Neang Chea Taing v. Napolitano

• Decision Date: 20 May 2009
• Docket Number: No. 08-1179.,08-1179.
• Parties: NEANG CHEA TAING, Petitioner, Appellee, v. Janet NAPOLITANO,<SMALL><SUP>*</SUP></SMALL> Secretary, Department of Homeland Security, et al., Respondents, Appellants.
• Court: U.S. Court of Appeals — First Circuit

567 F.3d 19

NEANG CHEA TAING, Petitioner, Appellee, v. Janet NAPOLITANO,^* Secretary, Department of Homeland Security, et al., Respondents, Appellants.

No. 08-1179.

United States Court of Appeals, First Circuit.

Heard October 10, 2008.

Decided May 20, 2009.

Gjon Juncaj, Trial Attorney, with whom Gregory G. Katsas, Acting Assistant Attorney General, Civil Division, Thomas H. Dupree, Jr., Deputy Assistant Attorney General, David J. Kline, Director, District Court Section, Office of Immigration Litigation, and Victor M. Lawrence, Principal Assistant Director, was on brief for appellants.

Thomas Stylianos, Jr., for appellee.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiff-Appellee Neang Chea Taing ("Mrs.Taing") is a Cambodian national who was admitted to the United States on a B-2 non-immigrant visa for pleasure in 2004. In October 2004, Mrs. Taing married Tecumsen Chip Taing ("Mr.Taing"), a citizen of the United States. In December 2004, Mr. Taing filed an I-130 petition on behalf of Mrs. Taing to have her classified as an "immediate relative" so that she would be eligible to apply for an immigrant visa as his spouse. Mrs. Taing also filed an I-485 application seeking an adjustment of her status. On July 2, 2005, Mr. Taing died. As a result of Mr. Taing's death, the United States Citizenship and Immigration Service ("USCIS") terminated action on Mr. Taing's I-130 petition, and denied Mrs. Taing's I-485 application, concluding that she no longer qualified as an "immediate relative" under the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1151(b)(2)(A)(i).

Mrs. Taing filed a Petition for Writ of Mandamus and Complaint for Declaratory and Injunctive Relief in the United States District Court for the District of Massachusetts. The government moved to dismiss Mrs. Taing's claims. The district court denied the government's motion and remanded the case to USCIS. The government appeals the district court's ruling. At issue here is whether Mrs. Taing, despite her husband's death, remains Mr. Taing's "spouse" and thus qualifies as an "immediate relative" for purposes of the INA. After careful consideration, we hold that she does so qualify, and affirm the district court's order.

I. Background

A. Immediate Relative and Adjustment of Status Process

The INA allows certain relatives of United States citizens to obtain lawful permanent resident ("LPR") status based on a family relationship. See 8 U.S.C. § 1151(a)(1). A United States citizen may petition for an alien spouse or any other "immediate relative" as defined by the statute. This two-step process requires the citizen spouse to first file an I-130 petition with the USCIS on behalf of his alien relative.¹ 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. §§ 204.1(a)(1), 204.2(a). If the I-130 petition is approved, the alien relative is classified within a specific immigrant visa class. The alien relative, if in the United States, may then seek adjustment of status to that of a LPR by filing an I-485 application. See 8 U.S.C. § 1255 (relating to adjustment of status); 8 C.F.R. § 245.1(a). The I-130 petition requesting the "immediate relative" status of an alien spouse may be filed together with the I-485 application for adjustment of status because approval of the I-130 petition would make a visa immediately available to the alien spouse upon filing the I-485 application. See 8 C.F.R. § 245.1(f).²

USCIS must conduct an investigation when adjudicating the I-130 petition to determine 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)." 8 U.S.C. § 1154(b). If the facts in the petition are true and the applicant is an "immediate relative," USCIS shall approve the petition. Id.

B. Mrs. Taing's Petition

The facts in this case are undisputed and stipulated to by both parties. Mrs. Taing is a Cambodian citizen and is the surviving spouse of Mr. Taing. She was admitted to the United States as a non-immigrant visitor for pleasure on June 17, 2004. She met Mr. Taing during her visit and the two were married on October 4, 2004. Mr. Taing was a naturalized United States citizen.

In December 2004, Mr. Taing filed an I-130 petition, seeking to have his spouse, Mrs. Taing, classified as an "immediate relative" for purposes of her immigrant visa petition. Mrs. Taing also filed a request for work authorization and an I-485 application to adjust her status. The government approved her application for work authorization.

The couple resided together in Lowell, Massachusetts from the time of their marriage until Mr. Taing died of a stroke on July 2, 2005. On September 13, 2005, the government issued a notice for Mrs. Taing and her now-deceased husband to appear for an interview on their applications. The government scheduled the interview for October 13, 2005. Mrs. Taing appeared for the interview without her husband. Subsequently, USCIS terminated action on Mr. Taing's I-130 petition and denied Mrs. Taing's I-485 application.

On April 10, 2006, the Department of Homeland Security ("DHS") mailed Mrs. Taing a Notice to Appear, charging her with overstaying her visa. On March 14, 2007, Mrs. Taing filed a Petition for Writ of Mandamus and Complaint for Declaratory and Injunctive Relief in the district court. Mrs. Taing requested that the district court direct USCIS to: (1) process Mr. Taing's I-130 petition and her I-485 application; and (2) classify her as an "immediate relative" spouse of a United States citizen.

The government filed a motion to dismiss on August 2, 2007. On December 12, 2007, the district court issued a memorandum and order denying the government's motion to dismiss, remanding the case to USCIS for further proceedings in accordance with its decision. Taing v. Chertoff, 526 F.Supp.2d 177, 179 (D.Mass.2007). The district court held that Mrs. Taing qualifies as an "immediate relative" under the plain meaning of § 1151(b)(2)(A)(i). Id. at 187. The district court reasoned that because the statute's meaning was unambiguous, Chevron deference was inappropriate. The court based its holding on Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.2006), and Robinson v. Chertoff, No. 06-5702, 2007 WL 1412284 (D.N.J. May 14, 2007), rev'd sub nom, Robinson v. Napolitano, 554 F.3d 358 (3d Cir.2009), two cases which reached the same result.

The government appeals the district court's order and argues that under the plain meaning of the statute Mrs. Taing should not be classified as an "immediate relative." Alternatively, the government argues that even if this court disagrees with the government's reading, the statute's language should be deemed ambiguous, and that we should defer to USCIS's interpretation under Chevron principles.

We disagree with the government's arguments and affirm the district court's ruling. The meaning of the statute is unambiguous and Mrs. Taing qualifies as an "immediate relative" under the statute.

II. Discussion

A. Standard of Review

This court has subject matter jurisdiction under 28 U.S.C. § 1331 and the Administrative Procedures Act ("APA"). Succar v. Ashcroft, 394 F.3d 8, 20 (1st Cir.2005). The APA "gives a court power to `hold unlawful and set aside' not only agency action that is `arbitrary' or `capricious,' but also agency action that is `otherwise not in accordance with law' or is `in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.'" Id. (quoting Cousins v. Sec'y of the United States Dep't of Transp., 880 F.2d 603, 608 (1st Cir.1989) (quoting 5 U.S.C. § 706(2)(A), (C))).

We review de novo an "agency's construction of [a] statute which it administers" according to established principles of deference. Chevron, U.S.A., Inc. v. Natural Res. Def. Counsel, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Muñiz v. Sabol, 517 F.3d 29, 34 (1st Cir.2008); Pérez-Olivo v. Chávez, 394 F.3d 45, 48 (1st Cir.2005).

Our review entails a two-step approach. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. First, we must "ask whether `Congress has directly spoken to the precise question at issue.'" Succar, 394 F.3d at 22 (quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778). We do this by "determin[ing] whether the language of [the] statute is susceptible to more than one natural meaning." Strickland v. Comm'r, Me. Dep't of Human Servs., 96 F.3d 542, 547 n. 5 (1st Cir.1996). If "the statutory text is plain and unambiguous," the court "must apply the statute according to its terms." Carcieri v. Salazar, ___ U.S. ___, 129 S.Ct. 1058, 1063-64, 172 L.Ed.2d 791 (2009); see also Succar, 394 F.3d at 22 ("[C]ourts, as well as the agency, `must give effect to the unambiguously expressed intent of Congress.'" (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778)). Thus, "[i]f, after employing all the traditional tools of construction, the statute's text seems unambiguous and the ordinary meaning of that unambiguous language yields a reasonable result, the interpretive odyssey is at an end." Morales v. Sociedad Española de Auxilio Mutuo y Beneficencia, 524 F.3d 54, 57 (1st Cir.2008). In other words, we need not defer to an agency's construction if we hold the agency's interpretation to be "contrary to congressional intent." Succar, 394 F.3d at 23.

However, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778; Herrera-Inirio v. INS, 208 F.3d 299, 304 (1st Cir.2000). "`Chevron [ ] deference to [an agency's] statutory interpretation is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent.'" Succar, 394 F.3d at 22 (alterations in original) (quoting Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600, 124 S.Ct. 1236, ...