United States v. 2010-05-19 | 08-74792 | ROLANDO FEDERISO V. ERIC H. HOLDER JR. | precedential |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ROLANDO MANAPA FEDERISO,
Petitioner, No. 08-74792
v. Agency No.
 A040-501-894ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 8, 2010—Pasadena, California
Filed May 19, 2010
Before: Daniel M. Friedman,* Dorothy W. Nelson, and
Stephen Reinhardt, Circuit Judges.
Opinion by Judge D.W. Nelson
*The Honorable Daniel M. Friedman, United States Circuit Judge for
the Federal Circuit, sitting by designation.
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COUNSEL
Andrew J. Vasquez, Pasadena, California, for the petitioner.
Christina Bechak Parascandola, United States Department of
Justice, Civil Division, Office of Immigration Litigation,
Washington, D.C., for the respondent.
OPINION
D.W. NELSON, Senior Circuit Judge:
We must decide whether an individual whose mother is a
United States citizen continues to be “the son . . . of a citizen
of the United States,” as set forth at 8 U.S.C.
§ 1227(a)(1)(H)(i), after his mother’s death. We hold that he
does.
I. BACKGROUND
Petitioner Rolando Federiso is a Filipino national. His
mother, who was also a Filipino national, moved to the United
States and became a U.S. citizen. Federiso applied to the
United States Embassy in Manila for a visa for entry to the
United States with the intent to remain permanently. The State
Department prioritizes visa applications made by “the unmar-
ried sons or daughters of citizens of the United States.” 8
U.S.C. § 1153(a)(1). During his visa application process,
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Federiso indicated — falsely — that he was unmarried. He
was issued a visa, immigrated, adjusted to lawful permanent
resident status, and began his life in the United States.
Fifteen years later, the Government initiated removal pro-
ceedings against Federiso. The Government alleged, and
Federiso conceded, that Federiso violated 8 U.S.C.
§ 1182(a)(6)(C)(i), which forbids procuring a visa by willfully
misrepresenting a material fact. Federiso requested relief
under 8 U.S.C. § 1227(a)(1)(H)(i), which gives an immigra-
tion judge (“IJ”) the discretion to waive the removal of an
immigrant who procured a visa through willful misrepresenta-
tion. 8 U.S.C. § 1227(a)(1)(H) (granting this discretion to the
Attorney General); 8 C.F.R. § 1240.1(a)(1) (delegating Attor-
ney General’s discretionary authority to IJs). Only an alien
who “is the spouse, parent, son, or daughter” of a U.S. citizen
or lawful permanent resident is eligible to apply for a
§ 1227(a)(1)(H)(i) waiver.
The removal proceedings against Federiso dragged on for
years. After the proceedings had been initiated, but before the
hearing on Federiso’s request for § 1227(a)(1)(H)(i) relief,
Federiso’s mother died. At the hearing, Federiso and the Gov-
ernment disagreed about whether Federiso was still eligible to
apply for a § 1227(a)(1)(H)(i) waiver. The IJ held that he was,
since Federiso “continues to be the son of a United States citi-
zen” after the death of his U.S. citizen mother. The IJ then
examined a long list of equities in Federiso’s favor, which we
do not recount here, and granted Federiso a waiver.
The BIA interpreted § 1227(a)(1)(H)(i) differently. Sustain-
ing the Government’s appeal, the BIA held that “to be eligible
for a waiver of removal” under § 1227(a)(1)(H)(i), “an alien
must establish a qualifying relationship to a living relative.”
Matter of Federiso, 24 I. & N. Dec. 661, 661 (BIA 2008)
(emphasis added). Because Federiso’s mother was no longer
living, the BIA held that Federiso was no longer eligible to
apply for a § 1227(a)(1)(H)(i) waiver. Id. at 664. The BIA
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vacated the IJ’s decision and ordered Federiso removed to the
Philippines. Id.
Federiso timely filed the petition for review now before us,
over which we have jurisdiction pursuant to 8 U.S.C.
§ 1252(a).
II. STANDARD OF REVIEW
Section 1227(a)(1)(H)(i) is part of the Immigration and
Nationality Act (“INA”). We review BIA determinations of
purely legal issues regarding the INA de novo. Kankamalage
v. I.N.S., 335 F.3d 858, 861 (9th Cir. 2003). When the BIA
interprets a provision of the INA, we first determine if there
is any ambiguity in the statute using traditional tools of statu-
tory interpretation. Id. at 862. (citing Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9
(1984)). Only if we determine that a statute is ambiguous do
we defer to the agency’s interpretation. Id. We may not accept
an interpretation clearly contrary to the plain meaning of a
statute’s text. Id.
III. DISCUSSION
The text of § 1227(a)(1)(H)(i) strikes us as plain and unam-
biguous. The relevant text is as follows:
(H) Waiver authorized for certain misrepresentations
The provisions of this paragraph relating to the
removal of aliens within the United States on the
ground that they were inadmissible at the time of
admission as aliens described in section
1182(a)(6)(C)(i) of this title, whether willful or inno-
cent, may, in the discretion of the Attorney General,
be waived for any alien (other than an alien
described in paragraph (4)(D)) who—
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(i) (I) is the spouse, parent, son, or daughter of a
citizen of the United States or of an alien law-
fully admitted to the United States for perma-
nent residence; and
(II) was in possession of an immigrant visa or
equivalent document and was otherwise admis-
sible to the United States at the time of such
admission except for those grounds of inadmis-
sibility specified under paragraphs (5)(A) and
(7)(A) of section 1182(a) of this title which
were a direct result of that fraud or misrepresen-
tation.
8 U.S.C. § 1227(a)(1)(H) (emphasis added).
[1] The text of the statutory provision clearly states that the
son of a citizen of the United States may be eligible for a
waiver of removal. 8 U.S.C. § 1227(a)(1)(H)(i)(I).1 Neither
the Government nor the BIA disputes that Federiso is the son
of a citizen of the United States. That alone is enough to
resolve this case.
[2] The BIA interpreted the phrase “spouse, parent, son, or
daughter of a citizen of the United States,” 8 U.S.C.
§ 1227(a)(1)(H)(I) to mean spouse, parent, son, or daughter of
a living citizen of the United States. 24 I. & N. Dec. 661 at
662-64. This is not what the statute says. It is not the role of
those who enforce and interpret immigration law to impose
unilaterally novel substantive requirements beyond those set
forth in the immigration law itself. See Kazarian v. U.S. Citi-
1The term “son” is not specifically defined in the INA, see 8 U.S.C.
§ 1101 (section titled “Definitions”); see generally 8 U.S.C. §§ 1101-
1537, but the term’s definition was not contested by the parties and we
presume the typical dictionary definition is uncontroversial. See, e.g.,
BLACK’S LAW DICTIONARY 1400 (7th ed. 1999) (“son. 1. A person’s male
child. 2. An immediate male descendant.”).
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zenship & Immigration Servs., 596 F.3d 1115, 1121 (9th Cir.
2010) (holding that neither USCIS nor its Administrative
Appeals Office may unilaterally impose substantive require-
ments for visa eligibility beyond those set forth in the relevant
governing regulations).
The BIA’s opinion mentions two Ninth Circuit cases,
Myung v. INS, 468 F.2d 627 (9th Cir. 1972), and Kalezic v.
INS, 647 F.2d 920 (9th Cir. 1981), which merit brief discus-
sion here. In Myung, we held that an alien was ineligible for
a waiver of removal despite being the father of a U.S. citizen,
because his U.S. citizen child was living in Korea. Myung,
468 F.2d. at 628; see also United States v. Palmer, 458 F.2d
663 (1972) (reaching the same conclusion with respect to an
alien whose U.S. citizen child was living in Canada). In
Kalezic, we held that an alien who was in the process of
divorcing his U.S. citizen spouse was not eligible to receive
a waiver despite being the (soon-to-be ex-) husband of a U.S.
citizen. Kalezic, 647 F.2d at 922-23.
Kalezic provides little guidance here, because it deals with
a marital relationship, not with the wholly distinct relationship
between parent and child. A child never ceases to be his
mother’s son. He always is her son, even after her death. A
husband, in contrast, ceases to be his wife’s spouse upon
divorce; following the divorce, he no longer is her spouse.
Myung, which involved a parent-child relationship, is there-
fore the more relevant case. In that case, we relied on the fact
that “[t]he fundamental purpose of this legislation [creating
the fraud waiver] was to unite families . . . . [and to avoid]
separat[ing] families composed in part of American citizens
or lawful permanent residents,” I.N.S. v. Errico, 385 U.S. 214,
224-25 (1966), and we concluded that granting Myung a
waiver when his U.S. citizen relative was living outside of the
U.S. would have contradicted that legislative purpose. Myung,
468 F.2d. at 628.
[3] In the decades since we issued Myung and Kalezic,
both the statutory text we interpret and the role of the inter-
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preter have changed. As to our role, when we decided Myung
and Kalezic, we looked to the purpose of the statute, rather
than to its language. See Myung, 468 F.2d at 628 (discussing
the Congressional purpose underlying exemption for deporta-
tion without even mentioning the statutory text at issue); see
also Kalezic, 647 F.2d at 922 (finding statutory purpose dis-
positive despite finding that the relevant statutory language
cutting the other way “in many respects is unambiguous” and
that “technically [petitioner] remained the spouse of a citizen
of the United States”). Today, however, we are governed by
Chevron and its progeny, and unless the “statute is silent or
ambiguous with respect to the specific issue” before us, our
work is done. Chevron, 467 U.S. at 843. As we have stated,
the statutory language at issue here is plain: the son of a U.S.
citizen may be eligible for a waiver.
As to text, both Myung and Kalezic dealt with an older ver-
sion of the waiver of removal statute, in which the waiver was
mandatory and any eligible alien automatically received
relief. See 71 Stat. 639, 640 § 7 (1957) (providing that depor-
tation “shall not apply” to an alien who is the spouse, parent,
son or daughter of a U.S. citizen); Myung, 468 F.2d at 628
(citing the statutory text regarding the waiver, then codified
at 8 U.S.C. § 1251(f), including the “shall not apply” man-
date); Kalezic, 647 F.2d at 922 n.6 (quoting the “shall not
apply” language of § 1251(f)). Under the revised statute
before us today, the waiver is discretionary rather than man-
datory, see 8 U.S.C. § 1227(a)(1)(H) (providing that deporta-
tion “may, in the discretion of the Attorney General, be
waived”), and eligibility alone no longer guarantees relief.
Whether an alien is eligible for a waiver remains a question
of statutory interpretation fit for judicial review; whether issu-
ing § 1227(a)(1)(H) relief to a particular alien is consistent
with the statute’s underlying purpose is a case-by-case policy
determination that the statutory text commits not to the courts
but to the discretion of the Attorney General and his designee
the IJ. Neither the BIA nor we may further our preferred inter-
pretation of Congress’s intent by misreading or adding to the
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statutory eligibility requirements that Congress has laid out
quite clearly.
IV. CONCLUSION
[4] The BIA erred in holding that Federiso is ineligible to
apply for a § 1227(a)(1)(H) waiver because his U.S. citizen
mother is deceased; he is the son of a U.S. citizen and eligible
to apply. We GRANT Federiso’s petition and REMAND to
the BIA for further proceedings consistent with this opinion.
PETITION GRANTED; REMANDED.
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