08-0253-ag
Huarcaya v. Mukasey



                          UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT
                                _____________________

                                       August Term, 2008

(Argued: October 29, 2008                                           Decided: December 12, 2008)

                                     Docket No. 08-0253-ag

                                    _____________________

                                ALEJANDRO LINARES HUARCAYA ,
                                                                                        Petitioner,

                                             — v .—

                         MICHAEL B. MUKASEY , ATTORNEY GENERAL ,

                                                                                      Respondent.

                                     ___________________

Before:        WALKER, B.D. PARKER, AND RAGGI, Circuit Judges.

                                     ___________________

        Petitioner Alejandro Linares Huarcaya seeks review of the Board of Immigration
Appeals’s decision upholding the denial of his application for adjustment of status. Because we
find that the BIA’s interpretation of 8 C.F.R. § 1245.10(a)(3) is permissible, we affirm the BIA’s
decision and deny review of the petition.


          DENIED.

                                     ___________________

                                      RAMIRO ALCAZAR, Meriden, Connecticut.

                                                1
                                       ETHAN B. KANTER, Senior Litigation Counsel (Michael P.
                                       Lindemann, Assistant Director, Office of Immigration
                                       Litigation, on the brief) for Gregory G. Katsas, Assistant
                                       Attorney General, Civil Division, Department of Justice,
                                       Washington, D.C.

                                      ___________________

PER CURIAM :

       Petitioner Alejandro Linares Huarcaya, a native and citizen of Peru, seeks review of a

decision of the Board of Immigration Appeals (“BIA”) upholding the denial of his application for

adjustment of status. In re Huarcaya, No. A 79 078 179 (B.I.A. Dec. 17, 2007). We affirm the

BIA’s decision and deny review of the petition.

                                        BACKGROUND

       In 1994, Congress amended 8 U.S.C. § 1255(i) to allow aliens who entered the United

States without inspection and met certain specifications to adjust their status upon the payment of

a penalty fee. Initially, to be eligible for adjustment under § 1255(i), aliens were required to

prove that they had a visa petition or labor certification filed on their behalf on or before January

14, 1998. In 2000, however, Congress temporarily extended that deadline to April 30, 2001.

Pub. L. No. 106-554, 114 Stat. 2763 (codified as amended at 8 U.S.C. § 1255 (2000)).

       The United States Department of Justice promulgated regulations to govern who can be

“grandfathered” under 8 U.S.C. § 1255(i). See 8 C.F.R. § 1245.10. In addition to meeting the

deadline, an alien must show that the relevant labor or marriage-visa petition filed on her behalf

was “approvable when filed.” 8 C.F.R. § 1245.10(a). According to the regulations, “approvable

when filed”

                                                  2
             means that, as of the date of the filing of the qualifying immigrant visa
             petition under section 204 of the Act or qualifying application for labor
             certification, the qualifying petition or application was properly filed,
             meritorious in fact, and non-frivolous (“frivolous” being defined
             herein as patently without substance). This determination will be made
             based on the circumstances that existed at the time the qualifying petition
             or application was filed. A visa petition that was properly filed on or
             before April 30, 2001, and was approvable when filed, but was later
             withdrawn, denied, or revoked due to circumstances that have arisen
             after the time of filing, will preserve the alien beneficiary’s grandfathered
             status if the alien is otherwise eligible to file an application for
             adjustment of status under section 245(i) of the Act.


8 C.F.R. § 1245.10(a)(3) (emphasis added). Therefore, to be eligible for adjustment, an alien

must show that the relevant petition was (1) properly filed (2) meritorious in fact and (3) non-

frivolous.

       Turning to the case at hand, the record reflects that while Huarcaya was living in Peru, he

rented an apartment from a family that had a daughter named Ruth. Although Huarcaya fathered

several children by two different women in Peru, he testified that he dated Ruth in Peru for

approximately eight years. In 1998, Ruth left Peru for the United States and became a legal

permanent resident. Huarcaya came to the United States without inspection in 2000, purportedly

to join her. They were married on March 31, 2000, and within a month, Ruth filed an I-130 visa

petition for Huarcaya.

       The marriage was short-lived, and Ruth and Huarcaya were divorced on March 4, 2002.

Ruth’s I-130 was denied on March 8, 2004. Shortly after his divorce was finalized, Huarcaya

married his second wife, Lucy, an American citizen. Lucy also filed an I-130 on his behalf.

Unlike Ruth’s, Lucy’s I-130 was approved, and Huarcaya filed an I-485 to seek adjustment of


                                                  3
status. The United States Citizenship and Immigration Services (“CIS”) denied the application.

In its denial letter, the CIS explained that at the time of Huarcaya’s I-485 interview, the CIS had

requested evidence concerning the bona fide nature of Huarcaya’s marriage to Ruth and in

response, Huarcaya only submitted photos. Further, noting the approximate one-year duration of

his marriage to Ruth, the CIS concluded that Huarcaya failed to meet his burden of proving that

Ruth’s I-130 petition was approvable when filed.

       After an immigration hearing in which he sought review of the CIS’s determination, and

during which Huarcaya and Ruth testified, the Immigration Judge (“IJ”) found that Huarcaya had

“not met the burden of proof to show that [Ruth’s application for Huarcaya] was approvable

when filed,” and ordered him removed.

       Between the time the IJ rendered his decision in April, 2006 and Huarcaya’s case was

decided by the BIA, the BIA considered the meaning of 8 C.F.R. § 1245.10(a)(3) as a “matter of

first impression.” In re Riero, 24 I. & N. Dec. 267, 268 (B.I.A. Apr. 15, 2007). Riero presented

a similar fact pattern – an alien divorced his first wife, who had filed a marriage-based petition

for him before the cut-off date. The question then became whether his first wife’s petition was

“approvable when filed” such that Riero could be grandfathered under 8 U.S.C. § 1255(i).

       In Riero, the BIA found that “in order for a visa petition to be ‘approvable when filed’ in

this context, there must be a showing that the marriage on which it is based was bona fide.” Id.

“It is not enough to show merely that a marriage existed,” the BIA elaborated. Rather, “in order

to be ‘meritorious in fact,’ the visa petition must be based on a genuine marriage in which the

parties intended to share a life as husband and wife, not a marriage of convenience designed


                                                 4
solely to confer an immigration benefit on one of the parties.” Id. This interpretation “is

confirmed by the explanation of the ‘approvable when filed’ standard in the Federal Register,

which provides as an example that a visa petition is not approvable when filed if it ‘is fraudulent

or if the named beneficiary did not have, at the time of the filing, the appropriate family

relationship or employment relationship that would support the issuance of an immigrant visa.’”

Id. at 268-69. According to the BIA, “[i]n the marriage context, a ‘fraudulent’ visa petition

would include one where the marriage was not entered into in good faith.” Id at 269.

Determining that Riero’s first marriage did not meet this standard, the BIA affirmed.

       In the case before us, the BIA affirmed the IJ’s decision, citing Riero.1 In re Huarcaya,

No. A 79 078 179 (B.I.A. Dec. 17, 2007). The BIA adopted the IJ’s conclusion that “there was

no documentary evidence to support [Huarcaya’s] claim that his first marriage was bona fide at

the time of inception.” Id. “Although it may be true that the respondent and his former wife had

few joint documents or finances because they lived with the ex-wife’s mother in the mother’s

house,” the BIA wrote, “the respondent’s former wife lacked key information about the

respondent, his 6 children left behind in Peru, and the respondent’s financial commitment to

these children . . . .” Id. Further, “there were also inconsistencies between their testimonies

including what type of employment the respondent had in Peru, and how old the former wife was

when she met the respondent.” Id. The BIA denied relief and this petition for review followed.

                                          DISCUSSION


       1
         Because the BIA issued an opinion in this case that, in part, tracked the reasoning of the
IJ, we review the BIA’s decision as it supplements that of the IJ. See Dong Gao v. BIA, 482
F.3d 122, 125 (2d Cir. 2007).

                                                  5
       On appeal, Huarcaya raises two claims. First, he argues that the BIA’s construction of 8

U.S.C. § 1255(i) is not entitled to deference. Second, he argues that the term “meritorious in

fact” is unconstitutionally vague.

I.     Administrative Law Claim

       Huarcaya’s claim under Chevron is that 8 C.F.R. § 1245.10(a)(3) is invalid. See

Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 844 (1984).

Specifically, Huarcaya argues that the BIA’s interpretation of the regulation – which requires that

the petition be both “meritorious in fact” and “non-frivolous” to be “approvable when filed” –

renders “non-frivolous” impermissibly redundant. Under Huarcaya’s analysis of the regulation,

the only permissible interpretation of “meritorious in fact” and “non-frivolous” is not, as the BIA

asserts, that the alien show that the petition was based on a bona fide marriage; rather, he argues

that the petition must only establish a prima facie case for eligibility. Only this reading,

Huarcaya contends, would give content to both the terms “non-frivolous” and “meritorious in

fact,” as opposed to rendering the term “non-frivolous” completely superfluous. The

government, in response, argues that this argument simply identifies an ambiguity in the terms

and does not undermine the reasonableness of the BIA’s interpretation of the regulation.

       We first must determine whether and what kind of deference applies to Huarcaya’s claim.

Huarcaya argues that Chevron applies. Chevron contemplates a two-step inquiry. At step one,

we must determine “whether Congress has directly spoken to the precise question at issue” and

“unambiguously expressed [its] intent.” Id. at 842-43. If the statute is silent or ambiguous, we

must move to the second step and determine whether the agency’s construction is reasonable. Id.


                                                  6
at 843. If the interpretation is reasonable, we must accept it. Id. at 844.

       Because the statute does not speak directly to this question, we can proceed to step two.

Leaving aside for the moment the particular language of the regulation, the BIA’s view

articulated in Riero, requiring a bona fide marriage, is a permissible interpretation of the

requirements of 8 U.S.C. § 1255(i). This interpretation is reasonable in light of the statutory

framework Congress constructed. To be admissible to the United States on the basis of marriage

to a United States citizen, an applicant must establish that the qualifying marriage was “not

entered into for the purpose of procuring an alien’s admission as an immigrant.” 8 U.S.C. §

1186a(d)(1)(A)(i)(III). In the related context of a marriage-based visa petition, the BIA has

required a petitioner to establish a “bona fide marital relationship” and a “valid marriage from its

inception.” See Matter of Phillis, 15 I. & N. Dec. 385, 387 (B.I.A. July 7, 1975); Matter of

Laureano, 19 I. & N. Dec.1, 1 (B.I.A. Dec. 12, 1983). Requiring the visa petition to be

“approvable when filed” and “meritorious in fact” is consistent with these principles.

       Although the regulations merit Chevron deference, Chevron is not necessary to resolve

this appeal. In arguing for Chevron deference, Huarcaya conflates the issue of whether the

agency has legitimately interpreted a congressional statute with whether the BIA has legitimately

interpreted its own regulations. By focusing exclusively on the BIA’s reading of “meritorious in

fact” and “non-frivolous” in 8 C.F.R. § 1245.10(a)(3), Huarcaya is challenging the BIA’s

interpretation of its own regulations, not the agency’s interpretation of the statute.2 Therefore,


       2
          This confusion is illustrated by Huarcaya’s statement that “[i]t is inexplicable that the
[sic] Congress would specifically require that an application be ‘non-frivolous’ and ‘meritorious
in fact’ if it thought the terms were equivalent.” (Petr.’s Br. 12). Congress, of course, did not

                                                  7
Auer deference, and not Chevron, applies here. Auer v. Robbins, 519 U.S. 452 (1997). As we

have stated in the past, “Chevron deference is the deference afforded to an agency’s

interpretation of a statute it is charged with administering. . . . Auer deference is the deference

we afford to an agency’s interpretation of its own regulations.” Edwards v. INS, 393 F.3d 299,

308 n.11 (2d Cir. 2004) (citation omitted).

        Auer requires that an “agency’s interpretations [of its own regulations] are . . . entitled to

deference and are ‘controlling unless plainly erroneous or inconsistent with the regulation.’”

Llanos-Fernandez v. Mukasey, 535 F.3d 79, 82 (2d Cir. 2008) (quoting Auer, 519 U.S. at 461).

See also Bah v. Mukasey, 529 F.3d 99, 110-11 (2d Cir. 2008) (“[W]e give ‘substantial deference’

to BIA decisions interpreting immigration regulations . . . , unless an interpretation is ‘plainly

erroneous or inconsistent with the regulation.’”) (citations omitted). It is “axiomatic that the

[agency’s] interpretation need not be the best or most natural one by grammatical or other

standards . . . . Rather, the [agency’s] view need be only reasonable to warrant deference.”

Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991); see also Wangchuck v. Dep’t of

Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006) (“We review [the BIA’s] interpretations of [its]

immigration regulations with ‘substantial deference’ . . . .”).

       Auer deference, like Chevron deference, “is warranted only when the language of the

regulation is ambiguous.” Christensen v. Harris County, 529 U.S. 576, 588 (2000). It is clear

that “approvable when filed” is ambiguous; we previously said as much in Butt v. Gonzales, a

case we decided addressing this regulation. 500 F.3d 130, 135 (2d Cir. 2007) (“The meaning of


promulgate these regulations; the Department of Justice did.

                                                  8
‘approvable when filed’ is ambiguous . . . .”). Indeed, “approvable when filed” could have several

different meanings, including that the persons were actually married; that the persons submitted

materials showing that they were actually married; that the petition facially met each requirement;

or that the petition was non-fraudulent. Moreover, given the fact that “meritorious in fact” and

“non-frivolous” – the terms the regulations use to define “approvable when filed” – are

somewhat redundant, we find the regulation to be ambiguous. See id. (recognizing potential

redundancies in the language “meritorious in fact” and “non-frivolous”).

        A recognition of the potential for redundancy in the BIA’s interpretation does not, on its

own, however, render the BIA’s interpretation plainly erroneous or inconsistent with the

regulation. Under well-settled principles of statutory construction, language should be read to

give effect to each of its terms. Although Huarcaya’s interpretation may give more content to

“non-frivolous,” this interpretation still does not entirely reconcile “meritorious in fact” and “non-

frivolous,” given that “meritorious in fact” on its own still connotes a requirement of legitimacy

beyond a prima facie showing. If in this case the agency had promulgated regulations that

rendered a statutory term redundant, Huarcaya’s argument might carry some weight. Yet we are

not here to select what a party contends is the “better” interpretation; we are constrained to accept

an agency’s interpretation that is not plainly erroneous. As the Supreme Court stated in Auer,

“[t]here is . . . no reason to suspect that the interpretation does not reflect the agency’s fair and

considered judgment.” Auer, 519 U.S. at 462.

        Further, it is unclear whether the statutory principle not to render a term redundant even

applies to deference to an agency regulation. In Auer, the petitioners argued that the Secretary of



                                                    9
Labor’s interpretation of its regulation “contravenes the rule that FLSA exemptions are to be

narrowly construed against employers and are to be withheld except as to persons plainly and

unmistakably within their terms and spirit.” Auer, 519 U.S. at 462 (internal quotation marks and

alteration omitted). The Court rejected the application of this rule to the Secretary. Justice Scalia

wrote that the rule is one “governing judicial interpretation of statutes and regulations, not a

limitation on the Secretary's power to resolve ambiguities in his own regulations.” Id. at 462. The

Court concluded that “[a] rule requiring the Secretary to construe his own regulations narrowly

would make little sense, since he is free to write the regulations as broadly as he wishes, subject

only to the limits imposed by the statute.” Id. at 462-63. A similar argument could be made

regarding the BIA’s interpretation of its regulations.

       At any rate, the BIA’s interpretation is particularly reasonable given that we have allowed

the BIA to interpret its regulations in light of a statute, even when the plain language of a

regulation might suggest different interpretations. In Joaquin-Porras v. Gonzales, 435 F.3d 172

(2d Cir. 2006), for example, we reviewed a claim that an immigration judge’s decision

contradicted the plain language of the applicable regulation, to which we ascribed deference.

Although we noted that the “plain-language argument seems plausible,” we concluded that “read

in the context of other immigration statutes and decisions, the IJ’s conclusion when applying the

statute was reasonable, despite the fact that he seemed to disregard the words of the applicable

regulation.” Id. at 179. See also Singh v. Mukasey, 536 F.3d 149, 154 (2d Cir. 2008) (“We have

recognized the BIA’s authority to construe regulations in light of statutes, even when their plain

text seems to conflict. In this case, too, the BIA has permissibly construed the regulation so as to



                                                  10
harmonize it with the statute. The BIA did not violate our mandate in doing so.” (citation

omitted)). The BIA’s interpretation is consistent with Congress’s intent to require aliens

petitioning for adjustment under marriage-based visas to prove that their marriages are legitimate,

and consequently merits deference.

       For all these reasons, we conclude that the BIA’s interpretation of “meritorious in fact” in

Riero – and the case at hand – is permissible. As the First Circuit explained in adopting the same

interpretation, albeit before the BIA’s pronouncement in Riero, requiring a showing of a bona fide

marriage is consistent with the “history of the statute’s grandfather clause” which was “aimed to

protect those who had legitimate visa applications on file before the more restrictive amendment

came into force,” rather than giving applicants a “second bite at the apple.” Echevarria v. Keisler,

505 F.3d 16, 19-20 (1st Cir. 2007) (emphasis added).



II.    Void for Vagueness Claim

       Huarcaya also claims that both the statute and the regulation violate due process because

they are “void for vagueness” as applied to him, arguing that the phrase “meritorious in fact” is

undefined and does not appear to have any well-known meaning. Huarcaya’s ability to maintain a

void-for-vagueness challenge to a civil regulation that provides immigration benefits is not clear.

See generally Arriaga v. Mukasey, 521 F.3d 219, 222-23 (2d Cir. 2008) (“The ‘void for

vagueness’ doctrine is chiefly applied to criminal legislation. Laws with civil consequences

receive less exacting vagueness scrutiny.”). We need not resolve that issue, nor need we address

the government’s claim that Huarcaya does not have a due process interest in adjustment of status,



                                                 11
because Huarcaya has failed to establish that the provision is vague as applied to him.

       “When the challenge is vagueness ‘as applied,’ there is a two-part test: a court must first

determine whether the statute gives the person of ordinary intelligence a reasonable opportunity to

know what is prohibited and then consider whether the law provides explicit standards for those

who apply it.” United States v. Nadi, 996 F.2d 548, 549 (2d Cir. 1993) (internal quotation marks

and alterations omitted); see also Farrell v. Burke, 449 F.3d 470, 486 (2d Cir. 2006). Although

“meritorious in fact” is not a specifically defined term, Huarcaya did not lack notice as to what

was required. The CIS told Huarcaya that he needed to submit more documentation to

supplement his first wife’s I-130, and that pictures alone were not enough. Moreover, Huarcaya

knew already from the application his second wife successfully submitted and copiously

documented for her I-130 petition what he needed to show to prove his marriage. As for the

second prong, we agree with the government that marriage-based visa eligibility has always meant

that a petitioner had to demonstrate that his marriage was bona fide. Given the guidance supplied

by Riero and immigration judges’ familiarity with determining the validity of marriage-based

petitions, no real threat of arbitrary enforcement is presented. We therefore find that the

regulation is not void for vagueness.

                                          CONCLUSION

       For the foregoing reasons, we deny review.




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