                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                     File Name: 09a0139p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                               X
                          Petitioner-Appellee, -
 NELLY SUPANGAN LOCKHART,
                                                -
                                                -
                                                -
                                                              No. 08-3321
           v.
                                                ,
                                                 >
                                                -
                                                -
 JANET NAPOLITANO, Secretary, Department

                    Respondents-Appellants. -
 of Homeland Security, et al.,
                                                -
                                               N

                       Appeal from the United States District Court
                      for the Northern District of Ohio at Cleveland.
               No. 07-00823—Kathleen McDonald O’Malley, District Judge.
                                  Argued: January 20, 2009
                             Decided and Filed: April 8, 2009
                                                                                      *
            Before: COLE and GIBBONS, Circuit Judges; BELL, District Judge.

                                    _________________

                                          COUNSEL
ARGUED: Elizabeth J. Stevens, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants. Brent W. Renison, PARRILLI RENISON, Lake
Oswego, Oregon, for Appellee. ON BRIEF: Gjon Juncaj, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Brent W. Renison,
PARRILLI RENISON, Lake Oswego, Oregon, Barbara A. Firstenberg, Cathy M.
Shibley, BARBARA A. FIRSTENBERG & ASSOCIATES, Shaker Heights, Ohio, for
Appellee.




        *
        The Honorable Robert Holmes Bell, United States District Judge for the Western District of
Michigan, sitting by designation.


                                                1
No. 08-3321        Lockhart v. Napolitano, et al.                                  Page 2


                                 _________________

                                       OPINION
                                 _________________

       COLE, Circuit Judge. The United States Citizen and Immigration Services
(“USCIS”) denied Petitioner Nelly Supangan Lockhart’s (“Lockhart” or “Mrs.
Lockhart”) application for an adjustment of status to that of permanent United States
resident on the ground that she was statutorily ineligible for such adjustment because she
was no longer an “immediate relative” under the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1101 et seq., upon the death of her husband. Lockhart filed a
lawsuit in the United States District Court for the Northern District of Ohio, seeking
injunctive, declaratory, and mandamus relief to compel Respondent Janet Napolitano,
Secretary of the Department of Homeland Security (“Secretary” of “DHS”), to find, as
a matter of law, that she is an “immediate relative” under INA, § 204(b)(2)(A)(i),
8 U.S.C. § 1151(b)(2)(A)(i), and to reopen and readjudicate her application for
adjustment of status. The sole issue before us is a question of law, which requires us to
interpret language of the INA to resolve a matter of first impression in this Circuit. The
question is whether an alien-spouse, whose citizen-spouse filed the necessary
“immediate relative” petition form under 8 U.S.C. §§ 1187, 1255(c)(4), but died within
two years of the qualifying marriage, qualifies as a spouse under the “immediate
relative” provision of the INA. For the reasons set forth below, we conclude that a
“surviving alien-spouse” is a “spouse” within the meaning of the “immediate relative”
provision of the INA. Accordingly, we AFFIRM the district court’s grant of summary
judgment for Lockhart.

                                 I. BACKGROUND

A.     Factual Background

       The facts are not in dispute. Lockhart is a citizen of the Phillippines who was
lawfully admitted to the United States on December 15, 2003. Shortly thereafter, on
January 20, 2004, she married Gerald Lockhart (“Mr. Lockhart”), a United States
No. 08-3321        Lockhart v. Napolitano, et al.                                 Page 3


citizen. Following the marriage, on February 1, 2004, Mr. Lockhart filed a Form I-130
(Petition for Alien Relative) petition with the Cleveland, Ohio Field Office of the USCIS
attesting Mrs. Lockhart’s status as his spouse and requesting her classification as an
“immediate relative” under 8 U.S.C. § 1151(b)(2)(A)(i). On the same day, Mrs.
Lockhart filed a Form I-485 (Application to Register Permanent Residence or Adjust
Status) under 8 U.S.C. § 1255(a). As described below, “immediate relative” status is a
prerequisite to eligibility for adjustment of status under 8 U.S.C. § 1255(a).

       Four months later, on June 24, 2004, Lockhart gave birth to a son, Justin Carlyle
Lockhart. Mr. Lockhart was listed as Justin’s father. During this time, the USCIS began
processing the Lockharts’ Form I-130 petition and Form I-485 application. In April or
May, 2005, the USCIS interviewed the Lockharts. At the interview, both Mr. and Mrs.
Lockhart testified as to the validity of their marriage. On April 6, 2005, the USCIS
requested additional evidence from Mrs. Lockhart, which she subsequently sent to the
Cleveland, Ohio office in April 2005.

       On December 21, 2005, Mr. Lockhart died suddenly of a heart attack. At the
time of Mr. Lockhart’s death, he and Mrs. Lockhart had been married for one year and
eleven months, and the USCIS had not adjudicated the Form I-130 petition or the Form
I-485 application. On June 27, 2006, more than two years after Mr. Lockhart filed his
petition and his wife filed her application, the USCIS requested a copy of Mr. Lockhart’s
death certificate. Thereafter, on October 26, 2006, the USCIS denied the Form I-130
petition and the Form I-485 application. USCIS denied the Form I-130 petition solely
on the ground that, upon the death of her United States citizen husband, Mrs. Lockhart
was no longer the “spouse” of a United States citizen and was, therefore, not entitled to
treatment as an “immediate relative” under 8 U.S.C. § 1151(b)(2)(A)(i). The USCIS
subsequently denied Mrs. Lockhart’s Form I-485 application because it was dependent
on approval of the Form I-130 petition.

       On November 20, 2006, Mrs. Lockhart filed a motion to reopen and reconsider
the denial of her deceased husband’s Form I-130 petition. On December 4, 2006, the
No. 08-3321        Lockhart v. Napolitano, et al.                                Page 4


USCIS denied this motion without explanation. Currently, Lockhart is in removal
proceedings before the United States Immigration Court in Cleveland, Ohio.

B.     Procedural Background

       On March 20, 2007, Lockhart filed a petition for a writ of mandamus and a
complaint seeking declaratory and injunctive relief. Lockhart later amended the
complaint to request injunctive, declaratory, and mandamus relief to compel the
Secretary (1) to find that, as a matter of law, she is an “immediate relative” under INA
§ 204(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i), and (2) to reopen and readjudicate
Mr. Lockhart’s Form I-130 petition and her I-485 application for adjustment of status.
Thereafter, the Secretary filed a motion to dismiss Mrs. Lockhart’s petition for
mandamus relief and her complaint.           Lockhart filed a motion for summary
judgment. After considering the motions, the district court concluded that Lockhart is
a “spouse” under 8 U.S.C. § 1151(b)(2)(A)(i), denied the Secretary’s motion to dismiss,
and granted summary judgment in favor of Lockhart. This timely appeal followed.

                                   II. ANALYSIS

A.     Standard of Review

       This Court reviews the district court’s determination of a non-discretionary
“purely legal question, such as the proper definition of ‘spouse’ under 8 U.S.C. § 1151
(b)(2)(A)(i)” de novo. Freeman v. Gonzales, 444 F.3d 1031, 1037 (9th Cir. 2006) (citing
De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004)); see also Sanusi v.
Gonzales, 474 F.3d 341, 345 (6th Cir. 2007).

B.     The INA Statutory Framework

       The INA provides numerical limits on the number of aliens who may be issued
immigrant visas or admitted to the United States for permanent residence. 8 U.S.C.
§ 1151(a). However, the “immediate relatives” of United States citizens are not subject
to the direct numerical limitations. See 8 U.S.C. § 1151(b). In order for an alien to
immigrate as an “immediate relative” based on a close family relationship to a citizen
No. 08-3321          Lockhart v. Napolitano, et al.                                     Page 5


or resident, a qualifying family relationship must exist. 8 U.S.C. § 1151. The alien is
not automatically accorded the status of “immediate relative” under this provision;
instead, the United States citizen or lawful permanent resident to whom the alien is
related must file a Form I-130 petition on the alien’s behalf with the USCIS to establish
the existence of the relationship. 8 U.S.C. § 1154(a)(1)(A)(i). The USCIS shall approve
the petition if it determines, after investigating the facts in each case, that the facts stated
in the petition are true and the alien is an immediate relative. 8 U.S.C. § 1154(b).

        Following the USCIS’s approval of the citizen’s petition, an immigrant visa is
immediately available to the alien, and the alien is eligible for an adjustment of status
to that of permanent resident. 8 U.S.C. § 1255(a); 8 C.F.R. § 245.2(a)(2). Adjustment
of status under 8 U.S.C. § 1255 is a two-step process. First, the alien must prove
statutory eligibility for the adjustment, and second, the Attorney General—or, in the
context of deportation proceedings, the immigration judge—must exercise his discretion
to grant relief.

        The question before this Court is whether an alien-spouse whose citizen-spouse
filed the necessary “immediate relative” form under 8 U.S.C. §§ 1187, 1255(c)(4), but
died within two years of the qualifying marriage, nonetheless remains a “spouse” under
8 U.S.C. § 1151(b)(2)(A)(i) and is entitled to treatment as a “spouse” when the DHS
adjudicates that alien’s petition to adjust his/her status to that of a lawful permanent
resident. Two other circuit courts have weighed in on this precise issue, but they
reached opposite conclusions. See Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006)
and Robinson v. Napolitano, 554 F.3d 358 (3d Cir. 2009). In Freeman, the Ninth Circuit
held that the “language, structure, purpose and application” of § 1151(b)(2)(A)(i)
indicate that Congress intended a surviving alien-spouse to remain a “spouse” under the
“immediate relative” provision despite the death of the citizen-spouse. See Freeman,
444 F.3d at 1039. In Robinson, the Third Circuit reached the opposite conclusion,
finding that a surviving alien-spouse is not an immediate relative under 8 U.S.C.
§ 1151(b)(2)(A)(i). Robinson, 554 F.3d at 364.
No. 08-3321        Lockhart v. Napolitano, et al.                                       Page 6


       The Secretary argues that Mrs. Lockhart is no longer the spouse of a United
States citizen because, as a matter of law, her marriage ended when Mr. Lockhart died.
Put simply, the Secretary argues that because Mrs. Lockhart is no longer legally married,
she is likewise no longer Mr. Lockhart’s spouse, and, therefore, no longer an “immediate
relative.” We disagree. As set forth below, we are persuaded by the reasoning of the
Ninth Circuit and, therefore, hold that a surviving alien-spouse whose citizen-spouse
filed the necessary “immediate relative” form under 8 U.S.C. §§ 1187, 1255(c)(4), but
died within two years of the qualifying marriage remains a “spouse” under 8 U.S.C.
§ 1151(b)(2)(A)(i).

C.     The Plain Language of 8 U.S.C. § 1151(b)(2)(A)(i)

       The Supreme Court has established a three-step framework for interpreting
statutes: “first, a natural reading of the full text; second, the common-law meaning of the
statutory terms; and finally, consideration of the statutory and legislative history for
guidance.” United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc.,
400 F.3d 428, 442 (6th Cir. 2005) (citing United States v. Wells, 519 U.S. 482, 490-92
(1997)). In interpreting the “immediate relative” provision, we begin by examining “the
language of the statute itself to determine if its meaning is plain. Plain meaning is
examined by looking at the language and design of the statute as a whole.” United States
v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008) (quoting United States v. Wagner, 382 F.3d
598, 607 (6th Cir. 2004)) (internal quotation marks omitted). However, if “the statutory
language is not clear, we may examine the relevant legislative history.” Id. The relevant
part of 8 U.S.C. § 1151 defines an “immediate relative” as:

       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 (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
       204(a)(1)(A)(ii) [8 U.S.C. § 1154(a)(1)(A)(ii)] within 2 years after such
       date and only until the date the spouse remarries. For purposes of this
No. 08-3321         Lockhart v. Napolitano, et al.                                   Page 7


        clause, an alien who has filed a petition under clause (iii) or (iv) of
        section 204(a)(1)(A) of this Act [8 U.S.C. § 1154(a)(1)(A)] remains an
        immediate relative in the event that the United States citizen spouse or
        parent loses United States citizenship on account of the abuse.
8 U.S.C. § 1151(b)(2)(A)(i). According to the plain language of the first sentence of
8 U.S.C. § 1151(b)(2)(A)(i), “ spouses” are “immediate relatives.” In the first sentence
of the “immediate relative” provision, “[o]nly alien parents are subject to any limitation,
with the grant of ‘immediate relative’ status being restricted to those whose citizen child
is at least 21 years of age.” Freeman, 444 F.3d at 1039; see also § 1151(b)(2)(A)(i).
Given that “[t]here is no comparable qualifier to be a “spouse”—that is, a requirement
that the marriage must have existed for at least two years”— we must assume that
Congress intended no limitation on that term beyond the requirement that both parties
are present for the marriage ceremony. Freeman, 444 F.3d at 1039 (quoting Keene
Corp. v. United States, 508 U.S. 200, 208 (1993) (“[W]here Congress includes particular
language in one section of a statute but omits it in another . . . , it is generally presumed
that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”)).

        The question, then, is whether the second sentence of the “immediate relative”
provision modifies the first, such that an alien widow or widower is no longer a “spouse”
if she or he had not been married for two years at the time of the citizen-spouse’s death.
We find that it does not. The second sentence of the “immediate relative” provision
provides:

        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
        204(a)(1)(A)(ii) [8 U.S.C. § 1154(a)(1)(A)(ii)] within 2 years after such
        date and only until the date the spouse remarries.
8 U.S.C. § 1151(b)(2)(A)(i). The grammatical structure of the immediate relative
provision provides evidence that the first and second sentences of § 1151(b)(2)(A)(i) are
two distinct provisions. Unlike the limitation placed on parents, Congress did not
No. 08-3321        Lockhart v. Napolitano, et al.                                    Page 8


explicitly impose a two-year marriage-duration requirement on the term “spouse” in the
first sentence. As the Ninth Circuit aptly notes,

       [i]t is relevant that Congress introduced the two-year durational
       requirement for certain alien widows in a separate sentence of the
       statute. The grammatical structure of this statute suggests that the second
       sentence stands independent of the first and does not qualify the general
       definition of spouse.
Freeman, 444 F.3d at 1041 n.14 (citing United States v. Ron Pair Enter., 489 U.S. 235,
241-42 (1989)) (quotation marks omitted). We agree with the Freeman court that “the
two-year durational language in the second sentence of § 1151(b)(2)(A)(i) grants a
separate right to an alien widow to self-petition, within two years of the citizen spouse’s
death, by filing a [F]orm I-360 where the citizen spouse had not filed an immediate
relative petition prior to his death.” Id. at 1039. Under the regulations implementing the
INA, a widow or widower may self-petition for classification as an immediate relative
only if (1) “she had been married for at least two years to a United States citizen,”
(2) “the petition is filed within two years of the death of the citizen spouse,” (3) “the
alien petitioner and the citizen spouse were not legally separated at the time of the
citizen’s death,” and (4) “the alien spouse has not remarried.”                 8 C.F.R.
§§ 204.2(b)(1)(i)-(iv). From this, the Freeman court reasoned that “the more logical and
statutorily substantiated interpretation of the second sentence is that it applies 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.

       According to the Freeman court, the framework of “immediate relative” petitions
as set forth in 8 U.S.C. § 1154 supports this conclusion. Freeman, 444 F.3d at 1041.
8 U.S.C. § 1154(a) describes the types of petitions that may be filed for an alien’s
classification as an “immediate relative” under § 1151(b)(2)(A)(i) of the INA. Under
8 U.S.C. § 1154(a)(1)(A)(i), “[a] citizen or lawful permanent resident of the United
States petitioning under section 204(a)(1)(A)(i) or 204(a)(1)(B)(i) of the Act for a
qualifying relative’s classification as an immediate relative under section 201(b) of the
No. 08-3321         Lockhart v. Napolitano, et al.                                    Page 9


Act . . . must file a Form I-130 [p]etition [for the] [a]lien [r]elative.” While under section
204.1(a)(2) of the INA, an alien-spouse whose citizen-spouse had not filed a petition on
his or her behalf prior to the citizen-spouse’s death, may file a self-petition under section
204(a)(1)(A)(ii) of the Act for“immediate relative” status but must file a Form I-360
petition. The Freeman court explained that “the distinction the regulations draw
between the rights of a citizen spouse to petition as compared to those of an alien widow
to self-petition is consistent with a congressional intent to create 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.” Id. at 1041-1042. But, “there is no
provision that the citizen spouse’s pending petition (and consequently the alien spouse’s
immediate relative status) is voided on his death, requiring the widow to start over with
her own self-petition.” Id. at 1042.

        Like the Freeman court, we conclude that the second sentence expands
“immediate relative” status to include a surviving alien-spouse whose citizen spouse
failed to file an application on his or her behalf prior to the citizen-spouse’s death, but
that sentence has no effect on the status of a surviving alien-spouse whose citizen spouse
filed a petition for immediate relative status prior to his or her death. The two-year
marriage-duration language in the second sentence of the immediate relative provision
appears to be a procedural requirement for a self-petition in the event that the
citizen-spouse dies, rather than a restriction on who is considered a “spouse” when the
citizen-spouse petitions on behalf of the alien spouse.

        The use of the term “spouse” throughout the “immediate relative” provision also
supports our conclusion.      The term “spouse” is used in the second sentence of
§ 1151(b)(2)(A)(i) to refer to a surviving alien-spouse. In the second sentence, an alien
spouse whose citizen spouse has died and not filed a Form I-130 petition on the alien
spouse’s behalf may self-petition “only if the spouse files a petition” and “only until the
date the spouse remarries.” 8 U.S.C. § 1151(b)(2)(A)(i) (emphasis added). Here, instead
of referring to the surviving alien-spouse as a widow or widower, or with a qualifying
term such as “former” or “surviving,” Congress described the surviving alien-spouse as
No. 08-3321        Lockhart v. Napolitano, et al.                                Page 10


a “spouse.” The Secretary, however, contends that Congress’s use of the phrase “was
the spouse” in the second sentence of § 1151(b)(2)(A)(i) indicates that it considered a
“surviving spouse” as separate and distinct from the common, ordinary meaning of the
term “spouse.” We disagree. The more natural reading of the second sentence indicates
that the word “was” does not merely modify the term “spouse” but modifies the entire
phrase in order to establish a marriage-duration requirement for self-petitions, i.e., the
alien-spouse “was a spouse . . . for at least two years.” 8 U.S.C. § 1151(b)(2)(A)(i)
(emphasis added). The grammatical structure of the entire second sentence supports our
reading. There, the word “was” modifies the entire phrase, i.e., “and was not legally
separated from the citizen at the time of the citizen’s death.” 8 U.S.C. § 1151
(b)(2)(A)(i). Accordingly, we conclude that surviving alien-spouses, whose citizen-
spouse petitioned on his or her behalf prior to death are “spouses,” are “immediate
relatives” within the meaning of 8 U.S.C. § 1151(b)(2)(A)(i).

D.     Common, Ordinary Meaning of the Term “Spouse” Includes “Surviving
       Spouses”
       The common-law meaning of the term “spouse” supports our reading of the INA.
First, we observe that the term “spouse” is not defined in the “immediate relative”
provision of the INA. See 8 U.S.C. § 1151. In the definition section of the INA,
however, the term “spouse” is defined only to the extent it excludes “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). Because the term “spouse” is not defined in the
INA, we must determine the meaning of the term from its ordinary, contemporary,
common meaning at the time Congress enacted the statute. See Perrin v. United States,
444 U.S. 37, 42 (1979); Limited, Inc. v. Comm’r, 286 F.3d 324, 333 (6th Cir. 2002).
Enacted in 1965, the original “immediate relative” provision of the INA stated, in
relevant part: “‘immediate relative’ . . . 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.” See Act to Amend the Immigration and Nationality
Act, Pub. L. No. 89-236. At that time, the ordinary, common meaning of the term
No. 08-3321             Lockhart v. Napolitano, et al.                                               Page 11


“spouse” included a “surviving spouse.” According to Black’s Law Dictionary, a
spouse is “one’s wife or husband.” Black’s Law Dictionary 1574 (4th ed. 1951). That
definition cites Rosell v. State Industrial Accident Commission, 95 P.2d 726, 729 (Or.
1939), which, in turn, states: “[t]he legal, as well as the ordinary, meaning of ‘spouse’
is ‘one’s wife or husband’; and a ‘surviving spouse’, therefore, must be the one, of a
married pair, who outlives the other.” Later, in 1990, when Congress amended the INA
to add the second sentence of the “immediate relative” provision, it did not provide an
alternative definition of the term “spouse.” And, at that time, the sixth edition of Black’s
Law Dictionary provided that a spouse is “one of a married couple who outlives the
other.” Black’s Law Dictionary 1402 (6th ed. 1990). Therefore, we conclude that the
common, ordinary meaning of the term “spouse” includes a “surviving spouse.” As
such, “spouse,” as used in the “immediate relative” provision of the INA, includes a
“surviving spouse.”

         The Secretary, however, argues that because a marriage ends with the death of
one spouse, a surviving spouse is not a “spouse” within the common, ordinary meaning
of the term. The Secretary cites the Defense of Marriage Act, 1 U.S.C. § 7, the USA
Patriot Act of 2001, Pub. L. 107-56, 115 Stat. 272 § 421, the National Defense
Authorization Act for Fiscal Year 2004, Pub. L. 108-136, 117 Stat. 1693, and Ohio law,
Dibble v. Dibble, 100 N.E.2d 451, 461 (Ohio Ct. App. 1950) (holding death terminates
marriage in Ohio). We find this argument unavailing.

         First, the Secretary’s argument under the Defense of Marriage Act fails because
the plain language of “[s]ection 7 emphasizes that spouses shall be of the opposite sex,
it does not mandate that spouses lose their status as such with the death of either one of
them.”1 Taing v. Chertoff, 526 F. Supp. 2d 177, 184 (D. Mass. 2007), appeal docketed,
No. 08-1179 (1st Cir. Feb. 11, 2008). Second, the language of the USA Patriot Act of


         1
           In Taing, the court noted that “H.R. 3396, the Defense of Marriage Act, has two primary
purposes. The first is to defend the institution of traditional heterosexual marriage. The second is to protect
the right of the states to formulate their own public policy regarding the legal recognition of same sex
unions.” Taing, 526 F. Supp. 2d at 185 n.5. To further those purposes, “H.R. 3396 has two operative
provisions. Section 2 entitled ‘Powers reserved to the States’ and Section 3 [which] defines the term
‘marriage’ and ‘spouse’ for the purposes of federal law only, to reaffirm that they refer exclusively to
relationships between persons of the opposite sex.” Id. (citing H.R. REP. No. 104-664, at 2 (1996)).
No. 08-3321             Lockhart v. Napolitano, et al.                                                Page 12


2001 and the National Defense Authorization Act for Fiscal Year 2004 modifies the
second sentence of the “immediate relative” provision, not the first. As explained above,
the first and second sentences of the “immediate relative” provision are two distinct
provisions. Like the second sentence of the “immediate relative” provision, which
permits an alien spouse to file a self-petition in the event that his or her spouse did not
file a Form I-130 petition on the alien’s behalf prior to his death, the Patriot and the
National Defense Authorization Acts provide a separate avenue for self-petitioning
without requiring the alien-spouse to have been married for two years in the event that
the deceased citizen did not petition prior to death.2

         Finally, the Secretary’s argument also fails under Ohio law. According to the
Secretary, under Ohio law, a marriage ends with the death of one of the spouses. Dibble,
100 N.E.2d at 461. Although federal courts may look to state law for guidance in
defining terms, formulating concepts, or delineating policies, courts need not incorporate
state-law definitions where to do so would frustrate a federal statute’s purposes. See
Ford v. Uniroyal Pension Plan, 154 F.3d 613, 617 (6th Cir. 1998) (citing De Sylva v.
Ballentine, 351 U.S. 570 (1956) (noting courts may look to state-law definitions of terms
in defining such terms in a federal statute but need not where doing so would frustrate
the purpose of the federal statute). Moreover, the Secretary does not explain why we
should elevate Ohio’s definition of spouse or marriage above the intent of Congress.
Nor does the Secretary argue that Congress considered Ohio law or any other state law


         2
          The applicable language of the USA Patriot Act of 2001 and the National Defense Authorization
Act for Fiscal Year 2004 is identical. Section 423 of the USA Patriot Act of 2001 provides:
         Notwithstanding the second sentence of section 201(b)(2)(A)(i) of the Immigration and
         Nationality Act (8 U.S.C. 1151(b)(2)(A)(i)), in the case of an alien who was the spouse
         of a citizen of the United States at the time of the citizen’s death and was not legally
         separated from the citizen at the time of the citizen’s death, if the citizen died as a direct
         result of a specified terrorist activity, the alien (and each child of the alien) shall be
         considered, for purposes of section 201(b) of such Act, to remain an immediate relative
         after the date of the citizen's death, but only if the alien files a petition under section
         204(a)(1)(A)(ii) of such Act within 2 years after such date and only until the date the
         alien remarries. For purposes of such section 204(a)(1)(A)(ii), an alien granted relief
         under the preceding sentence shall be considered an alien spouse described in the second
         sentence of section 201(b)(2)(A)(i) of such Act.
See USA Patriot Act of 2001, Pub. L. 107-56, 115 Stat. 272 § 421, the National Defense Authorization Act
for Fiscal Year 2004, Pub. L. 108-136, 117 Stat. 1693.
No. 08-3321         Lockhart v. Napolitano, et al.                                     Page 13


when drafting the “immediate relative” provision or during the amendment of that
statute. Accordingly, we find that the common, ordinary meaning of the term “spouse”
includes “surviving spouses.” As such, a surviving alien-spouse is a “spouse” under the
“immediate relative” provision.

E.      The Adjustment-of-Status Regime Supports Our Reading of the Statute

        The Secretary also argues that the present-tense language used in sections 204(b),
204(e) and 205 suggests that the citizen spouse must be alive at the time the Secretary
adjudicates the citizen-spouse’s petition for adjustment of status. Section 204(b)
provides, in relevant part, that if “[a]fter an investigation of the facts in each case, . . .
[the Attorney General] 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 . . . , [she may]
approve the petition.” 8 U.S.C. § 1154(b). Additionally, under section 204(e), approval
of an alien-spouse’s visa petition “shall not be construed to entitle an immigrant . . . to
be admitted . . . as an immediate relative . . . if upon his arrival at a port-of-entry . . . he
is found not to be entitled to such classification.” 8 U.S.C. § 1154(e). And section 205
permits the Secretary to revoke approval of a visa petition at any time for “good and
sufficient cause.” We, however, are not convinced.

        First, we observe that those provisions relate to visa petitions, not Form I-130
petitions. Therefore, it is not entirely clear that even if facts must be true at the time visa
petitions are adjudicated, the same is true of Form-130 petitions. Second, we must
assume that when drafting the INA, Congress did not intend an absurd or manifestly
unjust result. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 509-10 (1989). The
Secretary’s “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.” Robinson, 554 F.3d at 371 (Nygarrd, J., dissenting).
The Secretary had the power to grant Mrs. Lockhart’s application prior to Mr. Lockhart’s
death. Freeman, 444 F.3d at 1042. According to 8 U.S.C. § 1186(a), (b)(1),

        [an] alien spouse who receives permanent resident status as an immediate
        relative before the second anniversary of her qualifying marriage does so
No. 08-3321         Lockhart v. Napolitano, et al.                                  Page 14


        on a conditional basis, and if the Attorney General determines that prior
        to the second anniversary of the alien’s obtaining status the alien’s
        marriage “has been judicially annulled or terminated, other than through
        the death of a spouse,” the Attorney General “shall terminate the
        permanent resident status of the alien.”
Freeman, 444 F.3d at 1042 (quoting 8 U.S.C. § 1186(a), (b)(1)). “Had it done so, [Mrs.
Lockhart’s lawful permanent resident] status could not then have been voided by her
husband’s death, as the statute expressly states.” Id. As such, either the timing of the
Secretary’s adjudication of the petition or the timing of the citizen-spouse’s death would
control the outcome of immediate relative petitions. For example, a prompt adjudication
of the petition for adjustment of status results in approval, even if the couple had not
been married for two years before the adjustment of status. However, a delay in
adjudication results in denial if the citizen spouse happens to die before the couple’s
two-year anniversary. But a severe delay of two years followed by the citizen’s death
results in approval because the alien-spouse could self-petition. This is exactly the type
of absurdity to be avoided in the construction of statutes. See Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 575 (1982) (“[I]nterpretations of a statute which would
produce absurd results are to be avoided if alternative interpretations consistent with the
legislative purpose are available.”). We cannot ignore the plain meaning of the statute
which results in a consistent and rational statutory scheme in favor of a reading that is
arbitrary and unjust.

F.      The INA’s Revocation Provision Does Not Affect Pending “Immediate
        Relative” Petitions
        Next, the Secretary contends that because she has had the right to revoke the
approval of a petition for “good and sufficient cause” under 8 U.S.C. § 1155, it follows
that she may also deny a pending Form I-130. Lockhart counters that the Secretary
waived this argument because it was raised for the first time on appeal. Despite our
general rule that “[i]ssues not presented to the district court but raised for the first time
on appeal are not properly before the court,” we have “stated that it may be appropriate
to consider a new issue on appeal if it is presented with sufficient clarity and
completeness for us to resolve the issue.” McFarland v. Henderson, 307 F.3d 402, 407
No. 08-3321              Lockhart v. Napolitano, et al.                                            Page 15


(6th Cir. 2002) (quoting J.C. Wyckoff & Assocs.,Inc. v. Standard Fire Ins. Co., 936 F.2d
1474, 1488 (6th Cir. 1991)). We “most commonly exercise [our] discretion to reach
issues not raised below” when “the issue is one of law, and further development of the
record is unnecessary.” Id. (quoting Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993)).
Given that the issue before us is purely a question of law, which requires no further
development of the record, we find that this issue presents an appropriate circumstance
for exercising our discretion to reach an issue not raised below.

         Nonetheless, we find this argument unpersuasive. Under 8 U.S.C. § 1155:
         The Secretary of Homeland Security may, at any time, for what [she]
         deems to be good and sufficient cause, revoke the approval of any
         petition approved by him under section 204 [8 U.S.C. § 1154]. Such
         revocation shall be effective as of the date of approval of any such
         petition.
8 U.S.C. § 1155 (emphasis added). Under the implementing provisions of the INA
approval of a petition or self-petition made under section 204 of the Act, 8 U.S.C.
§ 1154, and in accordance with part 204 of this chapter, is revoked as of the date of
approval upon the death of the beneficiary or the self-petitioner. See 8 C.F.R.
§ 205.1(a)(3)(C). First, the plain language of 8 U.S.C. § 1155 applies to approved
petitions for adjustment of status, not pending petitions for immediate-relative status.
Second, Congress may have had a reasonable basis to permit the DHS to revoke
approved petitions, but not permit the denial of pending petitions. Under the regulations,
the DHS has discretion to refrain from automatically revoking an approved petition for
humanitarian reasons. See 8 C.F.R. 205.1(a)(3)(i)(C)(2).3 There is no such relief

         3
             8 C.F.R. 205.1 provides:
         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 case, 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 C.F.R.
         part 213a as a substitute sponsor.
8 C.F.R. 205.1(a)(3)(i)(C)(2).
No. 08-3321        Lockhart v. Napolitano, et al.                                 Page 16


available to alien spouses if the pending petition for adjustment of status is denied upon
the death of their citizen spouses. Moreover, it is not entirely clear to us that the DHS
has in fact used this provision to deny pending “immediate relative” petitions solely on
the basis of the citizen-spouse’s death. The Secretary provides no evidence establishing
that the government has, since 1938, denied pending immediate relative petitions solely
on the basis of the citizen spouse’s death, nor has the Secretary provided any historical
analysis linking the “immediate relative” provision to the automatic revocation of
approved petitions. And, because the plain meaning of the statute is clear, there is no
need to resort to legislative history to divine the meaning of the term “spouse” under the
“immediate relative” provision.

G.     Chevron Deference

       Finally, the Secretary contends that even if 8 U.S.C. § 1151 (b)(2)(A)(i) is
ambiguous, under Chevron principles this Court must defer to the agency’s interpretation
of that provision in Matter of Varela, 13 I. & N. Dec. 453 (B.I.A. 1970). There, the BIA
held that when his or her citizen-spouse dies prior to the adjudication of an adjustment-
of-status application, an alien spouse is no longer a “spouse” and is, therefore, no longer
an “immediate relative” under 8 U.S.C. § 1151(b)(2)(A)(i). Id. at 454. Because we find
that the meaning of “spouse” under the “immediate relative” provision is plain, we need
not defer to the BIA’s prior decision. Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-43 (1984) (hereinafter “Chevron”) (providing if “Congress has
directly spoken to the precise question at issue,” then the plain meaning of the statute
controls); see also Nat’l Cotton Council of Am. v. United States EPA, 553 F.3d 927, 933
(6th Cir. 2009). Moreover, even if the statute were ambiguous, a non-precedential
decision like Matter of Varela is not entitled to Chevron deference. See United States
v. Mead Corp., 533 U.S. 218, 226-27 (2001). In Matter of Sano, 19 I. & N. Dec. 299,
301 (B.I.A. 1985), the BIA held that it did not have the jurisdiction to decide whether
a beneficiary alien-spouse remains a “spouse” under § 1151(b)(2)(A)(i) when his or her
citizen-spouse dies prior to the adjudication of an adjustment-of-status application.
Additionally, the BIA’s decision in Varela lacks the necessary statutory analysis that
No. 08-3321        Lockhart v. Napolitano, et al.                                Page 17


would entitle it to either Chevron or Skidmore deference. Freeman, 444 F.3d at 1038;
see also Mead Corp., 533 U.S. at 228 (“The weight [accorded to an administrative]
judgment in a particular case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if lacking power
to control.”) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

                                 III. CONCLUSION

       Thus, for the foregoing reasons, we hold that a surviving alien-spouse, whose
citizen spouse filed a Form I-130 petition prior to his or her death, is a “spouse” under
the “immediate relative” provision of the INA. Therefore, we AFFIRM the district
court’s grant of summary judgment in favor of Lockhart.
