                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-2-2009

Robinson v. Secretary Homeland
Precedential or Non-Precedential: Precedential

Docket No. 07-2977




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                                              PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 07-2977


                  OSSERRITTA ROBINSON

                               v.

   JANET NAPOLITANO,* Secretary of the Department of
   Homeland Security; MICHAEL AYTES,* Acting Deputy
     Director, U.S. Citizenship and Immigration Services,
                                           Appellants

            *Amended pursuant to F.R.A.P. 43(c)(2)



        On Appeal from the United States District Court
                 for the District of New Jersey
                    (D.C. No. 06-cv-05702)
         District Judge: Honorable Stanley R. Chesler


                  Argued September 9, 2008

      Before: SLOVITER, FUENTES, and NYGAARD,
                     Circuit Judges.

                    Filed: February 2, 2009
                             ____

Alison R. Drucker (Argued)
United States Department of Justice
Office of Immigration Litigation
Washington, D.C. 20044

Alex Kriegsman
Office of United States Attorney
Newark, N.J. 07102

      Attorneys for Appellants

Jeffrey A. Feinbloom (Argued)
Feinbloom Bertisch
New York, N.Y. 10007

      Attorney for Appellee

                              _____

                  OPINION OF THE COURT




SLOVITER, Circuit Judge.

       The issue before us is whether an alien married to a
United States citizen remains an “immediate relative,” within the
meaning of the Immigration and Nationality Act (“INA”), if the
couple had been married for less than two years when her citizen
spouse died. It is an issue this court has never addressed.

                                 I.

               Factual and Procedural History

       Osserritta Robinson (“Robinson”), a citizen and national
of Jamaica, entered the United States on January 14, 2002, as an
non-immigrant visitor on a B-2 visa and married Louis Robinson
(“Mr. Robinson”), a United States citizen, in February 2003. In
March 2003, Mr. Robinson filed a Petition for Alien Relative (“I-
130 petition”) for an immigrant visa on behalf of his wife as an
“immediate relative.” At the same time, Robinson filed an I-485
application to adjust her immigration status to that of a lawful
permanent resident (“LPR”).

       Mr. Robinson died on October 15, 2003, in the Staten
Island Ferry accident. On October 15, 2005, the U.S. Citizenship

                                 2
and Immigration Services (“USCIS”) informed Robinson that her
I-130 petition had been automatically terminated upon the death
of her husband. According to USCIS, Robinson was no longer
an “immediate relative” within the meaning of the INA because
her husband’s death occurred before the couple had been married
for two years.

       Robinson filed a petition for a writ of mandamus and a
complaint for declaratory and injunctive relief in the United
States District Court for the District of New Jersey against
Michael Chertoff, the Secretary of the Department of Homeland
Security, and Emilio Gonzalez, Director, U.S. Citizenship and
Immigration Services,1 requesting that the court order USCIS to
reopen her I-130 petition and I-485 application and treat her as
an “immediate relative” of a United States citizen. The
complaint also asked the court “to enjoin USCIS from using the
death of Mr. Robinson as a discretionary factor in adjudicating
Mrs. Robinson’s I-485 application.” Robinson v. Chertoff, No.
06-5702, 2007 WL 1412284, at *1 (D.N.J. May 14, 2007). The
District Court denied the Government’s motion to dismiss and
granted summary judgment in favor of Robinson. Thereupon,
the District Court set aside USCIS’ determination that Robinson
was not a spouse, ordered USCIS to process her I-130 petition
and I-485 application, and granted a declaratory judgment that
Robinson “is an immediate relative under 8 U.S.C. §
1151(b)(2)(A)(i) and for the purposes of adjudicating an I-130
petition.” App. at 14.2 The Government appeals.

                                II.

             Jurisdiction and Standard of Review


       1
       For purposes of convenience, we will refer to them jointly
as “Government.”
       2
         The District Court also denied Robinson’s “request for
injunctive relief limiting the discretion of the USCIS in
adjudicating her I-485 application . . . [because the] question has
not been briefed and is not properly before the Court.” Robinson,
2007 WL 1412284, at *5. Robinson did not appeal that order.

                                3
       The District Court had jurisdiction under 28 U.S.C. §
1331 and Section 704 of the APA, 5 U.S.C. § 704, to review the
meaning of the term “immediate relative” as it appears in 8
U.S.C. § 1151(b)(2)(A)(i). Because this is a “purely legal
question and does not implicate agency discretion,” the INA’s
jurisdictional bar, 8 U.S.C. § 1252(a)(2)(B)(ii), which precludes
judicial review of most discretionary immigration decisions, is
not applicable in this case. Pinho v. Gonzales, 432 F.3d 193, 204
(3d Cir. 2005).

       We have jurisdiction under 28 U.S.C. § 1291. “We
exercise plenary review of the District Court’s statutory
interpretation, but afford deference to a reasonable interpretation
adopted by the agency.” Pinho, 432 F.3d at 204.

                                III.

                        Statutory Scheme

       A United States citizen who seeks to gain lawful
permanent resident status for an eligible family member must
begin the process by filing an I-130 petition with USCIS on
behalf of an alien who is an “immediate relative.” 8 U.S.C. §§
1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1).
Concurrently, or thereafter, the alien spouse 3 for whom the I-130
petition was filed (the “immediate relative”) must file an I-485
application for adjustment of status. 8 U.S.C. § 1255(a); 8
C.F.R. § 245.1(a). “Immediate relatives” are defined in the INA
as:

       [T]he children, spouses, and parents of a citizen of the
       United States, except that, in the case of parents, such
       citizens shall be at least 21 years of age. In the case of an
       alien who was the spouse of a citizen of the United States



       3
         The statute is gender neutral. Because in this case, the
citizen spouse was a male, we refer to the gender as applicable to
the facts.

                                 4
       for at least 2 years at the time of the citizen’s death and
       was not legally separated from the citizen at the time of
       the citizen’s death, the alien . . . shall be considered, for
       purposes of this subsection, to remain an immediate
       relative after the date of the citizen’s death but only if the
       spouse files a petition under section 1154(a)(1)(A)(ii) of
       this title [an I-360 petition] within 2 years after such date
       and only until the date the spouse remarries.

8 U.S.C. § 1151(b)(2)(A)(i) (emphasis added).4

       USCIS “shall” approve the I-130 petition filed by the
citizen spouse only if it determines, after an investigation, “that
the facts stated in the petition are true and that the alien in behalf
of whom the petition is made is an immediate relative.” 8 U.S.C.
§ 1154(b).

        Approval of the I-130 petition renders the immediate
relative eligible for adjustment of status under 8 U.S.C. §
1255(a), which provides, in pertinent part:

       The status of an alien . . . may be adjusted by the Attorney
       General, in his discretion and under such regulations as he
       may prescribe, to that of an alien lawfully admitted for
       permanent residence if (1) the alien makes an application
       for such adjustment, (2) the alien is eligible to receive an
       immigrant visa and is admissible to the United States for
       permanent residence, and (3) an immigrant visa is
       immediately available to him at the time his application is
       filed.

8 U.S.C. § 1255(a). Because immediate relative visas are not
subject to numerical visa limitations, 8 U.S.C. §



       4
         An I-360 petition allows a widow/er of a U.S. citizen to
self-petition if, inter alia, she or he was married for at least two
years and the petition is filed within two years of the citizen
spouse’s death. See 8 U.S.C. § 1154(a)(1)(A)(ii); 8 C.F.R. §§
204.2(b), (i)(1)(iv).

                                  5
1151(b)(2)(A)(i), once the I-130 petition is approved the
“immigrant visa is immediately available” to the alien spouse at
the time her I-485 application is filed, 8 U.S.C. § 1255(a). Thus,
eligibility to adjust status to that of an LPR is contingent upon
approval of the I-130 petition.

                                 IV.

                             Discussion

        Robinson argues that she remained an “immediate
relative” within the meaning of 8 U.S.C. § 1151(b)(2)(A)(i) after
the death of her husband. The Government counters that
Robinson is no longer a “spouse” eligible to be considered an
“immediate relative” because she had not been married to her
citizen spouse for two years at the time of his death. The
Government reads the second sentence of section
1151(b)(2)(A)(i) as qualifying the term “spouse” in the first
sentence of the section. In other words, the Government argues
that a spouse remains an “immediate relative” within the
meaning of the INA after the death of his or her citizen spouse
only if the couple had been married for two years at the time of
the citizen’s death.

       Robinson argues in response that because the first
sentence of the provision does not in any way qualify the term
“spouse,” she remains a spouse after her husband’s death. She
interprets the second sentence (which contains the two-year
marriage requirement) as granting a separate right for widows to
self-petition for visas rather than as a limitation on the definition
of spouse.

       More than thirty-five years ago the Bureau of Immigration
Appeals (“BIA”) considered the effect of a citizen spouse’s death
on a pending petition for an immigrant visa on behalf of the alien
spouse. In In re Varela, 13 I. & N. Dec. 453, 453-54 (B.I.A.
1970), the BIA held that an alien spouse was no longer a
“spouse” because her citizen spouse died prior to a determination
of her I-130 petition. The Government argues that we should
defer to the BIA precedent.

                                  6
       The District Court, without even citing In re Varela,
agreed with Robinson’s interpretation of the immediate relative
provision, relying on the reasoning of the Court of Appeals for
the Ninth Circuit in Freeman v. Gonzales, 444 F.3d 1031 (9th
Cir. 2006). The Ninth Circuit refused to accord deference to
Varela because it stated that the BIA’s decision “lack[ed] . . .
statutory analysis, . . . [and] is further undercut by the BIA’s later
finding [in In re Sano, 19 I. & N. Dec. 299 (B.I.A. 1985)] that it
was ‘extra-jurisdictional.’”5 Freeman, 444 F.3d at 1038 (citation
added).

        Instead, the Ninth Circuit held that the first and second
sentences of the statutory provision “stand[] independent” of
each other and provide for “two different processes, such that
one or the other applies – either the citizen spouse petitions or, if
he dies without doing so, the alien widow may do so.” Freeman,
444 F.3d at 1041 n.14, 1042. It reasoned that because the only
limitation on the definition of “immediate relative” in the first
sentence relates to alien parents (the grant of immediate relative
status is limited to those whose citizen child is at least 21 years
old) and “[t]here is no comparable qualifier to be a ‘spouse,’” the
term “immediate relative” means the spouse of a U.S. citizen,
“without exception.” Id. at 1039. Thus, according to that court,
“Mrs. Freeman qualified as the spouse of a U.S. citizen when she
and her husband petitioned for adjustment of status, and absent a
clear statutory provision voiding her spousal status upon her
husband’s untimely death, she remains a surviving spouse.” Id.
at 1039-40 (emphasis in original).

        The Freeman court rejected the Government’s argument
that the second sentence implicitly qualifies the general
definition of spouse by imposing a two-year marriage



       5
         In Sano, the BIA held that it had no jurisdiction to address
an appeal by the beneficiary from the denial of a visa petition; the
BIA held that it had authority to hear appeals by only a visa
petitioner (i.e., the citizen spouse who filed a visa petition on
behalf of his alien spouse, but died before its approval). 19 I. & N.
Dec. at 301.

                                  7
requirement. Instead, it viewed the second sentence as applying
“to those aliens whose citizen spouses did not initiate an
adjustment of status proceeding before they died, granting such
surviving spouses a beneficial right to file an immediate relative
petition even without a living citizen spouse to vouch for the fact
of the marriage.” Id. at 1041.

       Relying on Freeman, the District Court held that Robinson
remained an immediate relative after the death of her spouse and
noted that, “[t]he Court cannot imagine that Congress intended
the time of death combined with the pace of adjudication, rather
than the petitioner’s conscious decision to promptly file an I-130
petition, to be the proper basis for determining whether the alien
qualifies as an immediate relative.” Robinson, 2007 WL
1412284, at *5.

        Robinson argues that the death of her husband did not
affect her status as an immediate relative which, she contends,
“vested” at the time her husband filed the I-130 petition. The
Government contends that “immediate relative status” is not
determined at the time the I-130 petition was filed but at the time
the petition is adjudicated. It supports that argument by noting
that the present tense is used in 8 U.S.C. § 1154(b), the statutory
provision governing the grant of immigrant visas. This provision
states that the Attorney General (now the Secretary of Homeland
Security) 6 “shall, if he determines that the facts stated in the
petition are true and that the alien in behalf of whom the petition
is made is an immediate relative specified in section 1151(b) . . .
, approve the petition.” 8 U.S.C. § 1154(b) (emphasis added).

       The District Court believed that the fact that “the statute is
written in the present tense is not particularly significant,”
Robinson, 2007 WL 1412284, at *4, but we disagree. The use of



       6
         The Homeland Security Act of 2002 transferred the
authority to grant visas from the Attorney General to the Secretary
of the Department of Homeland Security. Homeland Security Act
of 2002, Pub. L. No. 107-296, § 402(4), 116 Stat. 2135, 2178
(codified at 6 U.S.C. § 202(4)).

                                  8
the present tense in 8 U.S.C. § 1154(b) belies Robinson’s
contention that an alien’s marital status at the time of filing the I-
130 petition controls, and makes plain that the facts in the
petition - including the alien’s spousal status - must be true at the
time USCIS decides the petition.

       The present tense is also used in the section governing
adjustment of status, which provides that the Attorney General
may adjust the status of an alien if:

       (1) the alien makes an application for such adjustment, (2)
       the alien is eligible to receive an immigrant visa and is
       admissible to the United States for permanent residence,
       and (3) an immigrant visa is immediately available to him
       at the time his application is filed.

8 U.S.C. § 1255(a) (emphasis added).

        Robinson relies on the last clause of the subsection (“at
the time his application is filed”) to argue that eligibility for
immediate relative status at the time of filing the application is
controlling. Robinson’s statutory construction of the provision is
not persuasive. Instead, the natural reading of this provision is
that the final clause applies to only the third requirement. See
United States v. Hodge, 321 F.3d 429, 436 (3d Cir. 2003) (“The
doctrine of the last antecedent teaches that ‘qualifying words,
phrases, and clauses are to be applied to the words or phrases
immediately preceding’ and not to ‘others more remote.’”)
(quoting Resolution Trust Corp. v. Nernberg, 3 F.3d 62, 65 (3d
Cir. 1993)). If the phrase, “at the time his application is filed”
applied to more than the third requirement, its natural placement
would be before the second as well as the third requirement.

        In addition to her attempt to find support in the statutory
language, Robinson also argues that under the regulations
governing the processing of petitions her eligibility for a visa is
to be determined at the time of filing. She notes, for example,
that 8 C.F.R. § 204.1(a)(1) provides that the citizen spouse must
“file” Form I-130 for a qualifying relative and 8 C.F.R. §
103.2(b)(12) provides that evidence in response to a request must

                                  9
establish eligibility at “time of filing.” However, these
regulations merely set up the procedures by which a citizen
petitions for a relative. 8 C.F.R. §§ 204.1(a)(1), 204.2(a)(1).
They do not suggest that the agency must grant the application of
a surviving spouse by considering only the marital status at the
time the petition was filed. Likewise, the regulation to which
Robinson points that provides that the agency must deny the
petition if it receives additional evidence that shows that the
surviving spouse was not eligible at the time of filing, 8 C.F.R. §
103.2(b)(12), merely shows that eligibility at the time of filing is
a necessary condition for the grant of a petition; it does not
establish that eligibility at that time is sufficient if the citizen
spouse dies before the adjudication. As such, the regulations do
not support Robinson’s argument.

        Accordingly, we hold that eligibility for an immediate
relative visa depends upon the alien’s status at the time USCIS
adjudicates the I-130 petition, not when that petition was filed.
This becomes dispositive in the situation when a citizen spouse
dies before the citizen spouse and the alien were married for two
years.

      The underlying issue of statutory construction is not
complicated. To repeat, section 1151(b)(2)(A)(i) provides:

       [T]he term “immediate relatives” means the children,
       spouses, and parents of a citizen of the United States,
       except that, in the case of parents, such citizens shall be at
       least 21 years of age. In the case of an alien who was the
       spouse of a citizen of the United States for at least 2 years
       at the time of the citizen’s death and was not legally
       separated from the citizen at the time of the citizen’s
       death, the alien . . . shall be considered, for purposes of
       this subsection, to remain an immediate relative after the
       date of the citizen’s death but only if the spouse files a
       petition under section 1154(a)(1)(A)(ii) of this title within
       2 years after such date and only until the date the spouse
       remarries.

8 U.S.C.§ 1151(b)(2)(A)(i).

                                 10
        The first sentence of the immediate relative definition
cannot be divorced from the second sentence. The first sentence
provides a general definition of immediate relatives based on
familial relationships to a U.S. citizen. In the same sentence, the
definition of parent is qualified by adding that a parent is deemed
an immediate relative only if his or her child is at least twenty-
one years old. The second sentence qualifies the definition of
spouse by including as an immediate relative the widow or
widower of a citizen spouse who died as long as s/he had been
the spouse of the United States citizen for at least two years at
the time of the citizen spouse’s death. For those surviving
spouses who had been married for two years but for whom no
petition for immediate relative status had yet been filed, the
section also provides an opportunity to remedy that gap by
authorizing the surviving spouse to self-petition within two years
of the death of the citizen spouse.

       The language and this interpretation is straightforward.
Significantly, the two-year marriage requirement applies to both
groups of surviving spouses, those for whom the citizen spouse
had filed the petition before his death and those for whom the
citizen spouse had not filed the petition.

        The immediate relative provision contains one exception
to the rule that the death of the citizen spouse terminates
immediate relative status if the death occurs before the petition is
granted, i.e., the exception covering the situation of a couple who
had been married for two years at the time of the citizen-spouse’s
death.7 As we stated in United States v. McQuilkin, 78 F.3d 105



       7
          The only other exceptions to the rule that immediate
relative status terminates upon the death of the citizen spouse are
in the cases of abused spouses or children of U.S. citizens and
widows of members of the U.S. armed forces killed in combat. A
self-petition by an abused spouse or child “shall not [be] adversely
affect[ed]” by the death of the citizen-abuser after the filing of a
self-petition. 8 U.S.C. § 1154(a)(1)(A)(vi). Similarly, a widow of
a member of the U.S. armed forces killed in combat “shall be
considered . . . to remain an immediate relative after the date of the

                                 11
(3d Cir. 1996), “It is a canon of statutory construction that the
inclusion of certain provisions implies the exclusions of others.
The doctrine of inclusio unius est exclusio alterius ‘informs a
court to exclude from operation those items not included in a list
of elements that are given effect expressly by the statutory
language.’” Id. at 108 (quoting In re TMI, 67 F.3d 1119, 1123
(3d Cir. 1995)). As a result, we conclude that a spouse ceases to
be an immediate relative when the citizen spouse dies unless the
couple had been married at least two years at the time of death.
In effect, the second sentence qualifies which spouses of
deceased citizens are immediate relatives, just as the last clause
of the first sentence qualifies which parents of citizens are
immediate relatives.

        Our reading of the immediate relative provision comports
with the ordinary meaning of the term “spouse.” “A fundamental
canon of statutory construction is that, unless otherwise defined,
words will be interpreted as taking their ordinary, contemporary,
common meaning . . . at the time Congress enacted the statute.”
Perrin v. United States, 444 U.S. 37, 42 (1979). The INA does
not provide a helpful definition of the term “spouse” in its
definitional section. 8 U.S.C. § 1101. Instead, it negatively
defines spouse by stating who is not a spouse: “The term [sic]
‘spouse’, ‘wife’, or ‘husband’ do not include a spouse, wife, or
husband by reason of any marriage ceremony where the
contracting parties thereto are not physically present in the
presence of each other, unless the marriage shall have been
consummated.” 8 U.S.C. § 1101(a)(35). This cannot be
considered a “definition” in any meaningful way because it
repeats the terms it seeks to define and, as Robinson herself
notes, “does not preclude common understandings of the term.”
Appellee’s Br. at 7.




citizen’s death” if she self-petitions within two years and does not
remarry. National Defense Authorization Act for Fiscal Year 2004,
Pub. L. No. 108-136, § 1703, 117 Stat. 1392, 1693 (2003). There
is no two-year marriage requirement in these situations.


                                12
       Significantly, the INA’s definitional section does provide
statute-specific definitions of other commonly-used terms such
as “child,” which it defines to mean “an unmarried person under
twenty-one years of age” who satisfies other specific
requirements. 8 U.S.C. §§ 1101(b)(1), 1101(c)(1). In addition,
the INA includes a definition of “parent” that expressly includes
a “deceased parent.” 8 U.S.C. § 1101(c)(2). Congress’ choice to
include specific definitions of these common family words -
child and parent - but not to include such a definition of spouse
strongly suggests that the ordinary meaning of spouse at the time
of the enactment of the immediate relative provision should
control. See Perrin, 444 U.S. at 42.

        The original immediate relative provision of the INA was
enacted in 1965 and stated in pertinent part: “‘[I]mmediate
relatives’ . . . shall mean the children, spouses and parents of a
citizen of the United States: Provided, That in the case of
parents, such citizen must be at least twenty-one years of age.”
Act to Amend the Immigration and Nationality Act, Pub. L. No.
89-236, § 1, 92 Stat. 911, 911 (1965) (codified as amended at 8
U.S.C. § 1151(b)(2)(A)(i)) (emphasis in original). The common,
ordinary meaning of spouse in 1965, according to Black’s Law
Dictionary covering that period, was “[o]ne’s wife or husband.”
Black’s Law Dictionary 1574 (4th ed. 1951).8 That entry also
cites a 1939 Oregon Supreme Court decision in which the Court
separately defined “surviving spouse” to mean “the one, of a
married pair, who outlives the other.” Rosell v. State Indus. Acc.
Comm’n, 95 P.2d 726, 729 (Or. 1939).

        In 1990, Congress amended the INA to add the second
sentence of the immediate relative provision, which, for the first
time, extends the term to cover the situation of the death of the
citizen spouse and includes the two-year marriage requirement.



       8
         After the 1951 edition, no new or revised edition of
Black’s was issued until the revised 4th edition was published in
1968. Black’s Law Dictionary, (4th ed. rev. 1968). The 1968
edition’s definition of spouse is identical to the 1951 version
quoted above. Id.

                                13
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978,
4981 (1990). By that time, Black’s Law Dictionary had added
the following to its definition of spouse: “‘surviving spouse’ is
one of a married pair who outlive the other.” Black’s Law
Dictionary 1402 (6th ed. 1990). We reject Robinson’s argument
that the inclusion of “surviving spouse” in the 1990 Black’s Law
Dictionary entry for “spouse” proves that she remains legally a
spouse even though her husband is deceased. The fact that
Black’s Law Dictionary’s entry for spouse defines “surviving
spouse” separately disproves Robinson’s hypothesis.

        Moreover, to conclude that “spouse” and “surviving
spouse” have the identical meaning is illogical and is contrary to
our understanding of the legal effect of death on a marriage. The
standard legal effect of death on marriage is that it terminates the
legal union. See 52 Am. Jur. 2d Marriage § 8 (2000)
(“[M]arriage . . . is terminable only by death or presumption of
death, or by a judicial decree of divorce, dissolution, or
annulment.”). The domestic relations law of New Jersey (the
state in which Robinson and her husband resided at the time of
his death and the state in which this action was brought) also
suggests that a marriage terminates upon the death of one spouse.
See N.J. Stat. Ann. § 9:17-43(a)(1) (West 2002) (former husband
is presumed to be father of child born within “300 days after the
marriage is terminated by death, annulment or divorce”); N.J.
Stat. Ann. 2C:24-1a(1) (West 2005) (belief that spouse is dead is
defense to bigamy).

       The very language of the immediate relative provision
distinguishes between a living spouse and a surviving spouse
when it states that “an alien who was the spouse of a citizen of
the United States for at least 2 years at the time of the citizen’s
death . . . shall be considered . . . to remain an immediate
relative.” 8 U.S.C. § 1151(b)(2)(A)(i) (emphasis added).
Because Robinson’s citizen spouse died before the couple was
married for two years, Robinson does not qualify as an
“immediate relative” under the INA.

      Our dissenting colleague argues that Robinson will be
removed because her petition “is stuck in the government’s

                                 14
bureaucracy.” Dissent typescript op. at 16. That misstates the
facts and the law. We agree with the agency that Robinson’s
claim must be rejected, not because of any government
bureaucracy but because she does not meet one of the Congress’
requirements for immediate relative status, i.e., that she had been
married to her citizen spouse for at least two years. Congress has
imposed a requirement of a particular length of a
petitioner/claimant’s prior marriage in a variety of situations.
For example, one of the ways in which a surviving spouse can
qualify for veterans’ benefits is by showing that the surviving
spouse was married to the veteran for one year or more. See 38
U.S.C. § 1304 (2); see also 10 U.S.C. § 1447(7)(A) (Armed
Forces Act); 42 U.S.C. §§ 416(b), (c) (Social Security Act).

        We are aware that the result of our holding is that
Robinson is ineligible for LPR status as a result of a tragic
accident that neither she nor her citizen spouse could have
avoided or anticipated. But our obligation is to interpret the
statute according to its language. Our holding is consistent with
the core purpose of the U.S. family-based immigration policy:
the promotion of family unification for U.S. citizens and lawful
permanent residents. See Act to Amend the Immigration and
Nationality Act, Pub. L. 89-236, § 1, 79 Stat. at 911 (codified as
amended at 8 U.S.C. § 1151(b)(2)(A)(i)); H.R. Rep. No. 89-745,
at 1, 12 (1965) (“Reunification of families is emphasized as the
foremost consideration [of the legislation].”)

       Admittedly, inclusion of a surviving spouse as an
immediate relative if s/he was married for two years also does
not promote unification of the marital unit but Congress
undoubtedly recognized that other considerations become
relevant once the alien spouse builds increased ties with the
United States. A marriage that lasted two years can be presumed
to have been bona fide, and in that period the surviving spouse
would have developed settled expectations. 9 Congress could



       9
        A regulation promulgated after the USCIS’s decision in this
case provides that, if the two-year marriage requirement is satisfied
when the spouse dies, the I-130 immediate relative petition is

                                 15
reasonably determine that an alien with a pending I-130 petition
who had been married to a U.S. citizen for less than two years at
the time of the citizen spouse’s death is not entitled to LPR
status. Congress created a balance between the goal of family
unity and the legitimate expectations of an alien-spouse whose
connections to the United States were likely to have become
solidified during the two-year marriage period.

                                V.

                           Conclusion

       For the reasons set forth, we will reverse the order of the
District Court and direct it to grant the Government’s motion to
dismiss.




NYGAARD, Circuit Judge, dissenting

        As a result of the government’s fatally flawed
interpretation of §1151(b), Osseritta Robinson will be removed
from the United States, in spite of her full compliance with the
INA, simply because the petition filed on her behalf by her
deceased husband is stuck in the government’s bureaucracy. The
government argues, and the majority agrees, that both the plain
language of the statute and deference to their implementation of
this provision dictate this result. I disagree for three reasons.
First, I believe the plain language leads to a contrary result.
Second, even were this definition ambiguous, I would not defer
to the government’s interpretation. Third, I do not think that
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467
U.S. 837 (1984) even applies. I will discuss these reasons in
inverse order.




automatically converted into a I-360 widow/er petition. 8 C.F.R.
§ 204.2(i)(1)(iv), as amended, 71 Fed. Reg. 35,732, at 35,749
(2006).

                                16
       In Chevron the Court ruled that when Congress explicitly
or implicitly delegates authority to an executive agency to
develop regulations and practices to fill the interstices in the law,
the courts must defer to them. The Court held that “[t]he power
of an administrative agency to administer a congressionally
created program necessarily requires the formulation of policy
and the making of rules to fill any gap left, implicitly or
explicitly, by Congress.” (Quoting Morton v. Ruiz, 415 U.S. 199
(1974)). In Chevron Congress had failed to define a term. The
EPA promulgated detailed regulations and national standards
defining the term at issue. The Court held that because the
regulatory scheme was “technical and complex,” the agency
“considered the matter in a detailed and reasoned fashion,” and
the decision involve[d] reconciling conflicting policies,” courts
must defer to the technical expertise of the agency. Chevron,
467 U.S. at 865.

        Here Congress provided us with a definition of
“immediate relative” and had no reason to delegate, explicitly or
implicitly, any further authority to the executive department to
further tweak the definition. The words and phrases at issue are
not technical. The agency has no relevant expertise to more fully
define them for us. There is no legislative history to suggest
there existed any controversy which Congress referred to the
agency to resolve. The only reasonable inference to draw is that
Congress did not intend to delegate any authority to the agency
on this issue at all. As a result it is for the court to use our
standard, time-honored means of statutory construction. The
mere fact that the panel is divided on how to read the definition
at issue is no reason to call upon Chevron to bail us out.

        Even were this a Chevron matter, I would not defer to the
government’s interpretation. The government stated that,
historically, it has interpreted §1151(b)(2)(A)(i) and the term
“spouse” to exclude aliens like Robinson from the grant of an
immediate relative classification. To me, the government’s
argument is an attempt to use Chevron to defend an errant
interpretation of the statute primarily because the same error has
been made for a number of years. Moreover, even the
government’s claim of consistency does not withstand scrutiny. I

                                 17
would consider it an abdication of my judicial obligation to
construe and apply the statute, and a denial of Robinson’s right-
of-access to the courts, to defer to departmental interpretations
that are as unfounded as this.

        The government, and the majority, refer to Matter of
Varela 13 I. & N. Dec. 453 (BIA 1970), as primary evidence of
its persistent approach to this statute. Yet, I am persuaded by the
analysis of the Court of Appeals of the Ninth Circuit that Varela
was invalidated because it was deemed extra-jurisdictional.
Freeman v. Robinson, 444 F.3d 1031 (9 th Cir. 2005). I simply do
not regard Varela as carrying any weight.

        Moreover, the government’s reference to a 1938 INS
amendment to a regulation is not on point. This amendment
states that the issuance of a visa will be withheld and approval of
a petition may be revoked “if it is ascertained that the petitioner .
. . has died.” 3 Fed. Reg. 263 (1938). The amendment refers to
the government’s general authority to revoke an approved I-130
petition or withhold the grant of a visa. Neither of these actions
deal with the topic at hand, which is whether the government has
authority to terminate a properly filed I-130 petition that is still
pending, based only upon the death of the petitioner.
Additionally, the regulation refers generically to petitioners
rather than “spouse.” The government’s use of the 1938
amendment as evidence of a consistent interpretation of
§1151(b)(b)(2)(A)(i) is specious.

       With regard to the plain meaning of the statute, I disagree
with the majority’s definition of “spouse.” The government
argues and the majority contends that the terms “surviving
spouse” or “former spouse” are distinct from the common
understanding of the word “spouse.” The majority attempts to
bolster its position by, among other things, emphasizing
Congress’ use of the phrase “was the spouse” in
§1151(b)(2)(A)(i). Yet, we need look no further than the
language used later in the same sentence to appreciate the
inconsistency that this restrictive definition creates.




                                 18
       In the case of an alien who was the spouse of a
       citizen of the United States for at least 2 years at
       the time of the citizen's death and was not legally
       separated from the citizen at the time of the
       citizen's death, the alien (and each child of the
       alien) shall be considered, for purposes of this
       subsection, to remain an immediate relative after
       the date of the citizen's death but only if the spouse
       files a petition under section 1154(a)(1)(A)(ii) of
       this title within 2 years after such date and only
       until the date the spouse remarries. (Emphasis
       added).

8 U.S.C. §1151(b)(2)(A)(i). Similarly, in discussing which

foreign nationals may self-petition after the death of a husband or

wife who was a citizen or legal permanent resident of the United

States, the statute states:

       For purposes of subclause (I), an alien described in
       this subclause is an alien . . . (CC) who was a bona
       fide spouse of a United States citizen within the
       past 2 years and - - (aaa) whose spouse died within
       the past 2 years.

8 U.S.C.A. § 1154(a)(1)(A)(i)(II). In both sections of this
statute, the word “spouse” is used without any qualifying terms
such as “former” or “surviving.”

        It is obvious to me that Congress used “spouse” to refer to
a continuing marital bond between the deceased petitioner and a
surviving husband or wife. Therefore, the majority’s
interpretation fails to meet one of the principal rules of statutory
construction, which is to give terms consistent meaning. In light
of this, I cannot accept the government’s narrow definition of
“spouse.” As the statute plainly reads, “spouse” is an inclusive
term that includes aliens such as Robinson who survive the death
of their petitioning husband or wife.

                                 19
        I am also unpersuaded by the majority’s reliance upon the
present tense verbs that appear in 8 U.S.C. §1154(b), a provision
that focuses upon the government’s “[i]nvestigation;
consultation; approval; [and] authorization to grant preference
status.” (Emphasis added.) Although the majority masterfully
reviews the immediate relative petitioning process, its opinion
exposes a fundamental confusion between an I-130 petition,
which is filed to request an alien’s classification as an immediate
relative, and an I-485 petition, which is filed to request the grant
of an alien’s change of status. By extracting a sentence from
§1154(b), the majority opinion succeeds only in raising the
question of whether the petitioning spouse must be alive during
the investigation of the I-485 petition for change of status, a
question that is not at issue here. I view the discussion of
§1154(b) as irrelevant. This appeal focuses only upon
Robinson’s classification as an immediate relative, not her
change of status.

        Regarding the majority’s structural interpretation of 8
U.S.C. 1151(b)(2)(A)(i), I do not agree that the second sentence
clearly modifies the first sentence. To the contrary, I submit that
the only reasonable way to understand these two sentences is if
they are read as independent. The District Court correctly found
that the first sentence lists spouse, without any qualifying terms,
as one type of relationship that enables an alien to be given an
immediate relative classification. The second sentence refers to
scenarios in which the petitioning spouse has died, but it
concludes by saying that an alien in this circumstance can be
classified as an immediate relative “but only if the spouse files a
petition under section 1154(a)(1)(A)(ii) of this title within 2
years after such date and only until the date the spouse
remarries.” The statute does not mandate the termination of I-
130 petitions upon the death of a petitioner, and even the
regulations make it clear that a pending or approved I-130
eliminates the need for the filing of a self-petition.10 Therefore,



       10
         “A currently valid visa petition previously approved to
classify the beneficiary as an immediate relative as the spouse of a
United States citizen must be regarded, upon the death of the

                                 20
the only person to whom this second sentence in
§1151(b)(2)(A)(i) can refer is an alien who is not the beneficiary
of a pending or approved I-130 at the time of the death of the
petitioner.

        To me, applying this two-year marital requirement to
even those who have already filed an I-130 implicitly presumes
to be invalid the marriage of those who are wed less than two
years before the petitioning spouse dies. This is inconsistent
with the statute. As a result, after reviewing both the language
and the structure of section 1151(b)(2)(A)(i) it is clear to me that
the two sentences are to be read as describing two distinct tracks
for an alien spouse to obtain an immediate relative classification:
petition by a living spouse, or self-petitioning.

        I also oppose granting the government an expanded scope
of authority under 8 U.S.C. §1155.11 The government argued
that since §1155 already gives it power to revoke the acceptance
of an I-130 petition upon the death of the petitioner, it implicitly
already has the power to terminate pending I-130 petitions upon
the death of the petitioner. In my view, this interpretation of
§1155 is seriously flawed.



petitioner, as having been approved as a Form I-360, Petition for
Amerasian, Widow(er) or Special Immigrant for classification
under paragraph (b) of this section, if, on the date of the petitioner's
death, the beneficiary satisfies the requirements of paragraph (b)(1)
of this section. If the petitioner dies before the petition is approved,
but, on the date of the petitioner's death, the beneficiary satisfies
the requirements of paragraph (b)(1) of this section, then the
petition shall be adjudicated as if it had been filed as a Form I-360,
Petition for Amerasian, Widow(er) or Special Immigrant under
paragraph (b) of this section.” 8 C.F.R. 204.2(i)(1)(iv).
       11
        “The Secretary of Homeland Security may, at any time, for
what he deems to be good and sufficient cause, revoke the approval
of any petition approved by him under section 1154 of this title.
Such revocation shall be effective as of the date of approval of any
such petition.” 8 U.S.C.A. § 1155.

                                  21
        As the government would certainly concede, the plain
language of §1155 does not provide governmental authority to
terminate pending I-130 petitions. Its authority is limited to
revoking approved petitions. Moreover, upon examining the
regulations that implement §1155, it is clear to me that the
government’s interpretation of §1155 and §1151(b)(2)(A)(i)
results in an arbitrary outcome that defies both reason and equity.
The statutory interpretation argued by the government and
approved by the majority will not only summarily terminate
Robinson’s properly filed I-130 petition, it will also create a
regulatory crevice into which Robinson will be dropped.

        Under the regulations, the government has discretion to
both withhold automatic revocation of an approved I-130
petition, and to refrain from denying a visa in cases where
humanitarian concerns justify such relief. 8 C.F.R.
205.1(a)(3)(i)(c)(2).12 The problem created in the majority’s
interpretation of §1151(b) and §1155 is that it denies Robinson’s
opportunity for discretionary relief, even though she would have
qualified for it but for the delays of the government in approving
Robinson’s I-130. The practical effect of the majority’s opinion
is not only that Robinson’s I-130 will be terminated because of
the government’s dilatory action – or inaction – on her husband’s
petition, but also that she will be removed from the country,



       12
         “The approval of a petition or self-petition made under
section 204 of the Act and in accordance with part 204 of this
chapter is revoked as of the date of approval: . . .Upon the death of
the petitioner, unless: . . . .U.S. Citizenship and Immigration
Services (USCIS) determines, as a matter of discretion exercised
for humanitarian reasons in light of the facts of a particular appeal,
that it is inappropriate to revoke the approval of the petition.
USCIS may make this determination only if the principal
beneficiary of the visa petition asks for reinstatement of the
approval of the petition and establishes that a person related to the
principal beneficiary in one of the ways described in section
213A(f)(5)(B) of the Act is willing and able to file an affidavit of
support under 8 CFR part 213a as a substitute sponsor.” 8 C.F.R.
205.1(a)(3)(i)(c)(2).

                                 22
since no other relief is available to her under the INA.13 The
District Court was correct in stating that “the fortuity of the
citizen spouse’s untimely death is too arbitrary and random a
circumstance to serve as a basis for denying the petition.”
Robinson v. Chertoff, 2007 WL 1412284, 4 (D.N.J.).

        Finally, it is inconceivable to me that Congress intended
an alien’s status to be contingent upon the amount of time that
the executive department takes to process a timely and proper
petition – a factor completely outside of the control of the alien.
This interpretation creates an arbitrary, irrational and inequitable
outcome in which approvable petitions will be treated differently
depending solely upon when the government grants the approval.
 Nor do I believe that Congress intended to sanction the disregard
that the department has shown towards persons like Osseritta
Robinson. She has committed no crime. She is innocent of any
misbehavior. She is a grieving widow and the lone parent of the
Robinsons’ U.S. citizen child. This same department whose
delay or inaction forecloses Osseritta Robinson’s chance of
becoming an American, now so diligently pursues the avenues of
her expulsion. It contends that the statute is ambiguous and then
urges upon us the least reasonable and least humane alternative.
My view, wholly in the margin, is that it is untoward of this
nation of immigrants, we who have passed through the portals of
citizenship, to coldly and impassively slam the door behind us on
innocent aspirants who dream to follow.

      Because I read the plain language and structure of
§1151(b)(2)(A)(i) as enabling Robinson to be classified as an
immediate relative, I dissent.




       13
         I am aware that Robinson can seek from Congress a
private bill to prevent her removal, but this extraordinary relief is
outside of the scope of the INA. Our task in interpreting statutes
is to remain within the four corners of the statute and regulations
to ascertain whether a particular interpretation yields unreasonable
or arbitrary results.

                                 23
