PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 18-1462 ________________ 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 ________________ 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 ________________ Argued November 6, 2018 Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges (Opinion filed: February 19, 2019) Joshua S. Cohn, Esquire James I. McClammy, Esquire Benjamin Zhu, Esquire (Argued) Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Samuel I. Portnoy, Esquire Gibbons One Gateway Center Newark, NJ 07102 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 P.O. Box 868, Ben Franklin Station Washington, DC 20044 2 Counsel for Appellees Gary W. Kubek, Esquire Matthew D. Forbes, Esquire Meryl Holt Silverman, Esquire Elizabeth Costello, Esquire Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 Counsel for Amicus Curiae ________________ OPINION OF THE COURT ________________ 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. 3 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 ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals