Akhtar v. Burzynski

• Decision Date: 05 October 2004
• Docket Number: No. 02-57037.,02-57037.
• Citation: 384 F.3d 1193
• Parties: Burhan AKHTAR; Rechy Monzon Sese; Emerson Angeles, Plaintiffs-Appellants, v. James J. BURZYNSKI, Director of the Missouri Service Center of the I & NS; Immigration and Naturalization Service; James Opinion Ziglar, Commissioner of the I & NS; John Ashcroft, Attorney General, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

384 F.3d 1193

Burhan AKHTAR; Rechy Monzon Sese; Emerson Angeles, Plaintiffs-Appellants, v. James J. BURZYNSKI, Director of the Missouri Service Center of the I & NS; Immigration and Naturalization Service; James Opinion Ziglar, Commissioner of the I & NS; John Ashcroft, Attorney General, Defendants-Appellees.

No. 02-57037.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 3, 2004.

Filed October 5, 2004.

COPYRIGHT MATERIAL OMITTED

Robert J. Dupont, Robert L. Reeves & Associates, Pasadena, CA, for the plaintiffs-appellants.

Debra W. Yang, United States Attorney, Los Angeles, CA; Leon W. Weidman, Assistant United States Attorney, Chief, Civil Division, Los Angeles, CA; Katherine M. Hikida, Assistant United States Attorney, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. No. CV-02-00245-DOC.

Before: BROWNING, REINHARDT, and WARDLAW, Circuit Judges.

JAMES R. BROWNING, Senior Circuit Judge:

Rechy Monzon Sese and Emerson Angeles¹ appeal the district court's grant of summary judgment in favor of the Appellees.² Both are natives and citizens of the Philippines, and children of lawful permanent residents of the United States. Their parents filed petitions on their behalf to obtain permanent resident status. While they awaited visa processing, Sese and Angeles were granted V nonimmigrant visas that allowed them to reunite with their families in this country. Those visas were terminated shortly after they received them, on the day before their 21st birthdays. They now challenge the "age-out" provisions of the regulations promulgated by the INS, arguing that the provisions are contrary to Congress's intent in enacting the underlying statute.

We reverse the District Court's grant of summary judgment, and remand for further consideration.

I

A. Statutory and Regulatory Background

United States citizens and lawful permanent residents may file a visa petition on behalf of immediate relatives to obtain lawful permanent residency in the United States. The worldwide level of family-sponsored immigrants is limited to 480,000 per fiscal year. 8 U.S.C. § 1151(c)(1)(A). Immediate relatives of United States citizens may immigrate to the United States without regard to any quota system or waiting period. 8 U.S.C. § 1151(b)(2)(A)(i). For the remainder of family-sponsored immigrants, Congress has established a series of preference categories. Relatives of lawful permanent residents are divided into two subsections: "2A" for spouses and children; and "2B" for unmarried sons and daughters. 8 U.S.C. § 1153(a)(2). If a child³ within category 2A turns 21 before a visa number becomes available, then he or she is transferred to the 2B waiting list. See 8 C.F.R. § 204.2(i)(2).

In December 2000, the 106th Congress passed the Legal Immigration Family Equity Act ("LIFE Act"). The LIFE Act added 8 U.S.C. § 1101(a)(15)(V), which grants spouses and children what is known as a V Visa allowing them to enter the country while they await a permanent visa number. See 8 U.S.C. § 1101(a)(15)(V) (granting the temporary visa to "an alien who is the beneficiary (including a child of the principal alien, if eligible to receive a visa under section 1153(d) of this title) of a petition to accord a status under section 1153(a)(2)(A) of this title"); see also 8 U.S.C. § 1153(a)(2)(A) (defining as qualified immigrants those "who are the spouses or children of an alien lawfully admitted for permanent residence"). To apply for a V Visa, an individual must have been waiting for permanent resident status for at least three years. See 8 U.S.C. § 1101(a)(15)(V). Once in the United States, V Visa recipients are entitled to a number of benefits, including employment authorization. See 8 U.S.C. § 1184(q)(1)(A).

On April 16, 2001, the Department of State issued interim regulations permitting consular officers to begin issuing V Visas. See Visas: Nonimmigrant Classes; Legal Immigration Family Equity Act Nonimmigrants, V and K Classification, 66 Fed.Reg. 19390-01 (interim rule Apr. 16, 2001). According to the regulations, a spouse who qualifies for "V" status is classified as "V-1," a petitioned-for child as "V-2," and a derivative child of either as "V-3." Id. Regarding whether those initially eligible for V Visas who had since turned 21 years of age would receive a V Visa, the interim regulations stated: "No. The V Visa classification clearly limits the class of qualifying aliens to beneficiaries of the F[amily]2A immigrant visa preference.... [T]he law only authorizes the issuance of visas to children who meet the INA definition of child. This rule reflects that limitation." Id. The Department stated that it would "issue visas to qualified applicants for the usual maximum full validity period of ten years, subject to issuance for a shorter period due to the possibility of age-out...." Id.

The INS published its interim regulations on September 7, 2001. On the issue of "aging-out," the regulations state: "An alien admitted to the United States in V-2 or V-3 nonimmigrant status (or whose status in the United States is changed to V-2 or V-3) will be granted a period of admission not to exceed 2 years or the day before the alien's 21st birthday, whichever comes first." 8 C.F.R. § 214.15(g)(2). Under the INS regulations, those who "remain eligible for V nonimmigrant status" (i.e., children under 21) may file a Form I-539 request for extension of the two-year period. 8 C.F.R. § 214.15(g)(3). Likewise, employment authorization will only be granted to those who remain eligible for V Visa status. 8 C.F.R. § 214.15(h).

B. Factual Background

Sese's mother, Renato Sese, became a lawful permanent resident of the United States when he was a child. On October 8, 1996, when Sese was 16 years old, his mother filed an I-130 visa petition on his behalf. After nearly five more years of being separated from his mother, Sese was issued a V-2 visa and entered the United States on July 14, 2001. The INS authorized him to remain for just over ten weeks until September 25, 2001, the day before his 21st birthday. Sese remained in the United States with his family beyond that date.

Angeles's mother, Efren Angeles, also obtained permanent resident status when Angeles was a child. She petitioned for permanent resident status on his behalf on May 8, 1997, when Angeles was 16 years old. After waiting more than four years, Angeles's V-2 visa was approved. He entered the United States on August 14, 2001, one day before his 21st birthday. Even though the INS inspector admitted Angeles until August 13, 2003, the government asserts that the inspector's actions were made in error, and that Angeles should only have been admitted until August 14, 2001, the same day he arrived in the United States.

After entering the United States, both Sese and Angeles applied for work authorization permits. The INS denied their applications on the basis that they had reached the age of 21. The government asserts that Sese and Angeles have overstayed their authorized period of admission, and that if they filed a Form I-539 application for extension, it would be denied.

On March 7, 2002, Sese and Angeles sought declaratory judgment and injunctive relief compelling the INS to approve their employment authorization applications, extend the term of their V Visas, and allow them to remain in the United States while they awaited approval of their visa petitions. On October 21, 2002, the district court granted the government's motion for summary judgment. The court held that the INS regulations "are not contrary to either the language of the statute or the legislative purpose as evidenced by the Congressional Record." Appellants also raised a Fifth Amendment due process claim, but the court held that summary judgment was appropriate for the government on this claim as well, a ruling they did not appeal.

Sese and Angeles do not dispute that only individuals in category 2A are eligible to receive V Visas. They argue that if an individual is issued a V-2 visa, the visa should not be revoked when he reaches 21, but rather he should be allowed to remain in the United States until he receives his visa number. They contend that by reseparating families originally reunited under the LIFE Act, the age-out provisions in 8 C.F.R. § 214.15(g)⁴ are contrary to the congressional intent underlying the Act.

The government concedes that the LIFE Act was an ameliorative statute intended to reunite families until the petitioning family members receive their visa numbers. Nevertheless, it argues that because V Visas are available only to individuals who meet the requirements of preference category 2A, to grant work authorization or other benefits to V-2 visa holders who have reached the age of 21 would go beyond the statute's explicit authorization. It also argues that 8 C.F.R. § 214.15(g) is consistent with the language, legislative history, and underlying purpose of the statute, and is therefore entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

II

A. Standard of Review

In reviewing the INS regulations relating to V Visas, we apply the test set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, we first ask whether Congress has directly spoken to the precise question at issue. See id. at 842, 104 S.Ct. 2778. "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." Id. at 842-43, 104 S.Ct. 2778. If, however, the statute is silent or ambiguous with respect to the specific issue, we must ask whether the regulations promulgated by the agency are based on a permissible construction of the...