Aracelys C. TORO, Plaintiff-Appellant, v. SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, Director, U.S. Citizenship and Immigration Services, Chief, Administrative Appeals Office, Director, Vermont Service Center, Defendants-Appellees.
No. 12-10311.
United States Court of Appeals, Eleventh Circuit.
Feb. 4, 2013.
699 F.3d 1224
As discussed above, I would hold in the alternative that the residency requirement for obtaining a CHL survives intermediate scrutiny. And because Peterson‘s Privileges and Immunities Clause claim is subject to the samе form of review, I would also hold that this claim fails even assuming that the carrying of a concealed firearm is a protected privilege. Colorado has shown that ensuring CHL holders are qualified is an important governmental objective, and the residency requirement is substantially related to that objective. The two other courts that have considered right to travel challenges of CHL residency requirements have reached the same conclusion, on largely the same basis. See Bach, 408 F.3d at 87 (“Because we hold that New York‘s interest in monitoring gun licensees is substantial and that New York‘s restriction of licenses to residents and persons working primarily within the State is sufficiently related to this interest, we reject Bach‘s Article IV Privileges and Immunities Clause challenge.“); Peruta, 758 F.Supp.2d at 1120 (“The Court is unable to discern a meaningful distinction between the issues facing the Second Circuit in Bach and those at issue here. Adopting the rationale set forth in that decision, the Court concludes there is no genuine issue of material fact as to whether Defendant‘s policy violates the right to travel.“).
Charles Richard Conroy, Law Office of Charles R. Conroy, New York City, for Plaintiff-Appellant.
Before WILSON and COX, Circuit Judges, and VINSON,* District Judge.
WILSON, Circuit Judge:
Petitioner Aracelys Toro appeals the district court‘s dismissal of her complaint for failure to state a claim upon which relief can be granted. Toro sought review of the United States Citizenship and Immigration Service‘s (USCIS) denial of her Form I-360 self-petition for adjustment to permanent resident status. USCIS denied Toro‘s petition on the grounds that it was contrary to the Cuban Refugee Adjust-
I. FACTS & PROCEDURAL HISTORY
Toro, a native and citizen of Vеnezuela, entered the United States on January 7, 1996, as a B-2 nonimmigrant visitor. On March 28, 2001, Toro married her husband, a native and citizen of Cuba, in Orlando, Florida. Later that year, Toro and her husband filed Form I-485 applications for permanent resident status under section 1 of the CAA. Section 1 allows natives or citizens of Cuba and their spouses to become permanent residents of the United States after having been admitted or paroled into the country.
USCIS denied Toro‘s husband‘s Form I-485 application on account of his criminal history. Because Toro was a derivative beneficiary of her husband‘s application, USCIS denied her application as well. On January 31, 2008, Toro self-petitioned as the battered spousе of a Cuban alien under section 1 of the CAA to adjust her status to permanent lawful resident.
Since 1966, section 1 of the CAA—which is codified as a historical note to
[N]otwithstanding the provisions of section 245(c) of the Immigration and Nationality Act, the status of any alien who is a native or citizen of Cuba and who has been inspeсted and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least one year, 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 the alien makes an applicаtion for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.... The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United States, except that such spouse or child who has been battered or subjected to extreme cruelty may adjust to permanent resident status under this Act without demonstrating that he or she is residing with the Cuban spouse or parent in the United States. In acting on applications under this section with respect to spouses or children who have been battered or subjected to extreme cruelty, the Attorney General shall apply the provisions of section 204(a)(1)(J).1 An
alien who was the spouse of any Cuban alien described in this section and has resided with such spouse shall continue to be treated as such a spouse for 2 years after the date on which the Cuban alien dies (or, if later, 2 years after the date of enactment оf Violence Against Women Act and Department of Justice Reauthorization Act of 2005), or for 2 years after the date of termination of the marriage (or, if later, 2 years after the date of enactment of Violence Against Women Act and Department of Justice Reauthorization Act of 2005) if there is demonstrated a connection between thе termination of the marriage and the battering or extreme cruelty by the Cuban alien.
CAA § 1, as amended by the Victims of Trafficking and Violence Protection Act, Pub.L. No. 106-386, § 1509, 114 Stat. 1464, 1530-31 (2000) (in underlined font), and the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub.L. No. 109-162, § 823, 119 Stat. 2960, 3063 (in bold font).
USCIS denied Toro‘s VAWA self-petition, reasoning that she did not have a qualifying relationship with a Cuban alien described in section 1 of the CAA. Because Toro‘s husband had been denied permanent resident status, Toro was not the “spouse ... of any alien described in [section 1 of the CAA].” Id.
Toro filed an appeal with the Administrative Appeals Office (AAO), which dismissed her claim. The AAO found that “the language of section 1 of the CAA clearly indicates that the VAWA self-petitioner‘s Cuban spouse must be admissible to the United States and adjusted as a lawful permanent resident.” Pointing to section 1‘s language, the AAO discerned five criteria for a battered spouse‘s Cuban husband to qualify as an “alien” under the section: (1) the alien must have been admitted or paroled into the United States subsequent to January 1, 1959; (2) the alien must have beеn physically present in the United States for at least one year; (3) the alien must have applied for adjustment to permanent resident status; (4) the alien must be eligible to receive an immigrant visa; and (5) the alien must be admissible to the United States for permanent residence. Toro‘s husband‘s criminal history rendered him inadmissible for permanent residence, and consequently Toro could not self-petition as the battered spouse of an alien described in section 1 of the CAA. The AAO also found that the Board of Immigration Appeals’ (BIA) decision in Matter of Quijada-Coto, 13 I. & N. Dec. 740 (B.I.A.1971), supported its reasoning.
In May 2011 Toro filed a complaint in the district court, alleging in her first count that USCIS‘s denial of her her self-petition was contrary to law and congressional intent. In her second count, Toro argued that the denial violated her equal protection rights under the Fifth Amendment. USCIS responded with a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. See
II. ANALYSIS
A. Count One: Interpretation of the CAA
Because Toro contested a final agency decision, the district court reviewed Count One of Toro‘s complaint under the Administrative Procedure Act (APA),
“The first step of statutory construction is to determine whether the language of thе statute, when considered in context, is plain. If the meaning of the statutory language in context is plain, we go no further.” Id. (internal quotation marks omitted); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.“).
Both Toro and USCIS agree that a VAWA self-petitioner must have a qualifying relationship with a Cuban alien described in section 1 of the CAA. USCIS argues that a plain reading of section 1 reveals five requirements a Cuban spouse must satisfy to qualify as an “alien described in this subsection“:
[N]otwithstanding the provisions of section 245(c) of the Immigration and Nationality Act, the status of any alien who is a native or citizen of Cuba and who has been inspected and [1] admitted оr paroled into the United States subsequent to January 1, 1959 and [2] has been physically present in the United States for at least one year, 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 [3] the alien makes an application for such adjustmеnt, and [4] the alien is eligible to receive an immigrant visa and [5] is admissible to the United States for permanent residence.... The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection....
CAA § 1 (emphases and bracketed numbers added).
Toro‘s husband, USCIS contends, satisfies the first four requirements. He falls short of the fifth requirement, however, because USCIS denied his Form I-485 application. By contrast, Toro argues that her spouse needed to satisfy only the first two requirements, and that the remaining language in the sentence, rather than listing criteria, discusses the Attorney General‘s discretion to adjust a Cuban alien‘s status.
We agree with USCIS, and find that the remaining language, while certainly providing the Attorney General with guidance, also modifies which рarticular aliens are “any alien described in this subsection.” Id. Toro‘s argument proves too much, because the first two requirements also provide guidance to the Attorney General. We read each clause at issue to be an indispensable element of “any alien described in this subsection,” because all five clauses specify what a Cuban alien must do to qualify for adjustment. It makes little interpretive sense to do as Toro urges us, and cleave the clauses into “requirements” and “guidance.” Most conspicuously, a single sentence contains all five clauses. Two sentences later, the statutory language at issue appears: “The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection....” CAA § 1 (emphasis added). The aliens “described in [section 1 of the CAA]” are Cuban aliens who may adjust to permanent resident status by virtue of satisfying every element listed above. Because USCIS denied Toro‘s husband‘s Form I-485 application, he does not qualify as an alien described in section 1, and Toro cannot self-petition under the statute.
Even if we were to find section 1‘s language to be ambiguous, the outcome of
In the context of the Immigration and Nationality Act (INA)—of which section 1 of the CAA forms a small part—“determination[s] and ruling[s] by the Attorney General with respect to all questions of law shall be controlling.”
In Quijada-Coto, the BIA affirmed the denial of Quijada-Coto‘s petition for adjustment. 13 I. & N. Dec. at 741. Quijada-Coto, a native El Salvadorian, argued that she could adjust her status under section 1 of the CAA because she was the spouse of a Cuban alien described in section 1. Id. at 740. Quijada-Coto‘s husband, like Toro‘s, had been denied adjustment of status because of a narcotics conviction. Id. The BIA held: “After careful consideration, we conclude that Cоngress did not intend to apply the benefits of the [CAA] to the spouse of an alien described in the Act, when the alien himself has been denied adjustment of status under the Act.” Id. at 741. The holding in Quijada-Coto therefore settles the question of which Cuban aliens qualify as aliens described in section 1 of the CAA: a section 1 alien must be admissible for permanent residence.
Toro points out that the BIA decided Quijada-Coto in 1971, decades prior to the VAWA self-petitioning amendments. We fail to see the relevance of this observation. The language at issue—“any alien described in this subsection“—and the preceding, modifying language have remained unchanged since 1966. A 2013 alien who is “described in this subsection” is the same as a 1966 alien who was “described in this subsection.” CAA § 1. Therefore, just as Quijada-Coto did not have a qualifying relationship with a Cuban alien in 1971, neither does Toro in 2013.3
With regards to Toro‘s equal protection claim, we review de novo constitutional challenges to agency orders. Ala. Power Co. v. F.C.C., 311 F.3d 1357, 1367 (11th Cir.2002). Through its Due Process Clause, the Fifth Amendment guarantees equal protection under federal law to every individual in the United States, including aliens. Fernandez-Bernal v. Attorney Gen., 257 F.3d 1304, 1311 (11th Cir.2001); Yeung v. I.N.S., 76 F.3d 337, 339 (11th Cir.1995) (“The constitutional guarantee of equal protection under the law has been held applicable to aliens as well as citizens for over a century.“). At the same time, the legislative power of Congress over the admission of aliens is more comprehensive than any conceivable subject. Yeung, 76 F.3d at 339. We will therefore uphold an agency decision that distinguishes among groups of alien unless there is no rational basis for the classification. Resendiz-Alcaraz v. U.S. Attorney Gen., 383 F.3d 1262, 1271 (11th Cir.2004).
Under rational-basis review, the classification “must be reasonable, not arbitrary, and must rеst upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Fernandez-Bernal, 257 F.3d at 1312 (quoting Stanton v. Stanton, 421 U.S. 7, 14 (1975)).
Toro argues that distinguishing between battered spouses on the basis of a Cuban spouse‘s adjustment status violates the Fifth Amendment‘s equal protection guarantee. There is no ratiоnal basis for the distinction, Toro continues, because the purposes underlying the VAWA self-petitioning provisions are to provide a means of escape for immigrants who are the victims of domestic violence. Again, we disagree.
The VAWA self-petitioning provisions have a narrower rationale than providing a means of escape for all victims of domestic violence: “The purpose of permitting self-petitioning is to prevent the citizen or resident from using the petitioning process as a means to control or abuse an alien spouse.” H.R.Rep. No. 103-395, at 37 (1994). If the abusive Cuban spouse has been denied permanent resident status, as is the case with Toro‘s husband, he can no longer threаten to withhold immigration sponsorship from his non-Cuban spouse. To distinguish between non-Cuban aliens on the basis of a Cuban spouse‘s adjustment status is adequately rational, and not the least bit arbitrary. We therefore conclude that USCIS‘s denial of Toro‘s VAWA self-petition did not violate the Fifth Amendment‘s equal protection guarantees.
III. CONCLUSION
Under a plain reading of sectiоn 1 of the CAA, there are five requirements for a non-Cuban‘s spouse to qualify as “any alien described in [section 1 of the CAA]“: (1) the alien must have been admitted or paroled into the United States subsequent to January 1, 1959; (2) the alien must have been physically present in the United States for at least one year; (3) the alien must have applied for adjustment to permanent resident status; (4) the alien must be eligible to receive an immigrant visa;
AFFIRMED.
Jiaren SHI, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
No. 12-10997.
United States Court of Appeals, Eleventh Circuit.
Feb. 5, 2013.