Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tovar v. Sessions

United States Court of Appeals, Ninth Circuit

February 14, 2018

Margarito Rodriguez Tovar, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent. Immediate Relative F1 F2A F2B Parent is an LPR (pre-1990) Parent is an LPR (post-1990) Parent is a Citizen

          Argued and Submitted December 4, 2017 Pasadena, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A087-216-564

          Ronald Tocchini (argued) and Lilia Guadalupe Alcaraz (argued), Alcaraz Tocchini LLP, Tucson, Arizona, for Petitioner.

          Jessica Dawgert (argued), Senior Litigation Counsel; Timothy G. Hayes, Trial Attorney; Cindy S. Ferrier, Assistant Director; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Dorothy W. Nelson and Stephen Reinhardt, Circuit Judges, and George Caram Steeh, [*] District Judge.

         SUMMARY [**]

         Immigration

         The panel granted and remanded Margarito Rodriguez Tovar's petition for review of a Board of Immigration Appeals decision rejecting his application for adjustment of status.

         Relying on the BIA's published opinion in Matter of Zamora-Molina, 25 I. & N. Dec. 606 (BIA 2011), the immigration judge and BIA rejected Rodriguez Tovar's application for adjustment of status. The agency held that, because Rodriguez Tovar was over 21 years old in biological age on the date of his father's naturalization, his F2A visa petition (for a minor child of a lawful permanent resident) immediately converted to an F1 visa petition (for an adult child of a U.S. citizen), and not to an immediate relative petition. The agency came to this conclusion even though Rodriguez Tovar was classified by statute as under 21 years old for purposes of his F2A petition, pursuant to the age calculation formula set forth by the Child Status Protection Act. The BIA concluded that Rodriguez Tovar was not eligible for adjustment of status because no visa was immediately available and that Rodriguez Tovar would be subject to removal forthwith.

         The panel observed that if Rodriguez Tovar's father had remained an LPR instead of becoming a citizen, Rodriguez Tovar would have been eligible for a visa in the F2A category in 2007, at which point his age under the statute would have been 20. Similarly, had he been afforded his statutory age when his father became a citizen, he would have been eligible for a visa immediately. The panel also noted that the government's position would lead to the absurd result that Rodriguez Tovar would have to wait in line for a visa abroad and not become eligible for an F1 visa until more than twenty years after he would have been eligible for an F2A visa but for his father's naturalization.

         Concluding that Congress had clear intent on the question at issue, the panel did not defer to the BIA's opinion in Matter of Zamora-Molina. Reading the statue as a whole, the panel concluded that Congress intended "age of the alien on the date of the parent's naturalization, " 8 U.S.C. § 1151(f)(2), to refer to statutory age-that is, age calculated according to 8 U.S.C. § 1153(h)(1). Under that statute, Rodriguez Tovar's age was only 19 on the date of his father's naturalization. Accordingly, the panel concluded that

         Rodriguez Tovar's visa application must be treated as one for an immediate relative of a U.S. citizen, for which visas are always immediately available.

          OPINION

          REINHARDT, Circuit Judge:

         This case illustrates the dangers of reading statutory provisions in isolation. The question before us is whether Margarito Rodriguez Tovar, a child of a lawful permanent resident (LPR) who was deemed by statute to be a minor child until the very day his father naturalized, still qualified as a minor on that day, or whether instead his father's naturalization transformed him on the spot from a minor into an adult. The government and the BIA have parsed individual provisions of the labyrinthine Immigration and Nationality Act to arrive at the latter position, with the effect that a parent's naturalization can cause a child to be deported forthwith and to wait for decades in a foreign land for an immigrant visa-a visa that he would have had in a short period of time if his parent had not become a citizen.

         We reject this reading because, considering the relevant statutes as a whole, it is clearly not the interpretation that Congress intended. Rather, we conclude that anyone who under the relevant statutes is considered a minor child of an LPR on the date of the parent's naturalization (and who is the beneficiary of a valid petition for an immigrant visa based on that status) can obtain a visa as the minor child of a citizen following his parent's naturalization.

         BACKGROUND

         A. Legal Overview

         This is a petition for review of a removal order denying Rodriguez Tovar adjustment of status to lawful permanent resident. Adjustment of status requires, among other things, that the non-citizen have an immediately available immigrant visa. 8 U.S.C. § 1255(i)(2)(B). One way to qualify for an immigrant visa is through certain familial relationships to current LPRs or citizens. The categories of qualifying relationships include (as relevant to this case) (1) the minor child, spouse, or parent of a citizen ("immediate relative"), 8 U.S.C. § 1151(b)(2)(A)(i); (2) the adult child of a citizen ("F1"), 8 U.S.C. § 1153(a)(1); (3) the minor child or spouse of an LPR ("F2A"), 8 U.S.C. § 1153(a)(2)(A); and (4) the adult child of an LPR ("F2B"), 8 U.S.C. § 1153(a)(2)(B):

Immediate Relative
F1
F2A
F2B
Minor child, spouse, or parent of a citizen
Adult child of a citizen
Minor child or spouse of an LPR
Adult child of an LPR
§ 1151(b)(2)(A)(i)
§ 1153(a)(1)
§ 1153(a)(2)(A)
§ 1153(a)(2)(B)

         Visas are always immediately available to people in the first category-"immediate relatives" of U.S. citizens-but are limited in the other categories. Within the limited categories, visas become available on a "first-come, first-served" basis. Scialabba v. Cuellar de Osorio, 134 S.Ct. 2191, 2198 (2014) (plurality). To get a place in line, a non-citizen's qualifying relative must file a visa petition, which receives a priority date based on when it was filed. Id. at 2197-98. The Department of State's Bureau of Consular Affairs publishes a monthly Visa Bulletin that lists "current" priority dates based on category and country of origin;[1] a visa is immediately available to a non-citizen if his priority date is on or before the corresponding date in the bulletin. See 8 C.F.R. §§ 245.1(g)(1), 1245.1(g)(1).

         In 2002, Congress passed the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 ("CSPA"), which included various protections to let people stay longer in the more advantageous minor-child categories (immediate relative and F2A). Under one provision added by the CSPA, an F2A beneficiary's statutory age for visa purposes is calculated by subtracting, from his actual age, the number of days during which his F2A petition was pending. 8 U.S.C. § 1153(h)(1). Under another provision, a citizen's child's eligibility for immediate relative status is determined by "the age of the alien on the date on which the petition is filed." 8 U.S.C. § 1151(f)(1). Finally, under a third provision, if an LPR naturalizes while he has a pending F2A petition for his minor child, the child's eligibility for immediate relative status is determined by "the age of the alien on the date of the parent's naturalization." 8 U.S.C. § 1151(f)(2).

         Sometimes the appropriate category for a visa petition changes while the beneficiary is waiting for a visa. For instance, a beneficiary can "age out" (turn 21) of the F2A category, or the sponsoring parent can naturalize, making the beneficiary no longer eligible for the LPR categories (F2A and F2B). A variety of automatic conversion provisions govern these circumstances. Conversions based on aging out of the F2A category occur on the day a visa number becomes available in the F2A category, if the beneficiary's statutory age on that day, calculated pursuant to 8 U.S.C. § 1153(h)(1), is over 21. 8 U.S.C. § 1153(h)(3). Conversions from the LPR categories ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.