Valter Silva Paiva v. Susan Curda et al, No. 2:2015cv05018 - Document 18 (C.D. Cal. 2016)
Court Description: ORDER DENYING DEFENDANTS MOTION TO DISMISS 13 by Judge Dean D. Pregerson . (lc) Modified on 2/9/2016 (lc).
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Valter Silva Paiva v. Susan Curda et al Doc. 18 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VALTER SILVA PAIVA, 12 Plaintiff, 13 14 15 16 17 18 v. SUSAN CURDA, in her capacity as District Director of the Los Angeles District of the U.S.C.I.S. and LEON RODRIGUEZ, in his capacity as Director of the U.S.C.I.S., Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-05018 DDP (ASx) ORDER DENYING DEFENDANTS’ MOTION TO DISMISS [Dkt. No. 13] 19 Presently before the Court is Defendants’ Motion to Dismiss 20 21 for Failure to State a Claim under Federal Rule of Civil Procedure 22 12(b)(6). 23 submissions and hearing oral argument, the Court adopts the 24 following Order. 25 I. 26 (Dkt. No. 13.) After considering the parties’ BACKGROUND This immigration case involves a petition by Plaintiff Valter 27 Silva Paiva for the district court to review the United States 28 Citizenship and Immigration Services’s (“USCIS”) denial of Dockets.Justia.com 1 Plaintiff’s naturalization application. 2 (Compl., dkt. no. 1.) Plaintiff is a citizen of Brazil and a lawful permanent 3 resident (“LPR”) of the United States. 4 received his LPR status on September 25, 2008, based on Plaintiff’s 5 marriage to a natural-born U.S. citizen, Rachael Paiva, in January 6 2008. 7 which means it was subject to review after two years. 8 5.) 9 (Id.) 10 (Id.) (Id. at Ex. 1.) Plaintiff Initially, Plaintiff’s LPR status was conditional, (Id. at Ex. Plaintiff’s LPR conditions were lifted on September 20, 2010. After three years of marriage to the same U.S. citizen and 11 three years of LPR status, Plaintiff applied for U.S. citizenship 12 naturalization by filing his N-400, which the USCIS received July 13 6, 2011. 14 October 25, 2011, Plaintiff was interviewed by USCIS. 15 2.) 16 tests, but he was required to provide more information to USCIS. 17 (Id. at Exs. 2, 3.) 18 application and updated his address on November 22, 2011, and 19 February 2, 2012. 20 (See id. at Exs. 1 (N-400), 5 (USCIS decision).) On (Id. at Ex. Plaintiff passed the English and U.S. history and government Plaintiff inquired about the status of his (Id. at Ex. 4.) On April 18, 2013, USCIS sent Plaintiff its naturalization 21 decision. 22 eligible for naturalization. 23 his wife had not been living in marital union for the requisite 24 time period based on Immigration Services Officers conducting site 25 visits and investigations. 26 Plaintiff had been living with the mother of his two children from 27 May 9, 2010, to February 21, 2012, at a different residence than 28 where his wife resided. (Id. at Ex. 5.) USCIS determined Plaintiff was not (Id.) The officers determined that (Id.) (Id.) USCIS found that Plaintiff and Then, Plaintiff appeared to move to 2 1 a different address. 2 listed on Plaintiff’s N-400 form. 3 facts inconsistent with Plaintiff’s N-400 and his interview. 4 USCIS also raised other issues relating to Plaintiff not listing 5 his children on prior immigration forms as well as providing false 6 testimony to obtain an immigration benefit based on Plaintiff’s 7 residency issues, thus barring Plaintiff from naturalization. 8 (Id.) 9 (Id.) Neither of these two addresses were (Id.; Ex. 1.) USCIS found these (Id.) Plaintiff filed an administrative appeal of this denial. (Id. 10 at Ex. 6 (N-336 form).) 11 his N-400 form and his marital circumstances. 12 explained that his marriage to Rachael is “legitimate” and that 13 “the reason we currently live a[t] separate household[s] has to do 14 with her change in personal preference.” 15 that he moved out of the Cherry Avenue address that he shared with 16 his wife and mother-in-law in May 2010 “because my wife told me 17 ‘she prefer to have relationship [with] girls.’” 18 said he had “no place to go while I’m still trying to resolve the 19 issue with my wife,” so he rented an apartment with the biological 20 mother of his children at a Garford Avenue address. 21 Plaintiff says he still sees his wife “regularly at work” and that 22 they are “still trying to resolve [their] marital differences.” 23 (Id.) 24 2011, but Plaintiff’s wife issued a quitclaim deed of the property 25 to Plaintiff for credit reasons. 26 Plaintiff requested a hearing to explain (Id.) (Id.) Plaintiff Plaintiff said (Id.) Plaintiff (Id.) The two bought a condo together at Redondo Avenue in May (Id.) Plaintiff wanted his children to live with him in the condo, 27 but he claims the biological mother of the children rejected the 28 change in custody without her moving to the condo as well. 3 (Id.) 1 Plaintiff got his wife’s permission to allow his children and their 2 mother to live in the condo while Plaintiff found a different place 3 to live at a Seaside Way address, then at an El Prado Avenue 4 address. 5 biological mother of his children because of his fatherly 6 obligations and “to provide support.” 7 an appeal hearing on March 5, 2014, for his naturalization denial. 8 (Id. at Ex. 7.) 9 (Id.) Plaintiff says he stays in contact with the (Id.) Plaintiff was granted On April 14, 2015, USCIS issued its decision reaffirming its 10 denial of Plaintiff’s naturalization application. 11 this decision, USCIS stated that Plaintiff failed to qualify for 12 naturalization because he must first have LPR status. 13 found that when Plaintiff filed to remove the conditions from his 14 LPR status, he was not living in marital union; thus, Plaintiff 15 provided false information to get an immigration benefit. 16 USCIS therefore found that Plaintiff had not lawfully been admitted 17 as a permanent resident prior to applying for naturalization. 18 (Id.) 19 (Id. at 8.) (Id.) In USCIS (Id.) After the second denial, Plaintiff filed this petition for 20 review. 21 motion to dismiss the complaint for failure to state a claim. 22 (Mot. Dismiss, Dkt. No. 13.) 23 is not eligible for naturalization because he was not in marital 24 union with his wife for the three years prior to applying for 25 naturalization. 26 in the same house as his wife, but they were legitimately married — 27 any informal separation requires the Court to make a de novo review 28 after a full hearing. (Compl., dkt. no. 1.) (Id. at 2.) Now, the Government has filed a The Government argues that Plaintiff Plaintiff argues that he did not live (Opp’n at 2.) 4 1 II. 2 LEGAL STANDARD A 12(b)(6) motion to dismiss requires a court to determine the 3 sufficiency of the plaintiff's complaint and whether it contains a 4 “short and plain statement of the claim showing that the pleader is 5 entitled to relief.” 6 12(b)(6), a court must (1) construe the complaint in the light most 7 favorable to the plaintiff, and (2) accept all well-pled factual 8 allegations as true, as well as all reasonable inferences to be 9 drawn from them. Fed. R. Civ. P. 8(a)(2). Under Rule See Sprewell v. Golden State Warriors, 266 F.3d 10 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 1187 11 (9th Cir. 2001); Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 12 1998). 13 In order to survive a 12(b)(6) motion to dismiss, the 14 complaint must “contain sufficient factual matter, accepted as 15 true, to ‘state a claim to relief that is plausible on its face.’” 16 Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. 17 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 18 “[t]hreadbare recitals of the elements of a cause of action, 19 supported by mere conclusory statements, do not suffice.” 20 678. 21 legal theory or sufficient facts to support a cognizable legal 22 theory.” 23 1104 (9th Cir. 2008); see also Twombly, 550 U.S. at 561-63. 24 A complaint does not suffice “if it tenders ‘naked 25 assertion[s]’ devoid of ‘further factual enhancement.’” 26 U.S. at 678 (quoting Twombly, 550 U.S. at 556). 27 facial plausibility when the plaintiff pleads factual content that 28 allows the court to draw the reasonable inference that the However, Id. at Dismissal is proper if the complaint “lacks a cognizable Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 5 Iqbal, 556 “A claim has 1 defendant is liable for the misconduct alleged.” 2 need not accept as true “legal conclusions merely because they are 3 cast in the form of factual allegations.” 4 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). 5 Id. The Court Warren v. Fox Family Federal district courts review de novo agency denials of 6 naturalization applications for U.S. citizenship. 7 1421(c). 8 conclusions of law and shall, at the request of the petitioner, 9 conduct a hearing de novo on the application.” 8 U.S.C. § The court “shall make its own findings of fact and Id. “[T]he 10 district court has the final word and does not defer to any of the 11 [agency’s] findings or conclusions.” 12 359 F.3d 1144, 1162 (9th Cir. 2004) (emphasis omitted). 13 III. DISCUSSION 14 United States v. Hovsepian, The Government Defendants seek for this Court to dismiss 15 Plaintiff’s petition because they argue the facts presented by 16 Plaintiff do not satisfy the legal prerequisites for 17 naturalization. 18 contends that in the forms Plaintiff attached to his complaint, 19 Plaintiff admitted he did not live in the same residence as his 20 wife when he filed his application for naturalization. 21 admission, the Government argues, prevents Plaintiff from 22 naturalizing because the statute requires Plaintiff to actually 23 live in the same residence — under the same roof — as his spouse in 24 order to fulfill the statutory requirement of three years of 25 marital union. 26 (Mot. Dismiss at 2.) Specifically, the Government (Id.) This (Id. at 8-9.) Plaintiff argues that he was living in marital union as the 27 statute requires when he applied for naturalization. 28 5.) (Opp’n at 4- Plaintiff relies on In re Olan, 257 F. Supp. 884 (S.D. Cal. 6 1 1966), to argue that the statute’s “marital union” requirement can 2 be satisfied by spouses who are still legitimately married although 3 not physically living together. 4 Plaintiff and his wife did not live physically together, they 5 continued to live in marital union because they were still 6 legitimately married; they “continued to work on their marriage and 7 had no intentions of permanently separating nor took any steps to 8 execute a divorce.” 9 belongings at the Cherry Avenue residence with his wife and “always (Opp’n at 5.) (Id. at 6.) Thus, while Plaintiff claims he left his 10 had the intention of returning to reside with his wife after they 11 had solved their marital issues.” 12 (Id. at 7.) Plaintiff also argues that to the extent that he was separated 13 from his wife, it was an “informal separation” that “must be 14 evaluated on a case-by-case basis” to determine if the separation 15 actually signifies the end of the marital union. 16 factual question that cannot be decided on a motion to dismiss, 17 Plaintiff claims. 18 finding that Plaintiff had given false testimony to gain an 19 immigration benefit, thus preventing him from naturalizing, was 20 based on the erroneous view that Plaintiff was not living in 21 marital union with his wife. 22 false testimony is also a question of fact because it requires a 23 determination of Plaintiff’s subjective intent, he argues; thus, 24 this is not appropriate for determination on the pleadings. 25 at 8.) 26 (Id.) (Id.) This is a Lastly, Plaintiff explains that the USCIS (Id. at 7-8.) Whether Plaintiff gave (Id. The Government responds that Plaintiff’s reliance on In re 27 Olan is inapposite because the case dealt with a previous version 28 of the agency’s regulations interpreting the statutory requirement. 7 1 (Reply at 3.) Now, the Government argues, there are new regulatory 2 sections that interpret the statute and they are entitled to 3 Chevron deference. 4 new regulations result in a material difference in the outcome in 5 this case from that in In re Olan. (Id. at 4.) The Government claims that these (Id.) 6 Further, the Government claims that the regulatory language 7 that Plaintiff relies on for his informal separation argument is 8 inapplicable here. 9 USCIS policy manual explaining how the agency interprets its (Id. at 5-6.) The Government relies on its 10 regulation, which the Government argues is entitled to deference 11 because the interpretation is “neither plainly erroneous nor 12 inconsistent with the regulation.” 13 that the informal separation analysis only applies to married 14 persons who are still living together in the same residence. 15 Therefore, the Government claims, based on Plaintiff’s own 16 admissions, he does not qualify as living in marital union or as 17 informally separated, and so the Court should grant the Motion to 18 Dismiss. (Id. at 6.) The policy states (Id.) (Id. at 6-7.) 19 A. 20 Plaintiff has brought his application for naturalization as a Statutory and Regulatory Framework 21 LPR who has been married to a U.S. citizen for at least three 22 years. 23 Plaintiff must meet to be eligible for such an application. 24 Relevant here, 8 U.S.C. § 1430(a) requires Plaintiff to show that 25 “during the three years immediately preceding the date of filing 26 his application [he] has been living in marital union with the 27 citizen spouse.” 28 marital union” means in this context. (Compl., Ex. 1.) There are several statutory prerequisites Congress has not further defined what “living in 8 1 The agency entrusted with implementing the immigration laws, 2 currently the Department of Homeland Security of which USCIS is a 3 part, has issued regulations regarding this statutory requirement. 4 The most important here, 8 C.F.R. § 319.1, is entitled, “Persons 5 living in marital union with United States citizen spouse,” and it 6 explains the eligibility requirements under section 319(a) of the 7 Immigration and Nationality Act, 8 U.S.C. § 1430(a). 8 three year “living in marital union” requirement is repeated in 8 9 C.F.R. § 319.1(a)(3). The same Under subsection (b) of the regulation, 10 there are two main subparts, “(1) General” and “(2) Loss of Marital 11 Union,” and these two subparts provide specific definitions for the 12 “living in marital union” requirement: 13 14 15 16 (b) Marital union — (1) General. An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part. 17 (2) Loss of Marital Union — 18 (i) Divorce, death or expatriation. . . . 19 (ii) Separation — 20 21 (A) Legal separation. Any legal separation will break the continuity of the marital union required for purposes of this part. 22 23 24 25 26 27 28 (B) Informal separation. Any informal separation that suggests the possibility of marital disunity will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union. (C) Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service . . . or essential business or occupational demands, 9 1 rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part. 2 3 4 8 C.F.R. § 319.1(b). 5 B. Chevron Deference 6 When an agency promulgates regulations interpreting and 7 enacting statutes that the agency is entrusted to administer and 8 execute, such regulations are entitled to Chevron deference under 9 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 10 467 U.S. 837, 844-45 (1984). 11 involves two questions, or steps. 12 Congress has directly spoken to the precise question at issue”; if 13 so, the analysis ends there because Congress’s action or 14 interpretation would control. 15 second step “is whether the agency’s answer is based on a 16 permissible construction of the statute.” 17 Congress has explicitly left a gap for the agency to fill, there is 18 an express delegation of authority to the agency to elucidate a 19 specific provision of the statute by regulation. 20 regulations are given controlling weight unless they are arbitrary, 21 capricious, or manifestly contrary to the statute.” 22 If the delegation is less than explicit, then “a court may not 23 substitute its own construction of a statutory provision for a 24 reasonable interpretation made by the administrator of an agency.” 25 Id. at 844. 26 The application of Chevron deference First, the court asks “whether Id. at 842-43. If not, then the Id. at 843. “If Such legislative Id. at 843-44. The Court finds, consistent with all the other courts to have 27 examined the issue as cited by the Government, that the agency’s 28 regulation at 8 C.F.R. § 319.1 is entitled to Chevron deference. 10 1 Congress has not directly spoken on the definition of “living in 2 marital union” from its statute, 8 U.S.C. § 1430(a). 3 second step of Chevron comes into action here, and the Court finds 4 that the agency’s answer — its interpretation of “living in marital 5 union” as provided in 8 C.F.R. § 319.1 — is based on a permissible 6 and reasonable construction of the statute. Thus, the 7 C. 8 Plaintiff relies heavily on In re Olan to argue that the 9 In re Olan and Regulatory Amendments agency’s regulation does not require him to live under the same 10 roof as his citizen spouse in order to be “living in marital 11 union.” 12 language of the agency’s regulation, held that “‘living in marital 13 union’ means simply living in the status of a valid marriage.” 14 re Olan, 257 F. Supp. at 890. 15 policy of protecting families as supporting its holding: 16 17 18 The district court in In re Olan, examining the pre-1991 In The court continued, explaining the Surely, preservation of the family unit should be our touchstone in construing the phrase ‘in marital union.’ And just as surely our inquiry should begin and end with a valid marriage, entered into and begun in good faith, and still continuing and in existence as a legal status. 19 Id. at 891. 20 marital relations would be “utterly insufferable” and 21 inappropriate. 22 and marital discord does not necessarily spell the end of marital 23 union, even where physical separation is a part of the situation: 24 25 26 27 28 The court postulated that any deeper inquiry into Id. The court noted that families are individual, Suppose a marital spat between alien wife and citizen spouse. The husband takes his sports gear and goes fishing for two or three or four months in Canada or New Zealand; or skiing in Europe; or just loafing and painting in Tahiti. Does this mean neither husband nor wife is ‘living in marital union?’ Or the wife takes the baby and enough gear for a two or three month stay and packs self and baby off to mother? Again, can it be said that the ‘living in marital union’ has ended? 11 1 Obviously not. The status continues; marriage continues; the marital union continues; all rights, all duties, all obligations, all responsibilities of the marital union continue. They do not die, they cannot end — the marital union itself does not die and it cannot end — until there has been an end to the status by death or by judgment and decree of court, which in California is and must be a final decree of divorce. 2 3 4 5 6 Id. 7 still living in martial union with her husband despite her husband 8 moving physically out of the home for several months before the 9 plaintiff filed her application for naturalization and as they Therefore, the court found in that case that the plaintiff was 10 remained physically separated during her application process. 11 at 888, 891. 12 Id. However, In re Olan was decided before the 1991 amendments to 13 the agency’s regulation interpreting “living in marital union.” 14 See 56 Fed. Reg. 50,475, 50,488 (Oct. 7, 1991), 1991 WL 198206 15 (“1991 amendment”). 16 of subsection (b) to 8 C.F.R. § 319.1 clarifies that what the court 17 in In re Olan was afraid of — the invasion into the married life of 18 an applicant — is required by the statute because more than just a 19 valid marriage is required for marital union. 20 The Government argues that the 1991 addition (See Reply at 3-4.) The Government argues that this amended regulation is entitled 21 to Chevron deference “because it interprets the statutory ‘marital 22 union’ requirement in a way that effectuates congressional intent.” 23 (Id. at 4.) 24 not explicitly state that “marital union” means “a mere valid 25 marriage,” that instead “requiring spouse[s] to actually share a 26 residence better fulfills congressional intent.” 27 Government claims that to hold otherwise would be to encourage The Government’s theory is that because Congress did 28 12 (Id.) The 1 “sham marriages.” 2 115, 120 (S.D.N.Y. 1982).) 3 (Id. citing Petition for Bashan, 530 F. Supp. The Court agrees that Chevron deference is owed to the 4 agency’s regulations, including the amendments in 1991. 5 same policy concerns that animated the court in In re Olan are 6 still relevant to the analysis of the statute and amended 7 regulation today. But the 8 D. 9 Based on the Court’s research, the Ninth Circuit has not yet Interpretation of the Regulation 10 interpreted or discussed the language “living in marital union” 11 from the regulation. 12 several cases from other Circuits and from district courts across 13 the nation that have undertaken such interpretation. 14 at 9 (collecting cases).) However, as the Government notes, there are (Mot. Dismiss 15 The Government argues that the weight of authority supports 16 its position that “living in marital union” from 8 U.S.C. § 1430 17 and 8 C.F.R. § 319.1 “can be satisfied only by an applicant who 18 resides under the same roof as his or her citizen spouse.” 19 Dismiss at 8.) 20 language, 21 (Mot. The Government understands 8 C.F.R. § 319.1(b)(1)’s 22 An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. 23 to mean that the spouses must literally live under the same roof in 24 order to live in marital union. 25 (Mot. Dismiss at 8-9.) Looking at the regulation’s plain meaning and structure, there 26 are two equal subsections to “(b) Marital Union”: there is 27 subsection “(1) General” and subsection “(2) Loss of Marital 28 Union.” 8 C.F.R. § 319.1(b). The language of the regulation in 13 1 (b)(1)’s “General” requirement states that living in marital union 2 means “the applicant actually resides with his or her current 3 spouse.” 4 the language of the regulation is “actually resides,” not “same 5 roof.” 6 individuals live. 7 “residence” as “[t]he act or fact of living in a given place for 8 some time . . . [t]he place where one actually lives, as 9 distinguished from a domicile.” Id. § 319.1(b)(1) (emphasis added). The Court notes that However, the usual meaning of “residence” is where For example, Black’s Law Dictionary defines Residence, Black’s Law Dictionary 10 (10th Ed. 2014). 11 “residence” is “the place, especially the house, in which a person 12 lives or resides; dwelling place; home.” 13 House College Dictionary 1123 (Rev. Ed. 1980). 14 regulation in subsection (b)(1) provides for living in marital 15 union where spouses reside and live together in the same place. 16 Put another way, the Court sees subsection (b)(1) to provide the 17 traditional, usual situation of living in marital union, where 18 spouses are living together under the same roof. 19 are validly married and live together under the same roof, no 20 further questions need be asked; this would end the analysis under 21 the regulation. An ordinary dictionary definition provides that a Residence, The Random Thus, the If the spouses 22 However, as Plaintiff noted in his Opposition, there is 23 another part to subsection (b) of 8 C.F.R. § 319.1 besides subpart 24 (1). 25 situations where there is a loss of marital union, including where 26 a spouse dies or expatriates, or when a divorce occurs. 27 three situations, the regulation states that “the marital union 28 ceases to exist due to death or divorce, or the citizen spouse has The second subpart, (b)(2), provides definitions for 14 In those 1 expatriated.” 8 C.F.R. § 319.1(b)(2)(i). Subpart (b)(2) also 2 explains what happens when there is a separation in the marriage. 3 Unlike the case with death, divorce, and expatriation, there is not 4 one simple answer to situations where spouses are separated, and 5 the regulation draws distinctions between three different 6 separations: legal, informal, and involuntary. 7 319.1(b)(2)(ii)(A)-(C). 8 C.F.R. § 8 Subpart (b)(2)(ii)(B) provides agency guidance for what 9 “marital union” means in the context of an “informal separation,” 10 and Plaintiff argues that this subpart applies to his situation. 11 (See Opp’n at 7.) 12 of the regulation does not apply to Plaintiff because “USCIS has 13 interpreted it to apply only in cases of informal separation where 14 the spouses continue to live in the same household.” The Government’s position is that this subpart (Reply at 5.) 15 E. 16 In arguing that the informal separation section of the Agency Policy 17 regulation does not apply to Plaintiff’s situation, the Government 18 relies on a USCIS policy manual’s interpretation of the regulation 19 on informal separation, which states: 20 21 22 In many instances, spouses will separate without obtaining a judicial order altering the marital relationship or formalizing the separation. An applicant who is no longer actually residing with his or her U.S. citizen spouse following an informal separation is not living in marital union with the U.S. citizen spouse. 23 24 25 26 27 28 However, if the U.S. citizen spouse and the applicant continue to reside in the same household, an officer must determine on a case-by-case basis whether an informal separation before the filing of the naturalization application renders an applicant ineligible for naturalization as the spouse of a U.S. citizen. Under these circumstances, an applicant is not living in marital union with a U.S. citizen spouse during any period of time in which the spouses are informally separated if such separation suggests the possibility of marital disunity. 15 1 12 USCIS Policy Manual pt. G, ch. 2(A)(1), available at www.uscis 2 .gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter2.html 3 (emphasis added). 4 In making the case-by-case analysis, the USCIS policy requires 5 officers to consider factors such as the length of separation, the 6 continued support of the family, the spouses’ intentions, and 7 whether the spouses became involved with other individuals in 8 relationships. 9 Government contends, the fact that informal separations still Id. This policy interpretation supports, the 10 require the spouses to actually live together, and again the 11 Government means under the same roof. 12 (Reply at 6.) The Government argues that the USCIS policy manual’s 13 interpretation of the regulatory language is entitled to judicial 14 deference, citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 15 414 (1945). 16 Reply brief, stating that the Court “should defer to USCIS’s 17 limitation of Section 319.1(b)(2)(ii)(B) as applying only where the 18 parties still reside together” because “USCIS’s understanding of 19 its own regulation is neither plainly erroneous nor inconsistent 20 with the regulation.” 21 at 414).) 22 interpretation, section 319.1(b)(1) “screens for spouses who do not 23 reside together” and (b)(2)(ii)(B) “acts as a more discerning tool 24 that USCIS can use to detect marital disunion when spouses have 25 informally separated but still reside together.” 26 The Government maintains that such an interpretation of the two 27 regulatory sections “synthesizes and gives effect to both 28 regulatory provisions.” The Government raises Seminole Rock deference in its (Reply at 6 (citing Seminole Rock, 325 U.S. The Government contends that under the policy manual’s (Id.) 16 (Reply at 6.) 1 Seminole Rock provides for judicial deference to agency 2 interpretation of ambiguous regulations. 3 this involves an interpretation of an administrative regulation a 4 court must necessarily look to the administrative construction of 5 the regulation if the meaning of the words used is in doubt.” 6 U.S. at 413-14 (emphasis added). 7 interpretation of its own regulation is used “unless it is plainly 8 erroneous or inconsistent with the regulation.” 9 also Auer v. Robbins, 519 U.S. 452, 461 (1997). 10 The case states, “[s]ince 325 In such an instance, the agency’s Id. at 414; see Chevron deference is owed to regulations interpreting statutes 11 because, in part, of the notice and comment rulemaking process and 12 other procedural safeguards. 13 when agencies make policies, which is why there is a different 14 rationale for deference. 15 applying its rule1 are for situations where an agency’s regulation 16 has ambiguous language or application. 17 Cnty., 529 U.S. 576, 588 (2000) (“But Auer deference is warranted 18 only when the language of the regulation is ambiguous.”) 19 regulation is ambiguous, it makes sense to have some level of 20 deference to the agency that promulgated it. 21 regulation is not ambiguous and it was properly adopted through 22 notice and comment rulemaking procedures, changing the meaning of 23 the regulation by adding an interpretive “gloss” on the regulation 24 is not entitled to judicial deference. However, such processes are absent Seminole Rock and the subsequent cases See Christensen v. Harris When a However, where the Nor should it be, as such a 25 1 26 27 28 The Court notes recent Supreme Court cases calling into question but not overruling the Seminole Rock rule. See, e.g., Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1210-25 (2015) (Alito, J., concurring in part and in the judgment) (Scalia, J., concurring in the judgment); Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2168-69 (2012). 17 1 gloss did not have the same procedural safeguards as did the 2 unambiguous regulation at their respective creations. 3 Here, the Court finds that the agency’s regulation at 8 C.F.R. 4 § 319.1(b) is unambiguous and Seminole Rock deference does not 5 apply to the agency’s policy manual purporting to interpret the 6 regulation further. 7 structure also contradict the proposed construction in the USCIS 8 policy manual, so even under Seminole Rock the policy would be 9 entitled to less weight because the policy is inconsistent with the 10 11 The plain meaning of the regulation and its regulation’s plain language. Examining the regulatory language, subpart (b)(2)(ii) has 12 three parts dealing with different kinds of separation. 13 Informal separation” part states that “[a]ny informal separation 14 that suggests the possibility of marital disunity will be evaluated 15 on a case-by-case basis to determine whether it is sufficient 16 enough to signify the dissolution of the marital union.” 17 § 319.1(b)(2)(ii)(B) (emphasis added). 18 informal separation, not only informal separations where the 19 parties remain living in the same place. 20 plainly deals with situations which may suggest the possibility of 21 marital disunity. 22 disunity often involve some kind of change in residence, whether it 23 be from the bedroom to the couch or from the house to a hotel. 24 The “(B) 8 C.F.R. The language is clear — any Further, the regulation Situations that are likely to suggest marital Further, the language of residence is not present in two out 25 of the three separation scenarios, but it is mentioned in “(C) 26 Involuntary separation.” 27 event that the applicant and spouse live apart because of 28 circumstances beyond their control . . . rather than because of There, the regulation states: “In the 18 1 voluntary legal or informal separation, the resulting separation, 2 even if prolonged, will not preclude naturalization under this 3 part.” 4 language also plainly points out that there are situations where 5 voluntary legal or informal separations will involve spouses living 6 apart. 7 that the spouses have taken a legal step to formalize marital 8 disunity and they are, for all intents and purposes, essentially 9 divorced in the eyes of the law; this is why the regulation states 8 C.F.R. § 319.1(b)(2)(ii)(C) (emphasis added). This In the legal separation scenario, the controlling fact is 10 that spouses who take this step are not living in marital unity. 11 See id. § 319.1(b)(2)(ii)(A). 12 however, the regulation accounts for the more messy situation by 13 requiring a case-by-case analysis, regardless of where the spouses 14 are actually living. 15 In the informal separation scenario, USCIS could have phrased its regulation to include language of 16 residence in (b)(2), as it did in (b)(1), or it could have had 17 residence be the test for “living in marital union,” full stop — 18 but it did not, as it included further tests and explanation in 19 (b)(2) for the loss of marital union. 20 and comment rulemaking, could amend the regulation to reflect its 21 desire for a rule requiring actual residence in one household for 22 informally separated couples. 23 The agency, through notice But such an understanding cannot be held against Plaintiff in 24 this case because that is not the law evident on the face of the 25 agency’s unambiguous regulation. 26 interpretation is not apparent from the plain language of the 27 regulation. 28 otherwise unambiguous regulatory section. The agency’s proposed The policy seeks instead to add language to an 19 Such an interpretation 1 would conflate two separate and equally weighted subparts of 2 subsection (b) defining living in marital union. 3 that such an interpretation is not warranted because of the 4 unambiguous statutory language and because to adopt such a policy 5 would be inconsistent with the plain language of the statute.2 6 The Court finds Thus, the Court is left with a regulation entitled to Chevron 7 deference that provides two equally weighted subsections defining 8 “marital union” — one section provides the “general” situation of 9 spouses living together, the other section provides for how marital 10 union can be lost, such as when spouses do not live together. 11 case-by-case analysis is required for informal separations because 12 in that situation, the spouses may not live together in the same 13 residence, but they also have not changed the legal status of their 14 marriage. 15 16 A Marriage is a complicated but ultimately rewarding and crucially important part of life that, when preserved, even if just 17 2 18 19 20 21 22 23 24 25 26 27 28 The Court also notes that the agency’s policy interpretation appears to lead to untenable results: A couple who has lived together under the same roof for three years applies for the noncitizen spouse to naturalize. One night, sometime before the interview for naturalization, the spouses have a terrible fight; they informally separate, and the alien spouse leaves the household and spends the night alone in a hotel. Thereafter, the spouses resume residence under the same roof. At the naturalization interview, the alien spouse is asked if the couple has lived in marital union — actually resided together — for the three years prior to applying and since applying. Would the alien spouse be lying if he or she responded no? What if the stay at the hotel was for a week, a month, a year? What if it preceded the application to naturalize? Under the plain language of the USCIS policy, it appears that the one night of nonresidence — meaning not under the same roof — could be fatal to this application. The policy does not include any indication of a minimum time that the spouses have to not share the same roof to restart the clock on marital unity, or even just fully end marital union. That is an untenable result logically, and not called for based on the plain language of the regulation. 20 1 barely, should be entitled to at least the respect of an 2 individualized determination of its continued vitality. 3 respects the fact that USCIS seeks to prevent fraudulent marriages 4 and the concomitant cheating of the naturalization scheme, but the 5 Court also believes that the regulation as unambiguously adopted 6 provides for ways to determine such fraudulent marriages through a 7 case-by-case analysis of complicated situations. 8 9 The Court The problem is that the proposed policy interpretation excludes legitimate but physically separated marriages while 10 allowing fraudulent marriages where individuals with no intention 11 of actually being married continue to live together under one roof, 12 as would roommates. 13 meaning nonfraudulent ones — may involve situations where the 14 spouses do not live together, whether for informal separations with 15 the intention to remain validly married while a fight or personal 16 change is dealt with; or for involuntary separations where the 17 couple is validly married but one spouse is deployed in the 18 military or working abroad or across the state. 19 But the regulation notes that real marriages — Absent Ninth Circuit or other controlling precedent holding 20 otherwise, the Court declines to interpret the statutory and 21 (unambiguous) regulatory provisions as requiring the Government’s 22 proposed “same roof” living arrangement for informal separations. 23 Marital unions are as diverse as the people who make up the union, 24 and there are surely many variations of sleeping and living 25 arrangements that are appropriately considered “living in marital 26 union.” 27 that a marital spat resulting in some physical separation cannot be 28 addressed as just that, and not the ending of a marriage — The Court hesitates to draw “marital union” so narrowly 21 1 particularly where the regulation providing for informal 2 separations does not require such a result. 3 regulation does not require a contrary result. 4 case analysis is warranted in situations where an informal 5 separation has taken place, as the regulation provides. The agency’s Instead, a case-by- 6 F. Application to Plaintiff’s Case 7 Taking all well-pled facts as Plaintiff has alleged them, as 8 the Court must at the motion to dismiss stage, the Court finds that 9 Plaintiff has alleged sufficient facts to show he was living in 10 marital union with his wife and thus is potentially eligible for 11 naturalization. 12 family residence at Cherry Avenue in May 2010 because of a change 13 in his wife’s “personal preference,” a highly intimate matter. 14 (Compl. at Ex. 6.) 15 wife regularly, they own property together, and they are trying to 16 resolve their marital differences. 17 lived with the mother of his two children is that he remains 18 supportive of them for his children’s sake and had no other place 19 to go during his marital issues. 20 permission before moving the mother and his children into the condo 21 that Plaintiff owned with his wife. 22 Plaintiff alleges that he did move out of the However, according to Plaintiff, he sees his (Id.) (Id.) The reason Plaintiff He asked his wife’s (Id.) All of this points to Plaintiff’s intention to stay with his 23 wife in a legitimate marriage despite the current physical 24 separation, which has them living in the same city, although 25 sleeping at different homes. 26 necessary to determine the merits of Plaintiff’s claim, but at the 27 pleading stage, Plaintiff has sufficiently shown that he has stated More factual development will be 28 22 1 a claim because the facts as pled show an informal separation, not 2 a clear end to the marital union. 3 IV. 4 5 CONCLUSION Based on the reasons stated above, the Court DENIES Defendants’ Motion to Dismiss. 6 7 IT IS SO ORDERED. 8 9 Dated: February 9, 2016 DEAN D. PREGERSON United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23
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