Noel Regis v. Eric Holder, Jr. , 769 F.3d 878 ( 2014 )

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 wrote the
opinion, in which Judge Duncan and Judge Diaz joined.
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 to adjust his status to lawful conditional
permanent resident. The United States Citizenship and
Immigration Services (“USCIS”) denied Regis’ application because
he had turned 21 before he entered the United States and was
therefore not a qualifying “minor child.” See 8 U.S.C.
§ 1255(d). 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 by his age at the time he
initially sought the K-2 visa. 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 Immigration and Nationality Act (the “INA” or the
“Act”) defines two classes of nonimmigrant aliens that are
pertinent to this appeal:
(i) . . . the fiancee or fiance 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 fiancé or fiancée (the “fiancée”). Id.§ 1184(d)(1); 8 C.F.R. § 214.2(k)(1). If the fiancée has a
minor child that is accompanying or following to join her, that
child “may be accorded the same nonimmigrant classification”
without a separate petition. 8 C.F.R. § 214.2(k)(3). The
approved petition is forwarded to the U.S. consulate in the
fiancée’s home country. 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). After receipt of an
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approved visa application, the consulate issues the K visas,
which, as nonimmigrant visas, generally bear validity periods
reflecting reciprocity between the United States and the
practices of the particular foreign government. Id.
§ 41.112(b)(1).
Issuance of a K-1 or K-2 visa, however, does not guarantee
the visa holder’s entry into the United States. 8 U.S.C.
§ 1201(h) (“Nothing in this chapter shall be 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.”). Upon arrival at a port of entry into the United States,
the alien fiancée –- like all nonimmigrant aliens -- must
establish that he or she is then admissible. 8 C.F.R.
§ 214.1(a)(3)(i). 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. 8 U.S.C. § 1255(d); 8
C.F.R. § 214.2(k)(6)(ii). 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.”).
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B. Regis’ Application Process
Regis is a native and citizen of the Philippines who was
born on February 18, 1986. On February 13, 2007, the United
States embassy’s 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 was no longer a “child” as defined in 8 U.S.C.
§ 1101(b)(1). Regis moved for reconsideration, and USCIS
dismissed that motion.
On November 15, 2007, the Department of Homeland Security
began removal proceedings against Regis by filing a Notice to
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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. Id. at
1092-93. 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. Id. at 1098-
1101. 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 that the
United States citizen files a petition for K-1 and
K–2 visas with the Secretary of Homeland Security
under 8 U.S.C. § 1184(d)(1), or (b) the date that the
K–1 and K–2 visa applications are filed with the
consular officer in the country of origin.
7
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 the United States under his K-2 visa.
Accordingly, the IJ ordered Regis removed from the 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. The Board dismissed Regis’ appeal,
adopting and affirming the 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. We
have jurisdiction to consider his petition under 8 U.S.C.
§ 1252.
8
II. Discussion
We review the Board’s legal conclusions de novo. Saintha
v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008). 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 of the statute controls. Id. If, however, the
relevant provision is ambiguous, then we will defer to 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.’” Saintha, 516 F.3d
9
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 status, the Board has provided
guidance in Matter of Le. In that case, the applicant entered
the United States with his mother when he was 19 years old, but
turned 21 before USCIS adjudicated his application for
adjustment of status. 25 I. & N. Dec. at 542. 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. Id. at 544. Regarding the first question, the
Board concluded that the defining age for a “minor child”
determination is age 21, not 18. Id. at 550 (noting the “long-
standing interpretation by the implementing agency” and
Congress’ implicit approval of that interpretation).
10
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. Matter of Sesay, 25 I. & N.
Dec. 431, 440 (B.I.A. 2011). The Board in Matter of Le found
Matter of Sesay’s reasoning to be equally persuasive in the
context of K-1 visa holders’ minor children. Matter of Le, 25
I. & N. Dec. at 545. 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.” Id. at 541 (emphasis
added). 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 K-
2 applicants for adjustment.
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B. Chevron Deference
Because Matter of Le is a precedential opinion in which the
Board interpreted a statute Congress has designated it to
administer, we proceed in accordance with Chevron. 2 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? As noted earlier, the INA is silent on this question.
For 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 “violate[] basic principles of common sense and
fairness”); Matter of Le, 25 I. & N. Dec. 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).
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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 language in the statute that resolves the question at
issue here. 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 fiance(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 Chevron to determine whether the Board’s
interpretation is a “permissible construction,” 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.” First, the Board reasoned that the date of an
alien’s entry into the United States “best marks visa
eligibility and availability, because ‘events that 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). Relatedly, the Board noted that the
entry date is 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 Board considered this factor important because the Act
permits a minor child to follow the parent into 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.” This provision, the
14
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. The Board’s
analysis embraces the existing statutory and 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. Accordingly, because Regis was over 21
when he entered the United States, his application for
adjustment of status was properly denied and he is 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. See Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s 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.”).
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III.
For all these reasons, Regis’ petition for review of the
Board’s decision is
DENIED.
17