Commercial Litigation and Arbitration

Existence of Circuit Split on Meaning Does Not Itself Establish That Statutory Text Is Ambiguous

Cuellar De Osorio v. Napalitano, 695 F.3d 1003 (9th Cir. 2012):

The existence of a circuit split does not itself establish ambiguity in the text of the CSPA [Child Status Protection Act]. See, e.g., Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350, 182 L. Ed. 2d 341 (2012) (holding that § 906(c) of the Longshore and Harbor Workers' Compensation Act is unambiguous notwithstanding disagreement between the Fifth, Ninth, and Eleventh Circuits about its meaning); Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 182 L. Ed. 2d 720 (2012) (holding that the term "individual" as used in the Torture Victim Protection Act unambiguously encompasses only natural persons despite disagreement among several Circuits); see also Reno v. Koray, 515 U.S. 50, 64-65, 115 S. Ct. 2021, 132 L. Ed. 2d 46 (1995) ("A statute is not 'ambiguous for purposes of lenity merely because' there is 'a division of judicial authority' over its proper construction." (quoting Moskal v. United States, 498 U.S. 103, 108, 111 S. Ct. 461, 112 L. Ed. 2d 449 (1990)). Like the Fifth Circuit, we recognize that the Second Circuit concluded that a petition cannot be automatically converted where a change in petitioner is required, and we respectfully disagree. See Khalid, 655 F.3d at 373 (citing Li, 654 F.3d at 383). The Second Circuit's decision not to consider the interrelatedness of sections (h)(1), (h)(2) and (h)(3) does not undermine our conclusion that the statute, read as a whole, unambiguously answers the question before us.

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