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Robinson v. Napolitano

February 2, 2009

OSSERRITTA ROBINSON
v.
JANET NAPOLITANO,* SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; MICHAEL AYTES,* ACTING DEPUTY DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, APPELLANTS
*AMENDED PURSUANT TO F.R.A.P. 43(C)(2)



On Appeal from the United States District Court for the District of New Jersey (D.C. No. 06-cv-05702) District Judge: Honorable Stanley R. Chesler.

The opinion of the court was delivered by: Sloviter, Circuit Judge.

PRECEDENTIAL

Argued September 9, 2008

Before: SLOVITER, FUENTES, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

The issue before us is whether an alien married to a United States citizen remains an "immediate relative," within the meaning of the Immigration and Nationality Act ("INA"), if the couple had been married for less than two years when her citizen spouse died. It is an issue this court has never addressed.

I. Factual and Procedural History

Osserritta Robinson ("Robinson"), a citizen and national of Jamaica, entered the United States on January 14, 2002, as an non-immigrant visitor on a B-2 visa and married Louis Robinson ("Mr. Robinson"), a United States citizen, in February 2003. In March 2003, Mr. Robinson filed a Petition for Alien Relative ("I-130 petition") for an immigrant visa on behalf of his wife as an "immediate relative." At the same time, Robinson filed an I-485 application to adjust her immigration status to that of a lawful permanent resident ("LPR").

Mr. Robinson died on October 15, 2003, in the Staten Island Ferry accident. On October 15, 2005, the U.S. Citizenship and Immigration Services ("USCIS") informed Robinson that her I-130 petition had been automatically terminated upon the death of her husband. According to USCIS, Robinson was no longer an "immediate relative" within the meaning of the INA because her husband's death occurred before the couple had been married for two years.

Robinson filed a petition for a writ of mandamus and a complaint for declaratory and injunctive relief in the United States District Court for the District of New Jersey against Michael Chertoff, the Secretary of the Department of Homeland Security, and Emilio Gonzalez, Director, U.S. Citizenship and Immigration Services,*fn1 requesting that the court order USCIS to reopen her I-130 petition and I-485 application and treat her as an "immediate relative" of a United States citizen. The complaint also asked the court "to enjoin USCIS from using the death of Mr. Robinson as a discretionary factor in adjudicating Mrs. Robinson's I-485 application." Robinson v. Chertoff, No. 06-5702, 2007 WL 1412284, at *1 (D.N.J. May 14, 2007). The District Court denied the Government's motion to dismiss and granted summary judgment in favor of Robinson. Thereupon, the District Court set aside USCIS' determination that Robinson was not a spouse, ordered USCIS to process her I-130 petition and I-485 application, and granted a declaratory judgment that Robinson "is an immediate relative under 8 U.S.C. § 1151(b)(2)(A)(i) and for the purposes of adjudicating an I-130 petition." App. at 14.*fn2 The Government appeals.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331 and Section 704 of the APA, 5 U.S.C. § 704, to review the meaning of the term "immediate relative" as it appears in 8 U.S.C. § 1151(b)(2)(A)(i). Because this is a "purely legal question and does not implicate agency discretion," the INA's jurisdictional bar, 8 U.S.C. § 1252(a)(2)(B)(ii), which precludes judicial review of most discretionary immigration decisions, is not applicable in this case. Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir. 2005).

We have jurisdiction under 28 U.S.C. § 1291. "We exercise plenary review of the District Court's statutory interpretation, but afford deference to a reasonable interpretation adopted by the agency." Pinho, 432 F.3d at 204.

III. Statutory Scheme

A United States citizen who seeks to gain lawful permanent resident status for an eligible family member must begin the process by filing an I-130 petition with USCIS on behalf of an alien who is an "immediate relative." 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). Concurrently, or thereafter, the alien spouse*fn3 for whom the I-130 petition was filed (the "immediate relative") must file an I-485 application for adjustment of status. 8 U.S.C. § 1255(a); 8 C.F.R. § 245.1(a). "Immediate relatives" are defined in the INA as:

[T]he children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen's death and was not legally separated from the citizen at the time of the citizen's death, the alien . . . shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen's death but only if the spouse files a petition under section 1154(a)(1)(A)(ii) of this title [an I-360 petition] within 2 years after such date and only until the date the spouse remarries.

8 U.S.C. § 1151(b)(2)(A)(i) (emphasis added).*fn4

USCIS "shall" approve the I-130 petition filed by the citizen spouse only if it determines, after an investigation, "that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative." 8 U.S.C. § 1154(b).

Approval of the I-130 petition renders the immediate relative eligible for adjustment of status under 8 U.S.C. § 1255(a), which provides, in pertinent part:

The status of an alien . . . 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 (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a). Because immediate relative visas are not subject to numerical visa limitations, 8 U.S.C. § 1151(b)(2)(A)(i), once the I-130 petition is approved the "immigrant visa is immediately available" to the alien spouse at the time her I-485 application is filed, 8 U.S.C. § 1255(a). Thus, eligibility ...


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