Thursday, May 20, 2010
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Court: Dead Citizen’s Child Eligible for Immigration Waiver
By KENNETH OFGANG, Staff Writer
A statute that allows the alien child of a U.S. citizen to apply for a waiver of removal applies to an applicant whose citizen parent has died, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Rejecting the Board of Immigration Appeals’ interpretation of 8 U.S.C. § 1227(a)(1)(H)(i), the court said that nothing in the statute—which allows the Department of Justice to grant a discretionary waiver of removal to “the spouse, parent, son, or daughter” of a citizen or legal permanent resident—requires that the citizen relative be living when the waiver is granted.
The court sent the case of Rolando Manapa Federiso back to the BIA for further proceedings.
Federiso, a Filipino national, followed his mother—who became a naturalized citizen—to the United States after obtaining a visa for permanent residence. Fifteen years later, the government initiated removal proceedings on the ground that Federiso had lied on his visa application by claiming to be unmarried.
Unmarried children of U.S. citizens are entitled to higher priority in the granting of visas. Federiso, who obtained legal permanent resident status before the removal proceedings began, applied for a waiver under Sec. 1227(a)(1)(H)(i).
Federiso’s mother was alive when the removal proceedings began, but subsequently died, and the proceedings dragged on for years. Ultimately, an immigration judge ruled that Federiso was eligible to apply for the waiver, since he “continues to be the son of a United States citizen” after his mother’s death, and that there were a number of equitable reasons why the waiver should be granted.
The BIA, however, sided with the government, holding that Federiso was ineligible because he could not “establish a qualifying relationship to a living relative,” and ordered his removal to the Philippines.
But Senior Judge Dorothy W. Nelson, writing for the Ninth Circuit, said the BIA was wrong because the waiver statute was “plain and unambiguous” in describing who qualified.
The BIA’s conclusion that the citizen relative must still be alive “is not what the statute says,” Nelson wrote. “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.”
The judge distinguished earlier cases holding that aliens could not seek the waiver based on having a child who was a citizen if the child was living outside the country, or on the basis of having a citizen spouse if the couple was in the process of divorce.
The marriage case “provides little guidance,” Nelson reasoned, because marriage is not necessarily permanent, while “[a] child never ceases to be his mother’s son.” And the cases on non-resident citizen children, the judge explained, were decided almost 40 years ago under a previous version of the statute.
Those decisions have also been superseded, the jurist reasoned, by later U.S. Supreme Court precedent requiring courts, in interpreting statutes, to apply clear and unambiguous language even if it appears to conflict with legislative purpose.
“Whether an alien is eligible for a waiver remains a question of statutory interpretation fit for judicial review; whether issuing § 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,” Nelson wrote. “Neither the BIA nor we may further our preferred interpretation of Congress’s intent by misreading or adding to the statutory eligibility requirements that Congress has laid out quite clearly.”
Nelson was joined by Judge Daniel M. Friedman of the Federal Circuit, sitting by designation, and Judge Stephen Reinhardt.
The case was argued in the Ninth Circuit by Andrew J. Vazquez of Pasadena for Federiso and Christina Bechak Parascandola of the DOJ’s Office of Immigration Litigation for the government.
The case is Federiso v. Holder, 08-74792.
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