Osserritta ROBINSON v. Janet NAPOLITANO, Secretary of the Department of Homeland Security; Michael Aytes,* Acting Deputy Director, U.S. Citizenship and Immigration Services, Appellants,, 554 F.3d 358

OPINION OF THE COURT SLOVITER, Circuit Judge. The issue before us is whether an alien married to a United States citizen remains an “immediate relative,” within the meaning of the Immigration and Nationality Act (“INA”), if the couple had been married for less than two years when her citizen spouse died. It is an issue this court has never addressed. I. Factual and Procedural History Osserritta Robinson (“Robinson”), a citizen and national of Jamaica, entered the United States on January 14, 2002, as an non-immigrant visitor on a B-2 visa and married Louis Robinson (“Mr.

Robinson”), a United States citizen, in February 2003. In March 2003, Mr. Robinson filed a Petition for Alien Relative (“1-130 petition”) for an immigrant visa on behalf of his wife as an “immediate relative.” At the same time, Robinson filed an 1-485 application to adjust her immigration status to that of a lawful permanent resident (“LPR”). Mr. Robinson died on October 15, 2003, in the Staten Island Ferry accident. On October 15, 2005, the U.S. Citizenship and Immigration Services (“USCIS”) informed Robinson that her 1-130 petition had been automatically terminated upon the death of her husband.

According to USCIS, Robinson was no longer an “immediate relative” within the meaning of the INA because her husband’s death occurred before the couple had been married for two years. Robinson filed a petition for a writ of mandamus and a complaint for declaratory and injunctive relief in the United States District Court for the District of New Jersey against Michael Chertoff, the Secretary of the Department of Homeland Security, and Emilio Gonzalez, Director, U.S.

Citizenship and Immigration Services, requesting that the court order USCIS to reopen her 1-130 petition and 1-485 application and treat her as an “immediate relative” of a United States citizen. The complaint also asked the court “to enjoin USCIS from using the death of Mr. Robinson as a discretionary factor in adjudicating Mrs. Robinson’s 1-485 application.” Robinson v. Chertoff, No. 06-5702, 2007 WL 1412284, at * 1 (D.N.J. May 14, 2007). The District Court denied the Government’s motion to dismiss and granted

summary judgment in favor of Robinson. Thereupon, the District Court set aside USCIS’ determination that Robinson was not a spouse, ordered USCIS to process her 1-130 petition and 1-485 application, and granted a declaratory judgment that Robinson “is an immediate relative under 8 U.S.C. § 1151(b)(2)(A)® and for the purposes of adjudicating an 1-130 petition.” App. at 14. The Government appeals. II. Jurisdiction and Standard of Review The District Court had jurisdiction under 28 U.S.C. § 1331 and

Section 704 of the APA, 5 U.S.C. § 704, to review the meaning of the term “immediate relative” as it appears in 8 U.S.C. § 1151(b)(2)(A)®. Because this is a “purely legal question and does not implicate agency discretion,” the INA’s jurisdictional bar, 8 U.S.C. § 1252(a)(2)(B)(ii), which precludes judicial review of most discretionary immigration decisions, is not applicable in this case. Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir.2005). We have jurisdiction under 28 U.S.C. § 1291. “We exercise plenary review of the District Court’s statutory

interpretation, but afford deference to a reasonable

interpretation adopted by the agency.” Pinho, 432 F.3d at 204. III. Statutory Scheme A United States citizen who seeks to gain lawful permanent resident status for an eligible family member must begin the process by filing an 1-130 petition with USCIS on behalf of an alien who is an “immediate relative.” 8 U.S.C. §§ 1151 (b)(2) (A) (i), 1164(a)(l)(A)(i); 8 C.F.R. § 204.1(a)(1).

Concurrently, or thereafter, the alien spouse for whom the 1-130 petition was filed (the “immediate relative”) must file an 1-485 application for adjustment of status. 8 U.S.C. § 1255(a); 8 C.F.R. § 245.1(a). “Immediate relatives” are defined in the INA as: [T]he children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.

In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen’s death and was not legally separated from the citizen at the time of the citizen’s death, the alien ... shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen’s death but only if the spouse files a petition under

section 1154(a)(l)(A)(ii) of this title [an 1-360 petition] within 2 years after such date and only until the date the spouse remarries. 8 U.S.C. § 1151(b)(2)(A)© (emphasis added). USCIS “shall” approve the 1-130 petition filed by the citizen spouse only if it determines, after an investigation, “that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative.” 8 U.S.C. § 1154(b).

Approval of the 1-130 petition renders the immediate relative eligible for adjustment of status under 8 U.S.C. § 1255(a), which provides, in pertinent part: The status of an alien ... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. 8 U.S.C. § 1255(a).

Because immediate relative visas are not subject to numerical visa limitations, 8 U.S.C. § 1151(b)(2)(A)©, once the 1-130 petition is approved the “immigrant visa is immediately available” to the alien spouse at the time her 1-485 application is filed, 8 U.S.C. § 1255(a). Thus, eligibility to adjust status to that of an LPR is contingent upon approval of the 1-130 petition. IV. Discussion Robinson argues that she remained an “immediate relative” within the meaning of 8 U.S.C. § 1151(b)(2)(A)® after the death of her husband.

The Government counters that Robinson is no longer a “spouse” eligible to be considered an “immediate relative” because she had not been married to her citizen spouse for two years at the time of his death. The Government reads the second sentence of

section 1151 (b)(2)(A)(

i) as qualifying the term “spouse” in the first sentence of the section. In other words, the Government argues that a spouse remains an “immediate relative” within the meaning of the INA after the death of his or her citizen spouse only if the couple had been married for two years at the time of the citizen’s death. Robinson argues in response that because the first sentence of the provision does not in any way qualify the term “spouse,” she remains a spouse after her husband’s death.

She interprets the second sentence (which contains the two-year marriage requirement) as granting a separate right for widows to self-petition for visas rather than as a limitation on the definition of spouse. More than thirty-five years ago the Bureau of Immigration Appeals (“BIA”) considered the effect of a citizen spouse’s death on a pending petition for an immigrant visa on behalf of the alien spouse. In In re Varela, 13 I. & N. Dec. 453, 453-54 (B.I.A.1970), the BIA held that an alien spouse was no longer a “spouse” because her citizen spouse died prior to a determination of her 1-130 petition.

The Government argues that we should defer to the BIA precedent. The District Court, without even citing In re Varela, agreed with Robinson’s

interpretation of the immediate relative provision, relying on the reasoning of the Court of Appeals for the Ninth Circuit in Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.2006). The Ninth Circuit refused to accord deference to Varela because it stated that the BIA’s decision “lack[ed] ... statutory analysis, ... [and] is further undercut by the BIA’s later finding [in In re Sano, 19 I. & N. Dec. 299 (B.I.A.1985) ] that it was ‘extra-jurisdictional.’ ” Freeman, 444 F.3d at 1038 (citation added).

Instead, the Ninth Circuit held that the first and second sentences of the statutory provision “stand[] independent” of each other and provide for “two different processes, such that one or the other applies — either the citizen spouse petitions or, if he dies without doing so, the alien widow may do so.” Freeman, 444 F.3d at 1041 n. 14, 1042.

It reasoned that because the only limitation on the definition of “immediate relative” in the first sentence relates to alien parents (the grant of immediate relative status is limited to those whose citizen child is at least 21 years old) and “[t]here is no comparable qualifier to be a ‘spouse,’ ” the term “immediate relative” means the spouse of a U.S. citizen, “without exception.” Id. at 1039. Thus, according to that court, “Mrs.

Freeman qualified as the spouse of a U.S. citizen when she and her husband petitioned for adjustment of status, and absent a clear statutory provision voiding her spousal status upon her husband’s untimely death, she remains a surviving spouse.” Id. at 1039-40 (emphasis in original). The Freeman court rejected the Government’s argument that the second sentence implicitly qualifies the general definition of spouse by imposing a two-year marriage requirement.

Instead, it viewed the second sentence as applying “to those aliens whose citizen spouses did not initiate an adjustment of status proceeding before they died, granting such surviving spouses a beneficial right to file an immediate relative petition even without a living citizen spouse to vouch for the fact of the marriage.” Id. at 1041.

Relying on Freeman, the District Court held that Robinson remained an immediate relative after the death of her spouse and noted that, “[t]he Court cannot imagine that Congress intended the time of death combined with the pace of adjudication, rather than the petitioner’s conscious decision to promptly file an 1-130 petition, to be the proper basis for determining whether the alien qualifies as an immediate relative.” Robinson, 2007 WL 1412284, at *5.

Robinson argues that the death of her husband did not affect her status as an immediate relative which, she contends, “vested” at the time her husband filed the 1-130 petition. The Government contends that “immediate relative status” is not determined at the time the 1-130 petition was filed but at the time the petition is adjudicated. It supports that argument by noting that the present tense is used in 8 U.S.C. § 1154(b), the statutory provision governing the grant of immigrant visas.

This provision states that the Attorney General (now the Secretary of Homeland Security) “shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in

section 1151(b) ..., approve the petition.” 8 U.S.C. § 1154(b) (emphasis added). The District Court believed that the fact that “the statute is written in the present tense is not particularly significant,” Robinson, 2007 WL 1412284, at *4, but we disagree. The use of the present tense in 8 U.S.C. § 1154(

b) belies Robinson’s contention that an alien’s marital status at the time of filing the 1-130 petition controls, and makes plain that the facts in the petition — including the alien’s spousal status— must be true at the time USCIS decides the petition. The present tense is also used in the

section governing adjustment of status, which provides that the Attorney General may adjust the status of an alien if: (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. 8 U.S.C. § 1255(a) (emphasis added).

Robinson relies on the last clause of the subsection (“at the time his application is filed”) to argue that eligibility for immediate relative status at the time of filing the application is controlling. Robinson’s statutory construction of the provision is not persuasive. Instead, the natural reading of this provision is that the final clause applies to only the third requirement. See United States v.

Hodge, 321 F.3d 429, 436 (3d Cir.2003) (“The doctrine of the last antecedent teaches that ‘qualifying words, phrases, and clauses are to be applied to the words or phrases immediately preceding’ and not to ‘others more remote.’”) (quoting Resolution Trust Corp. v. Nern-berg, 3 F.3d 62, 65 (3d Cir.1993)). If the phrase, “at the time his application is filed” applied to more than the third requirement, its natural placement would be before the second as well as the third requirement.

In addition to her attempt to find support in the statutory language, Robinson also argues that under the regulations governing the processing of petitions her eligibility for a visa is to be determined at the time of filing.

She notes, for example, that 8 C.F.R. § 204.1(a)(1) provides that the citizen spouse must “file” Form 1-130 for a qualifying relative and 8 C.F.R. § 103.2(b)(12) provides that evidence in response to a request must establish eligibility at “time of filing.” However, these regulations merely set up the procedures by which a citizen petitions for a relative. 8 C.F.R. §§ 204.1(a)(1), 204.2(a)(1). They do not suggest that the agency must grant the application of a surviving spouse by considering only the marital status at the time the petition was filed.

Likewise, the regulation to which Robinson points that provides that the agency must deny the petition if it receives additional evidence that shows that the surviving spouse was not eligible at the time of filing, 8 C.F.R. § 103.2(b)(12), merely shows that eligibility at the time of filing is a necessary condition for the grant of a petition; it does not establish that eligibility at that time is sufficient if the citizen spouse dies before the adjudication. As such, the regulations do not support Robinson’s argument.

Accordingly, we hold that eligibility for an immediate relative visa depends upon the alien’s status at the time USCIS adjudicates the 1-130 petition, not when that petition was filed. This becomes dis-positive in the situation when a citizen spouse dies before the citizen spouse and the alien were married for two years. The underlying issue of statutory construction is not complicated. To repeat,

section 1151 (b)(2)(A)(

i) provides: [T]he term “immediate relatives” means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen’s death and was not legally separated from the citizen at the time of the citizen’s death, the alien ... shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen’s death but only if the spouse files a petition under

section 1154(a)(1)CA)(ii) of this title within 2 years after such date and only until the date the spouse remarries. 8 U.S.C. § 1151(b)(2)(A)®. The first sentence of the immediate relative definition cannot be divorced from the second sentence. The first sentence provides a general definition of immediate relatives based on familial relationships to a U.S. citizen. In the same sentence, the definition of parent is qualified by adding that a parent is deemed an immediate relative only if his or her child is at least twenty-one years old.

The second sentence qualifies the definition of spouse by including as an immediate relative the widow or widower of a citizen spouse who died as long as s/he had been the spouse of the United States citizen for at least two years at the time of the citizen spouse’s death. For those surviving spouses who had been married for two years but for whom no petition for immediate relative status had yet been filed, the

section also provides an opportunity to remedy that gap by authorizing the surviving spouse to self-petition within two years of the death of the citizen spouse. The language and this

interpretation is straightforward. Significantly, the two-year marriage requirement applies to both groups of surviving spouses, those for whom the citizen spouse had filed the petition before his death and those for whom the citizen spouse had not filed the petition. The immediate relative provision contains one exception to the rule that the death of the citizen spouse terminates immediate relative status if the death occurs before the petition is granted, i.e., the exception covering the situation of a couple who had been married for two years at the time of the citizen-spouse’s death.

As we stated in United States v. McQuilkin, 78 F.3d 105 (3d Cir.1996), “It is a canon of statutory construction that the inclusion of certain provisions implies the exclusions of others. The doctrine of inclusio unius est exclusio alterius ‘informs a court to exclude from operation those items not included in a list of elements that are given effect expressly by the statutory language.’ ” Id. at 108 (quoting In re TMI, 67 F.3d 1119, 1123 (3d Cir.1995)).

As a result, we conclude that a spouse ceases to be an immediate relative when the citizen spouse dies unless the couple had been married at least two years at the time of death. In effect, the second sentence qualifies which spouses of deceased citizens are immediate relatives, just as the last clause of the first sentence qualifies which parents of citizens are immediate relatives.

Our reading of the immediate relative provision comports with the ordinary meaning of the term “spouse.” “A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning ... at the time Congress enacted the statute.” Per-rin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). The INA does not provide a helpful definition of the term “spouse” in its definitional section. 8 U.S.C. § 1101.

Instead, it negatively defines spouse by stating who is not a spouse: “The term [sic] ‘spouse’, “wife’, or ‘husband’ do not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.” 8 U.S.C. § 1101(a)(35). This cannot be considered a “definition” in any meaningful way because it repeats the terms it seeks to define and, as Robinson herself notes, “does not preclude common understandings of the term.” Appellee’s Br. at 7. Significantly, the INA’s definitional

section does provide statute-specific

definitions of other commonly-used terms such as “child,” which it defines to mean “an unmarried person under twenty-one years of age” who satisfies other specific requirements. 8 U.S.C. §§ 1101(b)(1), 1101(c)(1). In addition, the INA includes a definition of “parent” that expressly includes a “deceased parent.” 8 U.S.C. § 1101(c)(2). Congress’ choice to include specific

definitions of these common family words — child and parent — but not to include such a definition of spouse strongly suggests that the ordinary meaning of spouse at the time of the enactment of the immediate relative provision should control. See Perrin, 444 U.S. at 42, 100 S.Ct. 311.

The original immediate relative provision of the INA was enacted in 1965 and stated in pertinent part: “ ‘[IJmmediate relatives’ ... shall mean the children, spouses and parents of a citizen of the United States: Provided, That in the case of parents, such citizen must be at least twenty-one years of age.” Act to Amend the Immigration and Nationality Act, Pub.L. No. 89-236, § 1, 92 Stat. 911, 911 (1965) (codified as amended at 8 U.S.C. § 1151(b)(2)(A)(i)) (emphasis in original).

The common, ordinary meaning of spouse in 1965, according to Black’s Law Dictionary covering that period, was “[o]ne’s wife or husband.” Black’s Law Dictionary 1574 (4th ed.1951). That entry also cites a 1939 Oregon Supreme Court decision in which the Court separately defined “surviving spouse” to mean “the one, of a married pair, who outlives the other.” Ro-sell v. State Indus. Acc. Comm’n, 164 Or. 173, 95 P.2d 726, 729 (1939).

In 1990, Congress amended the INA to add the second sentence of the immediate relative provision, which, for the first time, extends the term to cover the situation of the death of the citizen spouse and includes the two-year marriage requirement. Immigration Act of 1990, Pub.L. No. 101— 649, 104 Stat. 4978, 4981 (1990). By that time, Black’s Law Dictionary had added the following to its definition of spouse: “ ‘surviving spouse’ is one of a married pair who outlive the other.” Black’s Law Dictionary 1402 (6th ed.1990).

We reject Robinson’s argument that the inclusion of “surviving spouse” in the 1990 Black’s Law Dictionary entry for “spouse” proves that she remains legally a spouse even though her husband is deceased. The fact that Black’s Law Dictionary’s entry for spouse defines “surviving spouse” separately disproves Robinson’s hypothesis. Moreover, to conclude that “spouse” and “surviving spouse” have the identical meaning is illogical and is contrary to our understanding of the legal effect of death on a marriage. The standard legal effect of death on marriage is that it terminates the legal union.

See 52 Am.Jur.2d Marriage § 8 (2000) (“[MJarriage ... is terminable only by death or presumption of death, or by a judicial decree of divorce, dissolution, or annulment.”). The domestic relations law of New Jersey (the state in which Robinson and her husband resided at the time of his death and the state in which this action was brought) also suggests that a marriage terminates upon the death of one spouse. See N.J. Stat. Ann. § 9:17-43(a)(l) (West 2002) (former husband is presumed to be father of child born within “300 days after the marriage is terminated by death, annulment or divorce”); N.J. Stat.

Ann. 2C:24-la(l) (West 2005) (belief that spouse is dead is defense to bigamy). The very language of the immediate relative provision distinguishes between a living spouse and a surviving spouse when it states that “an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen’s death ... shall be considered ... to remain an immediate relative.” 8 U.S.C. § 1151 (b)(2)(A)(i) (emphasis added). Because Robinson’s citizen spouse died before the couple was married for two years, Robinson does not qualify as an “immediate relative” under the INA.

Our dissenting colleague argues that Robinson will be removed because her petition “is stuck in the government’s bureaucracy.” Dissent typescript op. at 367. That misstates the facts and the law. We agree with the agency that Robinson’s claim must be rejected, not because of any government bureaucracy but because she does not meet one of the Congress’ requirements for immediate relative status, i.e., that she had been married to her citizen spouse for at least two years. Congress has imposed a requirement of a particular length of a petitioner/claimant’s pri- or marriage in a variety of situations.

For example, one of the ways in which a surviving spouse can qualify for veterans’ benefits is by showing that the surviving spouse was married to the veteran for one year or more. See 38 U.S.C. § 1304(2); see also 10 U.S.C. § 1447(7)(A) (Armed Forces Act); 42 U.S.C. §§ 416(b), (c) (Social Security Act). We are aware that the result of our holding is that Robinson is ineligible for LPR status as a result of a tragic accident that neither she nor her citizen spouse could have avoided or anticipated. But our obligation is to interpret the statute according to its language.

Our holding is consistent with the core purpose of the U.S. family-based immigration policy: the promotion of family unification for U.S. citizens and lawful permanent residents. See Act to Amend the Immigration and Nationality Act, Pub.L. 89-236, § 1, 79 Stat. at 911 (codified as amended at 8 U.S.C. § 1151(b)(2)(A)®); H.R.Rep.

No. 89-745, at 1, 12 (1965) (“Reunification of families is emphasized as the foremost consideration [of the legislation].”) Admittedly, inclusion of a surviving spouse as an immediate relative if s/he was married for two years also does not promote unification of the marital unit but Congress undoubtedly recognized that other considerations become relevant once the alien spouse builds increased ties with the United States. A marriage that lasted two years can be presumed to have been bona fide, and in that period the surviving spouse would have developed settled expectations.

Congress could reasonably determine that an alien with a pending I-130 petition who had been married to a U.S. citizen for less than two years at the time of the citizen spouse’s death is not entitled to LPR status. Congress created a balance between the goal of family unity and the legitimate expectations of an alien-spouse whose connections to the United States were likely to have become solidified during the two-year marriage period. V. Conclusion For the reasons set forth, we will reverse the order of the District Court and direct it to grant the Government’s motion to dismiss. .

For purposes of convenience, we will refer to them jointly as "Government.” . The District Court also denied Robinson's "request for injunctive relief limiting the discretion of the USCIS in adjudicating her I-485 application ... [because the] question has not been briefed and is not properly before the Court.” Robinson, 2007 WL 1412284, at *5. Robinson did not appeal that order. . The statute is gender neutral. Because in this case, the citizen spouse was a male, we refer to the gender as applicable to the facts. .

An 1-360 petition allows a widow/er of a U.S. citizen to self-petition if, inter alia, she or he was married for at least two years and the petition is filed within two years of the citizen spouse’s death. See 8 U.S.C. § 1154(a)(l)(A)(ii); 8 C.F.R. §§ 204.2(b), (i)(l)(iv). . In Sano, the BIA held that it had no jurisdiction to address an appeal by the beneficiary from the denial of a visa petition; the BIA held that it had authority to hear appeals by only a visa petitioner (i.e., the citizen spouse who filed a visa petition on behalf of his alien spouse, but died before its approval). 19 I. & N. Dec. at 301. .

The Homeland Security Act of 2002 transferred the authority to grant visas from the Attorney General to the Secretary of the Department of Homeland Security. Homeland Security Act of 2002, Pub.L. No. 107-296, § 402(4), 116 Stal. 2135, 2178 (codified at 6 U.S.C. § 202(4)). . The only other exceptions to the rule that immediate relative status terminates upon the death of the citizen spouse are in the cases of abused spouses or children of U.S. citizens and widows of members of the U.S. armed forces killed in combat.

A self-petition by an abused spouse or child “shall not [be] adversely affect[ed]” by the death of the citizen-abuser after the filing of a self-petition. 8 U.S.C. § 1154(a)(l)(A)(vi). Similarly, a widow of a member of the U.S. armed forces killed in combat "shall be considered ... to remain an immediate relative after the date of the citizen's death” if she self-petitions within two years and does not remarry. National Defense Authorization Act for Fiscal Year 2004, Pub.L. No. 108-136, § 1703, 117 Stat. 1392, 1693 (2003). There is no two-year marriage requirement in these situations. .

After the 1951 edition, no new or revised edition of Black’s was issued until the revised 4th edition was published in 1968. Black's Law Dictionary, (4th ed. rev. 1968). The 1968 edition’s definition of spouse is identical to the 1951 version quoted above. Id. . A regulation promulgated after the USCIS’s decision in this case provides that, if the two-year marriage requirement is satisfied when the spouse dies, the 1-130 immediate relative petition is automatically converted into a I-360 widow/er petition. 8 C.F.R. § 204.2(i)(l)(iv), as amended, 71 Fed.Reg. 35,-732, at 35,749 (2006).