Petitioner Alejandro Linares Huarcaya, a native and citizen of Peru, seeks review of a decision of the Board of Immigration Appeals (“BIA”) upholding the denial of his application for adjustment of status.
In re Huarcaya,
No. A 79 078 179,
In 1994, Congress amended 8 U.S.C. § 1255(i) to allow aliens who entered the United States without inspection and met certain specifications to adjust their status upon the payment of a penalty fee. Initially, to be eligible for adjustment under § 1255(i), aliens were required to prove that they had a visa petition or labor certification filed on their behalf on or before January 14, 1998. In 2000, however, Congress temporarily extended that deadline to April 30, 2001. Pub.L. No. 106-554,114 Stat. 2763 (codified as amended at 8 U.S.C. § 1255 (2000)).
The United States Department of Justice promulgated regulations to govern who can be “grandfathered” under 8 U.S.C. § 1255®. See 8 C.F.R. § 1245.10. In addition to meeting the deadline, an alien must show that the relevant labor or marriage-visa petition filed on her behalf was “approvable when filed.” 8 C.F.R. § 1245.10(a). According to the regulations, “approvable when filed”
means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous (“frivolous” being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary’s grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245® of the Act.
8 C.F.R. § 1245.10(a)(3) (emphasis added). Therefore, to be eligible for adjustment, an alien must show that the relevant petition was (1) properly filed (2) meritorious in fact and (3) non-frivolous.
Turning to the case at hand, the record reflects that while Huarcaya was living in Peru, he rented an apartment from a family that had a daughter named Ruth. Although Huarcaya fathered several children by two different women in Peru, he testified that he dated Ruth in Peru for approximately eight years. In 1998, Ruth left Peru for the United States and became a legal permanent resident. Huarcaya came to the United States without inspection in 2000, purportedly to join her. They were married on March 31, 2000, and within a month, Ruth filed an 1-130 visa petition for Huarcaya.
The marriage was short-lived, and Ruth and Huarcaya were divorced on March 4, 2002. Ruth’s 1-130 was denied on March 8, 2004. Shortly after his divorce was finalized, Huarcaya married his second wife, Lucy, an American citizen. Lucy also filed an 1-130 on his behalf. Unlike Ruth’s, Lucy’s 1-130 was approved, and Huarcaya filed an 1-485 to seek adjustment of status. The United States Citizenship and Immigration Services (“CIS”) denied the application. In its denial letter, the CIS explained that at the time of Huareaya’s 1-485 interview, the CIS had requested evidence concerning the bona fide nature of Huarcaya’s marriage to Ruth and in response, Huarcaya only submitted photos. Further, noting the approximate one-year duration of his marriage to Ruth, the CIS concluded that Huarcaya failed to meet his burden of proving that Ruth’s 1-130 petition was ap-provable when filed.
After an immigration hearing in which he sought review of the CIS’s determination, and during which Huarcaya and Ruth
Between the time the IJ rendered his decision in April, 2006 and Huarcaya’s case was decided by the BIA, the BIA considered the meaning of 8 C.F.R. § 1245.10(a)(3) as a “matter of first impression.” In re Riero, 24 I. & N. Dec. 267, 268 (B.I.A. Aug. 15, 2007). Riero presented a similar fact pattern — an alien divorced his first wife, who had filed a marriage-based petition for him before the cut-off date. The question then became whether his first wife’s petition was “ap-provable when filed” such that Riero could be grandfathered under 8 U.S.C. § 1255(i).
In Riero, the BIA found that “in order for a visa petition to be ‘approvable when filed’ in this context, there must be a showing that the marriage on which it is based was bona fide.” Id. “It is not enough to show merely that a marriage existed,” the BIA elaborated. Rather, “in order to be ‘meritorious in fact,’ the visa petition must be based on a genuine marriage in which the parties intended to share a life as husband and wife, not a marriage of convenience designed solely to confer an immigration benefit on one of the parties.” Id. This interpretation “is confirmed by the explanation of the ‘approvable when filed’ standard in the Federal Register, which provides as an example that a visa petition is not approvable when filed if it ‘is fraudulent or if the named beneficiary did not have, at the time of the filing, the appropriate family relationship or employment relationship that would support the issuance of an immigrant visa.’ ” Id. at 268-69. According to the BIA, “[i]n the marriage context, a ‘fraudulent’ visa petition would include one where the marriage was not entered into in good faith.” Id. at 269. Determining that Riero’s first marriage did not meet this standard, the BIA affirmed.
In the case before us, the BIA affirmed the IJ’s decision, citing
Riero.
1
In re Huarcaya,
No. A 79 078 179,
DISCUSSION
On appeal, Huarcaya raises two claims. First, he argues that the BIA’s construction of 8 U.S.C. § 1255(i) is not entitled to deference. Second, he argues that the term “meritorious in fact” is unconstitutionally vague.
I. Administrative Law Claim
Huarcaya’s claim under
Chevron
is that 8 C.F.R. § 1245.10(a)(3) is invalid.
See
We first must determine whether and what kind of deference applies to Huarca-ya’s claim. Huarcaya argues that
Chevron
applies.
Chevron
contemplates a two-step inquiry. At step one, we must determine “whether Congress has directly spoken to the precise question at issue” and “unambiguously expressed [its] intent.”
Id.
at 842-43,
Because the statute does not speak directly to this question, we can proceed to step two. Leaving aside for the moment the particular language of the regulation, the BIA’s view articulated in Riero, requiring a bona fide marriage, is a permissible interpretation of the requirements of 8 U.S.C. § 1255(i). This interpretation is reasonable in light of the statutory framework Congress constructed. To be admissible to the United States on the basis of marriage to a United States citizen, an applicant must establish that the qualifying marriage was “not entered into for the purpose of procuring an alien’s admission as an immigrant.” 8 U.S.C. § 1186a(d)(l)(A)(i)(III). In the related context of a marriage-based visa petition, the BIA has required a petitioner to establish a “bona fide marital relationship” and a “valid marriage from its inception.” See Matter of Phillis, 15 I. & N. Dec. 385, 387 (B.I.A. July 7, 1975); Matter of Laureano, 19 I. & N. Dec. 1, 1 (B.I.A. Dec. 12, 1983). Requiring the visa petition to be “approva-ble when filed” and “meritorious in fact” is consistent with these principles.
Although the regulations merit
Chevron
deference,
Chevron
is not necessary to resolve this appeal. In arguing for
Chevron
deference, Huarcaya conflates the issue of whether the agency has legitimately interpreted a
congressional statute
with whether the BIA has legitimately interpreted
its own regulations.
By focusing exclusively on the BIA’s reading of “meritorious in fact” and “non-frivolous” in 8 C.F.R. § 1245.10(a)(3), Huarcaya is challenging the BIA’s interpretation of its own regulations, not the agency’s interpretation of the statute.
2
Therefore,
Auer
deference, and not
Chevron,
applies here.
Auer
Auer
requires that an “agency’s interpretations [of its own regulations] are ... entitled to deference and are ‘controlling unless plainly erroneous or inconsistent with the regulation.’ ”
Llanos-Fernandez v. Mukasey,
Auer
deference, like Chevron deference, “is warranted only when the language of the regulation is ambiguous.”
Christensen v. Harris County,
A recognition of the potential for redundancy in the BIA’s interpretation does not, on its own, however, render the BIA’s interpretation plainly erroneous or inconsistent with the regulation. Under well-settled principles of statutory construction, language should be read to give effect to each of its terms. Although Huarcaya’s interpretation may give more content to “non-frivolous,” this interpretation still does not entirely reconcile “meritorious in fact” and “non-frivolous,” given that “meritorious in fact” on its own still connotes a requirement of legitimacy beyond a prima facie showing. If in this case the agency had promulgated regulations that rendered a statutory term redundant, Huarca-ya’s argument might carry some weight. Yet we are not here to select what a party contends is the “better” interpretation; we are constrained to accept an agency’s interpretation that is not plainly erroneous. As the Supreme Court stated in
Auer,
“[t]here is ... no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment.”
Auer,
Further, it is unclear whether the statutory principle not to render a term redundant even applies to deference to an agen
At any rate, the BIA’s interpretation is particularly reasonable given that we have allowed the BIA to interpret its regulations in light of a statute, even when the plain language of a regulation might suggest different interpretations. In
Joaquin-Porras v. Gonzales,
For all these reasons, we conclude that the BIA’s interpretation of “meritorious in fact” in
Riero
— and the case at hand — is permissible. As the First Circuit explained in adopting the same interpretation, albeit before the BIA’s pronouncement in
Riero,
requiring a showing of a bona fide marriage is consistent with the “history of the statute’s grandfather clause” which was “aimed to protect those who had
legitimate
visa applications on file before the more restrictive amendment came into force,” rather than giving applicants a “second bite at the apple.”
Echevarria v. Keisler,
II. Void for Vagueness Claim
Huarcaya also claims that both the statute and the regulation violate due process because they are “void for vagueness” as applied to him, arguing that the phrase “meritorious in fact” is undefined and does not appear to have any well-known meaning. Huarcaya’s ability to maintain a void-for-vagueness challenge to a civil regulation that provides immigration benefits is not clear.
See generally Arriaga v. Mukasey,
“When the challenge is vagueness ‘as applied,’ there is a two-part test: a court must first determine whether the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provides explicit standards for those who apply it.”
United, States v. Nadi,
CONCLUSION
For the foregoing reasons, we deny review.
Notes
. Because the BIA issued an opinion in this case that, in part, tracked the reasoning of the IJ, we review the BIA’s decision as it supplements that of the IJ.
See Dong Gao v. BIA,
. This confusion is illustrated by Huarcaya's statement that "[i]t is inexplicable that the [sic] Congress would specifically require that an application be 'non-frivolous' and ‘meritorious in fact' if it thought the terms were equivalent.” (Petr.’s Br. 12). Congress, of course, did not promulgate these regulations; the Department of Justice did.
