12/30/2007

Mr. Mike Aytes, Associate Director of Domistic Operation, USCIS, issued a memorandum on November 8, 2007 on the subject to give a guidance to the field office adjudicators. Those who face a similar situation should read this memorandum to learn the consequence of the death of petitioning spouse on the surviving alien beneficiary of the family petition.

This memorandum reaffirms, for cases outside the 9^th Circuit, USCIS policy concerning the effect of a visa petitioner’s death, while the petition is still pending, on the authority to approve the petition. For cases within the 9^th Circuit, the memorandum directs USCIS adjudicators to follow Freeman v. Gonzales, 444 F.3d 1031 (9^th Cir. 2006), in cases involving the same essential facts.

The traditional view has been that if a Form I-130 visa petitioner dies before USCIS acts on the Form I-130, USCIS must deny the Form I-130. Cf. Matter of Sano,19 I&N Dec. 299 (BIA 1985); Matter of Varela,13 I&N Dec. 453 (BIA 1970). The U.S. Court of Appeals for the Ninth Circuit has rejected this interpretation of the statute. Freeman v. Gonzales, 444 F.3d 1031 (9^th Cir. 2006). USCIS is legally obligated to follow the precedent decisions of the Board of Immigration Appeals, in the absence of a supervening precedent decision of a court of appeals. 8 CFR 1003.1(g). Thus, USCIS adjudicators must follow Sano and Varela, and not Freeman, in any case arising outside the Ninth Circuit.

In addition to noting that Freeman does not apply outside the Ninth Circuit, the USCIS position is that Freeman was wrongly decided. A person who had been married is no longer, legally, a “spouse” once the other spouse has died. Moreover, even if the statute may be considered ambiguous, the Ninth Circuit failed to give the deference to the Board’s interpretation of the statute that, under decisions of the Supreme Court, a court is legally bound to give. See National Cable & Telecomm. Assn v. Brand X Internet Services, 545 U.S. 967 (2005); Chevron, U.S.A., Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

Nevertheless, the Freeman decision is a controlling precedent for cases in the Ninth Circuit, unless the Ninth Circuit were to overrule Freeman or the Supreme Court were to decide a case involving the same issue in a manner contrary to Freeman.

USCIS adjudicators are reminded that, under the circumstances specified in 8 CFR 204.2(i)(1)(iv) and 205.1(a)(3)(i)(C)(1), as amended, 71 FR 35732, 35749 (2006), a spousal Form I-130 is converted to a widow(er)’s Form I-360 if, on the date of the Form I-130 petitioner’s death, the couple were married for at least 2 years and the widow(er) would be otherwise eligible to file a widow(er)’s Form I-360.

USCIS adjudicators are also reminded that, if the visa petitioner dies after approval of a Form I-130 – in both immediate relative and family-preference cases – then USCIS has discretion to reinstate the pre-death approval. 8 CFR 205.1(a)(3)(i)(C)(2), as amended, 71 FR 35732, 35749 (2006). This discretion will be exercised favorably only if there is a substitute sponsor who has submitted a Form I-864 in place of any Form I-864 that was filed, or would have been filed, by the deceased petitioner. Id.

Unless Congress clearly intended a specific, technical meaning, a statute is to be interpreted according to the common, ordinary meaning of the words of the statute at the time of enactment. See BedRoc Ltd, LLC v. United States, 541 U.S. 176, 184 (2004); Perrin v. United States, 444 U.S. 37, 42 (1979); Burns v. Alcala, 420 U.S. 575, 580-81 (1975). Like the term "material," the term "spouse" "is not a hapax legomenon." Cf Kungys v. United States. 485 U.S. 759, 769 (1988). The common, ordinary meaning of the term “spouse” is a married person. See definition of “spouse,” Black’s Law Dictionary (8^th Ed. 2004). Federal law has adopted this same basic definition of “spouse” for purposes of the administration of every Federal statute and regulation. 1 U.S.C. § 7. A person is a “spouse” only if he or she is either the husband or the wife of a legal marriage. Id.

The Freeman panel considered it significant that neither § 201(b)(2)(A)(i), nor any other provision of the Act, clearly provides that a person’s status as a “spouse” ends when the marriage ends. 444 F.3d at 1039-40. But if the term “spouse” is given its ordinary meaning, there is no need for such a specific provision. Citing the Supreme Court’s decision in BedRoc Ltd, LLC, supra, the Freeman panel did acknowledge that statutory terms are to be given their common, ordinary meaning. Despite this, the Freeman panel simply took no notice of the legal effect of death upon a marriage. As a matter of law, a marriage ends upon the death of one spouse. The other person, then, is no longer a married person and, by definition, no longer a spouse.