Supplemental Memorandum in Support of Motion to Dismiss

Case 2:07-cv-05696-CAS-MAN Document 32 Filed 02/11/2008 Page 30 of 32
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with respect to the issue, “the court does not simply impose
its own construction on the statute . . . . Rather, if the
statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute.”
Id. at 843. The Agency’s interpretation will be permissible
unless it is “arbitrary, capricious, or manifestly contrary to
the statute.” Id. at 844. That the regulation at issue here,
8 C.F.R. § 205.1, is not arbitrary, capricious, or manifestly
contrary to the statute is manifest from the fact that since
at least 1976, the Department of Homeland Security (and the
former Immigration and Naturalization Service) has
consistently applied the same interpretation. See Barnhart v.
Walton, 535 U.S. 212, 220, 122 S. Ct. 1265, 152 L. Ed. 2d 330
(2002) (noting that courts should normally accord particular
deference to an agency interpretation of “longstanding”
duration) (citing North Haven Bd. of Ed. v. Bell, 456 U.S.
512, 522, n. 12 (1982)). Where, as here, the Agency has, for
over twenty years, uniformly construed section 1155 to permit
automatic revocation of petitions in certain instances, the
Agency’s longstanding interpretation is entitled to, and
should have been accorded, this Court’s deference. Id.
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Defendants’ Supplemental Memorandum of Law
In Support of Motion to Dismiss -23-
Case No. CV07-05696 (CAS)