The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSALINA CUELLAR DE OSORIO;
ELIZABETH MAGPANTAY; EVELYN Y.
SANTOS; MARIA ELOISA LIWAG;
NORMA UY; RUTH UY,
Plaintiffs-Appellants,
v. No. 09-56786
ALEJANDRO MAYORKAS, Director, D.C. No.
5:08-cv-00840-
United States Citzenship and
Immigration Services; JANET JVS-SH
NAPOLITANO, Secretary of the
Department of Homeland Security,
HILLARY RODHAM CLINTON,
Secretary of State,
Defendants-Appellees.
16793
16794 DE OSORIO v. MAYORKAS
TERESITA G. COSTELO; LORENZO P.
ONG, Individually and on Behalf
of all Others Similarly Situated,
Plaintiffs-Appellants,
v.
JANET NAPOLITANO, Secretary of
the Department of Homeland
Security; UNITED STATES No. 09-56846
CITIZENSHIP AND IMMIGRATION D.C. No.
SERVICES; ALEJANDRO MAYORKAS, 8:08-cv-00688-
Director, United States Citizenship JVS-SH
and Immigration Services; LYNNE
OPINION
SKEIRIK, Director, National Visa
Center; CHRISTINA POULOS, Acting
Director, California Service
Center, United States Citizenship
and Immigration Services; HILLARY
RODHAM CLINTON, Secretary of
State,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
July 15, 2011—Pasadena, California
Filed September 2, 2011
Before: Pamela Ann Rymer, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Tallman
DE OSORIO v. MAYORKAS 16797
COUNSEL
Nancy E. Miller (argued), Robert L. Reeves, Jeremiah John-
son, Anthony J. Favero, Reeves and Associates, APLC, Pasa-
dena, California; Amy Prokop, Carl Shusterman, Law Offices
of Carl Shusterman, Los Angeles, California; for plaintiffs-
appellants Teresita G. Costelo, Lorenzo P. Ong, Rosalina
Cuellar de Osorio, Elizabeth Magpantay, Evelyn Y. Santos,
Maria Eloisa Liwag, Norma Uy and Ruth Uy.
Gisela A. Westwater (argued), Elizabeth J. Stevens, Aaron D.
Nelson, United States Department of Justice, Office of Immi-
gration Litigation, Washington, D.C., for defendants-
appellees Janet Napolitano, Jonathan Scharfen, et al.
Mary Kenney, American Immigration Council, Washington,
D.C., for amici curiae American Immigration Council and
American Immigration Lawyers Association.
16798 DE OSORIO v. MAYORKAS
OPINION
TALLMAN, Circuit Judge:
This case involves parents who face separation from their
children due to the way our immigration system operates.
Appellants, the parents, have all immigrated to the United
States and become lawful permanent residents. Their children,
however, have not been able to join them because the children
are no longer under the age of 21.
Appellants became lawful permanent residents through the
family-sponsored immigration process, which allows certain
aliens to immigrate based on their status as relatives of either
U.S. citizens or lawful permanent residents. When Appellants
began this process, they all had children under the age of 21
who would have been eligible to immigrate with them under
the Immigration and Nationality Act (INA). See 8 U.S.C.
§§ 1101(b)(1), 1153(d) (entitling a child under the age of 21
to the same immigration status as a parent). However, due to
years-long delays associated with the family-sponsored immi-
gration process, these children turned 21 before their parents
were able to immigrate or adjust status. Because these chil-
dren had “aged out” of child status under the INA by the time
their parents immigrated or adjusted status, they were no lon-
ger eligible to accompany their parents.
The question we are faced with today is whether Appel-
lants’ children are entitled to any relief under the Child Status
Protection Act (CSPA), 8 U.S.C. § 1153(h), which was
enacted to help keep families together by expediting the
immigration process for certain aged-out aliens. United States
Citizenship and Immigration Services (CIS) denied Appel-
lants’ requests for relief under the CSPA, and Appellants
challenge the denial as arbitrary and capricious. The district
court, deferring to the Board of Immigration Appeals’ (BIA)
interpretation of § 1153(h), held that the CSPA did not apply
to Appellants’ children. Because we agree that the BIA’s
DE OSORIO v. MAYORKAS 16799
interpretation of § 1153(h) warrants deference, we affirm the
district court’s grant of summary judgment in favor of CIS.
We hold that Appellants’ children are not among the aged-out
aliens entitled to relief under § 1153(h).
I
Understanding this appeal requires familiarity with the
family-sponsored immigration process and, specifically, the
complicated family preference system. Family-sponsored
immigration is one of the primary avenues by which an alien
can obtain lawful permanent residence in the United States,
along with employment-based immigration, diversity-based
immigration, and asylum. The family-sponsored immigration
process allows a U.S. citizen or lawful permanent resident
(LPR) to file a form I-130 immigration petition on behalf of
an alien relative. 8 U.S.C. § 1153(a). After the petition is
filed, CIS determines if it establishes a qualifying relationship
between the citizen or LPR petitioner and the alien relative
beneficiary. Because there is no annual cap on the number of
permanent resident visas (also known as “green cards”) avail-
able to immediate relatives of U.S. citizens, a citizen’s
spouse, child under the age of 21, or parent can apply for one
immediately.
For other qualifying relatives of citizens and for qualifying
relatives of LPRs, the number of visas available annually is
capped. Id. § 1151(c). To allocate these visas, the INA estab-
lishes the following preference system:
Aliens subject to the worldwide [numerical limita-
tion] for family-sponsored immigrants shall be allot-
ted visas as follows:
(1) Unmarried sons and daughters [age 21 or older]
of citizens
Qualified immigrants who are the unmarried sons or
daughters of citizens of the United States shall be
16800 DE OSORIO v. MAYORKAS
allocated visas in a number not to exceed [numerical
quota formula].
(2) Spouses and unmarried sons and unmarried
daughters of permanent resident aliens
Qualified immigrants—
(A) who are the spouses or children [under
21] of an alien lawfully admitted for perma-
nent residence, or
(B) who are the unmarried sons or unmar-
ried daughters (but are not the children) of
an alien lawfully admitted for permanent
residence,
shall be allocated visas in a number not to exceed
[numerical quota formula].
(3) Married sons and married daughters of citizens
Qualified immigrants who are the married sons or
married daughters of citizens of the United States
shall be allocated visas in a number not to exceed
[numerical quota formula].
(4) Brothers and sisters of citizens
Qualified immigrants who are the brothers or sisters
of citizens of the United States, if such citizens are
at least 21 years of age, shall be allocated visas in a
number not to exceed [numerical quota formula].
Id. § 1153(a). If an I-130 petition establishes one of these
qualifying relationships, CIS approves it and places the alien
beneficiary “in line” in the appropriate preference category.
These family preference categories are referred to as F1, F2A,
DE OSORIO v. MAYORKAS 16801
F2B, F3, or F4, corresponding to § 1153(a)’s numbered para-
graphs.
Because annual demand for family preference visas
exceeds the statutory cap in all categories, a beneficiary may
wait years before a visa becomes available, with some catego-
ries having longer wait times than others. The beneficiary’s
place in line is determined by the date the petition was filed,
which is known as the “priority date.” Every month, the State
Department publishes a visa bulletin with updated “cut off
dates” for each family preference category. When the cut-off
date is later than the beneficiary’s priority date, the priority
date is “current,” and a lawful permanent resident visa is then
available for the beneficiary. In order to obtain the visa and
become an LPR, however, the beneficiary must act within one
year of notification of visa availability to complete consular
processing (if abroad) or apply for an adjustment of status (if
present in the United States).
Under the INA, a beneficiary’s spouse or child is deemed
a “derivative” beneficiary entitled to the same immigration
status and priority date as the primary beneficiary:
A spouse or child . . . shall, if not otherwise entitled
to an immigrant status and the immediate issuance of
a visa under subsection (a) . . . of this section, be
entitled to the same status, and the same order of
consideration provided in the respective subsection,
if accompanying or following to join, the spouse or
parent.
8 U.S.C. § 1153(d). Importantly, to be considered a “child,”
a person must be unmarried and under the age of 21. Id.
§ 1101(b)(1). Due to the long wait times often associated with
family preference visas, some aliens who begin the process
eligible to immigrate as a child—either as the primary benefi-
ciary of an F2A petition or as a derivative beneficiary of a
petition for a parent in any of the other family preference
16802 DE OSORIO v. MAYORKAS
categories—will “age out” of eligibility by turning 21 before
a visa becomes available.
In 2002, Congress enacted the CSPA to provide relief to
“aged out” alien children by allowing them either to maintain
“child” status longer, see 8 U.S.C. § 1153(h)(1), or to auto-
matically convert to a valid adult visa category while retain-
ing the priority date associated with their original petition, see
id. § 1153(h)(3). The issue before us is whether an aged-out
derivative beneficiary of an F3 petition (for married sons or
daughters of U.S. citizens) or F4 petition (for siblings of U.S.
citizens)—i.e., a grandchild or niece or nephew of a U.S.
citizen—is entitled to automatic conversion and priority date
retention, or either of them separately, under the CSPA.
II
Two cases, each with multiple plaintiffs, were consolidated
before us in this appeal. The facts of these cases illustrate the
family-sponsored immigration process and the age-out prob-
lem.
A
In one case, Rosalina Cuellar de Osorio was the beneficiary
of an F3 petition filed by her U.S. citizen mother on May 5,
1998. Cuellar de Osorio’s son, who was born in July 1984,
was thirteen at the time and a derivative beneficiary of the F3
petition. By the time Cuellar de Osorio’s priority date became
current on November 1, 2005, her son had turned 21 and aged
out of derivative status. Therefore, he was no longer eligible
to immigrate with his mother. After Cuellar de Osorio became
an LPR in August 2006, she filed an F2B petition (for adult
sons or daughters of LPRs) on behalf of her son. Invoking the
CSPA, she requested retention of the original F3 petition’s
May 5, 1998, priority date for the F2B petition, which would
enable her son to immigrate much sooner than if he was
DE OSORIO v. MAYORKAS 16803
assigned a more recent priority date based on the F2B filing
date.
On June 23, 2008, Cuellar de Osorio filed a lawsuit against
CIS in the Central District Court of California along with sev-
eral other similarly situated plaintiffs who had asked CIS for
(and not obtained) priority date retention for their aged-out chil-
dren.1 They sought declaratory and mandamus relief, alleging
that CIS arbitrarily and capriciously failed to grant the
requested priority dates in violation of the CSPA provisions
codified at 8 U.S.C. § 1153(h)(3).
The district court held the case in abeyance pending a pre-
cedential BIA decision interpreting § 1153(h) in Matter of
Wang. On June 16, 2009, the BIA issued its decision, which
held that the automatic conversion and priority date retention
provisions of the CSPA did not apply to derivative beneficia-
ries of F4 petitions. See 25 I. & N. Dec. 28 (B.I.A. 2009). The
district court then granted summary judgment to CIS on Octo-
ber 9, 2009, holding that the BIA’s interpretation of § 1153(h)
in Matter of Wang, according to which the Plaintiffs were not
entitled to relief, should receive Chevron deference. Plaintiffs
timely appealed.
1
Sisters Elizabeth Magpantay, Evelyn Y. Santos, and Maria Eloisa
Liwag were each the beneficiary of an F3 petition filed by their U.S. citi-
zen father on January 29, 1991. Each also has children who aged out of
derivative status before the F3 petition’s priority date became current on
December 15, 2005. The sisters seek to retain the F3 petition’s 1991 prior-
ity date on new F2B petitions they have filed for their now-adult sons and
daughters.
Norma Uy was the beneficiary of an F4 petition filed by her U.S. citizen
sister on February 4, 1981. She has a daughter, Ruth, who aged out of
derivative status before the F4 petition’s priority date became current in
July 2002. Norma and Ruth seek to retain the F4 petition’s 1981 priority
date on a new F2B petition Norma has filed on behalf of Ruth.
16804 DE OSORIO v. MAYORKAS
B
Meanwhile, on June 20, 2008, Teresita G. Costelo and
Lorenzo Ong had separately filed a class-action lawsuit in dis-
trict court. Costelo was the beneficiary of an F3 petition filed
by her U.S. citizen mother on January 5, 1990. At the time,
she had two daughters, aged 10 and 13, who were derivative
beneficiaries of the petition. By the time Costelo’s priority
date became current fourteen years later in 2004, both daugh-
ters had aged out of derivative status. After Costelo became
an LPR, she filed F2B petitions for her adult daughters and
requested retention of the January 5, 1990, priority date for
the F2B petitions.
Ong was the beneficiary of an F4 petition filed by his U.S.
citizen sister in 1981. At that time, he had two daughters, aged
2 and 4. By the time Ong’s priority date became current
twenty-one years later in 2002, his daughters had aged out of
derivative status. In March 2005, after Ong obtained LPR sta-
tus, he filed F2B petitions on behalf of his now-adult daugh-
ters and requested retention of the 1981 priority date for these
petitions.
On July 16, 2009, the district court certified a class in Cos-
telo v. Chertoff consisting of:
Aliens who became lawful permanent residents as
primary beneficiaries of [F3 and F4] visa petitions
listing their children as derivative beneficiaries, and
who subsequently filed [F2B] petitions on behalf of
their aged-out unmarried sons and daughters, for
whom Defendants have not granted automatic con-
version or the retention of priority dates pursuant to
§ [1153](h)(3).
After the parties cross-moved for summary judgment, the dis-
trict court granted summary judgment to the government on
November 12, 2009, again deferring to Matter of Wang.
DE OSORIO v. MAYORKAS 16805
Plaintiffs timely appealed. The appeals in De Osorio and Cos-
telo have been consolidated before us.
III
We review de novo a district court’s grant of summary
judgment. Family Inc. v. U.S. Citizenship & Immigration
Servs., 469 F.3d 1313, 1315 (9th Cir. 2006). The interpreta-
tion of a statute is a question of law, United States v. Cabac-
cang, 332 F.3d 622, 624-25 (9th Cir. 2003) (en banc), and
“we review de novo the BIA’s determination of questions of
law, except to the extent that deference is owed to its interpre-
tation of the governing statutes and regulations.” Garcia-
Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006).
We review a precedential decision of the BIA interpreting a
governing statute according to the principles of Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984). INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).
Under the familiar two-step Chevron framework, we first
ask “whether Congress has directly spoken to the precise
question at issue.” 467 U.S. at 842. If it has, we “must give
effect to the unambiguously expressed intent of Congress,”
regardless of the agency’s interpretation. Id. at 842-43. If, on
the other hand, the statute is “silent or ambiguous” with
regard to the issue, we proceed to step two and determine
“whether the agency’s answer is based on a permissible con-
struction of the statute.” Id. at 843 (footnote omitted). We
must defer to the agency’s interpretation if it is reasonable. Id.
at 844 (holding that when Congress has left a gap for an
agency to fill, “a court may not substitute its own construction
of a statutory provision for a reasonable interpretation made
by the administrator or agency.”).
IV
We now turn to the statutory provision at issue. In order to
address the age-out problem, Congress passed the CSPA in
16806 DE OSORIO v. MAYORKAS
2002. See Child Status Protection Act, Pub. L. No. 107-208,
116 Stat. 927 (2002). The CSPA, in relevant part, amended
the INA to provide 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 determination of whether an alien satisfies
the age requirement . . . 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
residence within one year of such availabil-
ity; reduced by
(B) the number of days in the period dur-
ing 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 . . . for classification of an
alien child under subsection (a)(2)(A) of
this section; or
DE OSORIO v. MAYORKAS 16807
(B) with respect to an alien child who is a
derivative beneficiary under subsection (d)
of this section, a petition filed . . . for classi-
fication of the alien’s parent under subsec-
tion (a), (b), or (c) of this section.
(3) Retention of priority date
If the age of an alien is determined under paragraph
(a) 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.
8 U.S.C. § 1153.
[1] The parties do not dispute the meaning of paragraphs
(1) and (2) above. Paragraph (1) provides that, if an alien
applies for a visa within a year of one becoming available
(i.e., within one year of the priority date on a relevant petition
becoming current), the alien’s age for purposes of determin-
ing whether she is a “child” is determined by her age on the
date the visa became available minus the number of days that
the petition was “pending”—that is, the number of days
between the filing of the petition with CIS and its approval by
CIS. See Ochoa-Amaya v. Gonzales, 479 F.3d 989, 993 (9th
Cir. 2007). In this way, paragraph (1) ensures that an alien
does not lose “child” status solely because of administrative
delays in the processing of an otherwise valid petition. How-
ever, it does not address the much longer oversubscription
delays that are typical between the approval of a petition and
the availability of a visa.2
2
For example, imagine that a U.S. citizen filed a petition for an alien rel-
ative on September 1, 2002, that was approved by CIS on September 15,
2002, and the beneficiary’s priority date became current on September 15,
16808 DE OSORIO v. MAYORKAS
Paragraph (2), which is referenced at paragraph (1)(B),
simply defines the universe of petitions to which the age-
reduction formula in paragraph (1) applies. Paragraph (2)(A)
refers to F2A petitions for children of LPRs. See 8 U.S.C.
§ 1153(a)(2)(A). Paragraph (2)(B) refers to any family prefer-
ence petition for which a child is a derivative beneficiary.3 See
id. § 1153(d).
[2] At issue is the meaning of paragraph (3), which pro-
vides relief to aliens who are 21 or over even after the age-
reduction formula in paragraph (1) is applied. In such a case,
“the alien’s petition shall automatically be converted to the
appropriate category and the alien shall retain the original pri-
ority date issued upon receipt of the original petition.” Id.
§ 1153(h)(3). Importantly, this is different from the relief
offered by paragraph (1). Paragraph (1) allows an aged-out
alien to remain eligible for a visa as a “child” under the origi-
nal petition. Paragraph (3), in contrast, does not allow the
aged-out alien to retain child status. Instead, it allows him to
move into a different category as an adult without having to
file a new petition and get a new priority date. The aged-out
alien may still wait in line in the new category, but because
he is able to retain an older priority date, his wait time is
reduced. The parties dispute whether aged-out derivative ben-
eficiaries of F3 and F4 petitions are entitled to this relief. To
answer this question, we undertake our Chevron analysis.
2010. The age of a beneficiary or derivative beneficiary for purposes of
determining whether she was still a “child” would be determined by sub-
tracting 15 days from her age on September 15, 2010. No adjustment to
her age would be made to compensate for the eight years between Septem-
ber 15, 2002, and September 15, 2010. See Ochoa-Amaya, 479 F.3d at 993
(rejecting argument that a petition is “pending” for purposes of
§ 1153(h)(1)(B) from the date it is filed until the date a visa becomes
available).
3
It also refers to any employment-based or diversity-based petition for
which a child is a derivative beneficiary. See 8 U.S.C. § 1153(b), (c).
Those petitions are not relevant to this appeal.
DE OSORIO v. MAYORKAS 16809
A
Our first charge under Chevron is to ascertain, by “employ-
ing traditional tools of statutory construction,” whether “Con-
gress had an intention on the precise question at issue.” 467
U.S. at 843 n.9. We begin, as always, with an examination of
the statute’s plain language. See Nw. Env. Def. Ctr. v. Brown,
640 F.3d 1063, 1070 (9th Cir. 2011).
1
First of all, we reject any contention that the word “peti-
tion” in paragraph (3) is ambiguous because it is not defined
by express reference to paragraph (2), as it is in paragraph (1).
As we explain, express reference to paragraph (2) is unneces-
sary.
[3] Paragraph (3)’s initial clause makes it contingent upon
the operation of paragraph (1). See 8 U.S.C. § 1153(h)(3) (“If
the age of an alien is determined under paragraph (1) to be 21
years of age or older . . .”). Thus, paragraph (3) is triggered
only if one has determined by doing the age-reduction calcu-
lation in paragraph (1) that an alien is 21 or over.4 If it is trig-
gered, “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.” Id.
Because “the alien” is necessarily one to whom paragraph (1)
was applied, “the alien’s petition” naturally refers to the “ap-
plicable petition” that was considered in paragraph (1)(B). See
id. § 1153(h)(1)(B). After all, if the alien had a petition that
4
The facts of Cuellar de Osorio’s case illustrate how paragraph (1)’s
calculation works with respect to paragraph (3). Cuellar de Osorio’s origi-
nal F3 petition was filed on May 5, 1998, and approved on June 30, 1998.
Thus, it was “pending” for 56 days. Her son, who was a derivative of the
F3 petition, was born on July 18, 1984. When the petition’s priority date
became current on November 1, 2005, he was 21 years and 106 days old.
Subtracting the 56 days of “pending” time, his age is 21 years, 50 days.
Therefore, he is 21 or over, and paragraph (3) is triggered.
16810 DE OSORIO v. MAYORKAS
was not an “applicable petition” under paragraph (1), the alien
would never undergo the paragraph (1) calculation, and there-
fore, would never be considered at paragraph (3).
An “applicable petition” in paragraph (1) is explicitly
defined by reference to paragraph (2). See § 1153(h)(1)(B)
(referring to “the applicable petition described in paragraph
(2)”). As explained previously, paragraph (2) describes F2A
petitions for a child and any family preference petition for
which a child is a derivative beneficiary. Therefore, paragraph
(3) says that any of these petitions “shall automatically be
converted to the appropriate category and the alien shall retain
the original priority date issued upon receipt of the original
petition.” Id. § 1153(h)(3). Despite this plain language, how-
ever, we find that paragraph (3)’s meaning is ambiguous for
another reason.
2
The plain language of a statute does not control if “its
application leads to unreasonable or impracticable results.”
Valladolid v. Pac. Operations Offshore, LLP, 604 F.3d 1126,
1133 (9th Cir. 2010) (internal quotation and citation omitted);
see also Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 816
(9th Cir. 2004). Despite paragraph (3)’s plain language, it
does not practicably apply to certain of the petitions described
in paragraph (2).
The phrase “the alien’s petition shall automatically be con-
verted to the appropriate category,” 8 U.S.C. § 1153(h)(3),
suggests that the same petition, filed by the same petitioner
for the same beneficiary, converts to a new category. This
understanding comports with the ordinary meaning of the
word “automatic,” which implies that the conversion should
happen without any outside input, such as a new petitioner. It
also comports with current regulatory practice allowing “auto-
matic conversion” of a petition between certain family prefer-
ence categories upon the beneficiary’s change in marital
DE OSORIO v. MAYORKAS 16811
status or attainment of the age of 21, or upon the petitioner’s
naturalization. See 8 C.F.R. § 204.2(i). In each of these situa-
tions, it is the qualifying relationship that changes, not the
identity of petitioner or the beneficiary. Since there is no
change in the parties to the petition, the same petition can
simply be reclassified “automatically.”
Not so, however, for F3 and F4 petitions when a derivative
ages out. In such a case, there is no “appropriate category” for
the petition to “automatically be converted to” vis-a-vis the
same petitioner. For example, in the case of an F3 petition for
married sons and daughters of U.S. citizens for which a child
is a derivative beneficiary, the original petitioner is the child’s
U.S. citizen grandparent. After the derivative turns 21, there
is no qualifying relationship between the petitioner and the
derivative, because a U.S. citizen cannot petition on behalf of
an adult grandson or granddaughter. See 8 U.S.C. § 1153(a).
The same difficulty arises in the case of an F4 petition for a
U.S. citizen’s sibling for which a child is a derivative benefi-
ciary. The original petitioner is the child’s U.S. citizen aunt
or uncle. After the derivative turns 21, there is no qualifying
relationship between the petitioner and the derivative, because
a U.S. citizen cannot petition on behalf of a niece or nephew.
See id.
Appellants contend that there is an “appropriate category”
for an aged-out F3 or F4 derivative to convert into because,
at the moment paragraph (3) operates, the derivative can
establish a qualifying F2B relationship as the adult son or
daughter of an LPR. Paragraph (3) operates when a visa has
become available for the derivative’s parent as the primary
beneficiary of the F3 or F4 petition, the derivative has applied
for a visa within one year, and the derivative has been deter-
mined to be 21 or older under paragraph (1).5 See id.
5
To the extent that the government argues that paragraph (3) operates
at the moment the derivative turns 21, we disagree. Paragraph (3) cannot
possibly operate at the moment the derivative turns 21, because it is not
even triggered until the derivative has already been determined to be at
least 21 even after subtracting pending petition time as required by para-
graph (1). See 8 U.S.C. § 1153(h).
16812 DE OSORIO v. MAYORKAS
§ 1153(h)(1). At that point, the derivative’s parent may have
obtained LPR status under the original F3 or F4 petition, in
which case the aged-out derivative qualifies for the F2B cate-
gory. But while F2B may well be an “appropriate category”
for the aged-out derivative to convert to, this conversion can-
not “automatically” take place, given that a new petitioner—
the LPR parent—is required. Appellants essentially ask us to
ignore the word “automatically” in paragraph (3). We decline
to do so. See Miller v. United States, 363 F.3d 999, 1008 (9th
Cir. 2004) (“Courts must aspire to give meaning to every
word of a legislative enactment.”).
[4] In short, despite the fact that the word “petition” in
paragraph (3) can be read to encompass all petitions in para-
graph (2), including F3 and F4 petitions, automatic conver-
sion does not practicably apply to F3 and F4 petitions.
Therefore, we find paragraph (3)’s meaning to be unclear.
3
Appellants argue that, regardless of whether automatic con-
version applies, paragraph (3) unambiguously entitles an
aged-out derivative beneficiary of an F3 or F4 petition to pri-
ority date retention. We disagree because we find that Con-
gress did not speak clearly as to whether priority date
retention can be applied independently of automatic conver-
sion.
Again turning to the text of paragraph (3), if an alien is
determined to be 21 or older, “the alien’s petition shall auto-
matically 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)(3). It is certainly
possible to read this language, which includes two grammati-
cally independent clauses, as conferring automatic conversion
and priority date retention as independent benefits. However,
it is also entirely possible to interpret it as conferring those
two benefits jointly. See Li v. Renaud, ___ F.3d ___, 2011
DE OSORIO v. MAYORKAS 16813
WL 2567037 at *7 (2d Cir. 2011) (“Congress could have, but
did not, provide beneficiaries the option to select either con-
version or retention or both.”). Automatic conversion and pri-
ority date retention commonly (though not always) happen
together in the family-sponsored immigration scheme. See 8
C.F.R. § 204.2(i) (providing priority date retention with auto-
matic conversion). But cf. id. § 204.2(a)(4) (granting priority
date retention without automatic conversion). Furthermore,
elsewhere in the CSPA, Congress much more explicitly indi-
cated when it intended automatic conversion and priority date
retention to operate independently. See CSPA § 6, codified at
8 U.S.C. § 1154(k)(3) (“Regardless of whether a petition is
converted under this subsection or not, if an [alien] described
in this subsection was assigned a priority date with respect to
such petition . . . he or she may maintain that priority date.”).
Because paragraph (3) can be interpreted both ways, it is
ambiguous. When a statutory provision is ambiguous, we may
“look to its legislative history for evidence of congressional
intent,” United States v. Daas, 198 F.3d 1167, 1174 (9th Cir.
1999), but in this case the legislative history is inconclusive.
There is no specific discussion of particular age-out protec-
tions for derivative beneficiaries of family preference peti-
tions. See, e.g., H.R. Rep. No. 107-807, at 49-50 (2003).
Because we find no clearly expressed congressional intent on
the precise question whether derivative beneficiaries of F3
and F4 petitions are entitled to automatic conversion or prior-
ity date retention, we must proceed to step two of the Chevron
analysis.
B
At step two of Chevron we ask whether the administering
agency’s interpretation of the statutory provision at issue is
“permissible.” See 467 U.S. at 843. The step two test “is satis-
fied if the agency’s interpretation reflects a plausible con-
struction of the statute’s plain language and does not
otherwise conflict with Congress’ expressed intent.” Or.
16814 DE OSORIO v. MAYORKAS
Trollers Ass’n v. Gutierrez, 452 F.3d 1104, 1116 (9th Cir.
2006) (internal quotation omitted). “We will not overturn an
agency decision at the second step unless it is arbitrary, capri-
cious, or manifestly contrary to the statute.” Ramos-Lopez v.
Holder, 563 F.3d 855, 859 (9th Cir. 2009) (internal quotation
omitted).
[5] The relevant agency interpretation of § 1153(h)(3) was
articulated by the BIA in Matter of Wang, 25 I. & N. Dec. 28.
In Matter of Wang, the BIA found that, under the existing reg-
ulatory scheme, “automatic conversion” happens only when
“neither the beneficiary nor an immigration officer need take
any action to effect the conversion to the new preference cate-
gory.” Id. at 35. Thus, the BIA concluded that a petition could
only “automatically be converted” under § 1153(h)(3) when it
could transfer from one visa category to another such that “the
beneficiary of that petition then falls within a new classifica-
tion without the need to file a new visa petition.” Id. The BIA
also concluded that priority date retention could not operate
separately from automatic conversion, rejecting the conten-
tion that “all children who were derivative beneficiaries
would gain favorable priority date status, even with regard to
a new visa petition that is wholly independent of the original
petition and that may be filed without any time limitation in
the future.” Id. at 36; see also id. at 39 (finding no clear legis-
lative intent “to create an open-ended grandfathering of prior-
ity dates that allow[s] derivative beneficiaries to retain an
earlier priority date set in the context of a different relation-
ship, to be used at any time”).
[6] The effect of Matter of Wang is to limit § 1153(h)(3)’s
applicability to only one petition type: F2A. This is the only
petition with an “appropriate category” to which an aged-out
primary or derivative beneficiary may “automatically be con-
verted” without a change in petitioner. For example, an aged-
out primary beneficiary of an F2A petition filed by his LPR
parent can become the beneficiary of an F2B petition filed by
that same parent. The same is true for an aged-out derivative
DE OSORIO v. MAYORKAS 16815
beneficiary of an F2A petition filed by his LPR parent for a
spouse.6 But an aged-out derivative beneficiary of any other
family preference petition category, such as F3 or F4, cannot
qualify for a new category without a new petitioner.
[7] We find the BIA’s interpretation of § 1153(h)(3) to be
a “permissible” one. See Chevron, 467 U.S. at 843. It “reflects
a plausible construction of the statute’s plain language,” Or.
Trollers Ass’n, 452 F.3d at 1116 (internal quotation omitted),
because it accords with the ordinary usage of the word “auto-
matic” to describe something that occurs without requiring
additional input, such as a different petitioner. We also note
that, contrary to Appellants’ assertion, the BIA’s construction
does not render § 1153(h)(3)’s reference to § 1153(d) mean-
ingless. See 8 U.S.C. § 1153(h)(3) (referring to “subsections
(a)(2)(A) and (d)” (emphasis added)). The reference to sub-
section (d), which entitles an alien beneficiary’s child to the
same status as the parent, has a clear function under the BIA’s
interpretation because it covers aged-out derivative beneficia-
ries of F2A petitions. Without this reference, only aged-out
primary beneficiaries of F2A petitions would be entitled to
relief, because subsection (a)(2)(A) refers only to the spouses
or children of LPRS, not the children of alien beneficiaries.
Appellants also argue that the BIA’s interpretation is unrea-
sonable because it effects no significant change from the sta-
tus quo. It is true that prior to CSPA’s passage, an aged-out
derivative beneficiary of an F2A petition was already entitled
to priority date retention when an F2B petition was filed on
his or her behalf. See 8 C.F.R. § 204.2(a)(4) (“[I]f the [deriva-
tive beneficiary of an F2A petition] reaches the age of twenty-
one prior to the issuance of a visa to the principal alien parent,
a separate petition will be required. In such a case, the origi-
6
Note that a child can be either a primary or a derivative beneficiary of
an F2A petition. Many families choose to save filing fees by including a
child as a derivative on an F2A petition for a spouse rather than as a pri-
mary beneficiary on a separate F2A petition.
16816 DE OSORIO v. MAYORKAS
nal priority date will be retained if the subsequent petition is
filed by the same petitioner.” (emphasis added)). But this reg-
ulation does not provide for automatic conversion, and it does
not address aged-out primary beneficiaries of F2A petitions.
Therefore, § 1153(h)(3) as interpreted by the BIA is not with-
out effect.
Nor do we find that this interpretation “conflict[s] with
Congress’ expressed intent.” Or. Trollers Ass’n, 452 F.3d at
1116. It is clear that Congress wanted the CSPA to provide
some measure of age-out relief to all derivative beneficiaries
of family preference petitions. See, e.g., H.R. Rep. No. 107-
807 at 49 (referring to the CSPA as “extend[ing] age-out pro-
tection” to the children of family-sponsored immigrants).
However, it is undisputed that all derivative beneficiaries are
protected from age-out due to administrative delays under
§ 1153(h)(1). In fact, this was the only form of relief that
House sponsors referred to when they introduced the provi-
sions at issue, which the Senate had added. See, e.g., 148
Cong. Rec. H4990 (daily ed. July 22, 2002) (statement of
Rep. Sensenbrenner) (noting that the Senate’s amendments
addressed “situations where alien children lose immigration
benefits by ‘aging out’ as a result of INS processing delays.”)
(emphasis added).
As the BIA recognized, protection from administrative
delays was highly significant to Congress. See Matter of
Wang, 25 I. & N. Dec. at 36-37 (noting that “the drive for the
legislation was the then-extensive administrative delays in the
processing of visa petitions”). While the Senate bill’s sponsor
expressed an intent to address oversubscription delays as well,
she focused only on children of LPRs, who could fall into the
F2A category. See 147 Cong. Rec. S3275-76 (daily ed. Apr.
2, 2001) (statement of Sen. Feinstein). Given that
§ 1153(h)(1) entitles all derivative children to relief from
administrative delays, we cannot say that the BIA’s interpre-
tation of § 1153(h)(3) is contrary to congressional intent sim-
DE OSORIO v. MAYORKAS 16817
ply because it affords additional relief only to children in the
F2A category.
[8] Finally, we point out that limiting § 1153(h)(3)’s appli-
cability to F2A petitions is “a reasonable policy choice for the
agency to make.” Chevron, 467 U.S. at 845. Applying
§ 1153(h)(3) to all derivative beneficiaries would result in a
fundamental change to the family preference scheme, because
it would effectively treat an aged-out derivative beneficiary of
an F3 or F4 petition as if he or she had been independently
entitled to his or her own priority date based on his or her sta-
tus as the grandchild, niece, or nephew of a citizen. However,
those relationships have never been recognized as qualifying
ones under U.S. immigration law. This same problem does
not arise for a derivative of an F2A petition because he or she
can be independently eligible for a priority date as the primary
beneficiary of an F2A petition. It is therefore not arbitrary or
otherwise unreasonable for the BIA’s interpretation of
§ 1153(h)(3) to draw the line where it does. This interpreta-
tion warrants our deference under Chevron.
V
[9] We hold that § 1153(h)(3) is ambiguous as to whether
derivative beneficiaries of F3 and F4 family preference peti-
tions are entitled to automatic conversion or priority date
retention. Because we also hold that the BIA’s interpretation
of § 1153(h)(3) is reasonable, we defer to it under Chevron.
Under that interpretation, automatic conversion and priority
date retention do not apply to F3 and F4 petitions. Therefore,
Appellants are not entitled to relief. The judgment of the dis-
trict court is AFFIRMED.