I. Introduction
The facts of this case are tragic and, unfortunately, so is the result. In 2005, Plaintiff Carmen Josefina Contreras Aybar left the Dominican Republic and traveled to the United States on what she anticipated to be a short trip. During her stay, she took a job at a clothing store in Manhattan. Later that year, Carmen suffered a vicious and brutal rape at the hands of her co-worker, resulting in her hospitalization. Nevertheless, Carmen assisted the authorities and cooperated with police officers, leading to her attacker's arrest.
Because of her cooperation with law enforcement, Carmen received a U Visa-a type of lawful temporary status offered to victims of rape and other violent crimes who cooperate with law enforcement in the investigation and prosecution of those crimes. After Carmen adjusted from her U Visa status to Legal Permanent Resident ("LPR") status, she sought to take advantage of another provision of the U Visa statutory regime. That provision allows for former U Visa holders to apply for derivative
But, as explained in more detail below, USCIS revoked approval of Carmen's petition and denied Dario's pending application because Dario did not remain a "child" (i.e., under twenty-one) through the adjudication of his application. That requirement-that the "qualifying family relationship" continue to exist through the adjudication process-is mandated by
Before the Court are Plaintiffs' motion for summary judgment (D.E. No. 24) and Defendants'
II. Relevant Background
A. The U Visa Statutory Scheme
In 2000, Congress enacted the Victims of Trafficking and Violence Protection Act of 2000 ("VTVPA"), which created the U-1 nonimmigrant visa classification ("U Visa") within the Immigration and Nationality Act ("INA"). VTVPA, Pub. L. No. 106-386,
In addition, Congress created two mechanisms for alien victims to adjust the status of their children (or other qualifying members) "when doing so is justified on humanitarian grounds, for family unity, or
Upon approval of adjustment of status ... of an alien [admitted into the United States under8 U.S.C. § 1101 (a)(15)(U)(i) (i.e., a U Visa holder) ] ... the Secretary of Homeland Security may adjust the status of or issue an immigrant visa to a spouse, a child, or, in the case оf an alien child, a parent who did not receive a nonimmigrant visa under section 1101(a)(15)(U)(ii) of this title if the Secretary considers the grant of such status or visa necessary to avoid extreme hardship.
Under the INA, a "child" is defined as "an unmarried person under twenty-one years of age."
Congress explicitly directed the Attorney General, Secretary of Homeland Security, and the Secretary of State to promulgate regulations to implement the provisions contained within Title V of the VTVPA and the Violence Against Women Act of 2005. See Violence Against Women and Department of Justice Reauthorization Act of 2005 ("VAWA"), Pub. L. No. 109-162 § 828,
In short, the DHS created a two-step process for former U Visa holders to adjust the status of a qualifying family member. First , the former U Visa holder files an I-929 petition on behalf of the qualifying family member.
(1) The qualifying family member has never held U nonimmigrant status;
(2) The qualifying family relationship, as defined in paragraph (a)(2) of this section, exists at the time of the U-1 principal's adjustment and continues to exist through the adjudication of the adjustment or issuance of the immigrant visa for the qualifying family member ;
(3) The qualifying family member or the principal U-1 alien, would suffer extreme hardship as described in 8 CFR 245.24(g) (to the extent the factors listed are applicable) if the qualifying family member is not allowed to remain in or enter the United States; and
(4) The principal U-1 alien has adjusted status to that of a lawful permanent resident, has a pending application for adjustment of status, or is concurrently filing an application for adjustment of status.
The regulation at
In 2013, Congress changed the law regarding current U Visa holders to provide "age-out" protection for their children seeking derivative U nonimmigrant status. See VAWA of 2013, Pub. L. No. 113-4, § 805,
B. Factual Background
The parties do not dispute the material facts in this case. Carmen came to the United States in 2005 and left her daughter and son, Dario, with her ex-husband in the Dominican Republic. (D.E. No. 24-4, Certified Administrative Record ("CAR") at 36-37, ¶¶ 2-3; 44, ¶ 6). During her stay, Carmen took a job in Manhattan to help with the expenses of her trip. (Id. at 36-37, ¶ 3). While working, Carmen was forcibly raped by a co-worker. (Id. at 37-38, ¶¶ 4-8). Carmen was hospitalized, distraught, and traumatized, and as a result, needed ongoing psychological treatment. (Id. at 38-40, ¶¶ 7-8, 12-17). Despite her trauma following the attack, Carmen cooperated with law enforcement and assisted in the eventual arrest of her rapist. (Id. at 38-39, ¶¶ 9-12). Because of her victim status and cooperation with the police, Carmen received U nonimmigrant status in July 2009 under
In March 2010, Carmen filed a Form I-485 with USCIS to adjust her status from U Visa to LPR. (CAR at 378). USCIS approved Carmen's application two months later. (Id. ). On September 16, 2010, Carmen filed an I-929 petition on behalf of Dario, the first step to have Dario adjust to LPR status as a qualifying relative. (Id. at 248-54). USCIS received the I-929 petition on September 17, 2010 (id. at 248)-the day before Dario's twenty-first birthday (id. at 185)-and approved the petition on May 24, 2011, after Dario had turned twenty-one years old (id. at 77). Dario еntered the United States the next year and filed his Form I-485 on February 20, 2013, when he was twenty-three years old. (Id. at 79, 185).
In January 2014, USCIS issued a Notice of Intent to Revoke its approval of Carmen's I-929 petition. (Id. at 85). The agency stated that its prior approval of the I-929 petition was in error because "at the time of approval, Dario ... had reached the age of 21 years and did not meet the definition of child for immigration purposes." (Id. ) (citing
C. Plaintiffs' Complaint
On March 18, 2016, Plаintiffs commenced this lawsuit to challenge Defendants' adoption and implementation of the Age-Out Rule. (D.E. No. 1, Compl. ¶ 7). Plaintiffs' Complaint contains two claims for relief under the APA: (1) that the Age-Out Rule exceeds statutory authority (id. ¶¶ 32-36); and (2) that the Age-Out Rule is arbitrary and capricious (id. ¶¶ 37-40). Plaintiffs ask the Court to "declare
III. Legal Standard
A. Summary Judgment
When reviewing agency action under the APA, the District Court "sits as an appellate tribunal and the entire case on review is a question of law." Soccer Centers, LLC v. Zuchowski , No. 17-1024,
B. Chevron Deference
Plaintiffs and Defendants agree that Chevron, U.S.A. Inc. v. Natural Res. Def. Council, Inc. provides the applicable standard of review for Plaintiffs' first cause of action.
At issue in this case is Defendants' authority to implement the Age-Out Rule. Congress has endowed the DHS with the general authority to administer the nation's immigration laws. See
C. Judicial Review Under the APA
Plaintiffs' second cause of action alleges that the Age-Out Rule is arbitrary and capricious under the APA. Under the APA, a reviewing court must set aside an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law"; "in excess of statutory jurisdiction, authority or limitatiоns, or short of statutory right"; or "without observance of procedure required by law."
IV. Discussion
A. The Age-Out Rule is valid under Chevron.
1. Chevron Step One
Under Chevron , the first question the Court must ask is "whether Congress has direсtly spoken to the precise question at issue."
The precise question at issue here is whether
Upon approval of adjustment of status ... of [a principal former U Visa holder] ... the Secretary of Homeland Security may adjust the status of or issue an immigrant visa to a ... child ... who did not receive a [derivative U Visa], if the Secretary considers the grant of such status or visa necessary to avoid extreme hardship.
As Plaintiffs correctly note, the plain language of the statute articulates three requirements: (i) the beneficiary must be a "child" (i.e., unmarried and under twenty-one); (ii) the beneficiary must not have previously received a U Visa; and (iii) the granting of status must be necessary to avoid extreme hardship. (See Pl. Mov. Br. at 17-18).
Although the former U Visa holder's successful adjustment of status is certainly a pre-condition to the approval of the qualifying family member's petition, § 1255(m) does not suggest that the date of the former U Visa holder's adjustment is the cutoff date for determining if the family member is a "child" under the INA. The reasoning is actually quite straightforward: the plain terms of the statute grant the Secretary of Homeland Security the authority to adjust the status of a "child." See
Indeed, under Plaintiffs' view of the statute, a family member could file for adjustment of status under § 1255(m)(3) at any age so long as the principal former U Visa holder adjusted status before the child's twenty-first birthday. But under the plаin terms of the statute, the Secretary of Homeland Security is not authorized to adjust the status for somebody who is above the age of twenty-one, at least in the parent-child context. The Court therefore concludes that the Age-Out Rule is consistent with the plain language of § 1255(m)(3), which requires that a child beneficiary remain under twenty-one through the adjudication of his or her application to adjust status.
Since the Court finds that Congress's intent on the precise question at issue is clear, the analysis ends at Step One. And since Dario was over the age of twenty-one when USCIS adjudicated his Form I-485, USCIS was correct in denying his application to adjust status.
2. Chevron Step Two
To be sure, even if the Court were to find that § 1255(m)(3) is ambiguous,
Agencies are given particular authority to clarify any ambiguities within a statute, and those policy choices are given deference because it is presumed that agencies are better equipped to answer those questions than the courts. Chevron ,
Here, Congress has endowed the DHS with the general authority to make rules carrying the force of law. See VAWA of 2005, Pub. L. No. 109-162 at § 828,
Applying the deferential Chevron standard, the Court concludes that the Age-Out Rule was a reasonable policy choice for the agency to make. Like other courts that have upheld agency regulations under Step Two of Chevron , the Court's conclusion rests on (i) the plain language of the statute; (ii) the broader statutory scheme; and (iii) the purpose of the statute. See, e.g. , Si Min Cen ,
a. Plain Language
As discussed above, the plain language of § 1255(m)(3) grants the Secretary of Homeland Security the authority to adjust the status of a former U Visa holder's "child."
To "examine the statute in more depth" under Step Two, courts should "construe statutes, not isolated provisions." Zheng ,
Congress's treatment of family members of former U Visa holders does not necessarily differ from the way Congress has historically treated derivative family members in other visa classifications. Under the INA, a petitioner must typically be eligible for a visa at the time it is issued, meaning that a petitioner must maintain his or her "classification" under the immigration laws through adjudication. See
Where Congress wanted to exempt certain aliens from aging out, it has done so explicitly. For example, in 2002, Congress enacted the Child Status Protection Act ("CSPA"), designed to protect a beneficiary's immigration classification as a child when he or she ages out due to excessive processing times. CSPA, Pub. L. No. 107-208,
an unmarried alien who seeks to accompany, or follow to join, a parent granted [a U Visa], and who was under 21 years of age on the date on which such parent petitioned for such status, shall continue to be classified as a child for purposes of [derivative U Visa] if the alien attains 21 years of age after such parent's petition was filed but while it was pending.
Plaintiffs urge the Court to afford the same protections under
After all, Congress is presumed to be aware of an administrative interpretation of a statute and acts with that knowledge when enacting new legislation. See, e.g. , Si Min Cen ,
Furthermore, Congress is presumed to act intentionally when it can be shown that Congress is and has been aware of the opportunity to amend a statute, but has passed on opportunities to do so. See La. Forestry Ass'n ,
As evidenced by past amendments to the INA, Congress is well aware of the problems created by the general age-out rule and knows how to freeze the age of a child to retain eligibility where Congress feels it is necessary to do so. See, e.g. ,
To be sure, if Congress did not intend for the VAWA age-out protections to exclude children of former U Visa holders and "did not intend to allow the DHS to [act as it did] ... then Congress may amend the INA accordingly. Where, however, an agency reasonably construes a statute endowing it with broad authority, [the court] must defer to that interpretation, and 'the remedy, if any is indicated, is for congressional, not judicial, action.' " La. Forestry Ass'n ,
c. Purpose of the Statute
To determine if a regulation is a permissible construction of its enabling statute, courts should consider "the policies framing the statute."
Congress's express intent in enacting the U Visa scheme was both to "strengthen the ability of law enforcement agencies to detect, investigate and prosecute" specified crimes committed against aliens, and to "offer[ ] protection to victims of such offenses in keeping with the humanitarian interests of the United States." VTVPA, Pub. L. No. 106-386, § 1513,
"Admission of an alien to this country is not a right but a privilege which is granted only uрon such terms as the United States prescribes." Montgomery v. Ffrench ,
This distinction reflects policy decisions made by Congress defining its family-reunification priorities. See , e.g. , Fiallo v. Bell
This distinction is just one of many drawn by Congress pursuant to its determination to provide some-but not all-families with relief from various immigration restrictions that would otherwise hinder reunification of the family in this country.... With respect to each ... legislative policy distinction, it could be argued that the line should have been drawn at a different point.... But it is clear.... that there are policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political judgment for that of [ ] Congress.
Fiallo ,
Plaintiffs cite a compelling proposition from Justice Nygaard's dissent in Robinson ,
The Court echoes the sentiments expressed by the Third Circuit in a similar case.
B. The Age-Out Rule is not arbitrary and capricious under the APA.
Plaintiffs' second cause of action alleges that the Age-Out Rule is invalid under the APA because it is arbitrary and capricious. (See Compl. ¶ 40) (citing
relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. ,
"The analysis of disputed agency action under Chevron Step Two and arbitrary and capricious review is often the same, because 'under Chevron step two, [the court asks] whether an agency interpretation is arbitrary or capricious in substance.' " Pharm. Research & Mfrs. of Am. v. FTC ,
To be sure, the Court has already found that the Age-Out Rule aligns with the plain text of § 1255(m)(3). Therefore, the Age-Out Rule is not "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." See Motor Vehicle Mfrs. Ass'n ,
V. Conclusion
For the reasons set forth above, the Court GRANTS Defendants' cross-motion for summary judgment and DENIES Plaintiffs' motion for summary judgment. An appropriate order accompanies this Opinion.
Notes
On October 8, 2017, L. Francis Cissna was sworn in as the Director of USCIS and thus automatically replaced Leon Rodriguez in this action. See Fed. R. Civ. P. 25(d). Similarly, on December 6, 2017, Kirstjen Nielsen was sworn in as the Secretary of the DHS and thus automatically replaced Jeh Johnson. See
Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.
For completeness, the Court notes Plaintiffs' contention that "Defendants' initial approval of Plaintiffs' Form I-929 petition demonstrates that they consider Plaintiffs to have satisfied" the requirement that Dario's status adjustment is necessary to avoid extreme hardship. (Id. at 18 n.42).
"It is inconceivable to me that Congress intended an alien's status to be contingent upon the amount of time that the executive department takes to process a timely and proper petition-a factor completely outside of the control of the alien. This interpretation creates an arbitrary, irrational and inequitable outcome in which approvable petitions will be treated differently depending sоlely upon when the government grants the approval." Robinson ,
"We acknowledge that the decision we reach today is a difficult one.... [However,] under the governing standards of review, and in consideration of the important principles of separation of powers that guide our review of agency action, we feel bound to defer to the DHS's interpretation of the statutes under which Congress has authorized it to administer [its visa program]. We reiterate that should Congress disagree with this construction of the INA, Congress may take action to amend the statute accordingly." La. Forestry Ass'n ,
Notably, though Plaintiffs' application for Dario's adjustment of status fails under § 1255(m)(3), a third opportunity outside of the U Visa regime would allow Carmen to file an I-130 petition on behalf of Dario, subject to numerical limitations for adult sons and daughters.