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 FOR THE NINTH CIRCUIT
February 12, 2020
D.C. No. 3:17-cv-00719-BR. AMENDED OPINION. Appeal from the United States District Court for the District of Oregon, Anna J. A. Brown, District Judge, Presiding. Argued and Submitted May 15, 2019 Portland, Oregon
Before: N. Randy Smith, Paul J. Watford, and Ryan D. Nelson,
Opinion by Judge N.R. Smith; Dissent by Judge Watford
SUMMARY*
Immigration
The panel filed an amended opinion affirming the district court’s grant of summary judgment in favor of government defendants in a case involving when a spousal relationship must exist for a spouse to be eligible for derivative U-visa status. In the amended opinion, the panel deferred to a regulation adopted by the United States Citizenship & Immigration Service (“USCIS”) that construed the statutory phrase “accompanying, or following to join” to require that a spouse’s qualifying relationship exist at the time of the filing of the initial U-visa petition.
A U visa grants temporary, lawful, nonimmigrant resident status to an alien who has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity in the U.S. and who helped law enforcement investigating or prosecuting that criminal activity. Under
The principal alien in this case, Maria Medina Tovar, a Mexican citizen, came to the U.S., was the victim of a serious crime, and was helpful to law enforcement. She submitted her petition for a U visa and later married a Mexican citizen. She was then granted U-visa status and filed for derivative U-visa status for her husband. The USCIS denied that petition on the ground that the couple was not married when Tovar filed her initial petition. Tovar and her husband (“Plaintiffs”) sought review in the district court, which granted the government defendants’ summary judgment motion.
The panel applied the two-step analysis from Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), to review the agency’s construction of the phrase “accompanying, or following to join.” First, the panel concluded that Congress has not directly spoken to the question of when a qualifying relationship must exist for an “accompanying, or following to join,” family member to be eligible for derivative U-visa status. The panel rejected Plaintiffs’ contention that “accompanying, or following to join” has a well-established meaning, explaining that the agency has defined the phrase differently depending on the alien’s status. For example, for a refugee, the qualifying relationship must exist prior to the refugee’s admission to the U.S, must continue to exist at the time of filing for derivative benefits, and at the time of the derivative’s admission to the U.S. Whereas, for asylum, the relationship must exist at the time the principal alien’s asylum application was approved, must continue to exist at the time of filing for derivative benefits, and at the time of the derivative’s admission to the U.S.
The panel also rejected Plaintiffs’ assertion that the “age out” provision for unmarried siblings – which provides that an eligible unmarried sibling is one who is under 18 at the time when the principal applied for a U visa – makes it clear that Congress did not intend to limit other qualifying family members to the date of the application. The panel explained that the statutory provision does not provide any instruction regarding the timing of when a spouse’s relationship would qualify for status.
At step two of Chevron, the panel concluded that the agency’s regulation imposes reasonable requirements in light of the text, nature, and purpose of the U-visa statute. The panel explained that it is reasonable for the agency to require that qualifying relationships exist at the time of the initial U-visa application, where the purpose of the U-visa statute is to provide only limited, temporary, nonimmigrant status to alien victims of crime (already present in the U.S.) based on their aid to law enforcement.
The panel also concluded that the regulation does not violate Equal Protection. With respect to Plaintiffs’ argument that spouses and children of U-visa recipients are similarly situated and yet treated inconsistently without a rational basis, the panel concluded that spouses and children are not similarly situated because the dependency of spouses is not equivalent to that of the parent-child relationship. The panel further concluded that, even if the groups were similarly situated, treating spouses and children differently is rationally based on Congress’s interest in preventing marriage fraud. With respect to Plaintiffs’ argument that spouses of U-visa holders, refugees, asylees, and other nonimmigrant and immigrant visa holders are similarly situated and improperly treated differently, the panel concluded that immigration fraud concerns and the underlying purposes of the different visa categories provide a rational basis for the different treatment of U-visa spouses as compared to other spouses.
Dissenting, Judge Watford wrote that he would reverse on the ground that the regulation is not a valid interpretation of the governing statute. Judge Watford wrote that USCIS’s interpretation cannot be squared with the well-settled meaning of “accompanying or following to join,” which had consistently been construed to mean that the marital relationship must exist at the time the principal petitioner’s application is granted, not when her application was filed. Looking at the rules for refugees and asylees, Judge Watford observed that in both contexts, principal petitioners may seek derivative status on behalf of their spouses if the marriage exists when the principal petitioner is granted status. Judge Watford also wrote that it is clear that Congress used the phrase “accompanying or following to join” in its traditional sense in the U-visa statute because when Congress wished to depart from that meaning it did so explicitly, by providing that a principal petitioner who is under the age of 21 may petition for derivative status on behalf of unmarried siblings under 18 years of age on the date on which such alien applied for status.
COUNSEL
Philip James Smith (argued), Nelson Smith LLP, Portland, Oregon, for Plaintiffs-Appellants.
Aaron S. Goldsmith (argued), Senior Litigation Counsel; Jeffrey S. Robins, Assistant Director; William C. Peachey, Director; District Court Section, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.
OPINION
N.R. SMITH, Circuit Judge:
The United States Citizenship & Immigration Service (“USCIS”) permissibly construed the statutory phrase “accompanying, or following to join” in
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.”
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.
(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.
The agency promulgated regulations interpreting and implementing these U-visa statutes.
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
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
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
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 (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 (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 (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.,
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.
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 omitted)). The Supreme Court has held that “Congress’ repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations.” Bragdon v. Abbott, 524 U.S. 624, 631 (1998). However, contrary to Plaintiffs’ (and the dissent’s) argument, “accompanying, or following to join” did not have a settled meaning when Congress enacted the Victims of Trafficking and Violence Protection Act in October 2000. Cf. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739–40 (1989) (noting that “[w]here Congress uses terms that have accumulated settled meaning under the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms” (alteration omitted)). Instead, the agency has defined “accompanying, or following to join” differently depending on the alien’s status. See, e.g., Procedures for Filing a Derivative Petition (Form I-730) for a Spouse and Unmarried Children of a Refugee/Asylee, 63 Fed. Reg. 3792-01 (Jan. 27, 1998) (codified at 8 C.F.R. pts. 207, 208, and 299).
Giving consideration to the only two examples from the nonimmigrant context, the qualifying relationship for a refugee “must have existed prior to the refugee’s admission to the United States and must continue to exist at the time of filing for accompanying or following-to-join benefits and at the time of the spouse or child’s subsequent admission to the United States.”
When enacting a statute, we presume Congress was aware of the different regulations interpreting this phrase in the immigrant, asylum, refugee, and U-visa contexts. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–85 (1988); cf. Rodriguez v. Sony Comput. Entm’t Am., LLC, 801 F.3d 1045, 1052 (9th Cir. 2015). Yet, Congress never added a definition of “accompanying, or following to join” (in any context), nor has it added any clarifying language or otherwise provided guidance to the agency on how that language should be interpreted regarding the timing of qualifying relationships.
Second, Plaintiffs assert that the “age out” provision for unmarried siblings makes it clear that Congress did not intend to limit other qualifying family members to the date of the application. Although the “age out” provisions shed light on Congress’s intent to preclude the alien him or herself, the alien’s children, and unmarried siblings from aging out,4
Because “Congress has not directly addressed the precise question at issue” and “the statute is silent or ambiguous with respect to [this] specific issue,” Chevron, 467 U.S. at 843, we must “not simply impose [our] own construction on the statute,” id., but instead must ask whether the agency’s regulation reasonably fills the gap in the statute.
The agency has filled that gap by enacting regulations that outline the parameters of the phrase in the various statutory provisions it has been charged to interpret. “[W]here a statute leaves a ‘gap’ . . . we typically interpret it as granting the agency leeway to enact rules that are reasonable in light of the text, nature, and purpose of the statute.” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142 (2016). Notably, “[f]illing these gaps . . . involves difficult policy choices that agencies are better equipped to make than courts.” Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005). At step two, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. Deference “is especially appropriate in the immigration context,” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999), and “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency,” Chevron, 467 U.S. at 844. An agency’s interpretation is permissible “unless [it is] arbitrary, capricious, or manifestly contrary to the statute.” Id.
Here, the agency’s regulation imposes reasonable requirements regarding at what times a qualifying relationship must exist for derivative U-visa status, “in light of the text, nature, and purpose” of the U-visa statute. Cuozzo, 136 S. Ct. at 2142. The U visa serves a narrow purpose. It was not created to allow aliens to come to the United States to work or attend school; it is not an immigrant visa designed to extend status to aliens who intend to permanently reside in the United States; nor does it offer protection to aliens seeking refuge from harm in their home country. Instead, the U visa operates to grant limited, temporary, nonimmigrant status to aliens already present in the United States who were victims of a serious crime. The U visa requires that aliens be or have been helpful in the investigation or prosecution of those crimes. Notably, the U visa does not require aliens to demonstrate that they will benefit the United States by providing a skill, performing work, or bringing jobs; and it does not require aliens to explain why they left their home country or whether they could safely return. The narrow nature and purpose of the U visa supports the agency’s regulation. It is reasonable for the agency to require that qualifying relationships exist at the time of the initial U-visa application, where U-visa status provides only limited, temporary, nonimmigrant status to alien victims of crime (already present in the United States) based on their aid to law enforcement.
Thus, the agency’s regulation is not “arbitrary, capricious, or manifestly contrary to the statute.” See Chevron, 467 U.S. at 844; see also Ruiz-Diaz v. United States, 618 F.3d 1055, 1061 (9th Cir. 2010) (finding agency’s regulation regarding timing of when alien beneficiaries of special immigrant visas may apply for adjustment of status to be reasonable, after determining Congress had been silent on the issue of timing); Garcia-Mendez v. Lynch, 788 F.3d 1058, 1064–65 (9th Cir. 2015) (upholding agency’s resolution as “a permissible interpretation of an ambiguous statutory scheme”).
Plaintiffs argue that the regulation is unreasonable, because it is inconsistent with other regulations interpreting “accompanying, or following to join” in other contexts. That the same statutory phrase—“accompanying, or following to
As stated above, nonimmigrant U-visa status is limited. U-visa recipients are already present in the United States and have become victims of a serious crime herein; they need not demonstrate why they left their home country or whether they can safely return.6 See
By contrast, the status of asylees or refugees is broader for a rational purpose. That status is granted to noncitizens fleeing to the United States to escape harm or persecution in their home country.
In short, these immigrant and nonimmigrant statutes are aimed at addressing different concerns, have different requirements, and extend different benefits to the status holder. Thus, although the same textual phrase—“accompanying, or following to join”—is used in these contexts, the nature and purpose underlying the grants of status differ significantly. The agency has reasonably addressed these differences in its regulations by requiring that qualifying relationships exist at the time of the initial petition and through the grant of derivative status in the U-visa context, where nonimmigrant status is only temporarily granted for a fixed period of time to individuals based on victimization in the United States.7
Given the deference to the agency to impose regulations interpreting (and gap filling) the immigration statutes, the requirement
C. Equal Protection under the Fifth Amendment has not been Violated
“[T]he Due Process Clause of the Fifth Amendment subjects the federal government to constitutional limitations that are the equivalent of those imposed on the states by the Equal Protection Clause of the Fourteenth Amendment.” Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1170 n.4 (9th Cir. 2007). “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). Classifications of groups of noncitizens are subject to rational basis review. See Aleman v. Glickman, 217 F.3d 1191, 1197 (9th Cir. 2000). Applying rational basis review, a classification “is accorded a strong presumption of validity and must be upheld if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Id. at 1200 (internal quotation marks and citation omitted). “[T]he Equal Protection Clause does not demand for purposes of rational basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification.” Nordlinger v. Hahn, 505 U.S. 1, 15 (1992). Rather, those challenging a regulation “have the burden to negate every conceivable basis which might support it.” Fournier v. Sebelius, 718 F.3d 1110, 1123 (9th Cir. 2013) (internal quotation marks, citation, and alterations omitted).
Plaintiffs argue that spouses and children of U-visa recipients are similarly situated and yet treated inconsistently without a rational basis. Plaintiffs also argue that spouses of U-visa holders, refugees, asylees, and other nonimmigrant and immigrant visa holders are also similarly situated and thus improperly treated differently.
1. Children and Spouses are not Similarly Situated
The regulations require that all qualifying relationships exist at the time the U-visa application is filed.
2. Distinction Between Nonimmigrant Derivative Spouses is Rationally Based.
The timing of when a spouse qualifies for derivative status by “accompanying, or following to join,” the principal alien depends upon the underlying relief requested by the principal alien. Plaintiffs generally assert that there is no rational basis for treating U-visa spouses differently than asylum or refugee spouses. To prevail on an equal protection rational basis challenge, Plaintiffs must “negate every conceivable basis” that could support a rational basis for a distinction between spouses. Fournier, 718 F.3d at 1123 (alteration and citation omitted). However, in their opening brief, Plaintiffs do not negate any conceivable basis for the distinction. Rather, Plaintiffs only summarily assert that any distinction is irrational and their reply brief fails to address it at all.8 Thus, we need not address this question. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim . . . .”).
Nevertheless, Defendants respond that the risk of marriage and immigration fraud provide a rational basis for the different treatment of spouses under the regulations. Immigration fraud concerns and the underlying purpose of the different visa categories provide a rational basis for the different treatment of U-visa spouses as compared to other spouses. As discussed above, asylee and refugee status is extended to noncitizens who come to the United States fleeing their home country and cannot return at that time and applicants must demonstrate what harm they are fleeing and that they may likely be harmed if they return.
By contrast, U visas are extended only to noncitizens already present in the United States who have been personally victimized.
Because significant differences exist between the categories of spouses and the requirements for obtaining status, “there is a rational relationship between the disparity of treatment” among spouses and it furthers a “legitimate governmental purpose.” See Aleman, 217 F.3d at 1200 (citation omitted).
AFFIRMED.
WATFORD, Circuit Judge, dissenting:
I would reverse, as I do not think the regulation at issue here is a valid interpretation of the governing statute.
The regulatory provision challenged by the plaintiffs provides in relevant part as follows:
[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.
Section 214.14(f)(4) plainly establishes an eligibility requirement: It purports to define which spouses are eligible to be treated as derivative beneficiaries in the U-visa context. Our cases make clear that an agency may impose eligibility requirements with respect to immigration benefits only if the requirements are grounded in the statutory text. See Bona v. Gonzales, 425 F.3d 663, 670 (9th Cir. 2005). Put differently, when Congress has specified the class of non-citizens eligible for a particular immigration benefit, an agency may not “impose[ ] a new requirement that is not contemplated by Congress.” Schneider v. Chertoff, 450 F.3d 944, 956 (9th Cir. 2006).
The government contends that the eligibility requirement imposed by
I do not think USCIS’s interpretation can be squared with the well-settled meaning of “accompanying or following to join.” By the time Congress enacted the TVPA in 2000, that statutory phrase had been used in dozens of federal immigration provisions, the first dating back to the 1920s. See Immigration Act of 1924, ch. 190, § 13(c), 43 Stat. 153, 162. And as applied to spouses, the phrase had consistently been construed to mean that the marital relationship must exist at the time the principal petitioner’s application for an immigration benefit is granted, not at the time her application was filed.
For example, Congress used the phrase “accompanying or following to join” in defining
The phrase “accompanying or following to join” has been given the same meaning in the context of non-citizens applying for asylum or refugee status. In those contexts, too, Congress has extended derivative status to family members “accompanying, or following to join,” the principal petitioner.
Take first the rule for refugees. So long as the principal petitioner (the refugee) was married to her spouse on the date the principal petitioner is admitted into the United States, the spouse is eligible for derivative status.
As these examples reflect, when Congress enacted the U-visa statute, the phrase “accompanying or following to join” had uniformly been interpreted to mean that eligibility for derivative status is measured at the time the principal petitioner is granted an immigration benefit, not at the time the principal petitioner applies for that benefit. Indeed, despite being pressed to do so, the government could not identify a single instance in which, before 2000, the phrase had been given a contrary construction. That fact triggers “a longstanding interpretive principle:
One additional interpretive clue bears mentioning. We know that Congress used the phrase “accompanying or following to join” in its traditional sense in the U-visa statute because when Congress wanted to depart from the settled meaning of that phrase it did so explicitly. Congress provided that a principal petitioner who is under the age of 21 may petition for derivative status on behalf of “unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause.”
“Congress has supplied a clear and unambiguous answer to the interpretive question at hand,” so we need not venture beyond step one of the analysis under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018). Congress’ use of the phrase “accompanying or following to join” requires USCIS to assess the existence of the marital relationship at the time the principal petitioner’s application for a U visa is granted, not when the principal petitioner files her application for a U visa. In my view,