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Scialabba v. Cuellar De Osorio

United States Supreme Court

June 9, 2014


Argued December 10, 2013.


695 F.3d 1003, reversed and remanded.


[134 S.Ct. 2193] The Immigration and Nationality Act permits qualifying U.S. citizens and lawful permanent residents (LPRs) to petition for certain family members to obtain immigrant visas. A sponsored individual, known as the principal beneficiary, is placed into a " family preference" category based on his relationship with the petitioner. 8 U.S.C. § § 1153(a)(1)-(4). The principal beneficiary's spouse and minor children in turn qualify as derivative beneficiaries, " entitled to the same status" and " order of consideration" as the principal. § 1153(d). The beneficiaries then become eligible to apply for visas in order of " priority date" --that is, the date a petition was filed. § 1153(e)(1). Because the immigration process often takes years or decades to complete, a child seeking to immigrate may " age out" -- i.e., reach adulthood and lose her immigration status--before she reaches the front of the visa queue. The Child Status Protection Act (CSPA) sets forth a remedy in that circumstance, providing that " [i]f the age of an alien is determined . . . to be 21 years of age or older," notwithstanding certain allowances for bureaucratic delay, § § 1153(h)(1)-(2), " the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition." § 1153(h)(3).

Respondents, principal beneficiaries who became LPRs, filed petitions for their aged-out children, asserting that the newly filed petitions should receive the same priority date as their original petitions. Instead, U.S. Citizenship and Immigration Services (USCIS) gave the new petitions current priority dates. The District Court granted the Government summary judgment, deferring to the Board of Immigration Appeals' (BIA's) determination that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion under § 1153(h)(3). The en banc Ninth Circuit reversed, holding that the provision unambiguously entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention.

Held : The judgment is reversed, and the case is remanded.

695 F.3d 1003, reversed and remanded.

JUSTICE KAGAN, joined by JUSTICE KENNEDY and JUSTICE GINSBURG, concluded that the BIA's textually reasonable construction of § 1153(h)(3)'s ambiguous [134 S.Ct. 2194] language was entitled to deference. Pp. 13-33.

(a) Because § 1153(h)(3) does not speak unambiguously to the issue here, a court must defer to the BIA's reasonable interpretation. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694. The first clause of § 1153(h)(3) states a condition that encompasses every aged-out beneficiary of a family preference petition. The second clause, however, does not easily cohere with the first. It prescribes a remedy that can apply to only a subset of the beneficiaries described in the first clause. This remedial prescription directs immigration officials to take the alien's petition and convert it from a category benefitting a child to an appropriate category for adults, without any change in the petition, including its sponsor, or any new filing. Moreover, this conversion is to be " automati[c]" --that is, one involving no additional decisions, contingencies, or delays. Thus, the only aliens who may benefit from § 1153(h)(3)'s back half are those for whom automatic conversion is possible.

The understanding that " automatic conversion" entails nothing more than picking up the petition from one category and dropping it into another for which the alien now qualifies matches the exclusive way immigration law used the term when § 1153(h)(3) was enacted. See 8 CFR § 204.2(i)(1)-(3) (2002). And Congress used the word " conversion" in the identical way elsewhere in the CSPA. See, e.g., § § 1151(f)(2), (3).

If the term meant more than that in § 1153(h)(3), it would undermine the family preference system's core premise: that each immigrant must have a qualified and willing sponsor. See § § 1154(a), (b). If an original sponsor does not have a legally recognized relationship with the aged-out derivative beneficiary, another sponsor, e.g., the old principal beneficiary, must be swapped in for the alien to qualify for a new family preference category. But immigration officials cannot assume that a new sponsor is eligible and willing to petition on the alien's behalf, given the numerous requirements the law imposes on family preference petitioners. See, e.g., § 1154(a)(1)(B)(i)(II). Neither can they figure out whether a valid sponsor exists unless he files and USCIS approves a new petition--the very thing § 1153(h)(3) says is not required.

In any case, a new qualified sponsor will rarely exist at the requisite time. An alien is deemed to age out on " the date on which an immigrant visa number became available for the alien's parent." § 1153(h)(1)(A). Since aging out triggers automatic conversion, the date of automatic conversion is best viewed as the same. But at that time, the aged-out beneficiary's parent cannot yet be a citizen or LPR, and so no new, qualified sponsor will be ready to step into the old one's shoes.

On the above account, § 1153(h)(3)'s second clause provides a remedy to those principal and derivative beneficiaries who had a qualifying relationship with an LPR both before and after they aged out. In contrast, aliens like respondents' children--the nieces, nephews, and grandchildren of the initial sponsors--cannot qualify for " automatic conversion" : they lacked a qualifying preference relationship with the initial petitioner, and so cannot fit into a new preference category without obtaining a new sponsor.

The ambiguity created by § 1153(h)(3)'s ill-fitting clauses left the BIA to choose how to reconcile the statute's different commands. It reasonably opted to abide by the inherent limits of § 1153(h)(3)'s remedial clause, rather than go beyond those limits so as to match the [134 S.Ct. 2195] sweep of the first clause's condition. When an agency thus resolves statutory tension, ordinary principles of administrative deference require this Court to defer. See National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666, 127 S.Ct. 2518, 168 L.Ed.2d 467. Pp. 13-22.

(b) Respondents take issue with the BIA's interpretation, but none of their contentions is persuasive. Pp. 22-33.

(1) Respondents aver that every aged-out beneficiary could be automatically converted if immigration officials substituted new sponsors and managed the timing of conversion so that a new sponsor existed on the relevant date. These administrative maneuvers are not in keeping with the natural and long-established meaning of " automatic conversion," they require conversion to occur on a date that has no connection to the alien's aging out, and they demand administrative juggling to make automatic conversion work. And that painstakingly managed process still cannot succeed because a derivative's parent may never become able to sponsor a visa--and immigration officials cannot practicably tell whether a given parent has done so. Pp. 22-27.

(2) Respondents argue that the word " and" in the second clause of § 1153(h)(3) indicates that priority date retention is a benefit wholly independent of automatic conversion. But " and" does not necessarily disjoin two phrases, and context suggests that the instructions work in tandem. In other statutory and regulatory provisions respecting " conversions," retention of a priority date is conditional on a conversion occurring. See, e.g., § § 1154(k)(1)-(3). Respondent's reading would make priority date retention conditional on something the statute nowhere mentions. And it would engender unusual results that, without some clearer statement, the Court cannot conclude that Congress intended. Pp. 27-30.

(3) Finally, respondents contend that, assuming § 1153(h)(3) is ambiguous, the BIA acted unreasonably in choosing the more restrictive reading. But the BIA's interpretation benefits from administrative simplicity and fits with immigration law's basic first-come, first-served rule. By contrast, respondents would scramble the priority order Congress established by allowing aged-out derivative beneficiaries, like respondents' sons and daughters, to enter the visa queue ahead of beneficiaries who had a qualifying relationship with an LPR for a far longer time. Pp. 31-33.

THE CHIEF JUSTICE, joined by JUSTICE SCALIA, agreed that the BIA's interpretation was reasonable, but not because an agency has authority to resolve direct conflicts within a statute. There is no conflict or internal tension in § 1153(h)(3). The first clause of the provision defines the persons potentially affected, but does not grant anything to anyone. The particular benefit provided by the statute--automatic conversion and retention of priority date--is found exclusively in the second clause, and that relief requires, at minimum, that an aged-out beneficiary have his own eligible sponsor who is committed to providing financial support for the beneficiary. Beyond that, Congress did not speak clearly to which petitions can be automatically converted. The BIA's reasonable interpretation of § 1153(h)(3) is consistent with the ordinary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration system. Pp. 1-4.

Elaine J. Goldenberg argued the cause for petitioners.

Mark C. Fleming argued the cause for respondents.

KAGAN, J., announced the judgment of the Court and delivered an opinion, in which KENNEDY and GINSBURG, JJ., joined. ROBERTS, C. J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER, J., joined, and in which THOMAS, J., joined except as to footnote 3.


[134 S.Ct. 2196] KAGAN, JUSTICE announced the judgment of the Court and delivered an opinion, in which JUSTICE KENNEDY and JUSTICE GINSBURG join.

Under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., citizens and lawful permanent residents (LPRs) of the United States may petition for certain family members--spouses, siblings, and children of various ages--to obtain immigrant visas. Such a sponsored individual is known as the petition's principal beneficiary. In turn, any principal beneficiary's minor child--meaning an unmarried child under the age of 21--qualifies as a derivative beneficiary, " entitled to the same [immigration] status" and " order of consideration" as his parent. § 1153(d). Accordingly, when a visa becomes available to the petition's principal beneficiary, one also becomes available to her minor child.

But what happens if, sometime after the relevant petition was filed, a minor child (whether a principal or a derivative beneficiary) has turned 21--or, in immigration lingo, has " aged out" ? The immigration process may take years or even decades to complete, due in part to bureaucratic delays associated with reviewing immigration documents and in (still greater) part to long queues for the limited number of visas available each year. So someone who was a youngster at the start of the process may be an adult at the end, and no longer qualify for an immigration status given to minors. The Child Status Protection Act (CSPA), 116 Stat. 927, ensures that the time Government officials have spent processing immigration papers will not count against the beneficiary in assessing his status. See 8 U.S.C. § 1153(h)(1). But even with that provision, the beneficiary may age out solely because of the time he spent waiting in line for a visa to become available.

The question presented in this case is whether the CSPA grants a remedy to all aliens who have thus outpaced the immigration process--that is, all aliens who counted as child beneficiaries when a sponsoring [134 S.Ct. 2197] petition was filed, but no longer do so (even after excluding administrative delays) by the time they reach the front of the visa queue. The Board of Immigration Appeals (BIA or Board) said no. It interpreted the CSPA as providing relief to only a subset of that group--specifically, those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent. We now uphold the Board's determination as a permissible construction of the statute.



An alien needs an immigrant visa to enter and permanently reside in the United States. See § 1181(a). [1] To obtain that highly sought-after document, the alien must fall within one of a limited number of immigration categories. See § § 1151(a)-(b). The most favored is for the " immediate relatives" of U.S. citizens--their parents, spouses, and unmarried children under the age of 21. See § § 1151(b)(2)(A)(i), 1101(b)(1). Five other categories--crucial to this case, and often denominated " preference" categories--are for " family-sponsored immigrants," who include more distant or independent relatives of U.S. citizens, and certain close relatives of LPRs. [2] Specifically, those family preference categories are:

F1: the unmarried, adult (21 or over) sons and daughters of U.S. citizens;

F2A: the spouses and unmarried, minor (under 21) children of LPRs;

F2B: the unmarried, adult (21 or over) sons and daughters of LPRs;
F3: the married sons and daughters of U.S. citizens;
F4: the brothers and sisters of U.S. citizens. § § 1151(a)(1), 1153(a)(1)-(4). [3]

(A word to the wise: Dog-ear this page for easy reference, because these categories crop up regularly throughout this opinion.)

The road to obtaining any family-based immigrant visa begins when a sponsoring U.S. citizen or LPR files a petition on behalf of a foreign relative, termed the principal beneficiary. See § § 1154(a)(1)(A)(i), (a)(1)(B)(i)(I), (b); 8 CFR § 204.1(a)(1) (2014). The sponsor (otherwise known as the petitioner--we use the words interchangeably) must provide U.S. Citizenship and Immigration Services (USCIS) with evidence showing, among other things, that she has the necessary familial relationship with the beneficiary, see § § 204.2(a)(2), (d)(2), (g)(2), and that she has not committed any conduct disqualifying her from sponsoring an alien for a visa, see, e.g., 8 U.S.C. § 1154(a)(1)(B)(i)(II) (barring an LPR from submitting a petition if she has committed certain offenses against minors). USCIS thereafter reviews the petition, and [134 S.Ct. 2198] approves it if found to meet all requirements. See § 1154(b).

For a family preference beneficiary, that approval results not in getting a visa then and there, but only in getting a place in line. (The case is different for " immediate relatives" of U.S. citizens, who can apply for and receive a visa as soon as a sponsoring petition is approved.) The law caps the number of visas issued each year in the five family preference categories, see § § 1151(c)(1), 1152, 1153(a)(1)-(4), and demand regularly exceeds the supply. As a consequence, the principal beneficiary of an approved petition is placed in a queue with others in her category (F1, F2A, or what have you) in order of " priority date" --that is, the date a petition was filed with USCIS. See § 1153(e)(1); 8 CFR § 204.1(b); 22 CFR 42.53(a) (2013). Every month, the Department of State sets a cut-off date for each family preference category, indicating that visas (sometimes referred to by " visa numbers" ) are available for beneficiaries with priority dates earlier than the cut-off. See 8 CFR § 245.1(g)(1); 22 CFR § 42.51(b). The system is thus first-come, first-served within each preference category, with visas becoming available in order of priority date.

Such a date may benefit not only the principal beneficiary of a family preference petition, but also her spouse and minor children. Those persons, labeled the petition's " derivative beneficiar[ies]," are " entitled to the same status, and the same order of consideration" as the principal. 8 U.S.C. § § 1153(d), (h). Accordingly, when a visa becomes available for the principal, one becomes available for her spouse and minor children too. And that is so even when (as is usually but not always the case) the spouse and children would not qualify for any family preference category on their own. For example, the child of an F4 petition's principal beneficiary is the niece or nephew of a U.S. citizen, and federal immigration law does not recognize that relationship. Nonetheless, the child can piggy-back on his qualifying parent in seeking an immigrant visa--although, as will be further discussed, he may not immigrate without her. See 22 CFR § 40.1(a)(2); infra, at 6, 20-21, 31-32.

Once visas become available, the principal and any derivative beneficiaries must separately file visa applications. See 8 U.S.C. § 1202(a). Such an application requires an alien to demonstrate in various ways her admissibility to the United States. See, e.g., § 1182(a) (1)(A) (alien may not have serious health problems); § 1182(a)(2)(A) (alien may not have been convicted of certain crimes); § 1182(a)(3)(B) (alien may not have engaged in terrorist activity). Notably, one necessary showing involves the U.S. citizen or LPR who filed the initial petition: To mitigate any possibility of becoming a " public charge," the visa applicant (whether a principal or derivative beneficiary) must append an " affidavit of support" executed by that sponsoring individual. § § 1182(a)(4)(C)(ii), 1183a(a)(1). Such an affidavit legally commits the sponsor to support the alien, usually for at least 10 years, with an annual income " not less than 125% of the federal poverty line." § 1183a(a)(1)(A); see § § 1183a(a)(2)-(3).

After the beneficiaries have filed their applications, a consular official reviews the documents and, if everything is in order, schedules in-person interviews. See § 1202(h). The interviews for a principal and her children (or spouse) usually occur back-to-back, although those for the children may also come later. [4] The consular [134 S.Ct. 2199] official will determine first whether the principal should receive a visa; if (but only if ) the answer is yes, the official will then consider the derivatives' applications. See 22 CFR § § 40.1(a)(2), 42.62, 42.81(a). Provided all goes well, everyone exits the consulate with visas in hand--but that still does not make them LPRs. See 8 U.S.C. § 1154(e). Each approved alien must then travel to the United States within a set time, undergo inspection, and confirm her admissibility. See § § 1201(c), 1222, 1225(a)-(b). Once again, a derivative's fate is tied to the principal's: If the principal cannot enter the country, neither can her children (or spouse). See § 1153(d); 22 CFR § 40.1(a)(2). When, but only when, an alien with an immigrant visa is approved at the border does she finally become an LPR. [5]


All of this takes time--and often a lot of it. At the front end, many months may go by before USCIS approves the initial sponsoring petition. [6] On the back end, several additional months may elapse while a consular official considers the alien's visa application and schedules an interview. [7] And the middle is the worst. After a sponsoring petition is approved but before a visa application can be filed, a family-sponsored immigrant may stand in line for years--or even decades--just waiting for an immigrant visa to become available. See, e.g., Dept. of State, Bureau of Consular Affairs, 9 Visa Bulletin, Immigrant Numbers for December 2013 (Nov. 8, 2013).

And as the years tick by, young people grow up, and thereby endanger their immigration status. Remember that not all offspring, but only those under the age of 21 can qualify as an " immediate relative" of a U.S. citizen, or as the principal beneficiary of an LPR's F2A petition, or (most crucially here) as the derivative beneficiary of any family preference petition. See supra, at 3, 5. So an alien eligible to immigrate at the start of the process (when a sponsor files a petition) might not be so at the end (when an immigration official reviews his documents for admission). He may have " aged out" of his original immigration status by the simple passage of time.

In 2002, Congress enacted the Child Status Protection Act (CSPA), 116 Stat. 927, to address the treatment of those once-but-no-longer-minor aliens. One section of the Act neatly eliminates the " aging out" problem for the offspring of U.S. citizens seeking to immigrate as " immediate relatives." Under that provision, the " determination of whether [such] an alien satisfies the [immigration law's] age requirement . . . shall be made using [his] age" on the date the initial petition was filed. 8 U.S.C. § 1151(f)(1). The section thus halts the flow of time for that group of would-be [134 S.Ct. 2200] immigrants: If an alien was young when a U.S. citizen sponsored his entry, then Peter Pan-like, he remains young throughout the immigration process.

A different scheme--and one not nearly so limpid--applies to the offspring of LPRs and aliens who initially qualified as either principal beneficiaries of F2A petitions or derivative beneficiaries of any kind of family preference petition. Section 3 of the CSPA, now codified at 8 U.S.C. § 1153(h), contains three interlinked paragraphs that mitigate the " aging out" problem for those prospective immigrants. The first two are complex but, with some perseverance, comprehensible. The third--the key provision here--is through and through perplexing. [8]

The first paragraph, ยง 1153(h)(1), contains a formula for calculating the age of an alien " [f ]or purposes of subsections (a)(2)(A) and (d)" --that is, for any alien seeking an immigrant visa directly under F2A or as a derivative beneficiary of any preference category. The " determination of whether [such] an alien satisfies the [immigration law's] age ...

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