Robinson v. Secretary Homeland

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

2-2-2009

Robinson v. Secretary Homeland

Precedential or Non-Precedential: Precedential

Docket No. 07-2977

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-2977

OSSERRITTA ROBINSON

v.

JANET NAPOLITANO,* Secretary of the Department of

Homeland Security; MICHAEL AYTES,* Acting Deputy

Director, U.S. Citizenship and Immigration Services,

Appellants

*Amended pursuant to F.R.A.P. 43(c)(2)

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 06-cv-05702)

District Judge: Honorable Stanley R. Chesler

Argued September 9, 2008

Before: SLOVITER, FUENTES, and NYGAARD,

Circuit Judges.

Filed: February 2, 2009

____

Alison R. Drucker (Argued)

United States Department of Justice

Office of Immigration Litigation

Washington, D.C. 20044

Alex Kriegsman

Office of United States Attorney

Newark, N.J. 07102

Attorneys for Appellants

Jeffrey A. Feinbloom (Argued)

Feinbloom Bertisch

New York, N.Y. 10007

Attorney for Appellee

_____

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The issue before us is whether an alien married to a

United States citizen remains an “immediate relative,” within the

meaning of the Immigration and Nationality Act (“INA”), if the

couple had been married for less than two years when her citizen

spouse died. It is an issue this court has never addressed.

I.

Factual and Procedural History

Osserritta Robinson (“Robinson”), a citizen and national

of Jamaica, entered the United States on January 14, 2002, as an

non-immigrant visitor on a B-2 visa and married Louis Robinson

(“Mr. Robinson”), a United States citizen, in February 2003. In

March 2003, Mr. Robinson filed a Petition for Alien Relative (“I-

130 petition”) for an immigrant visa on behalf of his wife as an

“immediate relative.” At the same time, Robinson filed an I-485

application to adjust her immigration status to that of a lawful

permanent resident (“LPR”).

Mr. Robinson died on October 15, 2003, in the Staten

Island Ferry accident. On October 15, 2005, the U.S. Citizenship

2

and Immigration Services (“USCIS”) informed Robinson that her

I-130 petition had been automatically terminated upon the death

of her husband. According to USCIS, Robinson was no longer

an “immediate relative” within the meaning of the INA because

her husband’s death occurred before the couple had been married

for two years.

Robinson filed a petition for a writ of mandamus and a

complaint for declaratory and injunctive relief in the United

States District Court for the District of New Jersey against

Michael Chertoff, the Secretary of the Department of Homeland

Security, and Emilio Gonzalez, Director, U.S. Citizenship and

Immigration Services,1 requesting that the court order USCIS to

reopen her I-130 petition and I-485 application and treat her as

an “immediate relative” of a United States citizen. The

complaint also asked the court “to enjoin USCIS from using the

death of Mr. Robinson as a discretionary factor in adjudicating

Mrs. Robinson’s I-485 application.” Robinson v. Chertoff, No.

06-5702, 2007 WL 1412284, at *1 (D.N.J. May 14, 2007). The

District Court denied the Government’s motion to dismiss and

granted summary judgment in favor of Robinson. Thereupon,

the District Court set aside USCIS’ determination that Robinson

was not a spouse, ordered USCIS to process her I-130 petition

and I-485 application, and granted a declaratory judgment that

Robinson “is an immediate relative under 8 U.S.C. §

1151(b)(2)(A)(i) and for the purposes of adjudicating an I-130

petition.” App. at 14.2 The Government appeals.

II.

Jurisdiction and Standard of Review

1

For purposes of convenience, we will refer to them jointly

as “Government.”

2

The District Court also denied Robinson’s “request for

injunctive relief limiting the discretion of the USCIS in

adjudicating her I-485 application . . . [because the] question has

not been briefed and is not properly before the Court.” Robinson,

2007 WL 1412284, at *5. Robinson did not appeal that order.

3

The District Court had jurisdiction under 28 U.S.C. §

1331 and Section 704 of the APA, 5 U.S.C. § 704, to review the

meaning of the term “immediate relative” as it appears in 8

U.S.C. § 1151(b)(2)(A)(i). Because this is a “purely legal

question and does not implicate agency discretion,” the INA’s

jurisdictional bar, 8 U.S.C. § 1252(a)(2)(B)(ii), which precludes

judicial review of most discretionary immigration decisions, is

not applicable in this case. Pinho v. Gonzales, 432 F.3d 193, 204

(3d Cir. 2005).

We have jurisdiction under 28 U.S.C. § 1291. “We

exercise plenary review of the District Court’s statutory

interpretation, but afford deference to a reasonable interpretation

adopted by the agency.” Pinho, 432 F.3d at 204.

III.

Statutory Scheme

A United States citizen who seeks to gain lawful

permanent resident status for an eligible family member must

begin the process by filing an I-130 petition with USCIS on

behalf of an alien who is an “immediate relative.” 8 U.S.C. §§

1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1).

Concurrently, or thereafter, the alien spouse 3 for whom the I-130

petition was filed (the “immediate relative”) must file an I-485

application for adjustment of status. 8 U.S.C. § 1255(a); 8

C.F.R. § 245.1(a). “Immediate relatives” are defined in the INA

as:

[T]he 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

3

The statute is gender neutral. Because in this case, the

citizen spouse was a male, we refer to the gender as applicable to

the facts.

4

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 . . . 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 1154(a)(1)(A)(ii) of

this title [an I-360 petition] within 2 years after such date

and only until the date the spouse remarries.

8 U.S.C. § 1151(b)(2)(A)(i) (emphasis added).4

USCIS “shall” approve the I-130 petition filed by the

citizen spouse only if it determines, after an investigation, “that

the facts stated in the petition are true and that the alien in behalf

of whom the petition is made is an immediate relative.” 8 U.S.C.

§ 1154(b).

Approval of the I-130 petition renders the immediate

relative eligible for adjustment of status under 8 U.S.C. §

1255(a), which provides, in pertinent part:

The status of an alien . . . may be adjusted by the Attorney

General, in his discretion and under such regulations as he

may prescribe, to that of an alien lawfully admitted for

permanent residence if (1) the alien makes an application

for such adjustment, (2) the alien is eligible to receive an

immigrant visa and is admissible to the United States for

permanent residence, and (3) an immigrant visa is

immediately available to him at the time his application is

filed.

8 U.S.C. § 1255(a). Because immediate relative visas are not

subject to numerical visa limitations, 8 U.S.C. §

4

An I-360 petition allows a widow/er of a U.S. citizen to

self-petition if, inter alia, she or he was married for at least two

years and the petition is filed within two years of the citizen

spouse’s death. See 8 U.S.C. § 1154(a)(1)(A)(ii); 8 C.F.R. §§

204.2(b), (i)(1)(iv).

5

1151(b)(2)(A)(i), once the I-130 petition is approved the

“immigrant visa is immediately available” to the alien spouse at

the time her I-485 application is filed, 8 U.S.C. § 1255(a). Thus,

eligibility to adjust status to that of an LPR is contingent upon

approval of the I-130 petition.

IV.

Discussion

Robinson argues that she remained an “immediate

relative” within the meaning of 8 U.S.C. § 1151(b)(2)(A)(i) after

the death of her husband. The Government counters that

Robinson is no longer a “spouse” eligible to be considered an

“immediate relative” because she had not been married to her

citizen spouse for two years at the time of his death. The

Government reads the second sentence of section

1151(b)(2)(A)(i) as qualifying the term “spouse” in the first

sentence of the section. In other words, the Government argues

that a spouse remains an “immediate relative” within the

meaning of the INA after the death of his or her citizen spouse

only if the couple had been married for two years at the time of

the citizen’s death.

Robinson argues in response that because the first

sentence of the provision does not in any way qualify the term

“spouse,” she remains a spouse after her husband’s death. She

interprets the second sentence (which contains the two-year

marriage requirement) as granting a separate right for widows to

self-petition for visas rather than as a limitation on the definition

of spouse.

More than thirty-five years ago the Bureau of Immigration

Appeals (“BIA”) considered the effect of a citizen spouse’s death

on a pending petition for an immigrant visa on behalf of the alien

spouse. In In re Varela, 13 I. & N. Dec. 453, 453-54 (B.I.A.

1970), the BIA held that an alien spouse was no longer a

“spouse” because her citizen spouse died prior to a determination

of her I-130 petition. The Government argues that we should

defer to the BIA precedent.

6

The District Court, without even citing In re Varela,

agreed with Robinson’s interpretation of the immediate relative

provision, relying on the reasoning of the Court of Appeals for

the Ninth Circuit in Freeman v. Gonzales, 444 F.3d 1031 (9th

Cir. 2006). The Ninth Circuit refused to accord deference to

Varela because it stated that the BIA’s decision “lack[ed] . . .

statutory analysis, . . . [and] is further undercut by the BIA’s later

finding [in In re Sano, 19 I. & N. Dec. 299 (B.I.A. 1985)] that it

was ‘extra-jurisdictional.’”5 Freeman, 444 F.3d at 1038 (citation

added).

Instead, the Ninth Circuit held that the first and second

sentences of the statutory provision “stand[] independent” of

each other and provide for “two different processes, such that

one or the other applies – either the citizen spouse petitions or, if

he dies without doing so, the alien widow may do so.” Freeman,

444 F.3d at 1041 n.14, 1042. It reasoned that because the only

limitation on the definition of “immediate relative” in the first

sentence relates to alien parents (the grant of immediate relative

status is limited to those whose citizen child is at least 21 years

old) and “[t]here is no comparable qualifier to be a ‘spouse,’” the

term “immediate relative” means the spouse of a U.S. citizen,

“without exception.” Id. at 1039. Thus, according to that court,

“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 spouse.” Id.

at 1039-40 (emphasis in original).

The Freeman court rejected the Government’s argument

that the second sentence implicitly qualifies the general

definition of spouse by imposing a two-year marriage

5

In Sano, the BIA held that it had no jurisdiction to address

an appeal by the beneficiary from the denial of a visa petition; the

BIA held that it had authority to hear appeals by only a visa

petitioner (i.e., the citizen spouse who filed a visa petition on

behalf of his alien spouse, but died before its approval). 19 I. & N.

Dec. at 301.

7

requirement. Instead, it viewed the second sentence as applying

“to those aliens whose citizen spouses did not initiate an

adjustment of status proceeding 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 marriage.” Id. at 1041.

Relying on Freeman, the District Court held that Robinson

remained an immediate relative after the death of her spouse and

noted that, “[t]he Court cannot imagine that Congress intended

the time of death combined with the pace of adjudication, rather

than the petitioner’s conscious decision to promptly file an I-130

petition, to be the proper basis for determining whether the alien

qualifies as an immediate relative.” Robinson, 2007 WL

1412284, at *5.

Robinson argues that the death of her husband did not

affect her status as an immediate relative which, she contends,

“vested” at the time her husband filed the I-130 petition. The

Government contends that “immediate relative status” is not

determined at the time the I-130 petition was filed but at the time

the petition is adjudicated. It supports that argument by noting

that the present tense is used in 8 U.S.C. § 1154(b), the statutory

provision governing the grant of immigrant visas. This provision

states that the Attorney General (now the Secretary of Homeland

Security) 6 “shall, if he determines that the facts stated in the

petition are true and that the alien in behalf of whom the petition

is made is an immediate relative specified in section 1151(b) . . .

, approve the petition.” 8 U.S.C. § 1154(b) (emphasis added).

The District Court believed that the fact that “the statute is

written in the present tense is not particularly significant,”

Robinson, 2007 WL 1412284, at *4, but we disagree. The use of

6

The Homeland Security Act of 2002 transferred the

authority to grant visas from the Attorney General to the Secretary

of the Department of Homeland Security. Homeland Security Act

of 2002, Pub. L. No. 107-296, § 402(4), 116 Stat. 2135, 2178

(codified at 6 U.S.C. § 202(4)).

8

the present tense in 8 U.S.C. § 1154(b) belies Robinson’s

contention that an alien’s marital status at the time of filing the I-

130 petition controls, and makes plain that the facts in the

petition - including the alien’s spousal status - must be true at the

time USCIS decides the petition.

The present tense is also used in the section governing

adjustment of status, which provides that the Attorney General

may adjust the status of an alien if:

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

the alien is eligible to receive an immigrant visa and is

admissible to the United States for permanent residence,

and (3) an immigrant visa is immediately available to him

at the time his application is filed.

8 U.S.C. § 1255(a) (emphasis added).

Robinson relies on the last clause of the subsection (“at

the time his application is filed”) to argue that eligibility for

immediate relative status at the time of filing the application is

controlling. Robinson’s statutory construction of the provision is

not persuasive. Instead, the natural reading of this provision is

that the final clause applies to only the third requirement. See

United States v. Hodge, 321 F.3d 429, 436 (3d Cir. 2003) (“The

doctrine of the last antecedent teaches that ‘qualifying words,

phrases, and clauses are to be applied to the words or phrases

immediately preceding’ and not to ‘others more remote.’”)

(quoting Resolution Trust Corp. v. Nernberg, 3 F.3d 62, 65 (3d

Cir. 1993)). If the phrase, “at the time his application is filed”

applied to more than the third requirement, its natural placement

would be before the second as well as the third requirement.

In addition to her attempt to find support in the statutory

language, Robinson also argues that under the regulations

governing the processing of petitions her eligibility for a visa is

to be determined at the time of filing. She notes, for example,

that 8 C.F.R. § 204.1(a)(1) provides that the citizen spouse must

“file” Form I-130 for a qualifying relative and 8 C.F.R. §

103.2(b)(12) provides that evidence in response to a request must

9

establish eligibility at “time of filing.” However, these

regulations merely set up the procedures by which a citizen

petitions for a relative. 8 C.F.R. §§ 204.1(a)(1), 204.2(a)(1).

They do not suggest that the agency must grant the application of

a surviving spouse by considering only the marital status at the

time the petition was filed. Likewise, the regulation to which

Robinson points that provides that the agency must deny the

petition if it receives additional evidence that shows that the

surviving spouse was not eligible at the time of filing, 8 C.F.R. §

103.2(b)(12), merely shows that eligibility at the time of filing is

a necessary condition for the grant of a petition; it does not

establish that eligibility at that time is sufficient if the citizen

spouse dies before the adjudication. As such, the regulations do

not support Robinson’s argument.

Accordingly, we hold that eligibility for an immediate

relative visa depends upon the alien’s status at the time USCIS

adjudicates the I-130 petition, not when that petition was filed.

This becomes dispositive in the situation when a citizen spouse

dies before the citizen spouse and the alien were married for two

years.

The underlying issue of statutory construction is not

complicated. To repeat, section 1151(b)(2)(A)(i) provides:

[T]he 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 . . . 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 1154(a)(1)(A)(ii) of this title within

2 years after such date and only until the date the spouse

remarries.

8 U.S.C.§ 1151(b)(2)(A)(i).

10

The first sentence of the immediate relative definition

cannot be divorced from the second sentence. The first sentence

provides a general definition of immediate relatives based on

familial relationships to a U.S. citizen. In the same sentence, the

definition of parent is qualified by adding that a parent is deemed

an immediate relative only if his or her child is at least twenty-

one years old. The second sentence qualifies the definition of

spouse by including as an immediate relative the widow or

widower of a citizen spouse who died as long as s/he had been

the spouse of the United States citizen for at least two years at

the time of the citizen spouse’s death. For those surviving

spouses who had been married for two years but for whom no

petition for immediate relative status had yet been filed, the

section also provides an opportunity to remedy that gap by

authorizing the surviving spouse to self-petition within two years

of the death of the citizen spouse.

The language and this interpretation is straightforward.

Significantly, the two-year marriage requirement applies to both

groups of surviving spouses, those for whom the citizen spouse

had filed the petition before his death and those for whom the

citizen spouse had not filed the petition.

The immediate relative provision contains one exception

to the rule that the death of the citizen spouse terminates

immediate relative status if the death occurs before the petition is

granted, i.e., the exception covering the situation of a couple who

had been married for two years at the time of the citizen-spouse’s

death.7 As we stated in United States v. McQuilkin, 78 F.3d 105

7

The only other exceptions to the rule that immediate

relative status terminates upon the death of the citizen spouse are

in the cases of abused spouses or children of U.S. citizens and

widows of members of the U.S. armed forces killed in combat. A

self-petition by an abused spouse or child “shall not [be] adversely

affect[ed]” by the death of the citizen-abuser after the filing of a

self-petition. 8 U.S.C. § 1154(a)(1)(A)(vi). Similarly, a widow of

a member of the U.S. armed forces killed in combat “shall be

considered . . . to remain an immediate relative after the date of the

11

(3d Cir. 1996), “It is a canon of statutory construction that the

inclusion of certain provisions implies the exclusions of others.

The doctrine of inclusio unius est exclusio alterius ‘informs a

court to exclude from operation those items not included in a list

of elements that are given effect expressly by the statutory

language.’” Id. at 108 (quoting In re TMI, 67 F.3d 1119, 1123

(3d Cir. 1995)). As a result, we conclude that a spouse ceases to

be an immediate relative when the citizen spouse dies unless the

couple had been married at least two years at the time of death.

In effect, the second sentence qualifies which spouses of

deceased citizens are immediate relatives, just as the last clause

of the first sentence qualifies which parents of citizens are

immediate relatives.

Our reading of the immediate relative provision comports

with the ordinary meaning of the term “spouse.” “A fundamental

canon of statutory construction is that, unless otherwise defined,

words will be interpreted as taking their ordinary, contemporary,

common meaning . . . at the time Congress enacted the statute.”

Perrin v. United States, 444 U.S. 37, 42 (1979). The INA does

not provide a helpful definition of the term “spouse” in its

definitional section. 8 U.S.C. § 1101. Instead, it negatively

defines spouse by stating who is not a spouse: “The term [sic]

‘spouse’, ‘wife’, or ‘husband’ do not include a spouse, wife, or

husband by reason of any marriage ceremony where the

contracting parties thereto are not physically present in the

presence of each other, unless the marriage shall have been

consummated.” 8 U.S.C. § 1101(a)(35). This cannot be

considered a “definition” in any meaningful way because it

repeats the terms it seeks to define and, as Robinson herself

notes, “does not preclude common understandings of the term.”

Appellee’s Br. at 7.

citizen’s death” if she self-petitions within two years and does not

remarry. National Defense Authorization Act for Fiscal Year 2004,

Pub. L. No. 108-136, § 1703, 117 Stat. 1392, 1693 (2003). There

is no two-year marriage requirement in these situations.

12

Significantly, the INA’s definitional section does provide

statute-specific definitions of other commonly-used terms such

as “child,” which it defines to mean “an unmarried person under

twenty-one years of age” who satisfies other specific

requirements. 8 U.S.C. §§ 1101(b)(1), 1101(c)(1). In addition,

the INA includes a definition of “parent” that expressly includes

a “deceased parent.” 8 U.S.C. § 1101(c)(2). Congress’ choice to

include specific definitions of these common family words -

child and parent - but not to include such a definition of spouse

strongly suggests that the ordinary meaning of spouse at the time

of the enactment of the immediate relative provision should

control. See Perrin, 444 U.S. at 42.

The original immediate relative provision of the INA was

enacted in 1965 and stated in pertinent part: “‘[I]mmediate

relatives’ . . . shall mean the children, spouses and parents of a

citizen of the United States: Provided, That in the case of

parents, such citizen must be at least twenty-one years of age.”

Act to Amend the Immigration and Nationality Act, Pub. L. No.

89-236, § 1, 92 Stat. 911, 911 (1965) (codified as amended at 8

U.S.C. § 1151(b)(2)(A)(i)) (emphasis in original). The common,

ordinary meaning of spouse in 1965, according to Black’s Law

Dictionary covering that period, was “[o]ne’s wife or husband.”

Black’s Law Dictionary 1574 (4th ed. 1951).8 That entry also

cites a 1939 Oregon Supreme Court decision in which the Court

separately defined “surviving spouse” to mean “the one, of a

married pair, who outlives the other.” Rosell v. State Indus. Acc.

Comm’n, 95 P.2d 726, 729 (Or. 1939).

In 1990, Congress amended the INA to add the second

sentence of the immediate relative provision, which, for the first

time, extends the term to cover the situation of the death of the

citizen spouse and includes the two-year marriage requirement.

8

After the 1951 edition, no new or revised edition of

Black’s was issued until the revised 4th edition was published in

1968. Black’s Law Dictionary, (4th ed. rev. 1968). The 1968

edition’s definition of spouse is identical to the 1951 version

quoted above. Id.

13

Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978,

4981 (1990). By that time, Black’s Law Dictionary had added

the following to its definition of spouse: “‘surviving spouse’ is

one of a married pair who outlive the other.” Black’s Law

Dictionary 1402 (6th ed. 1990). We reject Robinson’s argument

that the inclusion of “surviving spouse” in the 1990 Black’s Law

Dictionary entry for “spouse” proves that she remains legally a

spouse even though her husband is deceased. The fact that

Black’s Law Dictionary’s entry for spouse defines “surviving

spouse” separately disproves Robinson’s hypothesis.

Moreover, to conclude that “spouse” and “surviving

spouse” have the identical meaning is illogical and is contrary to

our understanding of the legal effect of death on a marriage. The

standard legal effect of death on marriage is that it terminates the

legal union. See 52 Am. Jur. 2d Marriage § 8 (2000)

(“[M]arriage . . . is terminable only by death or presumption of

death, or by a judicial decree of divorce, dissolution, or

annulment.”). The domestic relations law of New Jersey (the

state in which Robinson and her husband resided at the time of

his death and the state in which this action was brought) also

suggests that a marriage terminates upon the death of one spouse.

See N.J. Stat. Ann. § 9:17-43(a)(1) (West 2002) (former husband

is presumed to be father of child born within “300 days after the

marriage is terminated by death, annulment or divorce”); N.J.

Stat. Ann. 2C:24-1a(1) (West 2005) (belief that spouse is dead is

defense to bigamy).

The very language of the immediate relative provision

distinguishes between a living spouse and a surviving spouse

when it states that “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 . . . shall be considered . . . to remain an immediate

relative.” 8 U.S.C. § 1151(b)(2)(A)(i) (emphasis added).

Because Robinson’s citizen spouse died before the couple was

married for two years, Robinson does not qualify as an

“immediate relative” under the INA.

Our dissenting colleague argues that Robinson will be

removed because her petition “is stuck in the government’s

14

bureaucracy.” Dissent typescript op. at 16. That misstates the

facts and the law. We agree with the agency that Robinson’s

claim must be rejected, not because of any government

bureaucracy but because she does not meet one of the Congress’

requirements for immediate relative status, i.e., that she had been

married to her citizen spouse for at least two years. Congress has

imposed a requirement of a particular length of a

petitioner/claimant’s prior marriage in a variety of situations.

For example, one of the ways in which a surviving spouse can

qualify for veterans’ benefits is by showing that the surviving

spouse was married to the veteran for one year or more. See 38

U.S.C. § 1304 (2); see also 10 U.S.C. § 1447(7)(A) (Armed

Forces Act); 42 U.S.C. §§ 416(b), (c) (Social Security Act).

We are aware that the result of our holding is that

Robinson is ineligible for LPR status as a result of a tragic

accident that neither she nor her citizen spouse could have

avoided or anticipated. But our obligation is to interpret the

statute according to its language. Our holding is consistent with

the core purpose of the U.S. family-based immigration policy:

the promotion of family unification for U.S. citizens and lawful

permanent residents. See Act to Amend the Immigration and

Nationality Act, Pub. L. 89-236, § 1, 79 Stat. at 911 (codified as

amended at 8 U.S.C. § 1151(b)(2)(A)(i)); H.R. Rep. No. 89-745,

at 1, 12 (1965) (“Reunification of families is emphasized as the

foremost consideration [of the legislation].”)

Admittedly, inclusion of a surviving spouse as an

immediate relative if s/he was married for two years also does

not promote unification of the marital unit but Congress

undoubtedly recognized that other considerations become

relevant once the alien spouse builds increased ties with the

United States. A marriage that lasted two years can be presumed

to have been bona fide, and in that period the surviving spouse

would have developed settled expectations. 9 Congress could

9

A regulation promulgated after the USCIS’s decision in this

case provides that, if the two-year marriage requirement is satisfied

when the spouse dies, the I-130 immediate relative petition is

15

reasonably determine that an alien with a pending I-130 petition

who had been married to a U.S. citizen for less than two years at

the time of the citizen spouse’s death is not entitled to LPR

status. Congress created a balance between the goal of family

unity and the legitimate expectations of an alien-spouse whose

connections to the United States were likely to have become

solidified during the two-year marriage period.

V.

Conclusion

For the reasons set forth, we will reverse the order of the

District Court and direct it to grant the Government’s motion to

dismiss.

NYGAARD, Circuit Judge, dissenting

As a result of the government’s fatally flawed

interpretation of §1151(b), Osseritta Robinson will be removed

from the United States, in spite of her full compliance with the

INA, simply because the petition filed on her behalf by her

deceased husband is stuck in the government’s bureaucracy. The

government argues, and the majority agrees, that both the plain

language of the statute and deference to their implementation of

this provision dictate this result. I disagree for three reasons.

First, I believe the plain language leads to a contrary result.

Second, even were this definition ambiguous, I would not defer

to the government’s interpretation. Third, I do not think that

Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467

U.S. 837 (1984) even applies. I will discuss these reasons in

inverse order.

automatically converted into a I-360 widow/er petition. 8 C.F.R.

§ 204.2(i)(1)(iv), as amended, 71 Fed. Reg. 35,732, at 35,749

(2006).

16

In Chevron the Court ruled that when Congress explicitly

or implicitly delegates authority to an executive agency to

develop regulations and practices to fill the interstices in the law,

the courts must defer to them. The Court held that “[t]he power

of an administrative agency to administer a congressionally

created program necessarily requires the formulation of policy

and the making of rules to fill any gap left, implicitly or

explicitly, by Congress.” (Quoting Morton v. Ruiz, 415 U.S. 199

(1974)). In Chevron Congress had failed to define a term. The

EPA promulgated detailed regulations and national standards

defining the term at issue. The Court held that because the

regulatory scheme was “technical and complex,” the agency

“considered the matter in a detailed and reasoned fashion,” and

the decision involve[d] reconciling conflicting policies,” courts

must defer to the technical expertise of the agency. Chevron,

467 U.S. at 865.

Here Congress provided us with a definition of

“immediate relative” and had no reason to delegate, explicitly or

implicitly, any further authority to the executive department to

further tweak the definition. The words and phrases at issue are

not technical. The agency has no relevant expertise to more fully

define them for us. There is no legislative history to suggest

there existed any controversy which Congress referred to the

agency to resolve. The only reasonable inference to draw is that

Congress did not intend to delegate any authority to the agency

on this issue at all. As a result it is for the court to use our

standard, time-honored means of statutory construction. The

mere fact that the panel is divided on how to read the definition

at issue is no reason to call upon Chevron to bail us out.

Even were this a Chevron matter, I would not defer to the

government’s interpretation. The government stated that,

historically, it has interpreted §1151(b)(2)(A)(i) and the term

“spouse” to exclude aliens like Robinson from the grant of an

immediate relative classification. To me, the government’s

argument is an attempt to use Chevron to defend an errant

interpretation of the statute primarily because the same error has

been made for a number of years. Moreover, even the

government’s claim of consistency does not withstand scrutiny. I

17

would consider it an abdication of my judicial obligation to

construe and apply the statute, and a denial of Robinson’s right-

of-access to the courts, to defer to departmental interpretations

that are as unfounded as this.

The government, and the majority, refer to Matter of

Varela 13 I. & N. Dec. 453 (BIA 1970), as primary evidence of

its persistent approach to this statute. Yet, I am persuaded by the

analysis of the Court of Appeals of the Ninth Circuit that Varela

was invalidated because it was deemed extra-jurisdictional.

Freeman v. Robinson, 444 F.3d 1031 (9 th Cir. 2005). I simply do

not regard Varela as carrying any weight.

Moreover, the government’s reference to a 1938 INS

amendment to a regulation is not on point. This amendment

states that the issuance of a visa will be withheld and approval of

a petition may be revoked “if it is ascertained that the petitioner .

. . has died.” 3 Fed. Reg. 263 (1938). The amendment refers to

the government’s general authority to revoke an approved I-130

petition or withhold the grant of a visa. Neither of these actions

deal with the topic at hand, which is whether the government has

authority to terminate a properly filed I-130 petition that is still

pending, based only upon the death of the petitioner.

Additionally, the regulation refers generically to petitioners

rather than “spouse.” The government’s use of the 1938

amendment as evidence of a consistent interpretation of

§1151(b)(b)(2)(A)(i) is specious.

With regard to the plain meaning of the statute, I disagree

with the majority’s definition of “spouse.” The government

argues and the majority contends that the terms “surviving

spouse” or “former spouse” are distinct from the common

understanding of the word “spouse.” The majority attempts to

bolster its position by, among other things, emphasizing

Congress’ use of the phrase “was the spouse” in

§1151(b)(2)(A)(i). Yet, we need look no further than the

language used later in the same sentence to appreciate the

inconsistency that this restrictive definition creates.

18

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 1154(a)(1)(A)(ii) of

this title within 2 years after such date and only

until the date the spouse remarries. (Emphasis

added).

8 U.S.C. §1151(b)(2)(A)(i). Similarly, in discussing which

foreign nationals may self-petition after the death of a husband or

wife who was a citizen or legal permanent resident of the United

States, the statute states:

For purposes of subclause (I), an alien described in

this subclause is an alien . . . (CC) who was a bona

fide spouse of a United States citizen within the

past 2 years and - - (aaa) whose spouse died within

the past 2 years.

8 U.S.C.A. § 1154(a)(1)(A)(i)(II). In both sections of this

statute, the word “spouse” is used without any qualifying terms

such as “former” or “surviving.”

It is obvious to me that Congress used “spouse” to refer to

a continuing marital bond between the deceased petitioner and a

surviving husband or wife. Therefore, the majority’s

interpretation fails to meet one of the principal rules of statutory

construction, which is to give terms consistent meaning. In light

of this, I cannot accept the government’s narrow definition of

“spouse.” As the statute plainly reads, “spouse” is an inclusive

term that includes aliens such as Robinson who survive the death

of their petitioning husband or wife.

19

I am also unpersuaded by the majority’s reliance upon the

present tense verbs that appear in 8 U.S.C. §1154(b), a provision

that focuses upon the government’s “[i]nvestigation;

consultation; approval; [and] authorization to grant preference

status.” (Emphasis added.) Although the majority masterfully

reviews the immediate relative petitioning process, its opinion

exposes a fundamental confusion between an I-130 petition,

which is filed to request an alien’s classification as an immediate

relative, and an I-485 petition, which is filed to request the grant

of an alien’s change of status. By extracting a sentence from

§1154(b), the majority opinion succeeds only in raising the

question of whether the petitioning spouse must be alive during

the investigation of the I-485 petition for change of status, a

question that is not at issue here. I view the discussion of

§1154(b) as irrelevant. This appeal focuses only upon

Robinson’s classification as an immediate relative, not her

change of status.

Regarding the majority’s structural interpretation of 8

U.S.C. 1151(b)(2)(A)(i), I do not agree that the second sentence

clearly modifies the first sentence. To the contrary, I submit that

the only reasonable way to understand these two sentences is if

they are read as independent. The District Court correctly found

that the first sentence lists spouse, without any qualifying terms,

as one type of relationship that enables an alien to be given an

immediate relative classification. The second sentence refers to

scenarios in which the petitioning spouse has died, but it

concludes by saying that an alien in this circumstance can be

classified as an immediate relative “but only if the spouse files a

petition under section 1154(a)(1)(A)(ii) of this title within 2

years after such date and only until the date the spouse

remarries.” The statute does not mandate the termination of I-

130 petitions upon the death of a petitioner, and even the

regulations make it clear that a pending or approved I-130

eliminates the need for the filing of a self-petition.10 Therefore,

10

“A currently valid visa petition previously approved to

classify the beneficiary as an immediate relative as the spouse of a

United States citizen must be regarded, upon the death of the

20

the only person to whom this second sentence in

§1151(b)(2)(A)(i) can refer is an alien who is not the beneficiary

of a pending or approved I-130 at the time of the death of the

petitioner.

To me, applying this two-year marital requirement to

even those who have already filed an I-130 implicitly presumes

to be invalid the marriage of those who are wed less than two

years before the petitioning spouse dies. This is inconsistent

with the statute. As a result, after reviewing both the language

and the structure of section 1151(b)(2)(A)(i) it is clear to me that

the two sentences are to be read as describing two distinct tracks

for an alien spouse to obtain an immediate relative classification:

petition by a living spouse, or self-petitioning.

I also oppose granting the government an expanded scope

of authority under 8 U.S.C. §1155.11 The government argued

that since §1155 already gives it power to revoke the acceptance

of an I-130 petition upon the death of the petitioner, it implicitly

already has the power to terminate pending I-130 petitions upon

the death of the petitioner. In my view, this interpretation of

§1155 is seriously flawed.

petitioner, as having been approved as a Form I-360, Petition for

Amerasian, Widow(er) or Special Immigrant for classification

under paragraph (b) of this section, if, on the date of the petitioner's

death, the beneficiary satisfies the requirements of paragraph (b)(1)

of this section. If the petitioner dies before the petition is approved,

but, on the date of the petitioner's death, the beneficiary satisfies

the requirements of paragraph (b)(1) of this section, then the

petition shall be adjudicated as if it had been filed as a Form I-360,

Petition for Amerasian, Widow(er) or Special Immigrant under

paragraph (b) of this section.” 8 C.F.R. 204.2(i)(1)(iv).

11

“The Secretary of Homeland Security may, at any time, for

what he deems to be good and sufficient cause, revoke the approval

of any petition approved by him under section 1154 of this title.

Such revocation shall be effective as of the date of approval of any

such petition.” 8 U.S.C.A. § 1155.

21

As the government would certainly concede, the plain

language of §1155 does not provide governmental authority to

terminate pending I-130 petitions. Its authority is limited to

revoking approved petitions. Moreover, upon examining the

regulations that implement §1155, it is clear to me that the

government’s interpretation of §1155 and §1151(b)(2)(A)(i)

results in an arbitrary outcome that defies both reason and equity.

The statutory interpretation argued by the government and

approved by the majority will not only summarily terminate

Robinson’s properly filed I-130 petition, it will also create a

regulatory crevice into which Robinson will be dropped.

Under the regulations, the government has discretion to

both withhold automatic revocation of an approved I-130

petition, and to refrain from denying a visa in cases where

humanitarian concerns justify such relief. 8 C.F.R.

205.1(a)(3)(i)(c)(2).12 The problem created in the majority’s

interpretation of §1151(b) and §1155 is that it denies Robinson’s

opportunity for discretionary relief, even though she would have

qualified for it but for the delays of the government in approving

Robinson’s I-130. The practical effect of the majority’s opinion

is not only that Robinson’s I-130 will be terminated because of

the government’s dilatory action – or inaction – on her husband’s

petition, but also that she will be removed from the country,

12

“The approval of a petition or self-petition made under

section 204 of the Act and in accordance with part 204 of this

chapter is revoked as of the date of approval: . . .Upon the death of

the petitioner, unless: . . . .U.S. Citizenship and Immigration

Services (USCIS) determines, as a matter of discretion exercised

for humanitarian reasons in light of the facts of a particular appeal,

that it is inappropriate to revoke the approval of the petition.

USCIS may make this determination only if the principal

beneficiary of the visa petition asks for reinstatement of the

approval of the petition and establishes that a person related to the

principal beneficiary in one of the ways described in section

213A(f)(5)(B) of the Act is willing and able to file an affidavit of

support under 8 CFR part 213a as a substitute sponsor.” 8 C.F.R.

205.1(a)(3)(i)(c)(2).

22

since no other relief is available to her under the INA.13 The

District Court was correct in stating that “the fortuity of the

citizen spouse’s untimely death is too arbitrary and random a

circumstance to serve as a basis for denying the petition.”

Robinson v. Chertoff, 2007 WL 1412284, 4 (D.N.J.).

Finally, it is inconceivable to me that Congress intended

an alien’s status to be contingent upon the amount of time that

the executive department takes to process a timely and proper

petition – a factor completely outside of the control of the alien.

This interpretation creates an arbitrary, irrational and inequitable

outcome in which approvable petitions will be treated differently

depending solely upon when the government grants the approval.

Nor do I believe that Congress intended to sanction the disregard

that the department has shown towards persons like Osseritta

Robinson. She has committed no crime. She is innocent of any

misbehavior. She is a grieving widow and the lone parent of the

Robinsons’ U.S. citizen child. This same department whose

delay or inaction forecloses Osseritta Robinson’s chance of

becoming an American, now so diligently pursues the avenues of

her expulsion. It contends that the statute is ambiguous and then

urges upon us the least reasonable and least humane alternative.

My view, wholly in the margin, is that it is untoward of this

nation of immigrants, we who have passed through the portals of

citizenship, to coldly and impassively slam the door behind us on

innocent aspirants who dream to follow.

Because I read the plain language and structure of

§1151(b)(2)(A)(i) as enabling Robinson to be classified as an

immediate relative, I dissent.

13

I am aware that Robinson can seek from Congress a

private bill to prevent her removal, but this extraordinary relief is

outside of the scope of the INA. Our task in interpreting statutes

is to remain within the four corners of the statute and regulations

to ascertain whether a particular interpretation yields unreasonable

or arbitrary results.

23