Manish S. Shah, United States District Judge.
Plaintiff Frederick Velasco Bait It, a citizen of the Philippines, petitioned the Attorney General under the Immigration and Nationality Act for classification as the abused spouse of a U.S. citizen. Eligibility for that classification requires, among other things, that the self-petitioner "has resided with" her abuser-spouse. U.S. Citizenship and Immigration Services denied Bait It's petition because she had not established that she lived with her spouse during their marriage. Bait It lived with her husband before, but not after, they were married. Bait It seeks a declaratory judgment that she only needed to have lived with her spouse at some point (whether before or after the marriage) to meet the relevant eligibility requirements in the statute. She also seeks an order compelling USCIS to approve her I-360 self-petition. Defendants move to dismiss for failure to state a claim. For the reasons discussed below, defendants' motion to dismiss is denied.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). On a 12(b)(6) motion, a court may only consider allegations in the complaint, documents attached to the complaint, documents that are both referred to in the complaint and central to its claims, and information that is subject to proper judicial notice. Reed v. Palmer, 906 F.3d 540, 548 (7th Cir. 2018) (quoting Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012)).
On July 3, 2014, plaintiff Frederick Velasco Bait It, a Filipino citizen, moved to the United States as a K-1 fiancé of a U.S. citizen. [1] ¶ 13.
Bait It alleges that the Department of Homeland Security and USCIS violated 8 U.S.C. § 1154 by incorrectly requiring her to have lived with her spouse after their marriage. [1] ¶¶ 20-21. She brings a claim under the Administrative Procedure Act seeking a declaratory judgment and to compel USCIS to approve her self-petition. [1] ¶¶ 1-3, 23, A-B (request for relief). Defendants move to dismiss Bait It's complaint in its entirety for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). [8].
A court must dismiss an action if it determines, at any time, that it lacks subject-matter jurisdiction, regardless of whether the parties contest it. Fed. R. Civ. P. 12(h)(3); Schaumburg Bank & Trust Co. v. Alsterda, 815 F.3d 306, 311-12 (7th Cir. 2016). Bait It asserts that the court has federal-question and declaratory-judgment jurisdiction through the APA and the INA. [1] ¶ 3.
Under the APA, a person "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. However, 8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial review of an agency's immigration action that is "in the discretion of the Attorney General or the Secretary of Homeland Security." See also Bultasa Buddhist Temple of Chicago v. Nielsen, 878 F.3d 570, 573 (7th Cir. 2017). In the context of petitions filed under 8 U.S.C. § 1154(a)(1)(A)(iii), like the one at issue here, the Attorney General has the "sole discretion" to consider evidence relating to a filed petition and to determine the weight and credibility of that evidence. Id. § 1154(a)(1)(J).
But statutory-interpretation questions are nondiscretionary. Cuellar Lopez v. Gonzales, 427 F.3d 492, 493 (7th Cir. 2005); Morales-Morales v. Ashcroft, 384 F.3d 418, 423 (7th Cir. 2004). Since Bait It's claim challenges a nondiscretionary question of statutory interpretation, the question at issue "falls outside § 1252(a)(2)(B)'s jurisdiction-stripping rule." Morales-Morales, 384 F.3d at 423. This court has jurisdiction over the dispute.
A noncitizen may petition the Attorney General for classification as an abused spouse of a U.S. citizen via an I-360 petition. 8 U.S.C. § 1154(a)(1)(A)(iii). As relevant here, the statute requires that the self-petitioner "is the spouse of a citizen of the United States"; "is a person of good moral character"; "is eligible to be classified as an immediate relative"; and "has resided with the alien's spouse or intended spouse." Id. §§ 1154(a)(1)(A)(iii)(II)(aa)(AA), (bb), (cc), (dd).
The parties dispute the meaning of the clause "has resided with the alien's spouse or intended spouse." The government contends that the statute requires the self-petitioner and the abuser-spouse to have lived together while they were married. Bait It argues that she need only show that she lived with her abuser at some undefined time. I agree with Bait It.
Statutory interpretation begins with the text of the statute. United States v. All Funds on Deposit with R.J. O'Brien & Assocs., 783 F.3d 607, 622 (7th Cir. 2015); Univ. of Chicago v. United States, 547 F.3d 773, 776 (7th Cir. 2008). Courts "must presume that a legislature says in a statute what it means and means in a statute what it says there." United States v. Rosenbohm, 564 F.3d 820, 823 (7th Cir. 2009) (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)). If the language of a statute is "clear and unambiguous," it "must ordinarily be regarded as conclusive," absent any "clearly expressed legislative intent to the contrary." Id. (quoting United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)); see also All Funds, 783 F.3d at 622 ("When a statute is unambiguous, our inquiry starts and stops at the text.").
The government argues that the term "spouse" in the phrase "has resided with the alien's spouse or intended spouse" demonstrates Congress's intent to require that the self-petitioner and her spouse lived together while they were spouses. I disagree. The word "spouse" is a descriptor used throughout to refer to the U.S. citizen-abuser. The label identifies the person but does not demand that the person have that legal status at every moment in time referring to that person. For example, a section of the statute uses "spouse" to refer to the U.S. citizen-abuser even if the spouse is deceased or if the couple is divorced. 8 U.S.C. §§ 1154 (a)(1)(A)(iii)(II)(aa)(CC)(aaa), (ccc) (noting that a self-petitioner is eligible if the "spouse died within the past 2 years," or self-petitioner can demonstrate a connection "between the legal termination of the marriage" and abuse "by the United States citizen spouse"). This is consistent with ordinary usage. For example, one could say, "She lived with her spouse before they were married," and the word "spouse" would identify the person at issue without any misapprehension by the reader or audience.
Here, Congress used the present-perfect tense—has resided—to describe the residency requirement for a self-petitioner and her spouse. Present-perfect tense denotes "an action having been completed at some indefinite time in the past," and signifies "imprecision of time." Bryan A. Garner, Garner's Modern English Usage 896-97 (4th Ed. 2016); see also Padilla-Romero v. Holder, 611 F.3d 1011, 1013 (9th Cir. 2010) ("As a purely grammatical matter, the use of the present perfect tense `has been' . . . can connote . . . an event occurring at an indefinite past time (`she has been to Rome')); Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010) (similar). In contrast to the past tense, which "indicates a more specific or a more remote time in the past," present-perfect tense refers to "a time in the indefinite past." The Chicago Manual of Style § 5.132 (17th ed. 2017); see also Garner, supra, at 897 ("If . . . the time is relatively definite . . . the simple past [tense] is called for.").
By using the present-perfect tense to require that the self-petitioner "has resided with" the spouse, Congress omitted any temporal restriction on the residency requirement. Had Congress intended to require the self-petitioner to have lived with her spouse while they were married, it would have used the "more specific" past tense to refer to a definite moment in time—after the marriage. See, e.g., Dobrova, 607 F.3d at 301-02 (interpreting Congress's use of "has . . . been admitted" in an immigration statute to refer to "any previous admission . . . including admission in the indefinite past").
Also, as Bait It points out, Congress used the phrase "during the marriage" elsewhere in the statute. See 8 U.S.C. § 1154(a)(1)(A)(iii)(I)(bb) (alien may petition the Attorney General for classification if "during the marriage . . . the alien or a child of the alien has been battered" (emphasis added)). When Congress wanted to limit one of the eligibility requirements to a certain time, it said so. That it did not similarly restrict the "has resided with" clause supports the interpretation that the self-petitioner and the U.S. citizen-abuser need only have lived together at some unspecified past time. See Kucana v. Holder, 558 U.S. 233, 249, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) ("[W]here Congress includes particular language in one section of a statute but omits it in another of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (quoting Nken v. Holder, 556 U.S. 418, 430, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009))).
That the statute uses "abuser" and "spouse" synonymously, and that is how a reader of the statute would understand it, is reflected in the corresponding interim regulations. Title 8 of the Code of Federal
Bait It's interpretation is also consistent with Congress's purpose in creating a self-petition process for abused spouses of U.S. citizens. Congress amended the INA to permit victims of spousal abuse "to leave their batterers without fearing deportation." H.R. Rep. No. 103-395 (1993). Before the amendment, only a U.S. citizen or lawful permanent resident could file a petition for immigration status on behalf of a spouse, and the citizen or lawful permanent resident could withdraw that petition at any time. Id. In creating a mechanism for an abused immigrant spouse to self-petition, Congress sought to prevent the U.S. citizen-abuser "from using the petitioning process as a means to control or abuse an alien spouse." H.R. Rep. No. 103-395; see also Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1518 ("[T]he goal of the immigration protections for battered immigrants included in the Violence Against Women Act of 1994 was to remove immigration laws as a barrier that kept battered immigrant women and children locked in abusive relationships."). Thus, in enacting 8 U.S.C. § 1154(a), Congress's primary focus was on the marital status of the self-petitioner and the abuser at the time of the abuse and the petition, not on the residency requirements. The government's interpretation of the statute here would restrict, rather than expand, the circumstances in which an abused spouse could leave an abuser, potentially chilling petitions. And, it could encourage the self-petitioner to live with the abuser longer than necessary to meet an eligibility requirement. The consequences of the
The government points to legislative history in support of its interpretation, relying on the 2000 amendments to the statute that extended eligibility to several categories of self-petitioners, including those in bigamous relationships or who had been recently widowed or divorced. To encompass petitioners who would have been in a legitimate marriage but for the citizen-spouse's bigamy, Congress changed the residency requirement from "has resided with the alien's spouse" to "has resided with the alien's spouse or intended spouse." VTVPA, 114 Stat. at 1464 (codified as amended at 8 U.S.C. § 1154(a)(1)(A)(iii)(II)(dd)). The government argues that Congress did not further amend the residency requirement to allow for residency before marriage. But Congress would have had no reason to do so since, for the reasons discussed above, the clause as it was written already included pre-marriage residency. Nor do the 2000 amendments inform the meaning of the word "spouse" in the "has resided with" clause. Congress's focus in enacting those amendments was on extending eligibility to petitioners who had previously been excluded; the amendments did not define the word "spouse" or elaborate on the word's significance. If anything, the 2000 amendments confirmed that Congress was using the word spouse only as a general descriptor, since those amendments added references to the self-petitioner's "spouse" even if that spouse had died or the couple was divorced. 8 U.S.C. §§ 1154 (a)(1)(A)(iii)(II)(aa)(CC)(aaa), (ccc).
In the government's view, the word "spouse" in the statute renders it at least ambiguous, so I should defer to USCIS's interpretation. The government relies on prior decisions of the USCIS Administrative Appeals Office, which assume (with little or no analysis) that the statute requires the self-petitioner and her abuser to have lived together during their marriage. But deference to an agency interpretation is only warranted when a statute is ambiguous. All Funds, 783 F.3d at 622. Here, in light of the use of the term "spouse" in the statute as a whole, along with the grammar choice Congress made in the text of the "has resided with" clause, the statute is clear, and I need not reach the issue of deference.
To the extent the statute could be considered ambiguous, Skidmore,
Under Skidmore deference, the agency's interpretation would be "entitled to respect—but only to the extent that [it has the] power to persuade." Arobelidze, 653 F.3d at 520 (quoting Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 751 (7th Cir. 2010)). The relevant factors to consider would be "the thoroughness in [the agency's] 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." Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 S.Ct. 124 (1944)). Here, even if I were to find the statute ambiguous, I would decline to defer to USCIS's interpretation of it. Although consistent with its approach in other cases, the agency's interpretation is not persuasive because, as discussed above, its hypertechnical imposition of a temporal limitation on the word "spouse" is not consistent with the word's use in the statute, ordinary usage, and the statute's purpose.
The "has resided with" clause does not require spousal status at the time of cohabitation. The government's motion to dismiss, [8], is denied. The government shall answer the complaint by October 7, 2019, and a status hearing is set for October 16, 2019, at 9:30 a.m.
