Immigration – Board erred by imposing ‘living parent’ requirement in statute

Where the attorney general has discretion to waive removal for an alien who is the son of a U.S. citizen, the board erred by concluding that a deceased parent is not a qualifying relative for waiver eligibility. Nothing in the statute contains the living parent requirement.

Background

Congress allocates a certain number of immigrant visas per year for “the unmarried sons or daughters of citizens of the United States.” Evens Julmice applied for and received one of those visas while his U.S. citizen father was still living. But Julmice was ineligible for such a visa because he had been married for five years when he applied for it. And misrepresenting his marital status rendered Julmice removable from the United States.

The attorney general, however, has discretion to waive removal “for any alien … who … is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence.” Julmice requested such a waiver, but an immigration judge concluded he was ineligible for one. Noting that Julmice’s father was deceased, the immigration judge followed Matter of Federiso, 24 I. & N. Dec. 661 (B.I.A. 2008), a precedential board decision concluding that a deceased parent is not a qualifying relative for waiver eligibility.

Julmice appealed to the board, noting that the Ninth Circuit in Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010), already rejected the living-parent requirement as contrary to the statutory text. Without engaging with the Ninth Circuit’s reasoning, the Board declined to revisit Federiso and adopted and affirmed the immigration judge’s decision holding Julmice ineligible.

Analysis

This case raises a discrete question of statutory interpretation: To be eligible for a § 1227(a)(1)(H)(i) waiver, must a person be the son or daughter of a currently living U.S. citizen or lawful permanent resident? The relevant statutory text says the Attorney General “may” waive removal “for any alien … who … is the spouse, parent, son, or daughter of a citizen of the United States.” The subject of the sentence is the “alien” seeking the waiver, and the relevant verb (“is”) appears in the present tense. In contrast, there is no present-tense verb (or any verb at all) applicable to the citizen parent.

Hearing the sentence “Olivia is the child of a U.S. citizen,” a listener might safely assume that Olivia is currently alive but has no syntax-based reason to assume the referenced parent remains living (as one might if the sentence read “Olivia is the child of a parent who is a U.S. citizen”). Simply put, “an ordinary speaker of English would say that” a still-living child remains the child of a deceased parent.

The board never explained how its contrary view is consistent with (much less mandated by) the statutory text. On appeal, the government relies primarily on a purported statutory “silence,” noting that the relevant provision does not specify whether the parent must be living or dead. Saying the statute is “silent” about whether the parent must currently be alive is just another way of saying Congress chose not to include such a requirement, and the government cannot invoke that silence “to impose unilaterally novel substantive requirements beyond those” Congress enacted.

The government also asserts that the statute’s use of the present tense “is” connotes an ongoing parent-child relationship. That may well be true when it comes to § 1227(a)(1)(H)(i)’s use of the word “spouse”—a relationship that certainly terminates on divorce and is normally understood to terminate on death as well. (After all, a widowed person may remarry without violating anti-bigamy laws.) But, in ordinary English, we continue to refer to someone as the “son of ” or “daughter of ” their parent in the present tense even long after the parent has died.

One also might argue that—even if Julmice is still the child of his deceased father— he is no longer the child of “a citizen of the United States” because his father (the argument would go) is no longer a U.S. citizen following the father’s death. But the board did not rely on that theory in Federiso and the government affirmatively disclaimed it at oral argument.

Regardless, any such argument would fail as well. For one thing, it founders on the same grammatical shoals as the government’s view of the parent-child relationship. The statute asks whether Julmice “is” the son of a U.S. citizen, not whether his father is still a U.S. citizen following the father’s death. The broader statutory context does nothing to undermine this interpretation; rather, it tends to confirm it.

Petition for review granted. Vacated and remanded.

Julmice v. Garland (Lawyers Weekly No. 001-062-22, 8 pp.) (Toby Heytens, J.) Case No. 21-1177. March 23, 2022. From the Board of Immigration Appeals. Jennifer Sheethel Varughese for Petitioner. Spencer Stephen Shucard for Respondent. 4th Cir.