In a split decision, a federal appellate panel said Wednesday that the nation’s immigration agency is violating the Cuban Adjustment Act of 1966 by not granting all spouses of exiles a 30-month rollback on their status as permanent residents — and thus delaying their path to U.S. citizenship.
The case stems from a 2011 lawsuit filed by Camila Maria Silva-Hernandez in Miami against the U.S. Citizenship and Immigration Services.
Silva-Hernandez came to the U.S. on a tourist visa from her native Brazil in December 2001 and never went back. She married Eduardo Hernandez, a Cuban, on Aug. 27, 2010. He became a lawful permanent resident under the Cuban Adjustment Act on April 9, 2000.
Silva-Hernandez’s application for residency was approved but her issue was that the government did not grant her the 30-month rollback for spouses of exiles as spelled out by the act, granting her permanent residence at the time of her marriage date. She argued the date should have been April 5, 2008.
The rollback is important because it would give Silva-Hernandez a head start on her path to U.S. citizenship, according to her complaint.
“Silva-Hernandez seeks to integrate fully into American life, society and culture,” her attorney, Anis N. Saleh of Saleh & Associates in Coral Gables, wrote in the complaint.
The government’s misinterpretation of the Cuban Adjustment Act would result in nearly a two-year and five-month delay before Silva-Hernandez could become eligible to apply for citizenship, Saleh wrote in the complaint.
Senior U.S. District Judge Paul C. Huck in Miami ruled in favor of the government, finding that under Silva-Hernandez’s scenario, a non-Cuban spouse could have an earlier rollback than the Cuban-born spouse. “A literal application of the CAA’s spousal rollback provisions … would yield results that are absurd in the light of their legislation intent.”
The U.S. Court of Appeals for the Eleventh Circuit disagreed, finding that the government was not following the letter of the Cuban Adjustment Act that called for a 30-month rollback for all spouses of Cuban exiles from the date of their marriage.
The panel consisted of Judges Stanley Marcus and Susan H. Black and Orinda Evans, who was sitting as a visiting jurist from the U.S. District Court in Atlanta. In the unsigned opinion, the court ruled that the government’s pattern and practice of limiting the date of lawful permanent residence based on the date of marriage is “contrary to the unambiguous language of the CAA.”
Evans, though, dissented, writing that the Cuban Adjustment Act “clearly shows Congress intended the special rollback provision be accorded only to immigrants from Cuba and their spouses at the time of immigration.”
“We’re currently reviewing the court’s decision and have made no determination as to what the government’s next step will be in the matter,” said Charles Miller, spokesman for the U.S. Department of Justice’s Civil Division.
The government can ask the Eleventh Circuit to rehear the case among all its judges or appeal the decision to the U.S. Supreme Court.
Salah said the Justice Department fought the issue hard. He felt the Silva-Hernandez case presented the opportunity to right a wrong in immigration policy he has observed during the two decades he has practiced law.
“For years, their interpretation was wholly incorrect, and no one ever challenged immigration on this issue,” he said.
He said USCIS, and its predecessor agency, the Immigration and Naturalization Service, decided to interpret the statute in a way that was contrary to congressional intent.
“You can’t just have an agency making policy and applying it across the board despite the plain statutory language,” he said.