Camila Maria Silva-Hernandez v. U.S. Citizenship and Immigration Services, Miami Florida , 701 F.3d 356 ( 2012 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15675
________________________
D. C. Docket No. 1:11-cv-21262-PCH
CAMILA MARIA SILVA-HERNANDEZ,
Plaintiff-Appellant,
versus
US BUREAU OF CITIZENSHIP
AND IMMIGRATION SERVICES,
MIAMI FLORIDA,
US ATTORNEY GENERAL, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 13, 2012)
Before MARCUS and BLACK, Circuit Judges, and EVANS,* District Judge.
PER CURIAM:
*
Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
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This appeal presents an issue of statutory interpretation arising from the
Cuban Adjustment Act of 1966 (CAA), Pub. L. No. 89-732, 80 Stat. 1161
(reproduced as a historical note to 8 U.S.C. § 1255). Camila Silva-Hernandez
contends that the pattern and practice delineated in Section 23.11(m)(2) of the
United States Citizenship and Immigration Services (Immigration Service)
Adjudicator’s Field Manual violates the plain and unambiguous language of the
CAA. Section 23.11(m)(2) dictates that the lawful permanent resident status of a
non-Cuban spouse cannot predate the date of the non-Cuban spouse’s marriage to
a Cuban national. After reviewing the statutory language, we conclude the
Immigration Service’s pattern and practice of limiting the date of lawful
permanent residence based on the date of marriage is contrary to the unambiguous
language of the CAA.
I. BACKGROUND
The relevant facts are undisputed. Silva-Hernandez is a native and citizen
of Brazil. On December 20, 2001, Silva-Hernandez was admitted to the United
States as a B-2 nonimmigrant visitor for pleasure, and overstayed her visa. On
August 27, 2010, she married Eduardo Hernandez, a native and citizen of Cuba
who had adjusted his status to lawful permanent resident under the CAA, and has
been a permanent resident since April 9, 2000.
2
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On October 5, 2010, Silva-Hernandez filed an application for adjustment of
status under the CAA based on her marriage to Hernandez. On February 10, 2011,
the Immigration Service approved Silva-Hernandez’s application. In approving
her application, the Immigration Service recorded her lawful permanent resident
status as of August 27, 2010, the date of her marriage, as provided in the
Immigration Service Adjudicator’s Field Manual.
Silva-Hernandez filed a Complaint against the Immigration Service1
seeking (1) an order declaring that the Immigration Service’s legal position and
practice regarding the rollback date for non-Cuban spouses and children violates
the plain and unambiguous language of Section 1 of the CAA and is an error of
law, as well as arbitrary and capricious; (2) an order declaring that the
Immigration Service’s refusal to create a record of Silva-Hernandez’s admission
for permanent residence as of a date thirty months prior to the filing of her
adjustment application or the date of her last arrival into the United States
(whichever date is later) is an error of law, and arbitrary and capricious; (3) an
order in the form of a writ of mandamus compelling the Immigration Service to
1
Silva-Hernandez’s Complaint was brought against the U.S. Bureau of Citizenship and
Immigration Services, Miami, Florida; U.S. Attorney General; Secretary for the Department of
Homeland Security; U.S. Citizenship and Immigration Services; and National Benefits Center,
U.S. Citizenship and Immigration Services. For ease of reference, we refer to the Immigration
Service as the opposing party throughout the opinion.
3
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create nunc pro tunc a record of Silva-Hernandez’s admission for permanent
residence as of April 5, 2008 (i.e., the date thirty months prior to the filing of her
adjustment application) and immediately issue her a new/corrected Permanent
Resident Card indicating a “Resident Since” date of April 5, 2008; and (4) an
order granting an injunction barring the Immigration Service from applying the
“rule” or “policy” delineated in Section 23.11(m)(2) of the Immigration Service’s
Adjudicator’s Field Manual regarding the rollback provisions for non-Cuban
spouses and children.
The parties filed competing motions for summary judgment. In granting the
Immigration Service’s motion for summary judgment and denying Silva-
Hernandez’s motion for summary judgment, the district court found that Section 1
of the CAA was ambiguous regarding whether a non-Cuban spouse is entitled to a
“rollback date” prior to the date of the qualifying marriage. The district court
concluded the CAA does not contain explicit language stating that non-Cuban
spouses are entitled to benefits arising prior to the date of the qualifying marriage.
Further, the district court found the statute presupposes the existence of a marital
relationship. Silva-Hernandez v. Swacina, 827 F. Supp. 2d 1352, 1357 (S.D. Fla.
2011).
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The district court then turned to the legislative history of the CAA to
determine Congress’s intent, and found that “a literal application of the CAA’s
spousal and rollback provisions, . . . would yield results that are absurd in light of
their legislative intent.” Id. at 1360. The court concluded Section 23.11(m)(2) of
the Immigration Service Adjudicator’s Field Manual was based on a permissible
construction of the statute, and was an interpretive rule entitled to judicial
deference. Id. at 1361-64.
On appeal, Silva-Hernandez asserts Section 1 of the CAA is not ambiguous.
The statute states, in what is known as the “rollback provision,” that “[u]pon
approval of such an application for adjustment of status, the Attorney General
shall create a record of the alien’s admission for permanent residence as of a date
thirty months prior to the filing of such an application or the date of his last arrival
into the United States, whichever date is later.” Pub. L. No. 89-732, § 1, 80 Stat.
1161, 1161 (as amended) (reproduced as a historical note to 8 U.S.C. § 1255).
The very next sentence provides: “The provisions of this Act shall be applicable to
the spouse and child of any alien described in this subsection, regardless of their
citizenship and place of birth, who are residing with such alien in the United
States . . . .” Id. Silva-Hernandez asserts our inquiry starts and stops with reading
these sentences, as they unambiguously state that Congress intended the rollback
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provision be applied to spouses and children of Cuban nationals, no matter their
nationality or citizenship. Thus, the Immigration Service’s pattern and practice of
limiting the date of lawful permanent resident status of a non-Cuban spouse based
on the date of the non-Cuban spouse’s marriage to the Cuban national violates the
plain and unambiguous language of the CAA.
The Immigration Service does not argue that any particular term in the
statute is ambiguous or has multiple meanings.2 Rather, the Immigration Service
hinges its argument on its assertion that the plain meaning of the CAA yields
absurd results. Specifically, the Immigration Service asserts that Silva-
Hernandez’s interpretation would accord a non-Cuban spouse benefits to which
the non-Cuban spouse is not otherwise entitled—rollback to a date on which the
non-Cuban spouse was not qualified for application under the CAA. Further,
according to the Immigration Service, the non-Cuban spouse could receive an
earlier adjustment date than the Cuban alien upon whom the non-Cuban spouse’s
application is based.
2
In fact, the Immigration Service devotes only two sentences in its brief to any argument
that the statute is ambiguous. The Immigration Service states that “Congressional intent is
ambiguous as it relates to whether derivative non-Cuban spouses are entitled to benefits
backdated to before the date of the qualifying marriage.” It further contends: “CAA Section 1
does not contain explicit language stating that non-Cuban spouses are entitled to benefits arising
prior to the date of the qualifying marriage.” This is the extent of the Immigration Service’s
argument that the statute is ambiguous.
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II. LANGUAGE OF STATUTE AND ADJUDICATOR’S FIELD MANUAL
Before we begin our discussion of the issue presented, we must first set out
the relevant language of the statute and Adjudicator’s Field Manual provision.
A. The Statute
Section 1 of the CAA provides, in pertinent part:
That, notwithstanding the provisions of section 245(c) of the
Immigration and Nationality Act, the status of any alien who is a
native or citizen of Cuba and who has been inspected and admitted or
paroled into the United States subsequent to January 1, 1959 and has
been physically present in the United States for at least one year, 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 the alien makes an application for such
adjustment, and the alien is eligible to receive an immigrant visa and
is admissible to the United States for permanent residence. Upon
approval of such an application for adjustment of status, the Attorney
General shall create a record of the alien’s admission for permanent
residence as of a date thirty months prior to the filing of such an
application or the date of his last arrival into the United States,
whichever date is later. The provisions of this Act shall be applicable
to the spouse and child of any alien described in this subsection,
regardless of their citizenship and place of birth, who are residing
with such alien in the United States, except that such spouse or child
who has been battered or subjected to extreme cruelty may adjust to
permanent resident status under this Act without demonstrating that
he or she is residing with the Cuban spouse or parent in the United
States.
Pub. L. No. 89-732, § 1, 80 Stat. 1161, 1161 (as amended) (reproduced as a
historical note to 8 U.S.C. § 1255).
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B. Immigration Service Adjudicator’s Field Manual Section 23.11
Section 23.11(m)(2) of the Immigration Service Adjudicator’s Field Manual
provides:
The non-Cuban spouse and children of a qualifying Cuban applicant
are entitled to the same rollback provisions as the principal alien.
However, their rollback date cannot precede the date of the qualifying
marriage. Although this rule has been adopted as a matter of policy,
it has no basis in statute or regulation. Rather, it is an application of
the general principle that a benefit cannot accrue to an alien before
eligibility exists.
III. DISCUSSION
The issue before us is whether the Immigration Service’s pattern and
practice, provided for in its Adjudicator’s Field Manual, of limiting a non-Cuban
spouse’s “rollback date” to the date of marriage, rather than recording a date thirty
months prior to the non-Cuban spouse’s filing of the application for adjustment of
status (or the date of the non-Cuban spouse’s arrival in the United States,
whichever is later), violates the plain language of the CAA. We review de novo
the district court’s grant of summary judgment on this issue. Durr v. Shinseki, 638
F.3d 1342, 1346 (11th Cir. 2011). We also “review de novo questions of statutory
interpretation.” Serrano v. U.S. Att’y Gen., 655 F.3d 1260, 1264 (11th Cir. 2011).
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A. Plain Meaning of the Statute
When reviewing an agency’s construction of a statute which it administers,
we first determine whether Congress has directly spoken to the question at issue.
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.
Ct. 2778, 2781 (1984). “If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Id. at 842-43.
In order to determine whether the intent of Congress is clear, we must
employ traditional tools of statutory construction. See id. at 843 n.9. “As with any
question of statutory interpretation, we begin by examining the text of the statute
to determine whether its meaning is clear.” Harry v. Marchant, 291 F.3d 767, 770
(11th Cir. 2002) (en banc). When we construe a statute, “we must begin, and often
should end as well, with the language of the statute itself.” Id. (quotations
omitted). This is because “we presume that Congress said what it meant and
meant what it said.” Id. (quotations omitted). “Those who ask courts to give
effect to perceived legislative intent by interpreting statutory language contrary to
its plain and unambiguous meaning are in effect asking courts to alter that
language, and courts have no authority to alter statutory language. . . . We cannot
add to the terms of the provision what Congress left out.” CBS Inc. v. Primetime
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24 Joint Venture, 245 F.3d 1217, 1228 (11th Cir. 2001) (quotations and alterations
omitted).
This case turns on the interpretation of the first three sentences of Section 1
of the CAA. We will analyze each sentence in turn, and as they relate to one
another, to determine whether the meaning of the statute is plain and
unambiguous.
The first sentence states:
That, notwithstanding the provisions of section 245(c) of the
Immigration and Nationality Act, the status of any alien who is a
native or citizen of Cuba and who has been inspected and admitted or
paroled into the United States subsequent to January 1, 1959 and has
been physically present in the United States for at least one year, 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 the alien makes an application for such
adjustment, and the alien is eligible to receive an immigrant visa and
is admissible to the United States for permanent residence.
The language of this sentence is not ambiguous. The Attorney General has
discretion to adjust the status of any alien who is a native or citizen of Cuba who
has been inspected and admitted or paroled into the United States after January 1,
1959, and has been present in the United States for at least one year, if the alien
applies for adjustment and the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence.
10
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The next sentence, the “rollback provision,” states:
Upon approval of such an application for adjustment of status, the
Attorney General shall create a record of the alien’s admission for
permanent residence as of a date thirty months prior to the filing of
such an application or the date of his last arrival into the United
States, whichever date is later.
Again, the language of this sentence is not ambiguous. Upon the Attorney
General’s decision to exercise discretion to adjust the native or citizen of Cuba’s
status to that of a lawful permanent resident, the Attorney General shall create a
record of the alien’s admission as of a date thirty months prior to the filing of the
application, or the date of his last arrival into the United States, whichever is later.
Finally, the last sentence states:
The provisions of this Act shall be applicable to the spouse and child
of any alien described in this subsection, regardless of their
citizenship and place of birth, who are residing with such alien in the
United States, except that such spouse or child who has been battered
or subjected to extreme cruelty may adjust to permanent resident
status under this Act without demonstrating that he or she is residing
with the Cuban spouse or parent in the United States.
This sentence is also not ambiguous. The provisions of the CAA shall be
applicable to the spouse and child of any alien described in this subsection. The
alien described in this subsection is the one who was unambiguously described in
the first sentence. Thus, if you are married to, or a child of, the alien described in
the first sentence, and you are residing in the United States with the alien
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described in the first sentence, see Gonzalez v. McNary, 980 F.2d 1418, 1420
(11th Cir. 1993), the CAA shall be applicable to you, regardless of your
citizenship or place of birth. And one of the provisions of the CAA that shall
apply is the rollback provision. This is clear from the language and structure of
the statute. The third sentence of Section 1 makes the “provisions” of the CAA
applicable to non-Cuban spouses and children. The rollback provision, which
appears in the immediately preceding sentence of Section 1, is clearly a provision
of the CAA.
The unambiguous language of Section 1 of the CAA supports that a non-
Cuban spouse of a Cuban whose status has been adjusted under the CAA should
have a recorded date of lawful permanent residence of thirty months prior to the
application date or the date of the non-Cuban spouse’s last arrival into the United
States, whichever date is later. Importantly, the statute contains no language
stating the non-Cuban must be married to the Cuban as of the non-Cuban’s
rollback date, nor does it state the Cuban and non-Cuban spouse must enter the
United States simultaneously. “We cannot add to the terms of the provision what
Congress left out.” CBS, 245 F.3d at 1228 (quotations and alteration omitted).
“Where the language of a statute is unambiguous, as it is here, we need not,
and ought not, consider legislative history.” Harry, 291 F.3d at 772. “The ‘plain’
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in ‘plain meaning’ requires that we look to the actual language used in a statute,
not to the circumstances that gave rise to that language.” CBS, 245 F.3d at 1224.
Our decisions “mandat[e] that ambiguity in statutory language be shown before a
court delves into legislative history.” Id. Thus, because we conclude the statute is
clear, the parties’ arguments regarding the legislative history of the CAA are not
relevant to our plain meaning analysis, and we will not address them here.
B. Absurd Result
This Court’s one recognized exception to the plain meaning rule is absurdity
of results. CBS, 245 F.3d at 1228. We have observed, “[t]hough venerable, the
principle is rarely applied, because the result produced by the plain meaning canon
must be truly absurd before this principle trumps it. Otherwise, clearly expressed
legislative decisions would be subject to the policy predilections of judges.”
Merritt v. Dillard Paper Co., 120 F.3d 1181, 1188 (11th Cir. 1997). “[I]t is
irrelevant that we may not have made the same policy decision had the matter been
ours to decide if we cannot say that it is absurd, ridiculous, or ludicrous for
Congress to have decided the matter in the way the plain meaning of the statutory
language indicates it did.” CBS, 245 F.3d at 1228 (quotations and alterations
omitted).
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The Immigration Service attempts to show the absurdity of the plain
meaning of the CAA in two ways. First, it points to the CAA’s legislative history;
and second, it presents various hypothetical scenarios resulting from the plain
meaning in which it contends the theoretical outcomes would be absurd.
The Immigration Service relies on the legislative history indicating that the
spousal provision was added to promote “family unity”3 to show absurd results.
See Gonzalez, 980 F.2d at 1421 (“The purpose of the [CAA’s] provision
permitting a spouse and child of a Cuban alien to obtain permanent residence is to
promote family unity.”). The legislative history is silent, however, on the issue of
the assignment of a rollback date for a non-Cuban spouse who marries a Cuban
national after the Cuban national is given permanent resident status. Despite this
silence, the articulated legislative intent of family unity is furthered by giving the
earlier rollback date to a non-Cuban spouse, as the non-Cuban spouse could get a
3
See H.R. Rep. No. 89-1978, at 5-9 (1966), reprinted in 1966 U.S.C.C.A.N. 3792, 3796-
99 (August 4, 1966, letter of Deputy Att’y Gen. Ramsey Clark) (suggesting the CAA’s spousal
provision was included “[i]n order to maintain the unity of the family . . . to provide for the
adjustment of status thereunder of the spouse and children of the Cuban who is the principle
beneficiary of this bill, regardless of their nationality and nativity, if they are living with him in
the United States”); Adjustment of Status for Cuban Refugees: Hearing on H.R. 15182, H.R.
15183, H.R. 16908, H.R. 10808, and H.R. 13393 Before Subcomm. No. 1 of the H. Comm. on
the Judiciary, 89th Cong., 36, 40 (1966) (“I think the Congress took a very strong position in the
law last year as to reuniting families.” (statement of Nicholas deB. Katzenbach, Att’y Gen. of the
United States)), (“I think that this proposition to reunite families is in a humane direction.”
(statement of Rep. Peter W. Rodino, Jr., Member, Subcomm. No. 1 of the H. Comm. on the
Judiciary)).
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jump start on his or her path to naturalization. Not only is the plain meaning of the
statute not absurd, it arguably furthers the legislative intent of family unity.
The Immigration Service presents several hypothetical scenarios in which a
non-Cuban spouse is given “greater” benefits than the Cuban national in order to
show the plain meaning of the statute could yield absurd results. The examples
involve the non-Cuban spouse receiving an earlier rollback date than the Cuban
national, and a non-Cuban spouse receiving a rollback date preceding the Cuban’s
presence in the United States, potentially to a date when the Cuban national was
married to someone else. The Immigration Service argues “[t]hese outcomes,
resulting from a ‘literal reading’ of the CAA, would be absurd because the non-
Cuban spouse would be receiving benefits of the CAA to which the Cuban spouse
would not be accorded.” Further, the literal interpretation “would give no
credence to the statutory intent of ‘family unity’ because non-Cuban spouses
would be provided retroactive benefits before a ‘family’ ever existed.”
We are not convinced the Immigration Service’s hypothetical scenarios
demonstrate absurd results, as the “rollback provision” in the CAA is a special
benefit carved out for Cuban nationals. Congress gave Cubans this special
benefit, and giving a non-Cuban spouse (no matter the date of marriage) the same
benefit is no more absurd than giving Cubans this special benefit. If Congress
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carved out this provision for Cuban nationals, there is no reason why Congress
cannot treat the spouse of a Cuban national the same way. Even if a particular
application of the rollback formula may lead to an arguably anomalous result
(such as granting permanent resident status to a non-Cuban applicant as of an
earlier date than the Cuban spouse), we cannot say that Congress could not have
intended to apply a uniform rollback formula to all applicants, Cuban and non-
Cuban alike. Indeed, there is nothing absurd about using a single rollback formula
for all CAA applicants, if only for greater ease of administration.
In light of our “exacting standard” for finding absurdity, we conclude the
Immigration Service has not shown that the plain meaning of Section 1 of the
CAA would yield “the type of truly absurd or ludicrous results which would
permit us to depart from the plain meaning of the statute.” See CBS, 245 F.3d at
1228-29.
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IV. CONCLUSION
As we conclude that the language of the statute is not ambiguous and does
not yield absurd results, we have answered the necessary Chevron question,4
whether Congress has directly spoken to the precise question at issue, in the
affirmative. The Immigration Service Adjudicator’s Field Manual provision
providing that a non-Cuban spouse’s rollback date cannot precede the date of the
qualifying marriage is contrary to the unambiguously expressed intent of
Congress. Thus, we reverse the district court and remand for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
4
Because we conclude the statute is not ambiguous and the agency’s construction is
contrary to Congress’s intent, we need not address the parties’ arguments regarding the type of
deference afforded to the Immigration Service’s interpretation of the statute. See Chevron, 467
U.S. at 843, 104 S. Ct. 2782.
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EVANS, District Judge, dissenting:
I respectfully dissent. I conclude that a person in Appellant's position (a
non-Cuban immigrant married in 2010 to a Cuban immigrant who had obtained an
adjustment to resident alien status in 2000) is not entitled to the benefit of the
unique rollback provision in Section 1 of the Cuban Refugee Adjustment Act of
1966 (“CAA”).1 This rollback provision entitles an applicant for adjustment to
permanent resident status to have the adjustment recorded as of a date thirty (30)
months prior to the application for adjustment of status. Because a person in
permanent resident status must reside in the United States for five (5) years prior
to applying for naturalization, 8 U.S.C. § 1427(a), the rollback gives the successful
applicant a thirty (30) month head start toward eligibility for naturalization.
The statute on its face demonstrates Appellant Silva-Hernandez does not
fall within the class of persons intended to be benefitted. She was not Mr.
Hernandez's spouse when he applied for adjustment of status to permanent
resident alien in 2000. She became his spouse in 2010. Section 1 of the CAA
provides as follows:
That, notwithstanding the provisions of section 245(c) of the
Immigration and Nationality Act, the status of any alien who is a native
1
Even though the title of the Act suggests application to refugees in 1966, the text of the
statute makes clear its provisions continue through today.
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or citizen of Cuba and who has been inspected and admitted or paroled
into the United States subsequent to January 1, 1959 and has been
physically present in the United States for at least one year, 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 the alien makes an application for such
adjustment, and the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence. Upon approval
of such an application for adjustment of status, the Attorney General
shall create a record of the alien's admission for permanent residence as
of a date thirty months prior to the filing of such an application or the
date of his last arrival into the United States, whichever date is later.
The provisions of this Act shall be applicable to the spouse and child of
any alien described in this subsection, regardless of their citizenship and
place of birth, who are residing with such alien in the United States,
except that such spouse or child who has been battered or subjected to
extreme cruelty may adjust to permanent resident status under this Act
without demonstrating that he or she is residing with the Cuban spouse
or parent in the United States.
Pub. L. No. 89-732, § 1, 80 Stat. 1161, 1161 (as amended) (reproduced as a
historical note to 8 U.S.C. § 1255) (emphasis added).
I read section 1 as describing a situation in which the Cuban-born spouse is
entitled to a record of admission to permanent residence as of a date thirty (30)
months prior to the filing of his last application, or the date of his last arrival into
the United States, whichever date is later. His spouse2 is entitled to the same
rollback, even though she is not of Cuban birth. The non-Cuban spouse is
2
For simplicity of discussion, it is assumed the husband is the Cuban-born spouse,
although the statute makes no such distinction.
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described in the statute in relation to her husband, the Cuban spouse. This
relational aspect of the statute is made clear in the part which says "[t]he
provisions of this Act shall be applicable to the spouse . . . of any alien described
in this subsection . . . ."3 The alien "described in this subsection" is the
Cuban-born spouse who is applying for permanent resident status, along with his
wife.
In my opinion, the majority opinion ignores these key words in its analysis.
The majority concedes the first sentence of section 1--which describes the
qualified native or citizen of Cuba applying for status adjustment--is
"unambiguous." The majority further recognizes that "the alien 'described in this
subsection' is the one who was unambiguously described in the first sentence."
Where I think the majority's analysis falters is in its failure to recognize that the
first sentence of section 1 describes a Cuban-born alien who is eligible to apply for
an adjustment to permanent resident status.
The statute assumes the couple is married and that they are moving through
the immigration process together. Mr. Hernandez applied for and received his
adjustment of status under the CAA in 2000. He was unmarried at the time of his
application and at the time of his adjustment to permanent resident status. By the
3
I will refer to this as the “family provision.”
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time Appellant Silva-Hernandez married Mr. Hernandez in 2010 he was already a
permanent resident. Therefore, she has never been the spouse of an “alien
described in this subsection,” because the “alien described in [section 1],” is an
alien who has not yet had his status adjusted. In my opinion, then, she cannot be
an intended beneficiary of the CAA. Because Silva-Hernandez did not qualify for
the thirty (30) month rollback in the CAA, there was no impediment to the
Immigration Service's granting her adjustment of status to permanent resident
alien only back to the date of her marriage to Mr. Hernandez, in accordance with
section 23.11(m)(2) of the Immigration Service Adjudicator's Field Manual.
Moreover, even if the statute is ambiguous, the legislative history of the
CAA clearly shows Congress intended the special rollback provision be accorded
only to immigrants from Cuba and their spouses at the time of immigration. The
legislative history is replete with discussion about the plight of Cuban refugees in
the United States in 1966.4 The overarching purpose of the CAA, repeated often
in the legislative history, was to allow Cuban refugees to apply for permanent
4
See H.R. Rep. No. 89-1978, reprinted in 1966 U.S.C.C.A.N. 3792; S. Rep. No. 89-1675
(1966); Conf. Rep. No 89-2334 (1966); 112 Cong. Rec. 27962 (1966); 112 Cong. Rec. 28605
(1966); To Adjust the Immigration Status of Cuban Refugees in the U.S.: Hearing on S. 1241 and
S. 3712 Before the Subcomm. on Immigration and Naturalization of the Comm. on the Judiciary,
89th Cong. 1-57 (1966); Adjustment of Status for Cuban Refugees: Hearings on H.R. 15182,
H.R. 15183, H.R. 16908, H.R. 10808 and H.R. 13393 Before Subcomm. No. 1 of the H. Comm.
on the Judiciary, 89th Cong. 1-73 (1966).
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residency status without having to leave the United States. The law as it stood in
1966 was that aliens from countries in the Western Hemisphere could not apply
for adjustment of status from within the United States. Adjustment of Status for
Cuban Refugees: Hearings on H.R. 15182, H.R. 15183, H.R. 16908, H.R. 10808
and H.R. 13393 Before Subcomm. No. 1 of the H. Comm. on the Judiciary, 89th
Cong. 30 (1966) (statement of Nicholas deB. Katzenbach, Att’y Gen. of the United
States). They were required, justified by Congress on the basis of proximity and
concerns about fraud, to leave the United States and apply for an immigration visa
from a U.S. Consulate in another country. Id. For most immigrants, this meant
simply returning to their home country. Id. However, after the United States
severed diplomatic relations with Cuba in 1961 and closed its consulate there, this
option was not available to Cubans living in the United States. Id. It was possible
for Cubans to go to another country, e.g., Canada or Mexico, but the travel was
complicated, expensive, and “unreasonably burdensome” on the refugees. 112
Cong. Rec. 28605, 28607 (1966). In addition, the influx of applicants to these
nearby consulates was overwhelming those offices, resulting in significant
limitations on the types and number of Cuban applications they would accept.
The legislative history further details the significant disadvantages, both to
individual Cubans as well as to the United States’ economy, of not permitting
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Cuban refugees to obtain permanent resident status. These included inability to
find sufficient employment, inability to leave the United States to consider
resettlement in other countries because re-entry back to the United States was not
assured, inability to successfully disperse Cubans throughout the country because
of limited employment options, and inability to pursue certain educational
opportunities. It is in this context Congress passed the CAA--a narrow law
exempting qualifying Cubans from certain immigration rules and permitting them
to apply for adjustment of status from within the United States.
This Court has previously acknowledged Congress added the family
provision out of concern for “family unity.” Gonzales v. McNary, 980 F.2d 1418,
1421 (11th Cir. 1993). The family provision was added after Deputy Attorney
General Ramsey Clark pointed out there were likely a number of cases where a
“citizen of Cuba may have married and have his spouse and children living with
him in the United States.” H.R. Rep. No. 89-1978, reprinted in 1966
U.S.C.C.A.N. 3792, 3799 (emphasis added). In order to “maintain the unity of the
family,” Deputy Attorney General Clark recommended language, which Congress
included verbatim, making the spouse and children of a qualified Cuban applicant
eligible under the CAA’s adjustment and rollback provisions, even though they
might be non-Cuban themselves. Id. (emphasis added).
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Both of Deputy Attorney General Clark’s statements suggest a marriage or
family already in existence. He used the phrase “may have married.” This is in
the past tense; he is concerned about adjustment applicants who are already
married or who already have children when they apply. He explains next that
some of these family members might not be Cuban themselves and therefore were
not eligible for adjustment under the bill as written. In the very next sentence,
Deputy Attorney General Clark suggests changes in order to “maintain” the unity
of this family. “Maintain” is defined as “to keep in an existing state.”
WEBSTER’S NEW COLLEGIATE DICTIONARY 687 (1979). Therefore, “maintaining”
a family necessarily presupposes it already exists. His specific use of “maintain,”
together with the express concern about Cubans who “may have married,” is
compelling evidence Congress intended the provisions of the CAA would only
apply to a non-Cuban spouse who was already married at the time of the Cuban’s
application for adjustment.
Given the extensively documented concerns about the cumbersome and
expensive travel requirements imposed by the existing law on Cuban refugees, as
well as the administrative burdens associated with processing hundreds of
thousands of Cuban refugees, the legislative purpose and history confirms a
reading that the family provision was only ever intended to cover the Cuban’s then
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existing spouse and family. The family provision streamlined the entire family’s
immigration application and processing. Rather than requiring the Cuban spouse
to apply for and receive permanent status, and then subsequently requiring his
spouse and children to apply as the close relative of an alien with permanent
residence status, Congress chose to permit his very immediate family to move
through the immigration process with him, and under the same adjustment rules as
applied to him. This group processing served both to “maintain the unity of the
family,” as well as to promote Congress’ expressed desire to relieve the
administrative burden caused by the influx of these refugees.
Permitting a later married spouse to apply for adjustment under the CAA--
ten years after the Cuban himself has moved through the immigration process and
has settled in the United States--furthers neither of these congressional purposes.
It is of no additional administrative efficiency to process the non-Cuban spouse’s
application for adjustment ten years later under the CAA as opposed to under any
other applicable status adjustment provisions. It also strains common sense to
argue applying the CAA to Appellant Silva-Hernandez “maintains” any sense of
family unity. The family provision was added, word for word, as requested by
Deputy Attorney General Clark. His explicit reason for adding the family
provision was concern for Cubans who might already be married and have
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children, and to provide for a mechanism to move the entire, existing, family
through one status adjustment process. Applying the provisions of the CAA to
Appellant Silva-Hernandez, ten years later, does not serve the clear congressional
intent behind the family provision.
Furthermore, other congressional testimony confirms a reading that the
future spouse of an unmarried Cuban who has already been adjusted to permanent
resident status is not an intended beneficiary of the Act because she is not, and
was not ever, the spouse “of any alien described in this subsection.” After the
House added the family provision to its version of the bill, Assistant Secretary for
Inter-American Affairs, Lincoln Gordon, advocated the Senate also “consider the
inclusion of such persons—that is direct family relatives of the persons directly
affected by the legislation.” To Adjust the Immigration Status of Cuban Refugees
in the U.S.: Hearing on S. 1241 and S. 3712 Before the Subcomm. on Immigration
and Naturalization of the Comm. on the Judiciary, 89th Cong. 21 (1966)
(emphasis added). The Senate committee report released after the provision was
added explained the family provision “amend[ed] section 245(c) [of the 1965
Immigration Act] to make eligible for adjustment of status a native or citizen of
Cuba and his spouse and children, who have entered the United States and have
not otherwise acquired the status of permanent residence.” S. Rep. No. 89-1675,
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at 6 (1966) (emphasis added). In neither the statutory text nor the legislative
history is the non-Cuban spouse ever identified separately from her Cuban spouse.
At all times, the applicability of the CAA to the non-Cuban spouse is in direct
relation to the “principal beneficiary” of the law: the Cuban spouse eligible for
and applying for adjustment. Although the law clearly envisions a non-Cuban
spouse as a beneficiary of the law, she is a derivative beneficiary only to the extent
of her relationship with the principal, Cuban, beneficiary. Since the CAA was
only applicable to Mr. Hernandez before he received his permanent residency
status, and because Appellant Silva-Hernandez was not his spouse at that time,
there is no derivative benefit for her to claim ten years later.
Because the text of the statute unambiguously applies the provisions of the
Act only to the spouse of the Cuban refugee "described in [Section 1]," because
the Cuban refugee "described in [Section 1]" is unambiguously an alien
proceeding through the immigration process, and because it is undisputed
Appellant Silva-Hernandez was not Mr. Hernandez’s spouse until after he was
already a permanent resident, I conclude she is not entitled to the benefit of the
rollback provision. Further, even if the statute were unclear on its face, the
legislative history indicates the family provision was added to “maintain” family
unity during the immigration process, and never to serve as a mechanism for a
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later-married spouse to move through her own, independent immigration process.
For these reasons, I respectfully dissent.
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