Camila Maria Silva-Hernandez v. U.S. Citizenship and Immigration Services, Miami Florida

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 11-15675
________________________

D. C. Docket No. 1:11-cv-21262-PCH

CAMILA MARIA SILVA-HERNANDEZ,

Plaintiff-Appellant,

versus

US BUREAU OF CITIZENSHIP
AND IMMIGRATION SERVICES,
MIAMI FLORIDA,
US ATTORNEY GENERAL, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(November 13, 2012)

Before MARCUS and BLACK, Circuit Judges, and EVANS,* District Judge.

PER CURIAM:

*
Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
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This appeal presents an issue of statutory interpretation arising from the

Cuban Adjustment Act of 1966 (CAA), Pub. L. No. 89-732, 80 Stat. 1161

(reproduced as a historical note to 8 U.S.C. § 1255). Camila Silva-Hernandez

contends that the pattern and practice delineated in Section 23.11(m)(2) of the

United States Citizenship and Immigration Services (Immigration Service)

Adjudicator’s Field Manual violates the plain and unambiguous language of the

CAA. Section 23.11(m)(2) dictates that the lawful permanent resident status of a

non-Cuban spouse cannot predate the date of the non-Cuban spouse’s marriage to

a Cuban national. After reviewing the statutory language, we conclude the

Immigration Service’s pattern and practice of limiting the date of lawful

permanent residence based on the date of marriage is contrary to the unambiguous

language of the CAA.

I. BACKGROUND

The relevant facts are undisputed. Silva-Hernandez is a native and citizen

of Brazil. On December 20, 2001, Silva-Hernandez was admitted to the United

States as a B-2 nonimmigrant visitor for pleasure, and overstayed her visa. On

August 27, 2010, she married Eduardo Hernandez, a native and citizen of Cuba

who had adjusted his status to lawful permanent resident under the CAA, and has

been a permanent resident since April 9, 2000.

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On October 5, 2010, Silva-Hernandez filed an application for adjustment of

status under the CAA based on her marriage to Hernandez. On February 10, 2011,

the Immigration Service approved Silva-Hernandez’s application. In approving

her application, the Immigration Service recorded her lawful permanent resident

status as of August 27, 2010, the date of her marriage, as provided in the

Immigration Service Adjudicator’s Field Manual.

Silva-Hernandez filed a Complaint against the Immigration Service1

seeking (1) an order declaring that the Immigration Service’s legal position and

practice regarding the rollback date for non-Cuban spouses and children violates

the plain and unambiguous language of Section 1 of the CAA and is an error of

law, as well as arbitrary and capricious; (2) an order declaring that the

Immigration Service’s refusal to create a record of Silva-Hernandez’s admission

for permanent residence as of a date thirty months prior to the filing of her

adjustment application or the date of her last arrival into the United States

(whichever date is later) is an error of law, and arbitrary and capricious; (3) an

order in the form of a writ of mandamus compelling the Immigration Service to

1
Silva-Hernandez’s Complaint was brought against the U.S. Bureau of Citizenship and
Immigration Services, Miami, Florida; U.S. Attorney General; Secretary for the Department of
Homeland Security; U.S. Citizenship and Immigration Services; and National Benefits Center,
U.S. Citizenship and Immigration Services. For ease of reference, we refer to the Immigration
Service as the opposing party throughout the opinion.

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create nunc pro tunc a record of Silva-Hernandez’s admission for permanent

residence as of April 5, 2008 (i.e., the date thirty months prior to the filing of her

adjustment application) and immediately issue her a new/corrected Permanent

Resident Card indicating a “Resident Since” date of April 5, 2008; and (4) an

order granting an injunction barring the Immigration Service from applying the

“rule” or “policy” delineated in Section 23.11(m)(2) of the Immigration Service’s

Adjudicator’s Field Manual regarding the rollback provisions for non-Cuban

spouses and children.

The parties filed competing motions for summary judgment. In granting the

Immigration Service’s motion for summary judgment and denying Silva-

Hernandez’s motion for summary judgment, the district court found that Section 1

of the CAA was ambiguous regarding whether a non-Cuban spouse is entitled to a

“rollback date” prior to the date of the qualifying marriage. The district court

concluded the CAA does not contain explicit language stating that non-Cuban

spouses are entitled to benefits arising prior to the date of the qualifying marriage.

Further, the district court found the statute presupposes the existence of a marital

relationship. Silva-Hernandez v. Swacina, 827 F. Supp. 2d 1352, 1357 (S.D. Fla.

2011).

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The district court then turned to the legislative history of the CAA to

determine Congress’s intent, and found that “a literal application of the CAA’s

spousal and rollback provisions, . . . would yield results that are absurd in light of

their legislative intent.” Id. at 1360. The court concluded Section 23.11(m)(2) of

the Immigration Service Adjudicator’s Field Manual was based on a permissible

construction of the statute, and was an interpretive rule entitled to judicial

deference. Id. at 1361-64.

On appeal, Silva-Hernandez asserts Section 1 of the CAA is not ambiguous.

The statute states, in what is known as the “rollback provision,” that “[u]pon

approval of such an application for adjustment of status, the Attorney General

shall create a record of the alien’s admission for permanent residence as of a date

thirty months prior to the filing of such an application or the date of his last arrival

into the United States, whichever date is later.” Pub. L. No. 89-732, § 1, 80 Stat.

1161, 1161 (as amended) (reproduced as a historical note to 8 U.S.C. § 1255).

The very next sentence provides: “The provisions of this Act shall be applicable to

the spouse and child of any alien described in this subsection, regardless of their

citizenship and place of birth, who are residing with such alien in the United

States . . . .” Id. Silva-Hernandez asserts our inquiry starts and stops with reading

these sentences, as they unambiguously state that Congress intended the rollback

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provision be applied to spouses and children of Cuban nationals, no matter their

nationality or citizenship. Thus, the Immigration Service’s pattern and practice of

limiting the date of lawful permanent resident status of a non-Cuban spouse based

on the date of the non-Cuban spouse’s marriage to the Cuban national violates the

plain and unambiguous language of the CAA.

The Immigration Service does not argue that any particular term in the

statute is ambiguous or has multiple meanings.2 Rather, the Immigration Service

hinges its argument on its assertion that the plain meaning of the CAA yields

absurd results. Specifically, the Immigration Service asserts that Silva-

Hernandez’s interpretation would accord a non-Cuban spouse benefits to which

the non-Cuban spouse is not otherwise entitled—rollback to a date on which the

non-Cuban spouse was not qualified for application under the CAA. Further,

according to the Immigration Service, the non-Cuban spouse could receive an

earlier adjustment date than the Cuban alien upon whom the non-Cuban spouse’s

application is based.

2
In fact, the Immigration Service devotes only two sentences in its brief to any argument
that the statute is ambiguous. The Immigration Service states that “Congressional intent is
ambiguous as it relates to whether derivative non-Cuban spouses are entitled to benefits
backdated to before the date of the qualifying marriage.” It further contends: “CAA Section 1
does not contain explicit language stating that non-Cuban spouses are entitled to benefits arising
prior to the date of the qualifying marriage.” This is the extent of the Immigration Service’s
argument that the statute is ambiguous.

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II. LANGUAGE OF STATUTE AND ADJUDICATOR’S FIELD MANUAL

Before we begin our discussion of the issue presented, we must first set out

the relevant language of the statute and Adjudicator’s Field Manual provision.

A. The Statute

Section 1 of the CAA provides, in pertinent part:

That, notwithstanding the provisions of section 245(c) of the
Immigration and Nationality Act, the status of any alien who is a
native or citizen of Cuba and who has been inspected and admitted or
paroled into the United States subsequent to January 1, 1959 and has
been physically present in the United States for at least one year, may
be adjusted by the Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien lawfully admitted
for permanent residence if the alien makes an application for such
adjustment, and the alien is eligible to receive an immigrant visa and
is admissible to the United States for permanent residence. Upon
approval of such an application for adjustment of status, the Attorney
General shall create a record of the alien’s admission for permanent
residence as of a date thirty months prior to the filing of such an
application or the date of his last arrival into the United States,
whichever date is later. The provisions of this Act shall be applicable
to the spouse and child of any alien described in this subsection,
regardless of their citizenship and place of birth, who are residing
with such alien in the United States, except that such spouse or child
who has been battered or subjected to extreme cruelty may adjust to
permanent resident status under this Act without demonstrating that
he or she is residing with the Cuban spouse or parent in the United
States.

Pub. L. No. 89-732, § 1, 80 Stat. 1161, 1161 (as amended) (reproduced as a

historical note to 8 U.S.C. § 1255).

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B. Immigration Service Adjudicator’s Field Manual Section 23.11

Section 23.11(m)(2) of the Immigration Service Adjudicator’s Field Manual

provides:

The non-Cuban spouse and children of a qualifying Cuban applicant
are entitled to the same rollback provisions as the principal alien.
However, their rollback date cannot precede the date of the qualifying
marriage. Although this rule has been adopted as a matter of policy,
it has no basis in statute or regulation. Rather, it is an application of
the general principle that a benefit cannot accrue to an alien before
eligibility exists.

III. DISCUSSION

The issue before us is whether the Immigration Service’s pattern and

practice, provided for in its Adjudicator’s Field Manual, of limiting a non-Cuban

spouse’s “rollback date” to the date of marriage, rather than recording a date thirty

months prior to the non-Cuban spouse’s filing of the application for adjustment of

status (or the date of the non-Cuban spouse’s arrival in the United States,

whichever is later), violates the plain language of the CAA. We review de novo

the district court’s grant of summary judgment on this issue. Durr v. Shinseki, 638

F.3d 1342, 1346 (11th Cir. 2011). We also “review de novo questions of statutory

interpretation.” Serrano v. U.S. Att’y Gen., 655 F.3d 1260, 1264 (11th Cir. 2011).

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A. Plain Meaning of the Statute

When reviewing an agency’s construction of a statute which it administers,

we first determine whether Congress has directly spoken to the question at issue.

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.

Ct. 2778, 2781 (1984). “If the intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give effect to the unambiguously

expressed intent of Congress.” Id. at 842-43.

In order to determine whether the intent of Congress is clear, we must

employ traditional tools of statutory construction. See id. at 843 n.9. “As with any

question of statutory interpretation, we begin by examining the text of the statute

to determine whether its meaning is clear.” Harry v. Marchant, 291 F.3d 767, 770

(11th Cir. 2002) (en banc). When we construe a statute, “we must begin, and often

should end as well, with the language of the statute itself.” Id. (quotations

omitted). This is because “we presume that Congress said what it meant and

meant what it said.” Id. (quotations omitted). “Those who ask courts to give

effect to perceived legislative intent by interpreting statutory language contrary to

its plain and unambiguous meaning are in effect asking courts to alter that

language, and courts have no authority to alter statutory language. . . . We cannot

add to the terms of the provision what Congress left out.” CBS Inc. v. Primetime

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24 Joint Venture, 245 F.3d 1217, 1228 (11th Cir. 2001) (quotations and alterations

omitted).

This case turns on the interpretation of the first three sentences of Section 1

of the CAA. We will analyze each sentence in turn, and as they relate to one

another, to determine whether the meaning of the statute is plain and

unambiguous.

The first sentence states:

The language of this sentence is not ambiguous. The Attorney General has

discretion to adjust the status of any alien who is a native or citizen of Cuba who

has been inspected and admitted or paroled into the United States after January 1,

1959, and has been present in the United States for at least one year, if the alien

applies for adjustment and the alien is eligible to receive an immigrant visa and is

admissible to the United States for permanent residence.

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The next sentence, the “rollback provision,” states:

Upon approval of such an application for adjustment of status, the
Attorney General shall create a record of the alien’s admission for
permanent residence as of a date thirty months prior to the filing of
such an application or the date of his last arrival into the United
States, whichever date is later.

Again, the language of this sentence is not ambiguous. Upon the Attorney

General’s decision to exercise discretion to adjust the native or citizen of Cuba’s

status to that of a lawful permanent resident, the Attorney General shall create a

record of the alien’s admission as of a date thirty months prior to the filing of the

application, or the date of his last arrival into the United States, whichever is later.

Finally, the last sentence states:

The provisions of this Act shall be applicable to the spouse and child
of any alien described in this subsection, regardless of their
citizenship and place of birth, who are residing with such alien in the
United States, except that such spouse or child who has been battered
or subjected to extreme cruelty may adjust to permanent resident
status under this Act without demonstrating that he or she is residing
with the Cuban spouse or parent in the United States.

This sentence is also not ambiguous. The provisions of the CAA shall be

applicable to the spouse and child of any alien described in this subsection. The

alien described in this subsection is the one who was unambiguously described in

the first sentence. Thus, if you are married to, or a child of, the alien described in

the first sentence, and you are residing in the United States with the alien

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described in the first sentence, see Gonzalez v. McNary, 980 F.2d 1418, 1420

(11th Cir. 1993), the CAA shall be applicable to you, regardless of your

citizenship or place of birth. And one of the provisions of the CAA that shall

apply is the rollback provision. This is clear from the language and structure of

the statute. The third sentence of Section 1 makes the “provisions” of the CAA

applicable to non-Cuban spouses and children. The rollback provision, which

appears in the immediately preceding sentence of Section 1, is clearly a provision

of the CAA.

The unambiguous language of Section 1 of the CAA supports that a non-

Cuban spouse of a Cuban whose status has been adjusted under the CAA should

have a recorded date of lawful permanent residence of thirty months prior to the

application date or the date of the non-Cuban spouse’s last arrival into the United

States, whichever date is later. Importantly, the statute contains no language

stating the non-Cuban must be married to the Cuban as of the non-Cuban’s

rollback date, nor does it state the Cuban and non-Cuban spouse must enter the

United States simultaneously. “We cannot add to the terms of the provision what

Congress left out.” CBS, 245 F.3d at 1228 (quotations and alteration omitted).

“Where the language of a statute is unambiguous, as it is here, we need not,

and ought not, consider legislative history.” Harry, 291 F.3d at 772. “The ‘plain’

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in ‘plain meaning’ requires that we look to the actual language used in a statute,

not to the circumstances that gave rise to that language.” CBS, 245 F.3d at 1224.

Our decisions “mandat[e] that ambiguity in statutory language be shown before a

court delves into legislative history.” Id. Thus, because we conclude the statute is

clear, the parties’ arguments regarding the legislative history of the CAA are not

relevant to our plain meaning analysis, and we will not address them here.

B. Absurd Result

This Court’s one recognized exception to the plain meaning rule is absurdity

of results. CBS, 245 F.3d at 1228. We have observed, “[t]hough venerable, the

principle is rarely applied, because the result produced by the plain meaning canon

must be truly absurd before this principle trumps it. Otherwise, clearly expressed

legislative decisions would be subject to the policy predilections of judges.”

Merritt v. Dillard Paper Co., 120 F.3d 1181, 1188 (11th Cir. 1997). “[I]t is

irrelevant that we may not have made the same policy decision had the matter been

ours to decide if we cannot say that it is absurd, ridiculous, or ludicrous for

Congress to have decided the matter in the way the plain meaning of the statutory

language indicates it did.” CBS, 245 F.3d at 1228 (quotations and alterations

omitted).

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The Immigration Service attempts to show the absurdity of the plain

meaning of the CAA in two ways. First, it points to the CAA’s legislative history;

and second, it presents various hypothetical scenarios resulting from the plain

meaning in which it contends the theoretical outcomes would be absurd.

The Immigration Service relies on the legislative history indicating that the

spousal provision was added to promote “family unity”3 to show absurd results.

See Gonzalez, 980 F.2d at 1421 (“The purpose of the [CAA’s] provision

permitting a spouse and child of a Cuban alien to obtain permanent residence is to

promote family unity.”). The legislative history is silent, however, on the issue of

the assignment of a rollback date for a non-Cuban spouse who marries a Cuban

national after the Cuban national is given permanent resident status. Despite this

silence, the articulated legislative intent of family unity is furthered by giving the

earlier rollback date to a non-Cuban spouse, as the non-Cuban spouse could get a

3
See H.R. Rep. No. 89-1978, at 5-9 (1966), reprinted in 1966 U.S.C.C.A.N. 3792, 3796-
99 (August 4, 1966, letter of Deputy Att’y Gen. Ramsey Clark) (suggesting the CAA’s spousal
provision was included “[i]n order to maintain the unity of the family . . . to provide for the
adjustment of status thereunder of the spouse and children of the Cuban who is the principle
beneficiary of this bill, regardless of their nationality and nativity, if they are living with him in
the United States”); Adjustment of Status for Cuban Refugees: Hearing on H.R. 15182, H.R.
15183, H.R. 16908, H.R. 10808, and H.R. 13393 Before Subcomm. No. 1 of the H. Comm. on
the Judiciary, 89th Cong., 36, 40 (1966) (“I think the Congress took a very strong position in the
law last year as to reuniting families.” (statement of Nicholas deB. Katzenbach, Att’y Gen. of the
United States)), (“I think that this proposition to reunite families is in a humane direction.”
(statement of Rep. Peter W. Rodino, Jr., Member, Subcomm. No. 1 of the H. Comm. on the
Judiciary)).

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jump start on his or her path to naturalization. Not only is the plain meaning of the

statute not absurd, it arguably furthers the legislative intent of family unity.

The Immigration Service presents several hypothetical scenarios in which a

non-Cuban spouse is given “greater” benefits than the Cuban national in order to

show the plain meaning of the statute could yield absurd results. The examples

involve the non-Cuban spouse receiving an earlier rollback date than the Cuban

national, and a non-Cuban spouse receiving a rollback date preceding the Cuban’s

presence in the United States, potentially to a date when the Cuban national was

married to someone else. The Immigration Service argues “[t]hese outcomes,

resulting from a ‘literal reading’ of the CAA, would be absurd because the non-

Cuban spouse would be receiving benefits of the CAA to which the Cuban spouse

would not be accorded.” Further, the literal interpretation “would give no

credence to the statutory intent of ‘family unity’ because non-Cuban spouses

would be provided retroactive benefits before a ‘family’ ever existed.”

We are not convinced the Immigration Service’s hypothetical scenarios

demonstrate absurd results, as the “rollback provision” in the CAA is a special

benefit carved out for Cuban nationals. Congress gave Cubans this special

benefit, and giving a non-Cuban spouse (no matter the date of marriage) the same

benefit is no more absurd than giving Cubans this special benefit. If Congress

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carved out this provision for Cuban nationals, there is no reason why Congress

cannot treat the spouse of a Cuban national the same way. Even if a particular

application of the rollback formula may lead to an arguably anomalous result

(such as granting permanent resident status to a non-Cuban applicant as of an

earlier date than the Cuban spouse), we cannot say that Congress could not have

intended to apply a uniform rollback formula to all applicants, Cuban and non-

Cuban alike. Indeed, there is nothing absurd about using a single rollback formula

for all CAA applicants, if only for greater ease of administration.

In light of our “exacting standard” for finding absurdity, we conclude the

Immigration Service has not shown that the plain meaning of Section 1 of the

CAA would yield “the type of truly absurd or ludicrous results which would

permit us to depart from the plain meaning of the statute.” See CBS, 245 F.3d at

1228-29.

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IV. CONCLUSION

As we conclude that the language of the statute is not ambiguous and does

not yield absurd results, we have answered the necessary Chevron question,4

whether Congress has directly spoken to the precise question at issue, in the

affirmative. The Immigration Service Adjudicator’s Field Manual provision

providing that a non-Cuban spouse’s rollback date cannot precede the date of the

qualifying marriage is contrary to the unambiguously expressed intent of

Congress. Thus, we reverse the district court and remand for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.

4
Because we conclude the statute is not ambiguous and the agency’s construction is
contrary to Congress’s intent, we need not address the parties’ arguments regarding the type of
deference afforded to the Immigration Service’s interpretation of the statute. See Chevron, 467
U.S. at 843, 104 S. Ct. 2782.

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EVANS, District Judge, dissenting:

I respectfully dissent. I conclude that a person in Appellant's position (a

non-Cuban immigrant married in 2010 to a Cuban immigrant who had obtained an

adjustment to resident alien status in 2000) is not entitled to the benefit of the

unique rollback provision in Section 1 of the Cuban Refugee Adjustment Act of

1966 (“CAA”).1 This rollback provision entitles an applicant for adjustment to

permanent resident status to have the adjustment recorded as of a date thirty (30)

months prior to the application for adjustment of status. Because a person in

permanent resident status must reside in the United States for five (5) years prior

to applying for naturalization, 8 U.S.C. § 1427(a), the rollback gives the successful

applicant a thirty (30) month head start toward eligibility for naturalization.

The statute on its face demonstrates Appellant Silva-Hernandez does not

fall within the class of persons intended to be benefitted. She was not Mr.

Hernandez's spouse when he applied for adjustment of status to permanent

resident alien in 2000. She became his spouse in 2010. Section 1 of the CAA

provides as follows:

That, notwithstanding the provisions of section 245(c) of the
Immigration and Nationality Act, the status of any alien who is a native

1
Even though the title of the Act suggests application to refugees in 1966, the text of the
statute makes clear its provisions continue through today.

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or citizen of Cuba and who has been inspected and admitted or paroled
into the United States subsequent to January 1, 1959 and has been
physically present in the United States for at least one year, may be
adjusted by the Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien lawfully admitted for
permanent residence if the alien makes an application for such
adjustment, and the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence. Upon approval
of such an application for adjustment of status, the Attorney General
shall create a record of the alien's admission for permanent residence as
of a date thirty months prior to the filing of such an application or the
date of his last arrival into the United States, whichever date is later.
The provisions of this Act shall be applicable to the spouse and child of
any alien described in this subsection, regardless of their citizenship and
place of birth, who are residing with such alien in the United States,
except that such spouse or child who has been battered or subjected to
extreme cruelty may adjust to permanent resident status under this Act
without demonstrating that he or she is residing with the Cuban spouse
or parent in the United States.

Pub. L. No. 89-732, § 1, 80 Stat. 1161, 1161 (as amended) (reproduced as a

historical note to 8 U.S.C. § 1255) (emphasis added).

I read section 1 as describing a situation in which the Cuban-born spouse is

entitled to a record of admission to permanent residence as of a date thirty (30)

months prior to the filing of his last application, or the date of his last arrival into

the United States, whichever date is later. His spouse2 is entitled to the same

rollback, even though she is not of Cuban birth. The non-Cuban spouse is

2
For simplicity of discussion, it is assumed the husband is the Cuban-born spouse,
although the statute makes no such distinction.

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described in the statute in relation to her husband, the Cuban spouse. This

relational aspect of the statute is made clear in the part which says "[t]he

provisions of this Act shall be applicable to the spouse . . . of any alien described

in this subsection . . . ."3 The alien "described in this subsection" is the

Cuban-born spouse who is applying for permanent resident status, along with his

wife.

In my opinion, the majority opinion ignores these key words in its analysis.

The majority concedes the first sentence of section 1--which describes the

qualified native or citizen of Cuba applying for status adjustment--is

"unambiguous." The majority further recognizes that "the alien 'described in this

subsection' is the one who was unambiguously described in the first sentence."

Where I think the majority's analysis falters is in its failure to recognize that the

first sentence of section 1 describes a Cuban-born alien who is eligible to apply for

an adjustment to permanent resident status.

The statute assumes the couple is married and that they are moving through

the immigration process together. Mr. Hernandez applied for and received his

adjustment of status under the CAA in 2000. He was unmarried at the time of his

application and at the time of his adjustment to permanent resident status. By the

3
I will refer to this as the “family provision.”

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time Appellant Silva-Hernandez married Mr. Hernandez in 2010 he was already a

permanent resident. Therefore, she has never been the spouse of an “alien

described in this subsection,” because the “alien described in [section 1],” is an

alien who has not yet had his status adjusted. In my opinion, then, she cannot be

an intended beneficiary of the CAA. Because Silva-Hernandez did not qualify for

the thirty (30) month rollback in the CAA, there was no impediment to the

Immigration Service's granting her adjustment of status to permanent resident

alien only back to the date of her marriage to Mr. Hernandez, in accordance with

section 23.11(m)(2) of the Immigration Service Adjudicator's Field Manual.

Moreover, even if the statute is ambiguous, the legislative history of the

CAA clearly shows Congress intended the special rollback provision be accorded

only to immigrants from Cuba and their spouses at the time of immigration. The

legislative history is replete with discussion about the plight of Cuban refugees in

the United States in 1966.4 The overarching purpose of the CAA, repeated often

in the legislative history, was to allow Cuban refugees to apply for permanent

4
See H.R. Rep. No. 89-1978, reprinted in 1966 U.S.C.C.A.N. 3792; S. Rep. No. 89-1675
(1966); Conf. Rep. No 89-2334 (1966); 112 Cong. Rec. 27962 (1966); 112 Cong. Rec. 28605
(1966); To Adjust the Immigration Status of Cuban Refugees in the U.S.: Hearing on S. 1241 and
S. 3712 Before the Subcomm. on Immigration and Naturalization of the Comm. on the Judiciary,
89th Cong. 1-57 (1966); Adjustment of Status for Cuban Refugees: Hearings on H.R. 15182,
H.R. 15183, H.R. 16908, H.R. 10808 and H.R. 13393 Before Subcomm. No. 1 of the H. Comm.
on the Judiciary, 89th Cong. 1-73 (1966).

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residency status without having to leave the United States. The law as it stood in

1966 was that aliens from countries in the Western Hemisphere could not apply

for adjustment of status from within the United States. Adjustment of Status for

Cuban Refugees: Hearings on H.R. 15182, H.R. 15183, H.R. 16908, H.R. 10808

and H.R. 13393 Before Subcomm. No. 1 of the H. Comm. on the Judiciary, 89th

Cong. 30 (1966) (statement of Nicholas deB. Katzenbach, Att’y Gen. of the United

States). They were required, justified by Congress on the basis of proximity and

concerns about fraud, to leave the United States and apply for an immigration visa

from a U.S. Consulate in another country. Id. For most immigrants, this meant

simply returning to their home country. Id. However, after the United States

severed diplomatic relations with Cuba in 1961 and closed its consulate there, this

option was not available to Cubans living in the United States. Id. It was possible

for Cubans to go to another country, e.g., Canada or Mexico, but the travel was

complicated, expensive, and “unreasonably burdensome” on the refugees. 112

Cong. Rec. 28605, 28607 (1966). In addition, the influx of applicants to these

nearby consulates was overwhelming those offices, resulting in significant

limitations on the types and number of Cuban applications they would accept.

The legislative history further details the significant disadvantages, both to

individual Cubans as well as to the United States’ economy, of not permitting

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Cuban refugees to obtain permanent resident status. These included inability to

find sufficient employment, inability to leave the United States to consider

resettlement in other countries because re-entry back to the United States was not

assured, inability to successfully disperse Cubans throughout the country because

of limited employment options, and inability to pursue certain educational

opportunities. It is in this context Congress passed the CAA--a narrow law

exempting qualifying Cubans from certain immigration rules and permitting them

to apply for adjustment of status from within the United States.

This Court has previously acknowledged Congress added the family

provision out of concern for “family unity.” Gonzales v. McNary, 980 F.2d 1418,

1421 (11th Cir. 1993). The family provision was added after Deputy Attorney

General Ramsey Clark pointed out there were likely a number of cases where a

“citizen of Cuba may have married and have his spouse and children living with

him in the United States.” H.R. Rep. No. 89-1978, reprinted in 1966

U.S.C.C.A.N. 3792, 3799 (emphasis added). In order to “maintain the unity of the

family,” Deputy Attorney General Clark recommended language, which Congress

included verbatim, making the spouse and children of a qualified Cuban applicant

eligible under the CAA’s adjustment and rollback provisions, even though they

might be non-Cuban themselves. Id. (emphasis added).

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Both of Deputy Attorney General Clark’s statements suggest a marriage or

family already in existence. He used the phrase “may have married.” This is in

the past tense; he is concerned about adjustment applicants who are already

married or who already have children when they apply. He explains next that

some of these family members might not be Cuban themselves and therefore were

not eligible for adjustment under the bill as written. In the very next sentence,

Deputy Attorney General Clark suggests changes in order to “maintain” the unity

of this family. “Maintain” is defined as “to keep in an existing state.”

WEBSTER’S NEW COLLEGIATE DICTIONARY 687 (1979). Therefore, “maintaining”

a family necessarily presupposes it already exists. His specific use of “maintain,”

together with the express concern about Cubans who “may have married,” is

compelling evidence Congress intended the provisions of the CAA would only

apply to a non-Cuban spouse who was already married at the time of the Cuban’s

application for adjustment.

Given the extensively documented concerns about the cumbersome and

expensive travel requirements imposed by the existing law on Cuban refugees, as

well as the administrative burdens associated with processing hundreds of

thousands of Cuban refugees, the legislative purpose and history confirms a

reading that the family provision was only ever intended to cover the Cuban’s then

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existing spouse and family. The family provision streamlined the entire family’s

immigration application and processing. Rather than requiring the Cuban spouse

to apply for and receive permanent status, and then subsequently requiring his

spouse and children to apply as the close relative of an alien with permanent

residence status, Congress chose to permit his very immediate family to move

through the immigration process with him, and under the same adjustment rules as

applied to him. This group processing served both to “maintain the unity of the

family,” as well as to promote Congress’ expressed desire to relieve the

administrative burden caused by the influx of these refugees.

Permitting a later married spouse to apply for adjustment under the CAA--

ten years after the Cuban himself has moved through the immigration process and

has settled in the United States--furthers neither of these congressional purposes.

It is of no additional administrative efficiency to process the non-Cuban spouse’s

application for adjustment ten years later under the CAA as opposed to under any

other applicable status adjustment provisions. It also strains common sense to

argue applying the CAA to Appellant Silva-Hernandez “maintains” any sense of

family unity. The family provision was added, word for word, as requested by

Deputy Attorney General Clark. His explicit reason for adding the family

provision was concern for Cubans who might already be married and have

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children, and to provide for a mechanism to move the entire, existing, family

through one status adjustment process. Applying the provisions of the CAA to

Appellant Silva-Hernandez, ten years later, does not serve the clear congressional

intent behind the family provision.

Furthermore, other congressional testimony confirms a reading that the

future spouse of an unmarried Cuban who has already been adjusted to permanent

resident status is not an intended beneficiary of the Act because she is not, and

was not ever, the spouse “of any alien described in this subsection.” After the

House added the family provision to its version of the bill, Assistant Secretary for

Inter-American Affairs, Lincoln Gordon, advocated the Senate also “consider the

inclusion of such persons—that is direct family relatives of the persons directly

affected by the legislation.” To Adjust the Immigration Status of Cuban Refugees

in the U.S.: Hearing on S. 1241 and S. 3712 Before the Subcomm. on Immigration

and Naturalization of the Comm. on the Judiciary, 89th Cong. 21 (1966)

(emphasis added). The Senate committee report released after the provision was

added explained the family provision “amend[ed] section 245(c) [of the 1965

Immigration Act] to make eligible for adjustment of status a native or citizen of

Cuba and his spouse and children, who have entered the United States and have

not otherwise acquired the status of permanent residence.” S. Rep. No. 89-1675,

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at 6 (1966) (emphasis added). In neither the statutory text nor the legislative

history is the non-Cuban spouse ever identified separately from her Cuban spouse.

At all times, the applicability of the CAA to the non-Cuban spouse is in direct

relation to the “principal beneficiary” of the law: the Cuban spouse eligible for

and applying for adjustment. Although the law clearly envisions a non-Cuban

spouse as a beneficiary of the law, she is a derivative beneficiary only to the extent

of her relationship with the principal, Cuban, beneficiary. Since the CAA was

only applicable to Mr. Hernandez before he received his permanent residency

status, and because Appellant Silva-Hernandez was not his spouse at that time,

there is no derivative benefit for her to claim ten years later.

Because the text of the statute unambiguously applies the provisions of the

Act only to the spouse of the Cuban refugee "described in [Section 1]," because

the Cuban refugee "described in [Section 1]" is unambiguously an alien

proceeding through the immigration process, and because it is undisputed

Appellant Silva-Hernandez was not Mr. Hernandez’s spouse until after he was

already a permanent resident, I conclude she is not entitled to the benefit of the

rollback provision. Further, even if the statute were unclear on its face, the

legislative history indicates the family provision was added to “maintain” family

unity during the immigration process, and never to serve as a mechanism for a

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later-married spouse to move through her own, independent immigration process.

For these reasons, I respectfully dissent.