MARIA DEL CARMEN MEDINA TOVAR; ADRIAN JOVAN ALONSO MARTINEZ, Plаintiffs-Appellants, v. LAURA B. ZUCHOWSKI, Director, Vermont Service Center, United States Citizenship and Immigration Services; CHAD F. WOLF, Secretary, Department of Homeland Security; WILLIAM P. BARR, Attorney General, Defendants-Appellees.
No. 18-35072
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
December 3, 2020
982 F.3d 631
D.C. No. 3:17-cv-00719-BR. FILED DEC 3 2020, MOLLY C. DWYER, CLERK, U.S. COURT OF APPEALS.
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding
Argued and Submitted En Banc
Opinion by Judge Graber; Concurrence by Judge Collins;
GRABER, Circuit Judge:
Plaintiff Maria Medina Tovar, a native and citizen of Mexico, came to the United States with her family in 1998, at the age of six. When she was twelve, a stranger raped her at knife-point in her home. She cooperated with law enforcement officials and, because of the rape, has suffered substantial trauma. In 2013, Medina Tovar filed a Form I-918 seeking a U visa, which is designed to grant legal status to certain non-citizen victims of crime who assist law enforcement. In September 2015, she married Plaintiff Adrian Alonso Martinez, who also is a native and citizen оf Mexico. Thereafter, Medina Tovar was granted U-visa status effective October 1, 2015. On March 29, 2016, she filed a Form I-918, Supplement A, which is a petition for a derivative U visa, for her husband. Defendants, acting on behalf of United States Citizenship and Immigration Services (“USCIS“), denied the petition because Plaintiffs were not married when Medina Tovar filed her initial petition in 2013.
Plaintiffs then brought this action for declaratory and injunctive relief. The district court granted Defendants’ motion for summary judgment and denied Plaintiffs’ motion for summary judgment, ruling that Congress did not address directly the question of when a marital relationship must exist for a spouse to be eligible for derivative U-visa status and that the regulation is a reasonable interpretation of the governing statute.
We have jurisdiction under
THE STATUTE
(i) . . . an alien who files a petition for status under this subparagraph, if the Secretary of Homeland Security determines that—
(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);
(II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii);
(III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal,
State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and (IV) the criminal activity described in clause (iii) . . . occurred in the United States . . . ;
(ii) if accompanying, or following to join, the alien described in clause (i)—
(I) in the case of an alien described in clause (i) 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 an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien; and
(iii) the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape . . . .
THE REGULATION
The regulation that Plaintiffs challenge provides in relevant part:
Except as set forth in paragraphs (f)(4)(i) and (ii) of this section, the relationship between the U-1 principal alien and the qualifying family
member must exist at the time Form I-918 was filed, and the relatiоnship 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.
(i) If the U-1 principal alien proves that he or she has become the parent of a child after Form I-918 was filed, the child shall be eligible to accompany or follow to join the U-1 principal alien.
(ii) If the principal alien was under 21 years of age at the time he or she filed Form I-918, and filed Form I-918, Supplement A for an unmarried sibling under the age of 18, USCIS will continue to consider such sibling as a qualifying family member for purposes of U nonimmigrant status even if the principal alien is no longer under 21 years of age at the time of adjudication, and even if the sibling is no longer under 18 years of age at the time of adjudication.
ANALYSIS
When reviewing the validity of a regulation, we apply the two-step process that the Supreme Court established in Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984). Coyt v. Holder, 593 F.3d 902, 905 (9th Cir. 2010).
At step one, we must decide whether the intent of Congress is clear from the terms of the statute that it enacted or whether, instead, the statute is ambiguous.
Chevron, 467 U.S. at 842–43. To maintain the proper separation of powers between Congress and the executive branch, we must “exhaust all the traditional tools of construction” before we “wave the ambiguity flag.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (internal quotation marks omitted). “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
If, but only if, the statute is ambiguous after using ordinary tools of construction, we reach step two. Id. at 843. At step two, we ask whether the agency has construed the ambiguity in a permissible way. Id.
We have applied the Chevron framework in the immigration context. In doing so, we have held that an agency may not add a new requirement when Congress has specified the criteria for a particular immigration benefit. Schneider v. Chertoff, 450 F.3d 944, 956 (9th Cir. 2006); Bona v. Gonzales, 425 F.3d 663, 670 (9th Cir. 2005). That is precisely the situation we face here.
The question that the regulation answers is this: At what point must a person be married tо the principal applicant to first qualify for a derivative U visa as a spouse—(a) when the application is filed, or (b) when the principal applicant receives a U visa?
The regulation adopts the former view. Defendants reason that the statute fails to define “accompanying, or following to join,” making the statute ambiguous, but see Averett v. U.S. Dep‘t of Health & Human Servs., 943 F.3d 313, 315 (6th Cir. 2019) (“A statute‘s terms are not ambiguous simply because the statute itself does not define them.“), and that the regulation imposes reasonable requirements because an after-acquired spouse is not “accompanying, or following to join,” the principal U-visa applicant.
But, when we employ traditional tools of interpretation, the statute plainly answers “no” to the question whether the spousal relationship must exist at the time the original U-visa petition is filed. Two principles are relevant to our analysis.
First, Congress clearly thought about the timing question. With respect to principal petitioners who are younger than 21, Congress expressly рrovided that an unmarried sibling must have been younger than 18 at the time the principal petitioner filed for U-visa status. “[I]n the case of an alien described in clause (i) 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” are qualifying relatives.
children, and parents—the statute contains no similar reference to or reliance on the date of the principal petitioner‘s application.
One of the most common tools of statutory construction is this: “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Nken v. Holder, 556 U.S. 418, 430 (2009) (internal quotation marks and brackets omitted). That maxim is especially apt here, because the distinction appears in a single paragraph,
Second, Congress‘s use of the phrase “accompanying, or following to join,” requires the same interpretation of the statute. Earlier immigration laws contained the same phrase. See Immigration Act of 1924, ch. 190, § 13(c), 43 Stat. 153, 162. Indeed, Congress used the phrase “accompanying or following to join” to define spouses who may be treated as derivative beneficiaries when a non-citizen adjusts her status to that of a lawful permanent resident under
When Congress added the “accompanying, or following to join” phrase to
(en banc) (identifying eligible derivative beneficiaries as those who have a qualifying relationship with the principal petitioner when the principal petitioner “actually entered” or at the time of “the grant of a preference” to the principal). Indeed, a policy memorandum from the former INS stated that “after-acquired” сhildren and spouses may “adjust under [§ 1255(i)] as long as they acquire the status of a spouse or child before the principal alien ultimately adjusts status.” Landin-Molina, 580 F.3d at 919 (quoting Accepting Applications for Adjustment of Status Under Section 245(i), HQ 70/23.1-P, HQ 70/8-P, at 5 (June 10, 1999), reproduced at 76 Interpreter Releases 1017 (July 2, 1999)).
We are aware of no precedent predating 2005, and the agency has cited none, ruling that the phrase “accompanying, or following to join,” either (a) referred to a time before the principal petitioner received an immigration benefit or (b) was ambiguous.
Thus, we turn to a second familiar interpretive principle: “When a statutory term is obviously transplanted from another legal source, it brings the old soil with it.” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (internal quotation marks omitted). The term “accompanying, or following to join,” was obviously transplanted from other immigration statutes. The phrase therefore brought with it the settled meaning that, in the absence of an express carve-out such as
The two interpretive principles on which we rely work in tandem here. The carve-out for siblings under the age of 18 was necessary precisely because Congress understood that the settled meaning of “accompanying, or following to join,” referred to the date on which an immigration benefit is granted, not to the date on which the application for that benefit was filed.
In summary, we hold that the statute clearly answers thе relevant interpretive question: to qualify for a derivative U visa as a spouse, a person need not have been married to the principal applicant at the time the application was filed, so long as the marriage exists when the principal applicant receives a U visa. Accordingly, our analysis ends at Chevron step one, without resort to step two. Pereira v.
Sessions, 138 S. Ct. 2105, 2113–14 (2018).
Plaintiffs were married by the time Medina Tovar was granted a U visa on October 1, 2015. As of March 29, 2016, when Medina Tovar petitioned for derivative U-visa status, her husband was entitled to receive a U visa if he otherwise met the requirements.
REVERSED.
COLLINS, Circuit Judge, with whom BUMATAY, Circuit Judge, joins, concurring in the judgment:
I agree with the majority that the agency regulation at issue here is inconsistent with the applicable statute, but I reach that conclusion for somewhat different reasons. I therefore concur only in the judgment.
I
Maria Medina Tovar is a native and citizеn of Mexico who was brought to the United States in 1998 when she was six years old. She has lived in the United States ever since. In November 2004, when she was only twelve years old, Medina Tovar was sexually assaulted in Seaside, Oregon on two separate occasions by a stranger who had also repeatedly stalked her outside of her school. On June 14, 2013, she filed with U.S. Citizenship and Immigration Services (“USCIS“) a “Form I-918” petition for a so-called “U-visa,” which refers to a special type of non-immigrant visa for certain aliens who have been victims of crime in the United States. The U-visa is so named because the category of persons eligible for such visas is set forth in subparagraph (U) of § 101(a)(15) of the Immigration and Nationality Act (“INA“),
the statutory cap for such visas for that fiscal yеar had already been met. She was finally notified on November 24, 2015 that her U-visa had been granted, with an effective date of October 1, 2015 (which was the first day of fiscal year 2016).
During the more than two years that her application was pending, Medina Tovar married Adrian Alonso Martinez, a Mexican citizen, on September 21, 2015. Thereafter, as the holder of a primary U-visa (known as a “U-1 visa“), Medina Tovar on March 29, 2016, filed a petition for a derivative U-visa on Martinez‘s behalf, using the prescribed “Form I-918, Supplement A.” However, on November 23, 2016, USCIS
[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 adjudicatеd, and at the time of the qualifying family member‘s subsequent admission to the United States.
Because the agency was bound by its own controlling regulation, Plaintiffs Medina Tovar and Martinez (“Plaintiffs“) did not attempt to pursue any further administrative remedies. Instead, in May 2017, they filed this action against the director of the relevant USCIS service center, as well as the Secretary of Homeland
Security (the head of the Department in which USCIS is housed) and the Attorney General. In their complaint, Plaintiffs allege that the regulation is invalid because, inter alia, it “adds a restriction that is not part of the statute enacted by Congress.” Specifically, Plaintiffs contend that the statute only requires that Martinez be married to Medina Tovar by the time that she obtained her U-visa and that they need not have been married at the time she applied for her visa. Plaintiffs also contend that the regulation‘s timing requirement differed from that applied to derivative applications for other forms of immigration relief and that the resulting distinction violated the equal protection componеnt of the Fifth Amendment‘s Due Process Clause. Based on these allegations, Plaintiffs sought relief, inter alia, under the judicial review provisions of the Administrative Procedure Act (“APA“),
Defendants filed a motion for summary judgment, which the district court granted. Applying the two-step framework of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the court first concluded that the relevant statutory language setting forth the eligibility for a derivative U-visa “did not directly address the precise question at issue as to the derivative U visa status,” and it then held that the regulation was a permissible construction of the statute. The court separately rejected Plaintiffs’ contention that the regulation violated equal protection. Plaintiffs timely appealed. After a divided panel
affirmed the district court‘s judgment, see Medina Tovar v. Zuchowski, 950 F.3d 581 (9th Cir. 2020), we granted rehearing en banc, see Medina Tovar v. Zuchowski, 957 F.3d 1381 (9th Cir. 2020).1
The parties have squarely placed before us the question of whether the regulatory requirement that “the relationship between the U-1 principal alien and the qualifying family member must exist at the time Form I-918 was filed,” see
who are eligible for derivative U-visas in § 101(a)(15)(U)(ii) of the INA. See
In addressing whether the statute governing derivative U-visa eligibility is ambiguous on the question of when the spousal relationship must exist, the parties have focused their arguments, as the majority does, on whether one particular phrase in
parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); accord Thompson v. Runnels, 705 F.3d 1089, 1098 (9th Cir. 2013). I agree with the majority‘s ultimate conclusion that the plain language of the statute only requires that the spousal relationship be in existence by the date that the primary applicant (here, Medina Tovar) is granted her U-visa, but my reasoning is based more narrowly on the unique wording of
As with any question of statutory interpretation, we must “begin with the text of the statute,” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 7 (2011), and here the statute unambiguously addresses the temporal issue of when the derivative aрplicant must be the “spouse” of the primary applicant.
Clause (i) of
forth the class of persons who may obtain derivative U-visas.
(ii) if accompanying, or following to join, the alien described in clause (i)—
(I) in the case of an alien described in clause (i) 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 an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien . . . .
The common link in these two requirements is the phrase “alien described in clause (i),” because Martinez must be both the “spouse” of such a person and “accompanying, or following to join,” that same person. An “alien described in clause (i)” includes a person who—subject to certain limitations that are not at issue here with respect to Medina Tovar—meets the following description:
(U)(i) . . . an alien who files a petition for status under this subparagraph, if the Secretary of Homeland Security determines that—
(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);
(II) the alien . . . possesses information concerning criminal activity described in clause (iii);
(III) the alien . . . has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or Statе judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and
(IV) the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States . . .
That makes the statutory issue in this case relatively straightforward. The date on which Medina Tovar first became an “alien described in clause (i)” was on
October 1, 2015, which was the effective date on which her petition was grаnted. Prior to that date, she was just an applicant for a principal U-visa and not an “alien described in clause (i).” Clause (ii) of the statute tells us that the class of persons who may apply for derivative U-visas includes the “spouse” of an “alien described in clause (i)” who is “accompanying, or following to join,” that person. By using the phrase “alien described in clause (i),” the definition of derivative U-visa eligibility in clause (ii) thereby necessarily incorporates the same temporal aspect that is inherent in clause (i). That is, because an “alien described in clause (i)” only means an alien who has been affirmatively “determine[d]” to be eligible for a U-visa, the very earliest that someone (such as Martinez) could possibly be said to be “the spouse of such alien” is likewise when that alien‘s principal U-visa application is approved. The question, then, is whether Martinez was the “spouse” of Medina Tovar and was “accompanying, or following to join,” her on the day that she first became an “alien described in clause (i)“—viz., October 1, 2015. Because Medina Tovar and Martinez were married ten days earlier on September 21, 2015, he was indisputably the “spouse ... of such alien” on October 1. And because the Government does not dispute that, if Martinez was Medina Tovar‘s “spouse” on the relevant day, he was also “accompanying, or following to join,” her on that same day, it follows that Martinez meets the statutory definition in clause (ii) and was eligible for a derivative U-visa. Cf. Landin-Molina v. Holder, 580 F.3d 913, 918–19 (9th Cir. 2009) (eligibility of a “spouse” who is “accompanying or following to join” a principal alien for a derivative immigrant visa under
B
In addition to being compelled by the statute‘s plain language, there are three additional textual clues in the statute that strongly confirm the correctness of this reading. The first two relate to the statute‘s special rules that apply in the case of a primary U-visa applicant who is under the age of 21, and so it is impоrtant first to set forth what those different rules are.
As noted earlier, the statutory provision that defines derivative U-visa eligibility contains two separate subclauses, one that governs cases in which the primary applicant “is under 21 years of age” and one for cases in which that applicant “is 21 years of age or older.”
First, in the case of “unmarried siblings under 18 years of age,” the statute specially provides that the determination of whether the unmarried sibling is “under 18 years of age” is to be made “on the date on which such [primary] alien applied for status under such clause.”
The statute‘s second special textual rule relates to another aspect of derivative U-visa eligibility “in the case of an alien described in clause (i) who is under 21 years of age.”
An alien described in clause (i) of section 1101(a)(15)(U) of this title [§ 101(a)(15)(U) of the INA] shall continue to be treated as an alien described in clause (ii)(I) of such section if the alien attains 21 years of age after the alien‘s application for status under such clause (i) is filed but while it is pending.
The statute‘s third textual clue relates to the derivative U-visa eligibility of the “children” of either type of primary U-visa recipient—viz., the “children” of “an alien described in clause (i) who is under 21 years of age” and the “children” of “an alien described in clause (i) who is 21 years of age or older.”
An unmarried alien who seeks to accompany, or follow to join, a parent granted status under section 1101(a)(15)(U)(i) of this title [§ 101(a)(15)(U)(i) оf the INA], 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 section 1101(a)(15)(U)(ii) of this title, if the alien attains 21 years of age after such parent‘s petition was filed but while it was pending.
* * *
The relevant statutory text thus makes overwhelmingly clear that the determination of whether someone is a “spouse” of an “alien described in clause (i)” must be made as of the date that the primary
III
Because the statutory definitions of U-visa eligibility contain their own built-in temporal element, the agency lacked the authority to establish an earlier temporal requirement that is stricter than the one Congress established. To the extent that
Medina Tovar v. Zuchowski, No. 18-35072
FILED
DEC 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CALLAHAN, Circuit Judge, with whom BRESS and BENNETT, Circuit Judges join, dissenting:
In the battle of competing aphorisms I think that “context matters” prevails over the interpretive canon “bringing the old soil with it.” The majority looks at the inherently ambiguous language in
This is an invitation to mischief in at least two ways. First, in light of the time it takes for the processing of a U visa, it is an invitation to commit marriage fraud by creating a means by which a person who is not legally in the country may obtain legal status by marrying a U-visa applicant before the application is granted. Second, the opinion suggests that courts can dictate to an agency an interpretation of a statute by searching precedents in different contexts to establish a binding legislative understanding. Indeed, it does so under the first prong of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), asserting that the intent of Congress is clear. See Op. at 7.
Although, as Judge N.R. Smith noted in his opinion for the three-judge panel, “Congress has never directly addressed when a qualifying relationship must exist,” Medina Tovar v. Zuchowski, 950 F.3d 581, 587 (9th Cir. 2020), rehearing en banc granted, 957 F.3d 1381, the majority reaches its conclusion by focusing on subclause (ii)(I), which states:
in the case of an alien described in clause (i) 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;
(emphasis added).
This provision states that, for a U-visa applicant (an alien described in clause (i)),
The majority proceeds to employ the maxim “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Op. at 7–8 (quoting Nken v. Holder, 556 U.S. 418, 430 (2009)). But this general presumption is premised on the determination that Congress‘s use of particular language in the first instance was intended to address, or inherently addresses, the issue in the second section. In our case, however, the language at issue was used to define which siblings might be eligible for derivative benefits; it does not clearly define or address “accompanying, or following to join,” even for such eligible siblings.
A careful reading of the Chief Justice‘s opinion in Nken supports this distinction. That case concerned whether a statutory provision addressing certain injunctions also applied to stays. 556 U.S. at 431. The Court‘s opinion acknowledges “that statutory interpretation turns on ‘the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.‘” Id. at 426 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). However, after stating the maxim quoted by the majority, the Court proceeded to observe that the language at issue was not where it would naturally be if intended to apply to stays. Id. at 431. It also commented that it “frequently takes Congress‘s structural choices into consideration when interpreting stаtutory provisions.” Id. at 431.
Here too, we have language which arguably could be interpreted as addressing “accompanying, or following to join” but which is not located where it would naturally be located to do so and which serves, and presumably was intended to serve, a distinct purpose: limiting the eligibility for siblings of an under 21-year-old applicant to those who are under the age of 18.1 Indeed, the majority seems to reason backward, arguing that “Congress intended that the timing of the petition is relevant
And even if the majority were correct that the subclause concerning minor siblings addresses the timing question, the majority errs in concluding that this subclause unambiguоusly answers the timing question as to spouses. Because the subclause refers to “unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause,” the majority reasons that “the timing of the petition is relevant” only as to this ”one category of relatives.” Op. 8. But even if that negative implication is a permissible reading of the statute, it is certainly not inevitable.
As the three-judge panel majority explained, unlike spouses and parents, siblings face the possibility of “aging out” while the U-visa petition is pending. See Medina Tovar, 950 F.3d at 589. Thus, “[t]he fact that Congress addressed when the alien and other qualifying relatives should be assessed to preclude them from aging out, does not unambiguously mean that Congress intended that spouses be assessed at a different time than the date of application.” Id. Spouses are differently situated from siblings because spouses cannot age out. Id. Thus, the statutory text does not command that the date of assessment for spouses must be different than that for siblings.
The majority asserts that the phrase “accompanying, or following to join,” has existed in various statutes for decades and suggests that it has been uniformly interpreted. But the majority does not cite a single instance in which either a court or agency has held that the phrase precluded the agency from requiring that the marriage exist at the time of a U-visa application. Neither of the Ninth Circuit‘s cases cited by the majority does so. These cases do consider the phrase “accompanying, or following to join” but not in a manner that supports the majority‘s position.
In Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009), Landin-Molina conceded that he could not satisfy the “accompanying, or following to join” requirement “because his marriage occurred after his wife adjusted to lawful permanent resident status.” Id. at 919. We explained:
The plain language of
§ 1153(d) requires that the derivative “spouse” accompany or follow to join the principal “spouse.” Implicitly there is a temporal element of already being a “spouse.” Thus,§ 1153(d) clearly contemplates that the marital relationship exists before the principal receives immigrant status. Such a construction is consistent with our observation in Santiago[v. INS, 526 F.2d 488 (9th Cir. 1975) (en banc)], that Congress intended to “preserve“—i.e., maintain—the unity of existing families by permitting qualifying aliens to bring their families with them or to send for them later. If the marital relationship transpires after the principal receives immigrant status, the putative derivative spouse cannot have accompanied or followed to join a “spouse” because there was simply no spouse to accompany or follow at the time the principal adjusted status, and the language of§ 1153(d) implicitly requires that the derivative spouse be a “spouse” before the principal adjusts status.
Id. (citation omitted).
Certainly, Landin-Molina required that the derivative beneficiary be married to
Santiago v. INS, 526 F.2d 488 (9th Cir. 1975) (en banc), does little to support the majority‘s interpretation of Congress‘s intent. There we held that the government was not estopped from excluding a derivative beneficiary who was erroneously admitted prior to the arrival of the principal in the United States. We explained:
Petitioners initially contend that the words “accompanying, or following to join” in
8 U.S.C.§ 1153(a)(9) should be construed to also mean “preceding with the hope (or expectation) of being joined later.” There is no authority for such a construction. The plain language of the statute is designed to assure that those aliens who derive their preference cannot exercise their right to enter until the person from whom they derive their preference has actually entered. Congress clearly intended to preserve family unity by this language and to permit the lawfully entering alien tо either bring his family with him or to send for them later when he had the ability to do so. But there is nothing in this language to indicate that Congress ever intended that the grant of a preference to one alien would effectively work a grant of a like preference to the members of his family so that they might enter at whatever time they wished. If Congress had wished to equate derivative preferences with actual preferences the words “accompanying, or following to join” would be absent from this statute.
Thus, we found the language “plain” in regard to when a derivative beneficiary could enter the United States. But we did not otherwise comment on when the relationship had to exist. Yet again, our reference to the purpose of preserving family unity might be construed as suggesting that the relationship should exist when the beneficiary sought to enter the United States.
Perhaps more importantly, regardless of how one reads our opinions in Landin-Molina and Santiago, they do not readily support the argument that Congress commanded that the spousal rеlationship need exist only at the time a U-visa petition is granted. Both cases were in the context of immigrant aliens, whereas the U visa is a nonimmigrant visa. See Landin-Molina, 580 F.3d at 915; Santiago, 526 F.2d at 489; see also
A U visa is not an immigration visa, but “operates to grant limited, temporary, nonimmigrant status to aliens already present in the United States who were victims of a serious crime.” Id. at 590. These differences suggest both that the date of a U-visa application is somewhat analogous to the date an immigrant enters the United States and that the interpretation of the phrase in an asylum proceeding is not
In addition, it is notable that the timing rules are different for asylees and refugees. For refugees the qualifying relationship must exist at the time of the refugee‘s admission to the United States, whereas for asylees the relationship must have existed at the time the principal alien‘s asylum application was approved. Id. at 588 (citing
In any event, a review of our prior cases and the matters cited by the majority fail to support its determination of Congress‘s clear intent. Indeed, the majority does not assert that Congress has ever directly addressed this issue. Instead, by asserting a negative implication based on language in
Accordingly, I respectfully dissent because I cannot conclude that Congress understood or intended “accompanying, or following to join” to mean that the agency could not require that an applicant for a derivative benefit from a U-visa applicant be married to the principal when the U-visa application was filed.