*2 NYGAARD, Circuit Judges.
OPINION OF THE COURT SLOVITER, Circuit Judge. The issue before isus whether an alien married to a United States citizen remains relative,” “immediate within the mean- ing Immigration and Nationality Act (“INA”), if couple had been married for less than when her citizen spouse died. It is an issue this court has never addressed. adjudicat- factor discretionary aas son I. application.” Mrs. ing History Procedural Factual 06-5702, 2007 No. Chertoff, Robinson *3 a citi- * (“Robinson”), Robinson 2007). 14, Osserritta (D.N.J. May 1412284, 1 at WL Jamaica, entered national and
zen the Govern- denied Court District 2002, as an 14, January on States United sum- granted and dismiss to motion ment’s and visa a B-2 on visitor non-immigrant of Robinson. in favor judgment mary Robinson”), (“Mr. Robinson Louis married aside set Court District Thereupon, 2003. February citizen, in States a United Robinson determination USCIS’ a Peti- filed 2003, Robinson Mr. In March process to USCIS ordered spouse, not (“1-130 petition”) Alien Relative for tion application, 1-485 and petition 1-130 her wife of his behalf visa on immigrant for an declaratory judgment granted and same At the relative.” “immediate as an under “is an Robinson application an 1-485 filed time, Robinson pur- 1151(b)(2)(A)® for the and § 8 U.S.C. that of to status immigration her adjust petition.” 1-130 an adjudicating poses (“LPR”). resident permanent a lawful appeals. The Government 14.2 App. 2003, 15, October on died Robinson Mr. On Ferry accident. Island Staten II. Citizenship and 2005, 15, the U.S. October informed (“USCIS”) Services Immigration Review Standard and Jurisdiction been had petition 1-130 her Robinson death automatically terminated un- jurisdiction had Court District USCIS, Rob- According husband. her 704 of § and Section 1331 28 U.S.C. der rela- “immediate longer an no inson review § APA, U.S.C. be- of the INA meaning tive” relative” “immediate meaning of before occurred husband’s her cause 1151(b)(2)(A)®. § in 8 U.S.C. appears itas years. married had been couple legal question “purely this is Because discretion,” writ for a agency implicate filed not Robinson and declaratory bar, complaint for 8 U.S.C. and a jurisdictional mandamus INA’s States judicial relief injunctive precludes 1252(a)(2)(B)(ii),which and § Jer- of New immigration the District discretionary Court District most review Chertoff, the Secre- Michael case. against in this sey applicable decisions, is not Secu- (3d of Homeland Department tary of the Gonzales, F.3d Pinho Director, Gonzalez, Emilio and rity, Cir.2005). Services,1 re- Immigration Citizenship 28 U.S.C. under jurisdiction have We USCIS order court questing review plenary exercise “We 1291. appli- 1-485 her reopen interpreta statutory Court’s District “immediate her an treat cation a reasonable deference tion, afford but citizen. a United relative” agency.” adopted interpretation enjoin “to court also asked complaint 204. Pinho, F.3d Robin- of Mr. using the from USCIS question the] ... [because application convenience, refer will we purposes of For before properly is not briefed been not "Government.” jointly as to them 1412284, at Robinson, WL Court.” Robinson's denied also Court District 2. The order. appeal that did Robinson *5. limiting the dis- relief injunctive "request for her I- adjudicating the USCIS cretion III. that the alien in behalf of whom peti- tion is made immediate relative.” 8 Statutory Scheme 1154(b). A United States citizen who seeks Approval of the 1-130 petition gain permanent lawful renders resident status for the immediate eligible eligible family adjust- member begin must ment of status process under 8 by filing 1255(a), which provides, pertinent part: USCIS behalf an alien who is an “immediate relative.” The status of an alien ... may be ad- (A) §§ (b)(2) (i), 1164(a)(l)(A)(i); *4 8 justed by the Attorney General, in his § C.F.R. 204.1(a)(1). Concurrently, or discretion and under such regulations as thereafter, spouse3 alien for whom the may he prescribe, to that of an alien (the was filed “immediate lawfully admitted for permanent resi- relative”) must file 1-485 application for (1) dence if the alien makes an applica- adjustment of § status. 8 1255(a); tion for (2) such adjustment, the alien is 245.1(a). 8 § C.F.R. “Immediate rela- eligible to receive an immigrant visa and tives” are defined in the INA as: admissible the United States for children, [T]he spouses, parents of a permanent residence, (3) an immi- citizen of the States, that, except grant visa is immediately available to in the of parents, case such citizens shall him at the time application his is filed. at 21 years least age. of In the case 1255(a). § 8 U.S.C. Because immediate an alien who was the spouse of relative visas are not subject to numerical citizen the United States at least 2 for visa limitations, § 8 U.S.C. 1151(b)(2)(A)©, years at the time the citizen’s death once the 1-130 petition approved and was not legally separated from the “immigrant visa is immediately available” citizen at the time of the citizen’s to the alien spouse at the time her 1-485 the alien ... considered, shall be application filed, 1255(a). 8 U.S.C. purposes of subsection, this to remain Thus, eligibility adjust status to that of an immediate relative the date after an LPR is contingent upon approval of the the citizen’s only death but spouse if 1-130 petition. under section files 1154(a)(l)(A)(ii) of this title [an 1-360 IV. petition] years within 2 after such date until the date spouse re- Discussion marries. Robinson argues that she remained an 8 U.S.C. 1151(b)(2)(A)© (emphasis add- “immediate relative” within the meaning of ed).4 8 1151(b)(2)(A)® after the death USCIS approve “shall” the 1-130 peti- of her husband. The Government coun- tion filed the citizen spouse only if ters that Robinson is no longer a “spouse” determines, after an investigation, “that eligible to be considered an “immediate the facts stated in the petition are true and relative” because she had not been mar- 3. gender The statute is neutral. Because he was years married for at least two and the case, spouse male, the citizen was a we petition is filed years within two of the citizen gender refer to applicable to the facts. spouse’s death. See § 1154(a)(l)(A)(ii); 204.2(b), §§ 8 C.F.R. An 1-360 allows a widow/er (i)(l)(iv). if, alia, to self-petition inter she un- is further [and] analysis, statutory at two spouse her citizen
ried to In re finding [in later the BIA’s dercut Government his death. time (B.I.A.1985)] N. Dec. Sano, I. & section sentence the second reads ” 5Free- ‘extra-jurisdictional.’ it was that term qualifying (b)(2)(A)(i) as added). (citation man, F.3d at sec- sentence first “spouse” ar- words, the Government In other tion. held Instead, Circuit the Ninth “immediate statutory remains gues that sentences and second first INA meaning of each independent” relative” “stand[] provision her citizen his or pro- different after the for “two provide other married been couple ap- had only if the other one or cesses, such death. citizen’s time petitions plies—either so, alien doing or, dies without if he be- response argues Robinson Freeman, F.3d may do so.” widow provision the first cause because reasoned 1042. It n. way qualify any on the only limitation her after a spouse remains *5 she “spouse,” sentence first in the relative” sec- “immediate interprets the She death. husband’s im- (the grant of parents two-year to alien (which the relates contains ond sentence to those limited status is sepa- a relative granting as mediate marriage requirement) old) at least for child self-petition citizen whose widows for right rate qualifier comparable no on the “[t]here a limitation and than as rather visas ” rela- “immediate the ‘spouse,’ be a spouse. citizen, a U.S. spouse the means tive” Bu- ago thirty-five than More Thus, at 1039. Id. exception.” “without (“BIA”) con- Appeals Immigration reau of court, Freeman “Mrs. according to spouse’s citizen effect sidered a U.S. spouse as qualified immi- for an petition a pending on for petitioned husband her and she when In spouse. the alien behalf visa on grant a clear status, absent adjustment 453, 453-54 Dec. Varela, N. 13 I. & re In sta- spousal her voiding statutory provision alien that an held (B.I.A.1970), the BIA untimely her husband’s tus because “spouse” a longer no spouse Id. spouse.” surviving remains she ato determi- prior died spouse her citizen original). (emphasis 1039-40 The Govern- petition. her nation of to the defer should the Govern- rejected that we argues court ment The Freeman sentence second precedent. argument BIA ment’s general definition qualifies implicitly citing Court, without even District The marriage two-year by imposing in- Varela, agreed In re the sec- Instead, viewed it requirement. pro- the immediate terpretation aliens “to those applying ond reasoning of the vision, on relying not initiate did spouses whose Circuit Ninth Appeals Court before proceeding of status adjustment (9th Gonzales, 444 F.3d Freeman surviving spouses such died, granting they refused Cir.2006). Circuit Ninth immediate rela- file an right to a beneficial it stat- because to Varela deference accord living citizen without even tive “lack[ed] decision the BIA’s ed that (i.e., the citizen petitioner only visa juris- Sano, had no held that the BIA 5. of his alien behalf a visa filed who by the appeal beneficia- to address diction &19 approval). I. its died before spouse, but the BIA petition; a visa denial of ry from N. Dec. at appeals authority hear had that it held spouse to vouch for the fact of the mar- plain makes that the facts peti- riage.” Id. at 1041. including spousal alien’s status— tion— must be true at the time
Relying on Freeman, USCIS decides District Court petition. held that Robinson remained an immediate
relative after the her present tense is also used that, noted “[t]he Court imagine cannot section governing adjustment of status, that Congress intended time of death provides which that the Attorney General combined pace with the of adjudication, may adjust the status of an alien if: rather than petitioner’s conscious deci- (1) the alien makes an application for sion to promptly file an 1-130 petition, to adjustment, (2) such the alien is eligible be the proper basis for determining wheth- to receive an immigrant visa and is ad- er the alien qualifies as an immediate rela- missible to the United States perma- Robinson, tive.” 2007 WL at *5. nent residence, (3) an immigrant argues Robinson that the death of her visa is immediately available to him at husband did not affect her status as an time his application is filed. which, immediate relative contends, she 1255(a) added). (emphasis “vested” at the time her husband filed the petition. Robinson relies on the Government last clause of contends (“at subsection “immediate time status” his application is not de- filed”) argue termined the time eligibility the 1-130 immedi- *6 ate relative filed but at the status at time the time the of petition filing is the application adjudicated. is It supports controlling. that argument Robinson’s stat- utory by noting that the construction of present the provision tense is used is not persuasive. 8 1154(b), Instead, § U.S.C. the the statutory provision natural reading of provision governing grant the is that the immigrant of final clause visas. applies This provision only to the requirement. states that the third See Attorney (now General States v. Hodge, the 321 Secretary 429, of F.3d Homeland 436 (3d Cir.2003) (“The Security)6 “shall, if he doctrine of determines that the the last antecedent facts stated in teaches petition the that ‘qualifying words, are true and phrases, that the alien in and clauses behalf of are to be applied peti- whom the tion the is words or phrases made is an immediately preced- immediate spec- relative ing’ 1151(b) ified in and not to ..., section remote.’”) ‘others more approve the petition.” (quoting 1154(b) § 8 Resolution Trust Corp. v. (emphasis Nern- added). berg, 62, (3d 3 F.3d Cir.1993)). If the phrase, “at the time his application is filed” The District Court believed that the fact applied to more than the require- third that “the statute is written in the present ment, its placement natural would be be- tense is not particularly significant,” Rob- fore the second as well as the third re- inson, 2007 1412284, *4, WL at but we quirement. disagree. The use of present the tense in 1154(b) § 8 U.S.C. belies Robinson’s con- In addition to her attempt sup- find tention that an alien’s marital status at port the in the statutory language, Robinson time of filing the petition controls, argues also regulations that under the gov- 6. The Security Homeland Act of 2002 trans- Security 107-296, Act of Pub.L. No. the authority ferred grant visas from the 402(4), § (codified 116 Stal. at 6 Attorney General to Secretary the of the De- 202(4)). § partment of Homeland Security. Homeland least at for the United of citizen eligi- her petitions processing erning the the citizen’s the time at years at determined is to be
bility a visa for from separated legally not that and was notes, example, filing. She time the citizen’s the time at that citizen 204.1(a)(1) provides § C.F.R. considered, for be a shall the alien Form “file” must spouse citizen subsection, remain C.F.R. of this purposes relative qualifying the date re- after relative evidence 103.2(b)(12) that immediate provides spouse only if the eligibili- but establish citizen’s request must to a sponse section However, these under a filing.” files at “time ty title 1154(a)(1)CA)(ii) procedures of this up merely set regulations only until a relative. date petitions after such a by which 204.2(a)(1). They 204.1(a)(1), remarries. §§ date C.F.R. grant must agency suggest not that do 1151(b)(2)(A)®. by surviving spouse application rela- immediate status the marital The first considering only Likewise, the from divorced cannot was filed. definition tive time pro- that points first sentence which Robinson sentence. regulation second deny the immediate agency must definition general that a vides provides evidence relationships additional familial if it based receives relatives sentence, surviving spouse the same that shows citizen. filing, adding 8 C.F.R. qualified time is parent eligible eligibili- immediate 103.2(b)(12),merely shows deemed parent necessary is at least filing child time if his or her at the ty sen- petition; grant of The second old. for the twenty-one condition at that eligibility definition of not establish qualifies tence dies the wid- if the including sufficient time such, reg- *7 died As who spouse adjudication. a citizen of widower before ow or argu- support spouse not do had been long as ulations as s/he years two at least citizen for ment. United death. spouse’s the citizen the time eligibility hold that we Accordingly, had been who surviving spouses those For depends visa relative no whom but for years for two married USCIS time status alien’s upon had status for immediate not when petition, adjudicates provides also filed, section yet been dis- This becomes filed. by autho- gap remedy that opportunity a citizen when situation positive self-petition surviving spouse rizing the spouse the citizen before spouse dies the citizen death of years two years. two were married alien spouse. statutory con- issue underlying interpretation repeat, To language complicated. not struction the two- Significantly, (b)(2)(A)(i)provides: straightforward. section both applies marriage requirement year means relatives” “immediate [T]he those surviving spouses, groups of a children, and parents spouses, peti- had filed spouse citizen that, whom the States, except the United for whom those his death and tion before shall such citizens parents, in the case of peti- not filed spouse had the citizen case In the age. years of at least 21 tion. alien who The immediate provision rin v. States, 37, 42, contains one exception to the rule that the S.Ct. 62 L.Ed.2d (1979). death of the terminates im INA does not provide a helpful definition mediate relative status if the death occurs of the term “spouse” in its definitional before the petition granted, i.e., the section. 8 U.S.C. 1101. Instead, it neg- exception covering the situation of a couple atively defines by stating who is who had been married for two at the not spouse: “The term [sic] ‘spouse’, time of the citizen-spouse’s death.7 As we “wife’,or ‘husband’ do not include spouse, stated in United States McQuilkin, 78 wife, or husband reason of any mar- (3d F.3d 105 Cir.1996), “It is a canon of riage ceremony where the contracting par- statutory construction that the inclusion of ties thereto are not physically present certain provisions implies the exclusions of the presence other, each unless the mar- others. The doctrine of inclusio unius est riage shall have been consummated.” 8 exclusio alterius ‘informs a court to ex 1101(a)(35). This cannot be con- clude from operation those items not in sidered a “definition” in any meaningful cluded in a list of elements that are given way because it repeats the terms it seeks effect expressly by the statutory lan and, define as Robinson herself notes, ” guage.’ Id. at (quoting TMI, In re 67 “does preclude common understand- (3d F.3d Cir.1995)). As a re ings of the term.” Appellee’s Br. at 7. sult, we conclude that a spouse ceases to Significantly, the INA’s definitional sec be an immediate relative when the citizen tion does provide statute-specific defini spouse dies unless the couple had been tions of other commonly-used terms such married at least at the time of “child,” which it defines to mean “an death. effect, the second sentence person unmarried under twenty-one years qualifies which spouses of deceased citi age” who satisfies specific other require zens are immediate relatives, just as the ments. 8 §§ 1101(b)(1), 1101(c)(1). last clause of the first qualifies In addition, the INA includes which parents of citizens are immediate “parent” that expressly includes a “de relatives. parent.” ceased 1101(c)(2). Our reading the immediate rela Congress’ choice to include specific defini tive provision comports with the ordinary tions of these common family words—child meaning of the term “spouse.” “A funda parent not to include *8 —but such a defi mental canon of statutory construction is nition of spouse strongly suggests that the that, unless otherwise defined, words will ordinary meaning spouse of at the time of be interpreted as taking their ordinary, the enactment of the immediate relative contemporary, common meaning ... at provision should control. Perrin, See time Congress enacted the statute.” Per- 42, 100 S.Ct. 311. The exceptions other to the rule that ow of a member of U.S. armed forces immediate relative status terminates in killed combat "shall be considered ... death of the spouse citizen are in the cases of remain an immediate relative after the date of spouses abused or children of U.S. citizens the citizen's death” she self-petitions if and widows of members of the U.S. armed and does not remarry. National forces killed in combat. self-petition A by an Defense Authorization Act for Fiscal Year spouse abused or child “shall not [be] ad- 2004, 108-136, Pub.L. 1703, No. 117 Stat. versely affect[ed]” of death the citizen- 1392, (2003). There is no two-year mar- abuser after the filing of a self-petition. 8 riage requirement in these situations. § 1154(a)(l)(A)(vi). Similarly, a wid- dis- separately “surviving spouse” defines provi- immediate original The hypothesis. Robinson’s proves and in enacted INA was of sion “ and “spouse” part: Moreover, ‘[IJmmediate that conclude pertinent
stated children, identical have “surviving mean the spouse” shall ... relatives’ contrary to our is illogical of and is meaning a citizen of parents and spouses of death effect legal understanding case Provided, That States: effect legal standard The marriage. at least on must be such parents, of it terminates marriage is that of to Amend Act age.” of twenty-one Mar- 52 Am.Jur.2d See union. legal Act, Nationality and Immigration ... is ter- (2000) (“[MJarriage riage § 911, 911 89-236, § 92 Stat. No. Pub.L. presumption or only by death minable at 8 (codified as amended (1965) divorce, decree judicial aby original). 1151(b)(2)(A)(i)) (emphasis annulment.”). domes- dissolution, or spouse ordinary meaning common, (the Jersey state law of New tic relations Law Dictio- 1965, according Black’s resid- her husband Robinson in which period, “[o]ne’s covering that nary state in of his death at the time ed Dictio- Law Black’s or husband.” wife sug- brought) also action which ed.1951).8 entry also (4th That nary 1574 upon the terminates marriage gests deci- Supreme Court Oregon a 1939 cites Ann. Stat. N.J. See spouse. one death of defined separately the Court in which sion 2002) (former hus- (West 9:17-43(a)(l) one, “the to mean spouse” “surviving of child father to be presumed is band Ro- the other.” outlives who pair, married marriage days after within “300 born Comm’n, Or. Acc. Indus. v. State sell or di- death, annulment terminated (1939). 726, 729 173, 95 P.2d (West 2C:24-la(l) vorce”); Ann. N.J. Stat. defense dead is 2005) (belief spouse INA 1990, Congress amended bigamy). the immediate the second add time, rel- which, first very language for the provision, a liv- between distinguishes provision the situation to cover ative extends the when surviving spouse in- ing spouse the citizen alien who was “an requirement. states marriage two-year cludes least for at of the United a citizen No. 101— Pub.L. Act of Immigration ... citizen’s death the time years at (1990). By that 4978, 4981 649, 104 Stat. remain im- considered shall Dictionary had added time, Law Black’s relative.” mediate spouse: to its definition following added). “ Be- (b)(2)(A)(i) (emphasis § 1151 a married spouse’ one ‘surviving be- died Robinson’s cause Law Black’s other.” pair who outlive years, for two married couple was fore the ed.1990). reject (6th We Dictionary an “immedi- qualify Robinson the inclusion argument *9 INA. under ate relative” Black’s Law the 1990 in spouse” “surviving argues colleague dissenting Our “spouse” proves entry Dictionary pe- her removed because will be though Robinson a even legally remains she bu- government’s “is stuck tition fact is deceased. husband her at 367. typescript op. reaucracy.” Dissent entry Dictionary’s Black’s Law 1968). (4th The 1968 Dictionary, ed. rev. edition, Law or revised no new 8. After identical spouse is definition edition’s the revised until was issued Black’s edition Id. above. quoted version the 1951 Black's in 1968. published edition 4th That misstates the facts and the law. We er considerations become relevant once the agree with the agency that Robinson’s alien spouse builds increased ties claim rejected, must be not because any United States. A marriage that lasted two government bureaucracy but because she years be presumed can to have been bona does not meet one of Congress’ re- fide, and in period the surviving quirements for status, immediate relative spouse would have developed settled ex- i.e., that she had been married to her pectations.9 Congress could reasonably citizen spouse for at least years. two Con- determine that an alien with a pending I- gress imposed requirement of par- who had been married to a ticular length of petitioner/claimant’s pri- U.S. citizen for less than two at the or marriage variety in a of situations. For time of the spouse’s death is not example, of the ways one in which sur- entitled to LPR status. Congress created viving spouse can qualify for veterans’ ben- a balance goal between the of family unity efits showing that the surviving legitimate and the expectations of an alien- spouse was married to the veteran for one spouse whose connections to the United year or more. See 38 1304(2); likely were to have become solidi- see 1447(7)(A) (Armed also 10 U.S.C. fied during the two-year period. marriage Act); Forces (So- §§ 416(b), (c) Act). cial Security V. areWe aware that the result of our Conclusion
holding is that Robinson is ineligible for LPR status For as a forth, result of a reasons tragic set accident we will re- that neither she verse the nor her order of the District Court and have direct it grant could avoided anticipated. But our Government’s motion obligation is to dismiss. interpret the statute ac-
cording to its language. Our holding is NYGAARD, consistent with the Circuit purpose Judge, core dissenting. family-based immigration policy: the As a result of the government’s fatally promotion family unification for U.S. flawed interpretation §of 1151(b), Osserit- citizens and lawful permanent residents. ta Robinson will be removed from the See Act to Amend the Immigration and States, spite of her full compli- Act, Nationality 89-236, 1,§ Pub.L. INA, ance with the simply because the (codified Stat. at 911 as amended at 8 petition filed on her behalf her de- 1151(b)(2)(A)®); H.R.Rep. No. ceased husband is govern- stuck 89-745, (1965) (“Reunification of ment’s bureaucracy. government ar- emphasized families is as the foremost con- gues, and majority agrees, that both sideration the legislation].”) [of plain language of the statute and def- Admittedly, inclusion a surviving erence their implementation pro- this spouse as an immediate relative if s/he vision dictate this I disagree result. married for also not pro- First, three reasons. I believe plain mote unification of the marital but unit language leads a contrary result. Sec- Congress undoubtedly recognized ond, that oth- even were ambiguous, I regulation 9. A promulgated after the USCIS’s is automatically converted into a I- *10 that, decision in this provides case if two- the 360 petition. 8 widow/er C.F.R. year marriage requirement is satisfied 204.2(i)(l)(iv), amended, when 35,- as Fed.Reg. 71 dies, the the 35,749 1-130 immediate (2006). at 368 that fact mere The utory construction. inter the government’s to defer not would the read how to on is divided panel the Chev that Third, think I do not pretation. call to no reason is at issue De Resources U.S.A., Inc. v. Natural ron us out. to bail 2778, Chevron 837, 104 S.Ct. Council, U.S. 467
fense I will (1984) applies. matter, even I L.Ed.2d a Chevron were this Even order. in inverse these reasons inter- government’s to the discuss defer not would that, stated government The pretation. that when ruled Court the In Chevron interpreted it has historically, delegates implicitly or explicitly Congress to “spouse” 1151(b)(2)(A)®and the to agency devel- an executive to authority the from like Robinson aliens exclude fill the to practices and regulations op classifica- an immediate grant must de- law, the courts interstices argument me, government’s the To tion. held that “[t]he Court The to them. fer defend to use Chevron attempt to is ad- to agency an administrative power primar- statute interpretation errant pro- created congressionally a minister been made the same error ily because the formulation requires necessarily gram Moreover, even years. number any fill to of rules making and the policy consistency does claim of government’s the explicitly, Con- or left, implicitly gap I consider scrutiny. would withstand not Ruiz, 415 U.S. (Quoting Morton gress.” to obligation judicial my anit abdication (1974)). 1055, 39 L.Ed.2d 199, 94 S.Ct. statute, and deni- the apply and construe to define had failed Congress In Chevron to right-of-access of Robinson’s al detailed promulgated The EPA term. interpre- departmental to courts, defer to defin- standards national and regulations this. as as unfounded are that tations held Court at The issue. ing the term majority, refer and government, was “tech- The scheme regulatory because Dec. I. & N. Varela 13 “considered Matter agency to complex,” nical of its 1970), evidence (BIA primary as fash- and reasoned ain detailed the matter Yet, I this statute. to reconciling approach persistent involve[d] ion, the decision the Court analysis of persuaded defer courts must am conflicting policies,” that Varela Ninth Circuit agency. Appeals expertise technical deemed because invalidated 104 S.Ct. at Chevron, v. Robin Freeman extra-jurisdictional. awith defi- us Congress provided Here Cir.2006). (9th I sim son, F.3d 1031 no and had “immediate relative” nition carrying any regard Varela do not ply implicitly, explicitly delegate, reason weight. de- authority to executive any further reference Moreover, government’s definition. tweak to further partment regulation to a amendment 1938 INS are not at phrases issue words states This amendment point. ex- not has no relevant agency technical. be withheld a visa will issuance us. fully them define more pertise to “if it revoked may be approval suggest history to legislative no There is ... has petitioner ascertained controversy which Con- any existed there (1938). The Fed.Reg. died.” to resolve. agency referred gress government’s refers to amendment to draw inference reasonable I- approved authority to revoke delegate general intend Congress did a visa. grant of or withhold on this issue authority agency any topic deal of these actions use court to Neither for the it is a result all. As government is whether hand, which stat- standard, means time-honored our *11 authority to terminate a properly filed a United States citizen within past that is (aaa) still pending, years based whose spouse died and — only upon petitioner. of the Ad- past years. ditionally, regulation refers generically § U.S.C.A. 1154(a)(l)(A)(i)(II). In both petitioners rather “spouse.” than sections of statute, the word “spouse” government’s use of the 1938 amendment is used without any qualifying terms such as evidence of a consistent interpretation as “former” or “surviving.” 1151(b)(b)(2)(A)(i) §of specious. It is obvious to me that Congress used regard
With to the plain meaning of the “spouse” to refer to a continuing marital statute, I disagree with the majority’s defi- bond between the petitioner deceased “spouse.” nition of government ar- a surviving husband or wife. Therefore, gues majority contends that the the majority’s interpretation fails to meet terms “surviving spouse” or “former one the principal rules of statutory con- spouse” are distinct struction, from the common un- which give is to terms consistent derstanding of the “spouse.” word meaning. light this, I accept cannot majority attempts to position government’s bolster its narrow definition of by, among things, other emphasizing “spouse.” Con- As the plainly reads, statute gress’ use phrase “spouse” “was the spouse” an inclusive term that includes (b)(2)(A)(i). § Yet, aliens we such as need look no Robinson who survive the further language than the death of used their petitioning later husband or wife. same appreciate sentence to the inconsis- I am also unpersuaded by the majority’s tency that this restrictive definition cre- upon reliance present tense verbs that ates. appear in 1154(b), provision In the of an case alien who was the focuses the government’s “[in- spouse of a citizen United States vestigation; consultation; approval; [and]
for at least at the time of the to grant authorization preference status.” citizen’s death and was not legally sepa- added.) (Emphasis Although the majority rated from the citizen at the time of the masterfully reviews the immediate relative (and citizen’s the alien each child petitioning process, opinion its exposes a alien) considered, shall be fundamental confusion between an 1-130 purposes subsection, of this to remain an petition, which is filed request an alien’s immediate relative after the date as an classification relative, citizen’s death but only if the spouse files petition, which is filed to request a petition 154(a)(l)(A)(ii) under section 1 grant of an alien’s change of status. of this title within after By such extracting a 1154(b), sentence from date only until the date opinion the majority succeeds in rais- added). (Emphasis remarries. ing question of whether the petitioning spouse must be alive 1151(b)(2)(A)(i). during investiga- 8 U.S.C. Similarly, in tion of the 1-485 petition discussing for change which foreign may nationals status, a question that self-petition is not at here. after the issue of a husband I 1154(b) view the of § discussion or wife who irrele- was a legal citizen or perma- vant. This appeal only upon nent focuses resident of the Rob- States, inson’s classification as an statute immediate rela- states: tive, not her change of status. For purposes of (I), subclause an alien described this subclause is an alien Regarding majority’s structural in- (CC) who was a bona fide spouse of terpretation of 8 1(b)(2)(A)(i), U.S.C. 115 I *12 370 inconsistent This is dies. tioning spouse sentence the second that agree not
do result, review- after As a the the statute. To first sentence. the modifies clearly of the structure language and the only reasonable both ing the that I submit contrary, me clear to (b)(2)(A)(i) it is sentences two section these understand way to as read are to be Dis- The two sentences that the independent. read as they are if alien for an first the distinct tracks describing that correctly found trict Court relative immediate any qualify- to obtain without spouse, lists sentence spouse, living relationship by petition of terms, type one as classification: ing an immediate given self-petitioning. to be or an alien enables sen- second The classification. relative government the granting oppose I also peti- the in which to scenarios refers tence authority under scope of expanded it concludes died, but tioning spouse argued government § 1155.11 in this circum- an alien by saying to power it already gives § 1155 since an immediate as classified can be stance petition an 1-130 of acceptance the revoke spouse files only if the “but implic- it petitioner, the of the death upon 1154(a)(1)(A)(ii) of section under to terminate power has the already itly such date after title this of the death upon petitions 1-130 pending remarries.” the the date only until view, interpre- this my petitioner. the termi- not mandate statute does flawed. seriously § of 1155 tation the death upon petitions of nation make regulations certainly con- even would petitioner, government theAs 1-130 approved § or pending that a of cede, language plain clear a self- filing of authority for the ter- the need to eliminates governmental provide only person Therefore, au- Its petition.10 petitions. pending minate this second approved pe- revoking whom thority is limited (A)(i) who (b)(2) is an alien can refer examining Moreover, titions. or pending of a beneficiary is not it is implement regulations that of of at the time approved inter- government’s me that clear (A)(i) (b)(2) petitioner. § 1151 § 1155 pretation defies arbitrary outcome in an results two-year marital me, this applying To statutory in- equity. reason and both al- who have even those requirement government by the argued terpretation presumes implicitly an 1-130 ready filed will not majority approved are those who marriage of invalid be properly summarily terminate peti- before the than two less wed aas had been filed adjudicated as if it shall be previously currently valid visa 10. "A Amerasian, 1-360, Wid- beneficiary Petition for as Form classify the approved para- Immigrant ow(er) of a United under Special as the or upon the regarded, C.F.R. (b) be must this graph section.” having ap- petitioner, been 204.2(i)(l)(iv). 1-360, Amera- Petition for proved as a Form sian, Immigrant Widow(er) Special may, Security Secretary of Homeland "The (b) sec- paragraph this under classification good time, be deems to what any he if, tion, petitioner’s date of the on the cause, approval revoke and sufficient requirements beneficiary satisfies the section approved him under any petition peti- (b)(1) If the this section. paragraph shall revocation title. Such this approved, petition is dies before tioner any such approval of date effective as of death, the but, petitioner’s the date U.S.C.A. 1155. petition.” 8 para- requirements beneficiary satisfies section, (b)(1) then graph *13 petition, it will also a interpretation filed 1-130 create alien. This creates an arbi- into regulatory trary, crevice which Robinson inequitable irrational and in outcome dropped. will be approvable petitions which will be treated differently depending solely upon when the government regulations, Under the grants government approval. Nor do has discretion to both withhold automatic Congress I believe that intended to sanc- approved petition, revocation of disregard tion the department that the denying and to refrain from a visa in cases persons shown towards like Osseritta Rob- justify humanitarian where concerns such inson. She has committed no crime. She 205.1(a)(3)(i)(c)(2).12 relief. 8 C.F.R. is innocent of any misbehavior. She is majority’s in problem interpre- created 1151(b) grieving parent widow and the lone of the tation and 1155 is that it Robinsons’ U.S. citizen child. This same opportunity denies for discre- Robinson’s relief, department delay whose tionary though or inaction even she would have fore- closes Osseritta qualified delays but for the of the Robinson’s chance of be- American, government approving coming I- diligently Robinson’s now so practical majority’s 130. The effect of the pursues the avenues expulsion. of her It only opinion is not contends that the ambiguous statute is and govern- will be terminated because of the urges upon then us the least reasonable dilatory ment’s action—or inaction—on her view, and My least humane alternative. petition, husband’s but also that will she be wholly in margin, that it is is untoward country, removed from the since no other of this nation of immigrants, we who have relief is available to her under the INA.13 passed through the portals citizenship, stating District Court was correct in coldly impassively slam the door fortuity spouse’s that “the of the citizen aspirants behind us innocent who untimely arbitrary too and ran- dream follow. dom a circumstance to serve as a basis for Because I plain language read the denying petition.” Robinson v. Cher- 1151(b)(2)(A)(i) enabling structure of (D.N.J.). toff, 1412284,*4 2007 WL Robinson to be classified as an immediate Finally, it is to me inconceivable relative, I dissent. Congress intended alien’s status to be contingent upon the amount time that department process
the executive takes to timely proper petition factor —a
completely outside of the control self-petition 213A(£)(5)(B) approval "The of a described in section of the Act
12. made under section 204 of the Act and willing support and able to file an affidavit of chapter part accordance with 204 of this part spon- under 8 as a CFR 213a substitute approval: Upon date revoked as of the (a)(3)(i)(c)(2). sor.” 8 C.F.R. 205.1 petitioner, the death of the unless: U.S. Citi- (USCIS) zenship Immigration Services I am aware that Robinson can seek from determines, as a matter of discretion exer- Congress private prevent bill to her remov- light cised for humanitarian reasons in al, extraordinary but this relief is outside of particular appeal, inappro- facts of that it is scope interpreting the INA. Our task priate approval petition. to revoke the statutes is to remain within four corners may USCIS make this determination if regulations of the statute and to ascertain principal beneficiary of the visa particular interpretation yields whether a un- approval asks for reinstatement of arbitrary reasonable or results. person and establishes that a related principal beneficiary ways in one of the