Noel Regis v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1988

NOEL JOSEPH MENOR REGIS,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals.

Argued: September 16, 2014 Decided: October 16, 2014

Before DUNCAN, AGEE, and DIAZ, Circuit Judges.

Petition denied by published opinion. Judge Agee wrote the

opinion, in which Judge Duncan and Judge Diaz joined.

ARGUED: Alfred Castro Tecson, TECSON LAW OFFICE, Annandale,

Virginia, for Petitioner. Colin James Tucker, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON

BRIEF: Stuart F. Delery, Assistant Attorney General, Civil

Division, Anthony W. Norwood, Senior Litigation Counsel, Office

of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

AGEE, Circuit Judge:

Petitioner Noel Joseph Menor Regis entered the United

States in 2007 on a K-2 visa as the minor child of his mother, a

nonimmigrant fiancée K-1 visa holder. After his mother married

the U.S. citizen who had petitioned for the family’s K visas,

Regis applied to adjust his status to lawful conditional

permanent resident. The United States Citizenship and

Immigration Services (“USCIS”) denied Regis’ application because

he had turned 21 before he entered the United States and was

therefore not a qualifying “minor child.” See 8 U.S.C.

§ 1255(d). An immigration judge (“IJ”) agreed with USCIS, and

the Board of Immigration Appeals (the “Board”) affirmed.

In his petition for review to this Court, Regis contends

that a K-2 visa holder’s eligibility for adjustment of status

should be determined not by his age on the date of entry into

the United States, but rather by his age at the time he

initially sought the K-2 visa. Because we conclude that the

Board’s interpretation of the relevant statutory provisions is

entitled to deference, we deny Regis’ petition for review.

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I. Background

A. The Immigration Application Process

The Immigration and Nationality Act (the “INA” or the

“Act”) defines two classes of nonimmigrant aliens that are

pertinent to this appeal:

(i) . . . the fiancee or fiance of a citizen of the

United States . . . who seeks to enter the United

States solely to conclude a valid marriage with the

petitioner within ninety days after admission; [and]

(iii) . . . the minor child of an alien described in

clause (i) . . . accompanying, or following to join,

the alien[.]

8 U.S.C. § 1101(a)(15)(K)(i), (iii) (emphasis added).

The K visa process begins when a U.S. citizen petitions the

Department of Homeland Security to designate a foreign national

as a nonimmigrant fiancé or fiancée (the “fiancée”). Id.

§ 1184(d)(1); 8 C.F.R. § 214.2(k)(1). If the fiancée has a

minor child that is accompanying or following to join her, that

child “may be accorded the same nonimmigrant classification”

without a separate petition. 8 C.F.R. § 214.2(k)(3). The

approved petition is forwarded to the U.S. consulate in the

fiancée’s home country. 22 C.F.R. § 41.81(a)(1).

The fiancée must then submit a visa application to the U.S.

consulate in her home country, requesting a K-1 visa on behalf

of herself and K-2 visas for her minor children whom she intends

to join her. See id. § 41.81(a), (c). After receipt of an

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approved visa application, the consulate issues the K visas,

which, as nonimmigrant visas, generally bear validity periods

reflecting reciprocity between the United States and the

practices of the particular foreign government. Id.

§ 41.112(b)(1).

Issuance of a K-1 or K-2 visa, however, does not guarantee

the visa holder’s entry into the United States. 8 U.S.C.

§ 1201(h) (“Nothing in this chapter shall be construed to

entitle any alien, to whom a visa or other documentation has

been issued, to be admitted [to] the United States, if, upon

arrival at a port of entry in the United States, he is found to

be inadmissible under this chapter, or any other provision of

law.”). Upon arrival at a port of entry into the United States,

the alien fiancée –- like all nonimmigrant aliens -- must

establish that he or she is then admissible. 8 C.F.R.

§ 214.1(a)(3)(i). After admission into the United States, the

alien fiancée must marry the U.S. citizen petitioner within 90

days or depart the country along with any children holding a K-2

derivative visa. 8 U.S.C. § 1184(d)(1).

Following the marriage, the K–1 visa holder and her minor

children holding K-2 visas may apply for adjustment of status to

lawful conditional permanent resident. 8 U.S.C. § 1255(d); 8

C.F.R. § 214.2(k)(6)(ii). The Attorney General may make the

adjustment “in his discretion and under such regulations as he

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may prescribe.” 8 U.S.C. § 1255(a). The applicant must be

eligible to receive an immigrant visa and be admissible to the

United States for permanent residence. Id.

Section 1255(d) specifically addresses adjustment of status

for K-1 and K-2 nonimmigrant visa holders. Id. § 1255(d).

Under the statute, the Attorney General may adjust their status

to lawful conditional permanent resident “as a result of the

marriage of the nonimmigrant (or, in the case of a minor child,

the parent) to the citizen who filed the petition.” Id.

(emphasis added).

The term “minor child” in 8 U.S.C. §§ 1101(a)(15)(K) and

1255(d) is not defined in those statutes or elsewhere in the

INA. However, based on the definition of “child” in the Act,

see 8 U.S.C. § 1101(b)(1), the term “minor child” for purposes

of K-2 visas has been construed by the Board as a person who is

unmarried and under the age of 21. Matter of Le, 25 I. & N.

Dec. 541, 550 (B.I.A. 2011).

Section 1255 does not specify when during the immigration

process a “minor child” is required to be under 21 years of age,

and the statute is likewise silent as to when an applicant for

adjustment of status must demonstrate eligibility. 8 U.S.C.

§ 1255(a), (d); see also Carpio v. Holder, 592 F.3d 1091, 1098

(10th Cir. 2010) (“[T]he use of the term ‘minor child,’ provides

no indication as to when that status must be established.”).

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B. Regis’ Application Process

Regis is a native and citizen of the Philippines who was

born on February 18, 1986. On February 13, 2007, the United

States embassy’s consular office in the Philippines (the

“Consulate”) issued a K-1 nonimmigrant visa to Regis’ mother,

following the successful petition of her U.S. citizen fiancé.

At the same time, the Consulate issued K-2 visas to Regis and

his three siblings as the children of a K-1 visa holder. Regis

was 20 years old when he received his K-2 visa, which stated

that it would remain valid until August 11, 2007.

Regis’ mother entered the United States sometime in

February 2007 and married her U.S. citizen fiancé on February

26, 2007. Regis did not accompany his mother, but entered the

United States later on March 25, 2007, over a month after his

21st birthday on February 18, 2007.

On May 16, 2007, he timely filed an application for

adjustment of status to lawful conditional permanent resident.

USCIS denied the application, concluding that Regis was

ineligible to adjust his status because he had already attained

age 21 and was no longer a “child” as defined in 8 U.S.C.

§ 1101(b)(1). Regis moved for reconsideration, and USCIS

dismissed that motion.

On November 15, 2007, the Department of Homeland Security

began removal proceedings against Regis by filing a Notice to

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Appear, which charged him with removability pursuant to 8 U.S.C.

§ 1227(a)(1)(B), as an alien who was admitted to the United

States as a nonimmigrant and remained beyond the time permitted.

Appearing before the immigration court, Regis admitted the facts

contained in the Notice to Appear and conceded removability. He

argued, however, that he was eligible for adjustment of status

because he was less than 21 years old at the time he applied for

the K-2 visa and cited Carpio v. Holder, 592 F.3d 1091 (10th

Cir. 2010), in support.

In Carpio, the petitioner had also entered the United

States on a derivative K-2 visa but, unlike Regis, was less than

21 years old on the date of entry. Id. at 1092. The Board

nevertheless denied the adjustment because the petitioner had

turned 21 before the agency adjudicated his application. Id. at

1092-93. The Tenth Circuit overturned the Board’s decision,

concluding that eligibility should be determined as of the date

a K-2 alien “seeks to enter” the United States. Id. at 1098-

1101. Given the particular facts before it, the court was not

required to pinpoint when a K-2 applicant “seeks to enter,” but

observed that the date

may be plausibly read as either (1) the date that the

United States citizen files a petition for K-1 and

K–2 visas with the Secretary of Homeland Security

under 8 U.S.C. § 1184(d)(1), or (b) the date that the

K–1 and K–2 visa applications are filed with the

consular officer in the country of origin.

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Id. at 1104.

The IJ found Carpio inapplicable in this case under the

holding in Matter of Le, 25 I. & N. Dec. 541 (B.I.A. 2011),

which the Board had decided during the pendency of Regis’ case.

In Matter of Le, a three-judge panel of the Board concluded that

a K-2 visa holder’s age at the time he actually enters the

United States determines whether he is a “minor child” under the

INA. Id. at 550. Based on Matter of Le, the IJ denied Regis’

application for adjustment of status because Regis was over 21

when he entered the United States under his K-2 visa.

Accordingly, the IJ ordered Regis removed from the United

States.

Regis appealed to the Board, arguing again that he was

eligible for adjustment of status because he was under 21 at the

time he sought a K-2 visa. The Board dismissed Regis’ appeal,

adopting and affirming the IJ’s decision. Concluding that

Matter of Le was precedential and dispositive, the Board held

that Regis was ineligible to adjust status because he was not a

“minor child” at the time he was admitted to the United States.

Regis filed a timely petition for review to this Court. We

have jurisdiction to consider his petition under 8 U.S.C.

§ 1252.

8

II. Discussion

We review the Board’s legal conclusions de novo. Saintha

v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008). In the course of

conducting our review, we recognize that because the Board is

the agency that administers the INA, its interpretations of that

Act may be entitled to deference under the Chevron doctrine.

See id. (citing Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-43 (1984)).

Under Chevron, we must first determine whether the statute

is “silent or ambiguous with respect to the specific issue.”

Id. If the provision in question is unambiguous, then the plain

meaning of the statute controls. Id. If, however, the

relevant provision is ambiguous, then we will defer to the

agency’s interpretation so long as it is “based on a permissible

construction of the statute.” Id. “[T]he [Board’s]

interpretations . . . must be given controlling weight unless

those interpretations are ‘arbitrary, capricious, or manifestly

contrary to the statute.’” Fernandez v. Keisler, 502 F.3d 337,

344 (4th Cir. 2007) (quoting Chevron, 467 U.S. at 844). The

appellant bears a “substantial burden, as judicial deference ‘is

especially appropriate in the immigration context where

officials exercise especially sensitive political functions that

implicate questions of foreign relations.’” Saintha, 516 F.3d

9

at 251 (quoting I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425

(1999)).

A. The Board’s Decision in Matter of Le

Although the INA is silent as to when during the

immigration process a K-2 visa holder must be under 21 to be

eligible for adjustment of status, the Board has provided

guidance in Matter of Le. In that case, the applicant entered

the United States with his mother when he was 19 years old, but

turned 21 before USCIS adjudicated his application for

adjustment of status. 25 I. & N. Dec. at 542. USCIS denied the

application because Le had turned 18 before the date of his

mother’s marriage. Id. An IJ likewise denied Le’s adjustment

of status, but on the ground that he had turned 21 before the

agency had adjudicated his application. Id.

The Board addressed two questions in Le’s appeal: (1) at

what age is a child no longer a “minor child,” and, critical to

this appeal, (2) at what point in the immigration process does

the child’s age become “fixed” for purposes of the minor child

determination. Id. at 544. Regarding the first question, the

Board concluded that the defining age for a “minor child”

determination is age 21, not 18. Id. at 550 (noting the “long-

standing interpretation by the implementing agency” and

Congress’ implicit approval of that interpretation).

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In addressing the second question –- at what point the K-2

applicant must establish eligibility -- the Board looked to a

previous decision in which it had analyzed the same question for

K-1 applicants. In Matter of Sesay, the Board concluded that an

alien fiancée parent’s eligibility for adjustment of status must

be established at the time of admission to the United States

with the K-1 nonimmigrant visa. Matter of Sesay, 25 I. & N.

Dec. 431, 440 (B.I.A. 2011). The Board in Matter of Le found

Matter of Sesay’s reasoning to be equally persuasive in the

context of K-1 visa holders’ minor children. Matter of Le, 25

I. & N. Dec. at 545. Consequently, the Board determined “that

to adjust status based on a K-2 visa, an alien derivative child

must establish that he or she was under 21 years of age at the

time of admission to the United States.” Id. at 541 (emphasis

added). Since Le met that requirement, the Board held he was

eligible for adjustment and reversed the IJ’s decision. 1

1

We reject Regis’ argument that because Le had not yet

turned 21 at the time he was admitted into the United States,

Matter of Le is somehow inapplicable to this case. In deciding

whether Le was eligible for adjustment, the Board was tasked

with defining “minor child” and with designating the appropriate

time for determining eligibility. Some, like Le, may satisfy

the Board’s interpretation, and others like Regis, will not.

The resulting interpretation nonetheless is applicable to all K-

2 applicants for adjustment.

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B. Chevron Deference

Because Matter of Le is a precedential opinion in which the

Board interpreted a statute Congress has designated it to

administer, we proceed in accordance with Chevron. 2 Under

Chevron’s first prong, we begin by asking whether the INA is

ambiguous as to when a K-2 applicant for adjustment of status

fails to qualify as a “minor child” under that statute. In

other words, at what point in the immigration process does the

K-2 visa applicant’s attaining age 21 function as a limiting

event? As noted earlier, the INA is silent on this question.

For his part, Regis has not contested that the relevant

provisions are ambiguous.

One possible reading, rejected in both Carpio and Matter of

Le, is that the applicant must be a “minor child” at the time

the adjustment is adjudicated. See Carpio, 592 F.3d at 1102

(concluding that allowing eligibility to hinge on the agency’s

speed could “violate[] basic principles of common sense and

fairness”); Matter of Le, 25 I. & N. Dec. at 542.

Alternatively, the Tenth Circuit in Carpio resolved that the INA

2

The Board’s decision denying Regis’ appeal may not itself

be entitled to Chevron deference because it is not precedential

(as a one Board member decision). See Cervantes v. Holder, 597

F.3d 229, 233 n.5 (4th Cir. 2010). But the underlying

interpretation is based on Matter of Le, which is a published

and precedential Board decision. Chevron applies in these

circumstances. See, e.g., Aguirre-Aguirre, 526 U.S. at 418,

424-25; Ramirez v. Holder, 609 F.3d 331, 333-34 (4th Cir. 2010).

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can “plausibly be read” to require the applicant to be under 21

on either the date the U.S. citizen fiancé files the original

petition or the date the K-2 visa application is filed with the

U.S. consulate. Carpio, 592 F.3d at 1104. As the Board found

in Matter of Le, the statute can reasonably be construed in yet

another way: setting eligibility as a “minor child” at the date

of entry into the United States. 25 I. & N. Dec. at 541.

In light of these differing but plausible interpretations,

we join the Tenth Circuit and the Board in concluding that the

INA’s silence on the issue creates an ambiguity. There is no

plain language in the statute that resolves the question at

issue here. See Carpio, 592 F.3d at 1096 (“We agree with the

government that § 1255(d) is ambiguous with respect to the time

at which a K-2 visa holder must be under twenty-one to qualify

for an adjustment of status.”); Matter of Le, 25 I. & N. Dec. at

543-44 (recognizing a statutory ambiguity regarding “the time at

which the fiance(e) derivative child’s age is fixed for purposes

of establishing adjustment eligibility”).

Having found the statute to be ambiguous, we proceed to the

next step under Chevron to determine whether the Board’s

interpretation is a “permissible construction,” and not

“arbitrary, capricious, or manifestly contrary to the statute.”

467 U.S. at 843-44. In Matter of Le, the Board offered several

reasons why a K-2 visa holder’s age on the date of his actual

13

admission should control eligibility for adjustment of status as

a “minor child.” First, the Board reasoned that the date of an

alien’s entry into the United States “best marks visa

eligibility and availability, because ‘events that may occur

between visa issuance and admission could extinguish the visa.’”

Matter of Le, 25 I. & N. Dec. at 545 (quoting Matter of Sesay,

25 I. & N. Dec. at 440). Relatedly, the Board noted that the

entry date is the best determining point “because visa

eligibility is reassessed upon application for admission at the

port of entry.” Id.

As to K-2 visa holders in particular, the Board further

observed that the gap between issuance of the visa and admission

“provides an additional opportunity for the parent’s visa

validity to be extinguished, which would, in turn, render the

child inadmissible even though a K-2 visa had been issued.” Id.

The Board considered this factor important because the Act

permits a minor child to follow the parent into the United

States at a later date, id., as Regis did in this case.

Finally, the Board pointed to language elsewhere in the Act

that supports its interpretation. Specifically, the final

sentence of 8 U.S.C. § 1184(d)(1) provides that an alien fiancée

and her minor children must depart the United States if the

marriage does not occur “within three months after the admission

of the said alien and minor children.” This provision, the

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Board reasoned, “highlights the significance of admission” for

determining an alien’s eligibility for adjustment. Matter of

Le, 25 I. & N. Dec. at 545.

Far from being arbitrary, capricious, or manifestly

contrary to the statute, we find the Board’s determination of

“minor child” status in Matter of Le well-reasoned. The Board’s

analysis embraces the existing statutory and regulatory

framework and reaches a result consistent with that framework.

The Board’s interpretation of the INA –- that a K-2 visa holder

seeking adjustment of status must be under 21 at the time of

admission -- is therefore a permissible construction and is owed

deference under Chevron. Accordingly, because Regis was over 21

when he entered the United States, his application for

adjustment of status was properly denied and he is properly

removable.

Relying on the Tenth Circuit’s decision in Carpio, Regis

insists that his eligibility for adjustment should have been

determined based on his age when he applied for the K-2 visa. 3

3

Regis also appears to make what can be best characterized

as an estoppel argument. He contends that because the “ultimate

purpose” of the K-2 visa is adjustment, the Consulate erred by

issuing him a visa that remained “valid” until well after his

21st birthday. He argues that he was justified in relying on

and travelling within this validity period and should not be

denied adjustment. However, as counsel conceded at oral

argument, the issue was not properly raised below. “It is well

established that an ‘alien must raise each argument to the

(Continued)

15

As noted above, the Board rejected this argument because Carpio

would be controlling only in the Tenth Circuit and because the

Board’s precedential interpretation in Matter of Le now decides

the issue. See Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s prior

judicial construction of a statute trumps an agency construction

otherwise entitled to Chevron deference only if the prior court

decision holds that its construction follows from the

unambiguous terms of the statute and thus leaves no room for

agency discretion.”). We find particularly noteworthy that the

Tenth Circuit decided Carpio without the benefit of the Board’s

subsequent precedential decision in Matter of Le. Although

Carpio sets forth a reasonable interpretation of the statute, we

are bound under Chevron to defer to the Board’s equally

reasonable construction.

[Board] before we have jurisdiction to consider it.” Kporlor v.

Holder, 597 F.3d 222, 226 (4th Cir. 2010) (quoting Gandziami–

Mickhou v. Gonzales, 445 F.3d 351, 359 n.2 (4th Cir. 2006)). In

view of Regis’ waiver concession, we do not consider this issue,

but also note the general inapplicability of an estoppel

argument against the government, at least absent “affirmative

misconduct.” See Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir.

2003) (“[T]he [Supreme] Court’s decisions indicate that estoppel

may only be justified, if ever, in the presence of affirmative

misconduct by government agents.”).

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III.

For all these reasons, Regis’ petition for review of the

Board’s decision is

DENIED.

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