Freeman v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLA FREEMAN, 

Petitioner-Appellant, No. 04-35797

v.

 D.C. No.

CV-04-00666-PA

ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the District of Oregon

Owen M. Panner, Senior Judge, Presiding

Argued and Submitted

September 12, 2005—Portland, Oregon

Filed April 21, 2006

Before: Raymond C. Fisher, Ronald M. Gould and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Fisher

4507

FREEMAN v. GONZALES 4511

COUNSEL

Brent W. Renison and Michael J. Millender, Tonkon Torp,

LLP, Portland, Oregon, for the petitioner-appellant.

Kenneth C. Bauman, Assistant United States Attorney, Port-

land, Oregon, for the respondent-appellee.

OPINION

FISHER, Circuit Judge:

This appeal concerns the fate of a young alien widow who

seeks to remain in the United States notwithstanding that her

citizen husband, to whom she was married for only a short

time, tragically died in a car accident and, according to the

government, thereby “stripped” her of her status as his

“spouse.” Complicating the widow’s appeal is the fact that

although she (along with her citizen spouse) had petitioned to

adjust her status to that of lawful permanent resident, she

entered the United States under the terms of a special visa

waiver program that limited her to a 90-day visitor’s stay in

this country and required her to waive her rights to contest the

government’s decision to remove her. She now asks us, not to

grant her lawful permanent resident status — something we

cannot do — but rather, to determine whether she remains a

“spouse” who can qualify for such status.

I. Background

Carla Freeman (Mrs. Freeman), a dual citizen of South

Africa and Italy, met Robert Freeman, a United States citizen,

4512 FREEMAN v. GONZALES

while she was temporarily working in the United States as an

au pair. The Freemans became engaged and thereafter were

married near Chicago, Illinois in February 2001. Shortly after

the marriage, Mrs. Freeman went back to South Africa. She

returned to the United States in June 2001 under the terms of

a special visa waiver program (VWP) granting her a 90-day

visitor’s stay in this country.1 In September 2001, before Mrs.

Freeman’s 90-day visa waiver expired, Mr. Freeman filed a

Petition for Immediate Relative (Form I-130) attesting to the

fact of their marriage and his wife’s current status as a VWP

entrant. The same day, Mrs. Freeman filed an Application to

Register Permanent Resident or Adjust Status (Form I-485).2

The filing of these forms initiated the formal process for

adjusting Mrs. Freeman’s status to that of a lawful permanent

resident (LPR), a status granted to the non-citizen spouses of

U.S. citizens. Concurrently with the filing of the I-130 and I-

485 forms, the Immigration and Naturalization Service (INS)

granted Mrs. Freeman a work authorization, effectively treat-

ing her as no longer simply a visitor subject to the 90-day lim-

itation of the VWP.3

While their application was pending, Robert Freeman was

tragically killed in a car accident shortly before the Freemans’

first wedding anniversary. Subsequently, when the Depart-

1

The Visa Waiver Program authorizes citizens of certain enumerated

countries, including Italy, one of Mrs. Freeman’s countries of citizenship,

to enter the United States without a visa for a term no longer than 90 days.

In exchange for this procedural benefit, VWP entrants waive their right to

challenge any removal action other than on the basis of asylum (the no-

contest clause). They are, however, allowed to seek adjustment of their

status by filing an immediate relative petition. See 8 U.S.C. §§ 1187,

1255(c)(4). The VWP is discussed more fully in section II. A., infra.

2

Although the Form I-360 is technically a “Petition” and the Form I-485

is technically an “Application,” we use those terms interchangeably

throughout this opinion.

3

The INS has since been abolished and its functions transferred to the

Department of Homeland Security. See Homeland Security Act of 2002,

Pub. L. No. 107-296, 116 Stat. 2135 at 2142 (2002).

FREEMAN v. GONZALES 4513

ment of Homeland Security (DHS) finally reviewed her appli-

cation in May 2004, the district director for the U.S.

Citizenship and Immigration Services ruled that Mrs. Free-

man, now a widow, no longer qualified for an adjustment of

status because she was not a “spouse” for purposes of the

Immigration and Nationality Act (INA), her husband’s death

having occurred before they had been married for two years.

Further, the director ruled that Mrs. Freeman, as a VWP

entrant subject to the program’s no-contest clause (see n.1,

supra), had waived any right to renew her adjustment of sta-

tus application or obtain review of his decision by an immi-

gration judge. He ordered her to leave the United States

because her VWP authorization had expired.

Mrs. Freeman petitioned for a writ of habeas corpus in the

federal district court, challenging the district director’s deter-

minations that she was no longer a spouse entitled to adjust-

ment of status and that she had waived any review of the

director’s ruling. The district court denied her habeas petition.

Mrs. Freeman timely filed a notice of appeal to this court, but

has since returned to South Africa where she remains subject

to 8 U.S.C. §§ 1227 and 1182(a)(9), which prohibit her from

reentering the United States for 10 years from the date of her

departure.4

Mrs. Freeman’s appeal raises two questions, both requiring

us to interpret statutory language to resolve matters of first

impression in this circuit. The first concerns the scope and

applicability of the Visa Waiver Program’s no-contest clause,

and the second concerns the proper definition of “spouse” for

4

Because Mrs. Freeman’s appeal was pending when the REAL ID Act

became effective (May 11, 2005), we treat this appeal as a timely filed

petition for review. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050,

1052-53 (9th Cir. 2005); § 106(c) of the REAL ID Act of 2005, Pub. L.

No. 109-13, 119 Stat. 231, 311 (2005). Accordingly, we review not the

district court’s denial of the habeas petition but rather the agency’s deter-

mination, which we review de novo as to any purely legal questions. See

Alvarez-Barajas, 418 F.3d at 1053.

4514 FREEMAN v. GONZALES

purposes of adjustment of status under the immigration laws.

We hold that once a VWP entrant files an adjustment of status

application as an immediate relative, as contemplated by 8

U.S.C. § 1255(c)(4), the alien is entitled to the procedural

guarantees of the adjustment of status regime, see 8 C.F.R.

§ 245.2, and to that extent is no longer subject to the Visa

Waiver Program’s no-contest clause. We further hold that an

alien widow whose citizen spouse filed the necessary immedi-

ate relative petition form but died within two years of the

qualifying marriage nonetheless remains a spouse for pur-

poses of 8 U.S.C. § 1151(b)(2)(A)(i), and is entitled to be

treated as such when DHS adjudicates her adjustment of sta-

tus application.5

II. Visa Waiver Program

A. The VWP Regime

[1] The Visa Waiver Program authorizes the government to

waive visa requirements for citizens of certain favored coun-

tries. See 8 U.S.C. § 1187.6 Under the terms of the VWP, as

a condition of entering the United States without a visa, Mrs.

Freeman had to leave within 90 days and, under the no-

contest clause, agree to waive any right:

(1) to review or appeal under [the INA] of an immi-

gration officer’s determination as to the admissibility

of the alien at the port of entry into the United States,

or (2) to contest, other than on the basis of an appli-

cation for asylum, any action for removal of the

alien.

5

Throughout this opinion we refer to the citizen spouse as the husband

and the alien spouse as the wife/widow. However, neither the immigration

laws we review nor our holdings make any distinction between the sexes.

6

Unless otherwise indicated, all statutory citations herein are to Chapter

8 of the United States Code.

FREEMAN v. GONZALES 4515

§ 1187(b). We have described the no-contest clause as “the

linchpin of the [Visa Waiver] program,” which “assures that

a person who comes here with a VWP visa will leave on time

and will not raise a host of legal and factual claims to impede

[her] removal if [s]he overstays.” Handa v. Clark, 401 F.3d

1129, 1135 (9th Cir. 2005). Notwithstanding that the no-

contest clause severely restricts an alien’s ability to seek

review of a removal decision, the alien may still claim that

she is not subject to the VWP procedures at all or that the law

requires that she be brought before an immigration judge (IJ)

prior to removal. See id. at 1133.

[2] Although the no-contest clause was designed generally

to limit the rights of alien visitors and prevent them from

challenging their removal, the INA does not entirely preclude

such visitors from seeking to extend their stay. Specifically,

§ 1255(c)(4) provides that a VWP visitor may seek to adjust

her status to that of a permanent resident through an immedi-

ate relative petition, the procedure invoked by the Freemans.

See Faruqi v. Dep’t of Homeland Security, 360 F.3d 985, 986-

87 (9th Cir. 2004) (noting that VWP visitors are eligible “for

adjustment of status . . . on the basis of either (1) an immedi-

ate relative petition or (2) an application for asylum.”); see

also 8 C.F.R. § 245.1(b)(8). Once an adjustment of status

application is filed, certain procedural safeguards are in place

to ensure fair adjudication of the application. See generally 8

C.F.R. § 245.

Mrs. Freeman argues that once she (and her husband) initi-

ated the adjustment of status process by filing the necessary

forms, her right to remain in the United States and to chal-

lenge any adverse decision became subject to the procedural

protections governing adjustment of status applications.

Accordingly, the district director erred in applying the VWP

no-contest proviso to her in denying her adjustment of status

application. The government, however, insists that the VWP

no-contest proviso remains in force and precludes Mrs. Free-

man from challenging her removal order and the district

4516 FREEMAN v. GONZALES

director’s determination that she is no longer a qualifying

spouse. It argues that only asylum seekers are exempted from

the no-contest clause under the express terms of § 1187(b)(2),

and Mrs. Freeman is not seeking asylum.7

We think the government’s position ignores the interplay

between the adjustment of status regime and the visa waiver

program, which explicitly allows VWP visitors to file an

adjustment of status application pursuant to an immediate rel-

ative petition. See § 1255(c)(4). As we shall explain, the text

and purpose of this complex statute, along with DHS’s action

in Mrs. Freeman’s case, persuade us that once a VWP visitor

properly files an adjustment of status application, the VWP

no-contest clause does not deprive the visitor-applicant of the

procedural guarantees afforded any applicant seeking adjust-

ment of status. See 8 C.F.R. § 245.2.

B. The Right to Adjust Status

[3] Section 1255 explains that certain classes of non-

immigrants may petition the Attorney General for adjustment

of status to that of a lawful permanent resident, provided that

“(1) the alien makes an application for such adjustment, (2)

the alien is eligible to receive an immigrant visa and is admis-

sible to the United States for permanent residence, and (3) an

immigrant visa is immediately available to [her] at the time

[her] application is filed.” § 1255(a). Included in the class of

non-immigrants who may petition for LPR status are VWP

entrants, but only those who seek adjustment pursuant to an

immediate relative petition. § 1255(c)(4).8 Under the regula-

7

The government does not argue that its understanding of the scope of

the VWP no-contest clause is entitled to Chevron deference. Cf. NRDC v.

Nat’l Marine Fisheries Serv., 421 F.3d 872, 877 (9th Cir. 2005).

8

This express right given to VWP entrants is more specific than the

broad no-contest language used in the VWP governing statute. See NLRB

v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th Cir. 1994) (“It is a well-

settled canon of statutory interpretation that specific provisions prevail

over general provisions.”)

FREEMAN v. GONZALES 4517

tory regime associated with adjustment of status, alien appli-

cants are afforded various procedural benefits. Among these

benefits, an applicant “retains the right to renew his or her

application” if it has been denied. 8 C.F.R. § 245.2(a)(5). If

the adjustment of status application is renewed after removal

proceedings have been initiated, as would have been the pro-

cedure in Mrs. Freeman’s situation, an IJ rather than the dis-

trict director would review and rule upon the application. See

Agyeman v. INS, 296 F.3d 871, 879 (9th Cir. 2002); 8 C.F.R.

§ 245.2(a)(1).

[4] With respect to these renewal and review procedures,

there is no exception in the statute or regulations for aliens

who are in the United States under any particular status; the

procedures apply to any applicant for adjustment of status.

Nor does the VWP no-contest clause on its face clearly

exempt VWP visitors from these procedures. See Jama v.

Immigration & Customs Enforcement, 543 U.S. 335, 341

(2005) (“We do not lightly assume that Congress has omitted

from its adopted text requirements that it nonetheless intends

to apply . . . .”). Indeed, having granted VWP visitors the right

to seek an adjustment of status, it makes no sense for Con-

gress to have intended that these preferred visitors — by defi-

nition, citizens of certain favored countries — should have

second-class status once they enter into the adjustment of sta-

tus process. See Crandal v. Ball, Ball & Brosamer, 99 F.3d

907, 910 (9th Cir. 1996) (“A statute should be read in a man-

ner which attribute[s] a rational purpose to the legislature.”).

We decline the government’s invitation to read the VWP

no-contest restriction into the adjustment of status procedural

regime, effectively denying VWP applicants the procedural

due process all other applicants enjoy, when Congress has not

done so explicitly. Had Congress intended such a result, it

could have withheld the adjustment of status right from VWP

entrants or specified, within the adjustment of status regime,

that they constitute a special class of applicants without the

normal rights of appeal and review. See United States v.

4518 FREEMAN v. GONZALES

Jones, 204 F.2d 745, 754 (7th Cir. 1953) (“[A] statutory grant

of power carries with it, by implication, everything necessary

to carry out the power and make it effectual and complete.”);

Blue Cross Ass’n v. Harris, 622 F.2d 972, 978 (8th Cir. 1980)

(“It is a commonplace of statutory construction that a legisla-

tive grant of power carries with it the right to use the means

and instrumentalities necessary to the beneficial exercise of

that power.”). Accordingly, alleged errors in DHS’s adjudica-

tion of Mrs. Freeman’s application for LPR status should be

subject to review as part of the adjustment of status process,

and not foreclosed by the VWP no-contest clause.

Moreover, the purpose of the adjustment of status proce-

dures is best served by allowing VWP entrants — like Mrs.

Freeman — the right to contest their summary denial without

having to leave the United States first.9 “The adjustment pro-

cedure of section 245 was specifically designed to obviate the

need for departure and reentry in the cases of aliens temporar-

ily in the United States. . . . It seems clear that section 245

was intended to . . . permit nonimmigrants to attain permanent

resident status without leaving the United States.” Matter of

S—, 9 I. & N. Dec. 548, 553-54 (BIA 1962) (internal citation

and quotation marks omitted).

Finally, the agency’s own actions are relevant to and con-

sistent with our interpretation of the scope of the VWP no-

contest clause. Cf. Defenders of Wildlife v. Norton, 258 F.3d

1136, 1146 n.11 (9th Cir. 2001) (“Nor do we owe deference

9

We are not persuaded by the government’s argument that allowing

Mrs. Freeman to escape the no-contest clause (even if only to renew or

review her adjustment of status application prior to being removed) would

counter the purpose of the VWP, which was to avoid the potentially oner-

ous and numerous proceedings that would otherwise occur when DHS

attempts to remove those who have overstayed their 90-day visas. Not

only will there likely be a small percentage of VWP entrants in Mrs. Free-

man’s position, but Congress itself granted the adjustment of status right

to these aliens. There is no reason to suspect that Congress failed to appre-

ciate the consequences of its act.

FREEMAN v. GONZALES 4519

to the interpretation of the statute now advocated by the Sec-

retary’s counsel — newly minted, it seems, for this lawsuit,

and inconsistent with prior agency actions — as we ordinarily

will not defer to agency litigating positions that are wholly

unsupported by regulations, rulings, or administrative prac-

tice.”) (internal quotation marks and citation omitted.) After

filing her adjustment of status application, Mrs. Freeman

received work authorization, suggesting that the immigration

authorities no longer considered her a VWP entrant, but

instead treated her like any other adjustment of status appli-

cant, including no longer being subject to a 90-day stay limit.

See 8 U.S.C. § 1187(a)(1) (describing a VWP entrant as a

“tourist”); § 1101(a)(15)(B) (describing a VWP entrant as “an

alien (other than one coming for the purpose of study or of

performing skilled or unskilled labor . . .) having a residence

in a foreign country which he has no intention of abandoning

and who is visiting the United States temporarily for business

or temporarily for pleasure.”).

[5] Based on § 1255(c)(4)’s grant of the right to VWP

entrants to adjust their status, reinforced by the statute’s pur-

pose and the agency’s granting of her work permit, we con-

clude that upon the proper filing of an adjustment of status

application, Mrs. Freeman was assimilated into the adjust-

ment of status procedural regime. Her rights to review of her

application — including review of the DHS director’s deter-

mination of her status as a spouse — were not subject to the

Visa Waiver Program’s no-contest clause.

III. Adjustment of Status

A. Jurisdiction

“Although the parties did not raise the question of our juris-

diction, we have raised it sua sponte, as we must.” WMX

Tech. Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997).

Notwithstanding the REAL ID Act’s limitation on appellate

review, see § 1252, we conclude that we have jurisdiction to

4520 FREEMAN v. GONZALES

review Mrs. Freeman’s purely legal claim that the district

director violated her due process rights by improperly inter-

preting § 1151(b)(2)(A)(i) to determine that she was no longer

the “spouse” of a U.S. citizen and therefore not entitled to

adjustment of status. See Wong v. INS, 373 F.3d 952, 963 (9th

Cir. 2004) (“[D]ecisions made on a purely legal basis may be

reviewed, as they do not turn on discretionary judgment. . . .

[The § 1252(a)(2)(B) bar on review of discretionary decisions

does not apply to cases] rais[ing] only constitutional or purely

legal, nondiscretionary challenges to the decisions in ques-

tion.”).

Purely legal questions, such as the proper definition of

“spouse” under § 1151(b)(2)(A)(i), are reviewed de novo. See

De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004).

B. Immediate Relative Definition

[6] Under § 1151, a United States citizen can petition the

immigration authorities to adjust the status of an alien who is

an immediate relative to that of a lawful permanent resident.

“Immediate relative” is a defined term, as set forth in

§ 1151(b)(2)(A)(i):

For purposes of this subsection, the term “immediate

relatives” means the children, spouses, and parents

of a citizen of the United States, except that, in the

case of parents, such citizens shall be at least 21

years of age. In the case of an alien who was the

spouse of a citizen of the United States for at least

2 years at the time of the citizen’s death and was not

legally separated from the citizen at the time of the

citizen’s death, the alien (and each child of the alien)

shall be considered, for purposes of this subsection,

to remain an immediate relative after the date of the

citizen’s death but only if the spouse files a petition

under section 204(a)(1)(A)(ii) of this title within 2

FREEMAN v. GONZALES 4521

years after such date and only until the date the

spouse remarries.

The government, relying primarily on the statute’s second

sentence (“In the case of an alien who was the spouse of a cit-

izen . . . .”), reads § 1151(b)(2)(A)(i) as “requir[ing] that in

order to be an ‘immediate relative’ under immigration law the

alien ‘spouse’ (wife) must have been married to the United

States citizen ‘spouse’ (husband) ‘for at least 2 years at the

time of the citizen’s death.’ ” Under the government’s prof-

fered reading, if the citizen spouse dies before the second

anniversary of the qualifying marriage, the alien spouse is no

longer considered a “spouse” and is no longer entitled to an

adjustment of status.

Mrs. Freeman disputes the government’s reading. Relying

on the first sentence of the statute (“For purposes of this sec-

tion, the term ‘immediate relative’ means the children,

spouses, and parents . . . .”), she argues that she qualified for

adjustment of status as an immediate relative — i.e., a spouse

— because of her marriage to a U.S. citizen at the time her

husband (and she) filed the forms required to initiate the

adjustment of status process. She further argues that the stat-

ute does not impose a two-year marriage requirement to be

considered an immediate-relative spouse, nor does it void that

spousal status upon her husband’s death. To the extent the

second sentence the government invokes is relevant, it simply

grants an alien spouse whose deceased citizen spouse had not

filed an I-130 the right to self-petition so long as the parties

were married for two years prior to the citizen’s death.

C. Chevron Deference

[7] The question for this court is which reading of the stat-

ute is correct — the government’s or Mrs. Freeman’s. We are

mindful that the answer “implicat[es] ‘an agency’s construc-

tion of a statute which it administers,’ ” and we must initially

determine whether, and to what extent, Chevron deference is

4522 FREEMAN v. GONZALES

due. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (quot-

ing Chevron v. NRDC, 467 U.S. 837, 842 1984)).

When a court reviews an agency’s construction of

the statute which it administers, it is confronted with

two questions. First, always, is the question whether

Congress has directly spoken to the precise question

at issue. If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the

agency, must give effect to the unambiguously

expressed intent of Congress. . . . [I]f the statute is

silent or ambiguous with respect to the specific

issue, the question for the court is whether the agen-

cy’s answer is based on a permissible construction of

the statute.

Chevron, 467 U.S. at 842-43 (footnote omitted). “Chevron

deference, however, is not accorded merely because the stat-

ute is ambiguous and an administrative official is involved.”

Gonzales v. Oregon, 126 S. Ct. 904, 916 (2005). “We should

not defer to an agency’s interpretation of a statute if Con-

gress’s intent can be clearly ascertained through analysis of

the language, purpose and structure of the statute.” NRDC v.

Nat’l Marine Fisheries Serv., 421 F.3d 872, 877 (9th Cir.

2005).

Here, the district director relied on In re Varela, 13 I. & N.

Dec. 453, 454 (BIA 1970), in which the BIA summarily ruled

that by the time the non-citizen wife’s adjustment of status

petition was being determined, she was no longer a spouse of

a United States citizen under § 1151 because her husband’s

“death had stripped her of that status.” Aside from Varela’s

lack of statutory analysis, the opinion’s weight is further

undercut by the BIA’s later finding that it was “extra-

jurisdictional.”10 Beyond this, the BIA has not otherwise

10

See Matter of Sano, 19 I. & N. Dec. 299 (BIA 1985). Consequently,

we are cautioned against granting significant deference to the BIA’s con-

FREEMAN v. GONZALES 4523

addressed the statutory question before us. In any event, the

BIA’s interpretation, to the extent it is entitled to some defer-

ence, is not a permissible construction of the statute. See

Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 678 (9th

Cir. 2005) (“If we conclude that the statute is silent or ambig-

uous with respect to the specific issue before us, we must

respect the agency’s construction of the statute so long as it

is permissible.”).

We conclude, through our review of the language, struc-

ture, purpose and application of the statute, that Congress

clearly intended an alien widow whose citizen spouse has

filed the necessary forms to be and to remain an immediate

relative (spouse) for purposes of § 1151(b)(2)(A)(i), even if

the citizen spouse dies within two years of the marriage. As

such, the widowed spouse remains entitled to the process that

flows from a properly filed adjustment of status application.

The two-year durational language in the second sentence of

§ 1151(b)(2)(A)(i) grants a separate right to an alien widow

to self-petition, within two years of the citizen spouse’s death,

by filing a form I-360 where the citizen spouse had not filed

an immediate relative petition prior to his death. Therefore,

Mrs. Freeman, having filed all necessary forms, must be con-

sidered a spouse for purposes of her adjustment of status

application.

D. Language, Structure, Purpose and Application of the

Adjustment of Status Process

“The starting point for our interpretation of a statute is

always its language.” Cmty. for Creative Non-Violence v.

Reid, 490 U.S. 730, 739 (1989). “Interpretation of a word or

phrase depends upon reading the whole statutory text, consid-

clusion in In re Varela. See Lagandaon v. Ashcroft, 383 F.3d 983, 987 n.2

(9th Cir. 2004) (“We have also indicated that nonprecedential BIA deci-

sions might receive less deference than those designated as preceden-

tial.”).

4524 FREEMAN v. GONZALES

ering the purpose and context of the statute, and consulting

any precedents or authorities that inform the analysis.” Dolan

v. United States Postal Service, 126 S. Ct. 1252, 1257 (2006).

In understanding and applying a regulatory scheme, we

should interpret statutes to be coherent and internally consis-

tent. See FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 133 (2000); Mutschler v. Peoples Nat’l Bank of

Wash., 607 F.2d 274, 276 (9th Cir. 1979).

[8] The language of the first sentence of § 1151(b)(2)(A)(i),

which sets out the general definition of immediate relative, is

straightforward and succinct, and expressly includes

“spouses.” Only alien “parents” are subject to any limitation,

with the grant of immediate relative status being restricted to

those whose citizen child is at least 21 years of age. There is

no comparable qualifier to be a “spouse” — that is, a require-

ment that the marriage must have existed for at least two

years. “This fact only underscores our duty to refrain from

reading a phrase into a statute when Congress has left it out.

Where Congress includes particular language in one section

of a statute but omits it in another . . . , it is generally pre-

sumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.” Keene Corp. v. United

States, 508 U.S. 200, 208 (1993) (internal citation and quota-

tion marks omitted). The words of Congress are clear and we

presume that Congress meant precisely what it said: “The

term ‘immediate relative[ ]’ means the . . . spouse[ ] . . . of a

citizen of the United States,” without exception. § 1151(b)(2)

(A)(i); see also BedRoc Ltd., LLC v. United States, 541 U.S.

176, 183 (2004) (“The preeminent canon of statutory interpre-

tation requires us to presume that the legislature says in a stat-

ute what it means and means in a statute what it says there.”

(quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249,

253-54 (1992))). Under the express terms of the statute, Mrs.

Freeman qualified as the spouse of a U.S. citizen when she

and her husband petitioned for adjustment of status, and

absent a clear statutory provision voiding her spousal status

upon her husband’s untimely death, she remains a surviving

FREEMAN v. GONZALES 4525

spouse. Neither the definition of immediate relative nor the

text and structure of the adjustment of status regime provides

support for the government’s position that Mrs. Freeman

should be stripped of her spousal status.

Before we address (and reject) the government’s attempt to

read the second sentence of § 1151(b)(2)(A)(i) as implicitly

importing a two-year requirement into the definition of

spouse, we turn to the structure of the adjustment of status

procedure that was initiated when the Freeman’s filed their

adjustment of status forms. The immigration statute provides

that “[a]ny citizen of the United States claiming that an alien

is entitled to . . . immediate relative status under section

1151(b)(2)(A)(i) of this title may file a petition with the Attor-

ney General for such classification.” § 1154(a)(1)(A)(i). A cit-

izen spouse is generally eligible, without exception, to file a

petition on behalf of his alien spouse so long as the marriage

was not fraudulent and the marriage was not entered into

“while the alien was in exclusion, deportation, or removal

proceedings, or judicial proceedings relating thereto.” 8

C.F.R. § 204.2(a)(1)(ii) - (iii); see also Dabaghian v. Civiletti,

607 F.2d 868, 869 (9th Cir. 1979) (“If a marriage is not sham

or fraudulent from its inception, it is valid for the purposes of

determining eligibility for adjustment of status under § 245 of

the [Immigration and Nationality] Act until it is legally dis-

solved.”). The critical form the citizen spouse must file in

order to seek re-classification of his alien spouse is the Form

I-130, Petition for Alien Relative, establishing his citizenship

and that the alien seeking adjustment is an immediate relative.

See 8 C.F.R. § 204.1(a)(1). Along with the citizen’s filing, the

alien must file a Form I-485 seeking adjustment of status to

that of lawful permanent resident, relying on the citizen’s

petition attesting to the alien’s status as his spouse. See

§ 1255(a).11 Upon submission of these two forms, no addi-

11

Section 1255(a) provides

The status of an alien who was inspected and admitted or paroled

into the United States . . . may be adjusted by the Attorney Gen-

4526 FREEMAN v. GONZALES

tional forms are expected to be filed by the citizen and alien

spouses.12 The government points to nothing in this procedure

suggesting that the properly filed forms are entirely voided

upon the citizen petitioner’s death.

It is undisputed that Mr. and Mrs. Freeman adequately fol-

lowed this procedure and filed the necessary forms (I-130 and

I-485), and that their marriage was neither a sham nor fraudu-

lent. The government also tells us that, had DHS addressed

the Freemans’ application before Mr. Freeman died, the

adjustment of status could have been granted even though

they had not been married for two years. Nonetheless, by the

time DHS did reach the petition Mrs. Freeman was a widow

and, in DHS’s view, no longer a spouse eligible for LPR sta-

tus because her marriage did not meet a two-year requirement.

The government infers this two-year requirement from the

second sentence of § 1151(b)(2)(A)(i), which it reads as gov-

erning all cases where the immigration authorities have not

yet adjudicated a widow’s pending adjustment of status appli-

cation. The government’s position is that regardless of there

being no two-year minimum to qualify either as a spouse for

filing or for being granted an adjustment of status, if the citi-

zen spouse dies short of a two-year marriage and before DHS

has acted, his alien spouse’s opportunity for adjustment of sta-

eral . . . to that of an alien lawfully admitted for permanent resi-

dence if (1) the alien makes an application for such adjustment,

(2) the alien is eligible to receive an immigrant visa and is admis-

sible to the United States for permanent residence, and (3) an

immigrant visa is immediately available to him at the time his

application is filed.

12

We note that proper filing and approval of the forms do not them-

selves automatically entitle Mrs. Freeman to adjustment of status. Rather,

“[w]hile an I-130 establishes eligibility for status, the Attorney General —

or in the context of deportation proceedings, the IJ — must still decide to

accord the status.” Agyeman, 296 F.3d at 879. Nonetheless, the purpose of

our opinion here is to ensure that in making the decision to accord status,

the immigration authorities are properly construing the law that they have

the discretion to apply.

FREEMAN v. GONZALES 4527

tus dies with him because the alien is no longer an immediate

relative of a citizen.13 We cannot accept this untenable inter-

pretation. Cf. Dabaghian, 607 F.2d at 871 (“The word

‘spouses’ in § [1151(b)(2)(A)(i)] includes the parties to all

marriages that are legally valid and not sham. There is no

exception for marriages that the INS thinks are ‘factually

dead’ at the time of adjustment.”).

The more logical and statutorily substantiated interpretation

of the second sentence is that it applies to those aliens whose

citizen spouses did not initiate an adjustment of status pro-

ceeding before they died, granting such surviving spouses a

beneficial right to file an immediate relative petition even

without a living citizen spouse to vouch for the fact of the mar-

riage.14 The immigration regulations discussing the process to

adjust status comport with this reading and offer no support

for the government’s contention that alien spouses who have

filed the necessary forms should have their spousal status

voided upon the premature death of their citizen spouses.

8 C.F.R. §§ 204.1-2 lay out the framework for immediate

relative petitions and support our conclusion. Sections

204.1(a)(1) and 204.2(a) address when “a United States citi-

zen . . . may file a petition on behalf of a spouse,” a procedure

13

The government has not pointed to anything in the immigration laws

that gives the two-year anniversary such talismanic significance in this

context. We recognize that § 1227(a)(1)(G) creates a presumption of fraud

where an alien spouse has received an adjustment of status (pursuant to an

immediate relative petition made by the citizen spouse) prior to the two-

year anniversary of the marriage and the marriage is terminated within

two-years of the alien becoming an LPR. However, the government does

not argue that Mrs. Freeman’s marriage was anything but legitimate.

14

It is relevant that Congress introduced the two-year durational require-

ment for certain alien widows in a separate sentence of the statute. The

“grammatical structure of th[is] statute” suggests that the second sentence

“stands independent” of the first and does not qualify the general defini-

tion of spouse. See United States v. Ron Pair Enterprises, 489 U.S. 235,

241-42 (1989).

4528 FREEMAN v. GONZALES

the Freemans complied with here. On the other hand, sections

204.1(a)(2) and 204.2(b), separately delineate when a “widow

or widower of a United States citizen self-petitioning”15 “may

file a petition and be classified as an immediate relative”

(emphasis added), essentially tracking the second sentence of

§ 1151(b)(2)(A)(i).16 The distinction the regulations draw

between the rights of a citizen spouse to petition as compared

to those of an alien widow to self-petition is consistent with

a congressional intent to create two different processes, such

that one or the other applies — either the citizen spouse peti-

tions or, if he dies without doing so, the alien widow may do

so.17 There is no provision that the citizen spouse’s pending

petition (and consequently the alien spouse’s immediate rela-

tive status) is voided on his death, requiring the widow to start

over with her own self-petition.

Indeed, as noted above, the government concedes that it

had the power to grant the Freemans’ application prior to Mr.

15

An alien “widow or widower of a United States citizen self-petitioning

under section 1154(a)(1)(A)(ii) of the Act as an immediate relative . . .

must file a Form I-360, Petition for Amerasian, Widow, or Special Immi-

grant.” 8 C.F.R. § 204.1(a)(2). Because Mr. Freeman had already filed a

Form I-130, as required by 8 C.F.R. § 204.1(a)(1), there was no reason for

Mrs. Freeman to self-petition by filing an I-360.

16

A widow or widower may self-petition for classification only if “she

had been married for at least two years to a United States citizen,” “the

petition is filed within two years of the death of the citizen spouse,” “the

alien petitioner and the citizen spouse were not legally separated at the

time of the citizen’s death,” and “the alien spouse has not remarried.” 8

C.F.R. §§ 204.2(b)(i)-(iv).

17

8 U.S.C. § 1154(a)(1)(A)(ii) states, “An alien spouse described in the

second sentence of section 1151(b)(2)(A)(i) also may file a petition with

the Attorney General under this subparagraph for classification of the alien

(and the alien’s children) under such section.” (emphasis added.) The

inclusion of the word “also” in this subsection, as compared to the right

given to living citizen spouses in § 1154(a)(1)(A)(i) (i.e., to file a petition

on behalf of their alien spouse), further establishes that the right of self-

petition is given to a select group of alien widows as an alternative to their

citizen spouse’s I-130 filing.

FREEMAN v. GONZALES 4529

Freeman’s death (and the Freemans’ second anniversary).

Had it done so, Mrs. Freeman’s LPR could not then have been

voided by her husband’s death, as the statute expressly states.

See § 1186a(a), (b)(1) (providing that an alien spouse who

receives permanent resident status as an immediate relative

before the second anniversary of her qualifying marriage does

so on a conditional basis, and if the Attorney General deter-

mines that prior to the second anniversary of the alien’s

obtaining status the alien’s marriage “has been judicially

annulled or terminated, other than through the death of a

spouse,” the Attorney General “shall terminate the permanent

resident status of the alien.” (emphasis added)). This is com-

pelling evidence that Congress did not intend its provision for

a widow’s self-petition for adjustment of status to have an

implicit collateral consequence of terminating a spouse’s

already pending petition — particularly when the effect would

be to foreclose a grieving widow from any adjustment at all

“through the death of [her] spouse.”

[9] Read cohesively, as they must be, the immigration laws

— and § 1151 in particular — provide varying rights depend-

ing on the procedures employed and requirements fulfilled by

those seeking an adjustment of status, and say nothing of

voiding the pending application properly filed by Mrs. Free-

man and her late husband. Section 1151’s definition of imme-

diate relative includes those spouses, like Mrs. Freeman,

whose citizen spouses have filed Form I-130. When the citi-

zen spouse dies after he has filed Form I-130 and otherwise

satisfied the necessary requirements, the duration of the mar-

riage is of no consequence (unless DHS finds the marriage to

be a sham or otherwise fraudulent), and the surviving alien

spouse remains a qualified immediate relative. However,

when a citizen spouse dies before initiating an adjustment of

status proceeding on behalf of his alien spouse, Congress has

— in the second sentence of § 1151(b)(2)(A)(i) — granted the

survivor a qualified right to self-petition on her own behalf.

In the self-petition context, Congress required a minimum

two-year marriage as well as a filing within two years of her

4530 FREEMAN v. GONZALES

husband’s death.18 This interpretation harmonizes and is con-

sistent with the language and structure of the statute and

related provisions of the immigration law. See Cook Inlet

Native Ass’n v. Bowen, 810 F.2d 1471, 1474 (9th Cir. 1987)

(“The words of a statute should be harmonized internally and

with each other to the extent possible.”).

Mrs. Freeman “completed all the formalities required for an

adjustment of [her] status, . . . but the immigration authorities

had, through no fault of [her or her husband’s], failed as yet

to act on [her husband’s] petition.” Benslimane v. Gonzales,

430 F.3d 828, 832 (7th Cir. 2005); see also INS v. Miranda,

459 U.S. 14, 15 (1982) (per curiam) (“Section 245(a) of the

Immigration and Nationality Act conditions the granting of

permanent resident status to an alien on the immediate avail-

ability of an immigrant visa. [The citizen spouse’s] petition,

if approved, would have satisfied this condition.”). It is under-

standable that the immigration authorities may require a con-

siderable amount of time to process the many applications

that come before them; however, an alien’s status as a quali-

fied spouse should not turn on whether DHS happens to reach

a pending application before the citizen spouse happens to

die. See Clinton v. New York, 524 U.S. 417, 429 (1998)

(“Acceptance of the government’s . . . reading . . . would pro-

duce an absurd and unjust result which Congress could not

have intended.”) (internal citation and quotation marks omit-

ted).

IV. CONCLUSION

[10] The government’s attempt to apply the VWP’s no-

contest clause to Mrs. Freeman’s adjustment of status pro-

ceeding and its contention that her spousal status was stripped

by her husband’s untimely death are “contrary to congressio-

18

Congress could rationally have wanted some objective evidence of a

valid marriage in the case of a widow whose citizen spouse had taken no

action to adjust her status during his lifetime.

FREEMAN v. GONZALES 4531

nal intent and frustrate congressional policy.” Akhtar v. Bur-

zynski, 384 F.3d 1193, 1202 (9th Cir. 2004). First, the

adjustment of status regime makes clear that a VWP entrant

is assimilated into the procedural world of adjustment of sta-

tus applicants once an immediate relative petition is properly

filed, and not relegated to lesser rights by virtue of the VWP’s

no-contest clause. Second, given the text, structure and con-

text of § 1151(b)(2)(A)(i) — further illuminated by DHS’s

willingness to grant LPR applications regardless of a mar-

riage’s duration — deference to the government’s interpreta-

tion of “spouse” is not warranted. Mrs. Freeman remains an

immediate relative (spouse) of a U.S. citizen and her adjust-

ment of status application should be adjudicated accordingly.

[11] Accordingly we GRANT Mrs. Freeman’s petition for

review and REMAND to the district director for further con-

sideration consistent with this opinion.19 The removal order

entered against Mrs. Freeman is VACATED.20

PETITION GRANTED AND REMANDED.

19

Remand to the district director is appropriate in this case because “the

authority to adjudicate immediate relative preference petitions properly

rests with the Attorney General (who has, in turn, delegated it to the dis-

trict directors), and not with the BIA or immigration judge.” Dielmann v.

INS, 34 F.3d 851, 853 (9th Cir. 1994).

20

Because we hold that Mrs. Freeman is a spouse for purposes of 8

U.S.C. § 1151(b)(2)(A)(i), we need not reach her equal protection claim.