Federiso v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROLANDO MANAPA FEDERISO, 

Petitioner, No. 08-74792

v.

 Agency No.

A040-501-894

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 8, 2010—Pasadena, California

Filed May 19, 2010

Before: Daniel M. Friedman,* Dorothy W. Nelson, and

Stephen Reinhardt, Circuit Judges.

Opinion by Judge D.W. Nelson

*The Honorable Daniel M. Friedman, United States Circuit Judge for

the Federal Circuit, sitting by designation.

7171

FEDERISO v. HOLDER 7173

COUNSEL

Andrew J. Vasquez, Pasadena, California, for the petitioner.

Christina Bechak Parascandola, United States Department of

Justice, Civil Division, Office of Immigration Litigation,

Washington, D.C., for the respondent.

OPINION

D.W. NELSON, Senior Circuit Judge:

We must decide whether an individual whose mother is a

United States citizen continues to be “the son . . . of a citizen

of the United States,” as set forth at 8 U.S.C.

§ 1227(a)(1)(H)(i), after his mother’s death. We hold that he

does.

I. BACKGROUND

Petitioner Rolando Federiso is a Filipino national. His

mother, who was also a Filipino national, moved to the United

States and became a U.S. citizen. Federiso applied to the

United States Embassy in Manila for a visa for entry to the

United States with the intent to remain permanently. The State

Department prioritizes visa applications made by “the unmar-

ried sons or daughters of citizens of the United States.” 8

U.S.C. § 1153(a)(1). During his visa application process,

7174 FEDERISO v. HOLDER

Federiso indicated — falsely — that he was unmarried. He

was issued a visa, immigrated, adjusted to lawful permanent

resident status, and began his life in the United States.

Fifteen years later, the Government initiated removal pro-

ceedings against Federiso. The Government alleged, and

Federiso conceded, that Federiso violated 8 U.S.C.

§ 1182(a)(6)(C)(i), which forbids procuring a visa by willfully

misrepresenting a material fact. Federiso requested relief

under 8 U.S.C. § 1227(a)(1)(H)(i), which gives an immigra-

tion judge (“IJ”) the discretion to waive the removal of an

immigrant who procured a visa through willful misrepresenta-

tion. 8 U.S.C. § 1227(a)(1)(H) (granting this discretion to the

Attorney General); 8 C.F.R. § 1240.1(a)(1) (delegating Attor-

ney General’s discretionary authority to IJs). Only an alien

who “is the spouse, parent, son, or daughter” of a U.S. citizen

or lawful permanent resident is eligible to apply for a

§ 1227(a)(1)(H)(i) waiver.

The removal proceedings against Federiso dragged on for

years. After the proceedings had been initiated, but before the

hearing on Federiso’s request for § 1227(a)(1)(H)(i) relief,

Federiso’s mother died. At the hearing, Federiso and the Gov-

ernment disagreed about whether Federiso was still eligible to

apply for a § 1227(a)(1)(H)(i) waiver. The IJ held that he was,

since Federiso “continues to be the son of a United States citi-

zen” after the death of his U.S. citizen mother. The IJ then

examined a long list of equities in Federiso’s favor, which we

do not recount here, and granted Federiso a waiver.

The BIA interpreted § 1227(a)(1)(H)(i) differently. Sustain-

ing the Government’s appeal, the BIA held that “to be eligible

for a waiver of removal” under § 1227(a)(1)(H)(i), “an alien

must establish a qualifying relationship to a living relative.”

Matter of Federiso, 24 I. & N. Dec. 661, 661 (BIA 2008)

(emphasis added). Because Federiso’s mother was no longer

living, the BIA held that Federiso was no longer eligible to

apply for a § 1227(a)(1)(H)(i) waiver. Id. at 664. The BIA

FEDERISO v. HOLDER 7175

vacated the IJ’s decision and ordered Federiso removed to the

Philippines. Id.

Federiso timely filed the petition for review now before us,

over which we have jurisdiction pursuant to 8 U.S.C.

§ 1252(a).

II. STANDARD OF REVIEW

Section 1227(a)(1)(H)(i) is part of the Immigration and

Nationality Act (“INA”). We review BIA determinations of

purely legal issues regarding the INA de novo. Kankamalage

v. I.N.S., 335 F.3d 858, 861 (9th Cir. 2003). When the BIA

interprets a provision of the INA, we first determine if there

is any ambiguity in the statute using traditional tools of statu-

tory interpretation. Id. at 862. (citing Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9

(1984)). Only if we determine that a statute is ambiguous do

we defer to the agency’s interpretation. Id. We may not accept

an interpretation clearly contrary to the plain meaning of a

statute’s text. Id.

III. DISCUSSION

The text of § 1227(a)(1)(H)(i) strikes us as plain and unam-

biguous. The relevant text is as follows:

(H) Waiver authorized for certain misrepresentations

The provisions of this paragraph relating to the

removal of aliens within the United States on the

ground that they were inadmissible at the time of

admission as aliens described in section

1182(a)(6)(C)(i) of this title, whether willful or inno-

cent, may, in the discretion of the Attorney General,

be waived for any alien (other than an alien

described in paragraph (4)(D)) who—

7176 FEDERISO v. HOLDER

(i) (I) is the spouse, parent, son, or daughter of a

citizen of the United States or of an alien law-

fully admitted to the United States for perma-

nent residence; and

(II) was in possession of an immigrant visa or

equivalent document and was otherwise admis-

sible to the United States at the time of such

admission except for those grounds of inadmis-

sibility specified under paragraphs (5)(A) and

(7)(A) of section 1182(a) of this title which

were a direct result of that fraud or misrepresen-

tation.

8 U.S.C. § 1227(a)(1)(H) (emphasis added).

[1] The text of the statutory provision clearly states that the

son of a citizen of the United States may be eligible for a

waiver of removal. 8 U.S.C. § 1227(a)(1)(H)(i)(I).1 Neither

the Government nor the BIA disputes that Federiso is the son

of a citizen of the United States. That alone is enough to

resolve this case.

[2] The BIA interpreted the phrase “spouse, parent, son, or

daughter of a citizen of the United States,” 8 U.S.C.

§ 1227(a)(1)(H)(I) to mean spouse, parent, son, or daughter of

a living citizen of the United States. 24 I. & N. Dec. 661 at

662-64. This is not what the statute says. It is not the role of

those who enforce and interpret immigration law to impose

unilaterally novel substantive requirements beyond those set

forth in the immigration law itself. See Kazarian v. U.S. Citi-

1

The term “son” is not specifically defined in the INA, see 8 U.S.C.

§ 1101 (section titled “Definitions”); see generally 8 U.S.C. §§ 1101-

1537, but the term’s definition was not contested by the parties and we

presume the typical dictionary definition is uncontroversial. See, e.g.,

BLACK’S LAW DICTIONARY 1400 (7th ed. 1999) (“son. 1. A person’s male

child. 2. An immediate male descendant.”).

FEDERISO v. HOLDER 7177

zenship & Immigration Servs., 596 F.3d 1115, 1121 (9th Cir.

2010) (holding that neither USCIS nor its Administrative

Appeals Office may unilaterally impose substantive require-

ments for visa eligibility beyond those set forth in the relevant

governing regulations).

The BIA’s opinion mentions two Ninth Circuit cases,

Myung v. INS, 468 F.2d 627 (9th Cir. 1972), and Kalezic v.

INS, 647 F.2d 920 (9th Cir. 1981), which merit brief discus-

sion here. In Myung, we held that an alien was ineligible for

a waiver of removal despite being the father of a U.S. citizen,

because his U.S. citizen child was living in Korea. Myung,

468 F.2d. at 628; see also United States v. Palmer, 458 F.2d

663 (1972) (reaching the same conclusion with respect to an

alien whose U.S. citizen child was living in Canada). In

Kalezic, we held that an alien who was in the process of

divorcing his U.S. citizen spouse was not eligible to receive

a waiver despite being the (soon-to-be ex-) husband of a U.S.

citizen. Kalezic, 647 F.2d at 922-23.

Kalezic provides little guidance here, because it deals with

a marital relationship, not with the wholly distinct relationship

between parent and child. A child never ceases to be his

mother’s son. He always is her son, even after her death. A

husband, in contrast, ceases to be his wife’s spouse upon

divorce; following the divorce, he no longer is her spouse.

Myung, which involved a parent-child relationship, is there-

fore the more relevant case. In that case, we relied on the fact

that “[t]he fundamental purpose of this legislation [creating

the fraud waiver] was to unite families . . . . [and to avoid]

separat[ing] families composed in part of American citizens

or lawful permanent residents,” I.N.S. v. Errico, 385 U.S. 214,

224-25 (1966), and we concluded that granting Myung a

waiver when his U.S. citizen relative was living outside of the

U.S. would have contradicted that legislative purpose. Myung,

468 F.2d. at 628.

[3] In the decades since we issued Myung and Kalezic,

both the statutory text we interpret and the role of the inter-

7178 FEDERISO v. HOLDER

preter have changed. As to our role, when we decided Myung

and Kalezic, we looked to the purpose of the statute, rather

than to its language. See Myung, 468 F.2d at 628 (discussing

the Congressional purpose underlying exemption for deporta-

tion without even mentioning the statutory text at issue); see

also Kalezic, 647 F.2d at 922 (finding statutory purpose dis-

positive despite finding that the relevant statutory language

cutting the other way “in many respects is unambiguous” and

that “technically [petitioner] remained the spouse of a citizen

of the United States”). Today, however, we are governed by

Chevron and its progeny, and unless the “statute is silent or

ambiguous with respect to the specific issue” before us, our

work is done. Chevron, 467 U.S. at 843. As we have stated,

the statutory language at issue here is plain: the son of a U.S.

citizen may be eligible for a waiver.

As to text, both Myung and Kalezic dealt with an older ver-

sion of the waiver of removal statute, in which the waiver was

mandatory and any eligible alien automatically received

relief. See 71 Stat. 639, 640 § 7 (1957) (providing that depor-

tation “shall not apply” to an alien who is the spouse, parent,

son or daughter of a U.S. citizen); Myung, 468 F.2d at 628

(citing the statutory text regarding the waiver, then codified

at 8 U.S.C. § 1251(f), including the “shall not apply” man-

date); Kalezic, 647 F.2d at 922 n.6 (quoting the “shall not

apply” language of § 1251(f)). Under the revised statute

before us today, the waiver is discretionary rather than man-

datory, see 8 U.S.C. § 1227(a)(1)(H) (providing that deporta-

tion “may, in the discretion of the Attorney General, be

waived”), and eligibility alone no longer guarantees relief.

Whether an alien is eligible for a waiver remains a question

of statutory interpretation fit for judicial review; whether issu-

ing § 1227(a)(1)(H) relief to a particular alien is consistent

with the statute’s underlying purpose is a case-by-case policy

determination that the statutory text commits not to the courts

but to the discretion of the Attorney General and his designee

the IJ. Neither the BIA nor we may further our preferred inter-

pretation of Congress’s intent by misreading or adding to the

FEDERISO v. HOLDER 7179

statutory eligibility requirements that Congress has laid out

quite clearly.

IV. CONCLUSION

[4] The BIA erred in holding that Federiso is ineligible to

apply for a § 1227(a)(1)(H) waiver because his U.S. citizen

mother is deceased; he is the son of a U.S. citizen and eligible

to apply. We GRANT Federiso’s petition and REMAND to

the BIA for further proceedings consistent with this opinion.

PETITION GRANTED; REMANDED.