Medina Tovar v. Zuchowski, 021220 FED9, 18-35072

Docket Nº:18-35072
Opinion Judge:N.R. SMITH, CIRCUIT JUDGE:
Party Name:Maria Del Carmen Medina Tovar; Adrian Jovan Alonso Martinez, Plaintiffs-Appellants, v. Laura B. Zuchowski, Director, Vermont Service Center, United States Citizenship and Immigration Services; Chad F. Wolf, Acting Secretary, Department of Homeland Security; William P. Barr, Attorney General, Defendants-Appellees.
Attorney:Philip James Smith (argued), Nelson Smith LLP, Portland, Oregon, for Plaintiffs-Appellants. Aaron S. Goldsmith (argued), Senior Litigation Counsel; Jeffrey S. Robins, Assistant Director; William C. Peachey, Director; District Court Section, Office of Immigration Litigation, Civil Division, United...
Judge Panel:Before: N. Randy Smith, Paul J. Watford, and Ryan D. Nelson, Circuit Judges. WATFORD, Circuit Judge, dissenting:
Case Date:February 12, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Maria Del Carmen Medina Tovar; Adrian Jovan Alonso Martinez, Plaintiffs-Appellants,

v.

Laura B. Zuchowski, Director, Vermont Service Center, United States Citizenship and Immigration Services; Chad F. Wolf, Acting Secretary, Department of Homeland Security; William P. Barr, Attorney General, Defendants-Appellees.

No. 18-35072

United States Court of Appeals, Ninth Circuit

February 12, 2020

Argued and Submitted May 15, 2019 Portland, Oregon

Appeal from the United States District Court for the District of Oregon D.C. No. 3:17-cv-00719-BR Anna J. A. Brown, District Judge, Presiding

Philip James Smith (argued), Nelson Smith LLP, Portland, Oregon, for Plaintiffs-Appellants.

Aaron S. Goldsmith (argued), Senior Litigation Counsel; Jeffrey S. Robins, Assistant Director; William C. Peachey, Director; District Court Section, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: N. Randy Smith, Paul J. Watford, and Ryan D. Nelson, Circuit Judges.

AMENDED OPINION

SUMMARY

[*]

Immigration

The panel filed an amended opinion affirming the district court's grant of summary judgment in favor of government defendants in a case involving when a spousal relationship must exist for a spouse to be eligible for derivative U-visa status. In the amended opinion, the panel deferred to a regulation adopted by the United States Citizenship & Immigration Service ("USCIS") that construed the statutory phrase "accompanying, or following to join" to require that a spouse's qualifying relationship exist at the time of the filing of the initial U-visa petition.

A U visa grants temporary, lawful, nonimmigrant resident status to an alien who has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity in the U.S. and who helped law enforcement investigating or prosecuting that criminal activity. Under 8 U.S.C. § 1101(a)(15)(U)(ii), a U-visa recipient may petition for derivative status for a qualifying relative who is "accompanying, or following to join," the principal alien. That provision specifies which relationships may qualify for derivative U-visa status: "(I) in the case of [a principal alien] who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien; or (II) in the case of [a principal alien] who is 21 years of age or older, the spouse and children of such alien." The regulation at issue here, 8 C.F.R. § 214.14(f)(2), provides that the relationship between the principal alien and the qualifying family member must exist at the time the principal alien's petition was filed, must continue to exist at the time the derivative petition is adjudicated, and at the time of the qualifying family member's subsequent admission to the U.S.

The principal alien in this case, Maria Medina Tovar, a Mexican citizen, came to the U.S., was the victim of a serious crime, and was helpful to law enforcement. She submitted her petition for a U visa and later married a Mexican citizen. She was then granted U-visa status and filed for derivative U-visa status for her husband. The USCIS denied that petition on the ground that the couple was not married when Tovar filed her initial petition. Tovar and her husband ("Plaintiffs") sought review in the district court, which granted the government defendants' summary judgment motion.

The panel applied the two-step analysis from Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), to review the agency's construction of the phrase "accompanying, or following to join." First, the panel concluded that Congress has not directly spoken to the question of when a qualifying relationship must exist for an "accompanying, or following to join," family member to be eligible for derivative U-visa status. The panel rejected Plaintiffs' contention that "accompanying, or following to join" has a well-established meaning, explaining that the agency has defined the phrase differently depending on the alien's status. For example, for a refugee, the qualifying relationship must exist prior to the refugee's admission to the U.S, must continue to exist at the time of filing for derivative benefits, and at the time of the derivative's admission to the U.S. Whereas, for asylum, the relationship must exist at the time the principal alien's asylum application was approved, must continue to exist at the time of filing for derivative benefits, and at the time of the derivative's admission to the U.S.

The panel also rejected Plaintiffs' assertion that the "age out" provision for unmarried siblings - which provides that an eligible unmarried sibling is one who is under 18 at the time when the principal applied for a U visa - makes it clear that Congress did not intend to limit other qualifying family members to the date of the application. The panel explained that the statutory provision does not provide any instruction regarding the timing of when a spouse's relationship would qualify for status.

At step two of Chevron, the panel concluded that the agency's regulation imposes reasonable requirements in light of the text, nature, and purpose of the U-visa statute. The panel explained that it is reasonable for the agency to require that qualifying relationships exist at the time of the initial U-visa application, where the purpose of the U-visa statute is to provide only limited, temporary, nonimmigrant status to alien victims of crime (already present in the U.S.) based on their aid to law enforcement.

The panel also concluded that the regulation does not violate Equal Protection. With respect to Plaintiffs' argument that spouses and children of U-visa recipients are similarly situated and yet treated inconsistently without a rational basis, the panel concluded that spouses and children are not similarly situated because the dependency of spouses is not equivalent to that of the parent-child relationship. The panel further concluded that, even if the groups were similarly situated, treating spouses and children differently is rationally based on Congress's interest in preventing marriage fraud. With respect to Plaintiffs' argument that spouses of U-visa holders, refugees, asylees, and other nonimmigrant and immigrant visa holders are similarly situated and improperly treated differently, the panel concluded that immigration fraud concerns and the underlying purposes of the different visa categories provide a rational basis for the different treatment of U-visa spouses as compared to other spouses.

Dissenting, Judge Watford wrote that he would reverse on the ground that the regulation is not a valid interpretation of the governing statute. Judge Watford wrote that USCIS's interpretation cannot be squared with the well-settled meaning of "accompanying or following to join," which had consistently been construed to mean that the marital relationship must exist at the time the principal petitioner's application is granted, not when her application was filed. Looking at the rules for refugees and asylees, Judge Watford observed that in both contexts, principal petitioners may seek derivative status on behalf of their spouses if the marriage exists when the principal petitioner is granted status. Judge Watford also wrote that it is clear that Congress used the phrase "accompanying or following to join" in its traditional sense in the U-visa statute because when Congress wished to depart from that meaning it did so explicitly, by providing that a principal petitioner who is under the age of 21 may petition for derivative status on behalf of unmarried siblings under 18 years of age on the date on which such alien applied for status.

OPINION

N.R. SMITH, CIRCUIT JUDGE:

The United States Citizenship & Immigration Service ("USCIS") permissibly construed the statutory phrase "accompanying, or following to join" in 8 U.S.C. § 1101(a)(15)(U)(ii) when it adopted its regulation, 8 C.F.R. § 214.14(f)(4), requiring that a spouse's qualifying relationship exists at the time of the initial U-visa petition and that the qualifying relationship continues throughout the adjudication of the derivative petition. Thus, we must accord Chevron deference to the USCIS's interpretation of the statute in enacting the regulation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 292 (1988).

I. Administrative Framework

A U visa is a nonimmigrant visa category that grants temporary, lawful, nonimmigrant resident status to a noncitizen alien who "has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity" in the United States and who helped law enforcement "investigating or prosecuting [that] criminal...

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