. § 214.2(r)(11). The self-supporting is crucial aspect. We do not know what BAPS declared in its papers. To use the self-supporting option, “the petitioner [BAPS] must submit documentation establishing that the position the alien [religious workers] will hold is part of an established program for temporary, uncompensated missionary work, which is part of a broader international program of missionary work sponsored by the denomination.” 8 C.F.R. § 214.2(r)(11)(ii)(A). BAPS is making a new temple. And when the temple is new and it wants to avail such a missionary program, it must by law compensate the religious worker, however if it has been a established mission, it could do without showing compensation of the worker for sponsoring the visa.
Now these religious workers could also bring in their spouses and unmarried children below the age of 21. The duration of the visa runs with that of the religious worker. It is unclear from the Complaint as to how many family members accompanied these religious workers.
Interestingly, the Complaint also suggest that the “Plaintiffs (religious workers) and other similarly situated workers were not volunteers in a religious vocation or occupation. Instead, they were wage-earning manual laborers.” Also, that temple sponsoring these workers knew of misrepresentation made in the immigration application. It is unclear why the complaint would aver the same. Also, temple construction even most basic masonry sometimes entails that such work be done by a religious trained induvial, or religious artisan, or an artisan who has been dexterous with his religious art—carving or sculpturing for instance. Act of brick laying has been considered a consecration, that only a religious worker could do. The attorneys are mischaracterizing in their Complaint.
The Complaint also said that these workers were made to sign some agreement, which “were unilaterally drafted and imposed on the workers, and the workers had no ability to alter or bargain over them. The “agreements” were provided to the workers by BAPS-affiliated individuals during meetings in India. Workers had to travel, at their own expense, to the meeting locations, in some cases multiple times. The “agreements” were approximately 10 pages long. Some workers were given versions of the “agreement” entirely in English, and others received two versions of the agreement, one in Hindi and one in English. Almost all, if not all, of the R-1 workers do not read or understand English; none of the named Plaintiffs read or understand English.”
The Complaint also says, “that they [workers] would work 20-25 days per month, rather than the 30 or 31 days per month that they actually worked.” Also, that “R-1 workers were falsely told they would be working much shorter workdays – ranging from four to seven hours per day – than the twelve to thirteen hours per day they actually were required to work at the Robbinsville temple.” In essence, the Complaint says that, “Although, the Plaintiffs and R-1 workers would be performing manual labor for pay at the temples, they were told to describe their work in the United States as volunteer work at the temples, and to say that they would be performing the work as a service to the deities. The Plaintiffs and other R-1 workers did not undertake their work for Defendants for religious reasons but worked for Defendants in order to earn wages.” The Complaint went on to describes the working hours: The workers began work each day at 6:30 a.m. At or around 9:00 a.m. each day, they would have a 15-minute break for breakfast. At around 1:00 p.m., the workers would have a 30-minute break for lunch. At or around 4:00 p.m., the workers would have a 15-minute break for tea. The Plaintiffs and the R-1 workers would complete their days of work at or around 7:30 p.m.
Also, that “the R-1 workers never received any paystubs or statements showing the dates and hours that they worked. The workers maintained this punishing schedule seven days a week. They were only rarely given a day off, being allowed only one day off every 30 to 40 days. They worked outside even during rain or snow. For this work, the Plaintiffs and the R-1 workers were paid approximately 31,000 – 35,000 rupees, currently approximately $425 – $450 USD. Of this total pay, approximately $50 USD would be paid to the workers in cash in New Jersey. The rest was paid to the Plaintiffs’ and the other R-1 workers’ bank accounts in India once a month. The amounts paid in India to the Plaintiffs and the other R-1 workers were approximately 28,500 rupees ($391 USD) to 31,000 rupees ($425 USD) per month; the exact amount varied based upon the exchange rate at the time the monthly $50 cash was paid.
The Complaint is replete with words like Dalit, Adivasis, Scheduled Castes, Schedule Tribes showing BAPS and Hindu priests in bad light. The Complaint also says that these people were the deliberate targets for recruiting,
Defendants intentionally recruited workers from the Scheduled Castes, also known as Dalit, from the Scheduled Tribes, also known as Adivasi, and from other marginalized groups in India. People in the Scheduled Castes in India, for example, were formerly considered “untouchables” and “endure near complete social ostracization.”3 Similarly, “Adivasis continue to face prejudice and often violence from mainstream Indian society. They are at the lowest point of almost every socio-economic indicator.”4 At the Robbinsville temple and elsewhere, temple leadership did what they could to remind these marginalized workers of their place in the social hierarchy. Defendant Swami Prasanand, for example, called the workers “worms,” thus exacerbating the psychological coercion the workers experienced.
The Complaint slaps a serious charge against BAPS, its Swamis and other volunteers. It states these people are a “venture within the scope of 18 U.S.C. § 1595(a).” That is serious. It lays the ground for seeking damages from the perpetrator of human trafficking. In this the religious workers are made to say that BAPS is involved in human trafficking, thus violating the law: Victims of Trafficking and Violence Protection Act (TVPA) of 2000, amended again in 2003 to provide a civil remedy for trafficking victims. Trafficking Victims Protection Reauthorization Act of 2003, H.R. DOC. 2620 (2003) [TVPRA] (18 U.S.C. § 1595). Basically, the religious workers here claiming to be trafficked meaning thereby, BAPS is guilty of human trafficking, i.e., BAPS has committed the serous crime of “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.” Such serious allegations carry a silver lining—it offers the complainant temporary immigration status to victims of a “severe form of trafficking,” (forced labor through force, fraud, or coercion). They get T visa and they are expected to assist in the investigation and prosecution of their traffickers. Also, if they are removed from United States, they would suffer extreme hardship including physical harm. They will get this status for 3 years and then they are eligible for green card. Now with this lawsuit, the sweet fruit for these religious worker is green card and also, full amount of loss besides the “greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act.” 18 U.S.C. §§ 1593(b)(1), (b)(3). Also, these religious workers shall be given attorney’s fees, housing, transition, rehabilitation expenses—in short, the parties are looking to be awashed in cash, especially when BAPS is considered an entity with deep pockets.
These religious workers only need demonstrate that they are victims of forced labor or servitude, allowing them both compensatory and punitive damages.
The Complaint also brings a claim under civil RICO (Racketeer Influenced and Corrupt Organizations Act), which entitles the plaintiff triple damages. The RICO claims are based on charges of “a. Mail fraud in violation of 18 U.S.C. § 1341; b. Wire fraud in violation of 18 U.S.C. § 1343 c. Fraud in foreign labor contracting in violation of 18 U.S.C. § 1351; d. Forced labor in violation of 18 U.S.C. § 1589; and e. Trafficking for the purpose of forced labor, in violation of 18 U.S.C. § 1590(a).” It is unclear as to how the religious workers could be successful on their RICO claims. The predicates are not well supported in the Complaint.
The mail and wire fraud might just not be tenable, as the main correspondences happened in India and reliance upon the same happened in India. It is true that filing of the applications happen to be with the United States immigration agency. However, it is hard to understand as how it could be a material fraud by mail, when the paperwork is signed by the religious workers. For religious visa, compensation is not a material part of the application. How does it satisfy the requirement hat the complained of scheme of BAPS to defraud be material? The Complaint basically talks about non-disclosure of the truth, but then what was the duty to disclose? Here it is the violation of immigration law that is alleged. But where the immigration regulation fails to include a private right of action, it cannot be the source of a duty to disclose for federal fraud purposes. Here what religious worker have is a breach of contract. Breach of contract is not a fraud. And “a series of broker promises is not a pattern of fraud” See last year case of Arruda v. Curves Int’l, Inc. (5th Cir. 2021). One does not have a right to an immigration visa, one cannot sue an employer for failure to abide by immigration visa. Payments or no payments would not have been basis of the immigration petition relief. So, compensation cannot be a material fraud. The Complaint also has failed to prove any dates etc. of the said mailing. Also, it is hard to find any reliance of the religious workers on these applications (which were mailed). Rather they were told just the contrary about compensation.
The second claim is under forced labor under section 1589. Section 1581-1592 related to peonage, slavery and trafficking are a basis for civil RICO claim. In order to establish a trafficking claim, religious worker will have to show that BAPS knowingly recruited, harbored or transported these religious workers for labor or services or obstructed or attempted to obstruct enforcement of the statute.
Forced labor occurs when someone “knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means—(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person; (2) by means of serious harm or threats of serious harm to that person or another person; (3) by means of the abuse or threatened abuse of law or legal process; or (4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.” 18 U.S.C. § 1589(a). In essence, Human trafficking in persons with the purpose of forced labor and involuntary servitude under 18 U.S.C. § 1590 occurs when “someone knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services....”
It is unclear as to how one could be forced to work, when these religious workers went home several times, there cannot be involuntary servitude. The fact of the travels of the religious workers would undermine this claim.
The Complaint also uses, fraud in foreign labor contracting, 18 U.S.C. § 1351, as a predicate. This [predicate act] of fraud in foreign labor contracting occurs when someone: (1) recruits, solicits, or hires a person outside the United States, or causes another person to do so, or attempts to do so; (2) does so by means of materially false or fraudulent pretenses, representations or promises regarding that employment; and (3) acts knowingly and with intent to defraud.”
However, it is the same grievance as pleaded under FLSA claim (The Fair Labor Standards Act). It is a duplicative claim. When there is a direct relief available under FLSA, it is unclear if the Court would proceed with this predicate for RICO. The RICO claims here would be preempted by FLSA, i.e., if FLSA is applicable. The other interesting aspect of the case would if there is an assertion of religious exemption under the federal law, Religious Freedom Restoration Act (RFRA). This law is powerful, and it applies to all other federal laws and its implementation. It prohibits the Government from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability unless the Government demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. Would RFRA provide any defense. It might not, if the issue is human trafficking, servitude. RFRA covers any exercise of religion, whether or not compelled by, or central to, a system of religious belief. Alleged labor exploitation (if there is any), would hardly be any exercise of religion. However, it has become a routine for religious workers to file these claims to get green card. Which way would this case go, it’s hard to tell—trafficking allegation makes it sticky, rest of the claims are dismissible. The Supreme Court observations in the case of Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) might provide some clue as to how R-1 visa classification would interpreted. In Holy Trinity, the Court had found that minister and pastors are covered under the term “laborer” as mentioned in the prohibitory statute and that it applied only to unskilled labor. “No one reading such a title would suppose that congress had in its mind any purpose of staying the coming into this country of ministers of the gospel, or, indeed, of any class whose toil is that of the brain” In the temple case, the workers just can’t be called masons, they are more than that. These are religious craftsmen and definitely the toil of the brain, as they bring out the best from the stones, as Michelangelo would say: "I saw the angel in the marble and carved until I set him free."