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Aybar v. Secretary United States Department of Homeland Security

United States Court of Appeals, Third Circuit

February 19, 2019

CARMEN JOSEFINA CONTRERAS AYBAR; DARIO DE JESUS MORETA CONTRERA, Appellants
v.
SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; DIRECTOR UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; DIRECTOR UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES VERMONT; ATTORNEY GENERAL UNITED STATES OF AMERICA; UNITED STATES ATTORNEY NEW JERSEY

          Argued November 6, 2018

          Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-16-cv-01539) District Judge: Honorable Esther Salas

          Joshua S. Cohn, Esquire James I. McClammy, Esquire Benjamin Zhu, Esquire (Argued) Davis Polk & Wardwell, Samuel I. Portnoy, Esquire Gibbons Counsel for Appellants

          Chad A. Readler Acting Assistant Attorney General, Civil Division William C. Peachey Director, Office of Immigration Litigation, District Court Section Gisela A. Westwater Assistant Director, District Court Section Alexander J. Halaska, Esquire (Argued) United States Department of Justice Office of Immigration Litigation Counsel for Appellees

          Gary W. Kubek, Esquire Matthew D. Forbes, Esquire Meryl Holt Silverman, Esquire Elizabeth Costello, Esquire Debevoise & Plimpton LLP Counsel for Amicus Curiae

          Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges

          OPINION

          AMBRO, Circuit Judge

         Carmen Josefina Contreras Aybar ("Carmen") became a lawful permanent resident under provisions of the Immigration and Nationality Act ("INA") known as the "U Visa" statute. She then sought permanent resident status for her son, Dario, based on a related provision of the INA, 8 U.S.C. § 1255(m)(3), which empowers the U.S. Department of Homeland Security ("DHS") to grant that status to certain family members, including a "child," of an immigrant in Carmen's situation. But that application hit a snag: while it was pending Carmen's son reached the age of twenty-one, which made him ineligible under a DHS regulation that implements § 1255(m)(3). Citing that regulation, it denied the application.

         Carmen and her son challenge the regulation as contrary to § 1255(m)(3) as well as being arbitrary and capricious. But we cannot sustain that challenge. Instead we hold that § 1255(m)(3) unambiguously requires DHS to assess the familial relationship required under that statute as it exists when DHS decides the application, even though this means a child can "age out" of eligibility while an application is pending. The DHS regulation in question adheres to this unambiguous meaning of the statute, as did DHS's denial of Carmen's application. We thus affirm the District Court's grant of summary judgment in favor of the Government.

         I. Background

         A. Legal Framework

         In 2000 Congress passed legislation that created a new nonimmigrant visa classification-the U Visa-within the INA. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464. It is a temporary legal status offered to victims of rape and other specified crimes who have cooperated, or are likely to cooperate, in the investigation and prosecution of those crimes. See 8 U.S.C. § 1101(a)(15)(U)(i). Congress passed the statute to "strengthen the ability of law enforcement agencies to detect, investigate, and prosecute" the specified crimes, and to "offer[] protection to victims of such offenses in keeping with the humanitarian interests of the United States." Pub. L. No. 106-386, § 1513(a)(2)(A). The statute also gives a pathway to permanent resident status: after three years of holding a U Visa, an alien may apply for permanent resident status under a provision of the INA, 8 U.S.C. § 1255(m)(1), that applies specifically to holders of U Visas.

         Certain U-Visa benefits also extend to qualifying family members. Persons who are seeking or have already obtained permanent resident status based on their receiving a U Visa, such as Carmen, may seek that status for a qualifying family member under 8 U.S.C. § 1255(m)(3). It states:

Upon approval of adjustment of status under [8 U.S.C. ยง 1255(m)(1)] of an alien [who received a principal U Visa, ] the Secretary of Homeland Security may adjust the status of or issue an immigrant visa to a spouse, a child, or, in the case of an alien child, a parent who did not receive a [derivative U Visa] if the ...

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