Robinson v. Napolitano

• Decision Date: 02 February 2009
• Docket Number: No. 07-2977.,07-2977.
• Citation: 554 F.3d 358
• Parties: Osserritta ROBINSON v. Janet NAPOLITANO,* Secretary of the Department of Homeland Security; Michael Aytes,* Acting Deputy Director, U.S. Citizenship and Immigration Services, Appellants, *Amended pursuant to F.R.A.P. 43(c)(2).
• Court: U.S. Court of Appeals — Third Circuit

554 F.3d 358

Osserritta ROBINSON v. Janet NAPOLITANO,* Secretary of the Department of Homeland Security; Michael Aytes,* Acting Deputy Director, U.S. Citizenship and Immigration Services, Appellants,

*Amended pursuant to F.R.A.P. 43(c)(2).

No. 07-2977.

United States Court of Appeals, Third Circuit.

Argued September 9, 2008.

Filed: February 2, 2009.

Alison R. Drucker (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., Alex Kriegsman, Office of United States Attorney, Newark, N.J., for Appellants.

Jeffrey A. Feinbloom (Argued), Feinbloom Bertisch, New York, N.Y., for Appellee.

Before: SLOVITER, FUENTES, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The issue before us is whether an alien married to a United States citizen remains an "immediate relative," within the meaning of the Immigration and Nationality Act ("INA"), if the couple had been married for less than two years when her citizen spouse died. It is an issue this court has never addressed.

I. Factual and Procedural History

Osserritta Robinson ("Robinson"), a citizen and national of Jamaica, entered the United States on January 14, 2002, as an non-immigrant visitor on a B-2 visa and married Louis Robinson ("Mr. Robinson"), a United States citizen, in February 2003. In March 2003, Mr. Robinson filed a Petition for Alien Relative ("I130 petition") for an immigrant visa on behalf of his wife as an "immediate relative." At the same time, Robinson filed an I-485 application to adjust her immigration status to that of a lawful permanent resident ("LPR").

Mr. Robinson died on October 15, 2003, in the Staten Island Ferry accident. On October 15, 2005, the U.S. Citizenship and Immigration Services ("USCIS") informed Robinson that her I-130 petition had been automatically terminated upon the death of her husband. According to USCIS, Robinson was no longer an "immediate relative" within the meaning of the INA because her husband's death occurred before the couple had been married for two years.

Robinson filed a petition for a writ of mandamus and a complaint for declaratory and injunctive relief in the United States District Court for the District of New Jersey against Michael Chertoff, the Secretary of the Department of Homeland Security, and Emilio Gonzalez, Director, U.S. Citizenship and Immigration Services,¹ requesting that the court order USCIS to reopen her I-130 petition and I-485 application and treat her as an "immediate relative" of a United States citizen. The complaint also asked the court "to enjoin USCIS from using the death of Mr. Robinson as a discretionary factor in adjudicating Mrs. Robinson's I-485 application." Robinson v. Chertoff, No. 06-5702, 2007 WL 1412284, at * 1 (D.N.J. May 14, 2007). The District Court denied the Government's motion to dismiss and granted summary judgment in favor of Robinson. Thereupon, the District Court set aside USCIS' determination that Robinson was not a spouse, ordered USCIS to process her I-130 petition and I-485 application, and granted a declaratory judgment that Robinson "is an immediate relative under 8 U.S.C. § 1151(b)(2)(A)(i) and for the purposes of adjudicating an I-130 petition." App. at 14.² The Government appeals.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331 and Section 704 of the APA, 5 U.S.C. § 704, to review the meaning of the term "immediate relative" as it appears in 8 U.S.C. § 1151(b)(2)(A)(i). Because this is a "purely legal question and does not implicate agency discretion," the INA's jurisdictional bar, 8 U.S.C. § 1252(a)(2)(B)(ii), which precludes judicial review of most discretionary immigration decisions, is not applicable in this case. Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir.2005).

We have jurisdiction under 28 U.S.C. § 1291. "We exercise plenary review of the District Court's statutory interpretation, but afford deference to a reasonable interpretation adopted by the agency." Pinho, 432 F.3d at 204.

III. Statutory Scheme

A United States citizen who seeks to gain lawful permanent resident status for an eligible family member must begin the process by filing an I-130 petition with USCIS on behalf of an alien who is an "immediate relative." 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). Concurrently, or thereafter, the alien spouse³ for whom the I-130 petition was filed (the "immediate relative") must file an application for adjustment of status. 8 U.S.C. § 1255(a); 8 C.F.R. § 245.1(a). "Immediate relatives" are defined in the INA as:

[T]he children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen's death and was not legally separated from the citizen at the time of the citizen's death, the alien ... shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen's death but only if the spouse files a petition under section 1154(a)(1)(A)(ii) of this title [an I-360 petition] within 2 years after such date and only until the date the spouse remarries.

8 U.S.C. § 1151(b)(2)(A)(i) (emphasis added).⁴

USCIS "shall" approve the I-130 petition filed by the citizen spouse only if it determines, after an investigation, "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." 8 U.S.C. § 1154(b).

Approval of the I-130 petition renders the immediate relative eligible for adjustment of status under 8 U.S.C. § 1255(a), which provides, in pertinent part:

The status of an alien ... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a). Because immediate relative visas are not subject to numerical visa limitations, 8 U.S.C. § 1151(b)(2)(A)(i), once the I-130 petition is approved the "immigrant visa is immediately available" to the alien spouse at the time her I-485 application is filed, 8 U.S.C. § 1255(a). Thus, eligibility to adjust status to that of an LPR is contingent upon approval of the I-130 petition.

IV. Discussion

Robinson argues that she remained an "immediate relative" within the meaning of 8 U.S.C. § 1151(b)(2)(A)(i) after the death of her husband. The Government counters that Robinson is no longer a "spouse" eligible to be considered an "immediate relative" because she had not been married to her citizen spouse for two years at the time of his death. The Government reads the second sentence of section 1151(b)(2)(A)(i) as qualifying the term "spouse" in the first sentence of the section. In other words, the Government argues that a spouse remains an "immediate relative" within the meaning of the INA after the death of his or her citizen spouse only if the couple had been married for two years at the time of the citizen's death.

Robinson argues in response that because the first sentence of the provision does not in any way qualify the term "spouse," she remains a spouse after her husband's death. She interprets the second sentence (which contains the two-year marriage requirement) as granting a separate right for widows to self-petition for visas rather than as a limitation on the definition of spouse.

More than thirty-five years ago the Bureau of Immigration Appeals ("BIA") considered the effect of a citizen spouse's death on a pending petition for an immigrant visa on behalf of the alien spouse. In In re Varela, 13 I. & N. Dec. 453, 453-54 (B.I.A.1970), the BIA held that an alien spouse was no longer a "spouse" because her citizen spouse died prior to a determination of her I-130 petition. The Government argues that we should defer to the BIA precedent.

The District Court, without even citing In re Varela, agreed with Robinson's interpretation of the immediate relative provision, relying on the reasoning of the Court of Appeals for the Ninth Circuit in Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.2006). The Ninth Circuit refused to accord deference to Varela because it stated that the BIA's decision "lack[ed] ... statutory analysis, ... [and] is further undercut by the BIA's later finding [in In re Sano, 19 I. & N. Dec. 299 (B.I.A.1985) ] that it was `extra-jurisdictional.'"⁵ Freeman, 444 F.3d at 1038 (citation added).

Instead, the Ninth Circuit held that the first and second sentences of the statutory provision "stand[ ] independent" of each other and provide for "two different processes, such that one or the other applies — either the citizen spouse petitions or, if he dies without doing so, the alien widow may do so." Freeman, 444 F.3d at 1041 n. 14, 1042. It reasoned that because the only limitation on the definition of "immediate relative" in the first sentence relates to alien parents (the grant of immediate relative status is limited to those whose citizen child is at least 21 years old) and "[t]here is no comparable qualifier to be a `spouse,'" the term "immediate relative" means the spouse of a U.S. citizen, "without exception." Id. at 1039. Thus, according to that court, "Mrs. Freeman qualified as the spouse of a U.S. citizen when she and her husband petitioned for adjustment of status, and absent a clear statutory provision voiding her spousal status upon her husband's untimely death, she remains a surviving spouse." Id. at 1039-40 (emphasis in original).

The Freeman court rejected the Government's argument that the second sentence implicitly qualifies...