To: FIELD LEADERSHIP
From: Mike Aytes /s/
Associate Director of Domestic Operations
U.S. Citizenship and Immigration Services
Date: November 8, 2007
Re: Effect of Form I-130 Petitioner’s Death on Authority to Approve
the Form I-130
Revisions to Adjudicator’s Field Manual (AFM) Chapter 21.2 (AFM Update AD08-04)
This memorandum reaffirms, for cases outside the 9th 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 9th Circuit, the memorandum directs USCIS adjudicators to follow
Freeman v. Gonzales, 444 F.3d 1031 (9th 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 (9th 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
3. Field Guidance and Adjudicator’s Field Manual (AFM) Update
The adjudicator is directed to comply with the following guidance.
1. Chapter 21.2 of the AFM entitled “Factors Common to the Adjudication
of All Relative Visa Petitions” is amended by:
a. Adding a new chapter 21.2(a)(4); and
b. Revising the Note at the end of chapter 21.2(g)(1)(C).
The revisions read as follows:
21.2 Factors Common to the Adjudication of All Relative Visa Petitions.
(a) Filing and Receipting of Relative Petitions.
(4) Effect of the petitioner’s death before approval. (A)(1) Except
as provided in paragraph (a)(4)(B) of this chapter for cases governed
by the precedent decisions of the Ninth Circuit, a Form I-130 must be
denied if the visa petitioner dies after the visa petitioner filed the
Form I-130 and before USCIS has adjudicated the Form I-130. Matter of
Sano, 19 I&N Dec. 299 (BIA 1985) and Matter of Varela, 13 I&N
Dec. 453 (BIA 1970). A USCIS adjudicator will actually deny a Form I-130
in this situation, and not just “terminate action” on it.
The denial will give as reasons for the denial the reasoning stated in
paragraph (a)(4)(A)(2) of this chapter.
(A)(2) Effect of Freeman v. Gonzales outside the Ninth Circuit. USCIS adjudicators
shall not follow the decision in Freeman v. Gonzales, 444 F.3d 1031 (9th
Cir. 2006) in any case arising outside the Ninth Circuit. The USCIS position
is that Freeman was wrongly decided, for the reasons set forth in this
chapter 21.2(a)(4)(A)(2). USCIS adjudicators, moreover, are legally obligated
to follow Sano and Varela, since the Board designated them as precedents.
8 CFR 1003.1(g).
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 (8th 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 general rule in the United States, moreover, is that marriage ends
upon the death of one spouse. See 52 Am. Jur. 2d, Marriage, § 8.
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.
Moreover, although the Freeman panel said it was reading § 201(b)(2)(A)(i)
in light of the statute as a whole, the Freeman panel did not consider
§ 204(b) of the Act, 8 U.S.C. § 1154(b). Under § 204(b),
USCIS may approve a Form I-130 only if, after investigation, USCIS finds
that the “facts stated in the petition are true” (emphasis
added). It is not enough, as the court thought in Freeman, 444 F.3d at
1039-40, that the facts were true when the petition was filed. At the
time of adjudication, USCIS must find that the facts are true otherwise
USCIS may not approve the Form I-130. See INA § 204(b), 8 U.S.C.
§ 1154(b). See id. Once the petitioner dies, the claim that the petitioner
is related to the beneficiary in the legally relevant way is no longer
true. The general rule in immigration cases, moreover, is that cases are
decided based on the facts as they exist on the date of the decision.
Matter of Alarcon, 20 I&N Dec. 557, 562 (BIA 1992).
This conclusion that a Form I-130 cannot be approved after the petitioner
dies does not, as the Freeman panel thought, 444 F.3d at 1039, “import”
into the first sentence of § 201(b)(2)(A)(i) any requirement concerning
how long the Form I-130 petitioner and the alien beneficiary must be married
in order for USCIS to approve the Form I-130. What the first sentence
of § 201(b)(2)(A)(i) and § 204(b), when read together, require
is that the petitioner and beneficiary must still be legally married,
in order for USCIS to approve the Form I-130. This factor readily distinguishes
the case of a deceased petitioner from Dabaghian v. Civiletti, 607 F.2d
868 (9th Cir. 1979), upon which the Freeman panel relied in concluding
that it was “untenable” to say that a visa petitioner’s
death ends the beneficiary’s claim to be an immediate relative.
444 F.3d at 1041. The petitioner and the beneficiary in Dabaghian were
still legally married when the alien in that case had obtained permanent
residence. 607 F.2d at 869. If the petitioner has died, by contrast, the
beneficiary is no longer married to the petitioner. Their marriage dissolved
upon the petitioner’s death. Thus, the beneficiary is not the spouse
of a citizen, and so, is not an immediate relative. INA § 201(b)(2)(A)(i),
8 U.S.C. § 1151(b)(2)(A)(i).
The Freeman panel also failed to consider INA § 205, 8 U.S.C. §
1155, and the related regulations. Under § 205, for example, USCIS
may revoke approval of a Form I-130 in any case in which USCIS finds good
cause for doing so. Had USCIS approved Form I-130 in a case before a petitioner’s
death, the approval would have been revoked, automatically, upon his death.
See 8 C.F.R. § 205.1(a)(3)(i)(C)(2), as amended 71 Fed. Reg. 35,732,
35,749 (2006). There is discretion to leave an approval in place. As the
Ninth Circuit has held in earlier cases, however, this discretion is not
available if the petitioner dies while the Form I-130 was still pending.
See Abboud v. INS, 140 F.3d 843, 849 (9th Cir. 1998); and Dodig v. INS,
9 F.3d 1418 (9th Cir. 1993). Under DHS regulations, moreover, USCIS may
reinstate approval of a Form I-130 only if some qualified person is willing
and able to submit a Form I-864, affidavit of support, as a substitute
for the petitioner. 8 C.F.R. § 205.1(a)(3)(C)(2), as amended, 71
Fed. Reg. at 35,749. The statute, in turn, permits a substitute sponsor
only if the petitioner dies after approval of the Form I-130. INA §
213A(f)(5)(B), 8 U.S.C. § 1183a(f)(5)(B). The most reasonable inference
from the provision for a substitute sponsor only if the Form I-130 was
approved before the petitioner’s death is that the petitioner’s
death ends the beneficiary’s ability to immigrate.
This inference is all the stronger, since Congress has provided several
statutes under which a person may obtain permanent residence based on
a relationship that has been dissolved by death. The Freeman panel did
consider one of these provisions, the second sentence of § 201(b)(2)(A)(i).
Under this provision, the widow(er) of a citizen can still qualify as
an immediate relative, if the widow(er) and the citizen were married at
least 2 years at the time of the citizen’s death. Similar provisions
are found in the FY2004 National Defense Authorization Act, Pub. L. 108-136,
Division A, § 1703, 117 Stat. 1392, 1693-96 (2003) and the USA Patriot
Act, Pub. L. 107-57, §§ 421 and 423, 115 Stat. 272, 356-363.
USCIS acknowledges, as the Freeman panel did, 444 F.3d at 1039, that the
second sentence of § 201(b)(2)(A)(i) permits a widow(er) to file
his or her own petition. The salient point to be drawn from these provisions,
however, is that, when Congress has wanted to permit an alien to obtain
permanent residence based on a relationship that no longer exists, Congress
has done so explicitly.
Section 421 of the Patriot Act is particularly relevant on this point.
Under § 421, Congress provided a special benefit for the beneficiary
of a Form I-130 if the Form I-130 was “revoked or terminated (or
otherwise rendered null), either before or after its approval” because
the petitioner died as a result of the September 11, 2001, terrorist attacks
on the United States. Pub. L. 107-57, § 421(a) and (b)(1)(B)I), and
§ 428(b), 115 Stat. at 356-7. In particular, the beneficiaries of
§ 421 immigrate as “special immigrants,” and not as “immediate
relatives.” Id. There would have been no need for Congress to enact
§ 421(a), if, as the Freeman panel and the district court in this
case concluded, a visa petitioner’s death does not “terminate
(or otherwise render null),” id. § 421(b)(1)(B), 115 Stat.
at 356, the Form I-130.
The Freeman panel, moreover, misconstrued the Board’s precedents
in Matter of Sano and Matter of Varela. The actual result in each case
was the same: the Board affirmed the INS decisions denying the respective
Forms I-130 due to the petitioner’s death. The only difference between
these two decisions was the reason given. In Matter of Varela, the Board
assumed it had jurisdiction and decided the case on the merits, holding
that the visa petitioner’s death required denial of the Form I-130
because the beneficiary was no longer the spouse of a citizen. 13 I&N
Dec. at 454. The Board did not, in Sano, question its conclusion in Varela
that a person is no longer a “spouse” after the other spouse
had died. Rather, in Sano, the Board held that the beneficiary’s
lack of standing would have been the more proper basis for the decision
in Varela. 19 I&N Dec. at 300-01. The Secretary and the Attorney General,
moreover, have specifically endorsed the conclusion from Varela that “there
is no authority to approve a visa petition after the petitioner dies.”
71 Fed. Reg. at 35,735.
The Freeman panel was also mistaken in saying that the Board in Sano acted
“summarily,” 444 F.3d at 1038, and without statutory analysis.
The Board concluded that the beneficiary in Sano was no longer a “spouse”
of a citizen because the citizen had died. 13 I&N Dec. at 454. The
Board’s conclusion was fully consistent with the general rule in
the United States that marriage ends with the death of one spouse. See
52 Am. Jur. 2d, Marriage, § 8. That the Board’s opinion may
have been brief does not change the fact that the Board gave a legally
sound and sufficient, basis for its conclusion.
(A)(3) Effect of other judicial decisions. If a district court outside
the Ninth Circuit follows Freeman in an individual case, and the Government
does not appeal the decision, USCIS will comply with the district court’s
judgment with respect to that specific case. USCIS will not, however,
consider the district court judgment to be a binding precedent for any
subsequent case, since the Board has held that district court judgments
do not have binding effect for other cases. Matter of K- S-, 20 I&N
Dec. 715 (BIA 1993).
If a court of appeals other than the Ninth Circuit follows Freeman, and
designates its own decision as a precedent, then the guidance in chapter
21.2(a)(4)(B) of the AFM will apply in that Circuit, as well as in the
Ninth Circuit. If a different Circuit follows Freeman in a decision that
is not designated a precedent, USCIS adjudicators should consult with
their regional counsel to determine whether, under the law of that Circuit,
the decision is nevertheless binding in subsequent cases.
(B)(1) Special rule for Ninth Circuit cases involving spousal immediate
relative petitions. Chapter 21.2(a)(4)(A) of the AFM does not apply to
a case that is governed by the precedent decisions of the Ninth Circuit.
In the Ninth Circuit, if the visa petitioner dies after filing the spousal
immediate relative Form I-130 and after the beneficiary has filed the
related Form I-485, but before there is a final decision on the Form I-130,
the spousal immediate relative Form I-130 may still be approved, based
on the Ninth Circuit decision in Freeman v. Gonzales, 444 F.3d 1031 (9th
Cir. 2006). The beneficiary still bears the burden of proving that the
beneficiary would qualify as an immediate relative if the petitioner were
still alive. Establishing that the beneficiary would qualify as an immediate
relative if the petitioner were still alive requires the beneficiary to
prove that, before the petitioner’s death, the petitioner and beneficiary
were related in a way that would have made the beneficiary eligible for
classification as an immediate relative under section 201(b)(2)(A)(i).
A Form I-130, Petition for Alien Relative, which is based on a spousal
(immediate relative) relationship may still be denied if the beneficiary
fails to establish that the marriage that forms the basis for the classification
was bona fide, and not entered into to acquire an immigration benefit.
Note AFM chapter 21.2(a)(4)(B) applies only to cases involving the same
essential facts as the Freeman case. One fact that played a critical role
in the panel’s decision is that the beneficiary in Freeman had filed
her Form I-485 before the petitioner had died. 444 F.3rd at 1042-43. In
cases where the petitioner dies before the beneficiary filed a Form I-485,
the case results in a significant factual distinction from that presented
in Freeman. In such cases, the Form I-130 should be denied, based on this
distinction, as specified in chapter 21.2(a)(4)(A)(2). AFM chapter 21.4(a)(4)(B)
does not apply to family based petitions under section 203(a) of the Act
or immediate relative petitions filed for the parents or children of citizens,
rather than for spouses.
(B)(2) The beneficiary of a spousal immediate relative Form I-130 petition
that is approved under AFM chapter 21.2(a)(4) must still submit a Form
I-864 in order to overcome inadmissibility on public charge grounds. Except
as provided in paragraph 21.2(a)(4)(C) of this chapter, therefore, the
post-death approval of any Form I-130 that is approved under the Freeman
decision and this paragraph 21.2(a)(4) will be revoked automatically under
8 CFR 205.1(a)(3)(i)(C), unless the beneficiary presents a request under
8 CFR 205.1(a)(3)(i)(C)(2) for humanitarian reinstatement, supported by
a properly completed Form I-864 from an individual who qualifies under
section 213A(f)(5)(B) of the Act as a qualifying substitute sponsor. USCIS
may, as a matter of discretion, reinstate the approval pursuant to section
213A(f)(5)(B) of the Act and 8 CFR 205.1(a)(3)(i)(C)(2) if a qualifying
substitute sponsor submits a Form I-864 in place of any Form I-864 that
was submitted, or would have been submitted, by the deceased petitioner.
If the beneficiary requests reinstatement under 8 CFR 205.1(a)(3)(i)(C)(2)
before USCIS has actually adjudicated the Form I-130, and reinstatement
is appropriate under 8 CFR 205.1(a)(3)(i)(C)(2), the decisions to approve
the Form I-130 and to leave approval unrevoked will be made in a single
(C) Paragraph 21.2(a)(4)(B) of this AFM does not apply to any Form I-130
that is converted upon the petitioner’s death to a widow(er)’s
Form I-360, as provided for in 8 CFR 204.2(i)(1)(iv) and 205.1(a)(3)(i)(C)(1).
(g) Revocation of Approval.
(1) Automatic Revocation.
* * * * *
(C) Discretionary Authority to Not Automatically Revoke Approval.
* * * * *
Note: See chapter 21.2(a)(4) of this AFM for guidance concerning the effect
of a petitioner’s death before approval of a Form I-130.
This memorandum is intended solely for the training and guidance of USCIS
personnel in performing their duties relative to the adjudication of applications.
It is not intended to, does not, and may not be relied upon to create
any right or benefit, substantive or procedural, enforceable at law of
by any individual or other party in removal proceedings, in litigation
with the United States, or in any other form or manner.
5. Contact Information
Operational questions regarding this memorandum may be directed to Andrew
Perry, Regulation and Product Management Division, Domestic Operations
Directorate. Inquiries should be vetted through appropriate supervisory channels.