Patel v. Attorney Gen. Of

• Decision Date: 30 March 2010
• Docket Number: No. 09-1066.,09-1066.
• Citation: 599 F.3d 295
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Neema PATEL, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

599 F.3d 295

Neema PATEL, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 09-1066.

United States Court of Appeals Third Circuit.

Decided: March 30, 2010.

Submitted Pursuant to Third Circuit LAR 34.1(a) Jan. 12, 2010.

Michael A. Younge, Esq., Anaheim Hills CA, for Petitioner.

Regina Byrd, Esq., Ernesto H. Molina Esq., M. Lee Quinn, Esq., United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before FUENTES, ROTH and VAN ANTWERPEN. Circuit Judges.

OPINION

PER CURIAM.

Neema Patel, a citizen of India, petitions for review of the BIA decision upholding the denial of her motion to terminate removal proceedings. Her petition presents the question of whether the confidentiality provisions of section 245A(c)(5) of the Immigration and Nationality Act ("INA") apply to an application for employment authorization submitted by the child of a Legal Immigration Family Equity ("LIFE") Act adjustment-of-status applicant. For the reasons that follow, we agree with the BIA that they do not, and we will deny the petition for review.

I

In 1986, Congress enacted the Immigration Reform and Control Act ("IRCA"), which created a legalization program that "allow[ed] existing undocumented aliens to emerge from the shadows" and gain legal residency in the United States. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 483, 111 S.Ct. 888 112 L.Ed.2d 1005 (1991). IRCA provided undocumented aliens who had resided continuously in the United States since January 1982 with the opportunity to ap ply for legal resident status. In 2000 IRCA was modified by the LIFE Act and its amendments. See LIFE Act Amendments, Pub.L. No. 100-554, § 1504, 114 Stat. 2763, 2763A-325 (2000); LIFE Act Pub.L. No. 106-553, § 1104, 114 Stat. 2762, 2762A-146-49 (2000). The LIFE Act, as amended, gave class members in three class-action cases a new opportunity to apply for lawful permanent residency. See LIFE Act Amendments § 1503(a); LIFE Act § 1104. Additionally, it permitted the spouse and unmarried children of an eligible alien to stay in the United States and obtain work authorization. See LIFE Act Amendments § 1504; 8 C.F.R. § 245a.31.

To encourage eligible aliens to seek lawful residency status, section 1104(c)(5) of the LIFE Act afforded applicants protection under INA § 245A(c)(5) [8 U.S.C. § 1255a(c)(5)].¹ Section 1104(c)(5) reads, in pertinent part: "Subsection (c)(5) of [INA] section 245A shall apply to information furnished by an eligible alien described in [LIFE Act section 1104(b)] pursuant to any application filed under such section 245A or this section...."

II

Patel entered the United States in 1988 without inspection. Patel's father latersubmitted an application under LIFE Act section 1104 for an adjustment to lawful permanent resident status. While that application was pending, Petitioner filed an application for work authorization under section 1504 of the LIFE Act Amendments Family Unity Provisions.² Her application was denied and, based on her admissions in the application, removal proceedings were initiated against her.

Before the IJ, Patel filed a motion to terminate the removal proceedings. She admitted that she was ineligible for adjustment of status under section 1104(b), but argued that the confidentiality provisions of INA § 245A(c)(5) prevented the government from using her section 1504(b) employment application for the purpose of removal proceedings. The IJ denied Patel's motion and ultimately granted her voluntary departure. Patel appealed, arguing that the IJ incorrectly denied her motion to terminate the removal proceedings. The BIA upheld the IJ's decision, reasoning that, on its face, section 1104(c)(5) applies only to an alien's application for adjustment of residency status under section 1104(b) of the LIFE Act. Patel then filed a petition for review.

III

We have jurisdiction over Patel's petition for review under 8 U.S.C § 1252(a). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att'y Gen., 400 F.3d 157, 102 (3d Cir.2005). However, we also look to the decision of the IJ to the extent that the BIA defers to, or adopts, the IJ's reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review the Agency's legal conclusions de novo, subject to established principles of deference. See Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir.2004).

At the outset, we note that the question whether the Agency correctly interpreted the INA's confidentiality provisions as inapplicable to applications for LIFE Act Family Unity benefits appears to be a question of first impression in this Circuit, and we have not identified a precedential opinion by another Court of Appeals that conclusively determines the issue. Our inquiry is governed by the framework set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

[U]nder Chevron, we must first determine if the statute is silent or ambiguous with respect to the specific issue of law in the case, using traditional tools of statutory construction to determine whether Congress had an intention on the precise question at issue. If congressional intent is clear, the inquiry ends, as both the agency and the court must give effect to the plain language of the statute. Where, however, a statute is silent or ambiguous with respect to the specific issue, the court proceeds to step two, where it inquires whether the agency's answer is based on a permissible construction of the statute.

Lin-Zheng v. Att'y Gen., 557 F.3d 147, 155 (3d Cir.2009) (en banc) (internal citations and quotation marks omitted). Here, we conclude that the question at issue can be resolved at Chevron's first step.

"A basic tenet of statutory construction is that we 'must begin with... the assumption that the ordinary meaning of the [statutory] language accurately expresses the legislative purpose.'" Id. at 155-56 (quoting Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985)). Section 1104(c)(5) of the LIFE Act applies the confidentiality provisions of INA § 245A(c)(5) to "information furnished by an eligible alien described in [LIFE Act section] 1104(b) pursuant to any application filed under [INA §] 245A or this section." The ordinary meaning of "pursuant to" is "in compliance with; in accordance with; under." Black's Law Dictionary (8th ed.2004). Therefore the plain language of section 1104(c)(5) makes clear that the confidentiality provisions apply only to a filing submitted by an alien described in LIFE Act section 1104(b), and only insofar as the filing is an application for adjustment of residency status. Thus, there is no room for us to conclude that Congress intended to extend the protection of INA § 254A(c)(5) to any filing other than an application by an alien for adjustment of residency status. Cf. Perez v. INS, 72 F.3d 256, 259-60 (2d Cir.1995) (emphasizing in somewhat different circumstances that, under IRCA, information was confidential only to the extent that it was furnished in an application for adjustment of residency status).

Patel conceded that she was ineligible for relief under section 1104(b), and the application that she submitted was an application for employment authorization under the Family Unity Provisions—not an application to adjust her residency status. Thus, the contents of her application were not confidential under the LIFE Act, And Patel points to no language within the LIFE Act Family Unity Provisions, or anywhere else, that establishes a right to confidentiality in a derivative application for benefits. See LIFE Act § 1504; 8 C.F.R. §§ 245a.30-.37. Inasmuch as Patel sought only derivative LIFE Act...