Song v. Garland
| Decision Date | 01 December 2022 |
| Docket Number | 18-2496, No. 21-1852 |
| Citation | 54 F.4th 233 |
| Parties | Sothon SONG, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. Sothon Song, Petitioner, v. Merrick B. Garland, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Eli A. Echols, SOCHEAT CHEA, P.C., Duluth, Georgia, for Petitioner. Neelam Ihsanullah, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Acting Assistant Attorney General, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before DIAZ, THACKER, and QUATTLEBAUM, Circuit Judges.
Petition denied by published opinion. Judge Diaz wrote the opinion, in which Judge Thacker joined. Judge Quattlebaum wrote a concurring opinion.
Sothon Song petitions for review of the Board of Immigration Appeals' final removal order under 8 U.S.C. § 1252. The Board held that Song, as the recipient of a K-1 nonimmigrant visa, couldn't adjust status to that of a conditional permanent resident without an affidavit of support from her former husband, who originally petitioned for her K-1 visa. Finding the Board's decision to be reasonable under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we deny Song's petition.
Song was a citizen and resident of Cambodia when her fiancé, U.S. citizen Justin Sang, petitioned for Song to receive a K-1 visa so that she could enter the United States and marry him. Song received the visa, traveled to the United States, and married Sang.
Song then applied to adjust status to become a conditional permanent resident under 8 U.S.C. § 1255(d).1 Sang, in turn, submitted Form I-864, an affidavit of support for Song's adjustment application.2 But the marriage fizzled and Sang withdrew his affidavit of support while Song's adjustment application was pending.
United States Citizenship and Immigration Services ("USCIS") denied Song's application, finding that she was inadmissible under 8 U.S.C. § 1182(a)(4) as a noncitizen likely to become a public charge, and the Department of Homeland Security began removal proceedings. In the meantime, Song and Sang divorced.
In her removal proceedings, Song filed a second application for adjustment and presented a new affidavit of support, this time from a friend who attested that he would ensure Song's financial stability. But the immigration judge denied that application, holding that Song could adjust status only if Sang provided an affidavit of support. The immigration judge held that absent Sang's Form I-864, which he had withdrawn, Song couldn't show she was unlikely to become a public charge, and she was therefore inadmissible under 8 U.S.C. § 1182(a)(4). The immigration judge ordered Song's removal to Cambodia.
Song appealed to the Board of Immigration Appeals. A three-member panel dismissed the appeal. In its published (and precedential) decision,3 the Board discussed the text and purpose of the relevant statutes and regulations, Board precedent, and Song's arguments. The Board noted that Sang withdrew his affidavit of support under 8 C.F.R. § 213a.2(f), and, like the immigration judge, held that this withdrawal foreclosed Song from establishing her admissibility.
The Board rejected Song's argument that requiring the original petitioner's affidavit of support would make status adjustment virtually unavailable to divorced K-1 beneficiaries. The Board explained that a sponsor could agree to leave his affidavit of support in place while the K-1 beneficiary's adjustment application is pending, even as the sponsor and applicant divorce. Similarly, a divorcing applicant could agree, as a negotiated term in divorce proceedings, not to sue the sponsor for breach of his contractual I-864 obligations, which survive divorce. A.R. 61 (citing Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg. 35,740 (June 21, 2006) ). So, the Board concluded, requiring the original petitioner's sponsorship doesn't automatically shut the door on divorcing K-1 beneficiaries like Song who seek to adjust status.
The Board held that there are only two statutory exceptions to the requirement that the affidavit in support come from the K-1 beneficiary's petitioner: abuse and death. And neither applied in Song's case.
This petition followed.
While we review the Board's legal determinations de novo, "we generally give Chevron deference to the [Board's] statutory interpretations, recognizing that Congress conferred on the [Board] decisionmaking power to decide such questions of law." Martinez v. Holder , 740 F.3d 902, 909 (4th Cir. 2014). The Board's decision is entitled to Chevron deference here because a three-member panel decided Song's case in a precedential opinion, which carries the force of law. See Amaya v. Rosen , 986 F.3d 424, 430 (4th Cir. 2021). And in general, deference to the Executive is warranted "on matters of immigration, which involve sensitive political functions that implicate questions of foreign relations." Id. (cleaned up).4
Song doesn't challenge the reasonableness of the agency's regulations. But she does challenge the Board's application of the regulations in her case. We hold that the Board's decision was reasonable, and not arbitrary, capricious, or manifestly contrary to the statute.
Chevron instructs us to look first to the applicable statute to see if it's "silent or ambiguous with respect to the specific issue," so we begin there. Regis , 769 F.3d at 881 (cleaned up).
The Immigration and Nationality Act (the "INA") is silent on the pertinent issues: whether Sang could withdraw his affidavit of support, and if so, whether that withdrawal foreclosed Song from adjusting status on public-charge grounds. The statutory scheme doesn't expressly provide for public-charge determinations for nonimmigrant-visa beneficiaries like Song. Nor does it speak to whether sponsors like Sang may withdraw an affidavit of support (or to the effect of any such withdrawal).
8 U.S.C. § 1255 governs adjustment of status for nonimmigrants, including Song and other K-1 beneficiaries. That section sets certain eligibility requirements for status adjustment, including that the noncitizen must be "admissible to the United States." Id. § 1255(a), (d). In turn, 8 U.S.C. § 1182(a) governs admissibility, and provides:
As the text shows, subsection (a)(4)(C) purports to apply to status adjustments only for noncitizens who received "a visa number issued under section 1151(b)(2) or 1153(a)." Id. § 1182(a)(4)(C). Neither applies to Song.
Section 1151(b)(2) applies to "immediate relatives" (including "spouses"), and section 1153(a) applies to other familial-preference categories not relevant here. While Song became a "spouse" of a U.S. citizen, she didn't receive "a visa number" as a spouse; she received a K-1 (fiancée nonimmigrant) visa under 8 U.S.C. §§ 1101(a)(15)(K)(i) and 1184(d).
Faced with a statutory gap, the agency filled it with a regulation to clarify that K-1 beneficiaries like Song must obtain an affidavit of support from the person who filed the K-1 petition. By that regulation, "an intending immigrant is inadmissible as an alien likely to become a public charge, unless the qualified sponsor specified in paragraph (b) ... has executed on behalf of the intending immigrant an affidavit of support." 8 C.F.R. § 213a.2(a)(1)(i)(A). In "paragraph (b)," the regulation further provides that for K-1 beneficiaries, the "person who filed a ... fiancé(e) petition, the approval of which forms the basis of the intending immigrant's eligibility to apply for ... adjustment of status as an immediate relative or a family-based immigrant, must execute an affidavit of support on behalf of the intending immigrant."
Id. § 213a.2(b)(1). The regulation confirms that this provision applies to "any alien admitted as a K nonimmigrant when the alien seeks adjustment of status." Id. § 213a.2(a)(2)(i)(A).
In short, the statute doesn't expressly speak to the issue. But under the regulation, Song couldn't adjust her status without an affidavit of support from Sang, the person who filed her K-1 petition.
The statute is also silent on the issue of withdrawing an affidavit of support. 8 U.S.C. § 1183a () doesn't mention withdrawal, nor does 8 U.S.C. § 1182(a) () lay out the effect of withdrawal.
Again, the agency's regulation fills the gap:
In an adjustment of status case, once the sponsor ... has presented a signed affidavit of support ... the sponsor ... may disavow his or her agreement to act as sponsor ... only if he or she does so in writing and submits the document to the immigration officer or immigration judge before the decision on the adjustment application.
8 C.F.R. § 213a.2(f)(2). In other words, sponsors can withdraw sponsorship, as long as they do so in writing and while the adjustment application is pending.
At bottom, Regis , 769 F.3d at 883. Rather, the agency filled the statutory gaps with regulations. See ...
To continue reading
Request your trial