Oscar Tenorio v. Eric Holder, Jr. ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1644
OSCAR ALBERTO ROBLES TENORIO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: March 23, 2011 Decided: August 26, 2011
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Agee and Judge Keenan concurred.
ARGUED: Ofelia Calderón, Xavier F. Racine, MARKS, CALDERÓN,
DERWIN & RACINE, PLC, Arlington, Virginia, for Petitioner.
Woei-Tyng Daniel Shieh, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Tony West,
Assistant Attorney General, Civil Division, Francis W. Fraser,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
Robles challenges his denial of Lawful Permanent Resident
(LPR) status under the Child Status Protection Act. Because
Robles first petitioned for LPR status when he was twenty-eight
(28) years old, and because he was not associated with any
previous “original” petition or priority date, we affirm.
I.
Oscar Alberto Robles-Tenorio was born in El Salvador on May
11, 1977. At an unknown date years later, his father, Oscar
Alberto Robles, was approved for an I-140 petition to adjust his
immigration status to LPR. That application, which was
sponsored by the father’s employer, was assigned a priority date
of July 7, 1997. At that time, Robles was twenty (20) years old
and residing in El Salvador. On February 28, 2001, Robles’
father adjusted his status to become an LPR. At that time,
Robles was twenty-four (24) years old and still residing in El
Salvador.
On May 4, 2005, at the age of twenty-seven (27), Robles
entered the United States without inspection in Texas but was
apprehended by Customs and Border Patrol agents and issued a
Notice to Appear for the next day. On August 9, 2005, Robles’
father filed an I-130 petition for his son on the grounds that
Robles was the unmarried child of an LPR. Robles was twenty-
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eight (28) years old when this petition was filed. Before the
Immigration Judge (IJ), Robles conceded removability, but sought
to adjust derivatively his status given his father’s LPR, using
the Child Status Protection Act (CSPA). Specifically, Robles
invoked subsections 1153(h)(3) and 1255(i) of the Immigration
and Nationality Act (INA). 8 U.S.C. §§ 1153(h)(3), 1255(i).
On September 20, 2007, the IJ denied Robles’ application
for LPR, reasoning that Robles was not protected under the CSPA
because he did not apply within one year of his father’s new
status becoming available -- and because Robles was not
physically present in the United States by the year 2000.
Robles appealed to the Board of Immigration Appeals (BIA), which
dismissed his claim on April 10, 2009. The BIA agreed with the
IJ’s reasoning about the one year time bar, but did not address
the issue of whether Robles was exempt from the physical
presence requirement of section 1255(i).
Robles then petitioned this Court for review, and we
initially remanded for reconsideration in light of Matter of
Wang, 25 I. & N. Dec. 28 (BIA 2009), per the parties’ agreement.
Wang addressed the meaning of section 1153(h) and the operation
of its one year time requirement. In 2010, the BIA affirmed its
prior ruling once more and Robles petitioned our Court again.
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II.
A.
We “review the BIA’s legal conclusions de novo,” and “‘we
afford substantial — but not unlimited — deference to the
Board’s decision.’” Crespin-Valladares v. Holder, 632 F.3d 117,
124 (4th Cir. 2011) (citations omitted).
Under the Immigration and Nationality Act, an LPR can
petition to obtain a visa for an alien relative by filing an I-
130 petition. Once the petition is approved, it contains a
preference category and a priority date: “The ‘preference
category’ corresponds to the familial relationship between the
alien and the person filing the I-130 form. The priority date
is the date on which the approved I-130 petition was filed
. . . .” Drax v. Reno, 338 F.3d 98, 114 (2d Cir. 2003)
(citations omitted). “Within the preference categories,
immigrant visas are issued on a first-come-first-served basis.
An alien’s place in line is determined by his or her ‘priority
date[]’ . . . .” Kooritzky v. Reich, 17 F.3d 1509, 1511 (D.C.
Cir. 1994).
Children and spouses are covered by the second preference
category and subject to certain conditions and numerical limits.
8 U.S.C. § 1153(a)(2). Namely, these offspring must be
considered “children” in order to be protected by these
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immigration provisions. 1 Generally, “[t]he term ‘child’ means an
unmarried person under twenty-one [21] years of age . . . .” 8
U.S.C. § 1101(b)(1)(A). But the CSPA amended the law, so that
certain offspring who are over twenty-one (21) years old are
still treated as “children.” The relevant provision reads a
follows:
(1) In general. For purposes of subsections (a)(2)(A)
[offspring of LPR] and (d) [offspring not
otherwise covered], a determination of whether an
alien satisfies the age requirement in the matter
preceding subparagraph (A) of section 101(b)(1)
[is under twenty-one] shall be made using--
(A) the age of the alien on the date on which an
immigrant visa number becomes available for
such alien (or, in the case of subsection
(d), the date on which an immigrant visa
number became available for the alien’s
parent), but only if the alien has sought to
acquire the status of an alien lawfully
admitted for permanent residence [LPR status]
within one year of such availability; reduced
by
(B) the number of days in the period during which
the applicable petition described in
paragraph (2) was pending.
1
We employ the term “offspring” since it describes the
familial relationship without connoting an immigrant’s factual
or legal age. We find this more accurate than the term “child”
and less vague than “alien,” which the CSPA uses somewhat
interchangeably.
Offspring who are under twenty-one (21) years old and not
otherwise covered by that second preference category or other
bases for immigration are still “entitled to the same status,
and the same order of consideration provided in the respective
subsection, if accompanying or following to join, [as] the
spouse or parent.” 8 U.S.C. § 1153(d).
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(2) Petitions described. The petition described in
this paragraph is--
(A) with respect to a relationship described in
subsection (a)(2)(A), a petition filed under
section 204 [8 U.S.C. § 1154] for
classification of an alien child under
subsection (a)(2)(A); or
(B) with respect to an alien child who is a
derivative beneficiary under subsection (d),
a petition filed under section 204 [8 U.S.C.
§ 1154] for classification of the alien’s
parent under subsection (a), (b), or (c).
(3) Retention of priority date. If the age of an
alien is determined under paragraph (1) to be 21
years of age or older for the purposes of
subsections (a)(2)(A) [offspring of LPR] and (d)
[offspring not otherwise covered], 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.
(4) Application to self-petitions. Paragraphs (1)
through (3) shall apply to self-petitioners and
derivatives of self-petitioners.
8 U.S.C. § 1153(h) (emphasis added).
Robles argues that he should “automatically be converted”
to his father’s LPR status under 1153(h)(3). Namely, he
contends that subsections 1153(h)(1) and 1153(h)(3) should be
read “separate[ly]” since they are not meaningfully
“incorporate[ed],” and concludes that the one year time
requirement in (h)(1) does not apply to him. App. Br. at 10,
16. Robles relies primarily on an older, unpublished case,
Matter of Garcia, 2006 WL 2183654 (BIA 2006) (unpublished), and
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argues that the subsequent case of Wang was wrongly decided and
unreasonable. Finally, Robles acknowledges that there is no
legislative history pertaining specifically to subsection
1153(h)(3), but notes that the CSPA’s general purpose was to
help “aliens, who through no fault of their own, lose the
opportunity to obtain [a] . . . visa.” H.R. Rep. No. 107-45, at
2 (2001), reprinted in 2002 U.S.C.C.A.N. 640, 641.
The Government contends that the BIA rightly denied Robles
LPR status because he did not apply for a status change within
one year of the date his father’s visa became available.
Specifically, the Government claims that “[t]hough th[e] date
[Robles’ father’s visa became available] is undetermined, it is
earlier than the December 6, 2001 date [on which] Robles[]’
father adjusted his status that was used by the agency, and
which still rendered Robles[]’ application over 2 years late.”
Gov. Br. at 18-19. The Government points to the logic of Wang,
and argues that even if subsection 1153(h)(3) is ambiguous, the
BIA’s interpretation is still reasonable and valid under Chevron
U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984).
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B.
Section 1153(h) is far from a model of clarity. 2 It is
unclear whether the text and structure of (h)(1) and (h)(3) can
be reconciled in any coherent or reasonable fashion. Given
this, we are particularly mindful of the “longstanding principle
of construing any lingering ambiguities in deportation statutes
in favor of the alien.” Ins v. Cardoza-Fonseca, 480 U.S. 421,
449 (1987). Nonetheless, the Government urges us to broadly
construe the statute so as to apply the one-year time
requirement from (h)(1) to (h)(3) and to all alien offspring.
Thankfully, we need not reach such interpretive questions
here, because it is clear that Robles falls outside of the plain
terms of 1153(h)(3). Robles claims he should “automatically be
converted” to his father’s LPR status under subsection (h)(3).
But the benefits of (h)(3) contain an important limitation:
eligible offspring “shall retain the original priority date
issued upon receipt of the original petition.” 8 U.S.C.
§ 1153(h) (emphasis added). The plain meaning and premise of
the CSPA is that parents originally apply on behalf of their
2
The BIA itself acknowledged that “[u]nlike sections
[1153](h)(1) and (2), which when read in tandem clearly define
the universe of petitions that qualify for the ‘delayed
processing formula,’ the language of section [1153](h)(3) does
not expressly state which petitions qualify for automatic
conversion and retention of priority dates.” Wang 25 I. & N.
Dec. 28 at 17.
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offspring -- who can subsequently retain those benefits in
certain circumstances. The use of the terms “original” and
“retain” is dispositive. Indeed, offspring can hardly “retain”
something they never “originally” had or were associated with in
the first place.
The CSPA’s implementing regulation confirms this
straightforward reading of the plain text: “if the child reaches
the age of twenty-one [21] prior to the issuance of a visa to
the principal alien parent, a separate petition will be required
[and] . . . the original priority date will be retained if the
subsequent petition is filed by the same petitioner.” 8 C.F.R.
§ 204.2(a)(4) (emphasis added). Similarly, the Ninth Circuit
has interpreted the CSPA to protect offspring who were “under
21[] at the time a petition for permanent resident status was
filed on their behalf.” Ochoa-Amaya v. Gonzales, 479 F.3d 989,
992 (9th Cir. 2007) (emphasis added, citations omitted). See
also David Weissbrodt & Laura Danielson, Immigration Law and
Practice 164 (6th ed. 2011) (“The process of applying for
family-sponsored immigration begins when the prospective
immigrant’s relative submits Form I-130.”) (citations omitted). 3
3
The legislative history further supports this clear-cut
interpretation. Namely, Congress aimed to determine whether an
offspring constituted a “child” based on his or her “age as of
the time an immigrant visa petition is filed on his or her
behalf.” 2002 U.S.C.C.A.N. at 641-42 (emphasis added). Robles’
(Continued)
9
In this case, Robles had neither an “original” petition to
which he can reach back, nor an associated priority date which
he can “retain.” Rather, the first time Robles’ father
petitioned on his son’s behalf was in August 2005, when Robles
was twenty-eight (28) years old. Even if we treated that 2005
petition as Robles’ “original” one, he could not have obtained a
predated priority date then, since he was not legally or
factually a child at that point. Consequently, Robles does not
fall under the plain terms of subsection (h)(3) of the CSPA.
While Robles was twenty (20) years old when his father obtained
a 1997 priority date, the parties do not argue -- and nothing in
the record suggests -- that Robles was originally associated
with his father’s employer-sponsored petition or that Robles
applied for residency within one year of an immigrant visa
number becoming available then. 4
father did not petition on his son’s behalf until his son was
already twenty-eight (28) years old. By choosing to wait so
long before petitioning, Robles is in a materially different
situation from those children who, “through no fault of their
own, lose the opportunity to obtain [a] . . . visa,” while
waiting for their applications to be processed. Id. at 641.
Thus, Robles’ unique circumstances are also outside the scope of
Congress’ core purpose.
4
We cannot help but note that the CSPA is also unclear
about what it means for an immigrant visa number to become
“available for” an offspring under subsection 1153(h)(1)(A).
But Robles does not argue that his father’s initial employment-
sponsored petition was meaningfully “available for” him or that
(Continued)
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III.
Next, section 1255(i) requires offspring to be physically
present in the United States by the year 2000:
[An alien] who, in the case of a beneficiary of a
petition for classification, or an application for
labor certification, described in subparagraph (B)
that was filed after January 14, 1998, is physically
present in the United States on the date of the
enactment of the LIFE Act Amendments of 2000 [by
December 21, 2000]; may apply to the Attorney General
for the adjustment of his or her status to that of an
alien lawfully admitted for permanent residence. . . .
8 U.S.C. § 1255(i)(1)(C) (emphasis added). But the implementing
regulation further specifies that:
If the qualifying visa petition or application for
labor certification was filed after January 14, 1998,
the alien must have been physically present in the
United States on December 21, 2000. This requirement
does not apply with respect to a spouse or child
accompanying or following to join a principal alien
who is a grandfathered alien as described in this
section.
8 C.F.R. § 1245.10(a)(1)(ii) (emphasis added).
Robles argues the BIA failed to address his eligibility for
LPR under section 1255(i) and that his derivative application is
not subject to physical presence requirements. While the
Government does not directly analyze this issue, the BIA found
he could have been added retroactively to that petition.
Therefore, we need not resolve the issue at this time.
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it need not reach this question because the IJ properly denied
Robles’ application for adjustment of status in the first place.
We agree with Robles that the IJ erroneously imposed a
physical presence requirement -- since the regulation by its
very terms does not apply to child applicants. But as the BIA
and Government rightly suggest, this error does not affect the
outcome of the case. Even if Robles had applied from abroad in
August 2005, he still would have fallen outside the plain terms
of subsection 1153(h)(3), since he was not associated with any
original petition.
IV.
For these reasons, Robles’ petition for review is denied
and the BIA’s 2010 decision is
AFFIRMED.
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