Tovar v. Zuchowski

982 F.3d 631

Maria Del Carmen MEDINA TOVAR; Adrian Jovan Alonso Martinez, Plaintiffs-Appellants,

v.Laura B. ZUCHOWSKI, Director, Vermont Service Center, United States Citizenship and Immigration Services; Chad F. Wolf, Secretary, Department of Homeland Security; William P. Barr, Attorney General, Defendants-Appellees.

No. 18-35072

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc September 23, 2020 San Francisco, California

Filed December 3, 2020

GRABER, Circuit Judge:

Plaintiff Maria Medina Tovar, a native and citizen of Mexico, came to the United States with her family in 1998, at the age of six. When she was twelve, a stranger raped her at knife-point in her home. She cooperated with law enforcement officials and, because of the rape, has suffered substantial trauma. In 2013, Medina Tovar filed a Form I-918 seeking a U visa, which is designed to grant legal status to certain non-citizen victims of crime who assist law enforcement. In September 2015, she married Plaintiff Adrian Alonso Martinez, who also is a native and citizen of Mexico. Thereafter, Medina Tovar was granted U-visa status effective October 1, 2015. On March 29, 2016, she filed a Form I-918, Supplement A, which is a petition for a derivative U visa, for her husband. Defendants, acting on behalf of United States Citizenship and Immigration Services ("USCIS"), denied the petition because Plaintiffs were not married when Medina Tovar filed her initial petition in 2013. Title 8 C.F.R. § 214.14(f)(4) contains the regulatory requirement that spouses be married at the time that the Form I-918 is filed.

Plaintiffs then brought this action for declaratory and injunctive relief. The district court granted Defendants’ motion for summary judgment and denied Plaintiffs’ motion for summary judgment, ruling that Congress did not address directly the question of when a marital relationship must exist for a spouse to be eligible for derivative U-visa status and that the regulation is a reasonable interpretation of the governing statute.

We have jurisdiction under 28 U.S.C. § 1291. On de novo review, Herrera v. USCIS, 571 F.3d 881, 885 (9th Cir. 2009), we hold that 8 C.F.R. § 214.14(f)(4) is not a permissible interpretation of the governing statute insofar as it requires that spouses be married when the Form I-918 is filed, rather than when the principal petition is granted. Accordingly, we reverse.

THE STATUTE

Title 8 U.S.C. § 1101(a)(15)(U) sets forth the requirements for obtaining a U visa. In relevant part, the statute grants legal status to

(i) ... an alien who files a petition for status under this subparagraph, if the Secretary of Homeland Security determines that–

(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);

(II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii);

(III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and

(IV) the criminal activity described in clause (iii) ... occurred in the United States ...;

(ii) if accompanying, or following to join, the alien described in clause (i)–

(I) in the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien; or

(II) in the case of an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien; and

(iii) the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape ....

8 U.S.C. § 1101(a)(15)(U) (emphases added). Medina Tovar unquestionably fits the statutory criteria, as confirmed by USCIS's grant of a U visa.

THE REGULATION

The regulation that Plaintiffs challenge provides in relevant part:

Except as set forth in paragraphs (f)(4)(i) and (ii) of this section, the relationship between the U-1 principal alien and the qualifying family member must exist at the time Form I-918 was filed, and the relationship must continue to exist at the time Form I-918, Supplement A is adjudicated, and at the time of the qualifying family member's subsequent admission to the United States.

(i) If the U-1 principal alien proves that he or she has become the parent of a child after Form I-918 was filed, the child shall be eligible to accompany or follow to join the U-1 principal alien.

(ii) If the principal alien was under 21 years of age at the time he or she filed Form I-918, and filed Form I-918, Supplement A for an unmarried sibling under the age of 18, USCIS will continue to consider such sibling as a qualifying family member for purposes of U nonimmigrant status even if the principal alien is no longer under 21 years of age at the time of adjudication, and even if the sibling is no longer under 18 years of age at the time of adjudication.

8 C.F.R. § 214.14(f)(4) (emphasis added). Plaintiffs contest only the emphasized requirement that the spousal relationship must exist at the time the original Form I-918 is filed.

ANALYSIS

When reviewing the validity of a regulation, we apply the two-step process that the Supreme Court established in Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Coyt v. Holder, 593 F.3d 902, 905 (9th Cir. 2010).

At step one, we must decide whether the intent of Congress is clear from the terms of the statute that it enacted or whether, instead, the statute is ambiguous. Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778. To maintain the proper separation of powers between Congress and the executive branch, we must "exhaust all the traditional tools of construction" before we "wave the ambiguity flag." Kisor v. Wilkie, ––– U.S. ––––, 139 S. Ct. 2400, 2415, 204 L.Ed.2d 841 (2019) (internal quotation marks omitted). "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." Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778.

If, but only if, the statute is ambiguous after using ordinary tools of construction, we reach step two. Id. at 843, 104 S.Ct. 2778. At step two, we ask whether the agency has construed the ambiguity in a permissible way. Id.

We have applied the Chevron framework in the immigration context. In doing so, we have held that an agency may not add a new requirement when Congress has specified the criteria for a particular immigration benefit. Schneider v. Chertoff, 450 F.3d 944, 956 (9th Cir. 2006) ; Bona v. Gonzales, 425 F.3d 663, 670 (9th Cir. 2005). That is precisely the situation we face here.

The question that the regulation answers is this: At what point must a person be married to the principal applicant to first qualify for a derivative U visa as a spouse—(a) when the application is filed, or (b) when the principal applicant receives a U visa?

The regulation adopts the former view. Defendants reason that the statute fails to define "accompanying, or following to join," making the statute ambiguous, but see Averett v. U.S. Dep't of Health & Human Servs., 943 F.3d 313, 315 (6th Cir. 2019) ("A statute's terms are not ambiguous simply because the statute itself does not define them."), and that the regulation imposes reasonable requirements because an after-acquired spouse is not "accompanying, or following to join," the principal U-visa applicant.

But, when we employ traditional tools of interpretation, the statute plainly answers "no" to the question whether the spousal relationship must exist at the time the original U-visa petition is filed. Two principles are relevant to our analysis.

First, Congress clearly thought about the timing question. With respect to principal petitioners who are younger than 21, Congress expressly provided that an unmarried sibling must have been younger than 18 at the time the principal petitioner filed for U-visa status. "[I]n the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien" are qualifying relatives. 8 U.S.C. § 1101(a)(15)(U)(ii)(I). By contrast, with respect to other relatives—spouses, children, and parents—the statute contains no similar reference to or reliance on the date of the principal petitioner's application.

One of the most common tools of statutory construction is this: "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Nken v. Holder, 556 U.S. 418, 430, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (internal quotation marks and brackets omitted). That maxim is especially apt here, because the distinction appears in a single paragraph, 8 U.S.C. § 1101(a)(15)(U)(ii). Congress intended that the timing of the petition is relevant with respect to only one category of relatives: unmarried siblings under 18 years of age. Indeed, the regulation expressly recognizes that children of a principal petitioner are qualifying relatives even if they were not born when the Form I-918 was filed, 8 C.F.R. § 214.14(f)(4)(i). Yet the regulation fails to...