United States v. 2006-04-20 | 04-35797 | FREEMAN VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CARLA FREEMAN,
Petitioner-Appellant, No. 04-35797
v. D.C. No.
 CV-04-00666-PAALBERTO R. GONZALES, Attorney
General, OPINION
Respondent-Appellee. 
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior Judge, Presiding
Argued and Submitted
September 12, 2005—Portland, Oregon
Filed April 21, 2006
Before: Raymond C. Fisher, Ronald M. Gould and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Fisher
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COUNSEL
Brent W. Renison and Michael J. Millender, Tonkon Torp,
LLP, Portland, Oregon, for the petitioner-appellant.
Kenneth C. Bauman, Assistant United States Attorney, Port-
land, Oregon, for the respondent-appellee.
OPINION
FISHER, Circuit Judge:
This appeal concerns the fate of a young alien widow who
seeks to remain in the United States notwithstanding that her
citizen husband, to whom she was married for only a short
time, tragically died in a car accident and, according to the
government, thereby “stripped” her of her status as his
“spouse.” Complicating the widow’s appeal is the fact that
although she (along with her citizen spouse) had petitioned to
adjust her status to that of lawful permanent resident, she
entered the United States under the terms of a special visa
waiver program that limited her to a 90-day visitor’s stay in
this country and required her to waive her rights to contest the
government’s decision to remove her. She now asks us, not to
grant her lawful permanent resident status — something we
cannot do — but rather, to determine whether she remains a
“spouse” who can qualify for such status.
I. Background
Carla Freeman (Mrs. Freeman), a dual citizen of South
Africa and Italy, met Robert Freeman, a United States citizen,
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while she was temporarily working in the United States as an
au pair. The Freemans became engaged and thereafter were
married near Chicago, Illinois in February 2001. Shortly after
the marriage, Mrs. Freeman went back to South Africa. She
returned to the United States in June 2001 under the terms of
a special visa waiver program (VWP) granting her a 90-day
visitor’s stay in this country.1 In September 2001, before Mrs.
Freeman’s 90-day visa waiver expired, Mr. Freeman filed a
Petition for Immediate Relative (Form I-130) attesting to the
fact of their marriage and his wife’s current status as a VWP
entrant. The same day, Mrs. Freeman filed an Application to
Register Permanent Resident or Adjust Status (Form I-485).2
The filing of these forms initiated the formal process for
adjusting Mrs. Freeman’s status to that of a lawful permanent
resident (LPR), a status granted to the non-citizen spouses of
U.S. citizens. Concurrently with the filing of the I-130 and I-
485 forms, the Immigration and Naturalization Service (INS)
granted Mrs. Freeman a work authorization, effectively treat-
ing her as no longer simply a visitor subject to the 90-day lim-
itation of the VWP.3
While their application was pending, Robert Freeman was
tragically killed in a car accident shortly before the Freemans’
first wedding anniversary. Subsequently, when the Depart-
1The Visa Waiver Program authorizes citizens of certain enumerated
countries, including Italy, one of Mrs. Freeman’s countries of citizenship,
to enter the United States without a visa for a term no longer than 90 days.
In exchange for this procedural benefit, VWP entrants waive their right to
challenge any removal action other than on the basis of asylum (the no-
contest clause). They are, however, allowed to seek adjustment of their
status by filing an immediate relative petition. See 8 U.S.C. §§ 1187,
1255(c)(4). The VWP is discussed more fully in section II. A., infra.
2Although the Form I-360 is technically a “Petition” and the Form I-485
is technically an “Application,” we use those terms interchangeably
throughout this opinion.
3The INS has since been abolished and its functions transferred to the
Department of Homeland Security. See Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2135 at 2142 (2002).
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ment of Homeland Security (DHS) finally reviewed her appli-
cation in May 2004, the district director for the U.S.
Citizenship and Immigration Services ruled that Mrs. Free-
man, now a widow, no longer qualified for an adjustment of
status because she was not a “spouse” for purposes of the
Immigration and Nationality Act (INA), her husband’s death
having occurred before they had been married for two years.
Further, the director ruled that Mrs. Freeman, as a VWP
entrant subject to the program’s no-contest clause (see n.1,
supra), had waived any right to renew her adjustment of sta-
tus application or obtain review of his decision by an immi-
gration judge. He ordered her to leave the United States
because her VWP authorization had expired.
Mrs. Freeman petitioned for a writ of habeas corpus in the
federal district court, challenging the district director’s deter-
minations that she was no longer a spouse entitled to adjust-
ment of status and that she had waived any review of the
director’s ruling. The district court denied her habeas petition.
Mrs. Freeman timely filed a notice of appeal to this court, but
has since returned to South Africa where she remains subject
to 8 U.S.C. §§ 1227 and 1182(a)(9), which prohibit her from
reentering the United States for 10 years from the date of her
departure.4
Mrs. Freeman’s appeal raises two questions, both requiring
us to interpret statutory language to resolve matters of first
impression in this circuit. The first concerns the scope and
applicability of the Visa Waiver Program’s no-contest clause,
and the second concerns the proper definition of “spouse” for
4Because Mrs. Freeman’s appeal was pending when the REAL ID Act
became effective (May 11, 2005), we treat this appeal as a timely filed
petition for review. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050,
1052-53 (9th Cir. 2005); § 106(c) of the REAL ID Act of 2005, Pub. L.
No. 109-13, 119 Stat. 231, 311 (2005). Accordingly, we review not the
district court’s denial of the habeas petition but rather the agency’s deter-
mination, which we review de novo as to any purely legal questions. See
Alvarez-Barajas, 418 F.3d at 1053.
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purposes of adjustment of status under the immigration laws.
We hold that once a VWP entrant files an adjustment of status
application as an immediate relative, as contemplated by 8
U.S.C. § 1255(c)(4), the alien is entitled to the procedural
guarantees of the adjustment of status regime, see 8 C.F.R.
§ 245.2, and to that extent is no longer subject to the Visa
Waiver Program’s no-contest clause. We further hold that an
alien widow whose citizen spouse filed the necessary immedi-
ate relative petition form but died within two years of the
qualifying marriage nonetheless remains a spouse for pur-
poses of 8 U.S.C. § 1151(b)(2)(A)(i), and is entitled to be
treated as such when DHS adjudicates her adjustment of sta-
tus application.5
II. Visa Waiver Program
A. The VWP Regime
[1] The Visa Waiver Program authorizes the government to
waive visa requirements for citizens of certain favored coun-
tries. See 8 U.S.C. § 1187.6 Under the terms of the VWP, as
a condition of entering the United States without a visa, Mrs.
Freeman had to leave within 90 days and, under the no-
contest clause, agree to waive any right:
(1) to review or appeal under [the INA] of an immi-
gration officer’s determination as to the admissibility
of the alien at the port of entry into the United States,
or (2) to contest, other than on the basis of an appli-
cation for asylum, any action for removal of the
alien.
5Throughout this opinion we refer to the citizen spouse as the husband
and the alien spouse as the wife/widow. However, neither the immigration
laws we review nor our holdings make any distinction between the sexes.
6Unless otherwise indicated, all statutory citations herein are to Chapter
8 of the United States Code.
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§ 1187(b). We have described the no-contest clause as “the
linchpin of the [Visa Waiver] program,” which “assures that
a person who comes here with a VWP visa will leave on time
and will not raise a host of legal and factual claims to impede
[her] removal if [s]he overstays.” Handa v. Clark, 401 F.3d
1129, 1135 (9th Cir. 2005). Notwithstanding that the no-
contest clause severely restricts an alien’s ability to seek
review of a removal decision, the alien may still claim that
she is not subject to the VWP procedures at all or that the law
requires that she be brought before an immigration judge (IJ)
prior to removal. See id. at 1133.
[2] Although the no-contest clause was designed generally
to limit the rights of alien visitors and prevent them from
challenging their removal, the INA does not entirely preclude
such visitors from seeking to extend their stay. Specifically,
§ 1255(c)(4) provides that a VWP visitor may seek to adjust
her status to that of a permanent resident through an immedi-
ate relative petition, the procedure invoked by the Freemans.
See Faruqi v. Dep’t of Homeland Security, 360 F.3d 985, 986-
87 (9th Cir. 2004) (noting that VWP visitors are eligible “for
adjustment of status . . . on the basis of either (1) an immedi-
ate relative petition or (2) an application for asylum.”); see
also 8 C.F.R. § 245.1(b)(8). Once an adjustment of status
application is filed, certain procedural safeguards are in place
to ensure fair adjudication of the application. See generally 8
C.F.R. § 245.
Mrs. Freeman argues that once she (and her husband) initi-
ated the adjustment of status process by filing the necessary
forms, her right to remain in the United States and to chal-
lenge any adverse decision became subject to the procedural
protections governing adjustment of status applications.
Accordingly, the district director erred in applying the VWP
no-contest proviso to her in denying her adjustment of status
application. The government, however, insists that the VWP
no-contest proviso remains in force and precludes Mrs. Free-
man from challenging her removal order and the district
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director’s determination that she is no longer a qualifying
spouse. It argues that only asylum seekers are exempted from
the no-contest clause under the express terms of § 1187(b)(2),
and Mrs. Freeman is not seeking asylum.7
We think the government’s position ignores the interplay
between the adjustment of status regime and the visa waiver
program, which explicitly allows VWP visitors to file an
adjustment of status application pursuant to an immediate rel-
ative petition. See § 1255(c)(4). As we shall explain, the text
and purpose of this complex statute, along with DHS’s action
in Mrs. Freeman’s case, persuade us that once a VWP visitor
properly files an adjustment of status application, the VWP
no-contest clause does not deprive the visitor-applicant of the
procedural guarantees afforded any applicant seeking adjust-
ment of status. See 8 C.F.R. § 245.2.
B. The Right to Adjust Status
[3] Section 1255 explains that certain classes of non-
immigrants may petition the Attorney General for adjustment
of status to that of a lawful permanent resident, provided that
“(1) the alien makes an application for such adjustment, (2)
the alien is eligible to receive an immigrant visa and is admis-
sible to the United States for permanent residence, and (3) an
immigrant visa is immediately available to [her] at the time
[her] application is filed.” § 1255(a). Included in the class of
non-immigrants who may petition for LPR status are VWP
entrants, but only those who seek adjustment pursuant to an
immediate relative petition. § 1255(c)(4).8 Under the regula-
7The government does not argue that its understanding of the scope of
the VWP no-contest clause is entitled to Chevron deference. Cf. NRDC v.
Nat’l Marine Fisheries Serv., 421 F.3d 872, 877 (9th Cir. 2005).
8This express right given to VWP entrants is more specific than the
broad no-contest language used in the VWP governing statute. See NLRB
v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th Cir. 1994) (“It is a well-
settled canon of statutory interpretation that specific provisions prevail
over general provisions.”)
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tory regime associated with adjustment of status, alien appli-
cants are afforded various procedural benefits. Among these
benefits, an applicant “retains the right to renew his or her
application” if it has been denied. 8 C.F.R. § 245.2(a)(5). If
the adjustment of status application is renewed after removal
proceedings have been initiated, as would have been the pro-
cedure in Mrs. Freeman’s situation, an IJ rather than the dis-
trict director would review and rule upon the application. See
Agyeman v. INS, 296 F.3d 871, 879 (9th Cir. 2002); 8 C.F.R.
§ 245.2(a)(1).
[4] With respect to these renewal and review procedures,
there is no exception in the statute or regulations for aliens
who are in the United States under any particular status; the
procedures apply to any applicant for adjustment of status.
Nor does the VWP no-contest clause on its face clearly
exempt VWP visitors from these procedures. See Jama v.
Immigration & Customs Enforcement, 543 U.S. 335, 341
(2005) (“We do not lightly assume that Congress has omitted
from its adopted text requirements that it nonetheless intends
to apply . . . .”). Indeed, having granted VWP visitors the right
to seek an adjustment of status, it makes no sense for Con-
gress to have intended that these preferred visitors — by defi-
nition, citizens of certain favored countries — should have
second-class status once they enter into the adjustment of sta-
tus process. See Crandal v. Ball, Ball & Brosamer, 99 F.3d
907, 910 (9th Cir. 1996) (“A statute should be read in a man-
ner which attribute[s] a rational purpose to the legislature.”).
We decline the government’s invitation to read the VWP
no-contest restriction into the adjustment of status procedural
regime, effectively denying VWP applicants the procedural
due process all other applicants enjoy, when Congress has not
done so explicitly. Had Congress intended such a result, it
could have withheld the adjustment of status right from VWP
entrants or specified, within the adjustment of status regime,
that they constitute a special class of applicants without the
normal rights of appeal and review. See United States v.
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Jones, 204 F.2d 745, 754 (7th Cir. 1953) (“[A] statutory grant
of power carries with it, by implication, everything necessary
to carry out the power and make it effectual and complete.”);
Blue Cross Ass’n v. Harris, 622 F.2d 972, 978 (8th Cir. 1980)
(“It is a commonplace of statutory construction that a legisla-
tive grant of power carries with it the right to use the means
and instrumentalities necessary to the beneficial exercise of
that power.”). Accordingly, alleged errors in DHS’s adjudica-
tion of Mrs. Freeman’s application for LPR status should be
subject to review as part of the adjustment of status process,
and not foreclosed by the VWP no-contest clause.
Moreover, the purpose of the adjustment of status proce-
dures is best served by allowing VWP entrants — like Mrs.
Freeman — the right to contest their summary denial without
having to leave the United States first.9 “The adjustment pro-
cedure of section 245 was specifically designed to obviate the
need for departure and reentry in the cases of aliens temporar-
ily in the United States. . . . It seems clear that section 245
was intended to . . . permit nonimmigrants to attain permanent
resident status without leaving the United States.” Matter of
S—, 9 I. & N. Dec. 548, 553-54 (BIA 1962) (internal citation
and quotation marks omitted).
Finally, the agency’s own actions are relevant to and con-
sistent with our interpretation of the scope of the VWP no-
contest clause. Cf. Defenders of Wildlife v. Norton, 258 F.3d
1136, 1146 n.11 (9th Cir. 2001) (“Nor do we owe deference
9We are not persuaded by the government’s argument that allowing
Mrs. Freeman to escape the no-contest clause (even if only to renew or
review her adjustment of status application prior to being removed) would
counter the purpose of the VWP, which was to avoid the potentially oner-
ous and numerous proceedings that would otherwise occur when DHS
attempts to remove those who have overstayed their 90-day visas. Not
only will there likely be a small percentage of VWP entrants in Mrs. Free-
man’s position, but Congress itself granted the adjustment of status right
to these aliens. There is no reason to suspect that Congress failed to appre-
ciate the consequences of its act.
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to the interpretation of the statute now advocated by the Sec-
retary’s counsel — newly minted, it seems, for this lawsuit,
and inconsistent with prior agency actions — as we ordinarily
will not defer to agency litigating positions that are wholly
unsupported by regulations, rulings, or administrative prac-
tice.”) (internal quotation marks and citation omitted.) After
filing her adjustment of status application, Mrs. Freeman
received work authorization, suggesting that the immigration
authorities no longer considered her a VWP entrant, but
instead treated her like any other adjustment of status appli-
cant, including no longer being subject to a 90-day stay limit.
See 8 U.S.C. § 1187(a)(1) (describing a VWP entrant as a
“tourist”); § 1101(a)(15)(B) (describing a VWP entrant as “an
alien (other than one coming for the purpose of study or of
performing skilled or unskilled labor . . .) having a residence
in a foreign country which he has no intention of abandoning
and who is visiting the United States temporarily for business
or temporarily for pleasure.”).
[5] Based on § 1255(c)(4)’s grant of the right to VWP
entrants to adjust their status, reinforced by the statute’s pur-
pose and the agency’s granting of her work permit, we con-
clude that upon the proper filing of an adjustment of status
application, Mrs. Freeman was assimilated into the adjust-
ment of status procedural regime. Her rights to review of her
application — including review of the DHS director’s deter-
mination of her status as a spouse — were not subject to the
Visa Waiver Program’s no-contest clause.
III. Adjustment of Status
A. Jurisdiction
“Although the parties did not raise the question of our juris-
diction, we have raised it sua sponte, as we must.” WMX
Tech. Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997).
Notwithstanding the REAL ID Act’s limitation on appellate
review, see § 1252, we conclude that we have jurisdiction to
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review Mrs. Freeman’s purely legal claim that the district
director violated her due process rights by improperly inter-
preting § 1151(b)(2)(A)(i) to determine that she was no longer
the “spouse” of a U.S. citizen and therefore not entitled to
adjustment of status. See Wong v. INS, 373 F.3d 952, 963 (9th
Cir. 2004) (“[D]ecisions made on a purely legal basis may be
reviewed, as they do not turn on discretionary judgment. . . .
[The § 1252(a)(2)(B) bar on review of discretionary decisions
does not apply to cases] rais[ing] only constitutional or purely
legal, nondiscretionary challenges to the decisions in ques-
tion.”).
Purely legal questions, such as the proper definition of
“spouse” under § 1151(b)(2)(A)(i), are reviewed de novo. See
De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004).
B. Immediate Relative Definition
[6] Under § 1151, a United States citizen can petition the
immigration authorities to adjust the status of an alien who is
an immediate relative to that of a lawful permanent resident.
“Immediate relative” is a defined term, as set forth in
§ 1151(b)(2)(A)(i):
For purposes of this subsection, the term “immediate
relatives” means the 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 (and each child of 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 204(a)(1)(A)(ii) of this title within 2
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years after such date and only until the date the
spouse remarries.
The government, relying primarily on the statute’s second
sentence (“In the case of an alien who was the spouse of a cit-
izen . . . .”), reads § 1151(b)(2)(A)(i) as “requir[ing] that in
order to be an ‘immediate relative’ under immigration law the
alien ‘spouse’ (wife) must have been married to the United
States citizen ‘spouse’ (husband) ‘for at least 2 years at the
time of the citizen’s death.’ ” Under the government’s prof-
fered reading, if the citizen spouse dies before the second
anniversary of the qualifying marriage, the alien spouse is no
longer considered a “spouse” and is no longer entitled to an
adjustment of status.
Mrs. Freeman disputes the government’s reading. Relying
on the first sentence of the statute (“For purposes of this sec-
tion, the term ‘immediate relative’ means the children,
spouses, and parents . . . .”), she argues that she qualified for
adjustment of status as an immediate relative — i.e., a spouse
— because of her marriage to a U.S. citizen at the time her
husband (and she) filed the forms required to initiate the
adjustment of status process. She further argues that the stat-
ute does not impose a two-year marriage requirement to be
considered an immediate-relative spouse, nor does it void that
spousal status upon her husband’s death. To the extent the
second sentence the government invokes is relevant, it simply
grants an alien spouse whose deceased citizen spouse had not
filed an I-130 the right to self-petition so long as the parties
were married for two years prior to the citizen’s death.
C. Chevron Deference
[7] The question for this court is which reading of the stat-
ute is correct — the government’s or Mrs. Freeman’s. We are
mindful that the answer “implicat[es] ‘an agency’s construc-
tion of a statute which it administers,’ ” and we must initially
determine whether, and to what extent, Chevron deference is
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due. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (quot-
ing Chevron v. NRDC, 467 U.S. 837, 842 1984)).
When a court reviews an agency’s construction of
the statute which it administers, it is confronted with
two questions. First, always, is the question whether
Congress has directly spoken to the precise question
at issue. 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. . . . [I]f the statute is
silent or ambiguous with respect to the specific
issue, the question for the court is whether the agen-
cy’s answer is based on a permissible construction of
the statute.
Chevron, 467 U.S. at 842-43 (footnote omitted). “Chevron
deference, however, is not accorded merely because the stat-
ute is ambiguous and an administrative official is involved.”
Gonzales v. Oregon, 126 S. Ct. 904, 916 (2005). “We should
not defer to an agency’s interpretation of a statute if Con-
gress’s intent can be clearly ascertained through analysis of
the language, purpose and structure of the statute.” NRDC v.
Nat’l Marine Fisheries Serv., 421 F.3d 872, 877 (9th Cir.
2005).
Here, the district director relied on In re Varela, 13 I. & N.
Dec. 453, 454 (BIA 1970), in which the BIA summarily ruled
that by the time the non-citizen wife’s adjustment of status
petition was being determined, she was no longer a spouse of
a United States citizen under § 1151 because her husband’s
“death had stripped her of that status.” Aside from Varela’s
lack of statutory analysis, the opinion’s weight is further
undercut by the BIA’s later finding that it was “extra-
jurisdictional.”10 Beyond this, the BIA has not otherwise
10See Matter of Sano, 19 I. & N. Dec. 299 (BIA 1985). Consequently,
we are cautioned against granting significant deference to the BIA’s con-
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addressed the statutory question before us. In any event, the
BIA’s interpretation, to the extent it is entitled to some defer-
ence, is not a permissible construction of the statute. See
Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 678 (9th
Cir. 2005) (“If we conclude that the statute is silent or ambig-
uous with respect to the specific issue before us, we must
respect the agency’s construction of the statute so long as it
is permissible.”).
We conclude, through our review of the language, struc-
ture, purpose and application of the statute, that Congress
clearly intended an alien widow whose citizen spouse has
filed the necessary forms to be and to remain an immediate
relative (spouse) for purposes of § 1151(b)(2)(A)(i), even if
the citizen spouse dies within two years of the marriage. As
such, the widowed spouse remains entitled to the process that
flows from a properly filed adjustment of status application.
The two-year durational language in the second sentence of
§ 1151(b)(2)(A)(i) grants a separate right to an alien widow
to self-petition, within two years of the citizen spouse’s death,
by filing a form I-360 where the citizen spouse had not filed
an immediate relative petition prior to his death. Therefore,
Mrs. Freeman, having filed all necessary forms, must be con-
sidered a spouse for purposes of her adjustment of status
application.
D. Language, Structure, Purpose and Application of the
Adjustment of Status Process
“The starting point for our interpretation of a statute is
always its language.” Cmty. for Creative Non-Violence v.
Reid, 490 U.S. 730, 739 (1989). “Interpretation of a word or
phrase depends upon reading the whole statutory text, consid-
clusion in In re Varela. See Lagandaon v. Ashcroft, 383 F.3d 983, 987 n.2
(9th Cir. 2004) (“We have also indicated that nonprecedential BIA deci-
sions might receive less deference than those designated as preceden-
tial.”).
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ering the purpose and context of the statute, and consulting
any precedents or authorities that inform the analysis.” Dolan
v. United States Postal Service, 126 S. Ct. 1252, 1257 (2006).
In understanding and applying a regulatory scheme, we
should interpret statutes to be coherent and internally consis-
tent. See FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000); Mutschler v. Peoples Nat’l Bank of
Wash., 607 F.2d 274, 276 (9th Cir. 1979).
[8] The language of the first sentence of § 1151(b)(2)(A)(i),
which sets out the general definition of immediate relative, is
straightforward and succinct, and expressly includes
“spouses.” Only alien “parents” are subject to any limitation,
with the grant of immediate relative status being restricted to
those whose citizen child is at least 21 years of age. There is
no comparable qualifier to be a “spouse” — that is, a require-
ment that the marriage must have existed for at least two
years. “This fact only underscores our duty to refrain from
reading a phrase into a statute when Congress has left it out.
Where Congress includes particular language in one section
of a statute but omits it in another . . . , it is generally pre-
sumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” Keene Corp. v. United
States, 508 U.S. 200, 208 (1993) (internal citation and quota-
tion marks omitted). The words of Congress are clear and we
presume that Congress meant precisely what it said: “The
term ‘immediate relative[ ]’ means the . . . spouse[ ] . . . of a
citizen of the United States,” without exception. § 1151(b)(2)
(A)(i); see also BedRoc Ltd., LLC v. United States, 541 U.S.
176, 183 (2004) (“The preeminent canon of statutory interpre-
tation requires us to presume that the legislature says in a stat-
ute what it means and means in a statute what it says there.”
(quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249,
253-54 (1992))). Under the express terms of the statute, Mrs.
Freeman qualified as the spouse of a U.S. citizen when she
and her husband petitioned for adjustment of status, and
absent a clear statutory provision voiding her spousal status
upon her husband’s untimely death, she remains a surviving
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spouse. Neither the definition of immediate relative nor the
text and structure of the adjustment of status regime provides
support for the government’s position that Mrs. Freeman
should be stripped of her spousal status.
Before we address (and reject) the government’s attempt to
read the second sentence of § 1151(b)(2)(A)(i) as implicitly
importing a two-year requirement into the definition of
spouse, we turn to the structure of the adjustment of status
procedure that was initiated when the Freeman’s filed their
adjustment of status forms. The immigration statute provides
that “[a]ny citizen of the United States claiming that an alien
is entitled to . . . immediate relative status under section
1151(b)(2)(A)(i) of this title may file a petition with the Attor-
ney General for such classification.” § 1154(a)(1)(A)(i). A cit-
izen spouse is generally eligible, without exception, to file a
petition on behalf of his alien spouse so long as the marriage
was not fraudulent and the marriage was not entered into
“while the alien was in exclusion, deportation, or removal
proceedings, or judicial proceedings relating thereto.” 8
C.F.R. § 204.2(a)(1)(ii) - (iii); see also Dabaghian v. Civiletti,
607 F.2d 868, 869 (9th Cir. 1979) (“If a marriage is not sham
or fraudulent from its inception, it is valid for the purposes of
determining eligibility for adjustment of status under § 245 of
the [Immigration and Nationality] Act until it is legally dis-
solved.”). The critical form the citizen spouse must file in
order to seek re-classification of his alien spouse is the Form
I-130, Petition for Alien Relative, establishing his citizenship
and that the alien seeking adjustment is an immediate relative.
See 8 C.F.R. § 204.1(a)(1). Along with the citizen’s filing, the
alien must file a Form I-485 seeking adjustment of status to
that of lawful permanent resident, relying on the citizen’s
petition attesting to the alien’s status as his spouse. See
§ 1255(a).11 Upon submission of these two forms, no addi-
11Section 1255(a) provides
The status of an alien who was inspected and admitted or paroled
into the United States . . . may be adjusted by the Attorney Gen-
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tional forms are expected to be filed by the citizen and alien
spouses.12 The government points to nothing in this procedure
suggesting that the properly filed forms are entirely voided
upon the citizen petitioner’s death.
It is undisputed that Mr. and Mrs. Freeman adequately fol-
lowed this procedure and filed the necessary forms (I-130 and
I-485), and that their marriage was neither a sham nor fraudu-
lent. The government also tells us that, had DHS addressed
the Freemans’ application before Mr. Freeman died, the
adjustment of status could have been granted even though
they had not been married for two years. Nonetheless, by the
time DHS did reach the petition Mrs. Freeman was a widow
and, in DHS’s view, no longer a spouse eligible for LPR sta-
tus because her marriage did not meet a two-year requirement.
The government infers this two-year requirement from the
second sentence of § 1151(b)(2)(A)(i), which it reads as gov-
erning all cases where the immigration authorities have not
yet adjudicated a widow’s pending adjustment of status appli-
cation. The government’s position is that regardless of there
being no two-year minimum to qualify either as a spouse for
filing or for being granted an adjustment of status, if the citi-
zen spouse dies short of a two-year marriage and before DHS
has acted, his alien spouse’s opportunity for adjustment of sta-
eral . . . to that of an alien lawfully admitted for permanent resi-
dence if (1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is admis-
sible to the United States for permanent residence, and (3) an
immigrant visa is immediately available to him at the time his
application is filed.
12We note that proper filing and approval of the forms do not them-
selves automatically entitle Mrs. Freeman to adjustment of status. Rather,
“[w]hile an I-130 establishes eligibility for status, the Attorney General —
or in the context of deportation proceedings, the IJ — must still decide to
accord the status.” Agyeman, 296 F.3d at 879. Nonetheless, the purpose of
our opinion here is to ensure that in making the decision to accord status,
the immigration authorities are properly construing the law that they have
the discretion to apply.
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tus dies with him because the alien is no longer an immediate
relative of a citizen.13 We cannot accept this untenable inter-
pretation. Cf. Dabaghian, 607 F.2d at 871 (“The word
‘spouses’ in § [1151(b)(2)(A)(i)] includes the parties to all
marriages that are legally valid and not sham. There is no
exception for marriages that the INS thinks are ‘factually
dead’ at the time of adjustment.”).
The more logical and statutorily substantiated interpretation
of the second sentence is that it applies to those aliens whose
citizen spouses did not initiate an adjustment of status pro-
ceeding before they died, granting such surviving spouses a
beneficial right to file an immediate relative petition even
without a living citizen spouse to vouch for the fact of the mar-
riage.14 The immigration regulations discussing the process to
adjust status comport with this reading and offer no support
for the government’s contention that alien spouses who have
filed the necessary forms should have their spousal status
voided upon the premature death of their citizen spouses.
8 C.F.R. §§ 204.1-2 lay out the framework for immediate
relative petitions and support our conclusion. Sections
204.1(a)(1) and 204.2(a) address when “a United States citi-
zen . . . may file a petition on behalf of a spouse,” a procedure
13The government has not pointed to anything in the immigration laws
that gives the two-year anniversary such talismanic significance in this
context. We recognize that § 1227(a)(1)(G) creates a presumption of fraud
where an alien spouse has received an adjustment of status (pursuant to an
immediate relative petition made by the citizen spouse) prior to the two-
year anniversary of the marriage and the marriage is terminated within
two-years of the alien becoming an LPR. However, the government does
not argue that Mrs. Freeman’s marriage was anything but legitimate.
14It is relevant that Congress introduced the two-year durational require-
ment for certain alien widows in a separate sentence of the statute. The
“grammatical structure of th[is] statute” suggests that the second sentence
“stands independent” of the first and does not qualify the general defini-
tion of spouse. See United States v. Ron Pair Enterprises, 489 U.S. 235,
241-42 (1989).
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the Freemans complied with here. On the other hand, sections
204.1(a)(2) and 204.2(b), separately delineate when a “widow
or widower of a United States citizen self-petitioning”15 “may
file a petition and be classified as an immediate relative”
(emphasis added), essentially tracking the second sentence of
§ 1151(b)(2)(A)(i).16 The distinction the regulations draw
between the rights of a citizen spouse to petition as compared
to those of an alien widow to self-petition is consistent with
a congressional intent to create two different processes, such
that one or the other applies — either the citizen spouse peti-
tions or, if he dies without doing so, the alien widow may do
so.17 There is no provision that the citizen spouse’s pending
petition (and consequently the alien spouse’s immediate rela-
tive status) is voided on his death, requiring the widow to start
over with her own self-petition.
Indeed, as noted above, the government concedes that it
had the power to grant the Freemans’ application prior to Mr.
15An alien “widow or widower of a United States citizen self-petitioning
under section 1154(a)(1)(A)(ii) of the Act as an immediate relative . . .
must file a Form I-360, Petition for Amerasian, Widow, or Special Immi-
grant.” 8 C.F.R. § 204.1(a)(2). Because Mr. Freeman had already filed a
Form I-130, as required by 8 C.F.R. § 204.1(a)(1), there was no reason for
Mrs. Freeman to self-petition by filing an I-360.
16A widow or widower may self-petition for classification only if “she
had been married for at least two years to a United States citizen,” “the
petition is filed within two years of the death of the citizen spouse,” “the
alien petitioner and the citizen spouse were not legally separated at the
time of the citizen’s death,” and “the alien spouse has not remarried.” 8
C.F.R. §§ 204.2(b)(i)-(iv).
178 U.S.C. § 1154(a)(1)(A)(ii) states, “An alien spouse described in the
second sentence of section 1151(b)(2)(A)(i) also may file a petition with
the Attorney General under this subparagraph for classification of the alien
(and the alien’s children) under such section.” (emphasis added.) The
inclusion of the word “also” in this subsection, as compared to the right
given to living citizen spouses in § 1154(a)(1)(A)(i) (i.e., to file a petition
on behalf of their alien spouse), further establishes that the right of self-
petition is given to a select group of alien widows as an alternative to their
citizen spouse’s I-130 filing.
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Freeman’s death (and the Freemans’ second anniversary).
Had it done so, Mrs. Freeman’s LPR could not then have been
voided by her husband’s death, as the statute expressly states.
See § 1186a(a), (b)(1) (providing that an alien spouse who
receives permanent resident status as an immediate relative
before the second anniversary of her qualifying marriage does
so on a conditional basis, and if the Attorney General deter-
mines that prior to the second anniversary of the alien’s
obtaining status the alien’s marriage “has been judicially
annulled or terminated, other than through the death of a
spouse,” the Attorney General “shall terminate the permanent
resident status of the alien.” (emphasis added)). This is com-
pelling evidence that Congress did not intend its provision for
a widow’s self-petition for adjustment of status to have an
implicit collateral consequence of terminating a spouse’s
already pending petition — particularly when the effect would
be to foreclose a grieving widow from any adjustment at all
“through the death of [her] spouse.”
[9] Read cohesively, as they must be, the immigration laws
— and § 1151 in particular — provide varying rights depend-
ing on the procedures employed and requirements fulfilled by
those seeking an adjustment of status, and say nothing of
voiding the pending application properly filed by Mrs. Free-
man and her late husband. Section 1151’s definition of imme-
diate relative includes those spouses, like Mrs. Freeman,
whose citizen spouses have filed Form I-130. When the citi-
zen spouse dies after he has filed Form I-130 and otherwise
satisfied the necessary requirements, the duration of the mar-
riage is of no consequence (unless DHS finds the marriage to
be a sham or otherwise fraudulent), and the surviving alien
spouse remains a qualified immediate relative. However,
when a citizen spouse dies before initiating an adjustment of
status proceeding on behalf of his alien spouse, Congress has
— in the second sentence of § 1151(b)(2)(A)(i) — granted the
survivor a qualified right to self-petition on her own behalf.
In the self-petition context, Congress required a minimum
two-year marriage as well as a filing within two years of her
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husband’s death.18 This interpretation harmonizes and is con-
sistent with the language and structure of the statute and
related provisions of the immigration law. See Cook Inlet
Native Ass’n v. Bowen, 810 F.2d 1471, 1474 (9th Cir. 1987)
(“The words of a statute should be harmonized internally and
with each other to the extent possible.”).
Mrs. Freeman “completed all the formalities required for an
adjustment of [her] status, . . . but the immigration authorities
had, through no fault of [her or her husband’s], failed as yet
to act on [her husband’s] petition.” Benslimane v. Gonzales,
430 F.3d 828, 832 (7th Cir. 2005); see also INS v. Miranda,
459 U.S. 14, 15 (1982) (per curiam) (“Section 245(a) of the
Immigration and Nationality Act conditions the granting of
permanent resident status to an alien on the immediate avail-
ability of an immigrant visa. [The citizen spouse’s] petition,
if approved, would have satisfied this condition.”). It is under-
standable that the immigration authorities may require a con-
siderable amount of time to process the many applications
that come before them; however, an alien’s status as a quali-
fied spouse should not turn on whether DHS happens to reach
a pending application before the citizen spouse happens to
die. See Clinton v. New York, 524 U.S. 417, 429 (1998)
(“Acceptance of the government’s . . . reading . . . would pro-
duce an absurd and unjust result which Congress could not
have intended.”) (internal citation and quotation marks omit-
ted).
IV. CONCLUSION
[10] The government’s attempt to apply the VWP’s no-
contest clause to Mrs. Freeman’s adjustment of status pro-
ceeding and its contention that her spousal status was stripped
by her husband’s untimely death are “contrary to congressio-
18Congress could rationally have wanted some objective evidence of a
valid marriage in the case of a widow whose citizen spouse had taken no
action to adjust her status during his lifetime.
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nal intent and frustrate congressional policy.” Akhtar v. Bur-
zynski, 384 F.3d 1193, 1202 (9th Cir. 2004). First, the
adjustment of status regime makes clear that a VWP entrant
is assimilated into the procedural world of adjustment of sta-
tus applicants once an immediate relative petition is properly
filed, and not relegated to lesser rights by virtue of the VWP’s
no-contest clause. Second, given the text, structure and con-
text of § 1151(b)(2)(A)(i) — further illuminated by DHS’s
willingness to grant LPR applications regardless of a mar-
riage’s duration — deference to the government’s interpreta-
tion of “spouse” is not warranted. Mrs. Freeman remains an
immediate relative (spouse) of a U.S. citizen and her adjust-
ment of status application should be adjudicated accordingly.
[11] Accordingly we GRANT Mrs. Freeman’s petition for
review and REMAND to the district director for further con-
sideration consistent with this opinion.19 The removal order
entered against Mrs. Freeman is VACATED.20
PETITION GRANTED AND REMANDED.
19Remand to the district director is appropriate in this case because “the
authority to adjudicate immediate relative preference petitions properly
rests with the Attorney General (who has, in turn, delegated it to the dis-
trict directors), and not with the BIA or immigration judge.” Dielmann v.
INS, 34 F.3d 851, 853 (9th Cir. 1994).
20Because we hold that Mrs. Freeman is a spouse for purposes of 8
U.S.C. § 1151(b)(2)(A)(i), we need not reach her equal protection claim.
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