Feng Wang v. Antony Blinken ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 7, 2021 Decided July 9, 2021
No. 20-5076
FENG WANG, AND HIS CHILD, GUANYU WANG, ET AL.,
APPELLANTS
v.
ANTONY BLINKEN, IN HIS OFFICIAL CAPACITY AS U.S.
SECRETARY OF STATE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01732)
Edward F. Ramos argued the cause for appellants. With
him on the briefs were Ira J. Kurzban, John P. Pratt, and
Helena M. Tetzeli.
Matthew J. Glover, Senior Counsel to the Assistant
Attorney General, U.S. Department of Justice, argued the cause
for appellees. With him on the brief were Jeffrey Bossert
Clark, Acting Assistant Attorney General, Glenn M.
Girdharry, Assistant Director, and Christopher A. Bates,
Senior Counsel to the Assistant Attorney General. R. Craig
Lawrence, Assistant Attorney General, entered an appearance.
2
Before: SRINIVASAN, Chief Judge, MILLETT and WALKER,
Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: The Immigration and
Nationality Act makes a limited number of visas available to
foreign investors who create jobs in the United States. It also
grants investors’ spouses and children the “same status” and
“same order of consideration” for those visas as the investors.
8 U.S.C. § 1153(d).
When the Department of State calculates how many visas
it may issue for foreign investors, it includes an investor’s
spouse and children in the total count. So, for example, if
there are 10,000 investor visas available in a year, and if the
first 3,000 of those visas go to investors with 7,000 spouses and
children, no additional visas are available to foreign investors.
The Plaintiffs challenge this counting practice. They
claim the Department should have stopped counting family
members against the total number of investor visas after
Congress relocated the controlling text within the Act in 1990.
We disagree. The Act required the Department’s
approach before 1990, and it still does. Congress did nothing
in 1990 to change the text’s meaning. We therefore affirm the
district court’s dismissal of the Plaintiffs’ lawsuit.
I
“An alien needs an immigrant visa to enter and
permanently reside in the United States.” Scialabba v.
Cuellar de Osorio, 573 U.S. 41, 46 (2014) (plurality opinion).
The Immigration and Nationality Act, 8 U.S.C. §§ 1101–1537,
3
governs how immigrants obtain those visas. It prioritizes U.S.
citizens’ immediate relatives. Scialabba, 573 U.S. at 46.
From there, it gets complicated.
For others hoping to reside in the United States, the Act
outlines three immigrant visa categories:
1) “family-sponsored immigrants”: other relatives of U.S.
citizens, see 8 U.S.C. § 1153(a);
2) “employment-based” immigrants: foreigners with
marketable skills, see id. § 1153(b); and
3) “diversity” immigrants: citizens of “countries with
historically low immigration to the United States,” see id.
§ 1153(c).
See Scialabba, 573 U.S. at 46 & 47 n.3.
Job-creating investors qualify for a subcategory of
employment-based visas. 8 U.S.C. § 1153(b)(5). These visa
holders must invest at least $900,000 in a business if they build
it in a rural area or an area with high unemployment. If they
plan to invest in another region, they must invest at least $1.8
million. Id. § 1153(b)(5)(C)(i)–(ii); 8 C.F.R. § 204.6(f)(1)–
(2).1 No matter where they invest, they must create at least 10
jobs for citizens or permanent residents. 8 U.S.C.
§ 1153(b)(5)(A)(ii).
Although the Act places no cap on visas for U.S. citizens’
immediate relatives, id. § 1151(b)(2)(A)(i), it caps the other
1
But see Behring Regional Center LLC v. Wolf, No. 20-cv-09263-JSC,
2021 WL 2554051, at *1 (N.D. Cal. June 22, 2021) (vacating the Final Rule
that increased the minimum business investment amount to $1.8 million, or
$900,000 for rural business investors, as improperly promulgated).
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three visa categories: family-sponsored, employment-based,
and diversity. With some nuances that don’t matter here, the
annual cap on employment-based visas is 140,000. Id.§ 1151(d)(1)(A). Within that 140,000, the cap on investor
visas is just under 10,000. Id. § 1153(b)(5)(A).2
Finally, we arrive at the provision of the Act at issue here.
After listing the three visa categories, the Act says:
A spouse or child . . . shall, if not otherwise
entitled to an immigrant status and the
immediate issuance of a visa under subsection
(a) [family-sponsored], (b) [employment-
based], or (c) [diversity], be entitled to the
same status, and the same order of
consideration provided in the respective
subsection, if accompanying or following to
join, the spouse or parent.
Id. § 1153(d) (emphases added).
In other words, if you receive an employment-based visa,
you may bring your spouse and children with you to the United
States. So too if you receive a family-sponsored visa or a
diversity visa. No matter your visa category, your spouse and
children are “entitled to the same status, and the same order of
consideration” as you.
Under that provision, the Department of State counts the
family members of an employment-based visa holder when it
totals the number of employment-based visas it may issue.
2
Generally, the annual cap on family-sponsored visas (for U.S. citizens’
more distant relatives) is between 226,000 and 480,000. 8 U.S.C.
§ 1151(c)(1)(B)(ii). The annual cap on diversity visas is 55,000. Id.§ 1151(e).
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And more specifically, it also counts the family members of
investors when it totals the number of investor visas it may
issue. That matters here because, in recent years, the demand
for investor visas has exceeded the supply.
Among those understandably frustrated by that imbalance
are the Plaintiffs. They include immigrant investors unable to
enter the United States because of the employment-based visa
cap and the specific cap on investor visas.3 They argue that
the Department should not count investors’ spouses and
children against the cap on investor visas.
The district court granted the Department’s motion to
dismiss. Feng Wang v. Pompeo, No. 18-cv-1732, 2020 WL
1451598, at *1 (Mar. 25, 2020). We have jurisdiction, 28
U.S.C. § 1291, and we review the district court’s decision to
dismiss de novo. Statewide Bonding, Inc. v. U.S. Department
of Homeland Security, 980 F.3d 109, 114 (D.C. Cir. 2020).
Because the Immigration and Nationality Act requires the
Department to count investors’ spouses and children toward
the cap on investor visas, we affirm.
3
The Plaintiffs also include their spouses and children and American
Lending Center LLC, a regional center in California whose clients are
immigrant investors.
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II
A
“We start where we always do: with the text of the statute.”
Van Buren v. United States, 141 S. Ct. 1648, 1654 (2021)
(cleaned up).
The key phrases are “same status” and “same order of
consideration provided in the respective subsection.” 8
U.S.C. § 1153(d). Together, those phrases mean that an
immigrant’s spouse and children receive the “same” treatment
as the immigrant. More specifically, investors’ spouses and
children receive the “same” treatment as investors.
Same status means that when an immigrant receives an
employment-based visa, the immigrant’s spouse and children
also receive an employment-based visa. Likewise, when an
investor gets an investor visa, the investor’s family members
get that same kind of visa. And because they get the same
kind of visa, the investor’s family members also count against
the investor visa cap.
The phrase “same order of consideration provided in the
respective subsection” resolves any doubt. Id. That’s
because “the respective subsection” for employment-based
visas, § 1153(b), expressly refers to the worldwide cap on those
visas specified in § 1151(d). See id. § 1153(b) (“Aliens
subject to the worldwide level specified in section 1151(d) of
this title for employment-based immigrants in a fiscal year
shall be allotted visas as follows . . . .”). From there,
§ 1151(d) caps employment-based visas at 140,000. And
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going back to § 1153(b), investor visas are capped at 10,000.
See id. § 1153(b)(5)(A).
Thus, because spouses and children receive “the same
order of consideration provided in the” employment-based
visas subsection, which specifically caps employment-based
visas, spouses and children are also subject to the 140,000-
person cap on employment-based visas. In the same way,
because investors’ spouses and children receive “the same
order of consideration provided in the” investor visas sub-
subsection, and that subsection specifically caps investor visas,
spouses and children are also subject to the 10,000-person cap
on investor visas.
B
Beyond § 1153(d)’s plain text, two statutory provisions
reinforce our conclusion.
First, aside from visas for U.S. citizens’ immediate
relatives, the statute provides three and only three categories of
immigrant visas: 1) family-sponsored; 2) employment-based;
and 3) diversity. Unless an immigrant qualifies for an
enumerated exemption under § 1151(b) — which Plaintiffs
don’t qualify for — visas “are limited to” those three exclusive
categories. Id. § 1151(a). And because an immigrant
investor’s spouse and children do not usually qualify for the
first and third categories, an employment-based visa is often
the only visa available to them.
Second, an immigrant’s spouse and children are not listed
in § 1151(b) where Congress exempted certain immigrants
from the caps on each of the three visa categories. In that
section, Congress defined the “aliens . . . who are not subject
to the worldwide levels or numerical limitations.” Id.
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§ 1151(b) (cleaned up). If an investor’s spouse and children
were exempt from the employment-based visa cap, you’d find
them on that list. And since you don’t, they aren’t. See, e.g.,
id. § 1151(b)(1)(A) (exempting “special immigrants” from the
statutory caps) (cleaned up).
Indeed, in that same section, Congress exempted U.S.
citizens’ immediate relatives from visa caps. Id.
§ 1151(b)(2)(A)(i). That Congress specifically exempted
immediate relatives of U.S. citizens but didn’t exempt spouses
and children of immigrant investors further indicates that
investors’ spouses and children count toward the cap on visas.
C
The Plaintiffs counter that Congress altered the provision’s
meaning by moving it in 1990 when Congress made substantial
changes to other parts of the Act. Immigration Act of 1990,
Pub. L. No. 101-649, 104 Stat. 4978. Before 1990, the “same
status, and the same order of consideration” provision about
immigrants’ family members was in a section describing which
immigrants “are subject to the numerical limitations.”
Immigration and Nationality Act Amendments of 1965, Pub.
L. No. 89-236, § 203, 79 Stat. 911, 911 & 914.
Then, in 1990, Congress created the three capped visa
categories described above and placed the “same status, and
the same order of consideration” provision in that new section
below its description of the three categories. Congress titled
the new provision “Treatment of Family Members.” 104 Stat.
5009.
According to the Plaintiffs, because the 1990 Version no
longer links spouses and children to the Act’s numerical
limitations, spouses and children are no longer subject to the
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cap’s “numerical limitations.” Appellants’ Br. at 29. They
add that Congress intended investor visas to go to investors,
who must meet certain requirements that their spouses and
children usually do not meet. See 8 U.S.C. § 1153(b)(5)(A).
The Plaintiffs’ arguments, though inventive, conflict with
the plain meaning of § 1153(d), which we discussed in Section
II(A), and the larger statutory context, which we discussed in
Section II(B). In addition, in matters of immigration policy,
where deference to the political branches is high, we require
clearer legislative direction than just the relocation of unaltered
statutory text before adopting a reading of the statute that
effects the type of sweeping and monumental change in
immigration policy that the Plaintiffs’ reading of the statute
would cause. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425
(1999) (“we have recognized that judicial deference to the
Executive Branch is especially appropriate in the immigration
context”). Their arguments also conflict with the presumption
that we understand the reenacted text in the same way the
Department of State did before 1990. Forest Grove School
District v. T.A., 557 U.S. 230, 239-40 (2009); A. Scalia & B.
Garner, Reading Law: The Interpretation of Legal Texts 322
(2012) (“If a statute uses words or phrases that have already
received authoritative construction by . . . a responsible
administrative agency, they are to be understood according to
that construction.”) (emphasis omitted); see also id. at 324 &
324 n.8 (citing FDIC v. Philadelphia Gear Corp., 476 U.S.
426, 437 (1986); NLRB v. Bell Aerospace, 416 U.S. 267, 275
(1974)).
III
Because the Immigration and Nationality Act requires the
Department of State to count investors’ spouses and children
against the cap for investor visas, we do not address the
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Department’s argument regarding Chevron deference or the
Plaintiffs’ argument about notice-and-comment requirements.
See Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 (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.”); 5 U.S.C. § 553(b)(3)(A)
(notice-and-comment requirements do not apply “to
interpretive rules”).
* * *
When totaling investor visas, the Department of State must
continue to count visas awarded to investors’ spouses and
children.
We affirm.