Robinson v. Napolitano (3rd Cir. Sep. 9, 2008) 

Eligibility for an immediate relative visa depends upon the alien’s status at the time USCIS adjudicates the I-130 petition, not when that petition was filed.  This becomes dispositive in the situation when a citizen spouse dies before the citizen spouse and the alien were married for two years.  A marriage that lasted two years can be presumed to have been bona fide, and in that period the surviving spouse would have developed settled expectations.  Congress could reasonably determine that an alien with a pending I-130 petition who had been married to a US citizen for less than two years at the time of the citizen spouse’s death is not entitled to LPR status.

Petitioner, a citizen of Jamaica, entered the US in 2002 on a B-2 non-immigrant visitor visa and married a US citizen in February 2003.  In March 2003, Petitioner’s husband filed for an I-130 (Petition for Alien Relative) visa on behalf of Petitioner as “immediate relative.”  At the same time, Petitioner filed an I-485 application to adjust her immigration status to that of a lawful permanent resident (“LPR”).  Petitioner’s husband died in a boating accident on October 15, 2003.  On October 15, 2005, USCIS informed Petitioner that her I-130 petition had been automatically terminated upon the death of her husband.  USCIS said Petitioner could no longer be considered an “immediate relative” because her husband’s death occurred before the couple had been married for two years.

Petitioner filed a petition for a writ of mandamus and a complaint for declaratory and injunctive relief in US District Court against DHS Secretary Michael Chertoff and USCIS Director Emilio Gonzalez, requesting that USCIS reopen her I-130 petition and I-485 application and reinstate her status as an “immediate relative” of a US citizen.  The complaint also asked the court to order USCIS to abstain from using the death of Petitioner’s husband as a discretionary factor in adjudication of Petitioner’s I-485.  The court denied Defendants’ motion to dismiss and granted summary judgment in favor of Petitioner.  The court ordered USCIS to process her I-130 petition and I-485 application, holding that Petitioner “is an immediate relative under 8 USC § 1151(b)(2)(A)(i) and for the purposes of adjudicating an I-130 petition. 

Defendants appealed the ruling, arguing that the language of 1151(b)(2)(A)(i) indicates that a spouse remains an “immediate relative” after the death of his or her citizen spouse only if the couple had been married for two years at the time of the citizen’s death.  To support this, Defendants note the present tense language of 8 USC §1154(b), the statutory provision governing the grant of immigrant visas.  Petitioner argued that the language grants a separate right for widows to self-petition for visas, not a limitation on the definition of “spouse,” and that the language tense has no bearing on her status, as visa eligibility is to be determined at the time of filing.

On review, the court held that the District Court, which held that the present tense language statute erred in their interpretation of the statute.  The court held that the statutory language makes plain that the facts in the petition – including – the alien’s spousal status – must be true at the time USCIS decides the petition. 

The court also held that Petitioner’s “time of filing” claim misinterprets the scope of the statute.  The court states that the statutory language shows that eligibility at the time of filing is merely a necessary condition; it does not establish that eligibility at that time is sufficient if the citizen spouse dies before the adjudication. 

Addressing Petitioner’s two-year argument, the court rejected the Petitioner’s interpretation of spousal requirements under the relevant statutes.  The court holds that the language of 1151(b)(2)(A)(i) is straightforward.  The court cites their previous ruling in US v. McQuilkin, 78 F.3d 105 (3rd Cir. 1996), decision that the death of a citizen spouse terminates immediate relative status if the death occurs before the petition is granted, with the sole exception of a couple who had been married for two years at the time of the citizen spouse’s death.  With the current case, the court concludes that the spouse ceases to be an immediate relative when the citizen spouse dies unless the couple had been married at least two years at the time of death.

The court also rejected Petitioner’s argument that the definition of “spouse” remains fixed regardless of if the spouse is deceased.  The court holds that the language of 1151(b)(2)(A)(i), clearly distinguishes between a living spouse and a surviving spouse when the statute states that “an alien who was the spouse of a citizen of the US for at leats 2 years at the time of the citizen’s death…shall be considered…to remain and immediate relative.”

One judge, Nygaard, dissented.  The dissent contended both the decision, as well as the government agencies involved, have misinterpreted the language of §1151(b), and that this mistake has been endemic in the history of §1151(b) cases.  Nygaard argues that Congress had obvious intent to use “spouse” in the context of §1151(b) to also refer to a marital bond between the deceased spouse and a surviving spouse, and that the majority opinion failed to give the term consistent meaning.

Nygaard specifically points to the two sentences of §1151(b), the crux of the majority decision.  The dissent argues that the language and structure of both sentences in §1151(b)(2)(A)(i) implicitly indicates two distinct tracks for an alien spouse to obtain an immediate relative classification: petition by a living spouse, or self-petitioning. Nygaard opines that the statutory language simply does not mandate the termination of I-130 petitions upon the death of a petitioner, and that the second sentence of §1151(b) can only be applicable to an alien who is not the beneficiary of a pending or approved I-130 at the time of the death of the petitioner, a classification not pertaining to the Petitioner.  The dissent argues that the application of the two-year marital requirement to even those who have already filed an I-130 implicitly invalidates the marital status of those who are wed less than two years before the petitioner spouse’s death.