Carmen Contreras Aybar v. Secretary United States Depart

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-1462

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CARMEN JOSEFINA CONTRERAS AYBAR;

DARIO DE JESUS MORETA CONTRERA,

Appellants

v.

SECRETARY UNITED STATES DEPARTMENT OF

HOMELAND SECURITY;

DIRECTOR UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES;

DIRECTOR UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES VERMONT;

ATTORNEY GENERAL UNITED STATES OF AMERICA;

UNITED STATES ATTORNEY NEW JERSEY

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Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-16-cv-01539)

District Judge: Honorable Esther Salas

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Argued November 6, 2018

Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges

(Opinion filed: February 19, 2019)

Joshua S. Cohn, Esquire

James I. McClammy, Esquire

Benjamin Zhu, Esquire (Argued)

Davis Polk & Wardwell

450 Lexington Avenue

New York, NY 10017

Samuel I. Portnoy, Esquire

Gibbons

One Gateway Center

Newark, NJ 07102

Counsel for Appellants

Chad A. Readler

Acting Assistant Attorney General, Civil Division

William C. Peachey

Director, Office of Immigration

Litigation, District Court Section

Gisela A. Westwater

Assistant Director, District Court Section

Alexander J. Halaska, Esquire (Argued)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 868, Ben Franklin Station

Washington, DC 20044

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Counsel for Appellees

Gary W. Kubek, Esquire

Matthew D. Forbes, Esquire

Meryl Holt Silverman, Esquire

Elizabeth Costello, Esquire

Debevoise & Plimpton LLP

919 Third Avenue

New York, NY 10022

Counsel for Amicus Curiae

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OPINION OF THE COURT

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AMBRO, Circuit Judge

Carmen Josefina Contreras Aybar (“Carmen”) became

a lawful permanent resident under provisions of the

Immigration and Nationality Act (“INA”) known as the “U

Visa” statute. She then sought permanent resident status for

her son, Dario, based on a related provision of the INA, 8

U.S.C. § 1255(m)(3), which empowers the U.S. Department of

Homeland Security (“DHS”) to grant that status to certain

family members, including a “child,” of an immigrant in

Carmen’s situation. But that application hit a snag: while it

was pending Carmen’s son reached the age of twenty-one,

which made him ineligible under a DHS regulation that

implements § 1255(m)(3). Citing that regulation, it denied the

application.

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Carmen and her son challenge the regulation as contrary

to § 1255(m)(3) as well as being arbitrary and capricious. But

we cannot sustain that challenge. Instead we hold that

§ 1255(m)(3) unambiguously requires DHS to assess the

familial relationship required under that statute as it exists

when DHS decides the application, even though this means a

child can “age out” of eligibility while an application is

pending. The DHS regulation in question adheres to this

unambiguous meaning of the statute, as did DHS’s denial of

Carmen’s application. We thus affirm the District Court’s

grant of summary judgment in favor of the Government.

I. Background

A. Legal Framework

In 2000 Congress passed legislation that created a new

nonimmigrant visa classification—the U Visa—within the

INA. See Victims of Trafficking and Violence Protection Act

of 2000, Pub. L. No. 106-386, 114 Stat. 1464. It is a temporary

legal status offered to victims of rape and other specified

crimes who have cooperated, or are likely to cooperate, in the

investigation and prosecution of those crimes.

See 8 U.S.C. § 1101(a)(15)(U)(i). Congress passed the statute

to “strengthen the ability of law enforcement agencies to

detect, investigate, and prosecute” the specified crimes, and to

“offer[] protection to victims of such offenses in keeping with

the humanitarian interests of the United States.” Pub. L. No.

106-386, § 1513(a)(2)(A). The statute also gives a pathway to

permanent resident status: after three years of holding a U

Visa, an alien may apply for permanent resident status under a

provision of the INA, 8 U.S.C. § 1255(m)(1), that applies

specifically to holders of U Visas.

Certain U-Visa benefits also extend to qualifying family

members. Persons who are seeking or have already obtained

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permanent resident status based on their receiving a U Visa,

such as Carmen, may seek that status for a qualifying family

member under 8 U.S.C. § 1255(m)(3). It states:

Upon approval of adjustment of status under [8

U.S.C. § 1255(m)(1)] of an alien [who received

a principal U Visa,] the Secretary of Homeland

Security may adjust the status of or issue an

immigrant visa to a spouse, a child, or, in the case

of an alien child, a parent who did not receive a

[derivative U Visa] if the Secretary considers the

grant of such status or visa necessary to avoid

extreme hardship.

8 U.S.C. § 1255(m)(3). The term “child” is defined elsewhere

in the INA as “an unmarried person under twenty-one years of

age.” 8 U.S.C. § 1101(b)(1).

DHS has promulgated regulations setting procedures

and criteria for obtaining permanent resident status under

8 U.S.C. § 1255(m)(3). See 73 Fed. Reg. 75,548–51 (Dec. 12,

2008). They contain a provision that requires a § 1255(m)(3)

applicant to meet the eligibility criteria through the time DHS

decides the application:

The qualifying family relationship, [such as a

parent–child relationship], [must] exist[] at the

time of the U–1 principal’s adjustment and

continue[] to exist through the adjudication of

the adjustment or issuance of the immigrant visa

for the qualifying family member.

8 C.F.R. § 245.24(g)(2). The parties refer to this regulation as

an “age-out regulation” because it creates the risk that a child

on whose behalf an application is filed under § 1255(m)(3) will

“age out” of eligibility before DHS acts on the application.

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B. Facts and Procedural History

Carmen is a former citizen of the Dominican Republic

who entered the United States in 2005. The victim of a rape in

New York City, she assisted law enforcement with their

investigation and, on that basis, obtained a U Visa from DHS.

After holding the U Visa for more than three years, she

obtained permanent resident status under 8 U.S.C.

§ 1255(m)(1).

After doing so, Carmen began the process to obtain the

same status for her son, Dario. She chose to do so under 8

U.S.C. § 1255(m)(3). Dario was one day shy of his twenty-

first birthday when Carmen began the application process by

filing the first of two petitions that were required under the

DHS regulations implementing the statutory provision.

Although it initially approved Carmen’s petition, DHS

later revoked its approval and denied the petition because, by

the time DHS decided it, Dario “had reached the age of 21

years and did not meet the definition of child for immigration

purposes.” Carmen appealed that decision to the

Administrative Appeals Office of the U.S. Citizenship and

Immigration Services (“Immigration Services”), which

dismissed the appeal based on 8 C.F.R. § 245.24(g)(2), the

age-out regulation noted above. It held the regulation was a

permissible implementation of § 1255(m)(3) that mandated

denial of Carmen’s petition.

Carmen and Dario then filed a complaint in the District

Court under the Administrative Procedure Act, asserting that

the age-out regulation is invalid because it exceeds DHS’s

authority under 8 U.S.C. § 1255(m)(3) and is arbitrary and

capricious. On cross-motions for summary judgment, the

District Court granted summary judgment in favor of the

Government and denied it to Carmen and Dario, thus ruling the

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regulation is a valid means to implement 8 U.S.C.

§ 1255(m)(3). They appeal to us.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under

28 U.S.C. § 1331 to review DHS’s denial of the application

because it rested on DHS’s “interpretation of the legal

standards for eligibility for such adjustment.” Zheng v.

Gonzales, 422 F.3d 98, 111 (3d Cir. 2005). We have

jurisdiction over the District Court’s grant of summary

judgment under 28 U.S.C. § 1291, and we review de novo that

Court’s grant of summary judgment. See Dwyer v. Cappell,

762 F.3d 275, 279 (3d Cir. 2014).

III. Discussion

Carmen and Dario contend the age-out regulation is not

a valid implementation of 8 U.S.C. § 1255(m)(3). We consider

this contention under the familiar Chevron framework: “first,

if the statute is clear we must give effect to Congress’

unambiguous intent, and, second, if the statute is silent or

ambiguous with respect to a specific issue, we defer to an

implementing agency’s reasonable interpretation of that

statute.” De Leon–Ochoa v. Att’y Gen., 622 F.3d 341, 348 (3d

Cir. 2010) (citing Chevron, USA, Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842–43 (1984)). Put another way,

“[i]f Congress has directly and clearly spoken to the question

at issue, our Chevron analysis is complete at step one, and

Congress’s unambiguous intent controls.” Shalom Pentecostal

Church v. Acting Sec’y U.S. Dep’t of Homeland Security, 783

F.3d 156, 164 (3d Cir. 2015).

To determine whether a statutory provision is

“unambiguous,” we consider the text of the provision and the

broader context of the statute as a whole, but we do not

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consider legislative history. Geisinger Cmty. Med. Ctr. v.

Sec’y U.S. Dep’t of Health & Human Servs., 794 F.3d 383, 391

(3d Cir. 2015) (citing United States v. Geiser, 527 F.3d 288,

294 (3d Cir. 2008)).1 We also acknowledge the principle that

courts “are obligated to construe statutes sensibly and avoid

constructions which yield absurd or unjust results.” United

States v. Fontaine, 697 F.3d 221, 227 (3d Cir. 2012) (internal

quotation marks omitted); see also Hanif v. Att’y Gen., 694

F.3d 479, 483–84 (3d Cir. 2012). We consider each of these

guideposts in turn.

A. Text

The Government contends the plain terms of the statute

require DHS to determine eligibility at the time it rules on a

§ 1255(m)(3) application. For this argument, the Government

leans on the grammatical structure of the provision, which, by

its literal terms, only authorizes DHS to grant permanent

resident status to “a spouse, a child, or . . . a parent” of the

principal U-Visa holder. It argues that, in the case of a child

application, it cannot grant the application if the person in

question has reached the age of twenty-one before his status is

adjusted, as he no longer is a child under 8 U.S.C. § 1101(b)(1).

The Government’s reading of § 1255(m)(3) finds

support in Robinson v. Napolitano, 554 F.3d 358 (3d Cir.

2009). There we reviewed Immigration Services’ denial of a

U.S. citizen’s application for permanent resident status for his

spouse under a provision of the INA that allows those

applications for “immediate relatives” of U.S. citizens. Id. at

363. While the application was pending, the U.S. citizen died

unexpectedly. Id. at 360. Immigration Services then denied

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Although we do not rest our interpretation of the statute on

legislative history, we thank the amicus curiae, Her Justice, for

its thorough and valuable submission on that subject.

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the application, ruling the widow was not a “spouse” under

the INA at the time the application was decided; hence the

widow could not obtain permanent resident status as an

“immediate relative.” Id. at 363. The statute in question stated

that DHS “shall, if [it] determines that the facts stated in the

petition are true and that the alien in [sic] behalf of whom the

petition is made is an immediate relative . . . , approve the

petition.” Id. (emphases omitted). We agreed with

Immigration Services’ interpretation of the statute, holding

that “eligibility for an immediate relative visa depends upon

the alien’s status at the time [Immigration Services]

adjudicates the [applicable] petition, not when that petition

was filed.” Id. at 364. The grammatical structure of the

statute in Robinson is similar to the structure of § 1255(m)(3)

in that both statutes, by their literal terms, imply an

equivalence in time between the eligibility criteria

(“immediate relative” in Robinson; a “child” here) and DHS’s

authority to grant benefits (“shall . . . approve” in Robinson;

“may adjust” here). Robinson’s approach to a similar statute

thus cuts in favor of the Government’s interpretation of

§ 1255(m)(3).

For their textual argument, Carmen and Dario focus on

the phrase “[u]pon approval of adjustment of status” in

§ 1255(m)(3). They contend this phrase establishes the timing

of the “child” determination DHS must make because the word

“upon” is a temporal word and the rest of § 1255(m)(3) is

linked to this timing. We are not persuaded. “Upon approval

of adjustment of status” imposes a precondition to DHS’s

consideration of an application under § 1255(m)(3); it does not

require DHS to determine eligibility under § 1255(m)(3) by

looking back to the state of affairs when the principal U-Visa

holder obtained LPR status.

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In sum, the text favors the Government’s position that a

potential beneficiary’s status as a “child” must be evaluated

when DHS rules on the § 1255(m)(3) application.

B. Statutory Context

We next consider other provisions of the U-Visa statute

and the INA to probe further the meaning of § 1255(m)(3).

Two provisions of the statute stand out as relevant. The first is

8 U.S.C. § 1101(a)(15)(U)(ii)(I), which extends derivative U-

Visa eligibility to the “unmarried siblings” of a U-Visa holder.

They are siblings who are “under 18 years of age on the date

on which such alien applied for [U-Visa] status.” Id.

(emphasis added). This provision suggests that, when

Congress wants a derivative U-Visa applicant’s age to be

determined as of the application date, it says that explicitly.

Similarly, the U-Visa statute expressly protects against the age-

out problem for derivative U-Visa applications as opposed to

the permanent resident application we review here. For the

former, a child applicant “shall continue to be classified as a

child” for purposes of the derivative U-Visa application even

if the child attains the age of twenty-one while the parent’s

application is pending. See 8 U.S.C. § 1184(p)(7)(A). No

equivalent safeguard applies to applications under

§ 1255(m)(3).

A similar suggestion stems from provisions of the Child

Status Protection Act. Pub. L. No. 107-208, 116 Stat. 927.

Among other things, it protects child asylum applicants by

fixing their ages for asylum purposes as of when they submit

their applications, thus protecting them against the age-out

problem. See 8 U.S.C. § 1158(b)(3)(B). But, as the District

Court observed, that implies that other children seeking

immigration benefits could still age out of eligibility.

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In short, the broader context of the statute also favors

the Government’s interpretation of § 1255(m)(3).

C. The Absurdity Principle

Appellants urge that several “absurd” results would

flow from reading § 1255(m)(3) as containing an age-out

mechanism for child applicants. It would put child

applications at the whim of agency processing times, over

which applicants have absolutely no control. It also would

make it impossible to predict a child’s eligibility under the

statute at the time of filing an application. And it would mean

that two identically situated children—twin children of a

woman who obtains U-1 immigrant status, for example—

might be denied or granted LPR status based purely on how

quickly DHS processes their separate applications.

There is heft to these arguments and, were we writing

on a blank slate, we may well be swayed. But, unfortunately,

we are not because Congress and the Supreme Court do not

appear to view “aging out” of immigration benefits as an

absurdity. Congress made that viewpoint clear in, among other

laws, the Child Status Protection Act, which protects certain

categories of children from aging out of immigration benefits

while their applications are pending. The incomplete coverage

of that Act implies Congress knows but has not addressed

when children not protected by it may still be subject to aging

out of eligibility due to the vagaries of the application process.

Similarly, in a recent decision, the Supreme Court

acknowledged without pause the potential for “aging out”

under the immigration laws. See Scialabba v. Cuellar de

Osorio, 573 U.S. 41, 45 (2014) (discussing the “aging out”

phenomenon in the immigration context and observing that

“someone who was a youngster at the start of the process may

be an adult at the end, and no longer qualify for an immigration

status given to minors”). We view these authorities as fatal to

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appellants’ arguments based on the arguably absurd results of

a literal interpretation of § 1255(m)(3).

* * * * *

We hold that 8 U.S.C. § 1255(m)(3) unambiguously

requires DHS to determine qualifying family member status

when it decides an application per that provision. It adhered to

that interpretation of the statute when it denied Carmen’s

§ 1255(m)(3) application for permanent resident status on

behalf of her son because he was no longer a child when it ruled

on the application. Hence our analysis concludes here, and we

affirm the District Court’s entry of summary judgment for the

Government.

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