Tovar v. Zuchowski

• Decision Date: 12 February 2020
• Docket Number: No. 18-35072,18-35072
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

950 F.3d 581

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.

Argued and Submitted May 15, 2019 Portland, Oregon

Filed February 12, 2020

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, 108 S.Ct. 1811, 100 L.Ed.2d 313 (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 activity." 8 U.S.C. § 1101(a)(15)(U)(i). A U visa provides lawful temporary nonimmigrant status "for a period of not more than 4 years,"¹ but a U-visa holder may apply for an adjustment of status to that of a lawful permanent resident ("LPR") after maintaining U-visa status for three years. Id. §§ 1184(p)(6), 1255(m)(1)(A).

A U-visa recipient—a principal alien—may also petition for derivative status for a qualifying relative who is "accompanying, or following to join," that principal alien. Id. § 1101(a)(15)(U)(ii). That statutory 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.

Id. When the principal alien adjusts status, the Secretary "may adjust the status of or issue an immigrant visa to a spouse [or] a child ... to avoid extreme hardship" if he or she did not receive a nonimmigrant visa under § 1101(a)(15)(U)(ii). Id. § 1255(m)(3).

The agency promulgated regulations interpreting and implementing these U-visa statutes. 8 C.F.R. §§ 214.14, 245.24. Under the regulations, the principal alien must file a petition—Form I-918—to obtain U-visa status. Id. § 214.14(c)(1). The principal alien may also apply for derivative U-visa status on behalf of qualifying relatives by submitting a Form I-918, Supplement A. Id. § 214.14(f)(2). "[T]he relationship between the U-1 principal alien and the qualifying family member must exist at the time Form I-918 was filed, and the relationship must continue to exist at the time Form I-918, Supplement A is adjudicated, and at the time of the qualifying family member’s subsequent admission to the United States." Id. § 214.14(f)(4). Additionally, the regulation includes a provision to prevent aliens from aging out. The age of a principal alien under 21 and that alien’s unmarried siblings under the age of 18 are determined as of the initial petition date, so that such aliens may qualify for status even if they are no longer under that age when their petitions are adjudicated. Id. § 214.14(f)(4)(ii).

II. Procedural History & Facts

The principal alien in this case, Maria Medina Tovar, was born in Mexico in 1992; she came to the United States when she was six years old. In 2004, Tovar was the victim of a serious crime while living in Oregon, and she was helpful to law enforcement in the investigation or prosecution of that crime. On June 14, 2013, Tovar filed her U-visa petition (Form I-918). Thereafter, on September 21, 2015, Tovar married Adrian Alonso Martinez, a citizen of Mexico. Tovar was granted U-visa status as of October 1, 2015. On March 26, 2016, Tovar filed a petition for derivative U-visa status (Form I-918, Supplement A) for Martinez as her "accompanying, or following to join," spouse. The USCIS denied that petition, because Tovar and Martinez were not married when Tovar filed her initial petition for principal U-visa status, as required by 8 C.F.R. § 214.14(f)(4).

On May 8, 2017, Plaintiffs filed a complaint in district court seeking declaratory and injunctive relief from USCIS’s denial of derivative status for Martinez.² On cross-motions for summary judgment, Plaintiffs argued that the regulation requiring the marital relationship to exist at the time of the principal U-visa petition is contrary to the statute and that the regulation violates equal protection under the Fifth’s Amendment’s Due Process Clause. Defendants replied that the U-visa provision in 8 U.S.C. § 1101(a)(15)(U) is ambiguous, but the agency’s regulation is a reasonable interpretation and should be afforded deference.

The district court determined that (1) Congress did not directly address the question of when a marital relationship must exist for a spouse to be eligible for U-visa derivative status and (2) the regulation is reasonable and entitled to deference. Additionally, the district court concluded the regulation does not violate equal protection, because its treatment of nonimmigrant spouses is rationally related to immigration concerns (such as marriage fraud) recognized by Congress. Thus, the district court granted Defendants’ motion for summary judgment and denied Plaintiffs’ motion for summary judgment. Plaintiffs appealed.

III. Standard of Review

"We review de novo the district court’s grant of summary judgment." Herrera v. USCIS , 571 F.3d 881, 885 (9th Cir. 2009).

IV. Discussion

A. The Statute is Ambiguous as to "Accompanying, or Following to Join."

As outlined above, Congress authorized the issuance of derivative U-visa status to qualifying relatives who are "accompanying, or following to join," the principal alien. See 8 U.S.C. § 1101(a)(15)(U)(ii). The parties agree that this case turns on the meaning of that phrase "accompanying, or following to join."

In reviewing "an agency’s construction of the statute which it administers," we must employ the two-step Chevron analysis. See Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc ., 467 U.S. 837, 842–843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). At step one of Chevron , we must determine whether Congress has provided an answer to the precise question at issue. "If the intent of Congress is clear ... the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842–43, 104 S.Ct. 2778 (emphasis added). "If, however, the court determines Congress has not directly addressed the precise question at issue , the court does not simply impose its own construction on the statute." Id. at 843, 104 S.Ct. 2778 (emphasis added). "Rather, 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." Id. (emphasis added).

Here, Congress has not directly spoken to the question at issue: when must a qualifying relationship exist for an "accompanying, or following to join," family member to be eligible for derivative U-visa status? "[A]ccompanying, or following to join" is not defined by statute, even though Congress has used the phrase in numerous sections of the Immigration and Nationality Act. See, e.g. , 8 U.S.C. §§ 1153, 1158.

Congress has never directly addressed when a qualifying relationship must exist. Neither the plain language nor the surrounding language of the U-visa statute answer the question. In the surrounding language, Congress only designated qualifying "accompanying, or following to join," family members in the U-visa context with this language:

(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.

8 U.S.C. § 1101(a)(15)(U)(ii) ; see also 8 U.S.C. § 1184(p). Otherwise, the statutory language is silent with regard to whether Congress intended that the qualifying relationship exist (1) when the principal filed his or her application, (2) when the application is adjudicated, (3) throughout the entire process, or (4) at some time after the principal alien has been granted status. In the absence of such an indication, we cannot impose our own construction of the statute.

Plaintiffs argue to the contrary. First arguing that the intent of Congress is clear from the language of the statute, Plaintiffs assert that "accompanying, or following to join" has a well-established meaning, and that Congress (in other contexts) has never limited the spouses’ eligibility to the date of an application.

However, all parties agree that Congress has never defined this statutory phrase. Thus, we must look to case law or regulations to determine whether the phrase had a well-settled meaning at the time Congress enacted the statute. Cf. Navajo Nation v. U.S. Forest Serv. , 535 F.3d 1058, 1074 (9th Cir. 2008) (explaining that "[w]here a statute does not expressly define a term of settled meaning, courts interpreting the statute must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of that term" (internal quotation marks and alterations...