Filed: Dec. 03, 2020
Latest Update: Dec. 05, 2020
FILED
FOR PUBLICATION
DEC 3 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA DEL CARMEN MEDINA No. 18-35072
TOVAR; ADRIAN JOVAN ALONSO
MARTINEZ, D.C. No. 3:17-cv-00719-BR
Plaintiffs-Appellants,
OPINION
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.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted En Banc September 23, 2020
San Francisco, California
Before: Sidney R. Thomas, Chief Judge; and Susan P.
Graber, M. Margaret McKeown, Johnnie B. Rawlinson,
Consuelo M. Callahan, Mary M. Murguia,
Paul J. Watford, Mark J. Bennett, Daniel P. Collins,
Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Graber;
Concurrence by Judge Collins;
Dissent by Judge Callahan
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
2
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);
3
(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
4
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 (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.
5
Chevron, 467 U.S. at 842–43. 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,
139
S. Ct. 2400, 2415 (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.
If, but only if, the statute is ambiguous after using ordinary tools of
construction, we reach step two. Id. at 843. 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?
6
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,
7
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 (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 recognize that the statute treats timing identically for spouses and children. By
giving "these same words a different meaning for each category [of non-citizen],"
the agency "invent[ed] a statute rather than interpret[ing] one." Clark v. Martinez,
543 U.S. 371, 378 (2005).
8
Second, Congress’s use of the phrase "accompanying, or following to join,"
requires the same interpretation of the statute. Earlier immigration laws contained
the same phrase. See Immigration Act of 1924, ch. 190, § 13(c), 43 Stat. 153,
162. Indeed, Congress used the phrase "accompanying or following to join" to
define spouses who may be treated as derivative beneficiaries when a non-citizen
adjusts her status to that of a lawful permanent resident under 8 U.S.C. § 1255(i).
See 8 U.S.C § 1255(i)(1)(B) (incorporating 8 U.S.C. § 1153(d)). Under this 1994
enactment, spouses "accompanying or follow to join" the principal petitioner may
be treated as such so long as the spousal relationship exists before the government
grants the principal’s application for adjustment of status. Landin-Molina v.
Holder, 580 F.3d 913, 919 (9th Cir. 2009) (citing Matter of Naulu, 19 I. & N. Dec.
351, 352 n.1 (BIA 1986)).
When Congress added the "accompanying, or following to join" phrase to
§ 1101(a)(15)(U)(ii) through the Violence Against Women and Department of
Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 801, 119 Stat. 2960,
3054 (2006), that phrase had uniformly, and for decades, been interpreted to mean
that eligibility for derivative status is measured at the time the principal petitioner
is granted an immigration benefit, not at the earlier time when the principal
petitioner applied for that benefit. See Santiago v. INS, 526 F.2d 488, 490–91 (9th
9
Cir. 1975) (en banc) (identifying eligible derivative beneficiaries as those who
have a qualifying relationship with the principal petitioner when the principal
petitioner "actually entered" or at the time of "the grant of a preference" to the
principal). Indeed, a policy memorandum from the former INS stated that "after-
acquired" children and spouses may "adjust under [§ 1255(i)] as long as they
acquire the status of a spouse or child before the principal alien ultimately adjusts
status." Landin-Molina, 580 F.3d at 919 (quoting Accepting Applications for
Adjustment of Status Under Section 245(i), HQ 70/23.1-P, HQ 70/8-P, at 5 (June
10, 1999), reproduced at 76 Interpreter Releases 1017 (July 2, 1999)).
We are aware of no precedent predating 2005, and the agency has cited
none, ruling that the phrase "accompanying, or following to join," either (a)
referred to a time before the principal petitioner received an immigration benefit or
(b) was ambiguous.
Thus, we turn to a second familiar interpretive principle: "When a statutory
term is obviously transplanted from another legal source, it brings the old soil with
it." Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (internal quotation marks
omitted). The term "accompanying, or following to join," was obviously
transplanted from other immigration statutes. The phrase therefore brought with it
the settled meaning that, in the absence of an express carve-out such as 8 U.S.C.
10
§ 1101(a)(15)(U)(ii)(I), the statute measures the derivative relationship only at the
time the principal petitioner receives an immigration benefit. Cf. Comm’r v.
Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993) ("The phrase ‘sale or
exchange’ had acquired a settled judicial and administrative interpretation over the
course of a half century before Congress enacted in § 4975 the even broader
statutory language of ‘any direct or indirect . . . sale or exchange.’ Congress
presumptively was aware when it enacted § 4975 that the phrase ‘sale or exchange’
consistently had been construed to include the transfer of property in satisfaction of
a monetary obligation." (emphasis added)).
The two interpretive principles on which we rely work in tandem here. The
carve-out for siblings under the age of 18 was necessary precisely because
Congress understood that the settled meaning of "accompanying, or following to
join," referred to the date on which an immigration benefit is granted, not to the
date on which the application for that benefit was filed.
In summary, we hold that the statute clearly answers the relevant interpretive
question: to qualify for a derivative U visa as a spouse, a person need not have
been married to the principal applicant at the time the application was filed, so long
as the marriage exists when the principal applicant receives a U visa. Accordingly,
our analysis ends at Chevron step one, without resort to step two. Pereira v.
11
Sessions, 138 S. Ct. 2105, 2113–14 (2018). Title 8 C.F.R. § 214.14(f)(4) is invalid
insofar as it requires a derivative U-visa spouse to have been married to the
principal petitioner when the application was filed.
Plaintiffs were married by the time Medina Tovar was granted a U visa on
October 1, 2015. As of March 29, 2016, when Medina Tovar petitioned for
derivative U-visa status, her husband was entitled to receive a U visa if he
otherwise met the requirements.
REVERSED.
12
Medina Tovar v. Zuchowski, 18-35072 FILED
COLLINS, Circuit Judge, with whom BUMATAY, Circuit Judge, DEC 3 2020
joins, concurring in the judgment: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority that the agency regulation at issue here is
inconsistent with the applicable statute, but I reach that conclusion for somewhat
different reasons. I therefore concur only in the judgment.
I
Maria Medina Tovar is a native and citizen of Mexico who was brought to
the United States in 1998 when she was six years old. She has lived in the United
States ever since. In November 2004, when she was only twelve years old, Medina
Tovar was sexually assaulted in Seaside, Oregon on two separate occasions by a
stranger who had also repeatedly stalked her outside of her school. On June 14,
2013, she filed with U.S. Citizenship and Immigration Services (“USCIS”) a
“Form I-918” petition for a so-called “U-visa,” which refers to a special type of
non-immigrant visa for certain aliens who have been victims of crime in the United
States. The U-visa is so named because the category of persons eligible for such
visas is set forth in subparagraph (U) of § 101(a)(15) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1101(a)(15)(U). In support of her application,
Medina Tovar submitted a certification from the Seaside, Oregon Chief of Police
attesting to her assistance in the investigation of the crimes back in 2004. In early
2014, USCIS notified Medina Tovar that she likely qualified for a U-visa but that
the statutory cap for such visas for that fiscal year had already been met. She was
finally notified on November 24, 2015 that her U-visa had been granted, with an
effective date of October 1, 2015 (which was the first day of fiscal year 2016).
During the more than two years that her application was pending, Medina
Tovar married Adrian Alonso Martinez, a Mexican citizen, on September 21, 2015.
Thereafter, as the holder of a primary U-visa (known as a “U-1 visa”), Medina
Tovar on March 29, 2016, filed a petition for a derivative U-visa on Martinez’s
behalf, using the prescribed “Form I-918, Supplement A.” However, on November
23, 2016, USCIS denied the derivative petition on the ground that Medina Tovar
had not been married to Martinez on June 14, 2013, when she had filed her own
petition for a U-visa. This denial was based on an agency regulation which
provides that, subject to certain exceptions not applicable here:
[T]he 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.
8 C.F.R. § 214.14(f)(4).
Because the agency was bound by its own controlling regulation, Plaintiffs
Medina Tovar and Martinez (“Plaintiffs”) did not attempt to pursue any further
administrative remedies. Instead, in May 2017, they filed this action against the
director of the relevant USCIS service center, as well as the Secretary of Homeland
2
Security (the head of the Department in which USCIS is housed) and the Attorney
General. In their complaint, Plaintiffs allege that the regulation is invalid because,
inter alia, it “adds a restriction that is not part of the statute enacted by Congress.”
Specifically, Plaintiffs contend that the statute only requires that Martinez be
married to Medina Tovar by the time that she obtained her U-visa and that they
need not have been married at the time she applied for her visa. Plaintiffs also
contend that the regulation’s timing requirement differed from that applied to
derivative applications for other forms of immigration relief and that the resulting
distinction violated the equal protection component of the Fifth Amendment’s Due
Process Clause. Based on these allegations, Plaintiffs sought relief, inter alia,
under the judicial review provisions of the Administrative Procedure Act (“APA”),
5 U.S.C. §§ 701–706, and under the Declaratory Judgment Act.
Defendants filed a motion for summary judgment, which the district court
granted. Applying the two-step framework of Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), the court first concluded
that the relevant statutory language setting forth the eligibility for a derivative U-
visa “did not directly address the precise question at issue as to the derivative U
visa status,” and it then held that the regulation was a permissible construction of
the statute. The court separately rejected Plaintiffs’ contention that the regulation
violated equal protection. Plaintiffs timely appealed. After a divided panel
3
affirmed the district court’s judgment, see Medina Tovar v. Zuchowski, 950 F.3d
581 (9th Cir. 2020), we granted rehearing en banc, see Medina Tovar v.
Zuchowski,
957 F.3d 1381 (9th Cir. 2020).1
II
The parties have squarely placed before us the question of whether the
regulatory requirement that “the relationship between the U-1 principal alien and
the qualifying family member must exist at the time Form I-918 was filed,” see
8 C.F.R. § 214.14(f)(4), is consistent with the description of the class of persons
1
I disagree with the Government’s suggestion that this case became moot when,
during the pendency of this appeal, Medina Tovar on July 3, 2019 became a lawful
permanent resident and therefore no longer has U-visa status. As a majority of this
court has concluded, the Government relied on a legally invalid ground in denying
Martinez a derivative U-visa in November 2016, when Medina Tovar did have U-
visa status, and I do not think that the Government has carried its heavy burden to
show that “it is impossible for a court to grant any effectual relief” for the
Government’s unlawful action. Knox v. Service Emps. Int’l Union, 567 U.S. 298,
307 (2012) (emphasis added) (simplified). In arguing that we cannot order USCIS
to “go back in time” and to approve her husband’s U-visa status “as of that date,”
the Government relies only on Zixiang Li v. Kerry,
710 F.3d 995 (9th Cir. 2013).
There, we addressed a claim challenging alleged errors in a different visa program,
and we held that, because Congress had directed that the limited number of visas in
question “expire[d] at the end” of each fiscal year, that “render[ed] moot any claim
for a visa number from a prior year.”
Id. at 1002. In holding that no retroactive
remedy was available, we emphasized that Congress had statutorily capped the
number of visas available in a given year, and that the plaintiffs’ claim effectively
sought to “recapture” scarce visas that had “already been allocated to other
individuals.”
Id. But this rationale does not apply here because derivative U-visas
are explicitly not subject to a strict numerical annual allocation that expires each
fiscal year. See 8 U.S.C. § 1184(p)(2)(B) (annual cap that applies to U-1 visas
does not apply to derivative U-visas).
4
who are eligible for derivative U-visas in § 101(a)(15)(U)(ii) of the INA. See
8 U.S.C. § 1101(a)(15)(U)(ii). We evaluate that contention by applying the two-
step framework established in Chevron, 467 U.S. at 842–43. Under that
framework, a court first “ask[s] whether the statute is ambiguous and, if so,” the
court then addresses, at step two, “whether the agency’s interpretation is
reasonable.” King v. Burwell,
576 U.S. 473, 485 (2015). In determining whether a
statute is ambiguous at step one, “a court must exhaust all the ‘traditional tools’ of
construction.” Kisor v. Wilkie,
139 S. Ct. 2400, 2415 (2019) (quoting
Chevron,
467 U.S. at 843 n.9) (making this observation with respect to the interpretation of
agency rules, but noting that Chevron “adopt[ed] the same approach for ambiguous
statutes”); see also Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612, 1630 (2018)
(explaining that under Chevron, “deference is not due unless” the traditional tools
of construction do not resolve the ambiguity).
In addressing whether the statute governing derivative U-visa eligibility is
ambiguous on the question of when the spousal relationship must exist, the parties
have focused their arguments, as the majority does, on whether one particular
phrase in § 101(a)(15)(U)(ii)—“accompanying, or following to join,”—should or
should not be understood to contain a temporal element that settles the question in
Plaintiffs’ favor. But once the correct interpretation of a statute “is properly before
the court, the court is not limited to the particular legal theories advanced by the
5
parties, but rather retains the independent power to identify and apply the proper
construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90,
99 (1991); accord Thompson v. Runnels,
705 F.3d 1089, 1098 (9th Cir. 2013). I
agree with the majority’s ultimate conclusion that the plain language of the statute
only requires that the spousal relationship be in existence by the date that the
primary applicant (here, Medina Tovar) is granted her U-visa, but my reasoning is
based more narrowly on the unique wording of § 101(a)(15)(U).2 The agency’s
attempt by regulation to narrow the class of spouses who are eligible for derivative
U-visas to only those persons who were spouses on the day the primary applicant
applied for such a visa therefore fails at Chevron step one.
A
As with any question of statutory interpretation, we must “begin with the
text of the statute,” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S.
1, 7 (2011), and here the statute unambiguously addresses the temporal issue of
when the derivative applicant must be the “spouse” of the primary applicant.
Clause (i) of § 101(a)(15)(U) of the INA describes the class of primary
persons who are eligible for U-visas, and clause (ii) of that same subsection sets
2
I therefore express no view as to whether the majority is correct in its broader
holding that the phrase “accompanying, or following to join,”—a phrase that
appears in literally dozens of immigration provisions—itself includes a temporal
component.
6
forth the class of persons who may obtain derivative U-visas. 8 U.S.C.
§ 1101(a)(15)(U). Specifically, cause (ii) states that the following persons are
eligible for derivative U-visas:
(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 . . . .
8 U.S.C. § 1101(a)(15)(U)(ii). Because Medina Tovar was already 21 years of age
when she first filed her primary U-visa application, there is no dispute that the
relevant subclause here is (ii)(II). Martinez is therefore eligible for a U-visa if he
is (1) “accompanying, or following to join, the alien described in clause (i)” and
(2) is the “spouse . . . of such alien.” Id.
The common link in these two requirements is the phrase “alien described in
clause (i),” because Martinez must be both the “spouse” of such a person and
“accompanying, or following to join,” that same person. An “alien described in
clause (i)” includes a person who—subject to certain limitations that are not at
issue here with respect to Medina Tovar—meets the following description:
7
(U)(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 . . . possesses information concerning
criminal activity described in clause (iii);
(III) 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)
violated the laws of the United States or occurred in the
United States . . .
8 U.S.C. § 1101(a)(15)(U)(i) (emphasis added). Under the plain terms of this
provision, an “alien described in clause (i)” is someone who “files a petition for
[U-visa] status” but only “if the Secretary of Homeland Security determines” that
the petitioner meets the four criteria set forth in (I)–(IV). See id. (emphasis added).
The principal U-visa holder, therefore, is not an “alien described in clause (i)”
merely because, as an underlying factual matter, she actually satisfies each of the
four enumerated criteria in subclauses (I)–(IV). Rather, she does not and cannot
meet the definition of an “alien described in clause (i)” unless and until USCIS
affirmatively grants that alien’s U-visa petition.
That makes the statutory issue in this case relatively straightforward. The
date on which Medina Tovar first became an “alien described in clause (i)” was on
8
October 1, 2015, which was the effective date on which her petition was granted.
Prior to that date, she was just an applicant for a principal U-visa and not an “alien
described in clause (i).” Clause (ii) of the statute tells us that the class of persons
who may apply for derivative U-visas includes the “spouse” of an “alien described
in clause (i)” who is “accompanying, or following to join,” that person. By using
the phrase “alien described in clause (i),” the definition of derivative U-visa
eligibility in clause (ii) thereby necessarily incorporates the same temporal aspect
that is inherent in clause (i). That is, because an “alien described in clause (i)” only
means an alien who has been affirmatively “determine[d]” to be eligible for a U-
visa, the very earliest that someone (such as Martinez) could possibly be said to be
“the spouse . . . of such alien” is likewise when that alien’s principal U-visa
application is approved. The question, then, is whether Martinez was the “spouse”
of Medina Tovar and was “accompanying, or following to join,” her on the day
that she first became an “alien described in clause (i)”—viz., October 1, 2015.
Because Medina Tovar and Martinez were married ten days earlier on September
21, 2015, he was indisputably the “spouse . . . of such alien” on October 1. And
because the Government does not dispute that, if Martinez was Medina Tovar’s
“spouse” on the relevant day, he was also “accompanying, or following to join,”
her on that same day, it follows that Martinez meets the statutory definition in
clause (ii) and was eligible for a derivative U-visa. Cf. Landin-Molina v. Holder,
9
580 F.3d 913, 918–19 (9th Cir. 2009) (eligibility of a “spouse” who is
“accompanying or following to join” a principal alien for a derivative immigrant
visa under INA § 203(d), 8 U.S.C. § 1153(d), implicitly includes a “temporal
element of already being a ‘spouse’” at “the time the principal adjusted status”
(emphasis added)).
B
In addition to being compelled by the statute’s plain language, there are
three additional textual clues in the statute that strongly confirm the correctness of
this reading. The first two relate to the statute’s special rules that apply in the case
of a primary U-visa applicant who is under the age of 21, and so it is important
first to set forth what those different rules are.
As noted earlier, the statutory provision that defines derivative U-visa
eligibility contains two separate subclauses, one that governs cases in which the
primary applicant “is under 21 years of age” and one for cases in which that
applicant “is 21 years of age or older.” 8 U.S.C. § 1101(a)(15)(U)(ii)(I)–(II). See
supra at 7. For a primary applicant (such as Medina Tovar) who is 21 or older, the
persons who are eligible for derivative U-visas are limited to the applicant’s
(1) “spouse” and (2) “children” and, for the reasons explained earlier, those
relationships would be determined as of the date on which the primary applicant’s
U-visa request is approved. Id. § 1101(a)(15)(U)(ii)(II). But “in the case of an
10
alien described in clause (i) who is under 21 years of age,” the persons eligible for
derivative U-visas are the primary applicant’s (1) “spouse”; (2) “children”;
(3) “unmarried siblings under 18 years of age on the date on which such alien
applied for status under such clause”; and (4) “parents.” Id.
§ 1101(a)(15)(U)(ii)(I). Absent any contrary indications in the statutory text, the
determination as to whether a person falls within one of these four categories
would likewise be made at the time the primary applicant’s U-visa is granted. But
here, there are contrary indications, because, in the case of an under-21 primary
applicant, Congress has created two special rules that override the otherwise
applicable default temporal rule.
First, in the case of “unmarried siblings under 18 years of age,” the statute
specially provides that the determination of whether the unmarried sibling is
“under 18 years of age” is to be made “on the date on which such [primary] alien
applied for status under such clause.” 8 U.S.C. § 1101(a)(15)(U)(ii)(I). The
existence of this special language confirms that, without it, the applicable temporal
rule would have been different, and it also confirms that the temporal rule is
different in those instances in INA § 101(a)(5)(U)(ii) in which that special
language is not used. See Russello v. United States, 464 U.S. 16, 23 (1983)
(“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
11
intentionally and purposely in the disparate inclusion or exclusion.” (simplified)).
Thus, had Congress wanted to have the determination of who counts as a “spouse”
made on that earlier date—i.e., rather than on the date on which the primary
applicant becomes an “alien described in clause (i)”—it presumably would have
applied that same distinctive phrase to the term “spouse” as well. But Congress
included that phrase only in one of the four categories of aliens in the subclause
governing under-21 primary applicants, and it did not include that phrase at all in
the separate subclause governing 21-and-over primary applicants.
The statute’s second special textual rule relates to another aspect of
derivative U-visa eligibility “in the case of an alien described in clause (i) who is
under 21 years of age.” 8 U.S.C. § 1101(a)(15)(U)(ii)(I). Because, as explained, a
primary U-visa applicant does not become “an alien described in clause (i)” until
his or her primary application is approved, the statutory phrase “an alien described
in clause (i) who is under 21 years of age,” without more, would necessarily mean
that the age determination is made as of the date that the primary application is
approved. That would be a very harsh rule, however, because it would mean that
the tag-along derivative applicants might lose their eligibility simply because the
primary application took too long to process. It is unsurprising, therefore, that
Congress enacted a special temporal rule that expressly precludes that result.
Thus, the description of who is eligible for a primary U-visa in clause (i) of INA
12
§ 101(a)(15)(U) is explicitly made “subject to section 1184(p) of this title [§ 214(p)
of the INA].” Id. That section, in turn, contains a provision stating that:
An alien described in clause (i) of section 1101(a)(15)(U) of
this title [§ 101(a)(15)(U) of the INA] shall continue to be
treated as an alien described in clause (ii)(I) of such section if
the alien attains 21 years of age after the alien’s application for
status under such clause (i) is filed but while it is pending.
8 U.S.C. § 1184(p)(7)(B). By providing that a primary applicant who was under
21 when the application was filed shall continue to be treated as being under 21 for
derivative-eligibility purposes, this provision thus expressly overrides what would
otherwise have been the ordinary meaning of the relevant language in INA
§ 101(a)(15)(U)(i). The need for, and existence of, this special temporal rule—
which uses the date of filing as controlling rather than the date of approval—again
confirms that, absent such a special rule, the age of an “alien described in clause
(i)” would have been determined at the time that the U-visa petition was approved.
The existence of this special temporal provision thus further confirms the plain
meaning of INA § 101(a)(15)(U), as set forth earlier.3
3
Moreover, the statute’s use of the term “treated” underscores that the situation
described by INA § 214(p)(7)(B) is otherwise contrary to what the applicable legal
rules would require. Thus, once a primary U-visa application is approved and that
person becomes an “alien described in clause (i)”—which is when derivative
applications can first be adjudicated—the alien shall then “continue to be treated”
as meeting the under-21 specification in subclause (ii)(I) even though the alien
does not actually meet that specification because “the alien attain[ed] 21 years of
age after the alien’s application for status under such clause (i) [was] filed but
while it [was] pending.” 8 U.S.C. § 1184(p)(7)(B).
13
The statute’s third textual clue relates to the derivative U-visa eligibility of
the “children” of either type of primary U-visa recipient—viz., the “children” of
“an alien described in clause (i) who is under 21 years of age” and the “children”
of “an alien described in clause (i) who is 21 years of age or older.” 8 U.S.C.
§ 1101(a)(15)(U)(ii). The statutory definition of “child” that applies to titles I and
II of the INA—which titles include the U-visa provisions in INA § 101(a)(15)(U)
and § 214(p)—states that a “child,” in addition to meeting certain other
requirements, must be “an unmarried person under twenty-one years of age.”
8 U.S.C. § 1101(b)(1) (emphasis added). As previously explained, absent some
provision to the contrary, the determination of whether a person is a “child” of “an
alien described in clause (i)” would be made as of the date that person’s primary-
applicant parent first became “an alien described in clause (i)”—i.e., it would be
made as of the date the parent’s U-1 visa was granted. This would again mean that
a derivative alien who was under 21 years of age when the primary alien applied
for U-visa status could lose that chance for derivative eligibility simply due to a
delay in processing the primary alien’s application. But Congress again overrode
that harsh result by enacting INA § 214(p)(7)(A), 8 U.S.C. § 1184(p)(7)(A). This
provision explicitly changes the date as of which the age of a primary U-visa
holder’s child is calculated:
14
An unmarried alien who seeks to accompany, or follow to
join, a parent granted status under section 1101(a)(15)(U)(i) of
this title [§ 101(a)(15)(U)(i) of the INA], and who was under
21 years of age on the date on which such parent petitioned for
such status, shall continue to be classified as a child for
purposes of section 1101(a)(15)(U)(ii) of this title, if the alien
attains 21 years of age after such parent’s petition was filed
but while it was pending.
8 U.S.C. § 1184(p)(7)(A).4 The need for this special temporal rule confirms yet
again that, in its absence, the plain meaning of INA § 101(a)(15)(U) sets a
temporal requirement that the relevant characteristics of derivative U-visa
applicants are to be determined as of the date on which the primary U-visa
applicant first becomes “an alien described in clause (i),” which is the date that the
primary U-visa application is approved.
* * *
The relevant statutory text thus makes overwhelmingly clear that the
determination of whether someone is a “spouse” of an “alien described in clause
(i)” must be made as of the date that the primary applicant becomes such an alien,
which is the effective date that the primary application is granted. And here,
Martinez was indisputably Medina Tovar’s spouse on that date.5
4
Like § 214(b)(7)(B)’s use of “treated,” this provision’s use of “classified”
similarly denotes that the applicant will be deemed to meet a criterion that he or
she actually does not satisfy. See supra note 3.
5
The dissent charges that I have engaged in a “fine-grained parsing of the statutory
text,” see Dissent at 10 n.2—a charge to which I am honored to plead guilty.
15
III
Because the statutory definitions of U-visa eligibility contain their own
built-in temporal element, the agency lacked the authority to establish an earlier
temporal requirement that is stricter than the one Congress established. To the
extent that 8 C.F.R. § 214.14(f)(4) purports to do so, it is legally invalid. Because
Martinez satisfied the statutory requirement that the regulation improperly sought
to modify, Defendants acted unlawfully in denying him a U-visa on that basis.6 I
would therefore reverse the district court’s judgment and remand the matter for
further proceedings.
6
This conclusion moots Plaintiffs’ equal protection challenge, and I therefore do
not address it.
16
FILED
Medina Tovar v. Zuchowski, No. 18-35072 DEC 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CALLAHAN, Circuit Judge, with whom BRESS and BENNETT, Circuit Judges
join, dissenting:
In the battle of competing aphorisms I think that “context matters” prevails
over the interpretive canon “bringing the old soil with it.” The majority looks at
the inherently ambiguous language in 8 U.S.C.§ 1101(a)(15)(U)(ii)—“if
accompanying, or following to join”—and somehow concludes that Congress
commanded that “a person need not have been married to the principal applicant at
the time the application was filed, so long as the marriage exists when the principal
applicant receives a U visa.” Op. at 11. Perhaps this is a reasonable interpretation
of the language, but I dissent because it is not the only reasonable interpretation.
More importantly, by conjuring up Congress’s “understanding,” the majority
unreasonably constricts the agency’s responsibility to interpret the ambiguous
statute.
This is an invitation to mischief in at least two ways. First, in light of the
time it takes for the processing of a U visa, it is an invitation to commit marriage
fraud by creating a means by which a person who is not legally in the country may
obtain legal status by marrying a U-visa applicant before the application is granted.
Second, the opinion suggests that courts can dictate to an agency an interpretation
of a statute by searching precedents in different contexts to establish a binding
1
legislative understanding. Indeed, it does so under the first prong of Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
asserting that the intent of Congress is clear. See Op. at 7.
Although, as Judge N.R. Smith noted in his opinion for the three-judge
panel, “Congress has never directly addressed when a qualifying relationship must
exist,” Medina Tovar v. Zuchowski, 950 F.3d 581, 587 (9th Cir. 2020), rehearing
en banc granted,
957 F.3d 1381, the majority reaches its conclusion by focusing on
subclause (ii)(I), which states:
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;
(emphasis added).
This provision states that, for a U-visa applicant (an alien described in clause
(i)), a sibling may qualify for a derivative U visa if that sibling was not married and
was under 18 when the principal applied for a U visa. This clearly limits the class
of individuals who can qualify for derivative status, but it need not be interpreted
as addressing “accompanying, or following to join.” At the very least, it does not
do so unambiguously. Nonetheless, the majority claims that the language
“unmarried siblings under 18 years of age on the date on which such alien applied
for status” indicates that “Congress clearly thought about the timing question.”
Op. at 7. But, as noted, it seems more likely that Congress was defining who was
2
eligible for derivative benefits. The phrase is found in the middle of a section
providing that, for an applicant under the age of 21, his or her spouse, children,
parents, and unmarried siblings under the age of 18 are eligible for derivative
status. Congress clearly did not intend for adult unmarried siblings to be eligible.
Therefore, it was necessary to draw a line, to select a date. The date of an
application’s approval is unknowable at the time of a U-visa application is filed.
But the date of the application is obvious and provides clear guidance to the
applicant and his or her siblings.
The majority proceeds to employ the maxim “[w]here 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.” Op. at 7–8 (quoting Nken v. Holder, 556
U.S. 418, 430 (2009)). But this general presumption is premised on the
determination that Congress’s use of particular language in the first instance was
intended to address, or inherently addresses, the issue in the second section. In our
case, however, the language at issue was used to define which siblings might be
eligible for derivative benefits; it does not clearly define or address
“accompanying, or following to join,” even for such eligible siblings.
A careful reading of the Chief Justice’s opinion in Nken supports this
distinction. That case concerned whether a statutory provision addressing certain
3
injunctions also applied to stays. 556 U.S. at 431. The Court’s opinion
acknowledges “that statutory interpretation turns on ‘the language itself, the
specific context in which that language is used, and the broader context of the
statute as a whole.’”
Id. at 426 (quoting Robinson v. Shell Oil Co.,
519 U.S. 337,
341 (1997)). However, after stating the maxim quoted by the majority, the Court
proceeded to observe that the language at issue was not where it would naturally be
if intended to apply to stays.
Id. at 431. It also commented that it “frequently
takes Congress’s structural choices into consideration when interpreting statutory
provisions.”
Id. at 431.
Here too, we have language which arguably could be interpreted as
addressing “accompanying, or following to join” but which is not located where it
would naturally be located to do so and which serves, and presumably was
intended to serve, a distinct purpose: limiting the eligibility for siblings of an under
21-year-old applicant to those who are under the age of 18.1 Indeed, the majority
seems to reason backward, arguing that “Congress intended that the timing of the
petition is relevant with respect to only one category of relatives” and “the
regulation fails to recognize that the statute treats timing identically for spouses
1
The very narrowness of this exception weighs against it being intended to
define the broad term that applies to all derivative applicants. The clause “on the
date on which such alien applied for status” applies only to minor siblings of an
applicant who is herself under 21 years of age.
4
and children.” Op. at 8. But this assumes that the subclause defining the eligibility
of minor siblings of principals who are under 21-years-old was intended to “treat
timing.” Perhaps this is a possible interpretation of the statute, but it is not the only
or the most likely explanation of Congress’s intent.
And even if the majority were correct that the subclause concerning minor
siblings addresses the timing question, the majority errs in concluding that this
subclause unambiguously answers the timing question as to spouses. Because the
subclause refers to “unmarried siblings under 18 years of age on the date on which
such alien applied for status under such clause,” the majority reasons that “the
timing of the petition is relevant” only as to this “one category of relatives.” Op. 8.
But even if that negative implication is a permissible reading of the statute, it is
certainly not inevitable.
As the three-judge panel majority explained, unlike spouses and parents,
siblings face the possibility of “aging out” while the U-visa petition is pending.
See Medina Tovar, 950 F.3d at 589. Thus, “[t]he fact that Congress addressed
when the alien and other qualifying relatives should be assessed to preclude them
from aging out, does not unambiguously mean that Congress intended that spouses
be assessed at a different time than the date of application.”
Id. Spouses are
differently situated from siblings because spouses cannot age out.
Id. Thus, the
5
statutory text does not command that the date of assessment for spouses must be
different than that for siblings.
The majority asserts that the phrase “accompanying, or following to join,”
has existed in various statutes for decades and suggests that it has been uniformly
interpreted. But the majority does not cite a single instance in which either a court
or agency has held that the phrase precluded the agency from requiring that the
marriage exist at the time of a U-visa application. Neither of the Ninth Circuit’s
cases cited by the majority does so. These cases do consider the phrase
“accompanying, or following to join” but not in a manner that supports the
majority’s position.
In Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009), Landin-Molina
conceded that he could not satisfy the “accompanying, or following to join”
requirement “because his marriage occurred after his wife adjusted to lawful
permanent resident status.”
Id. at 919. We explained:
The plain language of § 1153(d) requires that the derivative “spouse”
accompany or follow to join the principal “spouse.” Implicitly there
is a temporal element of already being a “spouse.” Thus, § 1153(d)
clearly contemplates that the marital relationship exists before the
principal receives immigrant status. Such a construction is consistent
with our observation in Santiago[v. INS, 526 F.2d 488 (9th Cir. 1975)
(en banc),] that Congress intended to “preserve”—i.e., maintain—the
unity of existing families by permitting qualifying aliens to bring their
families with them or to send for them later. If the marital
relationship transpires after the principal receives immigrant status,
the putative derivative spouse cannot have accompanied or followed
to join a “spouse” because there was simply no spouse to accompany
6
or follow at the time the principal adjusted status, and the language of
§ 1153(d) implicitly requires that the derivative spouse be a “spouse”
before the principal adjusts status.
Id. (citation omitted).
Certainly, Landin-Molina required that the derivative beneficiary be married
to the principal at the time the principal adjusts status. But it did not address how
long prior to that date the derivative beneficiary had to be married to the principal.
There is nothing inherent in the phrase “accompanying, or following to join” that
would require the marriage to exist only at the time of application approval, as
opposed to at the time the application is filed. The phrase “accompanying, or
following to join” can reasonably be interpreted to imply that the marriage should
exist when the principal applies for U-visa benefits.
Santiago v. INS, 526 F.2d 488 (9th Cir. 1975) (en banc), does little to
support the majority’s interpretation of Congress’s intent. There we held that the
government was not estopped from excluding a derivative beneficiary who was
erroneously admitted prior to the arrival of the principal in the United States. We
explained:
Petitioners initially contend that the words “accompanying, or
following to join” in 8 U.S.C.§ 1153(a)(9) should be construed to also
mean “preceding with the hope (or expectation) of being joined later.”
There is no authority for such a construction. The plain language of
the statute is designed to assure that those aliens who derive their
preference cannot exercise their right to enter until the person from
whom they derive their preference has actually entered. Congress
clearly intended to preserve family unity by this language and to
7
permit the lawfully entering alien to either bring his family with him
or to send for them later when he had the ability to do so. But there is
nothing in this language to indicate that Congress ever intended that
the grant of a preference to one alien would effectively work a grant
of a like preference to the members of his family so that they might
enter at whatever time they wished. If Congress had wished to equate
derivative preferences with actual preferences the words
“accompanying, or following to join” would be absent from this
statute.
Id. at 490–91.
Thus, we found the language “plain” in regard to when a derivative
beneficiary could enter the United States. But we did not otherwise comment on
when the relationship had to exist. Yet again, our reference to the purpose of
preserving family unity might be construed as suggesting that the relationship
should exist when the beneficiary sought to enter the United States.
Perhaps more importantly, regardless of how one reads our opinions in
Landin-Molina and Santiago, they do not readily support the argument that
Congress commanded that the spousal relationship need exist only at the time a
U-visa petition is granted. Both cases were in the context of immigrant aliens,
whereas the U visa is a nonimmigrant visa. See Landin-Molina, 580 F.3d at 915;
Santiago, 526 F.2d at 489; see also 8 U.S.C. § 1101(a)(15)(U). As the three-judge
panel majority explained, “immigrant and nonimmigrant statutes are aimed at
addressing different concerns, have different requirements, and extend different
benefits to the status holder. Thus, although the same textual phrase—
8
‘accompanying, or following to join’—is used in these contexts, the nature and
purpose underlying the grants of status differ significantly.” Medina Tovar, 950
F.3d at 591.
A U visa is not an immigration visa, but “operates to grant limited,
temporary, nonimmigrant status to aliens already present in the United States who
were victims of a serious crime.” Id. at 590. These differences suggest both that
the date of a U-visa application is somewhat analogous to the date an immigrant
enters the United States and that the interpretation of the phrase in an asylum
proceeding is not necessarily applicable to a U-visa application.
In addition, it is notable that the timing rules are different for asylees and
refugees. For refugees the qualifying relationship must exist at the time of the
refugee’s admission to the United States, whereas for asylees the relationship must
have existed at the time the principal alien’s asylum application was approved. Id.
at 588 (citing 8 C.F.R. §§ 207.7(c), 208.21(b)). This underscores the conclusion
that the phrase “accompanying, or following to join” does not possess a fixed
meaning foreclosing the agency’s interpretation.
In any event, a review of our prior cases and the matters cited by the
majority fail to support its determination of Congress’s clear intent. Indeed, the
majority does not assert that Congress has ever directly addressed this issue.
Instead, by asserting a negative implication based on language in 8 U.S.C.
9
§ 1101(a)(15)(U) and citing instances in which the phrase was interpreted in
distinct contexts, it projects onto Congress an absolute view that is not supported
by the text or any Congressional action. Certainly, Congress is responsible for
circumscribing an agency’s responsibilities, and we have a constitutional duty to
see that an agency does not exceed its authorization. But we exceed our role when
we parse obscure passages in complex legislation, use distinguishable case law,
and cite a “familiar interpretative principle” to ascribe to Congress not only
knowledge of the agency’s alleged interpretation, but also an absolute view barring
the agency’s evolving view of a statute’s ambiguous terms.2
Accordingly, I respectfully dissent because I cannot conclude that Congress
understood or intended “accompanying, or following to join” to mean that the
agency could not require that an applicant for a derivative benefit from a U-visa
applicant be married to the principal when the U-visa application was filed.
2
I find Judge Collins’s separate concurrence similarly unpersuasive. His
reading of the statute is not one that any party in this litigation has put forward.
Regardless, Judge Collins’s fine-grained parsing of the statutory text at most
confirms that his reading of the statute is permissible, not that it is compelled.
10
