Arobelidze v. Holder

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2986

N INO A ROBELIDZE,

Petitioner,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A095 592 580

A RGUED M AY 2, 2011—D ECIDED JULY 27, 2011

Before P OSNER, K ANNE, and T INDER, Circuit Judges.

K ANNE, Circuit Judge. Nino Arobelidze and her

mother entered the United States on temporary visas in

1998. The two went on to apply for permanent residence.

While their applications were pending, Nino’s mother

violated the terms of her temporary visa by continuing

to work in the United States after the visa had expired.

Both applications for residence were denied in light of

Nino’s mother’s oversight. After Nino’s mother ob-

2 No. 10-2986

tained a new temporary visa and reapplied for

permanent residence, Nino again applied for residence

as well. The rub was that Nino turned twenty-one

during the bureaucratic process. Based on Nino’s

change in age, the Department of Homeland Security

concluded that Nino was no longer a derivative bene-

ficiary of her mother and thus no longer eligible to apply

for residence under the provision she invoked. When

removal proceedings began, Nino claimed that the Child

Status Protection Act (CSPA) operated to freeze her age

as of the date of her mother’s original visa classifica-

tion petition, meaning that she was still a beneficiary of

her mother as of her second application. Both the im-

migration judge and the Board of Immigration Appeals

were unconvinced, the latter holding that the CSPA

did not even apply to Nino in light of its effective date

section. Nino now petitions for review of the Board’s

determination, claiming that its interpretation of the

effective date section is incorrect. Because we agree with

Nino that the Board’s interpretation is unpersuasive,

we grant the petition, vacate the Board’s opinion, and

remand the case for further proceedings.

I. B ACKGROUND

Nino came to the United States in 1998 at the age of

fourteen. She arrived from Georgia with her mother,

Dr. Rusodan Kotaria. Dr. Kotaria, a biomedical researcher,

was granted a temporary visa permitting her to live and

work in the United States for a brief period. As her de-

pendant child, Nino was granted a temporary visa to

accompany her.

No. 10-2986 3

Over the course of three years, Dr. Kotaria’s star rose

within the scientific community. In 2001, the Chicago

Medical School filed a visa classification petition for

Dr. Kotaria, labeling her an outstanding researcher.

The Department of Homeland Security approved the

petition in June 2002. The newly-approved petition

allowed Dr. Kotaria to do two things: to convert her

status so as to legally work in the United States until

March 8, 2003, and to apply for permanent residence (an

“adjustment of status”). As her dependant, Nino was

permitted to convert her status so as to remain with her

mother and—more importantly—was able to apply for

permanent residence alongside her.

Nino and Dr. Kotaria applied for adjustment of status

in August 2002. Both applications were still pending

with the Department in March 2003, when Dr. Kotaria’s

temporary visa expired. Dr. Kotaria continued working

beyond March 2003, in violation of her visa. In light of

that error, the Department denied Dr. Kotaria’s applica-

tion for adjustment of status in December 2004. Nino’s

application was denied at the same time—as a derivative

beneficiary, Nino could only obtain an adjustment if her

mother’s application succeeded.

Dr. Kotaria’s problem was easily rectified; Nino’s, as it

would turn out, was not. Dr. Kotaria returned to Georgia,

obtained a new temporary visa from the United States

Embassy located there, and returned to the United

States in mid-2005. She then applied for permanent resi-

dence, which was granted in March 2006.

Nino remained in the United States during her mother’s

sojourn to Georgia. Once her mother returned, Nino

4 No. 10-2986

filed a second application for adjustment of status. The

problem was that, around the time that her first applica-

tion was denied, Nino had turned twenty-one. Given

her change in age, the Department denied her second

application for adjustment of status, reasoning that she

was no longer a derivative beneficiary of her mother as

of her second application and thus could not obtain an

adjustment through her.

Removal proceedings for Nino commenced on Feb-

ruary 10, 2006. At the removal hearing, Nino contested

the denial of her second adjustment-of-status application.

She argued that the substantive part of the CSPA operated

to freeze her age at the date of her mother’s initial classifi-

cation petition, meaning that she was still the derivative

beneficiary of her mother as of her second applica-

tion for adjustment of status. The immigration judge

disagreed, ruling on policy grounds that the CSPA

was meant to protect children who age out during the

processing of their application. It was not, according to

the immigration judge, meant to assist parties whose

applications were denied on other grounds. The Board

affirmed in a non-precedential opinion, agreeing with

the reasoning of the immigration judge.

Nino brought her case to this court on a petition for

review, claiming again that the plain language of the

CSPA dictated that she was still a child for adjustment

purposes. We referred the case to mediation, after which

the parties filed a motion with the Board to reopen the

case. The Board agreed to reopen, but permitted very

limited briefing, foreclosing a reply brief from Nino. The

No. 10-2986 5

Board then issued another non-precedential opinion, again

denying Nino’s appeal. This time the Board relied on

the effective date section of the CSPA, ruling that Nino

did not qualify for any of the CSPA’s benefits.

Nino again petitions this court for review.

II. A NALYSIS

Nino’s single claim in her petition for review is that the

Board erred in its reading of the CSPA’s effective date

section. The government’s response is two-fold: first, it

claims that Nino did not exhaust her remedies before the

Board; and second, it argues that the CSPA does not

apply to Nino because she does not fall within the

Act’s effective date section.

A. Administrative Exhaustion

We take up the alleged failure to exhaust first. The

government points out that Nino made no argument

regarding the effective date provision and thus did not

exhaust her administrative remedies. Nino concedes as

much. She faults the limited briefing schedule imposed

on the parties by the Board when the case was reopened.

That schedule, Nino complains, impeded her from

replying to the government’s eleventh-hour argument

regarding the effective date provision, an issue that no

one—not the Board, the government, or Nino—raised

prior to the reopening.

As the government correctly observes, an immigration

petitioner must exhaust all available administrative

6 No. 10-2986

remedies before seeking review in this court. 8 U.S.C.

§ 1252(d)(1). That obligation usually forecloses a peti-

tioner from raising an issue in federal court that was not

raised before the immigration tribunal. Aguilar-Mejia

v. Holder, 616 F.3d 699, 704 (7th Cir. 2010). We say “usu-

ally” because there are a number of exceptions to this

rule. First, and less relevant here, are the exceptions

that flow from the fact that the general exhaustion re-

quirement is not “a jurisdictional rule in the strict sense

that the Supreme Court has emphasized we must fol-

low.” Issaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010).

Because the rule is non-jurisdictional, it is subject to

waiver, forfeiture, and other discretionary considera-

tions. Juarez v. Holder, 599 F.3d 560, 564 n.3 (7th Cir.

2010); Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th

Cir. 2006). Second, and more germane to this case, is the

exception for issues that are not raised by the parties

but instead addressed by the administrative agency

itself. MBH Commodity Advisors, Inc. v. Commodity Futures

Trading Comm’n, 250 F.3d 1052, 1060 n.3 (7th Cir. 2001);

Watson v. Henderson, 222 F.3d 320, 322 (7th Cir. 2000). This

latter exception recognizes that once the Board

addresses an issue on its own, the issue is “exhausted

to the extent it could be,” even if it was not raised by

the parties. See Nazarova v. INS, 171 F.3d 478, 489 (7th

Cir. 1999) (Manion, J., dissenting).

Practical considerations undergird this second excep-

tion. The exhaustion requirement serves a number of

goals: it gives the Board an opportunity to apply its

specialized knowledge and experience to the matter, it

provides the petitioner with the relief requested in the

No. 10-2986 7

first instance, and it provides us with reasoning to

review. See Padilla v. Gonzales, 470 F.3d 1209, 1213 (7th

Cir. 2006); Gonzalez v. O’Connell, 355 F.3d 1010, 1017-18

(7th Cir. 2004). When the Board addresses an issue on

its own, all of these concerns are satisfied, and it

therefore makes little sense to deem an issue not raised

by the parties unreviewable.

The parties argue needlessly over whether we can set

aside Nino’s failure to bring up the effective date

section, ignoring the fact that the Board exhausted the

matter. In its most recent order, the Board departed

from its prior reason for denying Nino’s appeal. Rather

than continue to rely on the policy of the CSPA, the

Board ruled that Nino did not fall within the effective

date section of the Act. In doing so, the Board applied

its knowledge and expertise to the issue, analyzing the

reach of the effective date section and providing us

with reasoning to review. Exhaustion satisfied, we can

proceed to Nino’s claim.

B. The Effective Date Section of the CSPA

Nino primarily argues that the Board’s reading of the

effective date section is at odds with the text, purpose,

and legislative history of that section. For its part, the

government responds that Nino clearly falls outside of

the plain text of the effective date section. In the alterna-

tive, the government submits that, even if the text of the

effective date section is ambiguous, the Board’s inter-

pretation of it was a reasonable one to which we

should defer.

8 No. 10-2986

The CSPA’s effective date section provides:

The amendments made by this Act shall take effect

on the date of the enactment of this Act and shall

apply to any alien who is a derivative beneficiary

or any other beneficiary of—

(1) a petition for classification under sec-

tion 204 of the Immigration and Na-

tionality Act (8 U.S.C. 1154) approved

before such date but only if a final

determination has not been made on

the beneficiary’s application for an

immigrant visa or adjustment of

status to lawful permanent residence

pursuant to such approved petition;

(2) a petition for classification under sec-

tion 204 of the Immigration and Na-

tionality Act (8 U.S.C. 1154) pending

on or after such date; or

(3) an application pending before the De-

partment of Justice or the Department

of State on or after such date.

Child Status Protection Act of 2006, Pub. L. No. 107-208,

§ 8, 116 Stat. 930 (2006). The single member of the Board

who heard the case viewed subsection (1) as imposing

two requirements: a visa petition must have been

approved prior to the CSPA’s enactment, and there must

not have been a final determination on a beneficiary’s

application at any time afterwards. Dr. Kotaria’s petition

was approved on June 27, 2002, almost a year before the

No. 10-2986 9

CSPA was enacted, so Nino cleared the first hurdle.

But because Nino had a final determination on one ap-

plication for adjustment of status, the Board concluded

that she tripped over the second requirement. The

Board determined that neither of the other subsections

applied to Nino, and thus Nino was not covered under

the CSPA.

We review issues of law—including challenges to

the Board’s interpretation of the Immigration and Nation-

ality Act (INA)—de novo. Kiorkis v. Holder, 634 F.3d 924,

928 (7th Cir. 2011). Our analysis begins with the

statute’s language. Barnhart v. Sigmon Coal Co., 534 U.S.

438, 450 (2002). Where Congress’s intent is clear

from that language, it must be given effect—neither the

agency nor this court may deviate from it. See Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842-43 (1984). Where the statute is ambiguous, however,

we owe some deference to the interpretation advanced

by the agency assigned to administer the statute. White

v. Scibana, 390 F.3d 997, 1000 (7th Cir. 2004).

Each party begins by arguing that the text of the

effective date section is unambiguous and militates in

its favor. We disagree. The Board has already deter-

mined, in a previous opinion, that the language of sub-

section (1) is unclear, see In re Avila-Perez, 24 I. & N. Dec.

78, 83 (BIA 2007), and we are similarly perplexed by it.

The “before such date” language might be reasonably

understood as applying only to the text preceding it—

a reading the Board adopted and the government

argues for today. Under that reading, subsection (1) would

10 No. 10-2986

not apply to beneficiaries of petitions approved prior to

the effective date if they had a final decision on an ap-

plication at any time after that point—including any

time after the statute was enacted. That reading is con-

sistent with the text of subsection (1), but it infringes on

the overall structure of the effective date section, whose

other subsections expressly deal with conduct occurring

after the CSPA’s enactment. On the other hand, the

“before such date” language could be rationally read to

apply to the entirety of subsection (1)—a reading ad-

vanced by Nino. Under that reading, subsection (1)

would cover all beneficiaries of petitions approved be-

fore the statute was enacted, removing from the CSPA’s

coverage only those beneficiaries who had a final ad-

judication on an application prior to the CSPA’s enact-

ment. That reading would better serve the overall

structure of the effective date section, but it is not, on

its face, a more natural reading of subsections (1)’s text.

When, as here, “there are two plausible but different

interpretations of statutory language, there is ambiguity.”

Khan v. United States, 548 F.3d 549, 556 (7th Cir. 2008).1

1

The presence of an ambiguity here should hardly be a surprise

to the government. The web site for the United States Citizen-

ship and Immigration Services, the division of the Department

of Homeland Security that oversees lawful immigration to

the United States, provides an explanation for the CSPA’s

eligibility requirements. The site states that a party is covered

under the CSPA if they are “the beneficiary of a pending or

approved visa petition on or after August 6, 2002,” they have

(continued...)

No. 10-2986 11

Anticipating this ambiguity, the government urges

us to apply Chevron deference to the Board’s non-

precedential interpretation of the effective date section.

If Chevron deference applied, it would require us to

adopt the Board’s interpretation of the statute unless

its construction was unreasonable. See Chevron, 467 U.S.

at 842-43, 845. We note, however, that Chevron deference

is not triggered in all cases. “Even when we are talking

about interpretations of statutes [like the INA], not every-

thing that an agency produces is entitled to the strongest

form of deference.” Joseph v. Holder, 579 F.3d 827, 831 (7th

Cir. 2009).

The Supreme Court clarified Chevron’s reach in United

States v. Mead Corp., 533 U.S. 218 (2001). In Mead, the

Court was tasked with determining the level of deference

1

(...continued)

not “had a final decision on an application for adjustment of

status . . . before August 6, 2002,” and they “ ‘seek to acquire’

permanent residence within 1 year of a visa becoming avail-

able.” United States Citizenship and Immigration Services, Child

Status Protection Act, http://www.uscis.gov/portal/site/uscis/

menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=

1f0c0a5659083210VgnVCM100000082ca60aRCRD&vgnextchan

nel=1f0c0a5659083210VgnVCM100000082ca60aRCRD (last vis-

ited July 20, 2011). The site goes on to remind parties that they

may be eligible if they “had not received a final decision on

an application for permanent residence . . . prior to August 6,

2002.” Id. While statements on the USCIS’s website are not

dispositive, the fact that the USCIS read the statute in a way

that is in tension with the government’s reading suggests that

the section is indeed ambiguous.

12 No. 10-2986

owed to letters issued by the United States Customs

Service. The letters—which instructed parties on their

tariff classifications—were binding only on the party at

issue, were not subject to notice and comment, and

could be modified largely without notice. Id. at 223. The

Court held that “administrative implementation of a

particular statutory provision qualifies for Chevron defer-

ence when it appears that Congress delegated authority

to the agency generally to make rules carrying the force

of law, and that the agency interpretation claiming defer-

ence was promulgated in the exercise of that authority.”

Id. at 226-27. Because the letters did not have the force

of law, Chevron deference did not apply. Id. at 231-32.

Our task, in light of Mead, is to determine what procla-

mations by the Board carry the force of law, as only

those proclamations are entitled to Chevron deference.

Decisions by a three-member panel of the Board obviously

carry the force of law, as the Board’s regulations make

clear that those decisions have precedential value and

are binding on the Board when it decides future cases.

See 8 C.F.R. § 1003.1(e)(6); Joseph, 579 F.3d at 832.

Similarly, non-precedential Board decisions that them-

selves rely on applicable Board precedent would also

carry the force of law, as the non-precedential disposi-

tion is merely applying reasoning that already carries

precedential weight. See Lagunas-Salgado v. Holder, 584

F.3d 707, 711 (7th Cir. 2009); Ali v. Mukasey, 521 F.3d

737, 739 (7th Cir. 2008).

The question remains whether non-precedential Board

opinions that do not rely on binding Board precedent

are deserving of Chevron deference. Relying on Mead, all

No. 10-2986 13

of our sister circuits to address the issue have con-

cluded these non-precedential opinions—which by the

Board’s regulations do not carry the force of law—are not

analyzed under Chevron. Rotimi v. Gonzales, 473 F.3d 55, 57-

58 (2d Cir. 2007) (per curiam); Garcia-Quintero v. Gonzales,

455 F.3d 1006, 1013-14 (9th Cir. 2006); Carpio v. Holder,

592 F.3d 1091, 1097 (10th Cir. 2010); Quinchia v. U.S. Att’y

Gen., 552 F.3d 1255, 1258 (11th Cir. 2008). Another

circuit dodged the question but gave us a peek at its

hand, a peek that similarly swings against Chevron defer-

ence for non-precedential opinions. De Leon-Ochoa v.

Att’y Gen. of U.S., 622 F.3d 341, 350-51 (3d Cir. 2010). The

remaining circuits have ducked the question entirely.

Vasquez v. Holder, 635 F.3d 563, 567 n.6 (1st Cir.

2011); Cervantes v. Holder, 597 F.3d 229, 233 n.5 (4th

Cir. 2010); Mushtaq v. Holder, 583 F.3d 875, 877 (5th Cir.

2009); Japarkulova v. Holder, 615 F.3d 696, 700-01 (6th Cir.

2010); Godinez-Arroyo v. Mukasey, 540 F.3d 848, 850-51

(8th Cir. 2008).

Out of all of the circuits to address the question, we are

the only one to go the other way. In Gutnik, we deter-

mined that these streamlined, non-precedential opinions

are given Chevron deference so long as the Board provides

us with some reasoning to review. Gutnik v. Gonzales, 469

F.3d 683, 690 (7th Cir. 2006). In doing so, we relied on the

Supreme Court’s general statement in Aguirre-Aguirre

that “ ‘[j]udicial deference to the Executive Branch is

especially appropriate in the immigration context.’ ” Id.

(quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 416 (1999)).

But Mead came after Aguirre-Aguirre, and it made clear

that the sine qua non of Chevron deference is an agency

14 No. 10-2986

statement carrying the force of law. Mead, 533 U.S. at 226-

27. It is for that reason that we have expressed doubts

about Gutnik’s vitality. See, e.g., Chen v. Holder, 607 F.3d

511, 514 (7th Cir. 2010); Ghani v. Holder, 557 F.3d 836, 840

(7th Cir. 2009); Joseph, 579 F.3d at 833. Today we hold

that non-precedential Board decisions that do not rely

on binding Board precedent are not afforded Chevron

deference. To the extent that Gutnik is inconsistent

with this, it is overruled.2

Just because Chevron deference does not apply does

not mean that we owe no deference to the Board’s inter-

pretation. Skidmore deference still applies to less formal

statements by an agency, see Mead, 533 U.S. at 234-35, and

non-precedential opinions by the Board certainly fall

within that group, see Carpio, 592 F.3d at 1098. Under

Skidmore deference, the Board’s interpretation is “ ‘entitled

to respect’—but only to the extent that [it has the] ‘power

to persuade.’ ” Bailey v. Pregis Innovative Packaging, Inc., 600

F.3d 748, 751 (7th Cir. 2010) (quoting Christensen v. Harris

Cnty., 529 U.S. 576, 587 (2000)). To assess the persuasive

power of the Board’s decision, we examine “the thorough-

ness evident in its consideration, the validity of its rea-

soning, its consistency with earlier and later pronounce-

ments, and all those factors which give it power to per-

suade, if lacking power to control.” Skidmore v. Swift &

Co., 323 U.S. 134, 140 (1944).

2

This opinion has been circulated among all judges of this

court in regular active service pursuant to Circuit Rule 40(e).

No judge favored a rehearing en banc on the question of

overruling the relevant part of Gutnik v. Gonzales.

No. 10-2986 15

We cannot say that the Board’s interpretation of sub-

section (1), which led it to hold that Nino fell outside of

the CSPA’s coverage, is persuasive. For one, the Board’s

consideration is far from thorough—its effective date

analysis occupied all of a paragraph of thought. The

Board made no effort to consider how its interpretation

of subsection (1) harmonized (or failed to harmonize)

with the other effective date subsections. Moreover, the

Board did not address the legislative history of subsec-

tion (1) or the tension between the Board’s reading and

the fact that the CSPA was meant to be an ameliorative

statute, applying to as many parties as practicable. These

are proper inquiries that the Board ignored.

The Board’s analysis also fails to address reasoning

it employed in a prior, precedential opinion. In Avila-

Perez, the Board was tasked with determining whether

the CSPA applied to a petitioner who had been the deriva-

tive beneficiary of a petition for classification, but had not

filed an application for adjustment of status before the

statute was enacted. In re Avila-Perez, 24 I. & N. Dec. at

80. That question required the Board to explore subsec-

tion (1), a subsection it deemed ambiguous. In analyzing

the effective date section’s legislative history, the Board

determined that subsection (1) was “intended to expand

the coverage of the statute beyond those individuals

whose visa petitions and applications were pending on

the date of the CSPA to also protect those individuals

whose visa petitions were approved before the effective

date, but only if their applications had not already been

finally adjudicated.” Id. at 85 (emphasis added). This obser-

vation clashes with the Board’s conclusion here, and the

Board made no effort to address the inconsistency.

16 No. 10-2986

The Board’s opinion suffers from another, related

problem: it ignores directly relevant legislative history.

Because subsection (1) is ambiguous, its legislative

history serves as a valid interpretive tool. See Khan, 548

F.3d at 556-57. That history recounts the purpose of what

is now subsection (1), and it cuts against the Board’s

reasoning. Originally, the CSPA was to apply to all benefi-

ciaries of visa petitions, whether the petitions were

filed before or after the CSPA’s enactment. See Padash v.

INS, 358 F.3d 1161, 1171-72 (9th Cir. 2004) (recounting

the history of subsection (1)). The Department of Justice

expressed discomfort with such wide-reaching retro-

activity. It noted that unlimited retroactivity would force

it to reopen cases as old as 1952, imposing records prob-

lems and creating administrative backlog. H.R. Rep.

No. 107-45, 6-7 (2001), reprinted in 2002 U.S.C.C.A.N. 640,

644, 2001 WL 406244. The end result was subsection (1),

which was seemingly designed to solve the Department’s

concerns over reviving cases long disposed of. See Padash,

358 F.3d at 1172; Avila-Perez, 24 I. & N. Dec. at 85. Nino’s

reading of the subsection satisfies the Department’s

concern without removing a large segment of intended

beneficiaries from the Act’s coverage. The Board’s

reading, however, would go too far—there should be no

records headache for matters still pending before the

Department when the CSPA became effective.

It is for all of these reasons that we find the Board’s

reading of subsection (1) unpersuasive. More to the point,

we are convinced that Nino’s reading is correct:

subsection (1) includes all beneficiaries of previously

approved visa petitions except those with applications

adjudicated prior to the CSPA’s enactment. This reading

No. 10-2986 17

is more consistent with the legislative history of the

CSPA, harmonizes with the “longstanding principle of

construing any lingering ambiguities in deportation

statutes in favor of the alien,” INS v. Cardoza-Fonseca, 480

U.S. 421, 449 (1987), and meshes with the Board’s earlier

interpretation of subsection (1), see Avila-Perez, 24 I. & N.

Dec. at 85. Finally, this reading satisfies the Department

of Justice’s concerns over administrative backlog. (We

are confident that the Department will be thrilled that

it got what it asked of Congress.)

Applying subsection (1), we conclude that the CSPA

applies to Nino: her mother’s classification petition was

approved prior to the CSPA’s enactment, and neither of

Nino’s adjustment applications were decided prior to

the CSPA’s enactment. Whether the CSPA will help

Nino to attain permanent residency is another question,

one that will depend on the actual text of the Act’s sub-

stantive sections. That issue has not yet been fully ad-

dressed, and we accordingly leave it to the proper ad-

ministrative body on remand.

III. C ONCLUSION

For the foregoing reasons, we G RANT the petition for

review, V ACATE the Board’s decision, and R EMAND the

case for further proceedings consistent with this opinion.

7-27-11