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                                                                    [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                           No. 12-10311
                     ________________________

              D.C. Docket No. 6:11-cv-00743-GAP-DAB



ARACELYS C. TORO,

                    Plaintiff - Appellant,

versus

SECRETARY, U.S. DEPARTMENT
OF HOMELAND SECURITY,
DIRECTOR, U.S. CITIZENSHIP AND
IMMIGRATION SERVICES,
CHIEF, ADMINISTRATIVE APPEALS OFFICE,
DIRECTOR, VERMONT SERVICE CENTER,

                    Defendants - Appellees.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                    ________________________

                           (February 4, 2013)
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Before WILSON and COX, Circuit Judges, and VINSON, * District Judge.

WILSON, Circuit Judge:

       Petitioner Aracelys Toro appeals the district court’s dismissal of her

complaint for failure to state a claim upon which relief can be granted. Toro

sought review of the United States Citizenship and Immigration Service’s (USCIS)

denial of her Form I-360 self-petition for adjustment to permanent resident status.

USCIS denied Toro’s petition on the grounds that it was contrary to the Cuban

Refugee Adjustment Act of 1966 (CAA), Pub. L. No. 89-732, 80 Stat. 1161

(codified as amended at 8 U.S.C. § 1255 note). Toro also claims that USCIS’s

decision violated the Fifth Amendment’s guarantee of equal protection under the

law. We agree with the district court that the CAA’s plain language bars Toro’s

self-petition, and we also find that a rational basis exists for treating battered aliens

differently based on the immigration status of their Cuban spouses. Therefore, we

affirm the district court’s dismissal of Toro’s complaint.

                      I. FACTS & PROCEDURAL HISTORY

       Toro, a native and citizen of Venezuela, entered the United States on

January 7, 1996, as a B-2 nonimmigrant visitor. On March 28, 2001, Toro married

her husband, a native and citizen of Cuba, in Orlando, Florida. Later that year,

Toro and her husband filed Form I-485 applications for permanent resident status

       *
          Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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under section 1 of the CAA. Section 1 allows natives or citizens of Cuba and their

spouses to become permanent residents of the United States after having been

admitted or paroled into the country.

      USCIS denied Toro’s husband’s Form I-485 application on account of his

criminal history. Because Toro was a derivative beneficiary of her husband’s

application, USCIS denied her application as well. On January 31, 2008, Toro

self-petitioned as the battered spouse of a Cuban alien under section 1of the CAA

to adjust her status to permanent lawful resident.

      Since 1966, section 1 of the CAA—which is codified as a historical note to 8

U.S.C. § 1255—has been expanded by two laws amending the Violence Against

Women Act of 1994 (VAWA), Pub. L. No. 103-322, tit. IV, 108 Stat. 1902

(codified as amended in scattered sections of 8, 16, 18, 28 and 42 U.S.C.). The

amendments allow the battered spouse “of any Cuban alien described in [section 1

of the CAA]” to self-petition for adjustment through what is commonly referred to

as a “VAWA petition.” CAA § 1. The current, amended version of section 1

provides, in pertinent part:

      [N]otwithstanding the provisions of section 245(c) of the Immigration
      and Nationality Act, the status of any alien who is a native or citizen
      of Cuba and who has been inspected and admitted or paroled into the
      United States subsequent to January 1, 1959 and has been physically
      present in the United States for at least one year, 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 the alien makes an application for such adjustment, and
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       the alien is eligible to receive an immigrant visa and is admissible to
       the United States for permanent residence. . . . The provisions of this
       Act shall be applicable to the spouse and child of any alien described
       in this subsection, regardless of their citizenship and place of birth,
       who are residing with such alien in the United States, except that such
       spouse or child who has been battered or subjected to extreme cruelty
       may adjust to permanent resident status under this Act without
       demonstrating that he or she is residing with the Cuban spouse or
       parent in the United States. In acting on applications under this
       section with respect to spouses or children who have been battered or
       subjected to extreme cruelty, the Attorney General shall apply the
       provisions of section 204(a)(1)(J). 1 An alien who was the spouse of
       any Cuban alien described in this section and has resided with
       such spouse shall continue to be treated as such a spouse for 2
       years after the date on which the Cuban alien dies (or, if later, 2
       years after the date of enactment of Violence Against Women Act
       and Department of Justice Reauthorization Act of 2005), or for 2
       years after the date of termination of the marriage (or, if later, 2
       years after the date of enactment of Violence Against Women Act
       and Department of Justice Reauthorization Act of 2005) if there is
       demonstrated a connection between the termination of the
       marriage and the battering or extreme cruelty by the Cuban
       alien.

CAA § 1, as amended by the Victims of Trafficking and Violence Protection Act,

Pub. L. No. 106-386, § 1509, 114 Stat. 1464, 1530–31 (2000) (in underlined font),

and the Violence Against Women and Department of Justice Reauthorization Act

of 2005, Pub. L. No. 109-162, § 823, 119 Stat. 2960, 3063 (in bold font).

       USCIS denied Toro’s VAWA self-petition, reasoning that she did not have a

qualifying relationship with a Cuban alien described in section 1 of the CAA.

       1
        The note to 8 U.S.C. § 1255 (Supp. 2011) explains that section 204(a)(1)(J) “probably
means section 204(a)(1)(J) of the Immigration and Nationality Act, which is classified to section
1154(a)(1)(J) of this title.”

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Because Toro’s husband had been denied permanent resident status, Toro was not

the “spouse . . . of any alien described in [section 1 of the CAA].” Id.

      Toro filed an appeal with the Administrative Appeals Office (AAO), which

dismissed her claim. The AAO found that “the language of section 1 of the CAA

clearly indicates that the VAWA self-petitioner’s Cuban spouse must be

admissible to the United States and adjusted as a lawful permanent resident.”

Pointing to section 1’s language, the AAO discerned five criteria for a battered

spouse’s Cuban husband to qualify as an “alien” under the section: (1) the alien

must have been admitted or paroled into the United States subsequent to January 1,

1959; (2) the alien must have been physically present in the United States for at

least one year; (3) the alien must have applied for adjustment to permanent resident

status; (4) the alien must be eligible to receive an immigrant visa; and (5) the alien

must be admissible to the United States for permanent residence. Toro’s husband’s

criminal history rendered him inadmissible for permanent residence, and

consequently Toro could not self-petition as the battered spouse of an alien

described in section 1 of the CAA. The AAO also found that the Board of

Immigration Appeals’ (BIA) decision in Matter of Quijada-Coto, 13 I. & N. Dec.

740 (B.I.A. 1971), supported its reasoning.

      In May 2011 Toro filed a complaint in the district court, alleging in her first

count that USCIS’s denial of her self-petition was contrary to law and

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congressional intent. In her second count, Toro argued that the denial violated her

equal protection rights under the Fifth Amendment. USCIS responded with a

motion to dismiss for lack of subject matter jurisdiction and for failure to state a

claim. See Fed. R. Civ. P. 12(b)(1), (6). Essentially agreeing with the AAO’s

analysis, the district court found that the CAA’s plain language governed the case,

and dismissed both counts for failure to state a claim. This appeal followed.

                                   II. ANALYSIS

A. Count One: Interpretation of the CAA

      Because Toro contested a final agency decision, the district court reviewed

Count One of Toro’s complaint under the Administrative Procedure Act (APA), 5

U.S.C. § 704. The court interpreted section 1 of the CAA to bar Toro from self-

petitioning. This court reviews de novo questions of statutory interpretation. See

Serrano v. U.S. Attorney Gen., 655 F.3d 1260, 1264 (11th Cir. 2011) (per curiam).

      “The first step of statutory construction is to determine whether the language

of the statute, when considered in context, is plain. If the meaning of the statutory

language in context is plain, we go no further.” Id. (internal quotation marks

omitted); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842–43, 104 S. Ct. 2778, 2781 (1984) (“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 of Congress.”).

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       Both Toro and USCIS agree that a VAWA self-petitioner must have a

qualifying relationship with a Cuban alien described in section 1 of the CAA.

USCIS argues that a plain reading of section 1 reveals five requirements a Cuban

spouse must satisfy to qualify as an “alien described in this subsection”:

       [N]otwithstanding the provisions of section 245(c) of the Immigration
       and Nationality Act, the status of any alien who is a native or citizen
       of Cuba and who has been inspected and [1] admitted or paroled
       into the United States subsequent to January 1, 1959 and [2] has
       been physically present in the United States for at least one year,
       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 [3] the alien makes an
       application for such adjustment, and [4] the alien is eligible to
       receive an immigrant visa and [5] is admissible to the United
       States for permanent residence . . . . The provisions of this Act
       shall be applicable to the spouse and child of any alien described in
       this subsection . . . .

CAA § 1 (emphases and bracketed numbers added).

       Toro’s husband, USCIS contends, satisfies the first four requirements. He

falls short of the fifth requirement, however, because USCIS denied his Form I-

485 application. By contrast, Toro argues that her spouse needed to satisfy only

the first two requirements, and that the remaining language in the sentence, rather

than listing criteria, discusses the Attorney General’s discretion to adjust a Cuban

alien’s status.

       We agree with USCIS, and find that the remaining language, while certainly

providing the Attorney General with guidance, also modifies which particular

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aliens are “any alien described in this subsection.” Id. Toro’s argument proves too

much, because the first two requirements also provide guidance to the Attorney

General. We read each clause at issue to be an indispensable element of “any alien

described in this subsection,” because all five clauses specify what a Cuban alien

must do to qualify for adjustment. It makes little interpretive sense to do as Toro

urges us, and cleave the clauses into “requirements” and “guidance.” Most

conspicuously, a single sentence contains all five clauses. Two sentences later, the

statutory language at issue appears: “The provisions of this Act shall be applicable

to the spouse and child of any alien described in this subsection . . . .” CAA § 1

(emphasis added). The aliens “described in [section 1 of the CAA]” are Cuban

aliens who may adjust to permanent resident status by virtue of satisfying every

element listed above. Because USCIS denied Toro’s husband’s Form I-485

application, he does not qualify as an alien described in section 1, and Toro cannot

self-petition under the statute.

      Even if we were to find section 1’s language to be ambiguous, the outcome

of this case would remain unchanged because we owe Chevron deference to the

BIA’s decision in Matter of Quijada-Coto, 13 I. & N. Dec. 740 (B.I.A. 1971). See

Chevron, 467 U.S. at 844, 104 S. Ct. at 2781–82. Under Chevron, if we find the

text of a statute ambiguous, and Congress has delegated rulemaking authority to an

agency, then we will generally defer to the agency’s exercise of its formal rule-

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making authority. See id.; see also Wilderness Watch v. Mainella, 375 F.3d 1085,

1091 (11th Cir. 2004).

       In the context of the Immigration and Nationality Act (INA)—of which

section 1 of the CAA forms a small part—“determination[s] and ruling[s] by the

Attorney General with respect to all questions of law shall be controlling.” 8

U.S.C. § 1103(a)(1); see I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S. Ct.

1439, 1445 (1999). The Attorney General has vested the BIA with the power to

provide, through precedential decisions, “clear and uniform guidance to the

Service, the immigration judges, and the general public on the proper interpretation

and administration of the Act and its implementing regulations.” 2 8 C.F.R.

§ 1003.1(d)(1). Thus, the BIA “should be accorded Chevron deference as it gives

ambiguous statutory terms concrete meaning through a process of case-by-case

adjudication.” Aguirre-Aguirre, 526 U.S. at 425, 119 S. Ct. at 1445 (internal

quotation marks omitted); see also Quinchia v. U.S. Attorney Gen., 552 F.3d 1255,

1258 (11th Cir. 2008). To the extent that the clause “any alien described in this

subsection” is ambiguous, the BIA resolved the ambiguity in Quijada-Coto, to

which we owe Chevron deference. See Aguirre-Aguirre, 526 U.S. at 425, 119

S. Ct. at 1445.

       2
         The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, abolished the
Immigration and Naturalization Service (INS) and moved most of its functions to the newly
created Department of Homeland Security (DHS). USCIS, an agency within DHS, now
administers most of the INS’s former duties.
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      In Quijada-Coto, the BIA affirmed the denial of Quijada-Coto’s petition for

adjustment. 13 I. & N. Dec. at 741. Quijada-Coto, a native El Salvadorian, argued

that she could adjust her status under section 1 of the CAA because she was the

spouse of a Cuban alien described in section 1. Id. at 740. Quijada-Coto’s

husband, like Toro’s, had been denied adjustment of status because of a narcotics

conviction. Id. The BIA held: “After careful consideration, we conclude that

Congress did not intend to apply the benefits of the [CAA] to the spouse of an

alien described in the Act, when the alien himself has been denied adjustment of

status under the Act.” Id. at 741. The holding in Quijada-Coto therefore settles

the question of which Cuban aliens qualify as aliens described in section 1 of the

CAA: a section 1 alien must be admissible for permanent residence.

      Toro points out that the BIA decided Quijada-Coto in 1971, decades prior to

the VAWA self-petitioning amendments. We fail to see the relevance of this

observation. The language at issue—“any alien described in this subsection”—and

the preceding, modifying language have remained unchanged since 1966. A 2013

alien who is “described in this subsection” is the same as a 1966 alien who was

“described in this subsection.” CAA § 1. Therefore, just as Quijada-Coto did not




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have a qualifying relationship with a Cuban alien in 1971, neither does Toro in

2013. 3

B. Count II: Toro’s Equal Protection Claim

       With regards to Toro’s equal protection claim, we review de novo

constitutional challenges to agency orders. Ala. Power Co. v. F.C.C., 311 F.3d

1357, 1367 (11th Cir. 2002). Through its Due Process Clause, the Fifth

Amendment guarantees equal protection under federal law to every individual in

the United States, including aliens. Fernandez-Bernal v. Attorney Gen., 257 F.3d

1304, 1311 (11th Cir. 2001); Yeung v. I.N.S., 76 F.3d 337, 339 (11th Cir. 1995)

(“The constitutional guarantee of equal protection under the law has been held

applicable to aliens as well as citizens for over a century.”). At the same time, the

legislative power of Congress over the admission of aliens is more comprehensive

than any conceivable subject. Yeung, 76 F.3d at 339. We will therefore uphold an

agency decision that distinguishes among groups of alien unless there is no rational




       3
         Toro also argues that another BIA decision, Matter of Milian, 13 I. & N. Dec. 480
(B.I.A. 1970), settles the question in this case. In Milian, a Cuban alien married his non-Cuban
spouse after adjusting his status under section 1 of the CAA. Milian, 13 I. & N. Dec. at 481.
The non-Cuban spouse’s petition for adjustment had been denied “since the applicant’s marriage
followed [the Cuban alien’s] acquisition of that status.” Id. at 481. The BIA reversed the
decision and allowed the non-Cuban spouse to adjust her status after the marriage. Id. at 482.
From this holding, Toro extrapolates the rule that the Cuban alien’s adjustment status does not
bear on whether the Cuban alien qualifies as an alien described in section 1. Yet Toro misreads
Milian; the case simply holds that a qualifying relationship for purposes of section 1 may be
established after the Cuban alien’s adjustment.
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basis for the classification. Resendiz-Alcaraz v. U.S. Attorney Gen., 383 F.3d

1262, 1271 (11th Cir. 2004).

      Under rational-basis review, the classification “must be reasonable, not

arbitrary, and must rest upon some ground of difference having a fair and

substantial relation to the object of the legislation, so that all persons similarly

circumstanced shall be treated alike.” Fernandez-Bernal, 257 F.3d at 1312

(quoting Stanton v. Stanton, 421 U.S. 7, 14, 95 S. Ct. 1373, 1377 (1975)).

      Toro argues that distinguishing between battered spouses on the basis of a

Cuban spouse’s adjustment status violates the Fifth Amendment’s equal protection

guarantee. There is no rational basis for the distinction, Toro continues, because

the purposes underlying the VAWA self-petitioning provisions are to provide a

means of escape for immigrants who are the victims of domestic violence. Again,

we disagree.

      The VAWA self-petitioning provisions have a narrower rationale than

providing a means of escape for all victims of domestic violence: “The purpose of

permitting self-petitioning is to prevent the citizen or resident from using the

petitioning process as a means to control or abuse an alien spouse.” H.R. Rep. No.

103-395, at 37 (1994). If the abusive Cuban spouse has been denied permanent

resident status, as is the case with Toro’s husband, he can no longer threaten to

withhold immigration sponsorship from his non-Cuban spouse. To distinguish

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between non-Cuban aliens on the basis of a Cuban spouse’s adjustment status is

adequately rational, and not the least bit arbitrary. We therefore conclude that

USCIS’s denial of Toro’s VAWA self-petition did not violate the Fifth

Amendment’s equal protection guarantees.

                                III. CONCLUSION

      Under a plain reading of section 1 of the CAA, there are five requirements

for a non-Cuban’s spouse to qualify as “any alien described in [section 1 of the

CAA]”: (1) the alien must have been admitted or paroled into the United States

subsequent to January 1, 1959; (2) the alien must have been physically present in

the United States for at least one year; (3) the alien must have applied for

adjustment to permanent resident status; (4) the alien must be eligible to receive an

immigrant visa; and (5) the alien must be admissible to the United States for

permanent residence. Because Toro’s husband did not satisfy the fifth

requirement, Toro cannot self-petition under the VAWA amendments to the CAA.

In addition, USCIS’s distinction between non-Cuban aliens on the basis of a Cuban

spouse’s adjustment status does not violate the Fifth Amendment’s equal

protection guarantees.

      AFFIRMED.




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