FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MARIA DEL CARMEN MEDINA No. 18-35072 TOVAR; ADRIAN JOVAN ALONSO MARTINEZ, D.C. No. Plaintiffs-Appellants, 3:17-cv-00719-BR v. OPINION 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. Appeal from the United States District Court for the District of Oregon Anna J. A. Brown, District Judge, Presiding Argued and Submitted May 15, 2019 Portland, Oregon Filed January 17, 2020 2 TOVAR V. ZUCHOWSKI Before: N. Randy Smith, Paul J. Watford, and Ryan D. Nelson, Circuit Judges. Opinion by Judge N.R. Smith; Dissent by Judge Watford SUMMARY* Immigration Affirming 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 panel deferred to a regulation adopted by the United States Citizenship & Immigration Service (“USCIS”) that construed the statutory phrase “accompanying, or following to join” to require that a spouse’s qualifying relationship exist at the time of the filing of the initial U-visa petition. A U visa grants temporary, lawful, nonimmigrant resident status to an alien who has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity in the U.S. and who helped law enforcement investigating or prosecuting that criminal activity. Under 8 U.S.C. § 1101(a)(15)(U)(ii), a U-visa recipient may petition for derivative status for a qualifying relative who is “accompanying, or following to join,” the principal alien. That provision specifies which relationships may qualify for * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. TOVAR V. ZUCHOWSKI 3 derivative U-visa status: “(I) in the case of [a principal alien] 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 [a principal alien] who is 21 years of age or older, the spouse and children of such alien.” The regulation at issue here, 8 C.F.R. § 214.14(f)(2), provides that the relationship between the principal alien and the qualifying family member must exist at the time the principal alien’s petition was filed, must continue to exist at the time the derivative petition is adjudicated, and at the time of the qualifying family member’s subsequent admission to the U.S. The principal alien in this case, Maria Medina Tovar, a Mexican citizen, came to the U.S., was the victim of a serious crime, and was helpful to law enforcement. She submitted her petition for a U visa and later married a Mexican citizen. She was then granted U-visa status and filed for derivative U- visa status for her husband. The USCIS denied that petition on the ground that the ...
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