Dorbor, James v. The United States of America et al
OPINION and ORDER granting 17 Plaintiff's Motion for Summary Judgment; denying 20 Defendants' Motion for Summary Judgment. Signed by District Judge James D. Peterson on 3/29/19. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JAMES DENNIS DORBOR,
OPINION and ORDER
THE UNITED STATES OF AMERICA,
JEFFERSON SESSIONS, ELAINE DURK,
JAMES McCAMENT, THOMAS CIOPPA,
and KAY LEOPOLD,
Plaintiff James Dennis Dorbor is a citizen of Liberia seeking to be naturalized as a
United States citizen. His application for citizenship has been denied by the U.S. Citizenship
and Immigration Service (USCIS), and he turns to this court for de novo review of that
decision, as provided under 8 U.S.C. § 1421(c).
The government contends that Dorbor was erroneously granted status as a legal
permanent resident (LPR) in 2009, and because he did not qualify for LPR status then, he does
not qualify for citizenship now. The parties agree that Dorbor qualified when he applied for
LPR status because his wife had asylum status. The question is whether he still qualified after
he and his wife divorced, which was after he applied but before his application was granted.
Both sides move for summary judgment. Dkt. 17 and Dkt. 20.
The facts of this case are undisputed, and the decisive issue is the interpretation of 8
U.S.C. § 1159(b)(3), which states that an asylee may not adjust to the LPR status unless the
applicant “continues to be a refugee . . . or a spouse or child of such a refugee.” § 1159(b)(3).
The question is whether the word “continues” refers to the time the application was filed or to
the time the agency decided the application. In isolation, § 1159(b)(3) is ambiguous; both
Dorbor and the government propose reasonable interpretations of the statue. But the text,
purpose, and history of the statute as a whole, as well as related immigration statutes and case
law, support Dorbor’s view. The court will grant Dobor’s motion for summary judgment and
deny defendants’ motion. This makes it unnecessary to consider Dorbor’s alternative argument
that he is entitled to relief because the USCIS failed to adjudicate his application in a
The following facts are undisputed.
Dorbor is a citizen of Liberia. He married Garmai Stubblefield in Liberia in 1987. In
2001, Stubblefield entered the United States and successfully applied for political asylum.
Stubblefield applied to have Dorbor and their three children admitted to the United States as
derivative asylees. Dorbor was admitted to the United States as a derivative asylee in 2004.
Dorbor applied, pro se, for an adjustment to LPR status on May 5, 2006. Dkt. 23-3.
Dorbor’s relationship with his wife had deteriorated, and apparently Dorbor and Stubblefield
did not live together in the United States. In his application for adjustment, Dorbor listed his
marital status as “divorced.” Id. at 4. But Dorbor did not formally divorce Stubblefield until
October 29, 2007, through a petition to the Liberian government.
Dorbor was interviewed in connection with his application for adjustment to LPR status
on February 9, 2009. He explained his marital situation to the USCIS agent. Notes on the
application suggest that Dorbor had clarified during his interview that he was “separated” at
the time of his application. Dorbor was granted LPR status on February 13, 2009, nearly three
years after he filed his application. Dorbor remarried in November 2009.
Dorbor applied for naturalization, with legal representation, on January 14, 2014. He
was interviewed by a USCIS agent on October 15, 2014. Dorbor’s application was denied in a
written decision dated March 2, 2016. Dkt. 23-5. The bases for the 2016 denial were that
Dorbor was divorced at the time of his application for adjustment to LPR status, and that his
marriage to Stubblefield was not bona fide. Dorbor requested reconsideration and a hearing.
Dkt. 23-6. After two further hearings, the USCIS reaffirmed the denial in a decision dated May
8, 2017. The sole basis for the ultimate decision in 2017 was:
In your case, according to your testimony and your documentary
evidence, the petition ceased to be valid because you divorced
your petitioning spouse before your adjusted status.
Dorbor’s petition to this court followed.
Under 8 U.S.C. § 1421(c), Dorbor is entitled de novo review in district court of the
denial of his application for naturalization. The question is whether Dorbor has met his burden
to show that he meets the statutory requirements for naturalization. Berenyi v. Immigration &
Naturalization Serv., 385 U.S. 630, 636–37 (1967). The district court has no equitable authority
to naturalize applicants who are ineligible under the law. Immigration & Naturalization Serv. v.
Pangilinan, 486 U.S. 875, 885 (1988). Dorbor requests an evidentiary hearing in his complaint,
Because the agency ultimately did not find that the marriage was fraudulent and the
government doesn’t develop an argument that it is entitled to relief on that ground, the court
will not considered that issue further. Dorbor’s marriage to Stubblefield was not a happy one,
but the record shows that it was a bona fide marriage.
but no hearing is needed because the facts are sufficiently developed and the material facts are
At issue in this case is 8 U.S.C. § 1159, which allows refugees who have been granted
asylum to apply for an adjustment of status to that of a lawful permanent resident. The five
requirements for adjustment are stated in subsection (b):
(b) Requirements for adjustment The Secretary of Homeland
Security or the Attorney General, in the Secretary’s or the
Attorney General’s discretion and under such regulations as the
Secretary or the Attorney General may prescribe, may adjust to
the status of an alien lawfully admitted for permanent residence
the status of any alien granted asylum who—
(1) applies for such adjustment,
(2) has been physically present in the United States for at
least one year after being granted asylum,
(3) continues to be a refugee within the meaning of section
1101(a)(42)(A) of this title or a spouse or child of such a
(4) is not firmly resettled in any foreign country, and
(5) is admissible (except as otherwise provided under
subsection (c)) as an immigrant under this chapter at the
time of examination for adjustment of such alien.
Upon approval of an application under this
subsection, the Secretary of Homeland Security or
the Attorney General shall establish a record of the
alien’s admission for lawful permanent residence as
of the date one year before the date of the approval
of the application.
8 U.S.C. § 1159(b).
As explained above, the dispositive issue is the meaning of “continues” in subsection
(b)(3). Dorbor contends that the word means that the applicant must be an eligible refugee, or
the spouse or child of a refugee, at the time of application. The government contends that
(b)(3) requires that the applicant remain an eligible refugee, or the spouse or child of a refugee,
until the status adjustment decision is made. Neither side cites any precedent directly on point,
and the court has found none.
Statutory interpretation begins with the text of the statute, and it ends there if the
meaning is plain. BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004). The terms of
the statute should get their “ordinary and popular sense,” unless they are specially defined.
Sebelius v. Cloer, 569 U.S. 369, 376 (2013). Statutory construction is a “holistic endeavor,” that
should account for the statute’s full text as well as its structure and subject matter. Trustees of
Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund v. Leaseway
Transp. Corp., 76 F.3d 824, 828 (7th Cir. 1996).
Neither side points to any agency interpretations of (b)(3) to which the court must
defer or that otherwise provide useful guidance.2 A USCIS policy manual states that “[a]
derivative asylee must continue to meet the definition of a spouse or child of a refugee both at
the time of filing and final adjudication of the adjustment application.”3 As Dorbor contends,
and the government apparently concedes, the manual is entitled deference based only on its
The agency has promulgated a regulation related to § 1159(b)(3), but it is nearly identical to
the statute. The only difference is the addition of a comma and the word “is.” 8 C.F.R.
§ 209.2(a)(iiii) (alien may not be admitted for permanent residence unless he or she
“[c]ontinues to be a refugee within the meaning of section 101(a)(42) of the Act, or is the
spouse or child of a refugee”) (emphasis added). The addition of the comma and that verb “is”
in the regulation raises the question whether the verb “continues” even applies to the
requirement that the applicant be “the spouse or child of a refugee.” But there is no explanation
for why the agency added a different verb to the second clause and neither side relies on the
regulation, so the court will not consider it.
See U.S. Citizenship and Immigration Services, “Policy Manual,” available at
“power to persuade.” See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Because the manual
doesn’t provide any reasoning for its interpretation, it has no persuasive power.
The government says that (b)(3) is unambiguous in requiring that the applicant remain
eligible until the status adjustment decision is made. But the government does not conduct any
textual analysis of its own. Instead, it relies instead on two cases, Bazzi v. Ashcroft, 118 F. App’x
953, 957 (6th Cir. 2004), and Siwe v. Holder, 742 F.3d 603 (5th Cir. 2014), but neither is on
point. In Bazzi, the court concluded that an immigrant was ineligible for adjustment to LPR
status because he engaged in marriage fraud. The court quoted (b)(3) as part of its explanation
for why Bazzi could not apply for a status adjustment, but it did not construe the word
In Siwe, the question was whether an asylee who had his asylum status terminated could
nevertheless apply for adjustment of status to LPR. The court concluded that Siwe was “an
alien granted asylum,” even though he later lost asylum status. The court concluded that being
“an alien granted asylum” was not a continuing-status requirement. As part of its reasoning,
the court pointed to subsection (b)(3), as an example of a continuing-status requirement. But
Siwe did not address the question whether applicant had to continue in refugee status to the
point of decision.
Because there is no case law on point, the court will conduct its own analysis of the text.
Subsection (b)(3) does not expressly state how long an applicant must “continue” to be a
refugee or the spouse or child of a refugee. And, in isolation, one reading of the word
“continues” would suggest that the applicant must “continue” to be a refugee’s spouse
throughout the application process until a decision is reached. But reading § 1159(b) as a whole
supports a different reading. See Maracich v. Spears, 570 U.S. 48, 65 (2013) (“It is necessary
and required that an interpretation of a phrase of uncertain reach is not confined to a single
sentence when the text of the whole statute gives instruction as to its meaning.”).
It is useful to consider (b)(2) and (b)(3) together. Under these provisions, LPR status
may be available to one who “has been physically present in the United States for at least one
year after being granted asylum” and “continues to be a refugee . . . or a spouse or child of
such a refugee.” Paired with (b)(2), the most natural reading of (b)(3) is that the immigrant
must “continue to be a refugee . . . or a spouse or child of such a refugee” for at least one year
after being granted asylum. In other words, the word “continues” refers to the time between the
grant of asylum and the filing of the application, not the time between filing the application
and receiving a decision.
This reading of the relationship between (b)(2) and (b)(3) is consistent with legislative
history of the Refugee Act of 1980, which first enacted § 1159. A Senate Conference Report
explains that the original purpose of the “continues to be a refugee” requirement in § 1159(b)
was to account for the possibility that conditions in the refugee’s home country would change
after asylum was granted. S. REP. 96-256, 1, 1980 U.S.C.C.A.N. 141, 149–50 (“If conditions
have changed in the refugee’s home country so that he would no longer be subject to
persecution upon return, adjustment would not be available.”). This principle was directly
reflected in the Refugee Act of 1980, which allowed the Attorney General to terminate asylum
status if conditions in the asylee’s home country had changed so that the person would no
longer qualify as a refugee. Public Law 96-212, § 101(b).
Other parts of § 1159(b) also support the view that the application and not the
adjustment decision is the relevant point in time. Subsection (b)(1) refers to an alien who
“applies for [an] adjustment,” not to an alien who “applied” for an adjustment at some point in
the past. See Carr v. United States, 560 U.S. 438, 448 (2010) (“[W]e have frequently looked to
Congress’ choice of verb tense to ascertain a statute’s temporal reach.”). Again, (b)(2) requires
the applicant to be “physically present in the United States for at least one year after being
granted asylum.” The only reasonable reading of (b)(2) is that the immigrant cannot apply for
adjustment of status until he has been in the United States for one year. If it was time of the
decision that mattered rather than the time of filing, (b)(2) would be meaningless. See River
Road Hotel Partners, LLC v. Amalgamated Bank, 651 F.3d 642, 651 (7th Cir. 2011) (“[C]anons
of statutory construction urge courts to interpret statutes in ways that make every part of the
statute meaningful.”). As this case shows, it can take much longer than one year to render a
decision. And even if the delay in Dorbor’s case was unusually long, an applicant has no way
of knowing how long it will take the agency to make a decision, so he wouldn’t know when he
could first file an application.
There is one requirement in § 1159(b) that clearly relates to an applicant’s status at the
time of the agency’s decision. Specifically, (b)(5) says that the applicant must be “admissible .
. . as an immigrant at the time of examination for adjustment.” And it makes sense that an
applicant would have to meet that requirement up until the approval of his application. The
reasons that an immigrant may be “inadmissible” include criminal conduct, terrorist activities,
and affliction with a communicable disease. 8 U.S.C. § 1182. Unlike an applicant’s divorce,
these are issues that raise serious concerns about the applicant’s suitability for LPR status
regardless of when they occur.
The more important point is that (b)(5) is evidence that Congress made its intention
clear when it wanted the agency to consider events that occurred after the filing of the
application. The fact that (b)(3) omits such language is further textual support that an
applicant satisfies that subsection if he is married to an asylee at the time he files his
application. See Dean v. United States, 556 U.S. 568, 573 (2009) (“[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” (internal quotations omitted)).
The textual clues in § 1159(b) may not be conclusive evidence of the meaning of
“continues” in (b)(3), but the government has pointed to no contrary evidence. And adopting
Dorbor’s interpretation would also make (b)(3) consistent with other similar immigration
provisions. This is relevant because one of the primary purposes of the Refugee Act of 1980 (of
which § 1159 is a part) is to put refugees on the same footing as other immigrants. S. REP. 96256, 1, 1980 U.S.C.C.A.N. 141, 142 (one of the statute’s “basic objectives” is to “repeal the
current immigration law’s discriminatory treatment of refugees” and “accord refugee
admissions the same immigration status given all other immigrants”).
The Child Status Protection Act, Public Law 107–208, made age at application the
critical point for several immigration provisions. To cite one closely related example, under 8
U.S.C. § 1158(b)(3)(B), it is age at application rather than age at adjudication that determines
whether a child is eligible for asylum as a derivative asylee:
Continued classification of certain aliens as children
An unmarried alien who seeks to accompany, or follow to join, a
parent granted asylum under this subsection, and who was under
21 years of age on the date on which such parent applied for
asylum under this section, shall continue to be classified as a child
for purposes of this paragraph and section 1159(b)(3) of this title,
if the alien attained 21 years of age after such application was filed
but while it was pending.
Section 1158(b)(3)(B) is distinguishable from § 1159(b)(3) because § 1158 includes express
language directing the agency to consider the date of application. But, as Dorbor points out,
courts have construed a different statute, 8 U.S.C. § 1255(d), the same way despite more
ambiguous language. See Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010); Choin v. Mukasey,
537 F.3d 1116 (9th Cir. 2008). Section 1255(d) permits individuals with certain types of visas
to seek permanent residence if they are in the country “as a result of the marriage of the
nonimmigrant (or, in the case of a minor child, the parent) to [a] citizen.”
In Choin, the court considered whether the applicant must be married as of the date of
application or the date of adjudication under § 1255(d). In Carpio, the court considered the
same question but in the context of determining when a child must be a minor. In both cases,
the court acknowledged that the language of the statute did not give a clear answer, but in both
cases the court concluded that the date of application was controlling. Both courts reviewed
the language and purpose of the statute and found nothing that would compel a contrary
conclusion. And both courts observed that basic principles of fairness favored a
date-of-application approach. Specifically, if the date of adjudication were controlling, it would
lead to arbitrary decisions. Applicants have little control over how long the agency takes to
adjudicate an application, so they should not be penalized because of changes that occur “while
their application for adjustment of status languishes in the agency’s file cabinet.” Choin, 537
F.3d at 1121.
Although § 1255(d) and § 1159(b) use different language and apply to different types
of immigrants, the reasoning in Choin and Carpio is instructive. As in those cases, the
government hasn’t pointed to any text, purpose, or history of § 1159(b)(3) that supports its
more restrictive reading of the statute. In fact, the government hasn’t pointed to any
immigration statute that expressly requires the agency to determine marriage status at the time
of adjudication or any court that has construed a statute that way. And the same concerns
about fairness that applied in Choin and Carpio apply in this case as well. The government
hasn’t identified any legitimate government interest that is served by construing § 1159(b)(3)
to render an application invalid simply because the applicant’s marital status changes after
The court concludes that Dorbor’s interpretation of § 1159(b)(3) is correct, and that
the grant of his application for adjustment to LPR status was properly granted. And, as that
was the only impediment to his naturalization, the USCIS wrongly denied his application for
IT IS ORDERED that
1. Plaintiff James Dennis Dorbor’s motion for summary judgment, Dkt. 17, is
GRANTED and defendants’ motion for summary judgment, Dkt. 20, is DENIED.
2. Defendants are directed to approve Dorbor’s application for naturalization.
3. The clerk of court is directed to enter judgment in favor of Dorbor and close this
Entered March 29, 2019.
BY THE COURT:
JAMES D. PETERSON
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