Regis v. Holder, Jr., No. 13-1988 (4th Cir. 2014)
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Petitioner, a native and citizen of the Philippines, entered the United States on a K-2 visa as the minor child of his mother, but he turned 21 before he applied for an adjust of status to lawful conditional permanent resident. The IJ denied the application because petitioner did not qualify as a minor child under 8 U.S.C. 1255(d) and the BIA affirmed. The court found the BIA's determination of "minor child" status in Matter of Le well-reasoned and concluded that the BIA's analysis embraces the existing statutory and regulatory framework, reaching a result consistent with that framework. The BIA's interpretation of the Immigration and Nationality Act - that a K-2 visa holder seeking adjustment of status must be under 21 at the time of admission - is therefore a permissible construction and is owed Chevron deference. Accordingly, the court denied the petition for review.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1988 NOEL JOSEPH MENOR REGIS, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 16, 2014 Decided: October 16, 2014 Before DUNCAN, AGEE, and DIAZ, Circuit Judges. Petition denied by published opinion. Judge Agee opinion, in which Judge Duncan and Judge Diaz joined. wrote the ARGUED: Alfred Castro Tecson, TECSON LAW OFFICE, Annandale, Virginia, for Petitioner. Colin James Tucker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney General, Civil Division, Anthony W. Norwood, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. AGEE, Circuit Judge: Petitioner Noel Joseph Menor Regis entered the United States in 2007 on a K-2 visa as the minor child of his mother, a nonimmigrant fiancée K-1 visa holder. After his mother married the U.S. citizen who had petitioned for the family s K visas, Regis applied permanent to adjust resident. his The status United to lawful States conditional Citizenship and Immigration Services ( USCIS ) denied Regis application because he had turned 21 before he entered the United States and was therefore § 1255(d). not a qualifying minor child. See 8 U.S.C. An immigration judge ( IJ ) agreed with USCIS, and the Board of Immigration Appeals (the Board ) affirmed. In his petition for review to this Court, Regis contends that a K-2 visa holder s eligibility for adjustment of status should be determined not by his age on the date of entry into the United States, but rather initially sought the K-2 visa. by his age at the time he Because we conclude that the Board s interpretation of the relevant statutory provisions is entitled to deference, we deny Regis petition for review. 2 I. Background A. The Immigration Application Process The Act ) Immigration defines two and Nationality classes of Act (the nonimmigrant INA aliens or the that are pertinent to this appeal: (i) . . . the fiancée or fiancé of a citizen of the United States . . . who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission; [and] (iii) . . . the minor child of an alien described in clause (i) . . . accompanying, or following to join, the alien[.] 8 U.S.C. § 1101(a)(15)(K)(i), (iii) (emphasis added). The K visa process begins when a U.S. citizen petitions the Department of Homeland Security to designate a foreign national as a nonimmigrant § 1184(d)(1); fiancé or fiancée (the 8 C.F.R. § 214.2(k)(1). fiancée ). Id. If the fiancée has a minor child that is accompanying or following to join her, that child may without approved a be accorded separate petition the same petition. is fiancée s home country. 8 forwarded to nonimmigrant C.F.R. the classification § 214.2(k)(3). U.S. consulate in The the 22 C.F.R. § 41.81(a)(1). The fiancée must then submit a visa application to the U.S. consulate in her home country, requesting a K-1 visa on behalf of herself and K-2 visas for her minor children whom she intends to join her. See id. § 41.81(a), (c). 3 After receipt of an approved visa application, the consulate issues the K visas, which, as nonimmigrant visas, generally bear validity periods reflecting reciprocity practices of the between the particular United foreign States and government. the Id. § 41.112(b)(1). Issuance of a K-1 or K-2 visa, however, does not guarantee the visa holder s § 1201(h) entry ( Nothing in into this the United chapter States. shall be 8 U.S.C. construed to entitle any alien, to whom a visa or other documentation has been issued, to be admitted [to] the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible under this chapter, or any other provision of law. ). the Upon arrival at a port of entry into the United States, alien establish fiancée that § 214.1(a)(3)(i). he or like all she is nonimmigrant then aliens admissible. -8 must C.F.R. After admission into the United States, the alien fiancée must marry the U.S. citizen petitioner within 90 days or depart the country along with any children holding a K-2 derivative visa. 8 U.S.C. § 1184(d)(1). Following the marriage, the K 1 visa holder and her minor children holding K-2 visas may apply for adjustment of status to lawful conditional permanent resident. C.F.R. § 214.2(k)(6)(ii). 8 U.S.C. § 1255(d); 8 The Attorney General may make the adjustment in his discretion and under such regulations as he 4 may prescribe. 8 U.S.C. § 1255(a). The applicant must be eligible to receive an immigrant visa and be admissible to the United States for permanent residence. Id. Section 1255(d) specifically addresses adjustment of status for K-1 and K-2 nonimmigrant visa holders. Id. § 1255(d). Under the statute, the Attorney General may adjust their status to lawful conditional permanent resident as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition. Id. (emphasis added). The term minor child in 8 U.S.C. §§ 1101(a)(15)(K) and 1255(d) is not defined in those statutes or elsewhere in the INA. However, based on the definition of child in the Act, see 8 U.S.C. § 1101(b)(1), the term minor child for purposes of K-2 visas has been construed by the Board as a person who is unmarried and under the age of 21. Matter of Le, 25 I. & N. Dec. 541, 550 (B.I.A. 2011). Section 1255 does not specify when during the immigration process a minor child is required to be under 21 years of age, and the statute is likewise silent as to when an applicant for adjustment of status must demonstrate eligibility. 8 U.S.C. § 1255(a), (d); see also Carpio v. Holder, 592 F.3d 1091, 1098 (10th Cir. 2010) ( [T]he use of the term minor child, provides no indication as to when that status must be established. ). 5 B. Regis Application Process Regis is a native and citizen of the Philippines who was born on February 18, 1986. States embassy s On February 13, 2007, the United consular office in the Philippines (the Consulate ) issued a K-1 nonimmigrant visa to Regis mother, following the successful petition of her U.S. citizen fiancé. At the same time, the Consulate issued K-2 visas to Regis and his three siblings as the children of a K-1 visa holder. Regis was 20 years old when he received his K-2 visa, which stated that it would remain valid until August 11, 2007. Regis mother entered the United States sometime in February 2007 and married her U.S. citizen fiancé on February 26, 2007. Regis did not accompany his mother, but entered the United States later on March 25, 2007, over a month after his 21st birthday on February 18, 2007. On May 16, 2007, he timely filed an application for adjustment of status to lawful conditional permanent resident. USCIS denied the application, concluding that Regis was ineligible to adjust his status because he had already attained age 21 and § 1101(b)(1). was no longer Regis a moved child for as defined in reconsideration, 8 U.S.C. and USCIS dismissed that motion. On November 15, 2007, the Department of Homeland Security began removal proceedings against Regis by filing a Notice to 6 Appear, which charged him with removability pursuant to 8 U.S.C. § 1227(a)(1)(B), as an alien who was admitted to the United States as a nonimmigrant and remained beyond the time permitted. Appearing before the immigration court, Regis admitted the facts contained in the Notice to Appear and conceded removability. He argued, however, that he was eligible for adjustment of status because he was less than 21 years old at the time he applied for the K-2 visa and cited Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010), in support. In Carpio, the petitioner had also entered the United States on a derivative K-2 visa but, unlike Regis, was less than 21 years old on the date of entry. Id. at 1092. The Board nevertheless denied the adjustment because the petitioner had turned 21 before the agency adjudicated his application. 1092-93. Id. at The Tenth Circuit overturned the Board s decision, concluding that eligibility should be determined as of the date a K-2 alien seeks to enter the United States. 1101. Id. at 1098- Given the particular facts before it, the court was not required to pinpoint when a K-2 applicant seeks to enter, but observed that the date may be plausibly read as either (1) the date United States citizen files a petition for K 2 visas with the Secretary of Homeland under 8 U.S.C. § 1184(d)(1), or (b) the date K 1 and K 2 visa applications are filed consular officer in the country of origin. 7 that the K-1 and Security that the with the Id. at 1104. The IJ found Carpio inapplicable in this case under the holding in Matter of Le, 25 I. & N. Dec. 541 (B.I.A. 2011), which the Board had decided during the pendency of Regis case. In Matter of Le, a three-judge panel of the Board concluded that a K-2 visa holder s age at the time he actually enters the United States determines whether he is a minor child under the INA. Id. at 550. Based on Matter of Le, the IJ denied Regis application for adjustment of status because Regis was over 21 when he entered Accordingly, the the IJ United ordered States Regis under removed his from K-2 the visa. United States. Regis appealed to the Board, arguing again that he was eligible for adjustment of status because he was under 21 at the time he sought a K-2 visa. adopting and affirming the The Board dismissed Regis appeal, IJ s decision. Concluding that Matter of Le was precedential and dispositive, the Board held that Regis was ineligible to adjust status because he was not a minor child at the time he was admitted to the United States. Regis filed a timely petition for review to this Court. have jurisdiction to consider his § 1252. 8 petition under 8 We U.S.C. II. Discussion We review the Board s legal conclusions de novo. v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008). Saintha In the course of conducting our review, we recognize that because the Board is the agency that administers the INA, its interpretations of that Act may be entitled to deference under the Chevron doctrine. See id. (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). Under Chevron, we must first determine whether the statute is silent or ambiguous with respect to the specific issue. Id. If the provision in question is unambiguous, then the plain meaning relevant of the statute provision is controls. ambiguous, Id. then If, we will however, defer to the the agency s interpretation so long as it is based on a permissible construction of the statute. Id. [T]he [Board s] interpretations . . . must be given controlling weight unless those interpretations are arbitrary, capricious, or manifestly contrary to the statute. Fernandez v. Keisler, 502 F.3d 337, 344 (4th Cir. 2007) (quoting Chevron, 467 U.S. at 844). The appellant bears a substantial burden, as judicial deference is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations. 9 Saintha, 516 F.3d at 251 (quoting I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)). A. The Board s Decision in Matter of Le Although the INA is silent as to when during the immigration process a K-2 visa holder must be under 21 to be eligible for adjustment of guidance in Matter of Le. status, the Board has provided In that case, the applicant entered the United States with his mother when he was 19 years old, but turned 21 before USCIS adjustment of status. adjudicated his 25 I. & N. Dec. at 542. application for USCIS denied the application because Le had turned 18 before the date of his mother s marriage. Id. An IJ likewise denied Le s adjustment of status, but on the ground that he had turned 21 before the agency had adjudicated his application. Id. The Board addressed two questions in Le s appeal: (1) at what age is a child no longer a minor child, and, critical to this appeal, (2) at what point in the immigration process does the child s age become fixed for purposes of the minor child determination. Board concluded Id. at 544. that the Regarding the first question, the defining determination is age 21, not 18. standing interpretation by the age for a minor Id. at 550 (noting the longimplementing Congress implicit approval of that interpretation). 10 child agency and In addressing the second question - at what point the K-2 applicant must establish eligibility -- the Board looked to a previous decision in which it had analyzed the same question for K-1 applicants. In Matter of Sesay, the Board concluded that an alien fiancée parent s eligibility for adjustment of status must be established at the time of admission to the United States with the K-1 nonimmigrant visa. Dec. 431, 440 (B.I.A. 2011). Matter of Sesay s reasoning Matter of Sesay, 25 I. & N. The Board in Matter of Le found to be equally context of K-1 visa holders minor children. I. & N. Dec. at 545. persuasive in the Matter of Le, 25 Consequently, the Board determined that to adjust status based on a K-2 visa, an alien derivative child must establish that he or she was under 21 years of age at the time of admission to the United States. added). Id. at 541 (emphasis Since Le met that requirement, the Board held he was eligible for adjustment and reversed the IJ s decision. 1 1 We reject Regis argument that because Le had not yet turned 21 at the time he was admitted into the United States, Matter of Le is somehow inapplicable to this case. In deciding whether Le was eligible for adjustment, the Board was tasked with defining minor child and with designating the appropriate time for determining eligibility. Some, like Le, may satisfy the Board s interpretation, and others like Regis, will not. The resulting interpretation nonetheless is applicable to all K2 applicants for adjustment. 11 B. Chevron Deference Because Matter of Le is a precedential opinion in which the Board interpreted administer, we a statute Congress has designated proceed in accordance with it Chevron. 2 to Under Chevron s first prong, we begin by asking whether the INA is ambiguous as to when a K-2 applicant for adjustment of status fails to qualify as a minor child under that statute. In other words, at what point in the immigration process does the K-2 visa applicant s attaining age 21 function as a limiting event? For As noted earlier, the INA is silent on this question. his part, Regis has not contested that the relevant provisions are ambiguous. One possible reading, rejected in both Carpio and Matter of Le, is that the applicant must be a minor child at the time the adjustment is adjudicated. See Carpio, 592 F.3d at 1102 (concluding that allowing eligibility to hinge on the agency s speed could fairness ); violate[] Matter of basic Le, principles 25 I. & of N. common Dec. sense and at 542. Alternatively, the Tenth Circuit in Carpio resolved that the INA 2 The Board s decision denying Regis appeal may not itself be entitled to Chevron deference because it is not precedential (as a one Board member decision). See Cervantes v. Holder, 597 F.3d 229, 233 n.5 (4th Cir. 2010). But the underlying interpretation is based on Matter of Le, which is a published and precedential Board decision. Chevron applies in these circumstances. See, e.g., Aguirre-Aguirre, 526 U.S. at 418, 424-25; Ramirez v. Holder, 609 F.3d 331, 333-34 (4th Cir. 2010). 12 can plausibly be read to require the applicant to be under 21 on either the date the U.S. citizen fiancé files the original petition or the date the K-2 visa application is filed with the U.S. consulate. Carpio, 592 F.3d at 1104. As the Board found in Matter of Le, the statute can reasonably be construed in yet another way: setting eligibility as a minor child at the date of entry into the United States. 25 I. & N. Dec. at 541. In light of these differing but plausible interpretations, we join the Tenth Circuit and the Board in concluding that the INA s silence on the issue creates an ambiguity. There is no plain question language issue here. in the statute that resolves the at See Carpio, 592 F.3d at 1096 ( We agree with the government that § 1255(d) is ambiguous with respect to the time at which a K-2 visa holder must be under twenty-one to qualify for an adjustment of status. ); Matter of Le, 25 I. & N. Dec. at 543-44 (recognizing a statutory ambiguity regarding the time at which the fiancé(e) derivative child s age is fixed for purposes of establishing adjustment eligibility ). Having found the statute to be ambiguous, we proceed to the next step under interpretation Chevron is a to determine permissible whether the construction, Board s and not arbitrary, capricious, or manifestly contrary to the statute. 467 U.S. at 843-44. In Matter of Le, the Board offered several reasons why a K-2 visa holder s age on the date of his actual 13 admission should control eligibility for adjustment of status as a minor child. alien s entry eligibility First, the Board reasoned that the date of an into and the United availability, States because best events marks that visa may occur between visa issuance and admission could extinguish the visa. Matter of Le, 25 I. & N. Dec. at 545 (quoting Matter of Sesay, 25 I. & N. Dec. at 440). entry date is the Relatedly, the Board noted that the best determining point because visa eligibility is reassessed upon application for admission at the port of entry. Id. As to K-2 visa holders in particular, the Board further observed that the gap between issuance of the visa and admission provides an additional opportunity for the parent s visa validity to be extinguished, which would, in turn, render the child inadmissible even though a K-2 visa had been issued. Id. The Act Board permits a considered minor child this to factor follow important the parent because into the the United States at a later date, id., as Regis did in this case. Finally, the Board pointed to language elsewhere in the Act that supports its interpretation. Specifically, the final sentence of 8 U.S.C. § 1184(d)(1) provides that an alien fiancée and her minor children must depart the United States if the marriage does not occur within three months after the admission of the said alien and minor children. 14 This provision, the Board reasoned, highlights the significance of admission for determining an alien s eligibility for adjustment. Matter of Le, 25 I. & N. Dec. at 545. Far from being arbitrary, capricious, or manifestly contrary to the statute, we find the Board s determination of minor child status in Matter of Le well-reasoned. analysis embraces the existing statutory and The Board s regulatory framework and reaches a result consistent with that framework. The Board s interpretation of the INA - that a K-2 visa holder seeking adjustment of status must be under 21 at the time of admission -- is therefore a permissible construction and is owed deference under Chevron. when he adjustment entered of the status Accordingly, because Regis was over 21 United was States, properly his denied and application he is for properly removable. Relying on the Tenth Circuit s decision in Carpio, Regis insists that his eligibility for adjustment should have been determined based on his age when he applied for the K-2 visa. 3 3 Regis also appears to make what can be best characterized as an estoppel argument. He contends that because the ultimate purpose of the K-2 visa is adjustment, the Consulate erred by issuing him a visa that remained valid until well after his 21st birthday. He argues that he was justified in relying on and travelling within this validity period and should not be denied adjustment. However, as counsel conceded at oral argument, the issue was not properly raised below. It is well established that an alien must raise each argument to the (Continued) 15 As noted above, the Board rejected this argument because Carpio would be controlling only in the Tenth Circuit and because the Board s precedential interpretation in Matter of Le now decides the issue. Internet See Servs., Nat l 545 Cable U.S. & 967, Telecomms. 982 (2005) Ass n ( A v. Brand court s X prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. ). We find particularly noteworthy that the Tenth Circuit decided Carpio without the benefit of the Board s subsequent precedential decision in Matter of Le. Although Carpio sets forth a reasonable interpretation of the statute, we are bound under Chevron to defer to the Board s equally reasonable construction. [Board] before we have jurisdiction to consider it. Kporlor v. Holder, 597 F.3d 222, 226 (4th Cir. 2010) (quoting Gandziami Mickhou v. Gonzales, 445 F.3d 351, 359 n.2 (4th Cir. 2006)). In view of Regis waiver concession, we do not consider this issue, but also note the general inapplicability of an estoppel argument against the government, at least absent affirmative misconduct. See Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 2003) ( [T]he [Supreme] Court s decisions indicate that estoppel may only be justified, if ever, in the presence of affirmative misconduct by government agents. ). 16 III. For all these reasons, Regis petition for review of the Board s decision is DENIED. 17
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