Scialabba v. Cuellar De Osorio , 134 S. Ct. 2191 ( 2014 )

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SCIALABBA, ACTING DIRECTOR, UNITED STATES
CITIZENSHIP AND IMMIGRATION SERVICES, ET AL.
v. CUELLAR DE OSORIO ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 12–930. Argued December 10, 2013—Decided June 9, 2014
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” cate-
gory based on his relationship with the petitioner. 8 U. S. C.
§§1153(a)(1)–(4). The principal beneficiary’s spouse and minor chil-
dren 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 “prior-
ity 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 deter-
mined . . . to be 21 years of age or older,” notwithstanding certain al-
lowances 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 peti-
tions for their aged-out children, asserting that the newly filed peti-
tions 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 Immi-
2 SCIALABBA v. CUELLAR DE OSORIO
Syllabus
gration 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 benefi-
ciaries 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 GINS-
BURG, concluded that the BIA’s textually reasonable construction of
§1153(h)(3)’s ambiguous 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. Natural Resources Defense Council, Inc., 467
U. S. 837, 844. The first clause of §1153(h)(3) states a condition that
encompasses every aged-out beneficiary of a family preference peti-
tion. 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 “con-
version” 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 under-
mine the family preference system’s core premise: that each immi-
grant 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 can-
not 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). Nei-
Cite as: 573 U. S. ____ (2014) 3
Syllabus
ther 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 requi-
site 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 reme-
dy to those principal and derivative beneficiaries who had a qualify-
ing 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 re-
medial clause, rather than go beyond those limits so as to match the
sweep of the first clause’s condition. When an agency thus resolves
statutory tension, ordinary principles of administrative deference re-
quire this Court to defer. See National Assn. of Home Builders v. De-
fenders of Wildlife, 551 U. S. 644, 666. 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 “au-
tomatic conversion,” they require conversion to occur on a date that
has no connection to the alien’s aging out, and they demand adminis-
trative juggling to make automatic conversion work. And that pains-
takingly 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 whol-
ly independent of automatic conversion. But “and” does not neces-
4 SCIALABBA v. CUELLAR DE OSORIO
Syllabus
sarily disjoin two phrases, and context suggests that the instructions
work in tandem. In other statutory and regulatory provisions re-
specting “conversions,” retention of a priority date is conditional on a
conversion occurring. See, e.g., §§1154(k)(1)–(3). Respondent’s read-
ing 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 restric-
tive reading. But the BIA’s interpretation benefits from administra-
tive 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 benefi-
ciaries, 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 con-
flict or internal tension in §1153(h)(3). The first clause of the provi-
sion defines the persons potentially affected, but does not grant any-
thing to anyone. The particular benefit provided by the statute—
automatic conversion and retention of priority date—is found exclu-
sively 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 auto-
matically 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 im-
migration law, and with the structure of the family-based immigra-
tion system. Pp. 1–4.
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.
Cite as: 573 U. S. ____ (2014) 1
Opinion of KAGAN, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–930
_________________
LORI SCIALABBA, ACTING DIRECTOR, UNITED
STATES CITIZENSHIP AND IMMIGRATION
SERVICES, ET AL., PETITIONERS v. ROSA-
LINA CUELLAR DE OSORIO ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 9, 2014]
JUSTICE KAGAN 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 fam-
ily members—spouses, siblings, and children of various
ages—to obtain immigrant visas. Such a sponsored indi-
vidual 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 deriv-
ative 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 peti-
tion was filed, a minor child (whether a principal or a
derivative beneficiary) has turned 21—or, in immigration
2 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
lingo, has “aged out”? The immigration process may take
years or even decades to complete, due in part to bureau-
cratic delays associated with reviewing immigration doc-
uments 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 out-
paced the immigration process—that is, all aliens who
counted as child beneficiaries when a sponsoring petition
was filed, but no longer do so (even after excluding admin-
istrative 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.
I
A
An alien needs an immigrant visa to enter and perma-
nently reside in the United States. See §1181(a).1 To
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1 An alien already in the United States—for example, on a student or
temporary worker visa—must obtain “adjustment of status” rather
than an immigrant visa to become a lawful permanent resident. See 8
Cite as: 573 U. S. ____ (2014) 3
Opinion of KAGAN, J.
obtain that highly sought-after document, the alien must
fall within one of a limited number of immigration cate-
gories. 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 daugh-
ters 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.)
——————
U. S. C. §1255(a). Because the criteria for securing adjustment of
status and obtaining an immigrant visa are materially identical, we use
the single term “immigrant visa” to refer to both.
2 The “family preference” label, as used by immigration officials, ap-
plies only to these five classifications, and not to the category for “im-
mediate relatives” of U. S. citizens. See Brief for Petitioners 3, n. 1.
3 Immigrant visas can also go to aliens with special, marketable
skills, see §§1151(a)(2), 1153(b), or to aliens from countries with histori-
cally low immigration to the United States, see §§1151(a)(3), 1153(c).
None of the respondents here sought visas under those “employment-
based” or “diversity” categories.
4 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
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 princi-
pal 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
approves it if found to meet all requirements. See
§1154(b).
For a family preference beneficiary, that approval re-
sults not in getting a visa then and there, but only in
getting a place in line. (The case is different for “immedi-
ate relatives” of U. S. citizens, who can apply for and
receive a visa as soon as a sponsoring petition is ap-
proved.) 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 bene-
ficiary 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
Cite as: 573 U. S. ____ (2014) 5
Opinion of KAGAN, J.
within each preference category, with visas becoming
available in order of priority date.
Such a date may benefit not only the principal benefi-
ciary 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 sta-
tus, and the same order of consideration” as the principal.
8 U. S. C. §§1153(d), (h). Accordingly, when a visa be-
comes 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 recog-
nize 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 applica-
tions. See 8 U. S. C. §1202(a). Such an application re-
quires an alien to demonstrate in various ways her ad-
missibility 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 cer-
tain 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 de-
rivative beneficiary) must append an “affidavit of sup-
port” 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
6 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
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 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 consu-
late 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 immi-
grant visa is approved at the border does she finally be-
come an LPR.5
——————
4 See Dept. of State, The Immigrant Visa Process: Visa Applicant
Interview, online at http://travel.state.gov/content/visas/english/
immigrate/immigrant-process/interview/applicant_interview.html (all
Internet materials as visited June 5, 2014, and available in Clerk of
Court’s case file).
5 The last part of the immigration process is streamlined for aliens
already residing in the United States who have applied for adjustment
of status. See n. 1, supra. The immigration officer interviewing such
an alien, upon finding her visa-eligible, may declare her an LPR on the
spot. See 8 U. S. C. §1255(i)(2). But here too, the officer will not make
a derivative beneficiary an LPR unless and until he approves that
status for the principal. See 22 CFR §40.1(a)(2).
Cite as: 573 U. S. ____ (2014) 7
Opinion of KAGAN, J.
B
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 sponsor-
ing 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 admis-
sion). 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 “imme-
——————
6 See USCIS, Processing Time Information, online at https://
egov.uscis.gov/cris/processingTimesDisplayInit.do.
7 See The Immigrant Visa Process: Interview, online at
http://travel.state.gov/content/visas/english/immigrate/immigrant-process/
interview.html.
8 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
diate 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 immigrants: If an alien was young when a U. S.
citizen sponsored his entry, then Peter Pan-like, he re-
mains 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 provi-
sion here—is through and through perplexing.8
——————
8 The
full text of these three paragraphs, for the masochists among
this opinion’s readers, is as follows:
“(h) Rules for determining whether certain aliens are children
“(1) In general
“For purposes of subsections (a)(2)(A) and (d) of this section, a deter-
mination of whether an alien satisfies the age requirement in the
matter preceding subparagraph (A) of section 1101(b)(1) of this title
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) of this section, 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 resi-
dence 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.
“(2) Petitions described
“The petition described in this paragraph is—
“(A) with respect to a relationship described in subsection (a)(2)(A) of
this section, a petition filed under section 1154 of this title for classifi-
Cite as: 573 U. S. ____ (2014) 9
Opinion of KAGAN, J.
The first paragraph, §1153(h)(1), contains a formula for
calculating the age of an alien “[f]or purposes of subsec-
tions (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 “determina-
tion of whether [such] an alien satisfies the [immigration
law’s] age requirement”—that is, counts as under 21—
“shall be made using—
“(A) the age of the alien on the date on which an
immigrant visa number becomes available for such al-
ien (or, in the case of [derivative beneficiaries], the
date on which an immigrant visa number became
available for the alien’s parent) . . . ; reduced by
“(B) the number of days in the period during which
the applicable petition described in paragraph (2) was
pending.” §1153(h)(1).
The cross-referenced second paragraph, §1153(h)(2), then
explains that the “applicable petition” mentioned is the
petition covering the given alien—so again, either an F2A
petition filed on his own behalf or any petition extending
to him as a derivative.
Taken together, those two paragraphs prevent an alien
from “aging out” because of—but only because of—
bureaucratic delays: the time Government officials spend
reviewing (or getting around to reviewing) paperwork at
——————
cation of an alien child under subsection (a)(2)(A) of this section; or
“(B) with respect to an alien child who is a derivative beneficiary
under subsection (d) of this section, a petition filed under section 1154
of this title for classification of the alien’s parent under subsection (a),
(b), or (c) of this section.
“(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) and (d) of
this section, 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.” 8 U. S. C. §1153(h).
10 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
what we have called the front and back ends of the immi-
gration process. See supra, at 6–7. The months that
elapse before USCIS personnel approve a family prefer-
ence petition (“the period during which the applicable
petition described in paragraph (2) was pending”) do not
count against an alien in determining his statutory “age.”
Neither do the months a consular officer lets pass before
adjudicating the alien’s own visa application (the period
after “an immigrant visa number becomes available for
such alien (or . . . [his] parent)”). But the time in be-
tween—the months or, more likely, years the alien spends
simply waiting for a visa to become available—is not
similarly excluded in calculating his age: Every day the
alien stands in that line is a day he grows older, under the
immigration laws no less than in life. And so derivative
beneficiaries, as well as principal beneficiaries of F2A
petitions, can still “age out”—in other words, turn 21,
notwithstanding §1153(h)(1)’s dual age adjustments—
prior to receiving an opportunity to immigrate.
What happens then (if anything) is the subject of
§1153(h)’s third paragraph—the provision at issue in this
case. That paragraph states:
“If the age of an alien is determined under para-
graph (1) to be 21 years of age or older for the purposes
of subsections (a)(2)(A) and (d) of this section, 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 origi-
nal petition.”
The provision thus first references the aged-out beneficiar-
ies of family preference petitions, and then directs immi-
gration officials to do something whose meaning this
opinion will further consider—i.e., “automatically convert”
an alien’s petition to an “appropriate category.”
The Board of Immigration Appeals (BIA) addressed the
Cite as: 573 U. S. ____ (2014) 11
Opinion of KAGAN, J.
meaning of §1153(h)(3) in Matter of Wang, 25 I. & N. Dec.
28 (2009); its interpretation there is what we review in
this case. Wang was the principal beneficiary of an F4
petition that his sister, a U. S. citizen, filed in 1992. At
that time, Wang’s daughter was 10 years old, and thus
qualified as a derivative beneficiary. But Wang waited in
line for a visa for more than a decade, and by the time his
priority date finally came up, his daughter had turned 22
(even after applying §1153(h)(1)’s age-reduction formula).
Wang thus obtained a visa for himself, boarded a plane
alone, and entered the United States as an LPR. He then
filed a new preference petition on his daughter’s behalf—
this one under F2B, the category for LPRs’ adult sons and
daughters. USCIS approved that petition, with a priority
date corresponding to the date of Wang’s filing. Wang
contended that under §1153(h)(3), his daughter was in-
stead entitled to “retain the original priority date” given to
his sister’s old F4 petition, because that petition could
“automatically be converted” to the F2B category.
The Board rejected that argument. It explained that
“the language of [§1153(h)(3)] does not expressly state
which petitions qualify for automatic conversion and
retention of priority dates.” Id., at 33. Given that “ambi-
guity,” the BIA looked to the “recognized meaning” of “the
phrase ‘automatic conversion’ ” in immigration statutes
and regulations—which it “presume[d]” Congress under-
stood when enacting the CSPA. Id., at 33–35. “Historically,”
the BIA showed, that language applied only when a
petition could move seamlessly from one family preference
category to another—not when a new sponsor was needed
to fit a beneficiary into a different category. Id., at 35.
Some aged-out aliens’ petitions could accomplish that
maneuver, because the alien had a qualifying relationship
with the original sponsor, and continued to do so upon
aging out; in that event, the Board held, §1153(h)(3) en-
sured that the alien would retain his original priority date.
12 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
See id., at 34–35. But the F4 petition filed by Wang’s
sister could not “automatically be converted” in that way
because Wang’s daughter never had a qualifying relation-
ship with the sponsor: “[N]o category exists for the niece of
a United States citizen.” Id., at 35–36. That is why Wang
himself had to file a new petition on his daughter’s behalf
once she aged out and could no longer ride on his sibling
status. The Board saw no evidence that Congress meant
“to expand the use of the concept[ ] of automatic conver-
sion” to reach such a case. Id., at 36. And the Board
thought such an expansion unwarranted because it would
allow aliens like Wang’s daughter, who lacked any inde-
pendent entitlement to a visa during the years her father
spent standing on the F4 queue, to “cut[ ] in line ahead of
others awaiting visas in other preference categories.” Id.,
at 38.
C
The respondents in this case are similarly situated to
Wang, and they seek the same relief. Each was once the
principal beneficiary of either an F3 petition filed by a
U. S. citizen parent or an F4 petition filed by a U. S. citi-
zen sibling. Each also has a son or daughter who, on the
date of filing, was under 21 and thus qualified as a deriva-
tive beneficiary of the petition. But as was true of Wang’s
daughter, the respondents’ offspring had all turned 21
(even accounting for §1153(h)(1)’s age adjustments) by the
time visas became available. Accordingly, the respondents
immigrated to the United States alone and, as new LPRs,
filed F2B petitions for their sons and daughters. Each
argued that under §1153(h)(3), those petitions should get
the same priority date as the original F3 and F4 petitions
once had. USCIS instead gave the new F2B petitions
current priority dates, meaning that the sons and daugh-
ters could not leapfrog over others in the F2B line.
This case began as two separate suits, one joining many
Cite as: 573 U. S. ____ (2014) 13
Opinion of KAGAN, J.
individual plaintiffs and the other certified as a class
action. In each suit, the District Court deferred to the
BIA’s interpretation of §1153(h)(3) in Wang, and accord-
ingly granted summary judgment to the Government. See
Zhang v. Napolitano, 663 F. Supp. 2d 913, 919 (CD Cal.
2009); Costelo v. Chertoff, No. SA08–00688, 2009 WL
4030516 (CD Cal., Nov. 10, 2009). After consolidating the
two cases on appeal, a panel of the Ninth Circuit affirmed:
Like the lower courts, it found §1153(h)(3) ambiguous and
acceded to the BIA’s construction. 656 F. 3d 954, 965–966
(2011). The Ninth Circuit then granted rehearing en banc
and reversed in a 6-to-5 decision. 695 F. 3d 1003 (2012).
The majority concluded that “the plain language of the
CSPA unambiguously grants automatic conversion and
priority date retention to [all] aged-out derivative benefi-
ciaries,” and that the Board’s contrary conclusion “is not
entitled to deference.” Id., at 1006.
We granted certiorari, 570 U. S. ___ (2013), to resolve a
Circuit split on the meaning of §1153(h)(3),9 and we now
reverse the Ninth Circuit’s decision.
II
Principles of Chevron deference apply when the BIA
interprets the immigration laws. See Chevron U. S. A.
Inc. v. Natural Resources Defense Council, Inc., 467 U. S.
837, 842–844 (1984); INS v. Aguirre-Aguirre, 526 U. S.
415, 424–425 (1999). Indeed, “judicial deference to the
Executive Branch is especially appropriate in the immi-
gration context,” where decisions about a complex statu-
tory scheme often implicate foreign relations. Id., at 425.
(Those hardy readers who have made it this far will surely
——————
9 Compare 695 F. 3d 1003, 1006 (CA9 2012) (case below) (holding that
§1153(h)(3) extends relief to all aged-out derivative beneficiaries);
Khalid v. Holder, 655 F. 3d 363, 365 (CA5 2011) (same), with Li v.
Renaud, 654 F. 3d 376, 385 (CA2 2011) (holding that §1153(h)(3) not
merely permits, but requires the Board’s contrary interpretation).
14 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
agree with the “complexity” point.) Under Chevron, the
statute’s plain meaning controls, whatever the Board
might have to say. See 467 U. S., at 842–843. But if the
law does not speak clearly to the question at issue, a court
must defer to the Board’s reasonable interpretation, ra-
ther than substitute its own reading. Id., at 844.
And §1153(h)(3) does not speak unambiguously to the
issue here—or more precisely put, it addresses that issue
in divergent ways. We might call the provision Janus-
faced. Its first half looks in one direction, toward the
sweeping relief the respondents propose, which would
reach every aged-out beneficiary of a family preference
petition. But as the BIA recognized, and we will further
explain, the section’s second half looks another way, to-
ward a remedy that can apply to only a subset of those
beneficiaries—and one not including the respondents’
offspring. The two faces of the statute do not easily cohere
with each other: Read either most naturally, and the other
appears to mean not what it says. That internal tension
makes possible alternative reasonable constructions,
bringing into correspondence in one way or another the
section’s different parts. And when that is so, Chevron
dictates that a court defer to the agency’s choice—here, to
the Board’s expert judgment about which interpretation
fits best with, and makes most sense of, the statutory
scheme.
Begin by reading the statute from the top—the part
favoring the respondents. Section 1153(h)(3)’s first
clause—“If the age of an alien is determined under para-
graph (1) to be 21 years of age or older for the purposes of
subsections (a)(2)(A) and (d)”—states a condition that
every aged-out beneficiary of a preference petition satis-
fies. That is because all those beneficiaries have had their
ages “determined under paragraph (1)” (and have come up
wanting): Recall that the age formula of §1153(h)(1) ap-
plies to each alien child who originally qualified (under
Cite as: 573 U. S. ____ (2014) 15
Opinion of KAGAN, J.
“subsections (a)(2)(A) and (d)”) as the principal beneficiary
of an F2A petition or the derivative beneficiary of any
family preference petition. On its own, then, §1153(h)(3)’s
opening clause encompasses the respondents’ sons and
daughters, along with every other once-young beneficiary
of a family preference petition now on the wrong side of
21. If the next phrase said something like “the alien shall
be treated as though still a minor” (much as the CSPA did
to ensure U. S. citizens’ children, qualifying as “immediate
relatives,” would stay forever young, see supra, at 7–8), all
those aged-out beneficiaries would prevail in this case.
But read on, because §1153(h)(3)’s second clause instead
prescribes a remedy containing its own limitation on the
eligible class of recipients. “[T]he alien’s petition,” that
part provides, “shall automatically be converted to the
appropriate category and the alien shall retain the origi-
nal priority date.” That statement directs immigration
officials to take the initial petition benefitting an alien
child, and now that he has turned 21, “convert[ ]” that
same petition from a category for children to an “appropri-
ate category” for adults (while letting him keep the old
priority date). The “conversion,” in other words, is merely
from one category to another; it does not entail any change
in the petition, including its sponsor, let alone any new
filing. And more, that category shift is to be “automatic”—
that is, one involving no additional decisions, contingen-
cies, or delays. See, e.g., Random House Webster’s Una-
bridged Dictionary 140 (2d ed. 2001) (defining “automatic”
as “having the capability of starting, operating, moving,
etc., independently”); The American Heritage Dictionary
122 (4th ed. 2000) (“[a]cting or operating in a manner
essentially independent of external influence”). The oper-
ation described is, then, a mechanical cut-and-paste job—
moving a petition, without any substantive alteration,
from one (no-longer-appropriate, child-based) category to
another (now-appropriate, adult) compartment. And so
16 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
the aliens who may benefit from §1153(h)(3)’s back half
are only those for whom that procedure is possible. The
clause offers relief not to every aged-out beneficiary, but
just to those covered by petitions that can roll over, seam-
lessly and promptly, into a category for adult relatives.
That understanding of §1153(h)(3)’s “automatic conver-
sion” language matches the exclusive way immigration
law used the term when Congress enacted the CSPA. For
many years before then (as today), a regulation entitled
“Automatic conversion of preference classification” in-
structed immigration officials to change the preference
category of a petition’s principal beneficiary when either
his or his sponsor’s status changed in specified ways. See
8 CFR §§204.2(i)(1)–(3) (2002). For example, the regula-
tion provided that when a U. S. citizen’s child aged out, his
“immediate relative” petition converted to an F1 petition,
with his original priority date left intact. See §204.2(i)(2).
Similarly, when a U. S. citizen’s adult son married, his
original petition migrated from F1 to F3, see §204.2(i)
(1)(i); when, conversely, such a person divorced, his peti-
tion converted from F3 to F1, see §204.2(i)(1)(iii); and
when a minor child’s LPR parent became a citizen, his
F2A petition became an “immediate relative” petition, see
§204.2(i)(3)—all again with their original priority dates.
Most notable here, what all of those authorized changes
had in common was that they could occur without any
change in the petitioner’s identity, or otherwise in the
petition’s content. In each circumstance, the “automatic
conversion” entailed nothing more than picking up the
petition from one category and dropping it into another for
which the alien now qualified.10
——————
10 The dissent responds to this fact only with a pair of non-sequiturs.
Post, at 18–19 (opinion of SOTOMAYOR, J.). First, the dissent cites a
statutory provision that does not use the word “conversion” at all, so
can hardly attest to its meaning. See 8 U. S. C. §1154(a)(1)(D)(i)(III).
And next, the dissent cites a regulation that post-dated the CSPA by
Cite as: 573 U. S. ____ (2014) 17
Opinion of KAGAN, J.
Congress used the word “conversion” (even without the
modifier “automatic”) in the identical way in two other
sections of the CSPA. See Law v. Siegel, 571 U. S. ___, ___
(slip op., at 7) (2014) (“[W]ords repeated in different parts
of the same statute generally have the same meaning”).
Section 2 refers to occasions on which, by virtue of the
above-described regulation, a petition “converted” from
F2A to the “immediate relative” category because of the
sponsor parent’s naturalization, or from the F3 to the
F1 box because of the beneficiary’s divorce. 8 U. S. C.
§§1151(f )(2), (3). Then, in §6, Congress authorized an
additional conversion of the same nature: It directed that
when an LPR parent-sponsor naturalizes, the petition he
has filed for his adult son or daughter “shall be converted,”
unless the beneficiary objects, from the F2B to the F1
compartment—again with the original priority date un-
changed. 8 U. S. C. §§1154(k)(1)–(3). (That opt-out mech-
anism itself underscores the otherwise mechanical nature
of the conversion.) Once again, in those cases, all that is
involved is a recategorization—moving the same petition,
filed by the same petitioner, from one preference classifi-
cation to another, so as to reflect a change in either the
alien’s or his sponsor’s status. In the rest of the CSPA, as
in the prior immigration regulation, that is what “conver-
sion” means.
And if the term meant more than that in §1153(h)(3), it
would undermine the family preference system’s core
——————
years, and thus is equally irrelevant to what Congress intended. See 71
Fed. Reg. 35732, 35749 (2006) (adding 8 CFR §204.2(i)(1)(iv)). More-
over, both provisions relate to a sui generis circumstance in which a
person can self-petition for a visa because her U. S. citizen or LPR
relative either died or engaged in domestic abuse. In that situation, the
alien’s eligibility rests throughout on her connection to the deceased or
abusive relative; no new party must ever come in, as one has to in a
case like Wang, to salvage a no-longer-effective petition. See infra, at
18 (addressing the problems that the substitution of a new petitioner
raises).
18 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
premise: that each immigrant must have a qualified spon-
sor. Consider the alternative addressed in Wang—if
“automatic conversion” were also to encompass the substi-
tution of a new petitioner for the old one, to make sure the
aged-out alien’s petition fits into a new preference category.
In a case like Wang, recall, the original sponsor does
not have a legally recognized relationship with the aged-
out derivative beneficiary (they are aunt and niece); ac-
cordingly, the derivative’s father—the old principal benefi-
ciary—must be swapped in as the petitioner to enable his
daughter to immigrate. But what if, at that point, the
father is in no position to sponsor his daughter? Suppose
he decided in the end not to immigrate, or failed to pass
border inspection, or died in the meanwhile. Or suppose
he entered the country, but cannot sponsor a relative’s
visa because he lacks adequate proof of parentage or
committed a disqualifying crime. See §1154(a)(1)(B)(i)(II);
8 CFR §204.2(d)(2); supra, at 4. Or suppose he does not
want to—or simply cannot—undertake the significant
financial obligations that the law imposes on someone
petitioning for an alien’s admission. See 8 U. S. C.
§§1183a(a)(1)(A), (f )(1)(D); supra, at 5. Immigration offi-
cials cannot assume away all those potential barriers to
entry: That would run counter to the family preference
system’s insistence that a qualified and willing sponsor
back every immigrant visa. See §§1154(a)–(b). But nei-
ther can they easily, or perhaps at all, figure out whether
such a sponsor exists unless he files and USCIS approves
a new petition—the very thing §1153(h)(3) says is not
required.
Indeed, in cases like Wang, the problem is broader:
Under the statute’s most natural reading, a new qualified
sponsor will hardly ever exist at the moment the petition
is to be “converted.” Section 1153(h)(3), to be sure, does
not explicitly identify that point in time. But §1153(h)(1)
specifies the date on which a derivative beneficiary is
Cite as: 573 U. S. ____ (2014) 19
Opinion of KAGAN, J.
deemed to have either aged out or not: It is “the date on
which an immigrant visa number became available for the
alien’s parent.” See §§1153(h)(1)(A)–(B). Because that
statutory aging out is the one and only thing that triggers
automatic conversion for eligible aliens, the date of con-
version is best viewed as the same. That reading, more-
over, comports with the “automatic conversion” regulation
on which Congress drew in enacting the CSPA, see supra,
at 16–17: The rule authorizes conversions “upon” or “as of
the date” of the relevant change in the alien’s status (in-
cluding turning 21))—regardless when USCIS may re-
ceive notice of the change. 8 CFR §204.2(i); but cf. post, at
14 (SOTOMAYOR, J., dissenting) (wrongly stating that
under that rule conversion occurs upon the agency’s re-
ceipt of proof of the change). But on that date, no new
petitioner will be ready to step into the old one’s shoes if
such a substitution is needed to fit an aged-out beneficiary
into a different category. The beneficiary’s parent, on the
day a “visa number became available,” cannot yet be an
LPR or citizen; by definition, she has just become eligible
to apply for a visa, and faces a wait of at least several
months before she can sponsor an alien herself. Nor,
except in a trivial number of cases, is any hitherto uniden-
tified person likely to have a legally recognized relation-
ship to the alien. So if an aged-out beneficiary has lost his
qualifying connection to the original petitioner, no conver-
sion to an “appropriate category” can take place at the
requisite time. As long as immigration law demands some
valid sponsor, §1153(h)(3) cannot give such an alien the
designated relief.
On the above account—in which conversion entails a
simple reslotting of an original petition into a now-
appropriate category—§1153(h)(3)’s back half provides a
remedy to two groups of aged-out beneficiaries. First, any
child who was the principal beneficiary of an F2A petition
(filed by an LPR parent on his behalf) can take advantage
20 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
of that clause after turning 21. He is, upon aging out, the
adult son of the same LPR who sponsored him as a child;
his petition can therefore be moved seamlessly—without
the slightest alteration or delay—into the F2B category.
Second, any child who was the derivative beneficiary of an
F2A petition (filed by an LPR on his spouse’s behalf) can
similarly claim relief, provided that under the statute, he
is not just the spouse’s but also the petitioner’s child.11
Such an alien is identically situated to the aged-out prin-
cipal beneficiary of an F2A petition; indeed, for the price of
another filing fee, he could just as easily have been named
a principal himself. He too is now the adult son of the
original LPR petitioner, and his petition can also be in-
stantly relabeled an F2B petition, without any need to
substitute a new sponsor or make other revisions. In each
case, the alien had a qualifying relationship before he was
21 and retains it afterward; all that must be changed is
the label affixed to his petition.12
In contrast, as the Board held in Wang, the aged-out
derivative beneficiaries of the other family preference
categories—like the sons and daughters of the respond-
ents here—cannot qualify for “automatic conversion.”
Recall that the respondents themselves were principal
beneficiaries of F3 and F4 petitions; their children, when
under 21, counted as derivatives, but lacked any qualify-
ing preference relationship of their own. The F3 deriva-
tives were the petitioners’ grandsons and granddaughters;
——————
11 Given the statute’s broad definition of “child,” the only F2A deriva-
tive beneficiaries who fall outside that proviso are stepchildren who
were over the age of 18 when the petitioner married the spousal benefi-
ciary. See §1101(b)(1)(B). The Government represents that thousands
of children are designated as F2A derivatives every year. See Reply
Brief 18, n. 13.
12 It is, therefore, impossible to understand the dissent’s statement
that conversion of such a petition to an appropriate category requires
“ ‘substantive alteration’ to [the] petition.” See post, at 19, n. 8 (opinion
of SOTOMAYOR, J.).
Cite as: 573 U. S. ____ (2014) 21
Opinion of KAGAN, J.
the F4 derivatives their nephews and nieces; and none of
those are relationships Congress has recognized as war-
ranting a family preference. See 8 U. S. C. §§1153(a)(3)–
(4). Now that the respondents’ children have turned 21,
and they can no longer ride on their parents’ coattails,
that lack of independent eligibility makes a difference.
For them, unlike for the F2A beneficiaries, it is impossible
simply to slide the original petitions from a (no-longer-
appropriate) child category to a (now-appropriate) adult
one. To fit into a new category, those aged-out derivatives,
like Wang’s daughter, must have new sponsors—and for
all the reasons already stated, that need means they
cannot benefit from “automatic conversion.”
All that said, we hold only that §1153(h)(3) permits—not
that it requires—the Board’s decision to so distinguish
among aged-out beneficiaries. That is because, as we
explained earlier, the two halves of §1153(h)(3) face in
different directions. See supra, at 14. Section 1153(h)(3)’s
first part—its conditional phrase—encompasses every
aged-out beneficiary of a family preference petition, and
thus points toward broad-based relief. But as just shown,
§1153(h)(3)’s second part—its remedial prescription—
applies only to a narrower class of beneficiaries: those
aliens who naturally qualify for (and so can be “automati-
cally converted” to) a new preference classification when
they age out. Were there an interpretation that gave each
clause full effect, the Board would have been required to
adopt it. But the ambiguity those ill-fitting clauses create
instead left the Board with a choice—essentially of how to
reconcile the statute’s different commands. The Board,
recognizing the need to make that call, 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 sweep of
the section’s initial condition. On the Board’s reasoned
view, the only beneficiaries entitled to statutory relief are
those capable of obtaining the remedy designated. When
22 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
an agency thus resolves statutory tension, ordinary prin-
ciples of administrative deference require us to defer. See
National Assn. of Home Builders v. Defenders of Wildlife,
551 U. S. 644, 666 (2007) (When a statutory scheme con-
tains “a fundamental ambiguity” arising from “the differ-
ing mandates” of two provisions, “it is appropriate to look
to the implementing agency’s expert interpretation” to
determine which “must give way”).
III
The respondents urge us to overturn the Board’s judg-
ment for three independent reasons. First, and principally,
they take issue with the Board’s—and now our—view
of the limits associated with “automatic conversion”: They
argue that every aged-out beneficiary’s petition can “au-
tomatically be converted” to an “appropriate category,”
and that the two halves of §1153(h)(3) are thus reconcila-
ble. Second, the respondents contend that even if “auto-
matic conversion” does not extend so far, §1153(h)(3)
separately entitles each such beneficiary to the benefit of
his original petition’s priority date. And third, they claim
that the Board’s way of resolving whatever ambiguity
inheres in §1153(h)(3) is arbitrary and capricious. The
dissenting opinion reiterates the first two arguments,
though with slight variation and in opposite order, while
forgoing the third. See post, at 9–19 (opinion of
SOTOMAYOR, J.) (hereinafter the dissent). We find none of
the contentions persuasive.
A
The respondents (and the dissent) initially aver that
every aged-out beneficiary (including their own sons and
daughters) can “automatically be converted” to an “appro-
priate” immigration category, if only immigration officials
try hard enough. The Government, in the respondents’
view, can accomplish that feat by substituting new spon-
Cite as: 573 U. S. ____ (2014) 23
Opinion of KAGAN, J.
sors for old ones, and by “managing the timing” of every
conversion to ensure such a new petitioner exists on the
relevant date. Brief for Respondents 33. And because, the
respondents say, it is thus possible to align the two halves
of §1153(h)(3)—even if through multiple administrative
maneuvers—immigration officials are under an obligation
to do so. We disagree, for reasons that should sound fa-
miliar: Several are the same as those we have just given
for upholding the Board’s interpretation. But still, we
walk through the respondents’ argument step-by-step, to
show how far it departs from any ordinary understanding
of “automatic conversion.”
The first (and necessary) premise of that argument does
not augur well for the remainder: It is the view that the
“automatic conversion” procedure permits a change in the
petitioner’s identity. According to the respondents, the
aged-out beneficiaries’ parents, upon becoming LPRs, can
be subbed in for the original sponsors (i.e., the beneficiar-
ies’ grandparents, aunts, and uncles), and the petitions
then converted to the F2B category. But as we have
shown, the “automatic conversion” language—as most
naturally read and as long used throughout immigration
law—contemplates merely moving a petition into a new
and valid category, not changing its most essential fea-
ture. See supra, at 15–17. That alone defeats the re-
spondents’ position.
And a further problem follows—this one concerning the
date of automatic conversion. The respondents need that
date to come at a time when the derivative beneficiaries’
parents (the substitute petitioners) are already living in
the United States as LPRs; otherwise, the petitions could
not qualify for the F2B box. In an attempt to make that
possible, the respondents propose that conversion be
viewed as taking place when “the derivative beneficiary’s
visa . . . application is adjudicated.” Brief for Respondents
29. But as we have (again) demonstrated, the statute is
24 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
best read as establishing a different date: that “on which
an immigrant visa number became available for the alien’s
parent”—when, by definition, the parent is not yet an
LPR. §1153(h)(1); see supra, at 18–19. That is the mo-
ment when a derivative ages out, which is the single
change conversion reflects. By contrast, the respondents’
suggested date has no connection to that metamorphosis;
the date of adjudication is merely when an immigration
official later discovers that a child has turned 21. And
that date is itself fortuitous, reflecting no more than when
an immigration officer got around to reviewing a visa
application: The possibility of conversion would thus
depend on bureaucratic vagaries attending the visa pro-
cess. So the respondents’ mistaken view of the timing of
conversion is another off-ramp from their argument.13
——————
13 Still, the respondents’ view of the timing of conversion is better
than the dissent’s. As an initial matter, the dissent’s objection to
assessing conversion as of the date a visa becomes available hinges on
an imaginary difficulty. That approach, the dissent complains, cannot
be right because that date always “occurs before the point at which the
child is determined to have aged-out.” Post, at 15. Well, yes. The date
a visa becomes available is, under the statute, the date an alien ages
out (or not); and that status change of course occurs before an immigra-
tion official, reviewing a visa application, finds that it has done so. But
what of it? When an official determines that an alien was no longer a
child on the date a visa became available, he also assesses whether
automatic conversion was available to the alien as of that prior date. In
other words, here as elsewhere in immigration law, conversion occurs
(or not) upon the date of the relevant status change—and no other. See
supra, at 19. And once that is understood, the supposed difficulties the
dissent throws up all melt away. At the time of the status change, F2A
petitions can be converted without further contingencies, decisions, or
delays, whereas no other petitions can. But cf. post, at 16, 17, n. 7
(countering, irrelevantly, that after an F2A petition is automatically
converted, additional steps remain in the immigration process). And
immigration officials later reviewing visa applications know that fact,
and can treat the different classes of aged-out beneficiaries accordingly.
Further, the dissent compounds its error by suggesting a baseless
alternative date: “the moment when USCIS receives proof,” no matter
Cite as: 573 U. S. ____ (2014) 25
Opinion of KAGAN, J.
Yet there is more—because even after substituting a
new petitioner and delaying the conversion date in a way
the statute does not contemplate, the respondents must
propose yet further fixes to make “automatic” conversion
work for their sons and daughters. The respondents’ next
problem is that even on the conversion date they propose,
most of them (and other derivatives’ parents) were not yet
LPRs, and so could not possibly be sponsors. In the ordi-
nary course, principal and derivative beneficiaries living
abroad apply for their visas at the same time and go to the
consulate together for back-to-back interviews. See supra,
at 6. And even if the parent is approved first, that alone
does not make her an LPR; she still must come to this
country, demonstrate her continued eligibility, and pass
an inspection. See ibid. Thus, the respondents must
recommend changes to the visa process to get the timing
to work—essentially, administrative juggling to hold off
the derivative beneficiary’s visa adjudication until his
parent has become an LPR. In particular, they suggest
that the consular official defer the derivative’s interview,
or that the official nominally “reject the application” and
then instruct the derivative to “reapply after the principal
beneficiary immigrates.” Brief for Respondents 30. But
the need for that choreography (which, in any event, few if
any of the respondents conformed to) renders the conver-
sion process only less “automatic,” because now it requires
special intervention, purposeful delay, and deviation from
——————
how far in the future, that a new petitioner stands ready and willing to
sponsor an aged-out beneficiary. Post, at 15. Not even the respondents
propose such a date, and for good reason. It has no grounding in the
CSPA or in any regulatory practice, and it bears no connection to the
timing of the status change (aging out) that triggers conversion (or
even, as the respondents’ date does, to the later determination of that
change). The only thing appearing to support the dissent’s date is a
single-minded resolve, statutory text and administrative practice
notwithstanding, to grant relief to every possible aged-out beneficiary.
26 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
standard administrative practice. Conversion has become
not a machine that would go of itself, but a process pains-
takingly managed.
And after all this fancy footwork, the respondents’
scheme still cannot succeed, because however long a visa
adjudication is postponed, a derivative’s parent may never
become able to sponsor a relative’s visa—and immigration
officials cannot practicably tell whether a given parent has
done so. We have noted before the potential impediments
to serving as a petitioner—including that a parent may
not immigrate, may not qualify as a sponsor, or may not
be able to provide the requisite financial support. See
supra, at 17–18. The respondents offer no way to deal
with those many contingencies. Require the parent to
submit a new petition? But the entire point of automatic
conversion (as the respondents themselves agree) is to
obviate the need for such a document. See Brief for Re-
spondents 30, 42. Investigate the parent’s eligibility in
some other way? But even were that possible (which we
doubt) such an inquiry would not square with the essen-
tial idea of an automatic process. Disregard the possibility
that no legal sponsor exists? But then visas would go,
inevitably and not infrequently, to ineligible aliens. And
so the workarounds have well and truly run out on the
respondents’ argument.14
——————
14 Nor does the dissent offer any serious aid to the respondents. The
dissent initially acknowledges that automatic conversion cannot involve
“additional decisions, contingencies, or delays.” Post, at 13. But no
worries, the dissent continues: “[O]nce [an alien’s parent] provides
confirmation of her eligibility to sponsor” the aged-out alien, the origi-
nal petition “can automatically be converted to an F2B petition, with no
additional decision or contingency” or (presumably) delay. Post, at 14.
Think about that: Once every decision, contingency, and delay we have
just described is over (and a parent has at long last turned out to be a
viable sponsor), the dissent assures us that no further decisions,
contingencies, and delays remain. Or, put differently, there are no
contingencies after all the contingencies have been resolved; no deci-
Cite as: 573 U. S. ____ (2014) 27
Opinion of KAGAN, J.
That leaves us with the same statutory inconsistency
with which we began. Having followed each step of the
respondents’ resourceful (if Rube Goldbergish) argument,
we still see no way to apply the concept of automatic con-
version to the respondents’ children and others like them.
And that means we continue to face a statute whose
halves do not correspond to each other—giving rise to an
ambiguity that calls for Chevron deference.
B
The respondents, however, have another idea for recon-
ciling §1153(h)(3)’s front and back parts (and this back-up
claim becomes the dissent’s principal argument). Recall
that the section’s remedial clause instructs that “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.”
The respondents (and the dissent) ask us to read the
italicized language as conferring a benefit wholly inde-
pendent of automatic conversion. On that view, aged-out
derivatives, even though ineligible for conversion, could
“retain the[ir] original priority date[s]” if their parents file
a new petition (as the respondents in fact did here “as a
protective matter,” Tr. of Oral Arg. 55). And then, every-
one encompassed in §1153(h)(3)’s first clause would get at
least some form of relief (even if not both forms) from the
section’s second. For this argument, the respondents
principally rely on the word “and”: “Where the word ‘and’
connects two” phrases as in §1153(h)(3)’s back half, the
respondents contend, those terms “operate independently.”
——————
sions after all the decisions have been made; and no delay after all the
delay has transpired. And as if that argument were not awkward
enough, consider that it would make automatic conversion turn on the
filing of a new document that shows the parent’s eligibility to sponsor
her aged-out son or daughter—the very thing, as all parties agree, that
conversion is supposed to render unnecessary. See supra, at 18, 26.
28 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
Brief for Respondents 39; see post, at 9.
But the conjunction “and” does not necessarily disjoin
two phrases in the way the respondents say. In some
sentences, no doubt, the respondents have a point. They
use as their primary example: “[I]f the boat takes on wa-
ter, then you shall operate the bilge pump and you shall
distribute life jackets.” Brief for Respondents 39; see also
post, at 10 (offering further examples). We agree that “you
shall distribute life jackets” functions in that sentence as
an independent command. But we can come up with
many paired dictates in which the second is conditional on
the first. “If the price is reasonable, buy two tickets and
save a receipt.” “If you have time this summer, read this
book and give me a report.” Or, shades of this case: “If
your cell-phone contract expires, buy a new phone and
keep the old number.”15 In each case, the second com-
mand functions only once the first is accomplished.
Whether “and” works in that way or in the respondents’
depends, like many questions of usage, on the context.
See, e.g., Caraco Pharmaceutical Laboratories, Ltd. v.
——————
15 The dissent appears to think that something helpful to its view
follows from repeating the word “shall” and changing the subject of the
commands. See post, at 9–10. But that is not so, as some further
examples show. “If you advance to the next round, my assistant shall
schedule an interview and you shall come in to answer questions.” “If
the plane is low on fuel, the tanks shall be refilled and the pilot shall fly
the route as scheduled.” In these sentences, as in our prior ones, the
second command is conditional on the first; all that differs is that these
sentences are (much like statutes) more formal and stilted. And the
dissent’s citation of United States v. Ron Pair Enterprises, Inc., 489
U. S. 235 (1989), adds nothing to its argument. There, we construed
the following provision: “[T]here shall be allowed to the holder of [a
secured] claim, interest on such claim, and any reasonable fees, costs,
or charges provided for under the agreement under which such claim
arose.” Id., at 241. We held that the phrase “provided for under the
agreement” qualifies the words “any reasonable fees, costs, or charges,”
but not the words “interest on such claim.” Id., at 241–242. What
relevance that interpretation bears to this case eludes us.
Cite as: 573 U. S. ____ (2014) 29
Opinion of KAGAN, J.
Novo Nordisk A/S, 566 U. S. ___, ___ (2012).
Here, we think, context compels the Board’s view that
the instructions work in tandem. The first phrase in-
structs immigration officials to convert a petition (when an
“appropriate category” exists); the next clarifies that such
a converted petition will retain the original priority date,
rather than receive a new one corresponding to the date of
conversion. That reading comports with the way retention
figures in other statutory and regulatory provisions re-
specting “conversions”; there too, retention of a priority
date is conditional on a conversion occurring. See 8
U. S. C. §§1154(k)(1)–(3); 8 CFR §204.2(i); supra, at 16.
The respondents wish to unhook the “retention” phrase
from that mooring, and use it to explain what will attend a
different event—that is, the filing of a new petition. But
that is to make “retention” conditional on something the
statute nowhere mentions—a highly improbable thing for
Congress to have done. (If, once again, a teacher says to
“read this book and give me a report,” no one would think
he wants a report on some unidentified subject.) And
indeed, the respondents’ and dissent’s own examples prove
this point: In not a single one of their proffered sentences
is the second command contingent on the occurrence of
some additional, unstated event, as it would have to be
under the respondents’ construction of §1153(h)(3); rather,
each such command (e.g., “distribute life jackets”) flows
directly from the stated condition (e.g., “if the boat takes
on water”). So by far the more natural understanding of
§1153(h)(3)’s text is that retention follows conversion, and
nothing else.
The respondents’ contrary view would also engender
unusual results, introducing uncertainty into the immi-
gration system’s operation and thus interfering with
statutory goals. Were their theory correct, an aged-out
alien could hold on to a priority date for years or even
decades while waiting for a relative to file a new petition.
30 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
Even if that filing happened, say, 20 years after the alien
aged out, the alien could take out his priority-date token,
and assert a right to spring to the front of any visa line.
At that point, USCIS could well have a hard time confirm-
ing the old priority date, in part because the names of
derivative beneficiaries need not be listed on a visa peti-
tion. And the possibility of such leap-frogging from many
years past would impede USCIS’s publication of accurate
waiting times. As far as we know, immigration law no-
where else allows an alien to keep in his pocket a priority
date untethered to any existing valid petition. Without
some clearer statement, we cannot conclude Congress
intended here to create such a free-floating, open-ended
entitlement to a defunct petition’s priority date. See
Wang, 25 I. & N. Dec., at 36.16
——————
16 The dissent claims that USCIS “administered priority date reten-
tion in exactly this manner” before the CSPA’s enactment, post, at 10,
but that confident assertion is just not so—or at least not in any way
that assists the respondents. The dissent principally relies on 8 CFR
§204.2(a)(4), which prior to the CSPA’s enactment permitted an aged-
out F2A derivative beneficiary to retain his old priority date “if [a]
subsequent petition is filed by the same petitioner” as filed the original.
Far from authorizing an open-ended, free-floating entitlement, that
now-superseded regulation allowed an alien to keep his priority date
only if he (unlike the respondents’ offspring) had a qualifying relation-
ship with the initial petitioner—that is, only if he fell within the group
that the BIA in Wang thought entitled to relief. See 25 I. & N. Dec., at
34–35. And the other provisions the dissent cites (which, unlike
§204.2(a)(4), continue to operate) similarly fail to support the dissent’s
position, because they enable an alien to retain a priority date only if
attached to an existing valid petition. See 8 U. S. C. §1154(k)(3) (per-
mitting an alien to retain a priority date associated with an ex-
isting F2B petition); 8 CFR §204.5(e) (permitting an alien to retain a
priority date associated with an existing employment-based peti-
tion); §204.12(f)(1) (permitting an alien to retain a priority date
associated with an existing employment-based petition for immigrating
physicians).
Cite as: 573 U. S. ____ (2014) 31
Opinion of KAGAN, J.
C
Finally, the respondents contend that even if
§1153(h)(3) points at once in two directions—toward a
broader scope in its first half and a narrower one in its
second—the BIA acted unreasonably in choosing the more
restrictive reading. In their view, the Board has offered
no valid reason, consistent with “the purposes and con-
cerns of the immigration laws,” to treat their own sons and
daughters less favorably than aliens who were principal
and derivative beneficiaries of F2A petitions. Brief for
Respondents 47. Indeed, the respondents suggest that the
BIA, “for its own unfathomable reasons, disapproves of
Congress’s decision to allow any aged-out” aliens to get
relief, and has thus “limited [§1153(h)(3)] to as few deriva-
tive beneficiaries as possible.” Id., at 55.
We cannot agree. At the least, the Board’s interpreta-
tion has administrative simplicity to recommend it. Un-
der that view, immigration authorities need only perform
the kind of straightforward (i.e., “automatic”) conversion
they have done for decades—moving a petition from one
box to another to reflect a given status change like aging
out. See Wang, 25 I. & N. Dec., at 36. The respondents,
as we have shown, would transform conversion into a
managed, multi-stage process, requiring immigration and
consular officials around the world to sequence and delay
every aged-out alien’s visa adjudication until they are able
to confirm that one of his parents had become a qualifying
and willing F2B petitioner. And according to the Govern-
ment’s (incomplete) statistics, that would have to happen
in, at a minimum, tens of thousands of cases every year.
See Reply Brief 18, n. 13.
Still more important, the Board offered a cogent argu-
ment, reflecting statutory purposes, for distinguishing
between aged-out beneficiaries of F2A petitions and the
respondents’ sons and daughters. See Wang, 35 I. & N.
Dec., at 38. As earlier explained, the F2A beneficiaries
32 SCIALABBA v. CUELLAR DE OSORIO
Opinion of KAGAN, J.
have all had a qualifying relationship with an LPR for the
entire period they have waited in line—i.e., since their
original priority dates. See supra, at 19–20. That means
that when immigration authorities convert their petitions,
they will enter the F2B line at the same place as others
who have had a comparable relationship for an equal time.
The conversion thus fits with the immigration law’s basic
first-come-first-served rule. See 8 U. S. C. §1153(e); supra,
at 4. By contrast, the derivative beneficiaries of F3 and F4
petitions, like the respondents’ sons and daughters, lacked
any qualifying relationship with a citizen or LPR during
the period they waited in line. See supra, at 20–21. They
were, instead, the grandchildren, nieces, or nephews of
citizens, and those relationships did not independently
entitle them to visas. If such aliens received relief under
§1153(h)(3), they would jump over thousands of others in
the F2B line who had a qualifying relationship with an
LPR for a far longer time. That displacement would, the
Board reasonably found, scramble the priority order Con-
gress prescribed.
The argument to the contrary assumes that the re-
spondents’ sons and daughters should “receive credit” for
all the time the respondents themselves stood in line.
Brief for Respondents 50. But first, the time the respond-
ents spent waiting for a visa may diverge substantially
from the time their children did. Suppose, for example,
that one of the respondents had stood in the F4 queue for
15 years, and with just 4 years to go, married someone
with a 17-year-old son. Under the respondents’ reading,
that derivative beneficiary, after aging out, would get the
full benefit of his new parent’s wait, and so displace many
thousands of aliens who (unlike him) had stood in an
immigration queue for nearly two decades. And second,
even when the derivative qualified as such for all the time
his parent stood in line, his status throughout that period
hinged on his being that parent’s minor child. If his par-
Cite as: 573 U. S. ____ (2014) 33
Opinion of KAGAN, J.
ent had obtained a visa before he aged out, he would have
been eligible for a visa too, because the law does not de-
mand that a prospective immigrant abandon a minor
child. But if the parent had died while waiting for a visa,
or had been found ineligible, or had decided not to immi-
grate after all, the derivative would have gotten nothing
for the time spent in line. See supra, at 5–6. Similarly,
the Board could reasonably conclude, he should not receive
credit for his parent’s wait when he has become old
enough to live independently. In the unavoidably zero-
sum world of allocating a limited number of visas, the
Board could decide that he belongs behind any alien who
has had a lengthier stand-alone entitlement to immigrate.
IV
This is the kind of case Chevron was built for. What-
ever Congress might have meant in enacting §1153(h)(3),
it failed to speak clearly. Confronted with a self-
contradictory, ambiguous provision in a complex statutory
scheme, the Board chose a textually reasonable construc-
tion consonant with its view of the purposes and policies
underlying immigration law. Were we to overturn the
Board in that circumstance, we would assume as our own
the responsible and expert agency’s role. We decline that
path, and defer to the Board.
We therefore reverse the judgment of the Ninth Circuit
and remand the case for further proceedings.
It is so ordered.
Cite as: 573 U. S. ____ (2014) 1
ROBERTS, C. J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–930
_________________
LORI SCIALABBA, ACTING DIRECTOR, UNITED
STATES CITIZENSHIP AND IMMIGRATION
SERVICES, ET AL., PETITIONERS v. ROSA-
LINA CUELLAR DE OSORIO ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 9, 2014]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA
joins, concurring in the judgment.
I agree with much of the plurality’s opinion and with its
conclusion that the Board of Immigration Appeals reason-
ably interpreted 8 U. S. C. §1153(h)(3). I write separately
because I take a different view of what makes this provi-
sion “ambiguous” under Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837, 843 (1984).
As the plurality reads section 1153(h)(3), the statute’s
two clauses address the issue before the Court “in diver-
gent ways” and “do not easily cohere with each other.”
Ante, at 14. For the plurality, the first clause looks “to-
ward the sweeping relief the respondents propose, which
would reach every aged-out beneficiary of a family prefer-
ence petition,” while the second clause offers narrower
relief that can help “only a subset of those beneficiaries.”
Ibid. Such “ill-fitting clauses,” the plurality says, “left the
Board with a choice—essentially of how to reconcile the
statute’s different commands.” Ante, at 21.
To the extent the plurality’s opinion could be read to
suggest that deference is warranted because of a direct
conflict between these clauses, that is wrong. Courts defer
to an agency’s reasonable construction of an ambiguous
2 SCIALABBA v. CUELLAR DE OSORIO
ROBERTS, C. J., concurring in judgment
statute because we presume that Congress intended to
assign responsibility to resolve the ambiguity to the agency.
Chevron, supra, at 843–844. But when Congress assigns
to an agency the responsibility for deciding whether a
particular group should get relief, it does not do so by
simultaneously saying that the group should and that it
should not. Direct conflict is not ambiguity, and the reso-
lution of such a conflict is not statutory construction but
legislative choice. Chevron is not a license for an agency
to repair a statute that does not make sense.1
I see no conflict, or even “internal tension,” ante, at 14,
in section 1153(h)(3). See FDA v. Brown & Williamson
Tobacco Corp., 529 U. S. 120, 133 (2000) (we must “inter-
pret the statute ‘as a symmetrical and coherent regulatory
scheme,’ and ‘fit, if possible, all parts into a[ ] harmonious
whole’ ” (citation omitted)).
The statute reads:
“If the age of an alien is determined under [section
1153(h)(1)] to be 21 years of age or older for the pur-
poses of subsections (a)(2)(A) and (d) of this section,
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 origi-
nal petition.” §1153(h)(3).
The first clause states a condition—one that beneficiar-
ies from any preference category can meet—and thereby
——————
1 National Assn. of Home Builders v. Defenders of Wildlife, 551
U. S. 644 (2007), is not to the contrary. There the Court confronted
two different statutes, enacted to address different problems, that pre-
sented “seemingly categorical—and, at first glance, irreconcilable—
legislative commands.” Id., at 661. We deferred to an agency’s reason-
able interpretation, which “harmonize[d] the statutes,” in large part
because of our strong presumption that one statute does not impliedly
repeal another. Id., at 662–669. Home Builders did not address the
consequences of a single statutory provision that appears to give
divergent commands.
Cite as: 573 U. S. ____ (2014) 3
ROBERTS, C. J., concurring in judgment
defines the persons potentially affected by this provision.
But the clause does not grant anything to anyone. I disa-
gree with the plurality that the first clause “points toward
broad-based relief,” ante, at 21, because I do not think the
first clause points toward any relief at all.2
Imagine a provision of the Tax Code that read: “If a
student is determined to be enrolled at an accredited
university, the student’s cost of off-campus housing shall
be deductible on her tax return.” It would be immediately
apparent from that provision that an enrolled student who
lives on campus is not entitled to the deduction, even
though the student falls within the conditional first
clause. And yet no one would describe the two clauses as
being in tension. If the Internal Revenue Service then
interpreted the term “cost of off-campus housing” to ex-
clude payments by a student who rents a home from his
parents, a court would determine whether that interpreta-
tion was reasonable. The same is true in this case.3
The particular benefit provided by section 1153(h)(3) is
found exclusively in the second clause—the only operative
——————
2 For the same reason, I do not agree with the contention in JUSTICE
SOTOMAYOR’s dissent that the first clause of section 1153(h)(3) unam-
biguously “answers the precise question in this case.” Post, at 6.
3 JUSTICE SOTOMAYOR’s dissent accuses me of “ignor[ing]” the first
clause of section 1153(h)(3), “treating [that] clause as a nullity,” and
denying the clause “effect.” Post, at 20–21. But that point is correct
only if the reader adopts JUSTICE SOTOMAYOR’s own premise, that the
first clause has operative effect on its own. I give the statute’s first
clause precisely the (limited) effect it is meant to have: it defines who is
potentially affected by section 1153(h)(3). JUSTICE SOTOMAYOR’s re-
sponse to the campus housing example proves my point by acknowledg-
ing that who gets relief under a statute depends entirely on the mean-
ing of the statute’s operative provision, not on the reach of the
introductory clause. See post, at 21. The Court would not reject a
reasonable interpretation of the term “cost of off-campus housing,” as
JUSTICE SOTOMAYOR’s dissent would, simply because the IRS could have
interpreted the term to cover more students who fall within the prefa-
tory clause.
4 SCIALABBA v. CUELLAR DE OSORIO
ROBERTS, C. J., concurring in judgment
provision. There we are told what an aged-out beneficiary
(from whatever preference category) is entitled to: His
petition “shall automatically be converted to the appropri-
ate category and the alien shall retain the original priority
date.” §1153(h)(3). But automatic conversion is not possi-
ble for every beneficiary in every preference category, as
the plurality convincingly demonstrates. Ante, at 15–19.
Automatic conversion requires, at minimum, that the
beneficiary have his own sponsor, who demonstrates that
he is eligible to act as a sponsor, and who commits to
providing financial support for the beneficiary. Ante, at
18. Some aged-out children will not meet those prerequi-
sites, and they cannot benefit from automatic conversion
even under respondents’ interpretation of the statute.4
Beyond those requirements, however, Congress did not
speak clearly to which petitions can “automatically be
converted.” §1153(h)(3). Whatever other interpretations
of that provision might be possible, it was reasonable, for
the reasons explained by the plurality, for the Board to
interpret section 1153(h)(3) to provide relief only to a child
who was a principal or derivative beneficiary of an F2A
petition. That interpretation is consistent with the ordi-
nary meaning of the statutory terms, with the established
meaning of automatic conversion in immigration law, and
with the structure of the family-based immigration sys-
tem. Ante, at 15–20. It also avoids the problems that
would flow from respondents’ proposed alternative inter-
pretations, including the suggestion that retention of the
original priority date provides a benefit wholly separate
from automatic conversion. Ante, at 18–19, 22–32.
I concur in the judgment.
——————
4 JUSTICE
SOTOMAYOR’s dissent is wrong that “the relief promised in
§1153(h)(3) (priority date retention and automatic conversion) can be
given” to every aged-out child in every preference category, post, at 21,
and it therefore follows that the statute is ambiguous.
Cite as: 573 U. S. ____ (2014) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–930
_________________
LORI SCIALABBA, ACTING DIRECTOR, UNITED
STATES CITIZENSHIP AND IMMIGRATION
SERVICES, ET AL., PETITIONERS v. ROSA-
LINA CUELLAR DE OSORIO ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 9, 2014]
JUSTICE ALITO, dissenting.
I agree with many of JUSTICE SOTOMAYOR’s criticisms
of the plurality opinion. I also agree with THE CHIEF
JUSTICE’s critique of the plurality’s suggestion that, when
two halves of a statute “do not easily cohere with each
other,” an agency administering the statute is free to
decide which half it will obey. Ante, at 14. After all,
“[d]irect conflict is not ambiguity, and the resolution of
such conflict is not statutory construction but legislative
choice.” Ante, at 2 (ROBERTS, C. J., concurring in judg-
ment). While I, like JUSTICE SOTOMAYOR, would affirm
the Court of Appeals, my justification for doing so differs
somewhat from hers.
As I see it, the question before us is whether there is or
is not an “appropriate category” to which the petitions for
respondents’ children may be converted. If there is, the
agency was obligated by the clear text of 8 U. S. C.
§1153(h)(3) to convert the petitions and leave the children
with their original priority dates. Any such conversion
would be “automatic,” because the agency’s obligation to
convert the petitions follows inexorably, and without need
for any additional action on the part of either respondents
or their children, from the fact that the children’s ages
2 SCIALABBA v. CUELLAR DE OSORIO
ALITO, J., dissenting
have been calculated to be 21 or older.1 If there is not an
appropriate category, then the agency was not required to
convert the petitions.
By the time respondents became legal permanent resi-
dents and filed new petitions for their children (if not
sooner), there existed an appropriate category to which the
original petitions could be converted. That is because at
that point the children all qualified for F2B preference
status, as unmarried, adult children of legal permanent
residents. Accordingly, the agency should have converted
respondents’ children’s petitions and allowed them to
retain their original priority dates.2
Section 1153(h)(3) is brief and cryptic. It may well
contain a great deal of ambiguity, which the Board of
Immigration Appeals in its expertise is free to resolve, so
long as its resolution is a “permissible construction of the
statute.” Chevron U. S. A. Inc. v. Natural Resources De-
fense Council, Inc., 467 U. S. 837, 843 (1984). But the
statute is clear on at least one point: “If the age of an alien
is determined under [§1153(h)(1)] to be 21 years of age or
older . . . , the alien’s petition shall automatically be con-
verted to the appropriate category and the alien shall
retain the original priority date issued upon receipt of the
original petition” (emphasis added). The Board was not
free to disregard this clear statutory command.
——————
1Ido not believe the term “converted” demands the interpretation
the plurality gives it, for the reasons advanced in JUSTICE SOTOMAYOR’s
dissenting opinion.
2 The Government does not argue that respondents’ children were
ineligible for relief because, as a factual matter, their ages were never
“determined . . . to be 21 years of age or older,” §1153(h)(3), after an
appropriate category became available. I therefore do not opine on this
issue.
Cite as: 573 U. S. ____ (2014) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–930
_________________
LORI SCIALABBA, ACTING DIRECTOR, UNITED
STATES CITIZENSHIP AND IMMIGRATION
SERVICES, ET AL., PETITIONERS v. ROSA-
LINA CUELLAR DE OSORIO ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 9, 2014]
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins,
and with whom JUSTICE THOMAS joins except as to foot-
note 3, dissenting.
Although the workings of our Nation’s immigration
system are often complex, the narrow question of statutory
interpretation at the heart of this case is straightforward.
Which aged-out children are entitled to retain their prior-
ity dates: derivative beneficiaries of visa petitions in all
five family-preference categories, or derivative beneficiar-
ies of petitions in only one category? The initial clause of 8
U. S. C. §1153(h)(3) provides a clear answer: Aged-out
children may retain their priority dates so long as they
meet a single condition—they must be “determined . . . to
be 21 years of age or older for purposes of” derivative
beneficiary status. Because all five categories of aged-out
children satisfy this condition, all are entitled to relief.
Notwithstanding this textual command, the Board of
Immigration Appeals (BIA) ruled that four of the five
categories of aged-out children to whom §1153(h)(3) un-
ambiguously promises priority date retention, are, in fact,
entitled to no relief at all. See Matter of Wang, 25 I. & N.
Dec. 28, 38–39 (2009). The Court defers to that interpre-
tation today. In doing so, the Court does not identify any
2 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
ambiguity in the dispositive initial clause of §1153(h)(3).
Indeed, it candidly admits that the clause mandates relief
for “every aged-out beneficiary of a family-preference
petition” in any of the five categories. Ante, at 21. The
Court nevertheless holds that the BIA was free to ignore
this unambiguous text on the ground that §1153(h)(3) also
offers aged-out derivative beneficiaries a type of relief—
automatic conversion—that it thinks can apply only to one
of the five categories. The Court thus perceives a conflict
in the statute that, in its view, permits the BIA to override
§1153(h)(3)’s initial eligibility clause.
In reaching this conclusion, the Court fails to follow a
cardinal rule of statutory interpretation: When deciding
whether Congress has “specifically addressed the question
at issue,” thereby leaving no room for an agency to fill a
statutory gap, courts must “interpret the statute ‘as a . . .
coherent regulatory scheme’ and ‘fit, if possible, all parts
into [a] harmonious whole.’ ” FDA v. Brown & Williamson
Tobacco Corp., 529 U. S. 120, 132–133 (2000) (citation
omitted). Because the Court and the BIA ignore obvious
ways in which §1153(h)(3) can operate as a coherent whole
and instead construe the statute as a self-contradiction
that was broken from the moment Congress wrote it, I
respectfully dissent.
I
Under Chevron, the first question we ask when review-
ing an agency’s construction of a statute is whether “Con-
gress has directly spoken to the precise question at issue.”
Chevron U. S. A. Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U. S. 837, 842 (1984). If it has, then “the
court, as well as the agency, must give effect to th[at]
unambiguously expressed intent.” Id., at 842–843. Con-
gress has spoken directly to the question in this case.
United States citizens and lawful permanent residents
(LPRs) may petition for certain relatives who reside
Cite as: 573 U. S. ____ (2014) 3
SOTOMAYOR, J., dissenting
abroad (known as the “principal beneficiaries” of such
petitions) to receive immigrant visas. Congress has de-
fined five categories of eligible relatives—referred to as
family-preference categories—with annual limits on the
number of visas that may be issued within each category.1
Because the demand for visas outstrips supply, the wait
for a visa can often last many years. While a principal
beneficiary waits, her place in line is determined based on
her “priority date,” the date on which her petition was
filed. See §1153(e)(1); 8 CFR §204.1(b) (2014); 22 CFR
§42.53(a) (2013). Priority dates are therefore crucial—the
earlier one’s priority date, the sooner one’s place will come
up in line and a visa will be available. Significantly, when
the wait ends and a principal beneficiary finally becomes
eligible to apply for a visa, 8 U. S. C. §1153(d) enables the
beneficiary’s spouse and minor children (known as “deriv-
ative beneficiaries”) to do so too.
This case arises from a common problem: Given the
lengthy period prospective immigrants must wait for a
visa, a principal beneficiary’s child—although younger
than 21 when her parent’s petition was initially filed—
often will have turned 21 by the time the parent’s priority
date comes up in line. Such a child is said to have “aged
out” of derivative beneficiary treatment under §1153(d).
By way of example, respondent Norma Uy was the princi-
pal beneficiary of an F4 family-preference petition filed by
her U. S. citizen sister in February 1981. That petition
listed Norma’s daughter, Ruth, who was then two years
old, as a derivative beneficiary. If Norma had reached the
front of the visa line at any time before Ruth’s 21st birth-
day, §1153(d) would have enabled Ruth to accompany
——————
1 The five categories are F1 (unmarried adult children of U. S. citi-
zens); F2A (spouses and unmarried minor children of LPRs); F2B
(unmarried adult children of LPRs); F3 (married children of U. S.
citizens); and F4 (brothers and sisters of U. S. citizens). 8 U. S. C.
§§1153(a)(1)–(4).
4 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
Norma to the United States. Unfortunately, it took more
than two decades for Norma’s priority date to become
current, by which point Ruth was 23 and thus too old for
derivative beneficiary status under §1153(d). Norma
therefore immigrated alone to the United States, where
she filed a new F2B petition (for unmarried children of
LPRs) on Ruth’s behalf. Before §1153(h)(3) was enacted,
however, an immigrant in Ruth’s position would have been
unable to retain the February 1981 priority date from her
original petition; the law would have instead required her
to receive a new priority date all the way at the back of the
F2B line.
Congress responded to this problem by enacting
§1153(h)(3), a provision entitled “[r]etention of priority
date.” It states:
“If the age of an alien is determined under [the for-
mula specified in] paragraph (1)[2] to be 21 years of
age or older for the purpos[e] of . . . [§1153(d)] of this
section, the alien’s petition shall automatically be
converted to the appropriate category and the alien
shall retain the original priority date issued upon re-
ceipt of the original petition.”
The provision’s structure is crucial to its meaning. The
initial clause (call it the “eligibility clause”) specifies who
is eligible for relief. The concluding clause (call it the
“relief clause”) describes the two forms of relief to which
eligible persons are entitled. As the title of the provision
suggests, the main form of relief is the right of an aged-out
derivative beneficiary to retain the priority date of her
original petition. In Ruth Uy’s case, such relief would
mean the difference between resuming her wait near the
——————
2 As
the plurality explains, ante, at 9–10, the formula specified in
paragraph (1) subtracts out bureaucratic delays resulting from the
Government’s review of the relevant immigration paperwork. That
formula is not at issue in this case.
Cite as: 573 U. S. ____ (2014) 5
SOTOMAYOR, J., dissenting
front of the F2B line (which would allow her to receive a
visa in short order) and being sent to the back of the line
(where she would potentially have to wait an additional 27
years). Brief for Respondents 52.
The question in this case is which aged-out beneficiaries
of family-preference petitions are eligible for priority date
retention: the aged-out beneficiaries of petitions in all five
family-preference categories (which would include re-
spondents’ children, who were derivative beneficiaries of
F3 and F4 petitions for adult children and adult siblings of
U. S. citizens, respectively), or the aged-out beneficiaries
of only F2A petitions for spouses and children of LPRs (the
interpretation offered by the BIA)?
Congress answered that question in §1153(h)(3)’s eligi-
bility clause, which specifies that relief is to be conferred
on any immigrant who has been “determined under [the
formula specified in] paragraph (1) to be 21 years of age or
older” for the purpose of §1153(d). As the plurality con-
cedes, this clause “states a condition that every aged-out
beneficiary of a preference petition satisfies”—that is, it
makes eligible for relief aged-out children within each of
the F1, F2A, F2B, F3, and F4 categories. Ante, at 14.
Congress made this clear in two mutually reinforc-
ing ways. First, by referring to the formula set forth in
“paragraph (1),” the statute incorporates that paragraph’s
cross-reference to §1153(h)(2). Section 1153(h)(2) in turn
defines the set of covered petitions to include, “with re-
spect to an alien child who is a derivative beneficiary
under [§1153(d)], a petition filed . . . for classification
of the alien’s parent under [§1153(a)].” And §1153(a)
encompasses all five family-preference categories. See
§§1153(a)(1)–(4). Second, §1153(h)(3) promises relief to
those who are found to be 21 “for the purpos[e] of . . .
[§1153](d),” the provision governing derivative beneficiar-
ies. And that provision also unambiguously covers all five
family-preference categories. See §1153(d) (a minor child
6 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
is “entitled to the same status” as a parent who is the
principal beneficiary of a petition filed under §1153(a));
§1153(a) (setting forth the five family-preference
categories).
In short, §1153(h)(3)’s eligibility clause answers the
precise question in this case: Aged-out beneficiaries within
all five categories are entitled to relief. “[T]he intent of
Congress is clear,” so “that is the end of the matter.”
Chevron, 467 U. S., at 842.
II
A
Because it concedes that §1153(h)(3)’s eligibility clause
unambiguously “encompasses every aged-out beneficiary
of a family-preference petition,” ante, at 21, the plurality
tries to fit this case into a special pocket of Chevron juris-
prudence in which it says we must defer to an agency’s
decision to ignore a clear statutory command due to a
conflict between that command and another statutory
provision. See ante, at 14, 21. Thus, unlike in the usual
Chevron case, where ambiguity derives from the fact that
the text does not speak with sufficient specificity to the
question at issue, the plurality argues that this is a case in
which ambiguity can only arise—if it is to arise at all—if
Congress has spoken clearly on the issue in diametrically
opposing ways.3 As the plurality frames it, §1153(h)(3)’s
——————
3 To
understand the kind of conflict that can make deference appro-
priate to an agency’s decision to override unambiguous statutory text,
consider the provisions at issue in National Assn. of Home Builders v.
Defenders of Wildlife, 551 U. S. 644 (2007). One provision, §402(b) of
the Clean Water Act, 33 U. S. C. §1342(b), commanded, “without
qualification, that the [Environmental Protection Agency] ‘shall ap-
prove’ a transfer application” whenever nine exclusive criteria were
satisfied. 551 U. S., at 661. A second provision, §7(a)(2) of the Endan-
gered Species Act of 1973, 16 U. S. C. §1536(a)(2), was “similarly
imperative,” ordering “ ‘[e]ach Federal agency’ ” to ensure that its
actions were “ ‘not likely to jeopardize’ ” an endangered species. 551
Cite as: 573 U. S. ____ (2014) 7
SOTOMAYOR, J., dissenting
eligibility and relief clauses are “Janus-faced,” and that
conflict “makes possible alternative reasonable construc-
tions.” Ante, at 14.
In rushing to find a conflict within the statute, the
plurality neglects a fundamental tenet of statutory inter-
pretation: We do not lightly presume that Congress has
legislated in self-contradicting terms. See A. Scalia & B.
Garner, Reading Law: The Interpretation of Legal Texts
180 (2012) (“The provisions of a text should be interpreted
in a way that renders them compatible, not contradic-
tory. . . . [T]here can be no justification for needlessly ren-
dering provisions in conflict if they can be interpreted
harmoniously”). That is especially true where, as here,
the conflict that Congress supposedly created is not be-
tween two different statutes or even two separate provi-
sions within a single statute, but between two clauses in
the same sentence. See ibid. (“[I]t is invariably true that
intelligent drafters do not contradict themselves”). Thus,
time and again we have stressed our duty to “fit, if possi-
ble, all parts [of a statute] into [a] harmonious whole.”
FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389 (1959);
see also Morton v. Mancari, 417 U. S. 535, 551 (1974)
(when two provisions “are capable of co-existence, it is the
duty of the courts . . . to regard each as effective”). In
reviewing an agency’s construction of a statute, courts
“must,” we have emphasized, “interpret the statute ‘as a
. . . coherent regulatory scheme’ ” rather than an internally
inconsistent muddle, at war with itself and defective from
——————
U. S., at 662. “[A]pplying [§7(a)(2)’s] language literally,” we observed,
would contravene the “mandatory and exclusive list of [nine] criteria
set forth in §402(b),” because it would “engraf[t] a tenth criterion onto”
the statute. Id., at 662–663. The agency accordingly could not “simul-
taneously obey” both commands: It could consider 9 criteria or 10, but
not both. Id., at 666. In that circumstance, we found it appropriate to
defer to the agency’s choice as to “which command must give way.”
Ibid.
8 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
the day it was written. Brown & Williamson, 529 U. S., at
133. And in doing so, courts should “[e]mplo[y] traditional
tools of statutory construction.” INS v. Cardoza-Fonseca,
480 U. S. 421, 446 (1987). Each of these cautions springs
from a common well: As judicious as it can be to defer to
administrative agencies, our foremost duty is, and always
has been, to give effect to the law as drafted by Congress.
The plurality contends that deference is appropriate
here because, in its view, 8 U. S. C. §1153(h)(3)’s two
clauses are “self-contradictory.” Ante, at 33. But far from
it being unworkable (or even difficult) for the agency to
obey both clauses, traditional tools of statutory construc-
tion reveal that §1153(h)’s clauses are entirely compatible.
B
The plurality argues that although §1153(h)(3)’s eligibil-
ity clause clearly encompasses aged-out beneficiaries
within all five preference categories, the relief clause
implies a conflicting “limitation on the eligible class of
recipients.” Ante, at 15. The plurality infers that limita-
tion from two premises. First, it contends that no aged-
out child may retain her priority date unless her petition
is also eligible for automatic conversion. And second, it
asserts that only aged-out F2A beneficiaries may receive
automatic conversion. As a result, the plurality concludes,
it was reasonable for the BIA to exclude aged-out children
in the four other categories from receiving both automatic
conversion and priority date retention, thereby rendering
§1153(h)(3)’s eligibility clause defunct.
The plurality’s conclusion is wrong because its premises
are wrong. For one, §1153(h)(3) is naturally read to confer
priority date retention as an independent form of relief to
all aged-out children, regardless of whether automatic
conversion is separately available. And even if that were
wrong, the plurality’s supposition that only F2A benefi-
ciaries can receive automatic conversion is incorrect on its
Cite as: 573 U. S. ____ (2014) 9
SOTOMAYOR, J., dissenting
own terms. Because either of these interpretations would
treat §1153(h)(3) as a coherent whole, the BIA’s construc-
tion was impermissible.
1
The most obvious flaw in the plurality’s analysis is its
presumption that §1153(h)(3) permits an aged-out child to
retain her original priority date only if her petition can
be automatically converted. That is incorrect for many
reasons.
When an immigrant is determined to have aged out of
derivative beneficiary status, §1153(h)(3) prescribes two
forms of relief: “[T]he 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.” We have held that when a statute
provides two forms of relief in this manner, joined by the
conjunction “and,” the two remedies are “distinct.” United
States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241–
242 (1989). That understanding makes particular sense
here, where Congress used the mandatory word “shall”
twice, once before each form of relief. See Lexecon Inc. v.
Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35
(1998) (“[T]he mandatory [term] ‘shall’ . . . normally cre-
ates an obligation impervious to judicial discretion”).
Moreover, the two “shall” commands operate on different
subjects, further reinforcing that they prescribe distinct
remedies: An aged-out “alien’s petition shall automatically
be converted,” but it is “the alien” herself who, in all
events, “shall retain” her original priority date.
§1153(h)(3) (emphasis added).
The plurality responds with a series of examples in
which the word “and” is used to join two commands, one of
which is—as the plurality asserts here—dependent on
another. Ante, at 28, and n. 15. But as the plurality
recognizes, ante, at 28, that is hardly the only way the
10 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
word can be used. For example: “If today’s baseball game
is rained out, your ticket shall automatically be converted
to a ticket for next Saturday’s game, and you shall retain
your free souvenir from today’s game.” Or: “If you provide
the DMV with proof of your new address, your voter regis-
tration shall automatically be converted to the correct
polling location, and you shall receive in the mail an up-
dated driver’s license.” It is plain in both of these exam-
ples that the two commands are distinct—the fan in the
first example can keep her free souvenir even if she cannot
attend next Saturday’s game; the new resident will receive
an updated driver’s license even if she is ineligible to vote.
What the plurality does not explain is why we should forgo
the same understanding of §1153(h)(3)’s relief clause when
that would treat the statute as a coherent whole (and
when the plurality’s alternative interpretation would
render the statute a walking self-contradiction within the
span of a few words).
With the text unavailing, the plurality turns to a policy
argument. The plurality worries that if automatic conver-
sion and priority date retention are independent benefits,
aged-out beneficiaries will be able to “hold on to a priority
date for years . . . while waiting for a relative to file a new
petition,” which might hamper U. S. Citizenship and
Immigration Services (USCIS) operations. Ante, at 29–30.
But the plurality’s fears of administrative inconvenience
are belied by the fact that USCIS has administered prior-
ity date retention in exactly this manner for years, with no
apparent problems. Well before §1153(h)(3) was enacted,
a regulation provided aged-out F2A derivative beneficiar-
ies the ability to retain their priority dates without also
providing automatic conversion. See 8 CFR §204.2(a)(4)
(permitting priority date retention after a “separate peti-
tion” is filed); 57 Fed. Reg. 41053, 41059 (1992) (adopting
this provision). Indeed, the USCIS continues to instruct
field officers that a “separate petition” must be filed in
Cite as: 573 U. S. ____ (2014) 11
SOTOMAYOR, J., dissenting
order for such beneficiaries to “retain” their “original
priority date[s].” Adjudicator’s Field Manual, ch. 21.2(c)(5),
online at http://www.uscis.gov/iframe/ilink/docView/
AFM/HTML/AFM/0-0-0-1.html (all Internet materials as
visited June 5, 2014, and available in Clerk of Court’s case
file). The notion that it is somehow impossible for an
immigrant to retain her priority date contingent upon the
filing of a separate petition is therefore contradicted by
years of agency experience.4
——————
4 The plurality does not dispute that USCIS has administered priority
date retention as a form of relief independent from automatic conver-
sion for years. Ante, at 30, n. 16. It nonetheless argues that the same
approach is impermissible here for the counterintuitive reason that a
pre-existing regulation used express language limiting priority date
retention to derivative beneficiaries of F2A petitions alone. See ante, at
30, n. 16 (noting that 8 CFR §204.2(a)(4) permitted an aged-out benefi-
ciary to retain her priority date “ ‘if the subsequent petition is filed by
the same petitioner’ ”). Congress included no such language to limit the
scope of priority date retention in 8 U. S. C. §1153(h)(3), however,
which just reinforces what the eligibility clause already makes clear:
Priority date retention is independently available for aged-out de-
rivative beneficiaries of all family-preference petitions, not just F2A
petitions.
The plurality also fails to account for the numerous other contexts in
which USCIS has administered priority date retention as a benefit
distinct from automatic conversion. See, e.g., §1154(k)(3) (providing
priority date retention to unmarried adult children of LPRs whose
parents become naturalized citizens “[r]egardless of whether a petition
is converted”); 8 CFR §204.5(e) (“A petition approved on behalf of an
alien under [the employment-based immigration provisions of §1153(b)]
accords the alien the priority date of the approved petition for any
subsequently filed [employment] petition”); §204.12(f)(1) (a “physician
beneficiary” who finds a “new employer [who] desir[es] to petition
[USCIS] on the physician’s behalf” must submit a new petition, but
“will retain the priority date from the initial” petition). Finally, the
plurality suggests that priority date retention can operate independently
of automatic conversion only if the date to be retained is attached to
a valid petition. Ante, at 30, and n. 16. But that cannot be squared with
USCIS’s longstanding practice of allowing F2A beneficiaries to retain
the priority dates from their no-longer valid petitions upon the filing of
a new petition.
12 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
In the end, the plurality suggests that we should defer
to the BIA’s all-or-nothing approach because “context
compels” it. Ante, at 28. Yet fatally absent from the plu-
rality’s discussion of context is any mention of the first
clause of the very same provision, which, as the plurality
admits, unambiguously confers relief upon all five catego-
ries of aged-out children. That clause is dispositive, be-
cause—assuming that F2A beneficiaries alone can receive
automatic conversion—a reading that treats automatic
conversion and priority date retention as independent
benefits is the only one that would “produc[e] a substan-
tive effect that is compatible with the rest of the law.”
United Sav. Assn. of Tex. v. Timbers of Inwood Forest
Associates, Ltd., 484 U. S. 365, 371 (1988); see also Home
Builders, 551 U. S., at 666 (“ ‘It is a “fundamental canon of
statutory construction that the words of a statute must be
read in their context and with a view to their place in the
overall statutory scheme” ’ ”).
2
Even if it were somehow impossible for an aged-out
child to retain her priority date independently of auto-
matic conversion, the plurality is wrong to view automatic
conversion as a benefit that F2A beneficiaries alone may
enjoy.
Section 1153(h)(3) provides that if an aged-out child
qualifies for relief under the statute’s eligibility clause,
“the alien’s petition shall automatically be converted to
the appropriate category.” Whether an aged-out benefi-
ciary in a given preference category may enjoy this relief
turns on how one understands the words “automatically”
and “converted.” Because the statute does not define the
terms, we apply their ordinary meaning. See Burrage v.
United States, 571 U. S. ___, ___ (2014) (slip op., at 6).
The ordinary meaning of “automatic” is “ ‘having the
capability of starting, operating, moving, etc., inde-
Cite as: 573 U. S. ____ (2014) 13
SOTOMAYOR, J., dissenting
pendently’ ” based upon some predetermined predicate
event, with no “additional decisions, contingencies, or
delays.” Ante, at 15 (quoting Random House Webster’s
Unabridged Dictionary 140 (2d ed. 2001)). The ordinary
meaning of “convert” is “to change (something) into a
different form.” Id., at 444. Here, the statute specifies the
form into which an aged-out child’s petition shall be
changed: another petition in the “appropriate category.”
§1153(h)(3). Tying the terms together, then, “automatic
conversion” means changing an old petition into a new
petition in an appropriate category upon the occurrence
of some predicate event, without a further decision or
contingency.
All aged-out beneficiaries can have their petitions auto-
matically converted under this definition. Perhaps most
sensibly, all five categories of petitions may be converted
to an appropriate category, without any further decision or
contingency, upon a logical predicate event: when USCIS
receives confirmation that an appropriate category exists.
To see how this would work, recall the case of Norma Uy,
and her daughter, Ruth. Norma was the principal benefi-
ciary of an F4 petition filed by her U. S. citizen sister;
Ruth was a derivative beneficiary of the same petition.
Because Ruth had aged out of derivative beneficiary sta-
tus prior to Norma’s reaching the front of the visa line,
Norma immigrated to the United States without Ruth.
Once Norma became an LPR, however, she also became
eligible to file a new petition on Ruth’s behalf under
the F2B category (unmarried adult children of LPRs),
§1153(a)(2)(B). Thus, once Norma provides confirmation
of that eligibility to sponsor Ruth (i.e., that she is an LPR,
that Ruth is her daughter, and that she has not committed
disqualifying criminal conduct, see ante, at 4), Ruth’s
original F4 petition can automatically be converted to an
14 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
F2B petition, with no additional decision or contingency.5
Indeed, this is how USCIS already applies automatic
conversion in other contexts. For example, when an LPR
has filed an F2A petition on behalf of a spouse or child,
and the LPR subsequently becomes a U. S. citizen, a pro-
vision entitled “[a]utomatic conversion of preference classi-
fication,” 8 CFR §204.2(i), permits the F2A petition to be
automatically converted to an “immediate relative” peti-
tion, §204.2(i)(3). See ante, at 16. Significantly, the predi-
cate event that triggers this conversion is the agency’s
receipt of proof that the petition’s sponsor has become a
U. S. citizen—proof, in other words, that there is an ap-
propriate category into which the petition can be converted.6
Section 1153(h)(3)’s automatic conversion remedy can
sensibly be administered in the same way.
The plurality’s contrary conclusion that automatic
conversion is impossible for all but one category of family-
preference petitions hinges on three basic misunderstand-
——————
5 Of course, just like any other beneficiary of a family visa petition,
one whose petition has been automatically converted must still satisfy
the requirements for actually obtaining a visa. See ante, at 5. For
example, all visa applicants must attach an “affidavit of support” from
their sponsors. 8 U. S. C. §1182(a)(4)(C)(ii). As is true for any other
beneficiary, nothing stops a sponsor from declining to swear their
support for the beneficiary of an automatically converted petition after
a visa has become available. Converting petitions upon proof of an
appropriate category therefore produces no uncertainties or contingen-
cies that do not already exist for all family visa applicants to begin
with.
6 See Dept. of State, If You Were an LPR and Are Now a U. S. Citizen:
Upgrading a Petition, online at http://travel.state.gov/visa/immigrants/
types/types_2991.html#5. The regulation cited by the plurality, 8 CFR
§204.2(i), is not to the contrary; it merely establishes that when an
automatic conversion occurs, it shall be treated as “[e]ffective upon the
date of naturalization,” §204.2(i)(3). As the State Department’s instruc-
tions make clear, the conversion itself takes place after the new citizen
“send[s] proof of [her] U. S. citizenship to the National Visa Center.”
Dept. of State, If You Were an LPR and Are Now a U. S. Citizen:
Upgrading a Petition.
Cite as: 573 U. S. ____ (2014) 15
SOTOMAYOR, J., dissenting
ings. First, the plurality contends that automatic conver-
sion is triggered not by confirmation of the existence of an
appropriate category, but rather by a different predicate
event: the moment when “ ‘an immigrant visa number
bec[omes] available for the alien’s parent.’ ” Ante, at 19.
This is a curious argument, not least because nothing in
§1153(h)(3) suggests it. That provision simply makes
automatic conversion available “[i]f the age of an alien is
determined” to be “be 21 years of age or older” for pur-
poses of §1153(d). Section 1153(h)(3) thus states the
condition that an immigrant must satisfy to be eligible for
automatic conversion, but it nowhere commands when the
conversion should occur. There is no reason why conver-
sion cannot occur at the logical point just described: the
moment when USCIS receives proof that an appropriate
category exists.
The plurality acknowledges that §1153(h)(3) “does not
explicitly identify th[e] point in time” at which a “petition
is to be ‘converted.’ ” Ante, at 18. It nevertheless suggests
that the date when a conversion occurs “is best viewed” as
the date when a visa became available for the aged-out
child’s parent. Ante, at 19. But Congress could not have
intended conversion to occur at that point for a glaring
reason: The date on which a visa becomes available for an
aged-out child’s parent occurs before the point at which
the child is determined to have aged-out under §1153(d)—
the very requirement §1153(h)(3) prescribes for the aged-
out child to be eligible for automatic conversion in the first
place. As the plurality explains, ante, at 5–6, such age
determinations occur when an immigration official re-
views the child’s derivative visa application, which invari-
ably happens after a visa became available for the child’s
parent as the principal beneficiary. At best, then, the
plurality’s interpretation requires USCIS to convert peti-
tions at a time when it does not know which petitions are
eligible for conversion; at worst, it requires the automatic
16 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
conversion of petitions benefiting immigrants who will
never even qualify for such relief (i.e., aged-out immi-
grants who, for any number of reasons, never file a visa
application and so are never determined by officials to be
older than 21).
Faced with this fact, the plurality falls back to the posi-
tion that automatic conversion must merely be viewed as
having occurred “as of th[e] . . . date” when a parent’s visa
becomes available, although the actual “assess[ment]” of
the conversion will necessarily occur at some future point
in time. Ante, at 24, n. 13. That approach, however,
introduces precisely the kind of “additional decisions,
contingencies, and delays” that the plurality regards as
inconsistent with the ordinary meaning of “automatic,”
ante, at 15. For even under the plurality’s view, automatic
conversion cannot actually be “assesse[d]” until and unless
the aged-out child decides to apply for a visa and officials
assessing the child’s application deem her to have aged out
(events which may themselves be contingent on the child’s
parent first filing her own successful visa application, see
ante, at 6). The far simpler approach is for conversion to
occur automatically upon the most logical moment sug-
gested by the statute: the moment when USCIS confirms
that an “appropriate category” exists, §1153(h)(3). Indeed,
the plurality fails to explain why this cannot be the proper
predicate; it simply dismisses such an approach as sup-
ported “only” by “a single-minded resolve . . . to grant
relief to every possible aged-out beneficiary.” Ante, at 25,
n. 13. But that criticism is revealing: The “single-minded
resolve” the plurality maligns is Congress’ own, for it is
Congress that expressly provided, in the eligibility clause,
for aged-out beneficiaries in all five categories to be granted
relief.
The plurality’s second argument is a corollary of its
first. If automatic conversion must occur when a visa first
becomes available for a parent, the plurality frets, that
Cite as: 573 U. S. ____ (2014) 17
SOTOMAYOR, J., dissenting
will mean an aged-out child will have her petition auto-
matically converted before immigration officials can ascer-
tain whether her parent is even qualified to sponsor her.
See ante, at 17–18. True enough, but that only confirms
that it makes no sense to force USCIS to convert petitions
so prematurely. The plurality’s fears can all be averted by
having automatic conversion occur, as with petitions
sponsored by LPRs who later become U. S. citizens, supra,
at 13–15, when USCIS receives confirmation that conver-
sion is appropriate.7
The plurality’s final argument is that something about
the term “conversion” precludes relief for all but the aged-
out derivative beneficiaries of F2A petitions. The plurality
accepts that “conversion” will always require changing
some aspects of a petition, including its preference category
(e.g., from F2A to F2B) and the identity of its principal
beneficiary (e.g., from an aged-out child’s parent to the
——————
7 The plurality is unsatisfied with this approach to automatic conver-
sion on the theory that, in order to eliminate all additional “decisions,
contingencies, or delays” in the process, this solution postpones the
moment of “conversion” until the necessary contingencies are satisfied.
Yet the plurality’s approach does the same thing, because even on its
account, some “decisions, contingencies, or delays” must occur before
conversion can actually be assessed by immigration officials (i.e., a
parent’s visa must become available, the child must apply for a visa,
and immigration officials must deem her to have aged out, see supra, at
16). So the only question is whether the “conversion” should be consid-
ered to occur after all “decisions, contingencies, or delays” are in the
past such that there is an appropriate category for conversion, or after
only some. The former understanding would allow the unambiguous
language of the eligibility clause to be carried into effect; the latter
would preclude relief for four categories of derivative beneficiaries. In
support of its restrictive interpretation, the plurality offers only the
argument that converting a petition upon proof of an appropriate
category would require the “filing of a new document. . . that shows the
parent’s eligibility to sponsor her aged-out [child].” Ante, at 26, n. 14.
The fact that a statute may require an agency to process a form is not a
reason to disregard a coherent reading of a statute in favor of a self-
contradictory one.
18 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
child). But the plurality asserts that a related kind of
change is entirely off the table: a change to the identity of
the petition’s sponsor. Ante, at 15. If a converted petition
requires a different sponsor than the original petition, the
plurality suggests, then it cannot be “converted” at all.
The plurality points to nothing in the plain meaning of
“conversion” that supports this distinction. It instead
argues that a “conversion” cannot entail a change to the
identity of a petition’s sponsor because that is “the exclu-
sive way immigration law used the term when Congress
enacted the CSPA.” Ante, at 16. But immigration law has
long allowed petitions to be converted from one category to
another in contexts where doing so requires changing the
sponsor’s identity. In 2006, for example, the Secretary of
Homeland Security promulgated a regulatory provision
entitled “automatic conversion of preference classifica-
tion,” 8 CFR §204.2(i)(1)(iv), which allows the automatic
conversion of a petition filed by a U. S. citizen on behalf of
her spouse to a widower petition if the citizen dies before
the petition is approved. That conversion requires chang-
ing the sponsor from the citizen to the widower himself.
The fact that the agency used the word “conversion” to
refer to a process in which the petition’s sponsor was
changed, just a few years after 8 U. S. C. §1153(h)(3) was
enacted, strongly suggests that the term did not have the
exclusive meaning that the plurality suggests. Similarly,
§1154(a)(1)(D)(i)(III), a provision enacted two years before
§1153(h)(3), see Victims of Trafficking and Violence Pro-
tection Act of 2000, 114 Stat. 1522, provides that a peti-
tion filed by a battered spouse on behalf of her child “shall
be considered” a self-petition filed by the child herself if
the child ages out—a conversion that obviously requires
changing the identity of the sponsor from the battered
spouse to the aged-out child. And §1153(h)(4) confirms
that such “self-petitioners” are entitled to §1153(h)(3)’s
automatic conversion remedy. The plurality never ex-
Cite as: 573 U. S. ____ (2014) 19
SOTOMAYOR, J., dissenting
plains how it can be mandatory to “convert” the identity of
the sponsors in these contexts yet impermissible to “con-
vert” the sponsors of the petitions at issue here—an un-
derstanding that is especially implausible in light of Con-
gress’ command that such petitions “shall automatically be
converted to the appropriate category.” §1153(h)(3).8
III
The concurrence reaches the same result as the plural-
ity does, but for a different reason. It begins by recognizing
that §1153(h)(3)’s eligibility clause “states a condition”
that is satisfied by aged-out “beneficiaries from any pref-
erence category.” Ante, at 2 (ROBERTS, C. J., concurring in
judgment). The concurrence thus acknowledges that the
eligibility clause encompasses aged-out beneficiaries of
family-preference petitions in the F1, F2A, F2B, F3, and
F4 categories.
The concurrence nonetheless concludes that the BIA
was free to exclude F1, F2B, F3, and F4 beneficiaries from
——————
8 Moreover, had Congress actually intended to permit relief only
where a new petition has the same sponsor as the original petition, it
had a ready model in the language of a pre-existing regulation. See 8
CFR §204.2(a)(4) (conferring priority date retention on a derivative
beneficiary only “if the subsequent petition is filed by the same peti-
tioner”). If it had wanted to limit §1153(h)(3) to just the beneficiaries
preferred by the BIA, “Congress could easily have said so.” Kucana v.
Holder, 558 U. S. 233, 248 (2010).
The plurality’s argument that a “conversion” cannot entail a change
to a petition’s sponsor ultimately boils down to this: A “conversion”
cannot include “any substantive alteration” to a petition, ante, at 15,
except when it can. For example, a “conversion” can (indeed, must)
entail changing a petition’s family-preference category and changing
the petition’s principal beneficiary (from the aged-out child’s parent to
the child herself). And the plurality concedes that in other contexts,
conversion must entail changing the identity of a petition’s sponsor
from the beneficiary’s qualifying relative to the beneficiary himself.
Ante, at 16–17, n. 10. The plurality does not explain why the word
“conversion” can encompass all of these other substantive alterations,
but not a change to the identity of a petition’s sponsor in just this case.
20 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
the clear scope of the eligibility clause because of a per-
ceived ambiguity as to which beneficiaries can receive
“automatic conversion.” See ante, at 4 (“Congress did not
speak clearly to which petitions can ‘automatically be
converted’ ”). In other words, the concurrence concludes
that it was reasonable for the agency to ignore the clear
text of the eligibility clause because the phrase “automatic
conversion” might be read in a manner that would benefit
F2A beneficiaries alone.
This is an unusual way to interpret a statute. The
concurrence identifies no case in which we have deferred
to an agency’s decision to use ambiguity in one portion of a
statute as a license to ignore another statutory provision
that is perfectly clear. To the contrary, “[a] provision that
may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme . . . because only one of
the permissible meanings produces a substantive effect
that is compatible with the rest of the law.” United Sav.
Assn. of Tex., 484 U. S., at 371.
The concurrence justifies its conclusion only by treating
the eligibility clause as a nullity. The concurrence is quite
candid about its approach, arguing that §1153(h)(3)’s relief
clause is its “only operative provision” and that the eligi-
bility clause does not “grant anything to anyone.” Ante, at
3. Yet “[i]t is our duty ‘to give effect, if possible, to every
clause and word of a statute.’ ” United States v. Menasche,
348 U. S. 528, 538–539 (1955). And there is an easy way
to give meaning to the eligibility clause: The clause identi-
fies who is entitled to the benefits specified in the ensuing
relief clause.
The concurrence relies ultimately on an irrelevant
hypothetical: “If a student is determined to be enrolled at
an accredited university, the student’s cost of off-campus
housing shall be deductible on her tax return.” Ante, at 3.
In this example, the concurrence points out, it is “appar-
ent. . . that an enrolled student who lives on campus is not
Cite as: 573 U. S. ____ (2014) 21
SOTOMAYOR, J., dissenting
entitled to the deduction, even though the student falls
within the conditional first clause.” Ibid. That is correct,
but it says nothing about this case. For in the hypothet-
ical, it is plain that the promised relief (a tax deduction for
off-campus housing) cannot apply to the persons at issue
(students who live on campus). Here, however, the relief
promised in §1153(h)(3) (priority date retention and auto-
matic conversion) can be given to persons specified in
the initial eligibility clause (aged-out children in all five
family-preference categories). See supra, at 9–19. And
once one recognizes that aged-out children in each cate-
gory unambiguously covered by the eligibility clause can
receive relief, the BIA’s view that no children in four of
those categories can ever receive any relief cannot be
reasonable.9
* * *
Congress faced a difficult choice when it enacted
§1153(h)(3). Given the “zero-sum world of allocating a
limited number of visas,” ante, at 33, Congress could have
——————
9 More fundamentally, the concurrence’s hypothetical is irrelevant
because it altogether ignores a critical feature of the statute before us:
§1153(h)(2)’s express enumeration of the covered petitions to include
petitions filed within the F1, F2A, F2B, F3, and F4 preference catego-
ries. See supra, at 5–6. A proper analogy would therefore be a provi-
sion that says the following: “If a student is determined to be enrolled
at an accredited junior college, community college, or 4-year college, the
student’s room and board shall be tax-deductible and the student shall
receive financial aid.” Is there any permissible reading of this provision
under which, although expressly covered in the eligibility clause, all
junior and community college students are categorically forbidden to
receive both the tax deduction and financial aid? Of course not. And
that would be true even if the term “room and board” were ambiguous
and thus open to an interpretation under which only 4-year students
could receive the tax deduction. Likewise here, where F1, F2B, F3, and
F4 derivative beneficiaries may not be categorically excluded from relief
because they are indisputably covered by §1153(h)(3)’s eligibility clause
and able to receive the relief described in the relief clause.
22 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
required aged-out children like Ruth Uy to lose their place
in line and wait many additional years (or even decades)
before being reunited with their parents, or it could have
enabled such immigrants to retain their place in line—
albeit at the cost of extending the wait for other immi-
grants by some shorter amount. Whatever one might
think of the policy arguments on each side, however, this
much is clear: Congress made a choice. The plurality’s
contrary view—that Congress actually delegated the
choice to the BIA in a statute that unambiguously encom-
passes aged-out children in all five preference categories
and commands that they “shall retain the[ir] original
priority date[s],” §1153(h)(3)—is untenable.
In the end, then, this case should have been resolved
under a commonsense approach to statutory interpreta-
tion: Using traditional tools of statutory construction,
agencies and courts should try to give effect to a statute’s
clear text before concluding that Congress has legislated
in conflicting and unintelligible terms. Here, there are
straightforward interpretations of §1153(h)(3) that allow it
to function as a coherent whole. Because the BIA and the
Court ignore these interpretations and advance a con-
struction that contravenes the language Congress wrote, I
respectfully dissent.