PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-1066

 

NEEMA PATEL,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

 

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A095-815-044)

Immigration Judge: Honorable Margaret Reichenberg 

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 12, 2010

Before: FUENTES, ROTH and VAN ANTWERPEN,

Circuit Judges

(Opinion filed: March 30, 2010)

Michael A. Younge, Esq.
2

8141 East Kaiser Boulevard, Suite 200

Anaheim Hills, CA 92808

Counsel for Petitioner

Regina Byrd, Esq.

Ernesto H. Molina, Esq.

M. Lee Quinn, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

 

OPINION

 

PER CURIAM

Neema Patel, a citizen of India, petitions for review of

the BIA decision upholding the denial of her motion to

terminate removal proceedings. Her petition presents the

question of whether the confidentiality provisions of section

245A(c)(5) of the Immigration and Nationality Act (“INA”)

apply to an application for employment authorization submitted

by the child of a Legal Immigration Family Equity (“LIFE”) Act

adjustment-of-status applicant. For the reasons that follow, we
 1

 INA § 245A is titled “Adjustment of status of certain

entrants before January 1, 1982, to that of person admitted for

lawful permanent residence.” The confidentiality provisions

of that section read: 

3

agree with the BIA that they do not, and we will deny the

petition for review.

I

In 1986, Congress enacted the Immigration Reform and

Control Act (“IRCA”), which created a legalization program

that “allow[ed] existing undocumented aliens to emerge from

the shadows” and gain legal residency in the United States.

McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 483 (1991).

IRCA provided undocumented aliens who had resided

continuously in the United States since January 1982 with the

opportunity to apply for legal resident status. In 2000, IRCA

was modified by the LIFE Act and its amendments. See LIFE

Act Amendments, Pub. L. No. 106-554, § 1504, 114 Stat. 2763,

2763A-325 (2000); LIFE Act, Pub. L. No. 106-553, § 1104, 114

Stat. 2762, 2762A-146-49 (2000). The LIFE Act, as amended,

gave class members in three class-action cases a new

opportunity to apply for lawful permanent residency. See LIFE

Act Amendments § 1503(a); LIFE Act § 1104. Additionally, it

permitted the spouse and unmarried children of an eligible alien

to stay in the United States and obtain work authorization. See

LIFE Act Amendments § 1504; 8 C.F.R. § 245a.31.

To encourage eligible aliens to seek lawful residency

status, section 1104(c)(5) of the LIFE Act afforded applicants

protection under INA § 245A(c)(5) [8 U.S.C. § 1255a(c)(5)].1
Except as provided in this paragraph, neither the Attorney

General, nor any other official or employee of the Department

of Justice, or bureau or agency thereof, may- -

(i) use the information furnished by the applicant pursuant to

an application filed under this section [i.e., for adjustment of

status] for any purpose other than to make a determination on

the application, for enforcement of paragraph (6), or for the

preparation of reports to Congress under section 404 of the

Immigration Reform and Control Act of 1986;

(ii) make any publication whereby the information furnished

by any particular applicant can be identified; or

(iii) permit anyone other than the sworn officers and

employees of the Department or bureau or agency or, with

respect to applications filed with a designated entity, that

designated entity, to examine individual applications.

INA § 245A(c)(5)(A). The Agency implemented a regulation

containing substantially similar language at 8 C.F.R. section

245a.21.

4

Section 1104(c)(5) reads, in pertinent part: “Subsection (c)(5)

of [INA] section 245A shall apply to information furnished by

an eligible alien described in [LIFE Act section 1104(b)]

pursuant to any application filed under such section 245A or this

section . . . .”

II

Patel entered the United States in 1988 without
 2

 There was some debate before the IJ as to whether Patel’s

filing constituted a request for benefits under section 1104(b)

or section 1504(b) of the LIFE Act Amendments Family

Unity Provisions. After an extended colloquy, Patel, through

counsel, stated that her work authorization application was a

request for benefits solely under section 1504(b). See A.R.

51-61.

5

inspection. Patel’s father later submitted an application under

LIFE Act section 1104 for an adjustment to lawful permanent

resident status. While that application was pending, Petitioner

filed an application for work authorization under section 1504

of the LIFE Act Amendments Family Unity Provisions.2

 Her

application was denied and, based on her admissions in the

application, removal proceedings were initiated against her. 

Before the IJ, Patel filed a motion to terminate the

removal proceedings. She admitted that she was ineligible for

adjustment of status under section 1104(b), but argued that the

confidentiality provisions of INA § 245A(c)(5) prevented the

government from using her section 1504(b) employment

application for the purpose of removal proceedings. The IJ

denied Patel’s motion and ultimately granted her voluntary

departure. Patel appealed, arguing that the IJ incorrectly denied

her motion to terminate the removal proceedings. The BIA

upheld the IJ’s decision, reasoning that, on its face, section

1104(c)(5) applies only to an alien’s application for adjustment

of residency status under section 1104(b) of the LIFE Act. Patel

then filed a petition for review.

III
6

We have jurisdiction over Patel’s petition for review

under 8 U.S.C. § 1252(a). Because the BIA issued its own

opinion, we review its decision rather than that of the IJ. See Li

v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we

also look to the decision of the IJ to the extent that the BIA

defers to, or adopts, the IJ’s reasoning. See Chavarria v.

Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review the

Agency’s legal conclusions de novo, subject to established

principles of deference. See Smriko v. Ashcroft, 387 F.3d 279,

282 (3d Cir. 2004).

At the outset, we note that the question whether the

Agency correctly interpreted the INA’s confidentiality

provisions as inapplicable to applications for LIFE Act Family

Unity benefits appears to be a question of first impression in this

Circuit, and we have not identified a precedential opinion by

another Court of Appeals that conclusively determines the issue.

Our inquiry is governed by the framework set forth in Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842-43 (1984). 

[U]nder Chevron, we must first determine if the statute

is silent or ambiguous with respect to the specific issue

of law in the case, using traditional tools of statutory

construction to determine whether Congress had an

intention on the precise question at issue. If

congressional intent is clear, the inquiry ends, as both the

agency and the court must give effect to the plain

language of the statute. Where, however, a statute is

silent or ambiguous with respect to the specific issue, the

court proceeds to step two, where it inquires whether the

agency’s answer is based on a permissible construction
7

of the statute.

Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir. 2009) (en

banc) (internal citations and quotation marks omitted). Here, we

conclude that the question at issue can be resolved at Chevron’s

first step.

“A basic tenet of statutory construction is that we ‘must

begin with . . . the assumption that the ordinary meaning of the

[statutory] language accurately expresses the legislative

purpose.’” Id. at 155-56 (quoting Park ‘N Fly, Inc. v. Dollar

Park & Fly, Inc., 469 U.S. 189, 194 (1985)). Section 1104(c)(5)

of the LIFE Act applies the confidentiality provisions of INA

§ 245A(c)(5) to “information furnished by an eligible alien

described in [LIFE Act section] 1104(b) pursuant to any

application filed under [INA §] 245A or this section.” The

ordinary meaning of “pursuant to” is “in compliance with; in

accordance with; under.” Black’s Law Dictionary (8th ed.

2004). Therefore the plain language of section 1104(c)(5)

makes clear that the confidentiality provisions apply only to a

filing submitted by an alien described in LIFE Act section

1104(b), and only insofar as the filing is an application for

adjustment of residency status. Thus, there is no room for us to

conclude that Congress intended to extend the protection of INA

§ 254A(c)(5) to any filing other than an application by an alien

for adjustment of residency status. Cf. Perez v. INS, 72 F.3d

256, 259-60 (2d Cir. 1995) (emphasizing in somewhat different

circumstances that, under IRCA, information was confidential

only to the extent that it was furnished in an application for

adjustment of residency status).

Patel conceded that she was ineligible for relief under

section 1104(b), and the application that she submitted was an
8

application for employment authorization under the Family

Unity Provisions – not an application to adjust her residency

status. Thus, the contents of her application were not

confidential under the LIFE Act. And Patel points to no

language within the LIFE Act Family Unity Provisions, or

anywhere else, that establishes a right to confidentiality in a

derivative application for benefits. See LIFE Act § 1504; 8

C.F.R. §§ 245a.30-.37. Inasmuch as Patel sought only

derivative LIFE Act benefits through her father under section

1504(b) of the Act, the Agency correctly reasoned that the

information in her work authorization application was not

protected.

Accordingly, we will deny the petition for review.