United States v. 2020-12-03 | 18-35072 | MARIA MEDINA TOVAR V. LAURA ZUCHOWSKI | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA DEL CARMEN MEDINA
TOVAR; ADRIAN JOVAN ALONSO
MARTINEZ,
Plaintiffs-Appellants,
v.
LAURA B. ZUCHOWSKI, Director,
Vermont Service Center, United
States Citizenship and
Immigration Services; CHAD F.
WOLF, Acting Secretary,
Department of Homeland
Security; WILLIAM P. BARR,
Attorney General,
Defendants-Appellees.
No. 18-35072
D.C. No.
3:17-cv-00719-BR
OPINION
Appeal from the United States District Court
for the District of Oregon
Anna J. A. Brown, District Judge, Presiding
Argued and Submitted En Banc September 23, 2020
San Francisco, California
Filed December 3, 2020

MEDINA TOVAR V. ZUCHOWSKI2
Before: Sidney R. Thomas, Chief Judge; and Susan P.
Graber, M. Margaret McKeown, Johnnie B. Rawlinson,
Consuelo M. Callahan, Mary H. Murguia,
Paul J. Watford, Mark J. Bennett, Daniel P. Collins,
Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Graber;
Concurrence by Judge Collins;
Dissent by Judge Callahan
SUMMARY
*
Immigration
Reversing the district court’s grant of summary judgment
in favor of government defendants in a case involving when
a spousal relationship must exist for a spouse to be eligible
for derivative U-visa status, the en banc court held that
8 C.F.R. § 214.14(f)(4) is not a permissible interpretation of
the governing statute insofar as it requires that spouses be
married when the U-visa petition is filed because the statute
plainly provides that a person need not have been married to
the principal applicant at the time the application was filed,
so long as the marriage exists when the principal applicant
receives a U visa.
Plaintiff Maria Medina Tovar, a native and citizen of
Mexico, came to the United States at the age of six. After
being raped, she filed a Form I-918 seeking a U visa, which
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

MEDINA TOVAR V. ZUCHOWSKI3
is designed to grant legal status to certain non-citizen victims
of crime who assist law enforcement. After she married a
citizen of Mexico, Medina Tovar was granted U-visa status,
and filed a petition for a derivative U visa for her husband.
Defendants, acting on behalf of United States Citizenship and
Immigration Services (“USCIS”), denied the petition because
Plaintiffs were not married when Medina Tovar filed her
initial petition. USCIS relied on 8 C.F.R. § 214.14(f)(4),
which requires that spouses be married at the time that the
Form I-918 is filed.
Under 8 U.S.C. § 1101(a)(15)(U)(ii), a U-visa petitioner
may petition for derivative status for a relative who is
“accompanying, or following to join,” the principal petitioner.
As relevant here, that provision specifies that, “in the case of
an alien described in clause (i) [i.e., a principal U-visa
petitioner] who is under 21 years of age,” qualifying
relationships include: “the spouse, children, unmarried
siblings under 18 years of age on the date on which such alien
applied for status under such clause, and parents of such
alien.”
In reviewing the validity of 8 C.F.R. § 214.14(f)(4), the
en banc court applied the two-step process from Chevron,
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). At step one, the en banc court employed the
traditional tools of interpretation to conclude that the statute
plainly answers “no” to the question whether the spousal
relationship must exist at the time the original U-visa petition
is filed.
First, the en banc court explained that Congress clearly
thought about the timing question. For principal petitioners
who are younger than 21, Congress expressly provided that

MEDINA TOVAR V. ZUCHOWSKI4
an unmarried sibling must have been younger than 18 at the
time the principal petitioner filed for a U visa but, with
respect to other relatives, the statute contains no similar
reference. The en banc court pointed to one of the most
common tools of statutory construction: “Where Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Nken v. Holder, 556
U.S. 418, 430 (2009) (internal quotation marks and brackets
omitted). Finding the maxim is especially apt here, where the
distinction appears in a single paragraph, the en banc court
concluded that Congress intended that the timing of the
petition is relevant with respect to only one category of
relatives: unmarried siblings under 18 years of age.
Second, the en banc court explained that Congress’s use
of the phrase “accompanying, or following to join,” requires
consistent interpretation, noting that earlier immigration laws
contained the same phrase and that, when Congress added it
to the U-visa statute, the phrase had uniformly, and for
decades, been interpreted to mean that eligibility for
derivative status is measured at the time the principal
petitioner is granted an immigration benefit. Thus, the en
banc court turned to a second familiar interpretive principle:
“When a statutory term is obviously transplanted from
another legal source, it brings the old soil with it.” Taggart
v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (internal quotation
marks omitted). Because “accompanying, or following to
join,” was obviously transplanted from other immigration
statutes, the en banc court concluded it brought with it the
settled meaning that, in the absence of an express carve-out,
the statute measures the derivative relationship only at the
time the principal petitioner receives an immigration benefit.

MEDINA TOVAR V. ZUCHOWSKI5
Further, the en banc court explained that the carve-out for
siblings under the age of 18 was necessary precisely because
Congress understood the settled meaning of “accompanying,
or following to join.”
Accordingly, the en banc court held that 8 C.F.R.
§ 214.14(f)(4) is invalid insofar as it requires a derivative U-
visa spouse to have been married to the principal petitioner
when the application was filed and, because Plaintiffs were
married by the time Medina Tovar was granted a U visa, her
husband was entitled to receive a U visa if he otherwise met
the requirements.
Concurring in the judgment, Judge Collins, joined by
Judge Bumatay, agreed that the regulation is inconsistent with
the statute, but reached that conclusion for somewhat
different reasons. Judge Collins wrote that the relevant
statutory text makes overwhelmingly clear that the
determination of whether someone is a “spouse” of an “alien
described in clause (i)” must be made as of the date that the
primary applicant becomes such an alien, which—because of
the wording of the statute itself—is the effective date that the
primary application is granted. Because the statutory
definitions of U-visa eligibility contain their own built-in
temporal element, Judge Collins concluded that the agency
lacked the authority to establish an earlier temporal
requirement that is stricter than the one Congress established
and, to the extent that 8 C.F.R. § 214.14(f)(4) purported to do
so, it is invalid.
Dissenting, Judge Callahan, joined by Judges Bress and
Bennett, wrote that the majority looked at inherently
ambiguous language—“if accompanying, or following to
join”—and somehow concluded that Congress commanded

MEDINA TOVAR V. ZUCHOWSKI6
that “a person need not have been married to the principal
applicant at the time the application was filed, so long as the
marriage exists when the principal applicant receives a U
visa.” Judge Callahan wrote that, while this interpretation is
perhaps reasonable, it is not the only reasonable interpretation
and, more importantly, by conjuring up Congress’s
“understanding,” the majority unreasonably constricts the
agency’s responsibility to interpret the ambiguous statute.
Judge Callahan concluded that this is an invitation to mischief
in at least two ways: 1) in light of the time it takes for the
processing of a U visa, it is an invitation to commit marriage
fraud by creating a means by which a person who is not
legally in the country may obtain legal status by marrying a
U-visa applicant before the application is granted; and 2) the
opinion suggests that courts can dictate to an agency an
interpretation of a statute by searching precedents in different
contexts to establish a binding legislative understanding.
COUNSEL
Philip James Smith (argued) and Nicole Hope Nelson, Nelson
Smith LLP, Portland, Oregon; Jerome Mayer-Cantú,
Oakland, California; for Plaintiffs-Appellants.
Aaron S. Goldsmith (argued), Senior Litigation Counsel;
Jeffrey S. Robins, Assistant Director; William C. Peachey,
Director; District Court Section, Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellees.
David Priebe and Monica De Lazzari, DLA Piper LLP (US),
East Palo Alto, California, for Amicus Curiae ASISTA
Immigration Assistance.

MEDINA TOVAR V. ZUCHOWSKI7
Gerard J. Cedrone, Goodwin Procter LLP, Boston,
Massachusetts; Brian T. Burgess, Goodwin Procter LLP,
Washington, D.C.; for Amicus Curiae American Immigration
Lawyers Association, Oregon Chapter.
OPINION
GRABER, Circuit Judge:
Plaintiff Maria Medina Tovar, a native and citizen of
Mexico, came to the United States with her family in 1998,
at the age of six. When she was twelve, a stranger raped her
at knife-point in her home. She cooperated with law
enforcement officials and, because of the rape, has suffered
substantial trauma. In 2013, Medina Tovar filed a Form I-
918 seeking a U visa, which is designed to grant legal status
to certain non-citizen victims of crime who assist law
enforcement. In September 2015, she married Plaintiff
Adrian Alonso Martinez, who also is a native and citizen of
Mexico. Thereafter, Medina Tovar was granted U-visa status
effective October 1, 2015. On March 29, 2016, she filed a
Form I-918, Supplement A, which is a petition for a
derivative U visa, for her husband. Defendants, acting on
behalf of United States Citizenship and Immigration Services
(“USCIS”), denied the petition because Plaintiffs were not
married when Medina Tovar filed her initial petition in 2013.
Title 8 C.F.R. § 214.14(f)(4) contains the regulatory
requirement that spouses be married at the time that the Form
I-918 is filed.
Plaintiffs then brought this action for declaratory and
injunctive relief. The district court granted Defendants’
motion for summary judgment and denied Plaintiffs’ motion

MEDINA TOVAR V. ZUCHOWSKI8
for summary judgment, ruling that Congress did not address
directly the question of when a marital relationship must exist
for a spouse to be eligible for derivative U-visa status and that
the regulation is a reasonable interpretation of the governing
statute.
We have jurisdiction under 28 U.S.C. § 1291. On de
novo review, Herrera v. USCIS, 571 F.3d 881, 885 (9th Cir.
2009), we hold that 8 C.F.R. § 214.14(f)(4) is not a
permissible interpretation of the governing statute insofar as
it requires that spouses be married when the Form I-918 is
filed, rather than when the principal petition is granted.
Accordingly, we reverse.
THE STATUTE
Title 8 U.S.C. § 1101(a)(15)(U) sets forth the
requirements for obtaining a U visa. In relevant part, the
statute grants legal status to
(i) . . . an alien who files a petition for status
under this subparagraph, if the Secretary of
Homeland Security determines that–
(I) the alien has suffered substantial
physical or mental abuse as a result of
having been a victim of criminal activity
described in clause (iii);
(II) the alien (or in the case of an alien
child under the age of 16, the parent,
guardian, or next friend of the alien)
possesses information concerning criminal
activity described in clause (iii);

MEDINA TOVAR V. ZUCHOWSKI9
(III) the alien (or in the case of an alien
child under the age of 16, the parent,
guardian, or next friend of the alien) has
been helpful, is being helpful, or is likely
to be helpful to a Federal, State, or local
law enforcement official, to a Federal,
State, or local prosecutor, to a Federal or
State judge, to the Service, or to other
Federal, State, or local authorities
investigating or prosecuting criminal
activity described in clause (iii); and
(IV) the criminal activity described in
clause (iii) . . . occurred in the United
States . . . ;
(ii) if accompanying, or following to join, the
alien described in clause (i)–
(I) in the case of an alien described in
clause (i) who is under 21 years of age,
the spouse, children, unmarried siblings
under 18 years of age on the date on
which such alien applied for status under
such clause, and parents of such alien; or
(II) in the case of an alien described in
clause (i) who is 21 years of age or older,
the spouse and children of such alien; and
(iii) the criminal activity referred to in this
clause is that involving one or more of the
following or any similar activity in violation

MEDINA TOVAR V. ZUCHOWSKI10
of Federal, State, or local criminal law: rape
. . . .
8 U.S.C. § 1101(a)(15)(U) (emphases added). Medina Tovar
unquestionably fits the statutory criteria, as confirmed by
USCIS’s grant of a U visa.
THE REGULATION
The regulation that Plaintiffs challenge provides in
relevant part:
Except as set forth in paragraphs (f)(4)(i) and
(ii) of this section, the relationship between
the U-1 principal alien and the qualifying
family member must exist at the time Form I-
918 was filed, and the relationship must
continue to exist at the time Form I-918,
Supplement A is adjudicated, and at the time
of the qualifying family member’s subsequent
admission to the United States.
(i) If the U-1 principal alien proves that he or
she has become the parent of a child after
Form I-918 was filed, the child shall be
eligible to accompany or follow to join the U-
1 principal alien.
(ii) If the principal alien was under 21 years
of age at the time he or she filed Form I-918,
and filed Form I-918, Supplement A for an
unmarried sibling under the age of 18, USCIS
will continue to consider such sibling as a
qualifying family member for purposes of U

MEDINA TOVAR V. ZUCHOWSKI11
nonimmigrant status even if the principal
alien is no longer under 21 years of age at the
time of adjudication, and even if the sibling is
no longer under 18 years of age at the time of
adjudication.
8 C.F.R. § 214.14(f)(4) (emphasis added). Plaintiffs contest
only the emphasized requirement that the spousal relationship
must exist at the time the original Form I-918 is filed.
ANALYSIS
When reviewing the validity of a regulation, we apply the
two-step process that the Supreme Court established in
Chevron, U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842–43 (1984). Coyt v. Holder, 593 F.3d
902, 905 (9th Cir. 2010).
At step one, we must decide whether the intent of
Congress is clear from the terms of the statute that it enacted
or whether, instead, the statute is ambiguous. Chevron,
467 U.S. at 842–43. To maintain the proper separation of
powers between Congress and the executive branch, we must
“exhaust all the traditional tools of construction” before we
“wave the ambiguity flag.” Kisor v. Wilkie, 139 S. Ct. 2400,
2415 (2019) (internal quotation marks omitted). “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.” Chevron,
467 U.S. at 842–43.
If, but only if, the statute is ambiguous after using
ordinary tools of construction, we reach step two. Id. at 843.

MEDINA TOVAR V. ZUCHOWSKI12
At step two, we ask whether the agency has construed the
ambiguity in a permissible way. Id.
We have applied the Chevron framework in the
immigration context. In doing so, we have held that an
agency may not add a new requirement when Congress has
specified the criteria for a particular immigration benefit.
Schneider v. Chertoff, 450 F.3d 944, 956 (9th Cir. 2006);
Bona v. Gonzales, 425 F.3d 663, 670 (9th Cir. 2005). That is
precisely the situation we face here.
The question that the regulation answers is this: At what
point must a person be married to the principal applicant to
first qualify for a derivative U visa as a spouse—(a) when the
application is filed, or (b) when the principal applicant
receives a U visa?
The regulation adopts the former view. Defendants
reason that the statute fails to define “accompanying, or
following to join,” making the statute ambiguous, but see
Averett v. U.S. Dep’t of Health & Human Servs., 943 F.3d
313, 315 (6th Cir. 2019) (“A statute’s terms are not
ambiguous simply because the statute itself does not define
them.”), and that the regulation imposes reasonable
requirements because an after-acquired spouse is not
“accompanying, or following to join,” the principal U-visa
applicant.
But, when we employ traditional tools of interpretation,
the statute plainly answers “no” to the question whether the
spousal relationship must exist at the time the original U-visa
petition is filed. Two principles are relevant to our analysis.

MEDINA TOVAR V. ZUCHOWSKI13
First, Congress clearly thought about the timing question.
With respect to principal petitioners who are younger than 21,
Congress expressly provided that an unmarried sibling must
have been younger than 18 at the time the principal petitioner
filed for U-visa status. “[I]n the case of an alien described in
clause (i) who is under 21 years of age, the spouse, children,
unmarried siblings under 18 years of age on the date on
which such alien applied for status under such clause, and
parents of such alien” are qualifying relatives. 8 U.S.C.
§ 1101(a)(15)(U)(ii)(I). By contrast, with respect to other
relatives—spouses, children, and parents—the statute
contains no similar reference to or reliance on the date of the
principal petitioner’s application.
One of the most common tools of statutory construction
is this: “Where Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.” Nken
v. Holder, 556 U.S. 418, 430 (2009) (internal quotation marks
and brackets omitted). That maxim is especially apt here,
because the distinction appears in a single paragraph,
8 U.S.C. § 1101(a)(15)(U)(ii). Congress intended that the
timing of the petition is relevant with respect to only one
category of relatives: unmarried siblings under 18 years of
age. Indeed, the regulation expressly recognizes that children
of a principal petitioner are qualifying relatives even if they
were not born when the Form I-918 was filed, 8 C.F.R.
§ 214.14(f)(4)(i). Yet the regulation fails to recognize that
the statute treats timing identically for spouses and children.
By giving “these same words a different meaning for each
category [of non-citizen],” the agency “invent[ed] a statute
rather than interpret[ing] one.” Clark v. Martinez, 543 U.S.
371, 378 (2005).

MEDINA TOVAR V. ZUCHOWSKI14
Second, Congress’s use of the phrase “accompanying, or
following to join,” requires the same interpretation of the
statute. Earlier immigration laws contained the same phrase.
See Immigration Act of 1924, ch. 190, § 13(c), 43 Stat. 153,
162. Indeed, Congress used the phrase “accompanying or
following to join” to define spouses who may be treated as
derivative beneficiaries when a non-citizen adjusts her status
to that of a lawful permanent resident under 8 U.S.C.
§ 1255(i). See 8 U.S.C § 1255(i)(1)(B) (incorporating
8 U.S.C. § 1153(d)). Under this 1994 enactment, spouses
“accompanying or follow to join” the principal petitioner may
be treated as such so long as the spousal relationship exists
before the government grants the principal’s application for
adjustment of status. Landin-Molina v. Holder, 580 F.3d 913,
919 (9th Cir. 2009) (citing Matter of Naulu, 19 I. & N. Dec.
351, 352 n.1 (BIA 1986)).
When Congress added the “accompanying, or following
to join” phrase to § 1101(a)(15)(U)(ii) through the Violence
Against Women and Department of Justice Reauthorization
Act of 2005, Pub. L. No. 109-162, § 801, 119 Stat. 2960,
3054 (2006), that phrase had uniformly, and for decades, been
interpreted to mean that eligibility for derivative status is
measured at the time the principal petitioner is granted an
immigration benefit, not at the earlier time when the principal
petitioner applied for that benefit. See Santiago v. INS,
526 F.2d 488, 490–91 (9th Cir. 1975) (en banc) (identifying
eligible derivative beneficiaries as those who have a
qualifying relationship with the principal petitioner when the
principal petitioner “actually entered” or at the time of “the
grant of a preference” to the principal). Indeed, a policy
memorandum from the former INS stated that “after-
acquired” children and spouses may “adjust under [§ 1255(i)]
as long as they acquire the status of a spouse or child before

MEDINA TOVAR V. ZUCHOWSKI15
the principal alien ultimately adjusts status.” Landin-Molina,
580 F.3d at 919 (quoting Accepting Applications for
Adjustment of Status Under Section 245(i), HQ 70/23.1-P,
HQ 70/8-P, at 5 (June 10, 1999), reproduced at 76 Interpreter
Releases 1017 (July 2, 1999)).
We are aware of no precedent predating 2005, and the
agency has cited none, ruling that the phrase “accompanying,
or following to join,” either (a) referred to a time before the
principal petitioner received an immigration benefit or
(b) was ambiguous.
Thus, we turn to a second familiar interpretive principle:
“When a statutory term is obviously transplanted from
another legal source, it brings the old soil with it.” Taggart
v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (internal quotation
marks omitted). The term “accompanying, or following to
join,” was obviously transplanted from other immigration
statutes. The phrase therefore brought with it the settled
meaning that, in the absence of an express carve-out such as
8 U.S.C. § 1101(a)(15)(U)(ii)(I), the statute measures the
derivative relationship only at the time the principal petitioner
receives an immigration benefit. Cf. Comm’r v. Keystone
Consol. Indus., Inc., 508 U.S. 152, 159 (1993) (“The phrase
‘sale or exchange’ had acquired a settled judicial and
administrative interpretation over the course of a half century
before Congress enacted in § 4975 the even broader statutory
language of ‘any direct or indirect . . . sale or exchange.’
Congress presumptively was aware when it enacted § 4975
that the phrase ‘sale or exchange’ consistently had been
construed to include the transfer of property in satisfaction of
a monetary obligation.” (emphasis added)).

MEDINA TOVAR V. ZUCHOWSKI16
The two interpretive principles on which we rely work in
tandem here. The carve-out for siblings under the age of 18
was necessary precisely because Congress understood that the
settled meaning of “accompanying, or following to join,”
referred to the date on which an immigration benefit is
granted, not to the date on which the application for that
benefit was filed.
In summary, we hold that the statute clearly answers the
relevant interpretive question: to qualify for a derivative U
visa as a spouse, a person need not have been married to the
principal applicant at the time the application was filed, so
long as the marriage exists when the principal applicant
receives a U visa. Accordingly, our analysis ends at Chevron
step one, without resort to step two. Pereira v. Sessions,
138 S. Ct. 2105, 2113–14 (2018). Title 8 C.F.R.
§ 214.14(f)(4) is invalid insofar as it requires a derivative U-
visa spouse to have been married to the principal petitioner
when the application was filed.
Plaintiffs were married by the time Medina Tovar was
granted a U visa on October 1, 2015. As of March 29, 2016,
when Medina Tovar petitioned for derivative U-visa status,
her husband was entitled to receive a U visa if he otherwise
met the requirements.
REVERSED.

MEDINA TOVAR V. ZUCHOWSKI17
COLLINS, Circuit Judge, with whom BUMATAY, Circuit
Judge, joins, concurring in the judgment:
I agree with the majority that the agency regulation at
issue here is inconsistent with the applicable statute, but I
reach that conclusion for somewhat different reasons. I
therefore concur only in the judgment.
I
Maria Medina Tovar is a native and citizen of Mexico
who was brought to the United States in 1998 when she was
six years old. She has lived in the United States ever since.
In November 2004, when she was only twelve years old,
Medina Tovar was sexually assaulted in Seaside, Oregon on
two separate occasions by a stranger who had also repeatedly
stalked her outside of her school. On June 14, 2013, she filed
with U.S. Citizenship and Immigration Services (“USCIS”)
a “Form I-918” petition for a so-called “U-visa,” which refers
to a special type of non-immigrant visa for certain aliens who
have been victims of crime in the United States. The U-visa
is so named because the category of persons eligible for such
visas is set forth in subparagraph (U) of § 101(a)(15) of the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1101(a)(15)(U). In support of her application, Medina
Tovar submitted a certification from the Seaside, Oregon
Chief of Police attesting to her assistance in the investigation
of the crimes back in 2004. In early 2014, USCIS notified
Medina Tovar that she likely qualified for a U-visa but that
the statutory cap for such visas for that fiscal year had already
been met. She was finally notified on November 24, 2015
that her U-visa had been granted, with an effective date of
October 1, 2015 (which was the first day of fiscal year 2016).

MEDINA TOVAR V. ZUCHOWSKI18
During the more than two years that her application was
pending, Medina Tovar married Adrian Alonso Martinez, a
Mexican citizen, on September 21, 2015. Thereafter, as the
holder of a primary U-visa (known as a “U-1 visa”), Medina
Tovar on March 29, 2016, filed a petition for a derivative U-
visa on Martinez’s behalf, using the prescribed “Form I-918,
Supplement A.” However, on November 23, 2016, USCIS
denied the derivative petition on the ground that Medina
Tovar had not been married to Martinez on June 14, 2013,
when she had filed her own petition for a U-visa. This denial
was based on an agency regulation which provides that,
subject to certain exceptions not applicable here:
[T]he relationship between the U-1 principal
alien and the qualifying family member must
exist at the time Form I-918 was filed, and the
relationship must continue to exist at the time
Form I-918, Supplement A is adjudicated, and
at the time of the qualifying family member’s
subsequent admission to the United States.
8 C.F.R. § 214.14(f)(4).
Because the agency was bound by its own controlling
regulation, Plaintiffs Medina Tovar and Martinez
(“Plaintiffs”) did not attempt to pursue any further
administrative remedies. Instead, in May 2017, they filed this
action against the director of the relevant USCIS service
center, as well as the Secretary of Homeland Security (the
head of the Department in which USCIS is housed) and the
Attorney General. In their complaint, Plaintiffs allege that
the regulation is invalid because, inter alia, it “adds a
restriction that is not part of the statute enacted by Congress.”
Specifically, Plaintiffs contend that the statute only requires

MEDINA TOVAR V. ZUCHOWSKI19
that Martinez be married to Medina Tovar by the time that
she obtained her U-visa and that they need not have been
married at the time she applied for her visa. Plaintiffs also
contend that the regulation’s timing requirement differed
from that applied to derivative applications for other forms of
immigration relief and that the resulting distinction violated
the equal protection component of the Fifth Amendment’s
Due Process Clause. Based on these allegations, Plaintiffs
sought relief, inter alia, under the judicial review provisions
of the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701–706, and under the Declaratory Judgment Act.
Defendants filed a motion for summary judgment, which
the district court granted. Applying the two-step framework
of Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), the court first concluded
that the relevant statutory language setting forth the eligibility
for a derivative U-visa “did not directly address the precise
question at issue as to the derivative U visa status,” and it
then held that the regulation was a permissible construction
of the statute. The court separately rejected Plaintiffs’
contention that the regulation violated equal protection.
Plaintiffs timely appealed. After a divided panel affirmed the
district court’s judgment, see Medina Tovar v. Zuchowski,
950 F.3d 581 (9th Cir. 2020), we granted rehearing en banc,
see Medina Tovar v. Zuchowski, 957 F.3d 1381 (9th Cir.
2020).
1
1
I disagree with the Government’s suggestion that this case became
moot when, during the pendency of this appeal, Medina Tovar on July 3,
2019 became a lawful permanent resident and therefore no longer has U-
visa status. As a majority of this court has concluded, the Government
relied on a legally invalid ground in denying Martinez a derivative U-visa
in November 2016, when Medina Tovar did have U-visa status, and I do
not think that the Government has carried its heavy burden to show that

MEDINA TOVAR V. ZUCHOWSKI20
II
The parties have squarely placed before us the question of
whether the regulatory requirement that “the relationship
between the U-1 principal alien and the qualifying family
member must exist at the time Form I-918 was filed,” see
8 C.F.R. § 214.14(f)(4), is consistent with the description
of the class of persons who are eligible for derivative
U-visas in § 101(a)(15)(U)(ii) of the INA. See 8 U.S.C.
§ 1101(a)(15)(U)(ii). We evaluate that contention by
applying the two-step framework established in Chevron,
467 U.S. at 842–43. Under that framework, a court first
“ask[s] whether the statute is ambiguous and, if so,” the court
then addresses, at step two, “whether the agency’s
interpretation is reasonable.” King v. Burwell, 576 U.S. 473,
485 (2015). In determining whether a statute is ambiguous at
step one, “a court must exhaust all the ‘traditional tools’ of
“it is impossible for a court to grant any effectual relief” for the
Government’s unlawful action. Knox v. Service Emps. Int’l Union,
567 U.S. 298, 307 (2012) (emphasis added) (simplified). In arguing that
we cannot order USCIS to “go back in time” and to approve her husband’s
U-visa status “as of that date,” the Government relies only on Zixiang Li
v. Kerry, 710 F.3d 995 (9th Cir. 2013). There, we addressed a claim
challenging alleged errors in a different visa program, and we held that,
because Congress had directed that the limited number of visas in question
“expire[d] at the end” of each fiscal year, that “render[ed] moot any claim
for a visa number from a prior year.” Id. at 1002. In holding that no
retroactive remedy was available, we emphasized that Congress had
statutorily capped the number of visas available in a given year, and that
the plaintiffs’ claim effectively sought to “recapture” scarce visas that had
“already been allocated to other individuals.” Id. But this rationale does
not apply here because derivative U-visas are explicitly not subject to a
strict numerical annual allocation that expires each fiscal year. See
8 U.S.C. § 1184(p)(2)(B) (annual cap that applies to U-1 visas does not
apply to derivative U-visas).

MEDINA TOVAR V. ZUCHOWSKI21
construction.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019)
(quoting Chevron, 467 U.S. at 843 n.9) (making this
observation with respect to the interpretation of agency rules,
but noting that Chevron “adopt[ed] the same approach for
ambiguous statutes”); see also Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612, 1630 (2018) (explaining that under Chevron,
“deference is not due unless” the traditional tools of
construction do not resolve the ambiguity).
In addressing whether the statute governing derivative U-
visa eligibility is ambiguous on the question of when the
spousal relationship must exist, the parties have focused their
arguments, as the majority does, on whether one particular
phrase in § 101(a)(15)(U)(ii)—“accompanying, or following
to join,”—should or should not be understood to contain a
temporal element that settles the question in Plaintiffs’ favor.
But once the correct interpretation of a statute “is properly
before the court, the court is not limited to the particular legal
theories advanced by the parties, but rather retains the
independent power to identify and apply the proper
construction of governing law.” Kamen v. Kemper Fin.
Servs., Inc., 500 U.S. 90, 99 (1991); accord Thompson v.
Runnels, 705 F.3d 1089, 1098 (9th Cir. 2013). I agree with
the majority’s ultimate conclusion that the plain language of
the statute only requires that the spousal relationship be in
existence by the date that the primary applicant (here, Medina
Tovar) is granted her U-visa, but my reasoning is based more
narrowly on the unique wording of § 101(a)(15)(U).
2
The
agency’s attempt by regulation to narrow the class of spouses
2
I therefore express no view as to whether the majority is correct in
its broader holding that the phrase “accompanying, or following to
join,”—a phrase that appears in literally dozens of immigration
provisions—itself includes a temporal component.

MEDINA TOVAR V. ZUCHOWSKI22
who are eligible for derivative U-visas to only those persons
who were spouses on the day the primary applicant applied
for such a visa therefore fails at Chevron step one.
A
As with any question of statutory interpretation, we must
“begin with the text of the statute,” Kasten v. Saint-Gobain
Performance Plastics Corp., 563 U.S. 1, 7 (2011), and here
the statute unambiguously addresses the temporal issue of
when the derivative applicant must be the “spouse” of the
primary applicant.
Clause (i) of § 101(a)(15)(U) of the INA describes the
class of primary persons who are eligible for U-visas, and
clause (ii) of that same subsection sets forth the class of
persons who may obtain derivative U-visas. 8 U.S.C.
§ 1101(a)(15)(U). Specifically, clause (ii) states that the
following persons are eligible for derivative U-visas:
(ii) if accompanying, or following to join, the
alien described in clause (i)—
(I) in the case of an alien described in
clause (i) who is under 21 years of age, the
spouse, children, unmarried siblings under
18 years of age on the date on which such
alien applied for status under such clause, and
parents of such alien; or
(II) in the case of an alien described in
clause (i) who is 21 years of age or older, the
spouse and children of such alien . . . .

MEDINA TOVAR V. ZUCHOWSKI23
8 U.S.C. § 1101(a)(15)(U)(ii). Because Medina Tovar was
already 21 years of age when she first filed her primary U-
visa application, there is no dispute that the relevant
subclause here is (ii)(II). Martinez is therefore eligible for a
U-visa if he is (1) “accompanying, or following to join, the
alien described in clause (i)” and (2) is the “spouse . . . of
such alien.” Id.
The common link in these two requirements is the phrase
“alien described in clause (i),” because Martinez must be both
the “spouse” of such a person and “accompanying, or
following to join,” that same person. An “alien described in
clause (i)” includes a person who—subject to certain
limitations that are not at issue here with respect to Medina
Tovar—meets the following description:
(U)(i) . . . an alien who files a petition for
status under this subparagraph, if the
Secretary of Homeland Security determines
that—
(I) the alien has suffered substantial
physical or mental abuse as a result of having
been a victim of criminal activity described in
clause (iii);
(II) the alien . . . possesses information
concerning criminal activity described in
clause (iii);
(III) the alien . . . has been helpful, is
being helpful, or is likely to be helpful to a
Federal, State, or local law enforcement
official, to a Federal, State, or local

MEDINA TOVAR V. ZUCHOWSKI24
prosecutor, to a Federal or State judge, to the
Service, or to other Federal, State, or local
authorities investigating or prosecuting
criminal activity described in clause (iii); and
(IV) the criminal activity described in
clause (iii) violated the laws of the United
States or occurred in the United States . . .
8 U.S.C. § 1101(a)(15)(U)(i) (emphasis added). Under the
plain terms of this provision, an “alien described in clause (i)”
is someone who “files a petition for [U-visa] status” but only
“if the Secretary of Homeland Security determines” that the
petitioner meets the four criteria set forth in (I)–(IV). See id.
(emphasis added). The principal U-visa holder, therefore, is
not an “alien described in clause (i)” merely because, as an
underlying factual matter, she actually satisfies each of the
four enumerated criteria in subclauses (I)–(IV). Rather, she
does not and cannot meet the definition of an “alien described
in clause (i)” unless and until USCIS affirmatively grants that
alien’s U-visa petition.
That makes the statutory issue in this case relatively
straightforward. The date on which Medina Tovar first
became an “alien described in clause (i)” was on October 1,
2015, which was the effective date on which her petition was
granted. Prior to that date, she was just an applicant for a
principal U-visa and not an “alien described in clause (i).”
Clause (ii) of the statute tells us that the class of persons who
may apply for derivative U-visas includes the “spouse” of an
“alien described in clause (i)” who is “accompanying, or
following to join,” that person. By using the phrase “alien
described in clause (i),” the definition of derivative U-visa
eligibility in clause (ii) thereby necessarily incorporates the

MEDINA TOVAR V. ZUCHOWSKI25
same temporal aspect that is inherent in clause (i). That is,
because an “alien described in clause (i)” only means an alien
who has been affirmatively “determine[d]” to be eligible for
a U-visa, the very earliest that someone (such as Martinez)
could possibly be said to be “the spouse . . . of such alien” is
likewise when that alien’s principal U-visa application is
approved. The question, then, is whether Martinez was the
“spouse” of Medina Tovar and was “accompanying, or
following to join,” her on the day that she first became an
“alien described in clause (i)”—viz., October 1, 2015.
Because Medina Tovar and Martinez were married ten days
earlier on September 21, 2015, he was indisputably the
“spouse . . . of such alien” on October 1. And because the
Government does not dispute that, if Martinez was Medina
Tovar’s “spouse” on the relevant day, he was also
“accompanying, or following to join,” her on that same day,
it follows that Martinez meets the statutory definition in
clause (ii) and was eligible for a derivative U-visa. Cf.
Landin-Molina v. Holder, 580 F.3d 913, 918–19 (9th Cir.
2009) (eligibility of a “spouse” who is “accompanying or
following to join” a principal alien for a derivative immigrant
visa under INA § 203(d), 8 U.S.C. § 1153(d), implicitly
includes a “temporal element of already being a ‘spouse’” at
“the time the principal adjusted status” (emphasis added)).
B
In addition to being compelled by the statute’s plain
language, there are three additional textual clues in the statute
that strongly confirm the correctness of this reading. The first
two relate to the statute’s special rules that apply in the case
of a primary U-visa applicant who is under the age of 21, and
so it is important first to set forth what those different rules
are.

MEDINA TOVAR V. ZUCHOWSKI26
As noted earlier, the statutory provision that defines
derivative U-visa eligibility contains two separate subclauses,
one that governs cases in which the primary applicant “is
under 21 years of age” and one for cases in which that
applicant “is 21 years of age or older.” 8 U.S.C.
§ 1101(a)(15)(U)(ii)(I)–(II). See supra at 22–23. For a
primary applicant (such as Medina Tovar) who is 21 or older,
the persons who are eligible for derivative U-visas are limited
to the applicant’s (1) “spouse” and (2) “children” and, for the
reasons explained earlier, those relationships would be
determined as of the date on which the primary applicant’s U-
visa request is approved. Id. § 1101(a)(15)(U)(ii)(II). But “in
the case of an alien described in clause (i) who is under
21 years of age,” the persons eligible for derivative U-visas
are the primary applicant’s (1) “spouse”; (2) “children”;
(3) “unmarried siblings under 18 years of age on the date on
which such alien applied for status under such clause”; and
(4) “parents.” Id. § 1101(a)(15)(U)(ii)(I). Absent any
contrary indications in the statutory text, the determination as
to whether a person falls within one of these four categories
would likewise be made at the time the primary applicant’s
U-visa is granted. But here, there are contrary indications,
because, in the case of an under-21 primary applicant,
Congress has created two special rules that override the
otherwise applicable default temporal rule.
First, in the case of “unmarried siblings under 18 years of
age,” the statute specially provides that the determination of
whether the unmarried sibling is “under 18 years of age” is to
be made “on the date on which such [primary] alien
applied for status under such clause.” 8 U.S.C.
§ 1101(a)(15)(U)(ii)(I). The existence of this special
language confirms that, without it, the applicable temporal
rule would have been different, and it also confirms that the

MEDINA TOVAR V. ZUCHOWSKI27
temporal rule is different in those instances in INA
§ 101(a)(5)(U)(ii) in which that special language is not used.
See Russello v. United States, 464 U.S. 16, 23 (1983)
(“Where Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”
(simplified)). Thus, had Congress wanted to have the
determination of who counts as a “spouse” made on that
earlier date—i.e., rather than on the date on which the
primary applicant becomes an “alien described in clause
(i)”—it presumably would have applied that same distinctive
phrase to the term “spouse” as well. But Congress included
that phrase only in one of the four categories of aliens in the
subclause governing under-21 primary applicants, and it did
not include that phrase at all in the separate subclause
governing 21-and-over primary applicants.
The statute’s second special textual rule relates to another
aspect of derivative U-visa eligibility “in the case of an alien
described in clause (i) who is under 21 years of age.”
8 U.S.C. § 1101(a)(15)(U)(ii)(I). Because, as explained, a
primary U-visa applicant does not become “an alien described
in clause (i)” until his or her primary application is approved,
the statutory phrase “an alien described in clause (i) who is
under 21 years of age,” without more, would necessarily
mean that the age determination is made as of the date that
the primary application is approved. That would be a very
harsh rule, however, because it would mean that the tag-along
derivative applicants might lose their eligibility simply
because the primary application took too long to process. It
is unsurprising, therefore, that Congress enacted a special
temporal rule that expressly precludes that result. Thus, the
description of who is eligible for a primary U-visa in clause

MEDINA TOVAR V. ZUCHOWSKI28
(i) of INA § 101(a)(15)(U) is explicitly made “subject to
section 1184(p) of this title [§ 214(p) of the INA].” Id. That
section, in turn, contains a provision stating that:
An alien described in clause (i) of section
1101(a)(15)(U) of this title [§ 101(a)(15)(U)
of the INA] shall continue to be treated as an
alien described in clause (ii)(I) of such section
if the alien attains 21 years of age after the
alien’s application for status under such
clause (i) is filed but while it is pending.
8 U.S.C. § 1184(p)(7)(B). By providing that a primary
applicant who was under 21 when the application was filed
shall continue to be treated as being under 21 for derivative-
eligibility purposes, this provision thus expressly overrides
what would otherwise have been the ordinary meaning of the
relevant language in INA § 101(a)(15)(U)(i). The need for,
and existence of, this special temporal rule—which uses the
date of filing as controlling rather than the date of
approval—again confirms that, absent such a special rule, the
age of an “alien described in clause (i)” would have been
determined at the time that the U-visa petition was approved.
The existence of this special temporal provision thus further
confirms the plain meaning of INA § 101(a)(15)(U), as set
forth earlier.
3
3
Moreover, the statute’s use of the term “treated” underscores that the
situation described by INA § 214(p)(7)(B) is otherwise contrary to what
the applicable legal rules would require. Thus, once a primary U-visa
application is approved and that person becomes an “alien described in
clause (i)”—which is when derivative applications can first be
adjudicated—the alien shall then “continue to be treated” as meeting the
under-21 specification in subclause (ii)(I) even though the alien does not
actually meet that specification because “the alien attain[ed] 21 years of

MEDINA TOVAR V. ZUCHOWSKI29
The statute’s third textual clue relates to the derivative U-
visa eligibility of the “children” of either type of primary U-
visa recipient—viz., the “children” of “an alien described in
clause (i) who is under 21 years of age” and the “children” of
“an alien described in clause (i) who is 21 years of age or
older.” 8 U.S.C. § 1101(a)(15)(U)(ii). The statutory
definition of “child” that applies to titles I and II of the
INA—which titles include the U-visa provisions in INA
§ 101(a)(15)(U) and § 214(p)—states that a “child,” in
addition to meeting certain other requirements, must be “an
unmarried person under twenty-one years of age.” 8 U.S.C.
§ 1101(b)(1) (emphasis added). As previously explained,
absent some provision to the contrary, the determination of
whether a person is a “child” of “an alien described in clause
(i)” would be made as of the date that person’s primary-
applicant parent first became “an alien described in clause
(i)”—i.e., it would be made as of the date the parent’s U-1
visa was granted. This would again mean that a derivative
alien who was under 21 years of age when the primary alien
applied for U-visa status could lose that chance for derivative
eligibility simply due to a delay in processing the primary
alien’s application. But Congress again overrode that harsh
result by enacting INA § 214(p)(7)(A), 8 U.S.C.
§ 1184(p)(7)(A). This provision explicitly changes the date
as of which the age of a primary U-visa holder’s child is
calculated:
An unmarried alien who seeks to accompany,
or follow to join, a parent granted status under
section 1101(a)(15)(U)(i) of this title
[§ 101(a)(15)(U)(i) of the INA], and who was
age after the alien’s application for status under such clause (i) [was] filed
but while it [was] pending.” 8 U.S.C. § 1184(p)(7)(B).

MEDINA TOVAR V. ZUCHOWSKI30
under 21 years of age on the date on which
such parent petitioned for such status, shall
continue to be classified as a child for
purposes of section 1101(a)(15)(U)(ii) of this
title, if the alien attains 21 years of age after
such parent’s petition was filed but while it
was pending.
8 U.S.C. § 1184(p)(7)(A).
4
The need for this special temporal
rule confirms yet again that, in its absence, the plain meaning
of INA § 101(a)(15)(U) sets a temporal requirement that the
relevant characteristics of derivative U-visa applicants are to
be determined as of the date on which the primary U-visa
applicant first becomes “an alien described in clause (i),”
which is the date that the primary U-visa application is
approved.
* * *
The relevant statutory text thus makes overwhelmingly
clear that the determination of whether someone is a “spouse”
of an “alien described in clause (i)” must be made as of the
date that the primary applicant becomes such an alien, which
is the effective date that the primary application is granted.
And here, Martinez was indisputably Medina Tovar’s spouse
on that date.
5
4
Like § 214(b)(7)(B)’s use of “treated,” this provision’s use of
“classified” similarly denotes that the applicant will be deemed to meet a
criterion that he or she actually does not satisfy. See supra note 3.
5
The dissent charges that I have engaged in a “fine-grained parsing
of the statutory text,” see Dissent at 40 n.2—a charge to which I am
honored to plead guilty.

MEDINA TOVAR V. ZUCHOWSKI31
III
Because the statutory definitions of U-visa eligibility
contain their own built-in temporal element, the agency
lacked the authority to establish an earlier temporal
requirement that is stricter than the one Congress established.
To the extent that 8 C.F.R. § 214.14(f)(4) purports to do so,
it is legally invalid. Because Martinez satisfied the statutory
requirement that the regulation improperly sought to modify,
Defendants acted unlawfully in denying him a U-visa on that
basis.
6
I would therefore reverse the district court’s judgment
and remand the matter for further proceedings.
CALLAHAN, Circuit Judge, with whom BRESS and
BENNETT, Circuit Judges join, dissenting:
In the battle of competing aphorisms I think that “context
matters” prevails over the interpretive canon “bringing the
old soil with it.” The majority looks at the inherently
ambiguous language in 8 U.S.C.§ 1101(a)(15)(U)(ii)—“if
accompanying, or following to join”—and somehow
concludes that Congress commanded that “a person need not
have been married to the principal applicant at the time the
application was filed, so long as the marriage exists when the
principal applicant receives a U visa.” Op. at 16. Perhaps
this is a reasonable interpretation of the language, but I
dissent because it is not the only reasonable interpretation.
More importantly, by conjuring up Congress’s
6
This conclusion moots Plaintiffs’ equal protection challenge, and I
therefore do not address it.

MEDINA TOVAR V. ZUCHOWSKI32
“understanding,” the majority unreasonably constricts the
agency’s responsibility to interpret the ambiguous statute.
This is an invitation to mischief in at least two ways.
First, in light of the time it takes for the processing of a
U visa, it is an invitation to commit marriage fraud by
creating a means by which a person who is not legally in the
country may obtain legal status by marrying a U-visa
applicant before the application is granted. Second, the
opinion suggests that courts can dictate to an agency an
interpretation of a statute by searching precedents in different
contexts to establish a binding legislative understanding.
Indeed, it does so under the first prong of Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), asserting that the intent of Congress is clear. See Op.
at 13.
Although, as Judge N.R. Smith noted in his opinion for
the three-judge panel, “Congress has never directly addressed
when a qualifying relationship must exist,” Medina Tovar v.
Zuchowski, 950 F.3d 581, 587 (9th Cir. 2020), rehearing en
banc granted, 957 F.3d 1381, the majority reaches its
conclusion by focusing on subclause (ii)(I), which states:
in the case of an alien described in clause (i)
who is under 21 years of age, the spouse,
children, unmarried siblings under 18 years of
age on the date on which such alien applied
for status under such clause, and parents of
such alien;
(emphasis added).

MEDINA TOVAR V. ZUCHOWSKI33
This provision states that, for a U-visa applicant (an alien
described in clause (i)), a sibling may qualify for a derivative
U visa if that sibling was not married and was under 18 when
the principal applied for a U visa. This clearly limits the class
of individuals who can qualify for derivative status, but it
need not be interpreted as addressing “accompanying, or
following to join.” At the very least, it does not do so
unambiguously. Nonetheless, the majority claims that the
language “unmarried siblings under 18 years of age on the
date on which such alien applied for status” indicates that
“Congress clearly thought about the timing question.” Op.
at 13. But, as noted, it seems more likely that Congress was
defining who was eligible for derivative benefits. The phrase
is found in the middle of a section providing that, for an
applicant under the age of 21, his or her spouse, children,
parents, and unmarried siblings under the age of 18 are
eligible for derivative status. Congress clearly did not intend
for adult unmarried siblings to be eligible. Therefore, it was
necessary to draw a line, to select a date. The date of an
application’s approval is unknowable at the time of a U-visa
application is filed. But the date of the application is obvious
and provides clear guidance to the applicant and his or her
siblings.
The majority proceeds to employ the maxim “[w]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Op. at 13
(quoting Nken v. Holder, 556 U.S. 418, 430 (2009)). But this
general presumption is premised on the determination that
Congress’s use of particular language in the first instance was
intended to address, or inherently addresses, the issue in the
second section. In our case, however, the language at issue

MEDINA TOVAR V. ZUCHOWSKI34
was used to define which siblings might be eligible for
derivative benefits; it does not clearly define or address
“accompanying, or following to join,” even for such eligible
siblings.
A careful reading of the Chief Justice’s opinion in Nken
supports this distinction. That case concerned whether a
statutory provision addressing certain injunctions also applied
to stays. 556 U.S. at 431. The Court’s opinion acknowledges
“that statutory interpretation turns on ‘the language itself, the
specific context in which that language is used, and the
broader context of the statute as a whole.’” Id. at 426
(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997)). However, after stating the maxim quoted by the
majority, the Court proceeded to observe that the language at
issue was not where it would naturally be if intended to apply
to stays. Id. at 431. It also commented that it “frequently
takes Congress’s structural choices into consideration when
interpreting statutory provisions.” Id. at 431.
Here too, we have language which arguably could be
interpreted as addressing “accompanying, or following to
join” but which is not located where it would naturally be
located to do so and which serves, and presumably was
intended to serve, a distinct purpose: limiting the eligibility
for siblings of an under 21-year-old applicant to those who
are under the age of 18.
1
Indeed, the majority seems to
reason backward, arguing that “Congress intended that the
timing of the petition is relevant with respect to only one
1
The very narrowness of this exception weighs against it being
intended to define the broad term that applies to all derivative applicants.
The clause “on the date on which such alien applied for status” applies
only to minor siblings of an applicant who is herself under 21 years of age.

MEDINA TOVAR V. ZUCHOWSKI35
category of relatives” and “the regulation fails to recognize
that the statute treats timing identically for spouses and
children.” Op. at 13. But this assumes that the subclause
defining the eligibility of minor siblings of principals who are
under 21-years-old was intended to “treat timing.” Perhaps
this is a possible interpretation of the statute, but it is not the
only or the most likely explanation of Congress’s intent.
And even if the majority were correct that the subclause
concerning minor siblings addresses the timing question, the
majority errs in concluding that this subclause unambiguously
answers the timing question as to spouses. Because the
subclause refers to “unmarried siblings under 18 years of age
on the date on which such alien applied for status under such
clause,” the majority reasons that “the timing of the petition
is relevant” only as to this “one category of relatives.” Op.
at 13. But even if that negative implication is a permissible
reading of the statute, it is certainly not inevitable.
As the three-judge panel majority explained, unlike
spouses and parents, siblings face the possibility of “aging
out” while the U-visa petition is pending. See Medina Tovar,
950 F.3d at 589. Thus, “[t]he fact that Congress addressed
when the alien and other qualifying relatives should be
assessed to preclude them from aging out, does not
unambiguously mean that Congress intended that spouses be
assessed at a different time than the date of application.” Id.
Spouses are differently situated from siblings because
spouses cannot age out. Id. Thus, the statutory text does not
command that the date of assessment for spouses must be
different than that for siblings.
The majority asserts that the phrase “accompanying, or
following to join,” has existed in various statutes for decades

MEDINA TOVAR V. ZUCHOWSKI36
and suggests that it has been uniformly interpreted. But the
majority does not cite a single instance in which either a court
or agency has held that the phrase precluded the agency from
requiring that the marriage exist at the time of a U-visa
application. Neither of the Ninth Circuit’s cases cited by the
majority does so. These cases do consider the phrase
“accompanying, or following to join” but not in a manner that
supports the majority’s position.
In Landin-Molina v. Holder, 580 F.3d 913 (9th Cir.
2009), Landin-Molina conceded that he could not satisfy the
“accompanying, or following to join” requirement “because
his marriage occurred after his wife adjusted to lawful
permanent resident status.” Id. at 919. We explained:
The plain language of § 1153(d) requires that
the derivative “spouse” accompany or follow
to join the principal “spouse.” Implicitly
there is a temporal element of already being a
“spouse.” Thus, § 1153(d) clearly
contemplates that the marital relationship
exists before the principal receives immigrant
status. Such a construction is consistent with
our observation in Santiago[v. INS, 526 F.2d
488 (9th Cir. 1975) (en banc),] that Congress
intended to “preserve”—i.e., maintain—the
unity of existing families by permitting
qualifying aliens to bring their families with
them or to send for them later. If the marital
relationship transpires after the principal
receives immigrant status, the putative
derivative spouse cannot have accompanied or
followed to join a “spouse” because there was
simply no spouse to accompany or follow at

MEDINA TOVAR V. ZUCHOWSKI37
the time the principal adjusted status, and the
language of § 1153(d) implicitly requires that
the derivative spouse be a “spouse” before the
principal adjusts status.
Id. (citation omitted).
Certainly, Landin-Molina required that the derivative
beneficiary be married to the principal at the time the
principal adjusts status. But it did not address how long prior
to that date the derivative beneficiary had to be married to the
principal. There is nothing inherent in the phrase
“accompanying, or following to join” that would require the
marriage to exist only at the time of application approval, as
opposed to at the time the application is filed. The phrase
“accompanying, or following to join” can reasonably be
interpreted to imply that the marriage should exist when the
principal applies for U-visa benefits.
Santiago v. INS, 526 F.2d 488 (9th Cir. 1975) (en banc),
does little to support the majority’s interpretation of
Congress’s intent. There we held that the government was
not estopped from excluding a derivative beneficiary who
was erroneously admitted prior to the arrival of the principal
in the United States. We explained:
Petitioners initially contend that the words
“accompanying, or following to join” in
8 U.S.C.§ 1153(a)(9) should be construed to
also mean “preceding with the hope (or
expectation) of being joined later.” There is
no authority for such a construction. The
plain language of the statute is designed to
assure that those aliens who derive their

MEDINA TOVAR V. ZUCHOWSKI38
preference cannot exercise their right to enter
until the person from whom they derive their
preference has actually entered. Congress
clearly intended to preserve family unity by
this language and to permit the lawfully
entering alien to either bring his family with
him or to send for them later when he had the
ability to do so. But there is nothing in this
language to indicate that Congress ever
intended that the grant of a preference to one
alien would effectively work a grant of a like
preference to the members of his family so
that they might enter at whatever time they
wished. If Congress had wished to equate
derivative preferences with actual preferences
the words “accompanying, or following to
join” would be absent from this statute.
Id. at 490–91.
Thus, we found the language “plain” in regard to when a
derivative beneficiary could enter the United States. But we
did not otherwise comment on when the relationship had to
exist. Yet again, our reference to the purpose of preserving
family unity might be construed as suggesting that the
relationship should exist when the beneficiary sought to enter
the United States.
Perhaps more importantly, regardless of how one reads
our opinions in Landin-Molina and Santiago, they do not
readily support the argument that Congress commanded that
the spousal relationship need exist only at the time a U-visa
petition is granted. Both cases were in the context of
immigrant aliens, whereas the U visa is a nonimmigrant visa.

MEDINA TOVAR V. ZUCHOWSKI39
See Landin-Molina, 580 F.3d at 915; Santiago, 526 F.2d
at 489; see also 8 U.S.C. § 1101(a)(15)(U). As the three-
judge panel majority explained, “immigrant and
nonimmigrant statutes are aimed at addressing different
concerns, have different requirements, and extend different
benefits to the status holder. Thus, although the same textual
phrase—‘accompanying, or following to join’—is used in
these contexts, the nature and purpose underlying the grants
of status differ significantly.” Medina Tovar, 950 F.3d
at 591.
A U visa is not an immigration visa, but “operates to grant
limited, temporary, nonimmigrant status to aliens already
present in the United States who were victims of a serious
crime.” Id. at 590. These differences suggest both that the
date of a U-visa application is somewhat analogous to the
date an immigrant enters the United States and that the
interpretation of the phrase in an asylum proceeding is not
necessarily applicable to a U-visa application.
In addition, it is notable that the timing rules are different
for asylees and refugees. For refugees the qualifying
relationship must exist at the time of the refugee’s admission
to the United States, whereas for asylees the relationship must
have existed at the time the principal alien’s asylum
application was approved. Id. at 588 (citing 8 C.F.R.
§§ 207.7(c), 208.21(b)). This underscores the conclusion that
the phrase “accompanying, or following to join” does not
possess a fixed meaning foreclosing the agency’s
interpretation.
In any event, a review of our prior cases and the matters
cited by the majority fail to support its determination of
Congress’s clear intent. Indeed, the majority does not assert

MEDINA TOVAR V. ZUCHOWSKI40
that Congress has ever directly addressed this issue. Instead,
by asserting a negative implication based on language in
8 U.S.C. § 1101(a)(15)(U) and citing instances in which the
phrase was interpreted in distinct contexts, it projects onto
Congress an absolute view that is not supported by the text or
any Congressional action. Certainly, Congress is responsible
for circumscribing an agency’s responsibilities, and we have
a constitutional duty to see that an agency does not exceed its
authorization. But we exceed our role when we parse obscure
passages in complex legislation, use distinguishable case law,
and cite a “familiar interpretative principle” to ascribe to
Congress not only knowledge of the agency’s alleged
interpretation, but also an absolute view barring the agency’s
evolving view of a statute’s ambiguous terms.
2
Accordingly, I respectfully dissent because I cannot
conclude that Congress understood or intended
“accompanying, or following to join” to mean that the agency
could not require that an applicant for a derivative benefit
from a U-visa applicant be married to the principal when the
U-visa application was filed.
2
I find Judge Collins’s separate concurrence similarly unpersuasive.
His reading of the statute is not one that any party in this litigation has put
forward. Regardless, Judge Collins’s fine-grained parsing of the statutory
text at most confirms that his reading of the statute is permissible, not that
it is compelled.