Neang Chea Taing v. Napolitano

United States Court of Appeals
For the First Circuit

No. 08-1179

NEANG CHEA TAING,

Petitioner, Appellee,

v.

JANET NAPOLITANO,*
Secretary, Department of Homeland Security, et al.,

Respondents, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Lipez, and Howard,
Circuit Judges.

Gjon Juncaj, Trial Attorney, with whom Gregory G. Katsas,
Acting Assistant Attorney General, Civil Division, Thomas H.
Dupree, Jr., Deputy Assistant Attorney General, David J. Kline,
Director, District Court Section, Office of Immigration Litigation,
and Victor M. Lawrence, Principal Assistant Director, was on brief
for appellants.
Thomas Stylianos, Jr., for appellee.

May 20, 2009

*
Pursuant to Fed. R. App. P. 43(c)(2), Janet Napolitano,
Secretary of the U.S. Department of Homeland Security, has been
substituted for former Secretary Michael Chertoff.
 TORRUELLA, Circuit Judge. Plaintiff-Appellee Neang Chea

Taing ("Mrs. Taing") is a Cambodian national who was admitted to

the United States on a B-2 non-immigrant visa for pleasure in 2004.

In October 2004, Mrs. Taing married Tecumsen Chip Taing ("Mr.

Taing"), a citizen of the United States. In December 2004, Mr.

Taing filed an I-130 petition on behalf of Mrs. Taing to have her

classified as an "immediate relative" so that she would be eligible

to apply for an immigrant visa as his spouse. Mrs. Taing also

filed an I-485 application seeking an adjustment of her status. On

July 2, 2005, Mr. Taing died. As a result of Mr. Taing's death,

the United States Citizenship and Immigration Service ("USCIS")

terminated action on Mr. Taing's I-130 petition, and denied Mrs.

Taing's I-485 application, concluding that she no longer qualified

as an "immediate relative" under the Immigration and Nationality

Act ("INA"). See 8 U.S.C. § 1151(b)(2)(A)(i).

Mrs. Taing filed a Petition for Writ of Mandamus and

Complaint for Declaratory and Injunctive Relief in the United

States District Court for the District of Massachusetts. The

government moved to dismiss Mrs. Taing's claims. The district

court denied the government's motion and remanded the case to

USCIS. The government appeals the district court's ruling. At

issue here is whether Mrs. Taing, despite her husband's death,

remains Mr. Taing's "spouse" and thus qualifies as an "immediate

relative" for purposes of the INA. After careful consideration, we

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hold that she does so qualify, and affirm the district court's

order.

I. Background

A. Immediate Relative and Adjustment of Status Process

The INA allows certain relatives of United States

citizens to obtain lawful permanent resident ("LPR") status based

on a family relationship. See 8 U.S.C. § 1151(a)(1). A United

States citizen may petition for an alien spouse or any other

"immediate relative" as defined by the statute. This two-step

process requires the citizen spouse to first file an I-130 petition

with the USCIS on behalf of his alien relative.1 8 U.S.C.

§ 1154(a)(1)(A)(i); 8 C.F.R. §§ 204.1(a)(1), 204.2(a). If the

I-130 petition is approved, the alien relative is classified within

a specific immigrant visa class. The alien relative, if in the

United States, may then seek adjustment of status to that of a LPR

by filing an I-485 application. See 8 U.S.C. § 1255 (relating to

adjustment of status); 8 C.F.R. § 245.1(a). The I-130 petition

requesting the "immediate relative" status of an alien spouse may

be filed together with the I-485 application for adjustment of

status because approval of the I-130 petition would make a visa

1
Section 1154 states that the petition is to be filed with the
"Attorney General." However, the Homeland Security Act of 2002,
Pub. L. No. 107-296, § 451(b), 116 Stat. 2135, 2178 (codified at 6
U.S.C. § 271(b)), transferred authority over these matters to
USCIS.

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immediately available to the alien spouse upon filing the I-485

application. See 8 C.F.R. § 245.1(f).2

USCIS must conduct an investigation when adjudicating the

I-130 petition to determine that "the facts stated in the petition

are true and that the alien in behalf of whom the petition is made

is an immediate relative specified in section 1151(b)." 8 U.S.C.

§ 1154(b). If the facts in the petition are true and the applicant

is an "immediate relative," USCIS shall approve the petition. Id.

B. Mrs. Taing's Petition

The facts in this case are undisputed and stipulated to

by both parties. Mrs. Taing is a Cambodian citizen and is the

surviving spouse of Mr. Taing. She was admitted to the United

States as a non-immigrant visitor for pleasure on June 17, 2004.

She met Mr. Taing during her visit and the two were married on

October 4, 2004. Mr. Taing was a naturalized United States

citizen.

2
The INA imposes limits on the number of persons who may
immigrate to the United States each fiscal year. See 8 U.S.C.
§ 1151(a),(c),(d) & (e). "Immediate relatives" of United States
citizens are exempt from these numerical limitations and are
therefore often able to obtain permanent residence faster than
applicants in the family-sponsored preference categories. 8 U.S.C.
§ 1151(b)(2)(A)(i). The number of visas issued to "immediate
relatives" is deducted from the 480,000 annual allotment for
family-sponsored immigration. 8 U.S.C. § 1151(c)(1)(A)(i),(ii).
Therefore, increases in "immediate relative" visas reduces the
number of visas available to the numerically-limited family
preference categories. See generally 3 Charles Gordon, Stanley
Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure
§ 36.01 (2008).

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 In December 2004, Mr. Taing filed an I-130 petition,

seeking to have his spouse, Mrs. Taing, classified as an "immediate

relative" for purposes of her immigrant visa petition. Mrs. Taing

also filed a request for work authorization and an I-485

application to adjust her status. The government approved her

application for work authorization.

The couple resided together in Lowell, Massachusetts from

the time of their marriage until Mr. Taing died of a stroke on

July 2, 2005. On September 13, 2005, the government issued a

notice for Mrs. Taing and her now-deceased husband to appear for an

interview on their applications. The government scheduled the

interview for October 13, 2005. Mrs. Taing appeared for the

interview without her husband. Subsequently, USCIS terminated

action on Mr. Taing's I-130 petition and denied Mrs. Taing's I-485

application.

On April 10, 2006, the Department of Homeland Security

("DHS") mailed Mrs. Taing a Notice to Appear, charging her with

overstaying her visa. On March 14, 2007, Mrs. Taing filed a

Petition for Writ of Mandamus and Complaint for Declaratory and

Injunctive Relief in the district court. Mrs. Taing requested that

the district court direct USCIS to: (1) process Mr. Taing's I-130

petition and her I-485 application; and (2) classify her as an

"immediate relative" spouse of a United States citizen.

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 The government filed a motion to dismiss on August 2,

2007. On December 12, 2007, the district court issued a memorandum

and order denying the government's motion to dismiss, remanding the

case to USCIS for further proceedings in accordance with its

decision. Taing v. Chertoff, 526 F. Supp. 2d 177, 179 (D. Mass.

2007). The district court held that Mrs. Taing qualifies as an

"immediate relative" under the plain meaning of § 1151(b)(2)(A)(i).

Id. at 187. The district court reasoned that because the statute's

meaning was unambiguous, Chevron deference was inappropriate. The

court based its holding on Freeman v. Gonzales, 444 F.3d 1031 (9th

Cir. 2006), and Robinson v. Chertoff, No. 06-5702, 2007 WL 1412284

(D.N.J. May 14, 2007), rev'd sub nom, Robinson v. Napolitano, 554

F.3d 358 (3d Cir. 2009), two cases which reached the same result.

The government appeals the district court's order and

argues that under the plain meaning of the statute Mrs. Taing

should not be classified as an "immediate relative."

Alternatively, the government argues that even if this court

disagrees with the government's reading, the statute's language

should be deemed ambiguous, and that we should defer to USCIS's

interpretation under Chevron principles.

We disagree with the government's arguments and affirm

the district court's ruling. The meaning of the statute is

unambiguous and Mrs. Taing qualifies as an "immediate relative"

under the statute.

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 II. Discussion

A. Standard of Review

This court has subject matter jurisdiction under 28

U.S.C. § 1331 and the Administrative Procedures Act ("APA").

Succar v. Ashcroft, 394 F.3d 8, 20 (1st Cir. 2005). The APA "gives

a court power to 'hold unlawful and set aside' not only agency

action that is 'arbitrary' or 'capricious,' but also agency action

that is 'otherwise not in accordance with law' or is 'in excess of

statutory jurisdiction, authority, or limitations, or short of

statutory right.'" Id. (quoting Cousins v. Sec'y of the United

States Dep't of Transp., 880 F.2d 603, 608 (1st Cir. 1989) (quoting

5 U.S.C. § 706(2)(A), (C))).

We review de novo an "agency's construction of [a]

statute which it administers" according to established principles

of deference. Chevron U.S.A., Inc. v. Natural Res. Def. Counsel,

Inc., 467 U.S. 837, 842–43 (1984); Muñiz v. Sabol, 517 F.3d 29, 34

(1st Cir. 2008); Pérez-Olivo v. Chávez, 394 F.3d 45, 48 (1st Cir.

2005).

Our review entails a two-step approach. Chevron, 467

U.S. at 842–43. First, we must "ask whether 'Congress has directly

spoken to the precise question at issue.'" Succar, 394 F.3d at 22

(quoting Chevron, 467 U.S. at 842). We do this by "determin[ing]

whether the language of [the] statute is susceptible to more than

one natural meaning." Strickland v. Comm'r, Me. Dep't of Human

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Servs., 96 F.3d 542, 547 n.5 (1st Cir. 1996). If "the statutory

text is plain and unambiguous," the court "must apply the statute

according to its terms." Carcieri v. Salazar, 129 S. Ct. 1058,

1063-64 (2009); see also Succar, 394 F.3d at 22 ("[C]ourts, as well

as the agency, 'must give effect to the unambiguously expressed

intent of Congress.'" (quoting Chevron, 467 U.S. at 842-43)).

Thus, "[i]f, after employing all the traditional tools of

construction, the statute's text seems unambiguous and the ordinary

meaning of that unambiguous language yields a reasonable result,

the interpretive odyssey is at an end." Morales v. Sociedad

Española de Auxilio Mutuo y Beneficencia, 524 F.3d 54, 57 (1st Cir.

2008). In other words, we need not defer to an agency's

construction if we hold the agency's interpretation to be "contrary

to congressional intent." Succar, 394 F.3d at 23.

However, "if the statute is silent or ambiguous with

respect to the specific issue, the question for the court is

whether the agency's answer is based on a permissible construction

of the statute." Chevron, 467 U.S. at 843; Herrera-Inirio v. INS,

208 F.3d 299, 304 (1st Cir. 2000). "'Chevron[] deference to [an

agency's] statutory interpretation is called for only when the

devices of judicial construction have been tried and found to yield

no clear sense of congressional intent.'" Succar, 394 F.3d at 22

(alterations in original) (quoting Gen. Dynamics Land Sys., Inc. v.

Cline, 540 U.S. 581, 600 (2004)).

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 Here, we conclude that the plain language of § 1151(b)(2)

(A)(i)'s second sentence does not deprive Mrs. Taing of her status

as an "immediate relative." Thus, we need not reach the second

step of the Chevron framework.

B. Applicable Law

The statutory provision at issue in this case states as

follows:

For purposes of this subsection, the term
"immediate relatives" means the children,
spouses, and parents of a citizen of the
United States, except that, in the case of
parents, such citizens shall be at least 21
years of age. In the case of an alien who was
the spouse of a citizen of the United States
for at least 2 years at the time of the
citizen's death and was not legally separated
from the citizen at the time of the citizen's
death, the alien (and each child of the alien)
shall be considered, for purposes of this
subsection, to remain an immediate relative
after the date of the citizen's death but only
if the spouse files a petition under section
1154(a)(1)(A)(ii) of this title within 2 years
after such date and only until the date the
spouse remarries.

8 U.S.C. § 1151(b)(2)(A)(i). Our task is to determine whether the

reference to "spouses" as used in the first sentence of this

provision includes surviving spouses of a United States citizen,

like Mrs. Taing.

At the outset we note a sharp difference of opinion among

our sister courts. On virtually identical facts, the Ninth and

Sixth Circuits have concluded that, for purposes of

§ 1151(b)(2)(A)(i), a surviving spouse should be able to qualify as

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an "immediate relative" if her deceased spouse filed an I-130

petition on her behalf. See Lockhart v. Napolitano, 561 F.3d 611

(6th Cir. 2009); Freeman, 444 F.3d 1031. The Third Circuit,

however, has ruled otherwise. See Robinson, 554 F.3d 358. For the

reasons stated below, we agree with the Ninth and Sixth Circuit's

reading of statute.

C. Congressional Intent Is Clear and Unambiguous

To determine whether a statute exhibits "Chevron-type

ambiguity, . . . courts look at both the most natural reading of

the language and the consistency of the 'interpretive clues'

Congress provided." Succar, 394 F.3d at 22 (quoting Gen. Dynamics,

540 U.S. at 586).

The Supreme Court has stated:

The judiciary is the final authority on issues
of statutory construction and must reject
administrative constructions which are
contrary to clear congressional intent. If a
court, employing traditional tools of
statutory construction, ascertains that
Congress had an intention on the precise
question at issue, that intention is the law
and must be given effect.

Id. (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 447–48 (1987)).

1. Plain Meaning of "Spouse"

"In determining the meaning of a statute, our analysis

begins with the language of the statute." Id. (citing Leocal v.

Ashcroft, 543 U.S. 1 (2004)). "We construe language in its context

and in light of the terms surrounding it." Id. (quotation marks

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omitted); see also Morales, 524 F.3d at 57. In examining the plain

language of the statute for purposes of step one of the Chevron

analysis, we examine the common, ordinary meaning of the words of

the statute at the time of enactment. See Carcieri, 129 S. Ct. at

1064; BedRoc Ltd., LLC v. United States, 541 U.S. 176, 184 (2004).

As explained above, the issue here is whether Mrs. Taing

retained her status as a "spouse" after her husband died in order

for her to qualify as an "immediate relative" under the INA. The

government argues that the definition of "spouse" in federal law

and the common, ordinary meaning of the term "spouse" compel the

conclusion that Mrs. Taing ceased to be a "spouse," and hence an

"immediate relative," when Mr. Taing died. We disagree with both

arguments.

The federal law to which the government cites is as

follows:

In determining the meaning of any Act of
Congress, or of any ruling, regulation, or
interpretation of the various administrative
bureaus and agencies of the United States, the
word "marriage" means only a legal union
between one man and one woman as husband and
wife, and the word "spouse" refers only to a
person of the opposite sex who is a husband or
a wife.

1 U.S.C. § 7 (emphasis added).

By reference to this statute, the government argues that

one is a "spouse" only if one is a husband or wife within a legal

marriage. Further, it contends that due to Mr. Taing's death, Mrs.

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Taing is no longer the wife of her deceased husband, and thus no

longer a "spouse."

The government overreaches here. This definition

originated in the Defense of Marriage Act ("DOMA"). Pub. L. No.

104-199, § 7, 110 Stat. 2419-20. DOMA was intended to limit the

institution of marriage to heterosexual unions, not to alter the

traditional meaning of the word "spouse," which, as we discuss

immediately below, includes surviving spouse under its common,

ordinary meaning. See Lockhart, 561 F.3d at 619 (noting that § 7

of DOMA "emphasizes that spouses shall be of the opposite sex, it

does not mandate that spouses lose their status as such with the

death of either one of them." (quoting Taing, 526 F. Supp. 2d at

184)). Indeed, nothing in the legislative history of DOMA

contemplates upsetting Congress's intent behind its use of the word

"spouse" in the immigration context. See id. at 619 n.1; see also

Dole Food Co. v. Patrickson, 538 U.S. 468, 484 (2003) (Breyer, J.,

concurring in part and dissenting in part) ("Statutory

interpretation is not a game of blind man's bluff. Judges are free

to consider statutory language in light of a statute's basic

purposes."). We conclude that it would be improper for us to give

the definition of "spouse" in DOMA such unintended breadth.

Turning to the government's second argument, we do not

agree that the plain meaning of the term "spouse" does not include

surviving spouse. "Because Congress has chosen not to define [a

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phrase] in the statute itself, we can look to the dictionary for

clarification of the plain meaning of the words selected by

Congress." Pérez-Olivo, 394 F.3d at 49.3 Thus, we look to the

sixth edition of Black's Law Dictionary, published in 1990, and

available at the time Congress amended the INA by adding the second

sentence of § 1151(b)(2)(A)(i).4 This edition includes surviving

spouse within its definition of "spouse" and defines "spouse" as

follows:

Spouse. One's husband or wife, and "surviving
spouse" is one of a married pair who outlive
the other.

Black's Law Dictionary 1402 (6th ed. 1990).

This definition of "spouse" clearly includes Mrs. Taing,

who is "one of a married pair who outlive[d] the other."5 See id.

The government's contention that we should not consider a surviving

3
In the definition section of the INA, "spouse" is only defined
by whom it excludes, namely, "a spouse, wife, or husband by reason
of any marriage ceremony where the contracting parties thereto are
not physically present in the presence of each other, unless the
marriage shall have been consummated." 8 U.S.C. § 1101(a)(35).
4
We rely on the sixth edition, as opposed to an earlier edition,
because it logically follows that Congress, when amending the
statute, intended for the term "spouse" in the first sentence to
carry the same meaning as it does in the second sentence. As we
make clear below, the term "spouse" as used in the second sentence
includes surviving spouse.
5
Based on the plain language of this definition, we conclude that
"spouse" encompasses "surviving spouse." Our reading is further
supported by Congress's use of the word "spouse" in the second
sentence of § 1151(b)(2)(A)(i). As discussed below, in the second
sentence, Congress uses the word "spouse" even when it is clearly
referring to surviving spouses. See 8 U.S.C. § 1151(b)(2)(A)(i).

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spouse like Mrs. Taing a "spouse" is unpersuasive given that the

term surviving spouse is subsumed within the dictionary definition

of "spouse."6

Further, the plain language of § 1151(b)(2)(A)(i)

confirms that "spouse" includes surviving spouse. The second

sentence of this section refers to a surviving spouse simply as

"spouse" without using any qualifying terms. See Freeman, 444 F.3d

at 1039. That sentence states that "the alien . . . shall be

considered, for purposes of this subsection, to remain an immediate

relative after the date of the citizen's death but only if the

spouse files a petition under section 1154(a)(1)(A)(ii) . . .

within 2 years after such date and only until the date the spouse

remarries." 8 U.S.C. 1151(b)(2)(A)(i) (emphasis added). The fact

that within the same subsection, Congress uses the word "spouse" to

refer to a living spouse and a surviving spouse lends support to

the argument that it intended for "spouse" to include surviving

spouse. See Freeman, 444 F.3d at 1039-41; see also Robinson, 554

F.3d at 369 (Nygaard, J., dissenting) ("Congress used 'spouse' to

refer to a continuing marital bond between the deceased petitioner

and a surviving husband or wife."). This reading is consistent

with "one of the principal rules of statutory construction which is

6
Even the most current edition of the dictionary includes
surviving spouse within the definition of "spouse." Black's Law
Dictionary 1438–39 (8th ed. 2004) (defining "surviving spouse,"
under "spouse," as "[a] spouse who outlives the other spouse").

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to give terms consistent meaning." See Robinson, 554 F.3d at 369

(Nygaard, J., dissenting).

2. Text and Structure of Statute

In addition to its plain language argument, the

government asserts that Mrs. Taing should not be considered an

"immediate relative" under § 1151(b)(2)(A)(i) because she was not

married to Mr. Taing for at least two years at the time of his

death. It cites the second sentence of the statute for this two-

year requirement and argues that this requirement extends to

"spouses" described in the first sentence. The government insists

that the inclusion of the phrase "for purposes of this subsection"

in the second sentence supports its interpretation. The

government's argument is undermined by the text and structure of

the statute as well as related provisions concerning the right of

a surviving spouse to adjust her status.

"[L]ooking to the 'specific context in which [the]

language is used, and the broader context of the statute as a

whole,'" Pérez-Olivo, 394 F.3d at 49 (quoting Robinson v. Shell Oil

Co., 519 U.S. 337, 341 (1997)), it is clear to us that the first

two sentences in § 1151(b)(2)(A)(i) should be read as creating

separate and independent pathways. The second sentence does not

modify or limit the meaning of the term "spouse" in the first

sentence. See Freeman, 444 F.3d at 1039. The only term in the

first sentence which contains a limitation is "parents" and the

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statute restricts the status of "immediate relative" to parents

whose citizen children are at least twenty-one years of age. Id.

"There is no comparable qualifier to be a 'spouse' —- that is, a

requirement that the marriage must have existed for at least two

years." Id.

The second sentence, rather than modifying the first as

the government contends, creates a separate and independent right

for certain alien spouses to self-petition for "immediate relative"

status.7 See 8 U.S.C. § 1151(b)(2)(A)(i); see also Freeman, 444

F.3d at 1041-42. This sentence addresses the situation of an alien

spouse whose husband or wife died before filing an I-130 petition.

It limits the surviving alien spouse's right to self-petition by

requiring that spouses be married for two years prior to the

citizen spouse's death. The two-year duration requirement places

a limitation on the alien spouse's ability to obtain a new right.

There is nothing in the language of the second sentence to imply

that it was intended to strip away "spouse" status from a surviving

spouse whose deceased spouse had already filed an I-130 petition.

From the text and structure of these statutes, it is

evident that Congress put in place two separate processes for

petitioning for adjustment of status -- the first sentence

7
The first part of the second sentence which mentions the
two-year marriage requirement is limited by the phrase, "but only
if the spouse files a petition under § 1154(a)(1)(A)(ii) of this
title." See id. at 1041-42.

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contemplates a situation like Mrs. Taing's where the citizen spouse

has already filed a petition. In these situations, the duration of

the marriage is of no importance. However, the second sentence

deals with the situation where the citizen spouse has died before

filing an I-130 petition on his or her spouse's behalf.

Congress's decision to set up dual processes is

reaffirmed by reading § 1151(a)(1)(A)(ii) in conjunction with

related statutory provisions. For example, § 1154 states that

"[a]n alien spouse described in the second sentence of section

1151(b)(2)(A)(i) of this title also may file a petition with the

Attorney General under this subparagraph for classification of the

alien (and the alien's children) under such section." 8 U.S.C.

§ 1154(a)(1)(A)(ii) (emphasis added). We agree with the Freeman

court that "[t]he inclusion of the word 'also' in this subsection,

as compared to the right given to living citizen spouses in

§ 1154(a)(1)(A)(i) (i.e., to file a petition on behalf of their

alien spouse), further establishes that the right of self-petition

is given to a select group of alien widows as an alternative to

their citizen spouse's I-130 filing." 444 F.3d at 1042 n.17.

Moreover, 8 U.S.C. § 1186a states that an alien spouse

who receives permanent resident status as an "immediate relative"

before the second anniversary of her qualifying marriage does so on

a conditional basis. That status can be terminated if the

qualifying marriage is found to be improper. 8 U.S.C. § 1186a

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(b)(1). Notably, § 1186a(b)(1) provides that this finding can be

made if it is "determine[d], before the second anniversary of the

alien's obtaining the status of lawful admission for permanent

residence, that -- the qualifying marriage . . . has been

judicially annulled or terminated, other than through the death of

a spouse." Id. (emphasis added). As the Freeman court noted,

this language, by excepting a spouse's death, presents "compelling

evidence that Congress did not intend its provision for a widow's

self-petition for adjustment of status to have the implicit

collateral consequence of terminating a citizen spouse's already

pending petition -- particularly when the effect would be to

foreclose a grieving widow from any adjustment at all 'through the

death of [her] spouse.'" 444 F.3d at 1042; see also 8 U.S.C.

§ 1186a(b)(1)(A)(ii). Thus, § 1186a also lends support to our

conclusion that § 1151(b)(2)(A)(i) provides surviving spouses with

two distinct processes to petition for adjustment of status.

We are mindful of the "cardinal rule that courts must

strive to harmonize all the provisions of a statute to give them

all force and effect." United States v. Roberson, 459 F.3d 39, 55

(1st Cir. 2006). Applying this tool of statutory construction, and

viewing § 1151 in the context of the entire statutory scheme

concerning a surviving spouse's right to adjust her status, we are

convinced that Congress plainly and unambiguously intended that

surviving spouses like Mrs. Taing, who is the beneficiary of an I-

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130 petition filed prior to her spouse's death, remain eligible for

"immediate relative" status.

D. Government's Remaining Arguments Are Unavailing

The government's remaining arguments are unpersuasive in

light of our holding that Mrs. Taing continues to be a "spouse"

despite her husband's death. We take each in turn.

1. Present Tense Language in § 1154(b)

We disagree with the government's contention that the

present tense language used in § 1154(b) evidences congressional

intent not to confer "immediate relative" status on petitioners

like Mrs. Taing.8 The government argues that the present tense

language in this provision supports the conclusion that Mr. Taing,

the I-130 petitioner, must be alive and that Mr. and Mrs. Taing

must still be married for USCIS to approve the I-130 petition. We

disagree.

As explained above, because we read the first two

sentences of § 1151(b)(2)(A)(i) as creating separate and

independent pathways, we conclude a surviving spouse remains a

"spouse," and therefore qualifies for "immediate relative" status

for purposes of § 1154 even if the surviving spouse had been

8
8 U.S.C. § 1154(b) states in relevant part that "the Attorney
General shall, if he determines that the facts stated in the
petition are true and that the alien in behalf of whom the petition
is made is an immediate relative specified in section 1151(b) of
this title . . . approve the petition and forward one copy thereof
to the Department of State." (emphasis added).

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married for less than two years (provided, of course, that the

marriage was not fraudulent). Thus, the use of the present tense

in § 1154(b) does not affect our analysis because Mrs. Taing still

qualifies as "an immediate relative" despite her husband's death.9

2. Automatic Revocation

The government states that § 1155 allows the Secretary of

Homeland Security ("Secretary") to "revoke the approval of any

petition approved by him under section 1154" at any time for what

he considers to be "good and sufficient cause." 8 U.S.C. § 1155.

Further, the government states that, by regulation, the Secretary

has established that the citizen petitioner's death automatically

revokes approval of a visa petition.10 See 8 C.F.R.

9
The government also cites to another provision in § 1154 which
provides in relevant part:

Nothing in this section shall be construed to
entitle an immigrant, in behalf of whom a
petition under this section is approved, to be
admitted [to] the United States as an
immigrant . . . as an immediate relative under
section 1151(b) of this title if upon his
arrival at a port of entry in the United
States he is found not to be entitled to such
classification.

8 U.S.C. § 1154(e).

The government's reference to § 1154(e) is unconvincing because,
for the reasons explained above, Mrs. Taing is entitled to an
"immediate relative" classification.
10
We note that § 205.1(a)(3)(i)(C)(2) provides for a humanitarian
exception to the automatic revocation regulation. This regulation
does not apply to Mrs. Taing's case because her petition has yet to
be approved and she is not seeking to be considered for this

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§ 205.1(a)(3)(i)(C). The government contends that if the visa

petitioner's death is sufficient to revoke an approved petition, it

should be sufficient to revoke an unapproved petition.

Although the government did not raise this precise

argument below, we nevertheless go to the merits and conclude that

the automatic revocation provision is inapplicable here. First, it

is significant that this provision applies only to approved

petitions, whereas the I-130 petition at issue here is pending. We

are not convinced that we should extend a regulation that applies

to the revocation of approved petitions to the pending petition

context. See Lockhart, 561 F.3d at 622 (noting that "[t]he

Secretary provides no evidence establishing that the government

has, since 1938, denied pending immediate relative petitions solely

on the basis of the citizen spouse's death, nor . . . any

historical analysis linking the 'immediate relative' provision to

the automatic revocation of approved petitions").

Second, and more importantly, the government's reading of

the automatic revocation provision's applicability to pending

petitions is contrary to Congress's intent in § 1151(b)(2)(A)(i).

Where a regulation conflicts with congressional intent as expressed

in a statutory scheme, courts must give effect to congressional

exception at this time. Because there is no formal application or
petition used to request USCIS to consider an applicant for the
humanitarian exception, USCIS does not collect specific statistics
as to how often it grants the regulatory exception.

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intent. See Succar, 394 F.3d at 10–11 (holding that a regulation

promulgated by the Attorney General was invalid where it conflicted

with Congress's intent as expressed in a statute). Here, as

expressed above in our discussion of Congress's intent behind

§ 1151(b)(2)(A)(i), it is clear that Congress did not intend for

Mr. Taing's death to cut off Mrs. Taing's eligibility for

"immediate relative" status.11 See also Pierno v. INS, 397 F.2d

949, 950–51 (2d Cir. 1968) (concluding automatic revocation

inappropriate where petitioner died during a delay in considering

visa petition and that allowing "wooden application of rules for

automatic revocation" would result in many aliens being "denied

adjustment by the happenstance of a spouse's death.").

3. Related Statutes

In support of its argument, the government refers to

related statutes under which an alien may obtain permanent

residence based on a relationship that has been dissolved by death.

In particular, the government cites to the USA Patriot Act of 2001

("Patriot Act"), Pub. L. No. 107-56, §§ 421, 423, 115 Stat. 272,

and to the National Defense Authorization Act for Fiscal Year 2004

("NDAA"), Pub. L. No. 108-136, § 1703(a)–(e), 117 Stat. 1392, 1693.

11
We recognize that our decision today may have an impact on
various parts of the existing administrative scheme. See, e.g., 8
C.F.R. § 216.5 (detailing circumstances where the requirement of a
joint petition to remove conditions on LPR status may not apply).
The agency has the obligation to conform affected regulatory
provisions to the intent of Congress.

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The government cites to this legislation to support its claim that

when Congress has wanted to permit an alien to obtain "immediate

relative" status it has been explicit.

The government's references to the Patriot Act and NDAA

are inapposite because, to the extent they are relevant, the cited

provisions pertain to the second sentence of § 1151(b)(2)(A)(i),

not the first sentence.12 As we held above, the second sentence of

this provision has no bearing on whether a surviving spouse such as

Mrs. Taing qualifies as an "immediate relative" for purposes of her

visa petition and adjustment of status application. See Lockhart,

561 F.3d at 619 ("Like the second sentence of the "immediate

relative" provision . . . the Patriot and the National Defense

Authorization Acts provide a separate avenue for self-petitioning

12
Section 421(a) of the Patriot Act does not deal with "immediate
relatives." Rather it provides special immigrant status to other
groups of aliens. Section 423(a)(1), however, grants surviving
spouses of United States citizens who "died as a direct result of
specified terrorist activity" the right to self-petition within two
years of the citizen spouse's death notwithstanding the two-year
marriage requirement as set forth in the second sentence of
§ 1151(b)(2)(A)(i). Section 423(a)(1) applies where the United
States citizen spouse did not file the I-130 petition on behalf of
the alien spouse prior to his or her death. This legislation
clearly relates to the second sentence of § 1151(b)(2)(A)(i) and
does not alter or limit the first sentence.

Similarly, § 1703(a)–(e) of the NDAA contains language allowing
aliens, other than "immediate relatives," to have their adjustment
of status applications adjudicated despite the death of the
petitioner, specifically providing for the right to self-petition
under the second sentence of § 1151(b)(2)(A)(i) and under § 1154
(a)(1)(A). Again, this legislation relates to the second sentence
of § 1151(b)(2)(A)(i), and does not alter or limit the first
sentence.

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without requiring the alien-spouse to have been married for two

years in the event that the deceased citizen did not petition prior

to death.").

4. Effect of Prior Agency Decision

Lastly, the government argues that we should defer to a

Board of Immigration Appeals ("BIA") decision in Matter of Varela,

13 I&N Dec. 453 (BIA 1970). In Varela, the BIA held that an alien

spouse ceases to be a "spouse," and hence an "immediate relative,"

when a citizen spouse, petitioning on the alien spouse's behalf,

dies before the alien spouse's adjustment of status application is

due. Id. at 453–54. As explained above, we conclude that the

language, text, structure, and context of the INA statutory scheme

plainly and unambiguously indicate that Congress intended for

surviving spouses such as Mrs. Taing qualify for "immediate

relative" status for purposes of § 1151(b)(2)(A)(i); thus, we need

not accord Chevron deference to the BIA's decision in Varela. Even

if we were to consider Varela under the less deferential standard

articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944), it

fails to persuade us for two main reasons.13 See Lockhart, 561 F.3d

13
We apply Skidmore deference consistent with the following
language from United States v. Mead Corp.:

The weight [accorded to an administrative] judgment in a
particular case will depend upon the thoroughness evident
in its 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.

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at 622 (holding that Varela is not entitled to either Skidmore or

Chevron deference). First, the opinion summarily rules in favor of

the government and does not engage in an adequate analysis of the

statutory text. See id.; Freeman, 444 F.3d at 1038. Second, the

BIA later found this decision to be extra-jurisdictional in Matter

of Sano, 19 I&N Dec. 299 (BIA 1985), thereby making Varela a

non-precedential decision.14 See Lockhart, 561 F.3d at 622;

Freeman, 444 F.3d at 1038.

533 U.S. 218, 226-27 (2001) (alteration in original) (quoting
Skidmore, 323 U.S. at 140); see also García-Quintero v. Gonzales,
455 F.3d 1006, 1014-15 (9th Cir. 2006) (suggesting that Skidmore
counsels that non-precedential BIA decisions that do not qualify
for Chevron deference may be entitled to respect proportional to
their power to persuade).
14
We note that the INA's own enacting regulations are in tension
with the holding in Varela. 8 C.F.R. §§ 204.1-2 set out the
process for "immediate relative" petitions and support the
conclusion that Congress intended for there to be dual tracks in
place -- one where the citizen spouse, before his death, has filed
an I-130 petition and one where he has not filed an I-130 petition.
As the Freeman court has noted: "The distinction the regulations
draw between the rights of a citizen spouse to petition as compared
to those of an alien widow to self-petition is consistent with a
congressional intent to create two different processes." 444 F.3d
at 1042-43 (emphasis in original removed). Notably, "sections
204.1(a)(2) and 204.2(b), separately delineate when a 'widow or
widower of a United States citizen self-petitioning' [] 'may file
a petition and be classified as an immediate relative' . . .
essentially tracking the second sentence of § 1151(b)(2)(A)(i)."
Id. at 1042 (emphasis in original removed). As we have detailed
above, reading § 1151(b)(2)(A)(i)'s two sentences as creating
separate and independent avenues for relief supports Mrs. Taing's
claim that she remains an "immediate relative" despite her
husband's death.

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 E. Public Policy

Although we rest our holding on entirely legal grounds,

we note that our decision comports with common sense. We do not

believe that Congress intended for the speed at which immigration

authorities attend to a pending application to be dispositive in

determining when a surviving spouse like Mrs. Taing, who has

diligently followed the rules, can qualify as an "immediate

relative." We recognize that given the volume of cases, it may

take many months for the immigration authorities to consider a

pending application; however, this fact is outside an applicant's

control and should not be used to penalize her. As our sister

court has recently noted, the result the government seeks would

"create[] an arbitrary, irrational and inequitable outcome in which

approvable petitions will be treated differently depending solely

upon when the government grants the approval." Lockhart, 561 F.3d

at 620 (quoting Robinson, 554 F.3d at 371 (Nygaard, J.,

dissenting)). "[W]e must assume that when drafting the INA,

Congress did not intend an absurd or manifestly unjust result."

Id. (citing Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989)).

III. Conclusion

For the foregoing reasons, we affirm the district court.

Affirmed.

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