Singh v. Clinton

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SUKHWINDER SINGH; DHARAM 
SINGH,
Plaintiffs-Appellants,
v.
HILLARY RODHAM CLINTON, No. 09-15672
Secretary of State; JANET D.C. No.
NAPOLITANO, Secretary, Department  4:08-cv-02362-
of Homeland Security; WDB
DEPARTMENT OF HOMELAND
OPINION
SECURITY; LYNNE SKEIRIK, Director,
National Visa Center; MICHAEL S.
OWEN, U.S. Consul, U.S. Embassy,
New Delhi, India,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Wayne D. Brazil, Magistrate Judge, Presiding

Argued and Submitted
June 16, 2010—San Francisco, California

Filed August 20, 2010

Before: Kenneth F. Ripple,* Pamela Ann Rymer and
Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

*The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.

12277
12280 SINGH v. CLINTON

COUNSEL

Robert B. Jobe (argued), Sara E. Coppin and Sarah B. Cas-
tello, San Francisco, California, for the plaintiffs-appellants.

Tony West, Assistant Attorney General, David J. Kline,
Director, District Court Section, Office of Immigration Litiga-
tion, Victor M. Lawrence, Principal Assistant Director, Chris-
topher W. Hollis and Melanie Keiper (argued), Trial
Attorneys, Washington, D.C., for the defendants-appellees.

OPINION

FISHER, Circuit Judge:

This appeal concerns the notice required by statute before
the State Department could terminate an immigrant visa regis-
tration for failure to file a timely application. Sukhwinder and
Dharam Singh (collectively “the Singhs”) challenge the termi-
 SINGH v. CLINTON 12281
nation of Sukhwinder’s visa registration. The State Depart-
ment terminated Sukhwinder’s visa registration for failure to
apply within one year of notice of eligibility, but the Singhs
contend that the indirect notice provided was inadequate
under section 203(g) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1153(g). Because section 203(g) requires
notice “to the alien,” we reverse and remand for the district
court to set aside the visa termination.

I.

A.

Sukhwinder Singh is a native and citizen of India. His
brother Dharam Singh is a native of India who became a
United States citizen in 1987. In 1988, Dharam filed a petition
with the then-Immigration and Nationalization Service to
establish that Sukhwinder was his brother and to begin the
process of establishing Sukhwinder’s eligibility for an immi-
grant visa. This filing is known as an I-130 petition or, sim-
ply, an I-130. See 8 C.F.R. § 204.1(a)(1). In 1991, Dharam
retained attorney Gordon Quan to assist with the I-130 peti-
tion, which the government soon thereafter approved. After
nearly a decade, Dharam contacted Quan in September 2000
to request an update concerning the petition. Quan sent a let-
ter to Sukhwinder’s address in India to inform him that the
Visa Bulletin — a publication of the State Department Bureau
of Consular Affairs that lists immigrant visa eligibility
according to the date of the approved I-130, country of origin
and relationship with the citizen-sponsor — had not yet
reached the priority date of Dharam’s petition and that the
U.S. Embassy would not contact Sukhwinder until he was eli-
gible to apply for his immigrant visa.

On September 4, 2000, the National Visa Center (“NVC”)
mailed an instructional packet to Quan at his office address
listed on the 1991 I-130 petition. Quan’s records do not indi-
cate that he received the packet or any subsequent mailing
12282 SINGH v. CLINTON
concerning Dharam’s I-130 petition. On September 14, 2000,
the NVC sent Sukhwinder’s immigrant visa petition to the
U.S. Embassy in New Dehli, India. The next month, the gov-
ernment sent correspondence to Dharam, although the parties
dispute whether it was a visa application packet or merely
notice that Sukhwinder’s case had been forwarded to the
Embassy in New Dehli.

In 2001, 2002 and 2003, the U.S. Embassy sent follow-up
materials to Quan’s 1991 address, back in the United States.
Then on September 9, 2004, the State Department terminated
Sukhwinder’s visa registration and destroyed related records,
based on Sukhwinder’s failure to apply. Throughout the pro-
cess, State Department records showed Sukhwinder’s address
as Village Paddabet, P.O. Dhaliwa, Dist. Kapurthala, Punjab,
India, but there is no evidence that the U.S. Embassy, the
NVC or any other agency sent correspondence to that address.

While these events were transpiring, Sukhwinder had left
India on November 27, 1991 for the United States and peti-
tioned for asylum, although his wife and children have contin-
ued to live at the address listed on the I-130 petition. The U.S.
government placed Sukhwinder in removal proceedings in
September 1994, and in February 2005 he applied for an
adjustment of status to become a permanent resident. How-
ever, the government denied his request because his visa reg-
istration had been terminated in 2004. As of June 2010,
removal proceedings against Sukhwinder were still ongoing.

B.

After the government denied Sukhwinder’s application for
adjustment of status, the Singhs commenced this collateral lit-
igation under the Administrative Procedure Act (“APA”),
seeking reinstatement of the approved I-130 petition. The
government answered, and the parties engaged in limited dis-
covery before cross-moving for summary judgment. In an
opinion and order, the district court granted the government
 SINGH v. CLINTON 12283
summary judgment. The court first found that the doctrine of
consular nonreviewability did not deprive it of subject matter
jurisdiction, because the Singhs challenged the authority of
the Department of State, rather than an exercise of its discre-
tion. The court then concluded that section 203(g) of the INA,
which mandates termination of immigrant visa registration
“one year following notification to the alien,” merely directs
“the agency to select means that were reasonably calculated,
in the circumstances, to achieve the statutorily mandated goal
of notifying the alien.” The court reviewed the termination of
Sukhwinder’s visa registration under the arbitrary and capri-
cious standard of the APA and found that no trier of fact
addressing the undisputed evidence could “rationally con-
clude that the agency did not have a rational basis for believ-
ing that the method that it chose to notify [Sukhwinder] Singh
(by sending the notices to attorney Quan) was reasonably cal-
culated to get the message to the [visa] applicant.”

C.

The district court had jurisdiction under 28 U.S.C. §§ 1331
and 1361 and entered judgment in March 2009, which the
Singhs timely appealed. We have jurisdiction under 28 U.S.C.
§ 1291. On appeal, the government has correctly abandoned
its argument that consular nonreviewability places this suit
outside the subject matter jurisdiction of the federal courts.
See Patel v. Reno, 134 F.3d 929, 932-33 (9th Cir. 1997)
(“[W]hen the suit challenges the authority of the consul to
take or fail to take an action as opposed to a decision taken
within the consul’s discretion, jurisdiction exists.”).

“We review the district court’s grant of summary judgment
as well as its statutory interpretations de novo.” PhotoMedex,
Inc. v. Irwin, 601 F.3d 919, 923 (9th Cir. 2010). “We must
determine whether, viewing the evidence in the light most
favorable to . . . the non-moving party, there are any genuine
issues of material fact and whether the district court correctly
applied the relevant substantive law.” Id. Under the APA, a
12284 SINGH v. CLINTON
“reviewing court shall hold unlawful and set aside agency
action, findings, and conclusions found to be arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A). Whether agency action is
“not in accordance with law” is a question of statutory inter-
pretation, rather than an assessment of reasonableness in the
instant case. See Nw. Envtl. Advocates v. U.S. Envtl. Prot.
Agency, 537 F.3d 1006, 1014 (9th Cir. 2008) (citing Holland
v. Nat’l Mining Ass’n, 309 F.3d 808, 815 (D.C. Cir. 2002));
Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir. 2007); see also
Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129
S. Ct. 2458, 2469-70 (2009) (addressing “statutory text . . . ,
the agencies’ regulations construing it, and the EPA’s subse-
quent interpretation of those regulations” rather than mere
reasonableness).

II.

[1] As an initial matter, the government suggests that this
case may be moot because Sukhwinder cannot successfully
adjust his status as a result of his unlawful entry in 1991.
Although 8 U.S.C. § 1255(a) permits only individuals “in-
spected and admitted” to adjust to permanent resident status,
the beneficiary of an I-130 petition filed on or before April
30, 2001 may be excepted from that rule after paying a $1,000
penalty. See 8 U.S.C. § 1255(i). Sukhwinder is also not
required to leave the United States to apply for a visa in India,
subjecting himself to the 10-year reentry bar based on an
extended unlawful presence, see id. § 1182(a)(9)(B)(i)(II),
because an individual who entered the United States without
inspection need not return to his or her country of origin in
order to apply for adjustment of status. See id. § 1255(i)(1).

III.

“Qualified immigrants who are the brothers or sisters of cit-
izens of the United States” may be allocated immigrant visas
according to a yearly quota system. 8 U.S.C. § 1153(a)(4).
 SINGH v. CLINTON 12285
Subject to certain exceptions not present here, “any citizen of
the United States claiming that an alien is entitled to classifi-
cation by reason of a relationship described in [§ 1153(a)(4)]
may file a petition with the Attorney General for such classifi-
cation.” Id. § 1154(a)(1)(A)(i). The Attorney General first
investigates the alien beneficiary and then conveys approved
petitions to the Department of State. See id. § 1154(b). The
Secretary of State must then authorize a consular officer to
grant preference status to the beneficiary. See id. Within each
country of origin and preference category, the State Depart-
ment then issues visas “to eligible immigrants in the order in
which a petition in behalf of each such immigrant is filed with
the Attorney General.” 8 U.S.C. § 1153(e)(1); see also 8
C.F.R. § 245.1(g)(1) (permitting an I-130 beneficiary with
approved preference status to apply when he or she “has a pri-
ority date on the waiting list which is earlier than the date
shown in the [Visa] Bulletin” for the alien’s country of origin
and preference category).

A.

Specific procedures for implementing statutes and regula-
tions governing immigrant visas are set out in Chapter 42 of
the Foreign Affairs Manual (“FAM”). Under FAM provisions
operative in 2000, when the Department of State attempted to
notify Sukhwinder of his visa eligibility, “all immigrant visa
petitions approved by the Immigration and Naturalization Ser-
vice in the United States” were next “sent to the [NVC].” 9
FAM § 42.63 proc. n.4.1(a) (2000); cf. 9 FAM § 42.63 proc.
n.2(a) (2010) (similar procedure following approval by
Department of Homeland Security). The NVC would then
“send beneficiaries” of I-130 petitions who were not yet eligi-
ble to petition for an immigrant visa a “Packet 3(a).” 9 FAM
§ 42.63 proc. n.4.1(b) (2000); cf. 9 FAM § 42.63 proc.
n.5.2(a) (2010) (requiring the NVC to “send the ‘Notice of
Registration as Intending Immigrant’ ” letter confirming
receipt of the petition at NVC and notifying the beneficiary of
12286 SINGH v. CLINTON
his or her priority date).1 The 2000 FAM also required the
NVC, or an embassy or consulate to which the NVC had sent
a visa applicant’s file, to “send Packet 3 to an alien formerly
sent Packet 3(a) when the [a]pplicant’s priority date reache[d]
the qualifying date established by the [State] Department.” 9
FAM § 42.63 proc n.5.1-4(1) (2000); see also 9 FAM § 42.63
proc. n.5.1 (2000) (emphasizing the “importance of promptly
mailing Packet 3 to applicants entitled to immigrant status
whose priority dates are within the qualifying dates estab-
lished by the Department”); cf. 9 FAM § 42.63 proc. n.5(b)
(2010) (same, but replacing “Packet 3” with “instruction
packet for immigrant visa applicants”).

It is not certain whether the 2000 FAM directed notice to
be sent directly to the beneficiary in all cases. The I-130 peti-
tion form in use when Dharam filed a petition to benefit
Sukhwinder required an address for the alien beneficiary. See
Form I-130, 2/28/87 Revision; see also Form I-130 5/27/08
Revision (current form also requiring beneficiary’s address).
Under both past and present editions of the FAM, a visa appli-
cant, such as an I-130 beneficiary, bears the burden of main-
taining a current address on file with the Department of State.
See 9 FAM § 42.83 n.5 (2000); 9 FAM § 42.83 n.5 (2010).
However, with regard to packets containing either application
materials or notice of a priority date, the 2000 FAM stated,
“When a case has legal representation in the United States,
NVC will send the Packet to the lawyer.” 9 FAM § 42.63
proc. n. 4.1(b) (2000). On the other hand, the 2000 FAM did
not clarify whether packets mailed to an attorney supple-
mented or supplanted direct notice to the I-130 beneficiary
described in all other relevant provisions of the FAM. Since
1
See generally 9 FAM § 42.41 proc. n.1.1 (2000) (requiring the NVC
to send the alien beneficiary either a Packet 3(a) or a Packet 3, which pro-
vides instructions for an immediate visa application, upon receipt of an
approved I-130 petition); 9 FAM § 42.41 proc n.1.1 (2010) (same, despite
elimination of packet system); 9 FAM § 42.41 n.3.5 (2000) (“[T]he con-
sular [official] shall notify the beneficiary of the receipt and disposition of
the petition.”); 9 FAM § 42.41 n.13.2-3 (2010) (same).
 SINGH v. CLINTON 12287
that time, the State Department has revised the FAM to
require I-130 beneficiaries to designate an agent for receipt of
notice and application materials or to affirmatively decline to
utilize an agent. See 9 FAM § 42.63 proc. n.3.1 (2010).

B.

[2] Any alien who is eligible for an immigrant visa must
file a Form DS-230 to start the application process. See 22
C.F.R. § 42.63(a). An alien’s failure to act upon notice of visa
eligibility has grave consequences. INA section 203(g) man-
dates:

The Secretary of State shall terminate the registra-
tion of any alien who fails to apply for an immigrant
visa within one year following notification to the
alien of the availability of such visa, but the Secre-
tary shall reinstate the registration of any such alien
who establishes within 2 years following the date of
notification of the availability of such visa that such
failure to apply was due to circumstances beyond the
alien’s control.

8 U.S.C. § 1153(g) (emphasis added); see also 8 C.F.R.
§ 205.1(a)(1) (clarifying that termination is automatic). Simi-
larly, a regulation establishes that the registration period
begins “for the purposes of INA . . . [section] 203(g) upon the
filing of Form DS-230, when duly executed, or the transmis-
sion by the Department to the alien of a notification of the
availability of an immigrant visa, whichever occurs first.” 22
C.F.R. § 42.67(b) (emphasis added). Another governing regu-
lation more loosely states that “an alien’s registration for an
immigrant visa shall be terminated if, within one year after
transmission of a notification of the availability of an immi-
grant visa, the applicant fails to apply for an immigrant visa,”
without specifying to whom the notification must be transmit-
ted. Id. § 42.83(a) (emphasis added).
12288 SINGH v. CLINTON
IV.

The State Department concedes that it did not send notice
to Sukhwinder Singh’s Indian village address listed on the I-
130 petition as his current address. Rather, it sent application
packets to attorney Quan’s 1991 address, as well as some
form of notice to Sukhwinder’s brother, Dharam. The govern-
ment argues that the absence of restrictive provisions in the
INA and its implementing regulations provide the discretion
to terminate visa registration after notice of eligibility through
any channel reasonably calculated to reach an I-130 benefi-
ciary. However, the field is not nearly so free of regulation.
An agency “has no discretion to make a decision that is con-
trary to law.” Hernandez v. Ashcroft, 345 F.3d 824, 846 (9th
Cir. 2003).

When interpreting statutes and regulations within an agen-
cy’s area of expertise, we must first establish the degree of
deference accorded to the agency’s construction of these pro-
visions.

To determine whether an agency’s interpretation of
its own regulation is accorded deference, this court
conducts a two-step inquiry. First, deference is war-
ranted only when the language of the regulation is
ambiguous; otherwise, “[t]o defer to the agency’s
position would be to permit the agency, under the
guise of interpreting a regulation, to create de facto
a new regulation.” Second, if the regulation is
ambiguous, then the agency’s interpretation of it is
controlling unless plainly erroneous or inconsistent
with the regulation.

Casares-Castellon v. Holder, 603 F.3d 1111, 1112-13 (9th
Cir. 2010) (quoting Christensen v. Harris County, 529 U.S.
576, 588 (2000)). Even in the presence of ambiguity, how-
ever, we do not apply controlling deference to an agency deci-
sion lacking precedential value. See Garcia-Quintero v.
 SINGH v. CLINTON 12289
Gonzales, 455 F.3d 1006, 1012 (9th Cir. 2006). In such cases
“the agency’s determination is due only respect based on the
persuasiveness of the decision.” High Sierra Hikers Ass’n v.
Blackwell, 390 F.3d 630, 648 (9th Cir. 2004) (internal quota-
tion marks and citation omitted).

A.

[3] The statutory language forecloses termination premised
on notice to the I-130 petitioner rather than the beneficiary.
As noted above, INA section 203(g) specifies that “notifica-
tion to the alien” is a prerequisite to termination, and an
implementing regulation also requires “the transmission by
the Department to the alien of a notification.” 22 C.F.R.
§ 42.67(b). An I-130 petitioner must be a United States citi-
zen, rather than an alien, much less “the” alien. See 8 U.S.C.
§ 1154(a)(1)(A)(i). In the I-130 process, “the alien” will
always be the petition’s beneficiary. Moreover, it is the bene-
ficiary, rather than the petitioner, who must file a DS-230 to
stave off termination. Therefore, any notice sent by the State
Department to Dharam Singh advising that Sukhwinder was
eligible to apply for an immigrant visa was an insufficient
foundation for termination of registration under INA section
203(g).

B.

[4] The more difficult question is whether notice sent to an
attorney who assisted in the preparation of an I-130 petition
may constitute “notification to the alien” or “transmission by
the Department to the alien of a notification.” Although the
INA and regulations are silent on the matter, standard agency
principles suggest that notice to the alien’s formally desig-
nated agent would suffice. Cf. United States v. Johnson, 196
F.3d 1000, 1002-03 (9th Cir. 1999) (holding that a statute
requiring delivery of a speedy trial demand “to the prosecut-
ing officer” could be satisfied through delivery to the entity
formally designated by the U.S. Attorney on the relevant
12290 SINGH v. CLINTON
form). On the other hand, in at least one instance where Con-
gress intended to permit notice either to an alien or to counsel,
without express election of an agent, it did so explicitly. See
8 U.S.C. § 1229a(a)(5)(A) (permitting notice “to the alien or
the alien’s counsel of record”). We therefore hold that section
203(g) of the INA and an implementing regulation, 22 C.F.R.
§ 42.67(b), unambiguously require that the State Department
send notice to the alien or effectively to the alien, i.e., to an
expressly designated agent, prior to termination under INA
section 203(g).

[5] Because we hold that the INA and the relevant regula-
tion unambiguously require service “to the alien,” we need
not look to the State Department’s interpretation of these
materials. To the extent that any ambiguity could be found in
the notice requirement, the Department’s interpretation of sec-
tion 203(g) is not entitled to significant deference. No prece-
dential opinion establishes that notification required for
termination may be achieved through an I-130 petitioner’s
attorney. Cf. 9 FAM § 42.83 n.6 (2000) (“There have been
very few advisory opinion requests on INA 203(g) sent to the
Department and, therefore, the Department has little basis for
establishing precedence.”); id. § 42.83 n.6 (2010) (same).

[6] This case illustrates the substantial and unnecessary
risk that notice sent to the attorney who prepared the I-130
will not reach the beneficiary. A delay of a decade or more
often occurs between the filing of an I-130 petition and autho-
rization of an immigrant visa. See United States Department
of State, Visa Bulletin, July 2010 (noting delays for sibling
immigrant visas including 21 years for citizens of the Philip-
pines and 15 years for citizens of Mexico). During that time,
an attorney may have moved or lost contact with the peti-
tioner, let alone with the beneficiary. Although a visa appli-
cant must maintain a current address with the Department of
State, as noted above, no similar rule requires an attorney to
maintain a current address on file. An I-130 beneficiary can-
 SINGH v. CLINTON 12291
not be faulted for failing to receive notice that never reached
a former attorney who changed offices or retired.

[7] Therefore, any notice sent by the State Department to
Quan concerning Sukhwinder’s visa eligibility cannot serve
as the prerequisite for termination under INA section 203(g).
Because the government did not send notice “to the alien,”
termination of Sukhwinder Singh’s visa registration was con-
trary to law. The APA requires that the agency action be
declared unlawful and set aside.

C.

The government argues that the State Department acted
reasonably by providing notice to Quan because the Singhs
continued to rely on Quan for information concerning the I-
130 application. This post hoc rationalization is divorced from
the question presented: whether termination premised on
notice to Singh was contrary to law. Although reasonableness
may color our interpretation of a statute, see, e.g., United
States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006) (adopt-
ing the “most reasonable interpretation”), it is not the sole
inquiry before us. Moreover, there is no evidence that the
government was aware in 2000 that Dharam — let alone
Sukhwinder — remained in contact with Quan. Even if the
government had been aware that Quan sent a letter to Sukh-
winder’s address in India at Dharam’s request, this would not
establish an attorney-client or other agency relationship
between Quan and Sukhwinder. Although we hope that an
attorney acting on behalf of an I-130 petitioner would forward
mail addressed to the I-130 beneficiary, the state in which
Quan practices has rejected a duty of care toward an intended
beneficiary of an attorney’s services. See Barcelo v. Elliott,
923 S.W.2d 575, 578 (Tex. 1996).

The government separately argues that mailing notification
to India in 2000 would not have been reasonably calculated
to reach Sukhwinder, who had not lived there for nine years.
12292 SINGH v. CLINTON
Again, this is a post hoc argument, and again reasonableness
is not the sole inquiry before us. Nor is there merit to this con-
tention. First, there is no indication that State Department
officials responsible for transmitting notice were aware of
Sukhwinder’s presence in the United States. Second, Sukh-
winder’s family remains at his former home in India and
would have been able to send the visa application to him in
the United States. Third, because visa applicants are responsi-
ble for maintaining a current address with the State Depart-
ment, sending notice to Sukhwinder’s last known address
would have made him plainly responsible for failing to apply
after the government properly transmitted notice to his
address in India. Although a consular official might determine
that notice via local mail is not feasible in a particular country
or region, there is no evidence that officials acted on that
belief here.

CONCLUSION

[8] We hold that the district court erred by concluding that
termination of Sukhwinder Singh’s visa registration did not
violate the notice requirements of INA section 203(g). We
reverse and remand for the district court to set aside the gov-
ernment’s decision to terminate Sukhwinder Singh’s visa reg-
istration.

REVERSED and REMANDED.