Aybar v. Sec'y U.S. Dep't of Homeland Sec.

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: AMBRO, Circuit Judge
• Citation: Aybar v. Sec'y U.S. Dep't of Homeland Sec., 916 F.3d 270 (3rd Cir. 2019)
• Decision Date: 19 February 2019
• Docket Number: No. 18-1462,18-1462
• Parties: 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

916 F.3d 270

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

No. 18-1462

United States Court of Appeals, Third Circuit.

Argued November 6, 2018

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, 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.

Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges

OPINION OF THE COURT

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.

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 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.

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 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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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 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...