The USCIS Penchant for Stepmothers: A Preference by Default
The legal issues and the competing arguments surrounding gender based legal distinctions discussed in Flores-Villar v. United States and Nguyen v. INS  invite the USCIS to revisit the statutory objectives concerning eligibility to confer immigration benefits under 8 U.S.C § 201(b)(2)(A)(i) of the INA.
In light of the legislative history and judicial reasoning which justified the permissible distinctions requiring the unwed father to take additional affirmative steps not required of the biological mother, what is the legal or policy logic which permits a step mother to confer immigration benefits when the unwed biological father is deemed ineligible?
Is there a sound legal or policy explanation which allows for gender distinctions between biological parents' eligibility to confer citizenship and between biological parents and step parents' eligibility to confer immigration benefits leading to citizenship?
Nguyen v. INS
In Nguyen the Supreme Court considered whether 8 USC section 1409(a)'s statutory distinction, which imposes different requirements for a child's acquisition of citizenship depending upon whether the citizen parent is the mother or the father, is consistent with the equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment?
Section 309 provides that a child born out of wedlock to a U.S. citizen mother and noncitizen father acquires U.S. citizenship at birth, provided that the mother previously resided in the U.S. for a period of one year. However, a child born out of wedlock to a U.S. citizen father and a noncitizen mother, in order to acquire U.S. citizenship, must meet some additional requirements.
There must be clear and convincing evidence of a blood relationship between the child and the father. In addition, before the child reaches 18 years of age, one of the following events must take place: (1) the child must have been legitimated under the law of his or her residence or domicile; (2) the father must acknowledge paternity of the child in writing under oath; or (3) the paternity of the child must be established by adjudication in a competent court. 
Justice Kennedy, writing for the majority, concluded that the additional requirements imposed by the statute for children of U.S. citizen fathers are justified by two important governmental objectives. The first is the interest in assuring that a biological parent-child relationship exists. Stating that "[f]athers and mothers are not similarly situated with regard to the proof of biological parenthood," the majority found this a permissible basis for Congress to have imposed distinct requirements.
According to the majority, there is nothing irrational or improper in recognizing that at the moment of birth-a critical event in the statutory scheme and tradition of citizenship law-the mother's knowledge of the child and the fact of parenthood has been established in a way not guaranteed to the unwed father.
In the case of the mother, the relation is verifiable from the birth itself. The mother's status is documented in most instances by the birth certificate or hospital records and the witnesses who attest to her having given birth. In the case of the father, the uncontestable fact is that he need not be present at the birth. If he is present, furthermore, that circumstance is not incontrovertible proof of fatherhood. .
The Court reasoned that to speak without reference to the gender of the parent with regard to its objective of ensuring a blood tie between parent and child would be to insist on hollow neutrality.
Given that the mother is always present at birth, but that the father need not be, the facially neutral rule would sometimes require fathers to take additional affirmative steps which would not be required of mothers, whose names will appear on the birth certificate as a result of their presence at the birth, and who will have the benefit of witnesses to the birth to call upon. The issue is not the use of gender specific terms instead of neutral ones. Just as neutral terms can mask discrimination that is unlawful, gender specific terms can mark a permissible distinction.
The second interest that the majority found to justify the statute is "to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop" a "real" rather than just a "formal" relationship "one that consists of the real, everyday ties that provide a connection between child and citizen parent". The Court found that for a mother such an opportunity "inheres in the very event of birth" but that for a father it does not.
The mother knows that the child is in being and is hers and has an initial point of contact with him. There is at least an opportunity for mother and child to develop a real, meaningful relationship. The same opportunity does not result from the event of birth, as a matter of biological inevitability, in the case of the unwed father. Given the Nine (9) month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father's identity . .
The majority also found that the statute is substantially related to the achievement of these important government interests. The Court found that the statute's additional requirements for fathers to pass on their citizenship are not burdensome, as they can be met simply by making a written acknowledgement of paternity under oath, or by legitimating the child, or by obtaining a court order of paternity. While the majority found it "unfortunate" and "even tragic" that the citizen father in this case who raised the child "did not pursue, or perhaps did not know of, these simple steps and alternatives," that omission does not invalidate the statute.
To fail to acknowledge even our most basic biological differences-such as the fact that a mother must be present at birth but the father need not be-risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real.
The majority concluded that distinction embodied in the statutory scheme at issue was not marked by misconception and prejudice, nor does it show disrespect for either class. Rather, the court found opined that the difference between men and women in relation to the birth process is a real one, and the principle of equal protection does not forbid Congress to address the problem at hand in a manner specific to each gender.
Therefore, having found that facilitation of a relationship between parent and child is an important governmental interest, the Court similarly concluded that the means Congress chose to further its objective - the imposition of certain additional requirements upon an unwed father - substantially related to that end.
Flores-Villar v. United States
Flores-Villar which was argued before the Supreme Court on November 10, 2010, will allow the Supreme Court to address the Equal Protection implications of the same statutory scheme that differentiates between men and women  .
In Flores-Villar the petitioner contends that Sections 1401 and 1409, as written, reflect a stereotypical, discriminatory view of parental obligations for men and women, and thereby impermissibly differentiating based on gender  . Further, petitioner argues that Nguyen is distinguishable because in that case, the Supreme Court approved distinctions that were based on biology (i.e., the distinguishing factor was the relationship established by virtue of delivering a baby ). Similarly, human rights organizations argue that all sex-based citizenship laws are inherently irrational and U.S. and international jurisprudence has recognized the presumptive importance of gender equality in citizenship laws.
In contrast, the United States contends that the differential residency requirements for transmission of citizenship are constitutionally permissible because they serve to promote a substantial government interest in preventing statelessness in children namely to prevent the occurrence of stateless children  .
The United States argues that Sections 1401 and 1409 are the permissible products of Congress's balancing a policy of preventing statelessness with the interest of ensuring that citizenship is sufficiently connected to presence in the United States. Thus, the United States concludes that the differential residency requirements are not discriminatory but merely recognize the legal reality facing unwed United States citizen mothers giving birth abroad in jus sanguinis countries, and the biological reality that mothers and fathers are not similarly situated in the determination of transmission of citizenship.
Beacon Call to USCIS
The quality of the deliberation as reflected in the various submissions and the oral argument before the Supreme Court  should inspire the USCIS to recognize the care with which gender based legal distinctions, rights, and benefits must be examined in order to be rational and permissible.
Rather than engage in the sometimes difficult task of study, analysis, and reasoning which should precede the implementation of delegated regulatory authority, the USCIS has in this as well as other instances improperly abandoned the "rule-making" task to the Board of Immigration Appeals [Board]; a component of the Department of Justice established to hear appeals from certain decisions rendered by immigration judges and by district directors of the USCIS.
Congress delegated the authority to promulgate regulations that implement, interpret and fill in the administrative details of the immigration laws to the Department of Homeland Security and not to the board . Accordingly, it is the Department which may, as appropriate, announce or change immigration policies and statutory interpretations through rulemaking actions, so long as the agency's decisions rest on a "rational connection between the facts found and the choice made .
The absence of reasoned thought by the USCIS is evident not only by its failure to adopt substantive rules in the first instance, but failure to adopt rules when prompted by the Court of Appeals. Adoption, by the Board of Immigration Appeals, of the Palmer decision as controlling outside as well as within the Ninth Circuit, was a capitulation by the Board's of its lack of capacity to make rules rather than pre-emption of the authority of USCIS from assuming or exercising its rule making authority 
A "no rule" status quo and the present application of Section 201(b)(2)(A)(i) has produced anomalous outcomes best illustrated by the following two scenarios and reflects a serious misreading of the 1980 decision by the United States Court of Appeals for the Ninth Circuit in Palmer v. Reddy .
"S" Son is born in California out of wedlock to "D" (biological dad) a Mexican citizen visiting in the US and "M" (biological mom) a citizen of the United States. Paternity is established, (via birth certificate and DNA) however, parentage is not established under California Law California Law  and a "parent child relationship" was never established and cannot be demonstrated since "D" moved to Mexico before the birth of "S". "D" never maintained any form of contact with "S" or "M" after "D" moved to Mexico. A year after he returned to Mexico, "D" married "SM".
After 30 years, "D" (biological dad) now desires to immigrate to the United States and the forgiving son "S" wants to petition for his father.
When a petition is filed to classify a beneficiary as a parent under section 201(b)(2)(A)(i) of the Act, the petitioner must establish that he/she once qualified as the beneficiary's child as defined in section 101(b)(1) of the Act.
Section 101(b) of the Act states in pertinent part:
(1) The term "child" means an unmarried person under twenty-one years of age...
(A) a child born in wedlock;
The forgiving son "S" not having been born in wedlock, legitimated or having established a parent child relationship with "D", cannot qualify his biological father under section 201(b)(2)(A)(i) of the Immigration and Nationality Act, as a parent of a citizen of the United States.
However, "S" can qualify "SM" the step mother. Notwithstanding that "S" has never met "SM"; she still qualifies as a [step] parent, simply by virtue of the marriage act between the biological father "D" and the stepmother "SM".
This is so because according to the reasoning by the USCIS:
… federal regulation does not specifically address primary evidence when a petitioner is seeking to qualify a step- relationship with a parent. However, federal regulation does address primary evidence required to establish a step-relationship when a petitioner seeks to establish a step-relationship with a beneficiary stepchild, stepson or stepdaughter. Therefore, in an effort to maintain consistency regarding step-relationships, USCIS will base its decision on primary evidence required in accordance with 8 C.F.R. 204(d)(iv).
8 C.F.R. 204.2(d)(iv), states, in pertinent part:
Primary evidence for a stepchild. If a petition is submitted by a stepparent on behalf of a stepchild or stepson or stepdaughter, the petition must be supported by the stepchild's or stepson's or stepdaughter's birth certificate, issued by civil authorities and showing the name of the beneficiary's parent to whom the petitioner is married, a marriage certificate issued by civil authorities which shows that the petitioner and the child's natural parent were married…and evidence of the termination of any prior marriages of the petitioner and the natural parent of the stepchild or stepson or stepdaughter.
The general common law definition of a step child is a child born to a spouse before the marriage from a prior relationship and not legally adopted. The step relationship is thus created by the marriage of the natural or adoptive custodial parent of minor children to an individual who is not the other natural parent. For immigration purposes, the step relationship is based upon and recognized by virtue of the marriage of the biological parent and the step parent, so long as the marriage occurred prior to the child's 18th birthday and both parents were free to marry at the time of their marriage. According to USCIS, "[A] stepchild relationship is created whenever a parent of the child marries someone (other than the child's other parent) before the child's 18 th birthday. The relationship is created automatically as a result of the marriage, assuming that the marriage is not a sham or does not violate the Defense of Marriage Act - see Matter of Teng , 15 I. & N. Dec 516(BIA 1975) .
In some cases, although a biological father may be ineligible to petition for his illegitimate child, a stepparent-stepchild relationship may exist under the Act between the child and the wife of the natural father even if she has never seen or cared for the child. See Matter of McMillan , 17 I. & N. Dec. 605 (BIA 1981).
Even though statutory distinction, which imposes different requirements for a child's acquisition of citizenship depending upon whether the citizen parent is the mother or the father, have been found to be consistent with the equal protection guarantee and found to be substantially related to the achievement of important government interests, the USCIS regulation does not take into account the legislative intent of the rationally based distinctions, in this instance between stepmothers and biological fathers 
Hence, when a petition is filed to classify a beneficiary as a [step] parent under section 201(b)(2)(A)(i) of the Act, the petitioner must only establish that he/she once qualified as the beneficiary's child as defined in section 101(b)(1)(B) of the Act, which includes "… a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred." No distinction is made between a petitioning step mother or step father.
Conversely, a USC stepmother can qualify a stepchild that she has never met by virtue of the marriage to the biological father under section 201(b)(2)(A)(i) of the Immigration and Nationality Act, as a child of a citizen of the United States even though, the child was born out of wedlock, not legitimated by the biological father, and lack of a parent child relationship. In other words, while the biological father is not qualified to petition for his biological son, the unknown step mother is qualified by virtue of the marriage act.
In construing section 101(b)(1)(B), the Board of Immigration Appeals (Board) long adhered to the view that given the underlying Congressional policy of reuniting families, the mere fact of a marriage which technically creates a step relationship does not in itself establish a stepparent-stepchild relationship for purposes of the immigration laws. Moreover, the Board had until recent date imposed the additional requirement that a close family unit be shown to exist between the stepparent, the stepchild, and the natural parent. See Nation v. Esperdy, 239 F.Supp. 531 (S.D.N.Y. 1965); Matter of The, 11 I&N Dec. 449 (BIA 1965).
However, the Board reexamined that position in Matter of Moreira, Interim Decisions 2720 and 2792 (BIA 1979 and 1980), and established a new standard that modified to some extent the close family unit test. After careful review of relevant legislative history and pertinent Board and court decisions, the Board held that a step relationship exists for immigration purposes where, prior to the stepchild's eighteenth birthday, the step-parent not only married the child's natural parent but evinced an active parental interest in the child's support, instruction and general welfare.
Subsequently, in Palmer v. Reddy, 622 F.2d 463 (9 Cir. 1980), the United States Court of Appeals for the Ninth Circuit specifically rejected both the Moreira "active parental interest" test and its predecessor, the "close family unit" rule, concluding that persons who become stepchildren through the marriage of a natural parent prior to their eighteenth birthday are entitled to visa preference as a class under section 101(b)(1)(B) without further qualification. The Board has adopted the Palmer interpretation as controlling outside as well as within the Ninth Circuit. [See Matter of McMillan Interim Decision 2844 (Decided by Board January 13, 1980)
Notwithstanding the unqualified language of the statute, the Immigration and Naturalization Service INS has applied an interpretative gloss to the statute and attaches conditions to the grants of visa preference to stepchildren. …
USC petitioner "USC" marries husband "H" in a foreign country. USC spouse judiciously files a Form I-130 petition for Alien Relative, which is subsequently approved by the USCIS on February 14, 2006.
Beneficiary "H" now seeks to adopt and bring his three year old niece and five year old nephew to the US.
8 C.F.R. 204.2(d)(2)(vii) states, in pertinent part:
Primary evidence for an adopted child or son or daughter. A petition may be submitted on behalf of an adopted child or son or daughter…if the adoption took place before the beneficiary's sixteenth birthday and if the child has been in the legal custody of the adopting parent or parents for at least two years and has resided with the adopting parent or parents for at least two years. A copy of the adoption decree, issued by the civil authorities, must accompany the petition.
8 C.F.R. 103.2(b)(1) states, in part:
Demonstrating eligibility at time of filing. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or petition.
If both USC spouse and "H" (wife and husband) adopt the children and seek to qualify them based on an adoption, the two year residency and legal custody rules must be met by the USC petitioner, a the time of filing.
However, if "H" concludes the adoption of the children a few days prior to the marriage to USC, then clearly, the children would be considered the USC's "step children" (legal relationship with "H" created before the marriage) and qualify under Section 101(b) of the Act, whether or not born out of wedlock, provided the children had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.
A step relationship is created by the marriage of the natural or adoptive custodial parent of minor children to an individual who is not the other natural parent. However, in common law, a child born to one of the partners after the marriage or an "after marriage" creation would not qualify as a step child but rather as generally characterized an "adulterine child". An adulterine child is legally distinct from a step child and by statute and in common law is not accorded or entitled to the same degree of legal recognition and protection.
The US Federal District Courts, in the absence of choice of law issues, have adopted the common law definition by noting definitions in legal dictionaries defining "stepchild" as one's spouse's child by a prior marriage. With the exception of the Board of Immigration Appeals, none of the federal courts have included adulterine children in the broader definition of step children .
This writer is unable to find statutory history that illuminates Congress's understanding of the term "stepchild." The applicable regulations offer little more guidance and Section 101 (b) of the Act implicitly contemplates that a child may become a stepchild only when its parent marries the purported stepparent after its birth, thus excluding the children of adulterous relationships. One therefore should feel constrained to give "stepchild" its normal meaning.
For immigration law purposes, even if the birth and by extension adoption occurs after the marriage between "USC" and "H" as long as "H" individually adopts the children the niece and nephew can qualify under section 201(b)(2)(A)(i) of the Immigration and Nationality Act, as a child of a citizen of the United States, namely, the USC "step mother". For example, unlike the Social Security Act, immigration law does not distinguish between step children and adulterine e children.
As such, the USC spouse can properly petition for the niece and nephew as "step-children" and under the present interpretation, the two year residency and legal custody requirement would not apply. It is not the petitioning USC that is adopting the children, even though, the child parent relationship between "H" and the children was established after the marriage of "H" to the USC.
present USCIS interpretation by virtue of the adoption of the Palmer decision by the Board) solely on the basis of the definition of "step
The Court of Appeals has exhaustively studied the legislative history of the statute and has held that in the absence of statutory history, visa preference is available to stepchildren as a class without further qualification. The Board has "instructed" the USCIS, in its decision in Matter of McMillan that the Palmer interpretation is controlling outside as well as within the Ninth Circuit 
Therefore, even though conditions to the issuance of visas to biological children can issue no conditions to the issuance of visas to stepchildren is authorized by the statute.
Prior to 1935, much of the internal documentation of federal agencies, as well as regulations promulgated by federal agencies to administer and enforce a variety of federal statutes, was not published and systematically accessible to the public, excluding possibly agency personnel, judges and lawyers.
The first act which required the publication of agency rules was the Act of July 26,1935 . A further expansion occurred as a result of the enactment of the Administrative Procedure Act  An important definition within this act was the following contained in § 2:
'Rule' means the whole or any part of any agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of any agency..."
Section 3 of the act mandates that the following types of agency "rules" be published within the Federal Register:
Every agency shall separately state and currently publish in the Federal Register (1) …; (2) …; and (3) substantive rules adopted as authorized by law and statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public …
The rule further provides that except to the extent that a person has actual and timely notice of the terms, a person may not in any manner be required to resort to, or be adversely affected by a matter required to be published in the Federal Register and not so published.
In the context of the decisions of the USCIS, the Federal Courts have frequently noted that while the decisions of the Board are binding on officers and employees of the Department of Homeland Security, the Board is nothing more than an administrative court created by the Department of Justice to review decisions of immigration judges.
In the Court's view, while the Board may interpret the Immigration and Nationality Act and implementing regulations, the Board has no rule-making authority or power to fill regulatory voids by improvising guidelines, in the form of "opinions" and instructions. The Messina Court characterized the BIA's effort as equal to engaging in unauthorized and improper rule making. At most, according to the Messina court, the BIA may comment on the meaning of immigration regulations, but it may not create or amend the regulations.
Within an agency, guidelines, opinions, and instructions may be promulgated and distributed to agency officers and employees informing them as to the manner and method of implementing and enforcing any particular law. However, if these instructions and guidelines meet the definition of a "rule" and if the same be "substantive", they are subject to rule making under the APA and must be published in the Federal Register.  Numerous cases, as will be discussed further below, have found such "instructions" and "guidelines" to agency employee's void for non-publication.
In this instance, the 9th Circuit Court of Appeal was merely re-iterating these long standing principles. Namely, unless Congress clearly intended a specific, technical meaning, a statute is to be interpreted according to the common, ordinary meaning of the words of the statute at the time of enactment . Hence, the Court reasoned that since "stepchild" is not further circumscribed by statue and in the absence of the legislative history or an interpretive agency rule, the court was obliged to apply the word according to the plain, common, and ordinary meaning.
An agency requirement imposed on the public which implements or prescribes law or policy is subject to the Administrative Procedures Act and must be published in the Federal Register; an omission in this respect means that the unpublished rule, opinion, guideline, or instruction is unenforceable against one without notice.
In the Court's view, as discussed in Palmer, the Board is not an agency empowered to adopt, but rather, created to interpret rules to implement the immigration laws. On the other hand, the USCIS is not only authorized but has an affirmative duty to adopt rules, when necessary, rather than abandon the task in favor of an interpretation, which does not take into account the overall scheme and "… underlying Congressional policy of re-uniting families".
Revisiting the Administrative Procedures Act:
One of the best examples of the consequence of an agency's failure to formally adopt and publish a substantive rule is Hotch v. United States. . A federal agency implemented an unpublished regulation which banned commercial fishing. Hotch was prosecuted and convicted for violating this regulation. He filed a petition for rehearing and asserted for the first time on appeal the issue of the non-publication of this substantive rule, and this directly caused a reversal of his conviction.
The court held:
The [Administrative Procedure Act], set up the procedure which must be followed in order for agency rulings to be given the force of law. Unless the prescribed procedures are complied with, the agency (or administrative) rule has not been legally issued, and consequently is ineffective.
In Gonzalez v. Freeman , where there were no regulations, published or unpublished, Gonzalez Corporation, was debarred from conducting business with the Commodity Credit Corporation, for misuse of official inspection certificates. The corporation filed an action challenging the validity of the agency's order imposing a 5 year debarment.
The Court held the agency's action void:
The command of the Administrative Procedure Act is not a mere formality. Those who are called upon by the government for a countless variety of goods and services are entitled to have notice of the standards and procedures which regulate these relationships. Neither appellants nor others similarly situated can turn to any official source for guidance as to what acts will precipitate a complaint of misconduct, how charges will be made, met or refuted, and what consequences will flow from misconduct if found.
[W]e cannot agree that Congress intended to authorize such consequences without regulations establishing standards and procedures and without notice of charges, hearings, and findings pursuant thereto. Absent such procedural regulations and absent notice, hearing and findings in this case, the debarment is invalid.
In Berends v. Butz , as a result of severe and excessive rainfall in 15 counties in Minnesota in early 1972, the Secretary of Agriculture declared that such counties were "natural disaster areas" and declared that emergency farm loans would be available until June 30, 1973; this notice was published in the Federal Register. Secretary Butz subsequently terminated the emergency loan program by an unpublished order issued December 27, 1972.
In a suit instituted by several farmers complaining about the failure of the Department of Agriculture to accept loan applications, the court held:
In adopting the directive of December 27, 1972, defendants did not comply with even one of these mandatory requirements, despite the fact that the directive would have a substantial impact on those regulated, and hence is a 'rule' as contemplated in the statute.
Inherent in these provisions is the concept that the public is entitled to be informed as to the procedures and practices of a government agency, so as to be able to govern their actions accordingly. The termination of the emergency loan program was without any notice, and was in violation of the provisions of the statute.
In Morton v. Ruiz , a Native American named Ruiz, being otherwise eligible for Indian welfare benefits available through a Congressional appropriation, was denied such benefits on the basis of an unpublished agency manual which denied benefits to all Indians but those living "on" Indian reservations.
The Court construed the appropriations act as extending benefits to Indians who lived "on or near" a reservation, and held:
The Administrative Procedure Act was adopted to provide, inter alia, that administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations.
The conscious choice of the Secretary not to treat this extremely significant eligibility requirement, affecting rights of needy Indians, as a legislative-type rule, renders it ineffective so far as extinguishing rights of those otherwise within the class of beneficiaries.
At issue in Appalachian Power Company v. Train, was the failure of the EPA to publish a very lengthy 263 page document, to establish standards for effluent emissions, in the Federal Register. Because the document itself constituted a substantive agency regulation which was not published, it was held invalid:
[T]he Development Document is not a validly issued part of the regulations, because it has not been published in the Federal Register, nor have the procedural requisites for incorporation by reference been complied with. With this position we agree, and hold that 40 C.F.R., section 402.12 is not enforceable for want of proper publication.
Any agency regulation that so directly affects pre-existing legal rights or obligations ..., indeed that is 'of such a nature that knowledge of it is needed to keep the outside interests informed of the agency's requirements in respect to any subject within its competence,' is within the publication requirement.... As the substance of a regulation imposing specific obligations upon outside interests in mandatory terms ..., the information in the Development Document is required to be published in the Federal Register in its entirety, or, in the alternative, to be both reasonably available and incorporated by reference with the approval of the Director of the Federal Register.
Dean v. Butz involved an agency determination that security deposits for rental housing paid by a government agency should be considered as "income" for food stamp purposes, this determination being made by an unpublished letter.
In holding this agency policy void for lack of publication, the Court held: The unpublished letter does not involve housekeeping operations or adjudicatory opinions.
It is a clarification of existing regulations. It, however, does have a significant impact upon a segment of the public, the members of the class here. If the monies for security deposits are counted as income to the members of the class, the class members must pay more for food stamps.... The effect of an increased cost for food tamps has a substantial impact upon their limited budgets. Therefore, under the Ninth Circuit's test, the regulation is of general applicability. Since the Mellinger letter was not published in the Federal Register, as required by 5 U.S.C. section 552(a)(1)(D), it is invalid.
The question before the court in Vigil v. Andrus  was the validity of the curtailment of a school lunch program to all Indian children regardless of need. This program was transferred to the Department of Agriculture, which then provided free lunches only to the needy.
Non-publication of the transfer of the program to the Department of Agriculture and consequent elimination of certain children from the program was declared void:
If a substantive rule or general policy is not published, parties without actual notice cannot be adversely affected by it.
Therefore, we find the BIA's policy changes invalid for want of publication. If the BIA wishes to eliminate non-needy Indian school children from the free lunch program, it must comply with its current rulemaking procedures.
In Herron v. Heckler , an unpublished Social Security claims manual provided for the reduction or elimination of Social Security benefits in the event the beneficiary owned property valued in excess of a certain amount. The manual's provision limiting benefits was void for want of publication in the Federal Register:
The claims manual provisions clearly fall within the definition of 'rule' quoted above: they are an agency statement; they are applicable prospectively to a class of SSI beneficiaries generally and to the named plaintiff particularly; and by defendants' own admission in their memoranda, they are designed to implement, interpret and/or prescribe law. Moreover, the claims manual provisions are 'rules' as the term generally has been construed by the courts: they declare policies generally binding on the affected public; they provide specific standards to regulate future actions of the affected public; and they make a substantive impact on the rights and duties of persons subject to their limitations.
In sum, the Secretary was required, by the express terms of the APA and the 'substantial impact' principle, to notify the public and to solicit comments before she promulgated the claims manual limitations at issue here. Her failure to comply with the notice and comment provisions of the APA renders the challenged limitations oid and unenforceable.
In Gardiner v. Tarr, variation of a rule by the issuance of a "Letter to All State Directors" and a temporary "instruction", both of which were not published in the Federal Register notwithstanding the fact that the same had an adverse impact upon such objectors were found void as unpublished substantive rules:
[I]t is inconceivable that policies intended to have force and effect ….may be considered anything other than 'Rules and Regulations', notwithstanding the label attached by Defendant, and may be applied to Plaintiffs or any affected registrantwithout having been published in a manner in accordance with the Act. Whatever Defendant has entitled these unpublished but written policies, they 'purport[s] to be an authoritative declaration of policy issued for the guidance of the [Selective Service] System's line officers....' Therefore, the letters and Temporary Instruction in question are as much 'regulations' as any administrative agency's standardized, enforced, and broad policy directives.
Similar issues were raised in Piercy v. Tarr , concerning validity of an unpublished instruction affecting the food stamp program and in Aiken v. Obledo . Decisions based upon unpublished "instruction" to employees administering the program which limited eligibility by imposing additional requirements were held void for want of publication:
The 'collateral contact' and 'six month' rules set forth in the instruction in question have the force of law....
Procedural rules are those that relate to the method of operation of the agency, while substantive rules are those which establish standards of conduct or entitlement....
Since it is undisputed that the 'collateral contact' rule was not so published, it was adopted in violation of notice and comment provisions of the APA and must be declared void and set aside…
It is thus clear from the above representative samples of the multitude of similar administrative law cases, that an agency's failure to publish any document (regardless of how named by the agency) which is designed to implement or prescribe law is a "rule" which is void and unenforceable. The above case authority also show that "instructions" and "guidelines" and "opinions" given to agency personnel to limit entitlement to statutory benefits are subject to the publication requirement
It is established that when the court must review an agency's construction of a statute which it administers, the court must first consider whether Congress has directly addressed the issue. "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."
However, if the court determines that the statute is ambiguous, the court must then determine if the agency's construction of the statute is reasonable. If the construction is a reasonable one, then the court will accord the agency's interpretation deference unless it appears from the statute or its legislative history that the agency's construction is contrary to clear Congressional intent.
Here, the INA does not explicitly define stepchild and the USCIS has not adopted interpretive rules, thus, inviting the Board of Immigration Appeals to once again fill the void by devising reasoning and guidelines for the agency as a substitute for absent rules. The Court did not find fault in the reasoning or standards or guidelines proffered a by the Board only that such guidelines cannot substitute for rules by the USCIS.
To re-iterate, unless Congress clearly intended a specific, technical meaning, in the absence of statutory history and agency rules, a statute is to be interpreted according to the common, ordinary meaning of the words of the statute at the time of enactment. Hence, the Court held "…we interpret 'stepchild' literally and hold that it is not impliedly restricted by the INS [rule] or its interpretation [statutory history]….
Further, it should be observed that the decision in the Palmer case has broader implications for the USCIS. Namely, agency adjudications which are solely based upon Board reasoning and guidelines or policy instructions in lieu of formal agency rules are equally vulnerable on judicial review. This exposure has been made known to the USCIS in several District and Appellate court decisions other than Palmer.
In the context of step relationships, do present USCIS interpretations concerning petitions where step relationships are "terminated" incident to divorce or death, step children petitions without an underlying petition on behalf of the biological parent, or petitions filed on behalf of children born as consequence of an adulteress relationship, comport with the court's ruling?
Unless the Congress intended for immigration laws to be applied in a manner which favors step-relationships relative to biological relationships, the status quo, which has been in effect since 1980, merits the immediate attention of the USCIS.
1United States v. Flores-Villar, 536 F.3d 990 (9th Cir. Cal. 2008), cert. granted sub nom., Flores-Villar v. United States, 2010 U.S. LEXIS 2743 (U.S. Mar. 22, 2010) (09-5801). The Ninth Circuit, relying on the Supreme Court's decision in Nguyen v. INS, 533 U.S. 53 (2001), found that the residency requirements pass intermediate scrutiny. In Nguyen, the Supreme Court upheld a requirement that U.S. citizen fathers take affirmative steps (i.e., legitimation; a declaration of paternity under oath by the father; or a court order of paternity) in order for a child to acquire citizenship, even though U.S. citizen mothers are not required to take such steps.
As to an individual born under the same circumstances, save that the parents are unwed, § 1409(a) sets forth the following requirements where the father is the citizen parent and the mother is an alien:
"(1) a blood relationship between the person and the father is established by clear and convincing evidence, "(2) the father had the nationality of the United States at the time of the person's birth, "(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and "(4) while the person is under the age of 18 years"(A) the person is legitimated under the law of the person's residence or domicile, "(B) the father acknowledges paternity of the person in writing under oath, or "(C) the paternity of the person is established by adjudication of a competent court."
In addition, § 1409(a) incorporates by reference, as to the citizen parent, the residency requirement of § 1401(g).
When the citizen parent of the child born abroad and out of wedlock is the child's mother, the requirements for the transmittal of citizenship are described in § 1409(c): Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year."
Section 1409(a) thus imposes a set of requirements on the children of citizen fathers born abroad and out of wedlock to a noncitizen mother that are not imposed under like circumstances when the citizen parent is the mother.
"(c) Rule and rule making. -- 'Rule' means the whole or any part of any agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of any agency..." Section 3 of the act requires the following types of agency "rules" be published within the Federal Register:
"(a) Rules. Every agency shall separately state and currently publish in the Federal Register (1) descriptions of its central and field organization including delegations by the agency of final authority and the established places at which, and methods whereby, the public may secure information or make submittals or requests; (2) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal or informal procedures available as well as forms and instructions as to the scope and contents of all papers, reports, or examinations; and (3) substantive rules adopted as authorized by law and statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public, but not rules addressed to and served upon named persons in accordance with law. No person shall in any manner be required to resort to organization or procedure not so published."
Yosef Yacob has a BA in Economics (Honors) Linfield College, JD Northwestern School of Law of Lewis & Clark College, LLM (International Civil Litigation), University of San Diego, PhD in Law (International Law) Osgoode Hall School of Law, York University.
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