and Submitted December 4, 2017 Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A087-216-564
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.
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.
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.
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.
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
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.
REINHARDT, Circuit Judge:
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.
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.
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. §
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
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; 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).
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. §
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 ...