FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA DEL CARMEN MEDINA No. 18-35072
TOVAR; ADRIAN JOVAN ALONSO
MARTINEZ, D.C. No.
Plaintiffs-Appellants, 3:17-cv-00719-BR
v.
OPINION
LAURA B. ZUCHOWSKI, Director,
Vermont Service Center, United
States Citizenship and
Immigration Services; CHAD F.
WOLF, Acting 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. A. Brown, District Judge, Presiding
Argued and Submitted May 15, 2019
Portland, Oregon
Filed January 17, 2020
2 TOVAR V. ZUCHOWSKI
Before: N. Randy Smith, Paul J. Watford, and
Ryan D. Nelson, Circuit Judges.
Opinion by Judge N.R. Smith;
Dissent by Judge Watford
SUMMARY*
Immigration
Affirming the district court’s grant of summary judgment
in favor of government defendants in a case involving when
a spousal relationship must exist for a spouse to be eligible
for derivative U-visa status, the panel deferred to a regulation
adopted by the United States Citizenship & Immigration
Service (“USCIS”) that construed the statutory phrase
“accompanying, or following to join” to require that a
spouse’s qualifying relationship exist at the time of the filing
of the initial U-visa petition.
A U visa grants temporary, lawful, nonimmigrant resident
status to an alien who has suffered substantial physical or
mental abuse as a result of having been a victim of criminal
activity in the U.S. and who helped law enforcement
investigating or prosecuting that criminal activity. Under
8 U.S.C. § 1101(a)(15)(U)(ii), a U-visa recipient may petition
for derivative status for a qualifying relative who is
“accompanying, or following to join,” the principal alien.
That provision specifies which relationships may qualify for
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TOVAR V. ZUCHOWSKI 3
derivative U-visa status: “(I) in the case of [a principal alien]
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 [a principal alien] who is 21 years
of age or older, the spouse and children of such alien.” The
regulation at issue here, 8 C.F.R. § 214.14(f)(2), provides that
the relationship between the principal alien and the qualifying
family member must exist at the time the principal alien’s
petition was filed, must continue to exist at the time the
derivative petition is adjudicated, and at the time of the
qualifying family member’s subsequent admission to the U.S.
The principal alien in this case, Maria Medina Tovar, a
Mexican citizen, came to the U.S., was the victim of a serious
crime, and was helpful to law enforcement. She submitted
her petition for a U visa and later married a Mexican citizen.
She was then granted U-visa status and filed for derivative U-
visa status for her husband. The USCIS denied that petition
on the ground that the couple was not married when Tovar
filed her initial petition. Tovar and her husband (“Plaintiffs”)
sought review in the district court, which granted the
government defendants’ summary judgment motion.
The panel applied the two-step analysis from Chevron,
U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837
(1984), to review the agency’s construction of the phrase
“accompanying, or following to join.” First, the panel
concluded that Congress has not directly spoken to the
question of when a qualifying relationship must exist for an
“accompanying, or following to join,” family member to be
eligible for derivative U-visa status. The panel rejected
Plaintiffs’ contention that that “accompanying, or following
to join” has a well-established meaning, explaining that the
4 TOVAR V. ZUCHOWSKI
agency has defined the phrase differently depending on the
alien’s status. For example, for a refugee, the qualifying
relationship must exist prior to the refugee’s admission to the
U.S, must continue to exist at the time of filing for derivative
benefits, and at the time of the derivative’s admission to the
U.S. Whereas, for asylum, the relationship must exist at the
time the principal alien’s asylum application was approved,
must continue to exist at the time of filing for derivative
benefits, and at the time of the derivative’s admission to the
U.S.
The panel also rejected Plaintiffs’ assertion that the “age
out” provision for unmarried siblings – which provides that
an eligible unmarried sibling is one who is under 18 at the
time when the principal applied for a U visa – makes it clear
that Congress did not intend to limit other qualifying family
members to the date of the application. The panel explained
that the statutory provision does not provide any instruction
regarding the timing of when a spouse’s relationship would
qualify for status.
At step-two of Chevron, the panel concluded that the
agency’s regulation imposes reasonable requirements in light
of the text, nature, and purpose of the U-visa statute. The
panel explained that it is reasonable for the agency to require
that qualifying relationships exist at the time of the initial U-
visa application, where the purpose of the U-visa statute is to
provide only limited, temporary, nonimmigrant status to alien
victims of crime (already present in the U.S.) based on their
aid to law enforcement.
The panel also concluded that the regulation does not
violate Equal Protection. With respect to Plaintiffs’ argument
that spouses and children of U-visa recipients are similarly
TOVAR V. ZUCHOWSKI 5
situated and yet treated inconsistently without a rational basis,
the panel concluded that spouses and children are not
similarly situated because the dependency of spouses is not
equivalent to that of the parent-child relationship. The panel
further concluded that, even if the groups were similarly
situated, treating spouses and children differently is rationally
based on Congress’s interest in preventing marriage fraud.
With respect to Plaintiffs’ argument that spouses of U-visa
holders, refugees, asylees, and other nonimmigrant and
immigrant visa holders are similarly situated and improperly
treated differently, the panel concluded that immigration
fraud concerns and the underlying purposes of the different
visa categories provide a rational basis for the different
treatment of U-visa spouses as compared to other spouses.
Dissenting, Judge Watford wrote that he would reverse on
the ground that the regulation is not a valid interpretation the
governing statute. Judge Watford wrote that USCIS’s
interpretation cannot be squared with the well-settled
meaning of “accompanying or following to join,” which had
consistently been construed to mean that the marital
relationship must exist at the time principal petitioner’s
application is granted, not when her application was filed.
Looking at the rules for refugees and asylees, Judge Watford
observed that in both contexts, principal petitioners may seek
derivative status on behalf of their spouses if the marriage
exists when the principal petitioner is granted status. Judge
Watford also wrote that it is clear that Congress used the
phrase “accompanying or following to join” in its traditional
sense in the U-visa statute because when Congress wished to
depart from that meaning it did so explicitly, by providing
that a principal petitioner who is under the age of 21 may
petition for derivative status on behalf of unmarried siblings
6 TOVAR V. ZUCHOWSKI
under 18 years of age on the date on which such alien applied
for status.
COUNSEL
Philip James Smith (argued), Nelson Smith LLP, Portland,
Oregon, for Plaintiffs-Appellants.
Aaron S. Goldsmith (argued), Senior Litigation Counsel;
Jeffrey S. Robins, Assistant Director; William C. Peachey,
Director; District Court Section, Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellees.
OPINION
N.R. SMITH, Circuit Judge:
The United States Citizenship & Immigration Service
(“USCIS”) permissibly construed the statutory phrase
“accompanying, or following to join” in 8 U.S.C.
§ 1101(a)(15)(U)(ii) when it adopted its regulation, 8 C.F.R.
§ 214.14(f)(4), requiring that a spouse’s qualifying
relationship exists at the time of the initial U-visa petition and
that the qualifying relationship continues throughout the
adjudication of the derivative petition. Thus, we must accord
Chevron deference to the USCIS’s interpretation of the
statute in enacting the regulation. See K Mart Corp. v.
Cartier, Inc., 486 U.S. 281, 292 (1988).
TOVAR V. ZUCHOWSKI 7
I. Administrative Framework
A U visa is a nonimmigrant visa category that grants
temporary, lawful, nonimmigrant resident status to a
noncitizen alien who “has suffered substantial physical or
mental abuse as a result of having been a victim of criminal
activity” in the United States and who helped law
enforcement “investigating or prosecuting [that] criminal
activity.” 8 U.S.C. § 1101(a)(15)(U)(i). A U visa provides
lawful temporary nonimmigrant status “for a period of not
more than 4 years,”1 but a U-visa holder may apply for an
adjustment of status to that of a lawful permanent resident
(“LPR”) after maintaining U-visa status for three years. Id.
§§ 1184(p)(6), 1255(m)(1)(A).
A U-visa recipient—a principal alien—may also petition
for derivative status for a qualifying relative who is
“accompanying, or following to join,” that principal alien. Id.
§ 1101(a)(15)(U)(ii). That statutory provision specifies which
relationships may qualify for derivative U-visa status:
(I) in the case of [a principal alien] 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
1
The four-year period may be extended upon certification that “the
alien’s presence in the United States is required to assist in the
investigation or prosecution of such criminal activity” or “if the Secretary
determines that an extension of such period is warranted due to
exceptional circumstances.” 8 U.S.C. § 1184(p)(6).
8 TOVAR V. ZUCHOWSKI
(II) in the case of [a principal alien] who is 21
years of age or older, the spouse and children
of such alien.
Id. When the principal alien adjusts status, the Secretary
“may adjust the status of or issue an immigrant visa to a
spouse [or] a child . . . to avoid extreme hardship” if he or
she did not receive a nonimmigrant visa under
§ 1101(a)(15)(U)(ii). Id. § 1255(m)(3).
The agency promulgated regulations interpreting and
implementing these U-visa statutes. 8 C.F.R. §§ 214.14,
245.24. Under the regulations, the principal alien must file a
petition—Form I-918—to obtain U-visa status. Id.
§ 214.14(c)(1). The principal alien may also apply for
derivative U-visa status on behalf of qualifying relatives by
submitting a Form I-918, Supplement A. Id. § 214.14(f)(2).
“[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.” Id. § 214.14(f)(4). Additionally, the
regulation includes a provision to prevent aliens from aging
out. The age of a principal alien under 21 and that alien’s
unmarried siblings under the age of 18 are determined as of
the initial petition date, so that such aliens may qualify for
status even if they are no longer under that age when their
petitions are adjudicated. Id. § 214.14(f)(4)(ii).
II. Procedural History & Facts
The principal alien in this case, Maria Medina Tovar, was
born in Mexico in 1992; she came to the United States when
TOVAR V. ZUCHOWSKI 9
she was six years old. In 2004, Tovar was the victim of a
serious crime while living in Oregon, and she was helpful to
law enforcement in the investigation or prosecution of that
crime. On June 14, 2013, Tovar filed her U-visa petition
(Form I-918). Thereafter, on September 21, 2015, Tovar
married Adrian Alonso Martinez, a citizen of Mexico. Tovar
was granted U-visa status as of October 1, 2015. On March
26, 2016, Tovar filed a petition for derivative U-visa status
(Form I-918, Supplement A) for Martinez as her
“accompanying, or following to join,” spouse. The USCIS
denied that petition, because Tovar and Martinez were not
married when Tovar filed her initial petition for principal U-
visa status, as required by 8 C.F.R. § 214.14(f)(4).
On May 8, 2017, Plaintiffs filed a complaint in district
court seeking declaratory and injunctive relief from USCIS’s
denial of derivative status for Martinez.2 On cross-motions for
summary judgment, Plaintiffs argued that the regulation
requiring the marital relationship to exist at the time of the
principal U-visa petition is contrary to the statute and that the
regulation violates the Equal Protection Clause of the
Fourteenth Amendment. Defendants replied that the U-visa
provision in 8 U.S.C. § 1101(a)(15)(U) is ambiguous, but the
agency’s regulation is a reasonable interpretation and should
be afforded deference.
2
Plaintiffs did not file an administrative appeal of USCIS’s denial.
However, Defendants conceded before the district court that exhaustion
of administrative remedies was not a prerequisite to judicial review in this
case. See Darby v. Cisneros, 509 U.S. 137, 154 (1993) (“[W]here the APA
applies, an appeal to ‘superior agency authority’ is a prerequisite to
judicial review only when expressly required by statute or . . . agency rule
. . . .”).
10 TOVAR V. ZUCHOWSKI
The district court determined that (1) Congress did not
directly address the question of when a marital relationship
must exist for a spouse to be eligible for U-visa derivative
status and (2) the regulation is reasonable and entitled to
deference. Additionally, the district court concluded the
regulation does not violate the Equal Protection Clause,
because its treatment of nonimmigrant spouses is rationally
related to immigration concerns (such as marriage fraud)
recognized by Congress. Thus, the district court granted
Defendants’ motion for summary judgment and denied
Plaintiffs’ motion for summary judgment. Plaintiffs appealed.
III. Standard of Review
“We review de novo the district court’s grant of summary
judgment.” Herrera v. USCIS, 571 F.3d 881, 885 (9th Cir.
2009).
IV. Discussion
A. The Statute is Ambiguous as to “Accompanying, or
Following to Join.”
As outlined above, Congress authorized the issuance of
derivative U-visa status to qualifying relatives who are
“accompanying, or following to join,” the principal alien. See
8 U.S.C. § 1101(a)(15)(U)(ii). The parties agree that this case
turns on the meaning of that phrase “accompanying, or
following to join.”
In reviewing “an agency’s construction of the statute
which it administers,” we must employ the two-step Chevron
analysis. See Chevron, U.S.A. Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 842–843 (1984). At step one of Chevron,
TOVAR V. ZUCHOWSKI 11
we must determine whether Congress has provided an answer
to the precise question at issue. “If the intent of Congress is
clear . . . the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.” Id.
at 842–43 (emphasis added). “If, however, the court
determines Congress has not directly addressed the precise
question at issue, the court does not simply impose its own
construction on the statute.” Id. at 843 (emphasis added).
“Rather, 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.” Id. (emphasis added).
Here, Congress has not directly spoken to the question at
issue: when must a qualifying relationship exist for an
“accompanying, or following to join,” family member to be
eligible for derivative U-visa status? “[A]ccompanying, or
following to join” is not defined by statute, even though
Congress has used the phrase in numerous sections of the
Immigration and Nationality Act. See, e.g., 8 U.S.C. §§ 1153,
1158.
Congress has never directly addressed when a qualifying
relationship must exist. Neither the plain language nor the
surrounding language of the U-visa statute answer the
question. In the surrounding language, Congress only
designated qualifying “accompanying, or following to join,”
family members in the U-visa context with this language:
(I) in the case of [a principal alien] 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
12 TOVAR V. ZUCHOWSKI
under such clause, and parents of such alien;
or
(II) in the case of [a principal alien] who is 21
years of age or older, the spouse and children
of such alien.
8 U.S.C. § 1101(a)(15)(U)(ii); see also 8 U.S.C. § 1184(p).
Otherwise, the statutory language is silent with regard to
whether Congress intended that the qualifying relationship
exist (1) when the principal filed his or her application,
(2) when the application is adjudicated, (3) throughout the
entire process, or (4) at some time after the principal alien has
been granted status. In the absence of such an indication, we
cannot impose our own construction of the statute.
Plaintiffs argue to the contrary. First arguing that the
intent of Congress is clear from the language of the statute,
Plaintiffs assert that “accompanying, or following to join” has
a well-established meaning, and that Congress (in other
contexts) has never limited the spouses’ eligibility to the date
of an application.
However, all parties agree that Congress has never
defined this statutory phrase. Thus, we must look to case law
or regulations to determine whether the phrase had a well-
settled meaning at the time Congress enacted the statute. Cf.
Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1074 (9th
Cir. 2008) (explaining that “[w]here a statute does not
expressly define a term of settled meaning, courts interpreting
the statute must infer, unless the statute otherwise dictates,
that Congress means to incorporate the established meaning
of that term” (internal quotation marks and alterations
omitted)). The Supreme Court has held that “Congress’
TOVAR V. ZUCHOWSKI 13
repetition of a well-established term carries the implication
that Congress intended the term to be construed in accordance
with pre-existing regulatory interpretations.” Bragdon v.
Abbott, 524 U.S. 624, 631 (1998). However, contrary to
Plaintiffs’ (and the dissent’s) argument, “accompanying, or
following to join” did not have a settled meaning when
Congress enacted the Victims of Trafficking and Violence
Protection Act in October 2000. Cf. Cmty. for Creative Non-
Violence v. Reid, 490 U.S. 730, 739–40 (1989) (noting that
“[w]here Congress uses terms that have accumulated settled
meaning under the common law, a court must infer, unless
the statute otherwise dictates, that Congress means to
incorporate the established meaning of these terms”
(alteration omitted)). Instead, the agency has defined
“accompanying, or following to join” differently depending
on the alien’s status. See, e.g., Procedures for Filing a
Derivative Petition (Form I-730) for a Spouse and Unmarried
Children of a Refugee/Asylee, 63 Fed. Reg. 3792-01 (Jan. 27,
1998) (codified at 8 C.F.R. pts. 207, 208, and 299).
Giving consideration to the only two examples from the
nonimmigrant context, the qualifying relationship for a
refugee “must have existed prior to the refugee’s admission
to the United States and must continue to exist at the time of
filing for accompanying or following-to-join benefits and at
the time of the spouse or child’s subsequent admission to the
United States.” 8 C.F.R. § 207.7(c). Whereas, in considering
the qualifying relationship for asylum, it “must have existed
at the time the principal alien’s asylum application was
approved and must continue to exist at the time of filing for
accompanying or following-to-join benefits and at the time of
the spouse or child’s subsequent admission to the United
States.” 8 C.F.R. § 208.21(b). Thus, as is evident, both of
these regulations have different timing requirements for when
14 TOVAR V. ZUCHOWSKI
the spouse’s qualifying relationship must exist. Although
asylee applicants may be more like U-visa applicants
(because they are both present in the United States), there is
no basis to conclude that (when it adopted the statute)
Congress intended the phrase have the same meaning for U-
visa applicants as it does for asylees.3
When enacting a statute, we presume Congress was aware
of the different regulations interpreting this phrase in the
immigrant, asylum, refugee, and U-visa contexts. See
Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–85
(1988); cf. Rodriguez v. Sony Comput. Entm’t Am., LLC,
801 F.3d 1045, 1052 (9th Cir. 2015). Yet, Congress never
added a definition of “accompanying, or following to join”
(in any context), nor has it added any clarifying language or
otherwise provided guidance to the agency on how that
language should be interpreted regarding the timing of
qualifying relationships.
Second, Plaintiffs assert that the “age out” provision for
unmarried siblings makes it clear that Congress did not intend
to limit other qualifying family members to the date of the
application. Although the “age out” provisions shed light on
Congress’s intent to preclude the alien him or herself, the
3
Additionally, Congress amended 8 U.S.C. § 1101 to add the U visa
in 2000, Victims of Trafficking and Violence Protection Act of 2000, Pub.
L. No. 106-386, 114 Stat. 1464, and the agency promulgated the U-visa
regulations in 2007, 72 Fed. Reg. 53014-01 (Sept. 17, 2007). Since then,
Congress has amended § 1101 numerous times, including an amendment
to the U-visa section itself. See, e.g., Violence Against Women
Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54 (2013
amendment adding qualifying crimes of which a noncitizen victim may be
eligible for U-visa status). However, it has not defined or modified the
term “accompanying, or following to join.”
TOVAR V. ZUCHOWSKI 15
alien’s children, and unmarried siblings from aging out,4
8 U.S.C. §§ 1101(a)(15)(U)(ii), 1184(p)(7), it does not
provide any instruction regarding the timing of when the
spouse’s relationship would qualify for status. Importantly,
spouses and parents are the only qualifying relatives that have
no risk of “aging out” while the U-visa petition is pending.
Further, between spouses and parents, only spouses have the
potential of having different dates of assessments. Thus,
Congress left a gap to fill with regard to when spouses are
eligible. See 8 U.S.C. § 1101(a)(15)(U)(ii). The 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.5
4
“Where Congress wanted to exempt certain aliens from aging out,
it has done so explicitly.” Contreras Aybar v. Johnson, 295 F. Supp. 3d
442, 455 (D.N.J. 2018), aff’d sub nom. Contreras Aybar v. Sec’y U.S.
Dep’t of Homeland Sec., 916 F.3d 270 (3d Cir. 2019) (recognizing that in
2013, Congress enacted legislation to protect children from aging out in
the U-visa context).
5
However, Congress has made it clear that once a U-visa holder
adjusts his or her status to legal permanent resident, “the Secretary of
Homeland Security may adjust the status of or issue an immigrant visa to
a spouse, a child, or in the case of an alien child, a parent who did not
receive a nonimmigrant visa under section 1101(a)(15)(U)(ii) of this title
if the Secretary considers the grant of such status or visa necessary to
avoid extreme hardship.” See 8 U.S.C. § 1255(m)(3); see also 8 C.F.R.
§ 245.24(h)(1)(iv) (defining extreme hardship). This provision, read in
context, makes it clear the assessment date for determining eligibility for
a qualifying family member must exist at some time prior to the U-visa
petitioner adjusting his or her status.
16 TOVAR V. ZUCHOWSKI
Because “Congress has not directly addressed the precise
question at issue” and “the statute is silent or ambiguous with
respect to [this] specific issue,” Chevron, 467 U.S. at 843, we
must “not simply impose [our] own construction on the
statute,” id., but instead must ask whether the agency’s
regulation reasonably fills the gap in the statute.
B. The Agency Reasonably Interpreted the Ambiguous
Phrase.
The agency has filled that gap by enacting regulations that
outline the parameters of the phrase in the various statutory
provisions it has been charged to interpret. “[W]here a statute
leaves a ‘gap’ . . . we typically interpret it as granting the
agency leeway to enact rules that are reasonable in light of
the text, nature, and purpose of the statute.” Cuozzo Speed
Techs., LLC v. Lee, 136 S. Ct. 2131, 2142 (2016). Notably,
“[f]illing these gaps . . . involves difficult policy choices that
agencies are better equipped to make than courts.” Nat’l
Cable & Telecomm. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 980 (2005). At step two, “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. Deference “is especially appropriate in the
immigration context,” INS v. Aguirre-Aguirre, 526 U.S. 415,
425 (1999), and “a court may not substitute its own
construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency,”
Chevron, 467 U.S. at 844. An agency’s interpretation is
permissible “unless [it is] arbitrary, capricious, or manifestly
contrary to the statute.” Id.
Here, the agency’s regulation imposes reasonable
requirements regarding at what times a qualifying
TOVAR V. ZUCHOWSKI 17
relationship must exist for derivative U-visa status, “in light
of the text, nature, and purpose” of the U-visa statute. Cuozzo,
136 S. Ct. at 2142. The U visa serves a narrow purpose. It
was not created to allow aliens to come to the United States
to work or attend school; it is not an immigrant visa designed
to extend status to aliens who intend to permanently reside in
the United States; nor does it offer protection to aliens
seeking refuge from harm in their home country. Instead, the
U visa operates to grant limited, temporary, nonimmigrant
status to aliens already present in the United States who were
victims of a serious crime. The U visa requires that aliens be
or have been helpful in the investigation or prosecution of
those crimes. Notably, the U visa does not require aliens to
demonstrate that they will benefit the United States by
providing a skill, performing work, or bringing jobs; and it
does not require aliens to explain why they left their home
country or whether they could safely return. The narrow
nature and purpose of the U visa supports the agency’s
regulation. It is reasonable for the agency to require that
qualifying relationships exist at the time of the initial U-visa
application, where U-visa status provides only limited,
temporary, nonimmigrant status to alien victims of crime
(already present in the United States) based on their aid to
law enforcement.
Thus, the agency’s regulation is not “arbitrary, capricious,
or manifestly contrary to the statute.” See Chevron, 467 U.S.
at 844; see also Ruiz-Diaz v. United States, 618 F.3d 1055,
1061 (9th Cir. 2010) (finding agency’s regulation regarding
timing of when alien beneficiaries of special immigrant visas
may apply for adjustment of status to be reasonable, after
determining Congress had been silent on the issue of timing);
Garcia-Mendez v. Lynch, 788 F.3d 1058, 1064–65 (9th Cir.
18 TOVAR V. ZUCHOWSKI
2015) (upholding agency’s resolution as “a permissible
interpretation of an ambiguous statutory scheme”).
Plaintiffs argue that the regulation is unreasonable,
because it is inconsistent with other regulations interpreting
“accompanying, or following to join” in other contexts. That
the same statutory phrase—“accompanying, or following to
join”—is used in other contexts is not determinative.
“[W]ords have different shades of meaning and consequently
may be variously construed, not only when they occur in
different statutes, but when used more than once in the same
statute or even in the same section.” Envtl. Def. v. Duke
Energy Corp., 549 U.S. 561, 574 (2007) (quoting Atl.
Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433
(1932)). Put simply, “[c]ontext counts,” id. at 576, and the
circumstances of asylee and refugee status differs
significantly from nonimmigrant U-visa status, thus
supporting the agency’s differing regulations.
As stated above, nonimmigrant U-visa status is limited.
U-visa recipients are already present in the United States and
have become victims of a serious crime herein; they need not
demonstrate why they left their home country or whether they
can safely return.6 See 8 U.S.C. § 1101(a)(15)(U)(i).
Nonimmigrant U-visa status generally lasts only for a period
of four years and must be maintained for three years before
a U-visa holder can apply to adjust status. Id. §§ 1184(p)(6),
1255(m)(1)(A).
6
Additionally, U-visa applicants need not demonstrate the same
general eligibility requirements as asylees and refugees. See 8 U.S.C.
1158(b)(2) (noting that alien will be ineligible for asylum if that alien,
inter alia, participated in persecution of any person on account of a
protected ground or was convicted of a particularly serious crime).
TOVAR V. ZUCHOWSKI 19
By contrast, the status of asylees or refugees is broader
for a rational purpose. That status is granted to noncitizens
fleeing to the United States to escape harm or persecution in
their home country. 8 U.S.C. § 1101(a)(42). Applicants must
demonstrate that they have suffered (or likely will suffer)
persecution in that country on the account of a protected
ground, and are therefore unable to return. Id. Although
asylum “does not convey a right to remain permanently in the
United States,” it continues indefinitely and may be
terminated only if certain conditions are met. Id.
§ 1158(c)(2). After one year of physical presence in the
United States, the asylee may apply for adjustment of status
to that of an LPR. Id. § 1159(b)(2); 8 C.F.R. §§ 209.1(a)(1),
209.2(a)(1)(ii).
In short, these 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—“accompanying, or following to join”—is used in
these contexts, the nature and purpose underlying the grants
of status differ significantly. The agency has reasonably
addressed these differences in its regulations by requiring that
qualifying relationships exist at the time of the initial petition
and through the grant of derivative status in the U-visa
context, where nonimmigrant status is only temporarily
granted for a fixed period of time to individuals based on
victimization in the United States.7
7
Notably, the agency regulations governing T visas (which operate
similarly to U visas, but are made available to victims of trafficking) has
the same requirement that a qualifying relationship exist at the time of the
initial application and throughout adjudication. 8 C.F.R. § 214.11(k)(4).
The same reasonable basis supporting the regulation in the U-visa context
20 TOVAR V. ZUCHOWSKI
Given the deference to the agency to impose regulations
interpreting (and gap filling) the immigration statutes, the
requirement that a spouse’s qualifying relationship exist at
the time of the initial U-visa petition and continue to exist
throughout the adjudication of the derivative petition in order
to obtain derivative status is a reasonable interpretation.
C. The Equal Protection Clause has not been Violated
“The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any
person within its jurisdiction the equal protection of the
laws,’ which is essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting
Plyler v. Doe, 457 U.S. 202, 216 (1982)). Classifications of
groups of noncitizens are subject to rational basis review. See
Aleman v. Glickman, 217 F.3d 1191, 1197 (9th Cir. 2000).
Applying rational basis review, a classification “is accorded
a strong presumption of validity and must be upheld if there
is a rational relationship between the disparity of treatment
and some legitimate governmental purpose.” Id. at 1200
(internal quotation marks and citation omitted). “[T]he Equal
Protection Clause does not demand for purposes of rational-
basis review that a legislature or governing decisionmaker
actually articulate at any time the purpose or rationale
supporting its classification.” Nordlinger v. Hahn, 505 U.S.
1, 15 (1992). Rather, those challenging a regulation “have the
burden to negate every conceivable basis which might
provides support for the regulation in the T-visa context. The fact that the
agency has created the same requirements for U- and T-visa derivative
relationships further demonstrates that the requirements are based on the
nature and purpose of the U- and T-visa statutes.
TOVAR V. ZUCHOWSKI 21
support it.” Fournier v. Sebelius, 718 F.3d 1110, 1123 (9th
Cir. 2013) (internal quotation marks, citation, and alterations
omitted).
Plaintiffs argue that spouses and children of U-visa
recipients are similarly situated and yet treated inconsistently
without a rational basis. Plaintiffs also argue that spouses of
U-visa holders, refugees, asylees, and other nonimmigrant
and immigrant visa holders are also similarly situated and
thus improperly treated differently.
1. Children and Spouses are not Similarly Situated
The regulations require that all qualifying relationships
exist at the time the U-visa application is filed. 8 C.F.R.
§ 214.14(f). However, Plaintiffs point out that if the U-visa
applicant “proves that he or she has become the parent of a
child after [the U-visa application] was filed, the child shall
be eligible to accompany or follow to join.” Id.
§ 214.14(f)(4)(i). Thus, the child and spouse are not treated
similarly. However, we need not reach the issue of whether
these regulations violate equal protection, because children
(especially in these circumstances) are not similarly situated
with adult spouses. See, e.g., Tuan Anh Nguyen v. INS,
533 U.S. 53, 61 (2001) (rejecting an equal protection claim
between mothers and fathers); Miller v. Albright, 523 U.S.
420, 433–45 (1998) (rejecting an equal protection claim
because the challenged classes (unwed mothers and fathers)
were not “similarly situated”). Children (in particular, infants)
are dependent upon their mother, father, or both for their very
survival. Whereas spouses may be dependent upon each other
in some respects, that dependency is not equivalent to that of
a parent-child relationship.
22 TOVAR V. ZUCHOWSKI
Even if children and spouses were similarly situated, the
distinction between spouses and children does not violate the
Equal Protection Clause based on a rational-basis review.
Treating spouses and children differently is rationally based
on Congress’s interest in preventing marriage fraud. The
concerns of marriage fraud with derivative spouses are not
similarly present with derivative children. Congress has taken
steps to ensure that marriage-based immigration be regulated
and marriage fraud be punished. See Immigration Marriage
Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat.
3537. Thus, the prevention of marriage fraud is a legitimate
government purpose, and that purpose provides a rational
basis for the U-visa regulation’s different treatment of
spouses as compared to children.
2. Distinction Between Nonimmigrant Derivative
Spouses is Rationally Based.
The timing of when a spouse qualifies for derivative
status by “accompanying, or following to join,” the principal
alien depends upon the underlying relief requested by the
principal alien. Plaintiffs generally assert that there is no
rational basis for treating U-visa spouses differently than
asylum or refugee spouses. To prevail on an equal protection-
rational basis challenge, Plaintiffs must “negate every
conceivable basis” that could support a rational basis for a
distinction between spouses. Fournier, 718 F.3d at 1123
(alteration and citation omitted). However, in their opening
brief, Plaintiffs do not negate any conceivable basis for the
distinction. Rather, Plaintiffs only summarily assert that any
distinction is irrational and their reply brief fails to address it
TOVAR V. ZUCHOWSKI 23
at all.8 Thus, we need not address this question. See
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We
will not manufacture arguments for an appellant, and a bare
assertion does not preserve a claim . . . .”).
Nevertheless, Defendants respond that the risk of
marriage and immigration fraud provide a rational basis for
the different treatment of spouses under the regulations.
Immigration fraud concerns and the underlying purpose of the
different visa categories provide a rational basis for the
different treatment of U-visa spouses as compared to other
spouses. As discussed above, asylee and refugee status is
extended to noncitizens who come to the United States
fleeing their home country and cannot return at that time and
applicants must demonstrate what harm they are fleeing and
that they may likely be harmed if they return. 8 U.S.C.
§ 1101(a)(42). Once granted asylum, they may remain in the
country indefinitely (unless status is terminated for a
specified reason) and adjust to permanent resident status after
only a year. Id. §§ 1158, 1159.
By contrast, U visas are extended only to noncitizens
already present in the United States who have been personally
victimized. Id. § 1101(a)(15)(U). U-visa petitioners need not
demonstrate why or how they entered the United States or
why they do not return to their country of origin. Because it
is a nonimmigrant category, U-visa status generally lasts only
8
Plaintiffs argue that the government cannot rely on marriage fraud
as a rational basis, because the government did not rely on this reason
when it enacted the regulations. However, under a rational basis review,
the government did not need to articulate its reasoning when it enacted the
regulations. See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356,
367 (2001).
24 TOVAR V. ZUCHOWSKI
for a period of four years (and does not confer the same
benefits as asylum or refugee status) and must be maintained
for three years before a U-visa holder can apply for
adjustment of status. Id. §§ 1184(p), 1255(m)(1)(A).
Because significant differences exist between the
categories of spouses and the requirements for obtaining
status, “there is a rational relationship between the disparity
of treatment” among spouses and it furthers a “legitimate
governmental purpose.” See Aleman, 217 F.3d at 1200
(citation omitted).
AFFIRMED.
WATFORD, Circuit Judge, dissenting:
I would reverse, as I do not think the regulation at issue
here is a valid interpretation of the governing statute.
The regulatory provision challenged by the plaintiffs
provides in relevant part as follows:
[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). The plaintiffs do not challenge the
regulation’s requirement that the marital relationship exist at
TOVAR V. ZUCHOWSKI 25
the time the petition for derivative status is adjudicated and at
the time (if pertinent) of the spouse’s subsequent admission
to the United States. So our focus is solely on the
regulation’s 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.”
Section 214.14(f)(4) plainly establishes an eligibility
requirement: It purports to define which spouses are eligible
to be treated as derivative beneficiaries in the U-visa context.
Our cases make clear that an agency may impose eligibility
requirements with respect to immigration benefits only if the
requirements are grounded in the statutory text. See Bona v.
Gonzales, 425 F.3d 663, 670 (9th Cir. 2005). Put differently,
when Congress has specified the class of non-citizens eligible
for a particular immigration benefit, an agency may not
“impose[ ] a new requirement that is not contemplated by
Congress.” Schneider v. Chertoff, 450 F.3d 944, 956 (9th Cir.
2006).
The government contends that the eligibility requirement
imposed by § 214.14(f)(4) is authorized by the U-visa
statute’s use of the phrase “accompanying or following to
join” to describe those family members eligible to receive
derivative status. 8 U.S.C. § 1101(a)(15)(U)(ii). In the
government’s view, this statutory term is ambiguous, as
Congress did not attempt to define it elsewhere in the statute.
The government further contends that USCIS reasonably
filled this statutory gap by interpreting the phrase to mean
that a spouse may “accompany or follow to join” the principal
petitioner only if the marital relationship existed on the date
that the principal petitioner filed her application for a U visa.
26 TOVAR V. ZUCHOWSKI
I do not think USCIS’s interpretation can be squared with
the well-settled meaning of “accompanying or following to
join.” By the time Congress enacted the TVPA in 2000, that
statutory phrase had been used in dozens of federal
immigration provisions, the first dating back to the 1920s.
See Immigration Act of 1924, ch. 190, § 13(c), 43 Stat. 153,
162. And as applied to spouses, the phrase had consistently
been construed to mean that the marital relationship must
exist at the time the principal petitioner’s application for an
immigration benefit is granted, not at the time her application
was filed.
For example, Congress used the phrase “accompanying or
following to join” in defining the spouses and children 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 § 1255(i)(1)(B) (incorporating
§ 1153(d)). As we noted in Landin-Molina v. Holder,
580 F.3d 913 (9th Cir. 2009), spouses can “accompany or
follow to join” under this 1994 enactment so long as the
marital relationship exists at the time the principal
petitioner’s application for adjustment of status is granted.
Id. at 919 (citing Matter of Naulu, 19 I. & N. Dec. 351, 352
n.1 (BIA 1986)). We relied in part on a 1999 policy
memorandum in which the former Immigration and
Naturalization Service explained that when a non-citizen
seeking to adjust status under § 1255(i) marries or has
children “after the qualifying petition or application was filed
but before adjustment of status,” these “‘after-acquired’
children and spouses are allowed to adjust under [§ 1255(i)]
as long as they acquire the status of a spouse or child before
the principal alien ultimately adjusts status.” Id. (quoting
Accepting Applications for Adjustment of Status Under
Section 245(i), HQ 70/23.1-P, HQ 70/8-P, at 5 (June 10,
TOVAR V. ZUCHOWSKI 27
1999), reproduced at 76 Interpreter Releases 1017 (July 2,
1999)). This interpretation of the statutory phrase also
accords with the views of the State Department, both before
and after enactment of the TVPA. See 9 Foreign Affairs
Manual 502.1-1(C)(2)(b)(2)(b) (2018); 9 Foreign Affairs
Manual 42.42 n.9 (1997).
The phrase “accompanying or following to join” has been
given the same meaning in the context of non-citizens
applying for asylum or refugee status. In those contexts, too,
Congress has extended derivative status to family members
“accompanying, or following to join,” the principal petitioner.
8 U.S.C. §§ 1157(c)(2)(A) (refugees), 1158(b)(3)(A)
(asylees). In neither of those contexts does the spouse’s
eligibility for derivative status depend on the date on which
the principal petitioner filed her application for humanitarian
status.
Take first the rule for refugees. So long as the principal
petitioner (the refugee) was married to her spouse on the date
the principal petitioner is admitted into the United States, the
spouse is eligible for derivative status. 8 C.F.R. § 207.7(c);
Procedures for Filing a Derivative Petition (Form I-730) for
a Spouse and Unmarried Children of a Refugee/Asylee,
63 Fed. Reg. 3792, 3796 (Jan. 27, 1998). The couple need
not have been married on the date that the refugee applied for
refugee status. Likewise for asylees. Since asylees apply for
asylum from within the United States, see 8 U.S.C.
§ 1158(a)(1), the eligibility rule for derivative beneficiaries
does not turn on the date the asylee is admitted into the
United States. Instead, if the principal petitioner (the asylee)
is married on the date her asylum application is granted, she
may petition for her spouse to receive derivative status as
well. 8 C.F.R. § 208.21(b); 63 Fed. Reg. at 3796. Again, that
28 TOVAR V. ZUCHOWSKI
remains true even if the asylee married her spouse after
applying for asylum. In both contexts, then, principal
petitioners may seek derivative status on behalf of their
spouses if the marriage exists when the principal petitioner is
granted humanitarian status.
As these examples reflect, when Congress enacted the U-
visa statute, the phrase “accompanying or following to join”
had uniformly 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 time
the principal petitioner applies for that benefit. Indeed,
despite being pressed to do so, the government could not
identify a single instance in which, before 2000, the phrase
had been given a contrary construction. That fact triggers “a
longstanding 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). Congress’
deliberate choice to use the phrase “accompanying or
following to join” in the U-visa statute brought with it the old
soil concerning the point in time at which the required family
relationship for derivative status is measured.
One additional interpretive clue bears mentioning. We
know that Congress used the phrase “accompanying or
following to join” in its traditional sense in the U-visa statute
because when Congress wanted to depart from the settled
meaning of that phrase it did so explicitly. Congress
provided that a principal petitioner who is under the age of
21 may petition for derivative status on behalf of “unmarried
siblings under 18 years of age on the date on which such alien
applied for status under such clause.” 8 U.S.C.
§ 1101(a)(15)(U)(ii)(I) (emphasis added); see also
TOVAR V. ZUCHOWSKI 29
§ 1158(b)(3)(B) (establishing similar rule for children of
asylees). This provision permits unmarried siblings who
would have “aged out” if the family relationship were
assessed at the time the principal petitioner’s U-visa
application is granted to remain eligible for derivative status.
By contrast, in the very next subsection, Congress extended
eligibility to the spouse and children of a principal petitioner
who is 21 years of age or older without any reference to the
date of filing. § 1101(a)(15)(U)(ii)(II). That drafting choice
provides further confirmation that Congress intended the
phrase “accompanying or following to join” to carry its usual
meaning—with the family relationship assessed at the time
the principal petitioner’s application is granted—except with
respect to the one category of family members for which it
provided otherwise.
“Congress has supplied a clear and unambiguous answer
to the interpretive question at hand,” so we need not venture
beyond step one of the analysis under Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). See Pereira v. Sessions, 138 S. Ct. 2105, 2113
(2018). Congress’ use of the phrase “accompanying or
following to join” requires USCIS to assess the existence of
the marital relationship at the time the principal petitioner’s
application for a U visa is granted, not when the principal
petitioner files her application for a U visa. In my view,
§ 214.14(f)(4) is invalid insofar as it renders a spouse
ineligible for derivative status simply because she married the
principal petitioner after the principal petitioner filed her
application for a U visa. I would hold that a spouse is eligible
for derivative status so long as the marital relationship exists
on the date USCIS grants the principal petitioner a U visa,
and on the date USCIS adjudicates the petition for derivative
status filed by the principal petitioner on her spouse’s behalf.