Choin v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

YELENA IZOTOVA CHOIN, 
Petitioner, No. 06-75823
v.
 Agency No.
A75-597-079
MICHAEL B. MUKASEY, Attorney
General,
Respondent.


YELENA IZOTOVA CHOIN, 
Petitioner, No. 07-70941
v.
 Agency No.
A75-597-079
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
April 11, 2008—Pasadena, California

Filed August 12, 2008

Before: Alfred T. Goodwin, Harry Pregerson, and
Dorothy W. Nelson, Circuit Judges.

Opinion by Judge Pregerson

10463
10466 CHOIN v. MUKASEY

COUNSEL

Donald Ungar, San Francisco, California, for the petitioner.

Anthony P. Nicastro, Office of Immigration Litigation, Wash-
ington, D.C., for the respondent.

OPINION

PREGERSON, Circuit Judge:

Yelena Choin (“Choin”), a native and citizen of Russia,
petitions this court for review of a decision by the Board of
 CHOIN v. MUKASEY 10467
Immigration Appeals (“BIA”) that denied her application for
adjustment of status and ordered her removed. We have juris-
diction under 8 U.S.C. § 1252. We grant Choin’s petition and
remand to the BIA for further proceedings consistent with this
opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts are not in dispute. On December 4, 1998, Choin
arrived in the United States with her two children on a K visa
as the fiancée of U.S. citizen Albert Tapia.1 Choin and Tapia
were married on February 20, 1999. On April 14, 1999, Choin
filed an application to adjust her status to that of a lawful per-
manent resident. On April 9, 2001, five days short of two
years from the date Choin filed her application, and while she
was still waiting to have an interview with the Immigration
and Naturalization Service (“INS”)2 on her application, Choin
and Tapia were divorced.

On August 27, 2001, the INS denied Choin’s application
for adjustment of status because of her divorce. The Depart-
ment of Homeland Security subsequently began removal pro-
ceedings against Choin. After a brief hearing, an immigration
judge ordered Choin removed. Choin appealed to the BIA,
which dismissed her appeal. Choin filed a motion for recon-
sideration, which the BIA also denied. Choin now petitions
1
As explained in more detail below, the K visa is a nonimmigrant visa
that allows fiancées of United States citizens to enter the United States to
get married here.
2
On March 1, 2003, the INS ceased to exist as an independent agency
within the Department of Justice, and its functions were transferred to the
newly formed Department of Homeland Security. See Homeland Security
Act of 2002, Pub. L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192,
2205 (codified at 6 U.S.C. § 101, et seq.). This opinion refers to the INS
during proceedings that took place before this change occurred.
10468 CHOIN v. MUKASEY
for review of both the original BIA decision and the denial of
her motion for reconsideration.3

II. DISCUSSION

The government contends that a K visaholder is ineligible
to adjust her status to that of a lawful permanent resident if
her marriage ends before the agency adjudicates her applica-
tion for adjustment of status. To become a lawful permanent
resident, the fiancée of a U.S. citizen must go through four
steps.

First, the non-citizen must obtain a K visa through a visa
petition filed by her U.S. citizen fiancé. 8 U.S.C. § 1184(d).
To obtain the visa, the couple must have met in person within
two years of the filing of the petition and must have a bona
fide intention to marry within ninety days of the non-citizen’s
arrival. 8 U.S.C. § 1184(d)(1).

The second step towards permanent residency is marriage
to the U.S. citizen. Once the K visa is approved, the non-
citizen can legally enter the United States to get married. Id.
If the couple does not marry within ninety days of the non-
citizen’s entry, the non-citizen is required to depart from the
United States. Id.

[1] If the couple is married within ninety days, the non-
citizen spouse can take the third step and apply to adjust her
status to that of a lawful permanent resident. 8 C.F.R.
§ 245.2(c). Before 1986, this application for adjustment of
status was automatic. See Matter of Dixon, 16 I. & N. Dec.
355, 357 (BIA 1977). In 1986, however, in response to certain
marriage fraud concerns, Congress enacted the Immigration
3
Because we grant Choin’s petition for review of the original BIA deci-
sion (Ninth Circuit case number 06-75823), we dismiss as moot her peti-
tion for review of the BIA’s denial of her motion for reconsideration
(Ninth Circuit case number 07-70991).
 CHOIN v. MUKASEY 10469
Marriage Fraud Amendments (“IMFA”). Pub. L. No. 99-639.
The IMFA deleted the language that made adjustment of sta-
tus for K visaholders automatic, and therefore required K
visaholders, like other nonimmigrants, to adjust their status
through the Immigration and Nationality Act (“INA”) § 245.
See 8 U.S.C. § 1255. Congress also added INA § 245(d),
which provided that K visaholders could adjust to permanent
resident status only “as a result of the marriage of the nonim-
migrant . . . to the citizen who filed [the K visa petition].” 8
U.S.C. § 1255(d). This means that an immigrant entering the
country on a K visa cannot adjust her status to that of a per-
manent resident based on a marriage to a person other than
her original fiancé, or on any other basis.

The IMFA also added a new fourth step to the process.
Now, K visaholders can first adjust only to conditional per-
manent resident status. 8 U.S.C. § 1255(d). Section 216 of the
INA now provides that, for the first two years of permanent
resident status, spouses of U.S. citizens are only conditional
permanent residents. Upon the two-year anniversary of gain-
ing conditional permanent resident status, the couple can
jointly petition to have the non-citizen’s conditional tag
removed. 8 U.S.C. § 1186a(c)(1)(A). In the joint petition, the
couple must affirm that they are still married and that they did
not enter into marriage for immigration purposes. 8 U.S.C.
§ 1186a(d)(1). They must also provide information about their
place of residence and their employment history over the pre-
vious two years. Id. If the non-citizen is unable to file the joint
petition because her marriage has ended, she may apply for a
waiver of the petition requirement by attesting that her mar-
riage was entered into in good faith. 8 U.S.C. § 1186(c)(4)(B).

Choin’s Eligibility

Choin complied with the statutory framework described
above. Based on a petition from her fiancé, Choin success-
fully obtained a K visa. She entered the United States and
married her fiancé within ninety days of her arrival. She filed
10470 CHOIN v. MUKASEY
the form to adjust her status to conditional permanent resi-
dent. The INS, however, did nothing about her application for
almost two and a half years, and thus she never became a con-
ditional permanent resident and never reached the fourth stage
of the process. At issue is whether Choin’s divorce after over
two years of marriage made her ineligible to adjust to condi-
tional permanent resident.

Both the Immigration Judge (“IJ”) and the BIA found
Choin ineligible for adjustment of status under INA § 245(d)
because of her divorce. Section 245(d) provides as follows:

The Attorney General may not adjust . . . the status
of a [K visaholder] except to that of an alien lawfully
admitted to the United States on a conditional basis
under section 1186a of this title as a result of the
marriage of the nonimmigrant . . . to the citizen who
filed the [K visa petition].

8 U.S.C. § 1255(d) (emphasis added).

[2] This case thus turns on whether the IJ and BIA properly
interpreted the “as a result of the marriage of the nonimmi-
grant” language in INA § 245(d). If “Congress has directly
spoken to the precise question at issue,” then the plain mean-
ing of the statute controls. Chevron U.S.A. Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Both parties
contend that the plain meaning of the statute supports their
interpretation. We disagree, and conclude that the plain lan-
guage of § 245 is ambiguous. Nothing in the text of the statute
definitively resolves the eligibility of a petitioner in Choin’s
circumstances.4 The language of INA § 245 specifying that a
4
There is no question that the plain language of the statute bars K
visaholders from adjusting to permanent resident status on any basis other
than the marriage to the citizen who petitioned on their behalf. See Kalal
v. Gonzales, 402 F.3d 948, 951 (9th Cir. 2005) (rejecting attempt of K
visaholder to adjust his status based on marriage to a woman other than
 CHOIN v. MUKASEY 10471
nonimmigrant may adjust status “as a result of the marriage”
can plausibly be interpreted in two ways. As the government
argues, it could be interpreted to exclude those petitioners
whose marriages no longer exist on the date of adjudication.
On the other hand, as Choin argues, it could also be inter-
preted to mean that the application must be based on the fact
of the marriage.

The government contends that if the statute is ambiguous,
we must defer to the agency’s interpretation under Chevron.
We disagree. When the BIA advances its interpretation of an
ambiguous statute in an unpublished decision, that interpreta-
tion is not entitled to Chevron deference. See Garcia-
Quintero v. Gonzales, 455 F.3d 1006, 1012 (9th Cir. 2006).
Unpublished BIA decisions are instead given Skidmore defer-
ence, entitling the interpretation “to a respect proportional to
its power to persuade.” Garcia-Quintero, 455 F.3d at 1014;
(applying the deference scheme laid out in Skidmore v. Swift
& Co., 323 U.S. 134 (1944)). Under Skidmore, our deference
to the agency position is proportionate to “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.” Skidmore, 323 U.S. at 140. The BIA deci-
sion here does not evidence significant consideration or thor-
oughness. The relevant analysis consists of two paragraphs
that offer little explanation for why the BIA reached its con-
clusion. Our deference to the BIA here is therefore based only
on the inherent strength of the agency’s interpretation.

[3] In weighing the strength of the parties’ competing inter-
pretations, we consider the meaning of § 245 in light of the

the one who filed the K visa petition for him); Markovski v. Gonzales, 486
F.3d 108, 110 (4th Cir. 2007) (rejecting attempt of K visaholder to adjust
his status based on a petition submitted by a potential employer). Choin,
however, unlike the petitioners in Kalal and Markovski, is petitioning on
the basis of the marriage to the citizen who petitioned on her behalf.
10472 CHOIN v. MUKASEY
purpose of the statute and its context in the statutory scheme.
See Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006)
(“Interpretation of a word or phrase depends upon reading the
whole statutory text, considering the purpose and context of
the statute, and consulting any precedents or authorities that
inform the analysis.”). We conclude that the purpose and con-
text of § 245(d) do not support the government’s interpreta-
tion.

[4] The purpose of the IMFA was “to deter immigration-
related marriage fraud and other immigration fraud.” Pub. L.
No. 99-639. These amendments were necessary because, prior
to enactment of the IMFA, even a sham marriage to a United
States citizen provided a ready and immediate path to lawful
permanent resident status. See Charles Gordon, Stanley Mail-
man & Stephen Yale-Loehr, Immigration Law and Procedure
§ 42.01 (2007). Congress therefore limited the path to perma-
nent residency by providing that K visaholders can only
adjust to permanent resident status based on marriage to the
fiancé who petitioned for them, not based on a marriage to
someone else or any other basis. Congress also created the
conditional permanent resident status to enable the govern-
ment to gather two years of evidence about a marriage before
granting full permanent resident status. This purpose of root-
ing out marriage fraud does not support the government’s
reading of the statute as a tool to remove immigrants like
Choin who marry a U.S. citizen in good faith but have their
marriages end in divorce.

[5] The context of § 245(d) in the larger statutory scheme
also supports Choin’s interpretation. As discussed above, the
INA provides that K visaholders become only conditional per-
manent residents for the first two years of permanent resident
status. 8 U.S.C. § 1186a(a)(1). At the end of the two-year
period, the non-citizen and her spouse must file a joint peti-
tion and appear for an interview to verify that their marriage
is not fraudulent. 8 U.S.C. § 1186a(c)(1)(A). If, however, the
marriage has ended before the joint petition can be filed, the
 CHOIN v. MUKASEY 10473
non-citizen can apply for a waiver of the petition requirement
by showing that her marriage was entered into in “good faith”
and that the immigrant “was not at fault in failing” to file the
joint petition. 8 U.S.C. § 1186a(c)(4)(B). This waiver teaches
that a non-citizen spouse is not automatically returned to his
or her native country upon divorce. Instead, the statute
focuses on the good faith of the marriage, not the marriage’s
success or failure.

[6] The government, however, reads the statute as imposing
a durational requirement on Choin’s marriage. In the govern-
ment’s view, to receive conditional permanent resident status,
an immigrant here on a K visa must stay married until the
government gets around to adjudicating her application for
adjustment of status. While Congress could impose a dura-
tional requirement, we decline to adopt a reading of § 245(d)
that imposes such a requirement based only on the ambiguous
language in the statute.

Our decision in Freeman v. Gonzales, 444 F.3d 1031 (9th
Cir. 2006), addressed an analogous situation. In Freeman, an
immigrant woman filed an adjustment of status application
based on marriage to a U.S. citizen. Id. at 1033. The agency
took more than two and a half years to review her application,
and, in the meantime, her husband died. Id. Interpreting a dif-
ferent provision of the INA, 8 U.S.C. § 1151(b)(2)(A)(i), we
concluded that nothing in the statute indicated that a petition
that was valid at the time it was submitted was “entirely
voided upon the [husband’s] death.” Id. at 1040. We noted
that “[i]t is understandable that the immigration authorities
may require a considerable amount of time to process the
many applications that come before them; however, an alien’s
status as a qualified spouse should not turn on whether DHS
happens to reach a pending application before the citizen
spouse happens to die.” Id. at 1043.

[7] As in Freeman, we here similarly find nothing in the
plain language of § 245(d) suggesting that an application that
10474 CHOIN v. MUKASEY
was valid when submitted should be automatically invalid
when the petitioner’s marriage ends by divorce two years later.5
The purpose and context of § 245(d) also do not support the
government’s reading of the statute that requires the auto-
matic removal of immigrants whose marriages end in divorce
while their application for adjustment of status languishes in
the agency’s file cabinet.

We therefore conclude that the BIA’s reading of INA
§ 245(d) was incorrect, and we GRANT Choin’s petition for
review and remand to the BIA for further proceedings consis-
tent with this opinion.

PETITION GRANTED.

5
As in Freeman, however, we note that even if Choin married in good
faith, our decision does not “automatically entitle [Choin] to adjustment
of status,” which is granted at the discretion of the Attorney General. Id.
at 1040 n.12. Instead, “the purpose of our opinion here is to ensure that
in making the decision to accord [adjustment of] status, the immigration
authorities are properly construing the law that they have the discretion to
apply.” Id.