Rosalina Cuellar De Osorio v. Alejandro Mayorkas

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.



11811

11812 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

June 19, 2012—Pasadena, California

Filed September 26, 2012

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

M. Margaret McKeown, Kim McLane Wardlaw,

William A. Fletcher, Raymond C. Fisher, Ronald M. Gould,

Richard A. Paez, Johnnie B. Rawlinson, Milan D. Smith, Jr.,

and Mary H. Murguia, Circuit Judges.

DE OSORIO v. MAYORKAS 11813

Opinion by Judge Murguia;

Dissent by Judge M. Smith

11814 DE OSORIO v. MAYORKAS

COUNSEL

Nancy Ellen Miller (argued), Reeves & Associates, APLC,

Pasadena, California; Amy Prokop and Carl Shusterman

DE OSORIO v. MAYORKAS 11815

(argued), Law Offices of Carl M. Shusterman, Los Angeles,

California, for plaintiff-appellant Rosalina Cuellar de Osorio.

Amy Prokop and Carl Shusterman, Law Offices of Carl M.

Shusterman, Los Angeles, California, for plaintiffs-appellants

Elizabeth Magpantay, Evelyn Y. Santos, Maria Eloisa Liwag,

Norma Uy, and Ruth Uy.

Anthony James Favero and Robert L. Reeves, Reeves &

Associates, APLC, Pasadena, California for plaintiffs-

appellants Teresita G. Costelo and Lorenzo P. Ong.

Elizabeth J. Stevens, Gisela Ann Westwater (argued), and

Aaron D. Nelson, United States Department of Justice, Office

of Immigration Litigation, Washington, D.C., for the

defendants-appellees.

Mary Kenney, American Immigration Council, Washington,

D.C., for amici curiae American Immigration Council and

American Immigration Lawyers Association.

Nickolas A. Kacprowski, Kirkland & Ellis LLP, San Fran-

cisco, California, for amici curiae American Immigration

Council and National Immigrant Justice Center.

Deborah Susan Smith, Law Office of Deborah S. Smith,

Helena, Montana, for amici curiae American Immigration

Lawyers Association and Catholic Legal Immigration Net-

work, Inc.

Thomas Kirk Ragland, Benach Ragland LLP, Washington,

D.C., for amicus curiae Active Dreams LLC.

11816 DE OSORIO v. MAYORKAS

OPINION

MURGUIA, Circuit Judge, with whom PREGERSON,

WARDLAW, FISHER, GOULD and PAEZ, Circuit Judges,

join in full:

Appellants became lawful permanent residents and immi-

grated to the United States. However, due to visa quotas and

a serious backlog, by the time Appellants received their

family-sponsored visas, their children were no longer eligible

to accompany them as recipients of derivative visas, which

are available only to children under the age of twenty-one.

Their children had “aged out” of eligibility.

The question before us is whether these children are enti-

tled to relief under the Child Status Protection Act (“CSPA”),

8 U.S.C. § 1153(h). The CSPA provides, among other things,

that when certain aged-out aliens apply for visas under a new

category for adults, they may retain the filing date of the visa

petition for which they were listed as derivative beneficiaries

when they were children. This ensures that visas are available

quickly, rather than requiring the now-adult aliens to wait

many more years in a new visa line.

The United States Citizen and Immigration Services

(“USCIS”) denied Appellants’ requests for priority date reten-

tion under the CSPA. USCIS relied on the Board of Immigra-

tion Appeals’ (“BIA”) decision in Matter of Wang, 25 I. & N.

Dec. 28 (BIA 2009) that the CSPA does not apply to all deriv-

ative beneficiaries. The district court, deferring to the BIA’s

interpretation, granted summary judgment to USCIS in two

separate cases. We reverse.

We conclude that the plain language of the CSPA unam-

biguously grants automatic conversion and priority date reten-

tion to aged-out derivative beneficiaries. The BIA’s

interpretation of the statute conflicts with the plain language

of the CSPA, and it is not entitled to deference.

DE OSORIO v. MAYORKAS 11817

I. Family-based immigration overview

We begin with an overview of family-based immigration.

Family-sponsored immigration allows U.S. citizens and law-

ful permanent residents (“LPRs”) to file visa petitions on

behalf of certain qualifying alien relatives. The Immigration

and Nationality Act (“INA”) limits the total number of

family-sponsored immigrant visas issued each year to

480,000, and directs that natives of any single foreign state

may not receive more than seven percent of these visas. 8

U.S.C. §§ 1151(c), 1152(a)(2). The INA also establishes pref-

erence categories based on the relationship between citizens

or LPRs and their alien relatives, and limits the number of

family-sponsored immigrant visas that can be granted to

members of each preference category. Id. § 1153(a). Unlike

other types of family-sponsored visa applicants, children,

spouses, and parents (i.e. “immediate relatives”) of U.S. citi-

zens are not subject to the annual visa limits. Id.

§ 1151(b)(2)(A)(i).

For non-immediate relatives of citizens, the INA estab-

lishes the following family visa preference categories:

F1: Unmarried sons and daughters of U.S. citizens

F2A: Spouses and children of LPRs

F2B: Unmarried sons and daughters of LPRs

F3: Married sons and married daughters of U.S. citi-

zens

F4: Brothers and sisters of U.S. citizens

Id. § 1153(a).

After a U.S. citizen or LPR files a visa petition on behalf

of a relative, USCIS determines if a qualifying relationship

11818 DE OSORIO v. MAYORKAS

exists between the citizen or LPR petitioner and the alien rela-

tive who is the primary beneficiary. If so, USCIS puts the

beneficiary “in line” in the appropriate visa category. The

beneficiary’s place in line is determined by the date the peti-

tion is filed, which is known as the “priority date.” Due to

statutory limits for each visa category and a substantial back-

log, it may be many years before a petition’s priority date

becomes “current,” meaning that a visa is available for the

beneficiary named in the petition. See, e.g., U.S. Dep’t of

State, Visa Bulletin, August 2012, available at http://

www.travel.state.gov/visa/bulletin/bulletin_5749.html (show-

ing delays for members of all visa categories, including waits

of over 10 years for nationals of several countries in certain

categories).

A petition can also include the spouse or children of the

primary beneficiary. The primary beneficiary’s spouse or chil-

dren may then receive derivative visas at the same time that

the primary beneficiary receives a visa. 8 U.S.C. § 1153(d)

(“A spouse or child . . . shall . . . 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.”). The INA defines a “child” as an unmarried per-

son under the age of twenty-one. 8 U.S.C. § 1101(b)(1). The

primary beneficiary’s son or daughter can only receive a

derivative visa if he or she is under twenty-one when the par-

ent’s priority date becomes current. Often children who qual-

ify for derivative visas at the time a petition is filed on their

parent’s behalf are over the age of twenty-one by the time

their parent receives the visa, and therefore may not immi-

grate to the United States with their parent. This is referred to

as “aging out” of visa eligibility. Aging out also affects chil-

dren who are the primary beneficiaries of F2A petitions, as

they are no longer eligible for an F2A visa (for spouses and

children of LPRs) once they turn twenty-one. Because some

delays are many years long, children may age out even if they

were very young when a petition was filed on their parent’s

behalf.

DE OSORIO v. MAYORKAS 11819

II. The Child Status Protection Act

In 2002, Congress passed the Child Status Protection Act

(“CSPA”). Pub. L. No. 107-208, 116 Stat. 927 (2002). This

appeal concerns a provision of the CSPA entitled “Rules for

determining whether certain aliens are children,” codified at

8 U.S.C. § 1153(h).1 Subsection (h) addresses two sources of

1

The CSPA states in relevant part:

(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 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 sub-

section (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 admit-

ted for permanent residence 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 classification 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 sub-

section (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)

11820 DE OSORIO v. MAYORKAS

delay that can cause a beneficiary to age out of child status:

(1) USCIS processing delays and (2) the wait times between

USCIS’s approval of a visa petition and when a visa becomes

available. Three parts of subsection (h) are relevant to our dis-

cussion.

The first paragraph of subsection (h) addresses the more

minor delay that occurs while USCIS processes a visa appli-

cation. 8 U.S.C. § 1153(h)(1). Subsection (h)(1) establishes

the method to determine an alien’s age “[f]or purposes of sub-

sections (a)(2)(A) and (d) [of § 1153],” which respectively

address F2A visas (for the children of LPRs), id.

§ 1153(a)(2)(A), and derivative visas (for the children of pri-

mary beneficiaries), id. § 1153(d). Subsection (h)(1) provides

that for purposes of determining if a visa applicant qualifies

as a child, the alien’s “age” is his age on the date the visa

becomes available minus “the number of days in the period

during which the applicable petition” was pending after being

filed. Id. § 1153(h)(1). Subsection (h)(1) thus ensures that an

alien does not lose “child” status due to administrative delays

in the processing of his parent’s visa petition.

Subsection (h)(2) defines the kinds of visa petitions to

which the age-reduction formula in subsection (h)(1) applies.

Id. § 1153(h)(2). Subsection (h)(2)(A) identifies F2A peti-

tions, which are for children of LPRs. Id. § 1153(h)(2)(A).

Subsection (h)(2)(B) identifies all other categories of visas for

which a child may be a derivative beneficiary (family,

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 peti-

tion.

(4) Application to self-petitions

Paragraphs (1) through (3) shall apply to self-petitioners and

derivatives of self-petitioners.

DE OSORIO v. MAYORKAS 11821

employment, and diversity-based visa petitions). Id.

§ 1153(h)(2)(B).

Subsection (h)(3), the provision at issue in this appeal,

grants alternative relief to aliens who are still determined to

be twenty-one or older after calculating their age pursuant to

the age reduction formula in subsection (h)(1). It states: “If

the age of an alien is determined under [subsection (h)(1)] to

be 21 years of age or older for the purposes of subsections

(a)(2)(A) [children of LPRs] and (d) [derivative beneficia-

ries], 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.

§ 1153(h)(3). In other words, subsection (h)(3) requires that

when aliens age out of child status for purposes of their origi-

nal petition, their applications be automatically converted to

the new appropriate category for adults. Additionally, it

enables such aliens to retain the priority date assigned to their

original petition. The effect of this older priority date is that

the beneficiary is placed at or near the front of the visa line,

and a visa would likely be available immediately or soon.

Without this automatic conversion and priority date retention,

the alien will have to go to the back of the line for the new

category, and might wait many more years for a visa.

The question presented in this appeal is whether the auto-

matic conversion and date retention benefits provided by sub-

section (h)(3) apply only to aged-out F2A petition

beneficiaries, or whether they also apply to derivative benefi-

ciaries of the other family visa categories.

III. Matter of Wang

The BIA answered this question in Matter of Wang, 25 I.

& N. Dec. 28 (2009). The BIA held that unlike subsections

(h)(1) and (h)(2), “which when read in tandem clearly define

the universe of petitions that qualify for the ‘delayed process-

ing formula,’ the language of [subsection (h)(3)] does not

11822 DE OSORIO v. MAYORKAS

expressly state which petitions qualify for automatic conver-

sion and retention of priority dates.” Id. at 33. Based on this

observation alone, the BIA found the statute ambiguous and

turned to the Department of Homeland Security’s past regula-

tory practice and the CSPA’s legislative history. Id.

The BIA noted that “the phrase ‘automatic conversion’ has

a recognized meaning” in immigration regulations. Id. at 34.

According to the BIA, the term “conversion” has consistently

meant that a visa petition converts from one visa category to

another without the need to file a new petition, and priority

date retention has always applied only to subsequent visa peti-

tions filed by the same petitioner. Id. at 34-35. The BIA

offered several examples. Under 8 C.F.R. § 204.2(i)(3), if an

LPR petitioner becomes a citizen, his adult son or daughter’s

visa petition automatically converts from an F2B petition (for

adult sons and daughters of LPRs) to an F1 petition (for adult

sons and daughters of citizens), and retains its original priority

date. In this case, the identity of the petitioner remains the

same. Additionally, 8 C.F.R. § 204.2(a)(4) allows an aged-out

derivative beneficiary of an F2A spousal petition to retain his

priority date as long as the original petitioner (his parent) sub-

mits an F2B visa petition on his behalf. Again, the petitioner

remains the same. Wang, 25 I. & N. Dec. at 35. The BIA

assumed that when Congress enacted subsection (h)(3), it

understood past usage of these regulatory terms. Id.

The BIA also surveyed the legislative history of the CSPA

and concluded that “there is no indication in the statutory lan-

guage or legislative history of the CSPA that Congress

intended to create a mechanism to avoid the natural conse-

quence of a child aging out of a visa category because of the

length of the visa line.” Id. at 38. Finding no indication that

Congress attempted to “expand on the historical application of

automatic conversion and retention of priority dates for visa

petitions,” the BIA declined “to read such an expansion into

the statute.” Id.

DE OSORIO v. MAYORKAS 11823

Under the BIA’s interpretation of subsection (h)(3), only

subsequent visa petitions that do not require a change of peti-

tioner may convert automatically to a new category and retain

the original petition’s priority date. Automatic conversion and

priority date retention would thus be only available to F2A

petition beneficiaries, including primary child beneficiaries

and derivative beneficiaries of F2A spousal petitions. This is

because these aged-out beneficiaries may become primary

beneficiaries of an F2B petition filed by the same petitioner.

IV. Factual background

Appellants’ cases illustrate the question before us. Rosalina

Cuellar de Osorio’s citizen mother filed a petition for an F3

visa (for a married daughter of a citizen) on her behalf in May

1998. Cuellar de Osorio’s son, who was then thirteen, was

listed on the petition as a derivative beneficiary. Cuellar de

Osorio’s visa was approved in June 1998, but her priority date

did not become current until November 2005. By then, her

son was twenty-one and as a result was ineligible for a deriva-

tive visa. Cuellar de Osorio became an LPR and immigrated

to the United States in August 2006. In July 2007, Cuellar de

Osorio filed an F2B petition for her son, now the adult son of

an LPR, and requested that he retain the May 1998 priority

date of her original F3 petition in which he had been named

a derivative beneficiary. USCIS did not grant priority date

retention, so Cuellar de Osorio’s son was placed in the back

of the F2B line, requiring him to wait several more years for

a visa. Cuellar de Osorio and several other similarly situated

petitioners sued USCIS. Deferring to the BIA’s decision in

Matter of Wang, under which the plaintiffs were not entitled

to automatic conversion and priority date retention, the dis-

trict court granted summary judgment to USCIS.

Teresita Costelo was the beneficiary of an F3 visa petition

filed by her citizen mother in January 1990. Costelo’s two

daughters, then aged ten and thirteen, were listed as derivative

beneficiaries. By the time Costelo received her visa in 2004,

11824 DE OSORIO v. MAYORKAS

both daughters were over twenty-one. Costelo immigrated and

became an LPR, filed F2B petitions for her daughters, and

requested retention of the 1990 priority date of the prior F3

visa petition.

Lorenzo Ong’s citizen sister filed an F4 petition on his

behalf in 1981. At the time, Ong’s daughters were ages two

and four. By the time Ong’s priority date became current in

2002, his daughters had aged out of derivative visa eligibility.

Ong became an LPR and, in March 2005, he filed F2B peti-

tions on behalf of his adult daughters and later requested

retention of the 1981 priority date. USCIS did not respond to

the priority date request. Costelo and Ong sued. The district

court certified a class and granted the Government’s motion

for summary judgment, again deferring to Matter of Wang.

V. Second and Fifth Circuit decisions

Since the BIA decided Matter of Wang, two of our sister

circuits have considered subsection (h)(3). Though the Second

and Fifth Circuits reached different conclusions as to the

scope of subsection (h)(3)’s applicability, neither found the

language of the CSPA ambiguous and therefore neither

deferred to Matter of Wang. See Khalid v. Holder, 655 F.3d

363 (5th Cir. 2011); Li v. Renaud, 654 F.3d 376 (2d Cir.

2011).

The Fifth Circuit concluded that the unambiguous language

of the CSPA extends automatic conversion and priority date

retention to both F2A beneficiaries and aged-out derivative

beneficiaries of other family-sponsored petitions. Khalid, 655

F.3d at 374-75. The Fifth Circuit held that because subsection

(h)(2) explicitly encompasses both F2A visas and all deriva-

tive visas, and subsections (h)(1), (h)(2), and (h)(3) are inter-

dependent, “the statute, as a whole, clearly expresses

Congress’ intention about the universe of petitions covered by

(h)(3),” and “there is no room for the agency to impose its

own answer to the question.” Id. at 371 (internal quotation

DE OSORIO v. MAYORKAS 11825

marks omitted). The Fifth Circuit thus declined to defer to the

BIA’s interpretation of subsection (h)(3), instead holding that

automatic conversion is available for derivative beneficiaries

of all family petitions, even when this necessitates a change

in the identity of the petitioner.

In contrast, the Second Circuit held that an aged-out deriva-

tive beneficiary of an F2B petition was not entitled to auto-

matic conversion and priority date retention when his mother

filed an F2B petition that named him as a primary beneficiary.

Li, 654 F.3d at 383. The Second Circuit concluded that the

appellant’s petition could not be automatically converted

because “the phrase conversion to an appropriate category

refers to a petition in which the category is changed, but not

the petitioner.” Id. at 384. According to the Second Circuit, a

change in the petitioner forecloses the possibility of automatic

conversion.

VI. Standard of Review

We review de novo a district court’s grant of summary

judgment. Herrera v. U.S. Citizenship & Immigration Servs.,

571 F.3d 881, 885 (9th Cir. 2009). We review the BIA’s pre-

cedential decision interpreting a governing statute according

to the principles of Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). INS v. Aguirre-

Aguirre, 526 U.S. 415, 424 (1999). Pursuant to the Chevron

two-step analysis, we first ask if the statute is unambiguous

as to the question at issue. Chevron, 467 U.S. at 842-43. If it

is, that is the end of our inquiry. Id. Only if the statute is

ambiguous do we proceed to step two and ask “whether the

agency’s answer is based on a permissible construction of the

statute.” Id. at 843.

VII. Discussion

We begin by determining whether the CSPA is unambigu-

ous as to whether the priority date retention and automatic

11826 DE OSORIO v. MAYORKAS

conversion benefits in subsection (h)(3) extend to aged-out

derivative beneficiaries of all family visa petitions. To deter-

mine if Congress has spoken unambiguously, we begin with

the plain language of the statute itself. N. Cal. River Watch v.

Wilcox, 633 F.3d 766, 772-73 (9th Cir. 2010).

[1] Subsection (h)(3) states: “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 orig-

inal petition.” 8 U.S.C. § 1153(h)(3).

[2] The Government argues that the language of subsection

(h)(3) is ambiguous because, as the BIA held, it does not

specify the petitions that qualify for automatic conversion and

retention of priority dates. See Wang, 25 I. & N. Dec. at 33

(subsection (h)(3) “does not expressly state which petitions

qualify for automatic conversion and retention of priority

dates”). The Government is correct that subsection (h)(3)

itself does not identify the kinds of visa petitions to which it

applies, through either its own terms or by explicit reference

to another definitional section. In contrast, subsection (h)(1),

which establishes the age-reduction formula, states that it

applies to the categories of visas named in subsection (h)(2).

8 U.S.C. § 1153(h)(1). In turn, subsection (h)(2) identifies

both F2A beneficiaries (children of LPRs) and child deriva-

tive beneficiaries of all other visa categories. Id. § 1153(h)(2).

[3] However, we do not assess subsection (h)(3) in a vac-

uum, but rather consider the text in its statutory context. FDA

v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132

(2000). The effect of subsection (h)(3) is explicitly contingent

upon the operation of subsection (h)(1). The first words of

subsection (h)(3) read “[i]f the age of an alien is determined

under [subsection (h)(1)] to be 21 years of age or older,” then

the alien’s petition will be automatically converted to the

DE OSORIO v. MAYORKAS 11827

appropriate category and he will retain the original priority

date. 8 U.S.C. § 1153(h)(3). By subsection (h)(3)’s own

terms, then, an alien is entitled to automatic conversion and

priority date retention under subsection (h)(3) only if he is

determined to be over twenty-one after applying the reduction

calculation in subsection (h)(1). Id.; see also Khalid, 655 F.3d

at 370 (“The benefits of automatic conversion and priority

date retention are explicitly conditioned on a particular out-

come from the formula in (h)(1) . . . .”).

[4] Subsection (h)(3) thus cannot function independently;

it is triggered only when an application of subsection (h)(1)’s

subtraction formula determines that the alien is over twenty-

one. In turn, subsection (h)(1) explicitly applies to the visas

described in subsection (h)(2), which include both F2A visas

and derivatives of the other visa categories. Therefore, both

aged-out F2A beneficiaries and aged-out derivative visa bene-

ficiaries may automatically convert to a new appropriate cate-

gory (if one is available), and the visa applicants may retain

the priority date of the original petitions for which they were

named beneficiaries. The plain language of the statute thus

conclusively resolves the question before us.

Our interpretation is further bolstered by Congress’s use of

the identical phrase “for [the] purposes of subsections

(a)(2)(A) and (d)” in both subsections (h)(1) and (h)(3). This

phrase refers to both F2A petitions for children (established

by 8 U.S.C. § 1153(a)(2)(A)) and derivative visas for the chil-

dren of primary beneficiaries of all visa categories (estab-

lished by 8 U.S.C. § 1153(d)). It is undisputed that subsection

(h)(1) applies to all derivative beneficiaries, and to accord a

different meaning to the phrase as used in subsection (h)(3)

violates the “presumption that a given term is used to mean

the same thing throughout a statute.” Brown v. Gardner, 513

U.S. 115, 118 (1994). We therefore read Congress’s repeated

references to “subsections (a)(2)(A) and (d)” as expressions of

its intent to extend automatic conversion and priority date

retention to all family-sponsored derivative beneficiaries.

11828 DE OSORIO v. MAYORKAS

The existence of a circuit split does not itself establish

ambiguity in the text of the CSPA. See, e.g., Roberts v. Sea-

Land Servs., Inc., 132 S. Ct. 1350 (2012) (holding that

§ 906(c) of the Longshore and Harbor Workers’ Compensa-

tion Act is unambiguous notwithstanding disagreement

between the Fifth, Ninth, and Eleventh Circuits about its

meaning); Mohamad v. Palestinian Auth., 132 S. Ct. 1702

(2012) (holding that the term “individual” as used in the Tor-

ture Victim Protection Act unambiguously encompasses only

natural persons despite disagreement among several Circuits);

see also Reno v. Koray, 515 U.S. 50, 64-65 (1995) (“A statute

is not ‘ambiguous for purposes of lenity merely because’

there is ‘a division of judicial authority’ over its proper con-

struction.” (quoting Moskal v. United States, 498 U.S. 103,

108 (1990)). Like the Fifth Circuit, we recognize that the Sec-

ond Circuit concluded that a petition cannot be automatically

converted where a change in petitioner is required, and we

respectfully disagree. See Khalid, 655 F.3d at 373 (citing Li,

654 F.3d at 383). The Second Circuit’s decision not to con-

sider the interrelatedness of sections (h)(1), (h)(2) and (h)(3)

does not undermine our conclusion that the statute, read as a

whole, unambiguously answers the question before us.

The Government also contends the CSPA becomes ambig-

uous when its terms are applied to certain derivative benefi-

ciaries. According to the Government, automatic conversion

and priority date retention cannot be practicably applied to F3

and F4 derivative beneficiaries because, for a category con-

version to be automatic, it must involve the same petition and

the same petitioner. Under this definition, automatic conver-

sion would not be possible for aged-out derivative beneficia-

ries of F3 and F4 petitions because there is no qualifying

relationship between the original visa petitioner and the aged-

out beneficiary.

For an aged-out derivative beneficiary of an F3 or F4 peti-

tion, a subsequent petition will require a new petitioner. In the

case of an F3 petition, the derivative beneficiary’s adult par-

DE OSORIO v. MAYORKAS 11829

ent is the primary beneficiary, and the derivative beneficiary’s

U.S. citizen grandparent is the petitioner. Once the derivative

beneficiary turns twenty-one, he has no qualifying relation-

ship with the original petitioner because a U.S. citizen cannot

petition on behalf of his adult grandchild. For an F4 petition,

the petitioner is a U.S. citizen, the primary beneficiary is the

brother or sister of the citizen, and the derivative beneficiary

is the child of the primary beneficiary and the niece or

nephew of the petitioner. After the derivative beneficiary

turns twenty-one, there is no qualifying relationship between

a citizen uncle and his adult nephew. When the parents of

aged-out derivative beneficiaries of F3 or F4 petitioners

receive their visas and attain LPR status, they can file F2B

petitions naming their now-adult sons and daughters as pri-

mary beneficiaries. In these F2B petitions, the identity of the

petitioner changes from the beneficiary’s grandparent or aunt

or uncle to his or her parent.2

[5] The plain language of a statute controls except when

“its application leads to unreasonable or impracticable

results.” Valladolid v. Pac. Operations Offshore, LLP, 604

F.3d 1126, 1133 (9th Cir. 2010) (internal quotation marks

omitted). The language of the CSPA contains no indication

that Congress intended the identity of the petitioner to be rele-

2

For example, U.S. citizen Adele files an F3 petition on behalf of her

adult son Aron, and includes Aron’s daughter Naira as a derivative benefi-

ciary. By the time Aron receives a visa, Naira is over twenty-one. Adele

can no longer petition on Naira’s behalf, as there is no qualifying relation-

ship between a grandmother and her adult granddaughter. Once Aron

becomes an LPR, Aron may file an F2B petition for his daughter Naira.

Similarly, U.S. citizen Adele files an F4 petition for her sister Kristen,

and includes Kristen’s daughter Sandy as a derivative beneficiary. If

Sandy is over twenty-one when Kristen receives her visa, Adele cannot

petition for Sandy, because Adele cannot petition for her adult niece. Kris-

ten may file an F2B petition for her daughter Sandy.

The question here is whether the original F3 or F4 petition should be

automatically converted to an F2B petition, and if the F2B petition retains

the priority date of the F3 or F4 petition.

11830 DE OSORIO v. MAYORKAS

vant. We do not find the fact that an automatically-converted

visa petition may entail a new petitioner to be the kind of

“rare and exceptional circumstance[ ]” that renders the plain

meaning of a statute impracticable. Demarest v. Manspeaker,

498 U.S. 184, 190 (1991) (“When we find the terms of a stat-

ute unambiguous, judicial inquiry is complete except in rare

and exceptional circumstances.”). Plainly, a change in policy

announced by the statute’s plain language cannot be impracti-

cable just because it is a change or because it does not specify

how exactly that change is to be implemented. Id. A statute

that requires an agency to change its existing practices does

not necessarily “lead to absurd or impracticable conse-

quences.” Seattle-First Nat’l Bank v. Conaway, 98 F.3d 1195,

1197 (9th Cir. 1996) (internal quotation marks omitted). We

have no doubt that USCIS can develop a process for the F3

and F4 petitions of aged-out derivative beneficiaries to be

automatically converted to F2B petitions, with new petitioners

and new beneficiaries. The plain meaning of the CSPA con-

trols.

In fact, the CSPA drafters seem to have contemplated that

automatic conversion could require more than just a change

in visa category. Subsection (h)(3) states that an alien’s peti-

tion is automatically converted and retains the date of the

“original petition.” 8 U.S.C. § 1153(h)(3). This reference to

an “original petition” suggests the possibility of a new peti-

tion, obtained either by editing the original petition or “auto-

matically” requesting a new petition that identifies a new

petitioner and primary beneficiary.3

3

The “original petition” clause also contradicts the dissent’s assertion

that § 1153(h)(3) is ambiguous because an F2B petition for an aged-out F3

or F4 derivative beneficiary could entail a new petition and petitioner. Dis-

sent at 11837-38. The CSPA provides that a petition is to be automatically

converted and is to “retain the original priority date issued upon receipt of

the original petition.” 8 U.S.C. § 1153(h)(3). Therefore, notwithstanding

the use of the word “conversion” in other parts of the INA, the CSPA

expressly recognizes the possibility of automatic conversion of a subse-

quent petition. A new petition is not a “problem” in the plain meaning of

the statute that renders the language ambiguous. See Dissent at 11839.

DE OSORIO v. MAYORKAS 11831

Any alleged impracticability is further undermined by the

reality that when an F2A petition is converted to an F2B peti-

tion for an aged-out beneficiary — the kind of change to

which all parties agree subsection (h)(3) applies — USCIS

must take some action to effectuate the change. And where a

derivative beneficiary of an F2A petition ages out and

requires a new F2B petition naming him as the primary bene-

ficiary, the agency must change both the visa category and the

identity of the primary beneficiary. These changes, which

USCIS is apparently capable of handling, do not seem signifi-

cantly less onerous or complicated than a visa conversion

which entails a new petitioner.

[6] We are also not convinced that any delay between the

date a visa becomes available to the parent of an aged-out

derivative beneficiary and the time when the parent obtains

LPR status and can file an F2B petition renders automatic

conversion impracticable. Until the parent of the aged-out son

or daughter becomes an LPR, there is no category to which

a petition for the son or daughter can immediately convert.4

It is also true that if the parent’s visa is ultimately denied,

there will be no category to which his aged-out son or daugh-

ter can convert. The lag time while a parent receives his visa

and adjusts status, or the possibility that conversion for an

aged-out derivative is never possible, present administrative

complexities that may inform USCIS’s implementation of the

CSPA. But these unresolved procedural questions do not

create ambiguity in the text or result in a visa system “ ‘so

bizarre that Congress could not have intended’ it.” Dep’t of

Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 347 (1994)

(quoting Demarest, 498 U.S. at 191). Therefore, the plain lan-

4

For a derivative beneficiary, the benefits of § 1153(h) are triggered on

“the date on which an immigrant visa number became available for the

alien’s parent.” 8 U.S.C. § 1153(h)(1)(A). Some time will elapse between

the date a visa is available to the parent and the date the visa is approved

(entitling the parent may file an F2B petition for the adult son or daugh-

ter).

11832 DE OSORIO v. MAYORKAS

guage of the CSPA is not impracticable. It is the agency’s task

to resolve these complications, not the court’s.

Moreover, the Government’s restrictive interpretation of

subsection (h)(3) barely modifies the regulatory regime that

existed at the time the CSPA was enacted. According to the

Government, the CSPA makes priority date retention and

automatic conversion available only to primary and derivative

beneficiaries of F2A petitions. However, under 8 C.F.R.

§ 204.2(a)(4), which pre-dated the CSPA, an LPR is entitled

to file an F2B petition on behalf of an aged-out son or daugh-

ter and retain the original priority date from the LPR’s origi-

nal F2A petition. For such aliens, the only benefit of the

CSPA over the current regulatory rule under the Govern-

ment’s reading is automatic conversion, as the regulation

requires that the LPR parent file a new F2B petition on behalf

of his or her son or daughter to qualify for priority date reten-

tion. Thus, under the Government’s interpretation, subsection

(h)(3)’s only effects are to extend automatic conversion and

priority date retention to aged-out primary beneficiaries of

F2A visa petitions, and automatic conversion to F2A deriva-

tive beneficiaries. Like the Fifth Circuit, “[w]e are skeptical

that this meager benefit was all Congress meant to accomplish

through subsection (h)(3), especially where nothing in the

statute singles out derivative beneficiaries of second-

preference petitions for special treatment.” Khalid, 655 F.3d

at 374.

Additionally, 8 C.F.R. § 204.2(a)(4) explicitly requires that

to qualify for priority date retention, the identity of the peti-

tioner must remain the same, while the CSPA contains no

such requirement. If Congress intended to limit automatic

conversion to only subsequent petitions in which the peti-

tioner remains the same, the regulations provided a clear

example of the language it could have used. Congress’s deci-

sion not to track the regulatory language further suggests that

the CSPA is not merely a codification of regulatory practice.

See id. at 374 n.9 (citing 8 C.F.R. § 204.2(a)(4)).

DE OSORIO v. MAYORKAS 11833

The parties and amici disagree about how our interpretation

will affect different categories of visa petitioners and about

which aliens most deserve the next available visas. The num-

ber of visas available is statutorily fixed and is far exceeded

by demand. Accordingly, Congress’s decision to allow aged-

out beneficiaries to retain their priority dates when they join

new preference category lines will necessarily impact the wait

time for other aliens in the same line. It is difficult to assess

the equities of this result, but that is not our role. We “are

vested with the authority to interpret the law; we possess nei-

ther the expertise nor the prerogative to make policy judg-

ments.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.

2566, 2579 (2012).

[7] The CSPA, “as a whole, clearly expresses Congress’

intention,” and we therefore do not defer to the BIA’s inter-

pretation of subsection (h)(3). Dole v. United Steelworkers of

Am., 494 U.S. 26, 42 (1990); see also Khalid, 655 F.3d at 371

(the CSPA “as a whole, clearly expresses Congress’ intention

about the universe of petitions covered by (h)(3),” and “there

is no room for the agency to impose its own answer to the

question” (internal quotation marks omitted)). Automatic con-

version and priority date retention are available to all visa

petitions identified in subsection (h)(2). Because “the intent of

Congress is clear, that is the end of the matter,” Chevron, 467

U.S. at 842, and we do not consider past agency practice or

legislative history. We join the Fifth Circuit in “giv[ing] effect

to the unambiguously expressed intent of Congress.” Id. at

843.

[8] The district court’s grants of summary judgment are

reversed and these cases are remanded for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.

11834 DE OSORIO v. MAYORKAS

M. SMITH, Circuit Judge, with whom KOZINSKI, Chief

Judge, and McKEOWN, W. FLETCHER and RAWLINSON,

Circuit Judges, join, dissenting:

The statutory provision at issue in this case, 8 U.S.C.

§ 1153(h), “is far from a model of clarity.” Robles-Tenorio v.

Holder, 444 F. App’x 646, 649 (4th Cir. 2011). The Second

Circuit recently held that § 1153(h)(3) means the exact oppo-

site of what the majority holds. See Li v. Renaud, 654 F.3d

376, 382-83 (2d Cir. 2011). Other courts, including the origi-

nal three-judge panel in this case, concluded that § 1153(h)(3)

is ambiguous, and that the Board of Immigration Appeals’s

(BIA) decision is entitled to deference under Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). See, e.g., Cuellar de Osorio v. Mayorkas, 656 F.3d

954, 965-66 (9th Cir. 2011), vacated, 677 F.3d 921 (9th Cir.

2012); Zhong v. Novak, No. 08-4597, 2010 WL 3302962, at

*7-9 (D.N.J. Aug. 18, 2010); Co v. U.S. Citizenship & Immi-

gration Serv., No. CV 09-776-MO, 2010 WL 1742538, at *4

(D. Or. Apr. 23, 2010); cf. Robles-Tenorio, 444 F. App’x at

649 (“It is unclear whether the text and structure of (h)(1) and

(h)(3) can be reconciled in any coherent or reasonable fash-

ion.”). If the meaning of § 1153(h)(3) were truly as clear and

unmistakable as the majority holds, it certainly has eluded

more than its share of reasonable jurists.1

1

I do not state or imply that a circuit split is evidence that a statute is

ambiguous, although the Supreme Court has stated that “contrasting posi-

tions of the respective parties and their amici” may demonstrate that a stat-

ute “do[es] embrace some ambiguities.” Dewsnup v. Timm, 502 U.S. 410,

416 (1992); see also Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 739

(1996) (“In light of the two dissents from the opinion of the Supreme

Court of California, and in light of the opinion of the Supreme Court of

New Jersey creating the conflict that has prompted us to take this case, it

would be difficult indeed to contend that the word ‘interest’ in the

National Bank Act is unambiguous with regard to the point at issue here.”)

(internal citations omitted).

Of course, “[t]he plainness or ambiguity of statutory language is deter-

mined by reference to the language itself, the specific context in which

DE OSORIO v. MAYORKAS 11835

I would hold that 8 U.S.C. § 1153(h)(3) is ambiguous

because it contains language simultaneously including and

excluding derivative beneficiaries of F3 and F4 visa petitions

from the benefits of the Child Status Protection Act (the

CSPA), 8 U.S.C. § 1153(h). Because Congress did not

“speak[ ] with the precision necessary to say definitively

whether [the statute] applies to” F3 and F4 derivative benefi-

ciaries, I would proceed to Chevron step two. Mayo Found.

for Med. Educ. & Research v. United States, 131 S. Ct. 704,

711 (2011) (first alteration added, second alteration in origi-

nal, and citation omitted). At step two, I would defer to the

BIA’s interpretation of § 1153(h)(3) in Matter of Wang, 25 I.

& N. Dec. 28 (2009). Because the majority holds otherwise,

I respectfully dissent.

I. Chevron Step One

At Chevron step one, “we ask whether the statute’s plain

terms ‘directly addres[s] the precise question at issue.’ ” Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545

U.S. 967, 986 (2005) (quoting Chevron, 467 U.S. at 843)

(alteration in original). “If the statute is ambiguous on the

point, we defer at step two to the agency’s interpretation so

long as the construction is ‘a reasonable policy choice for the

agency to make.’ ” Id. (quoting Chevron, 467 U.S. at 845).

that language is used, and the broader context of the statute as a whole.”

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). I merely point out

the common sense proposition that if the intent of Congress were truly

clear, it would be surprising that so many courts misread the statute. Nev-

ertheless, it is worth noting that there is currently a circuit split over

whether the existence of a circuit split is evidence of statutory ambiguity.

Compare Snell Island SNF LLC v. NLRB, 568 F.3d 410, 419-20 (2d Cir.

2009) (evidence), vacated on other grounds, 130 S. Ct. 3498 (2010),

McCreary v. Offner, 172 F.3d 76, 82-83 (D.C. Cir. 1999) (same), and In

re S. Star Foods, Inc., 144 F.3d 712, 715 (10th Cir. 1998) (same), with

Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1254 n.4 (11th Cir.

2003) (not evidence), aff’d, 545 U.S. 546 (2005), and Rosmer v. Pfizer

Inc., 263 F.3d 110, 118 (4th Cir. 2001) (same).

11836 DE OSORIO v. MAYORKAS

Thus, the relevant question at the first step of Chevron is

whether “the intent of Congress is clear.” Chevron, 467 U.S.

at 842. Unless the statute’s plain text “speak[s] with the preci-

sion necessary to say definitively whether [the statute] applies

to” a particular class of individuals, the statute is ambiguous.

Mayo Found., 131 S. Ct. at 711 (alteration in original). Typi-

cally, such an ambiguity “lead[s] . . . inexorably to Chevron

step two.” Id.

Section 1153(h)(3) states: “If the age of an alien is deter-

mined 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 pri-

ority date issued upon receipt of the original petition.” 8

U.S.C. § 1153(h)(3). The crux of the appeal is whether F3 and

F4 derivative beneficiaries are entitled to the benefits pro-

vided in this provision.

Many reasonable constructions of § 1153(h)(3) are possi-

ble. One could reasonably read § 1153(h)(3), as the majority

does, to include F3 and F4 derivative beneficiaries because

this provision references the age-calculation formula in

§ 1153(h)(1), which covers derivative beneficiaries of F3 and

F4 petitions through § 1153(h)(2). But three limitations in

§ 1153(h)(3) complicate matters: (1) that a petition must be

converted “to the appropriate category;” (2) that only “the

alien’s petition” may be converted; and (3) that the conver-

sion process has to occur “automatically.” See 8 U.S.C.

§ 1153(h)(3). By ignoring statutory language contrary to its

interpretation before finding the plain meaning clear, the

majority not only misconstrues its role at Chevron step one,

but it also runs afoul of Supreme Court precedent controlling

how courts are supposed to interpret statutes. See Nat’l Ass’n

of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666

(2007) (“In making the threshold determination under Chev-

ron, ‘a reviewing court should not confine itself to examining

a particular statutory provision in isolation.’ ”) (citation omit-

DE OSORIO v. MAYORKAS 11837

ted); FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 133 (2000) (“It is a ‘fundamental canon of statutory con-

struction that the words of a statute must be read in their con-

text and with a view to their place in the overall statutory

scheme.’ ”) (citation omitted).

One could reasonably construe § 1153(h)(3) as excluding

aged-out F3 and F4 derivative beneficiaries. This provision

requires conversion “to the appropriate category.” 8 U.S.C.

§ 1153(h)(3). Section 1153(a) identifies the only categories

for which a family-preference petition may be filed: (1)

“[u]nmarried sons and daughters of citizens; (2) “[s]pouses

and unmarried sons and unmarried daughters of permanent

resident aliens;” (3) “[m]arried sons and married daughters of

citizens;” and (4) “[b]rothers and sisters of citizens.” Id.

§ 1153(a)(1)-(4). The children eligible to enter as derivative

beneficiaries of their parents’ visa petitions are the grandchil-

dren, nieces, and nephews of United States citizens. When

those children turn 21 and are no longer eligible to enter with

their parents, there is no section 1153(a) category into which

they fit on their own. This led the Second Circuit to conclude

that Congress did not intend to provide them the benefits of

automatic conversion and retention of their original priority

dates: “Because there is no family preference category for

grandchildren of [lawful permanent residents], and Cen has

not specified a category that would be appropriate, Cen can-

not be converted to an ‘appropriate category’ with respect to

his grandfather’s petition. Therefore, Cen is not eligible under

Section 1153(h)(3) to retain the 1994 priority date of his

grandfather’s petition.” Li, 654 F.3d at 385 (emphasis added).

We should do the same.

Second, § 1153(h)(3) requires “the alien’s petition” to be

automatically converted. 8 U.S.C. § 1153(h)(3). As the major-

ity concedes, conversion of F3 and F4 derivative beneficiaries

to the F2B category requires “a subsequent petition” and “a

new petitioner” because “the identity of the petitioner changes

from the beneficiary’s grandparent or aunt or uncle to his par-

11838 DE OSORIO v. MAYORKAS

ent.” See id. § 1153(a)(2)(B). But “a subsequent petition” is

not the alien’s original petition. Because the alien’s original

petition cannot be converted, as § 1153(h)(3) requires, and,

instead, an entirely new petition must be filed, one could also

reasonably conclude that Congress did not intend to cover F3

and F4 derivative beneficiaries in § 1153(h)(3).2 See Li, 654

F.3d at 384 (implying that § 1153(h)(3) does not apply where

“a different family-sponsored petition by a different petition-

er” is required).

Third, § 1153(h)(3) mandates that the conversion process

occur “automatically.” 8 U.S.C. § 1153(h)(3). The majority

correctly recognizes that “[w]hen the parents of aged-out

derivative beneficiaries of F3 or F4 petitioners receive their

visas and attain [lawful permanent resident] status, they can

file F2B petitions naming their now-adult sons and daughters

as primary beneficiaries.” See id. § 1153(a)(2)(B). An action

cannot be “automatic” if it depends on what a person can or

may do, not what he or she definitely will do. A process is

“automatic” if it is “self-acting or self-regulating,” or occurs

“without thought or conscious intention.” Webster’s Third

New International Dictionary 148 (2002). As the original

panel in this case concluded, “The phrase ‘the alien’s petition

shall automatically be converted 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 con-

version should happen without any outside input, such as a

new petitioner.” Cuellar de Osorio v. Mayorkas, 656 F.3d

954, 962 (9th Cir. 2011), withdrawn by 677 F.3d 921, 921-22

(9th Cir. 2012).

2

Contrary to the majority opinion, the statute does not “expressly recog-

nize[ ] the possibility of automatic conversion of a subsequent petition.”

As the Second Circuit noted, “[e]ach time the Act uses the word ‘conver-

sion’ it describes a change—without need for an additional petition—from

one classification to another, not from one person’s family-sponsored peti-

tion to another.” Li, 654 F.3d at 384 (emphasis added).

DE OSORIO v. MAYORKAS 11839

The majority’s reading of § 1153(h)(3) thus strains the

ordinary meaning of the word “automatically,” essentially

reading this limitation on which petitions may be converted

out of the statute. This is not a sound approach to statutory

interpretation. See Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 175 (2009) (“Statutory construction must begin with the

language employed by Congress and the assumption that the

ordinary meaning of that language accurately expresses the

legislative purpose.”) (citation omitted); 62 Cases, More or

Less, Each Containing Six Jars of Jam v. United States, 340

U.S. 593, 596 (1951) (“Congress expresses its purpose by

words. It is for us to ascertain—neither to add nor to subtract,

neither to delete nor to distort.”).

The majority recognizes the problem that an F2B petition

requires an entirely new petition and petitioner, but it only

considers this issue in the course of determining whether the

statutory scheme set up by Congress is impracticable. In my

view, the need to file a new petition does not go to whether

the statutory scheme is impracticable and thus should be

excepted from the plain meaning rule. It goes to whether the

plain meaning of § 1153(h)(3) is ambiguous. The majority

disregards the lack of any appropriate category to which

derivative beneficiaries of F3 and F4 petitions can be con-

verted before finding the plain language clear. In doing so, the

majority overlooks highly relevant evidence from the overall

statutory scheme that Congress did not intend for these indi-

viduals to receive the benefits identified in § 1153(h)(3). See

Brown & Williamson, 529 U.S. at 132-33 (stating that “a

reviewing court should not confine itself to examining a par-

ticular statutory provision in isolation” and should consider

how statutory language fits into “the overall statutory

scheme”) (citation omitted). It forgets that “[i]n ascertaining

the plain meaning of the statute, the court must look to . . .

the language and design of the statute as a whole.” K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).

Section 1153(h)(3) is also unclear about whether aged-out

derivative beneficiaries are entitled to retain their original pri-

11840 DE OSORIO v. MAYORKAS

ority dates. Importantly, § 1153(h)(3) ties automatic conver-

sion and retention of an original priority date together by

specifying that an eligible 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 orig-

inal petition.” 8 U.S.C. § 1153(h)(3) (emphasis added). “[T]he

Supreme Court has said that ‘and’ presumptively should be

read in its ‘ordinary’ conjunctive sense unless the ‘context’ in

which the term is used or ‘other provisions of the statute’ dic-

tate a contrary interpretation.” OfficeMax, Inc. v. United

States, 428 F.3d 583, 589 (6th Cir. 2005) (listing cases); see

also Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1078 (2011)

(noting that “linking independent ideas is the job of a coordi-

nating junction like ‘and’ ”). Nothing in the statute suggests

that Congress meant for the word “and” to be read as “or.”

Since the word “and” ties the two benefits together, the

ambiguity about the availability of automatic conversion to F3

and F4 derivative beneficiaries also renders the statute ambig-

uous as to whether such beneficiaries are entitled to retention

of their original priority dates. See Li, 654 F.3d at 383-84

(rejecting the argument that the two benefits are distinct and

independent).

Accordingly, I would hold that it is unclear whether Con-

gress intended for aged-out F3 and F4 derivative beneficiaries

to enjoy automatic conversion to a new category and retention

of their priority dates. Section 1153(h)(3) appears to give con-

tradictory answers to this question. Because this provision’s

plain terms do not yield a clear and consistent answer, I would

proceed to Chevron step two.

II. Chevron Step Two

“The sole question for the Court at step two under the

Chevron analysis is ‘whether the agency’s answer is based on

a permissible construction of the statute.’ ” Mayo Found., 131

S. Ct. at 712 (quoting Chevron, 467 U.S. at 843). “If a statute

is ambiguous, and if the implementing agency’s construction

DE OSORIO v. MAYORKAS 11841

is reasonable, Chevron requires a federal court to accept the

agency’s construction of the statute, even if the agency’s read-

ing differs from what the court believes is the best statutory

interpretation.” Brand X, 545 U.S. at 980. The BIA’s interpre-

tations of the INA are entitled to Chevron deference. See

Negusie v. Holder, 555 U.S. 511, 517 (2009).

The BIA interpreted § 1153(h)(3) in Matter of Wang, 25 I.

& N. Dec. at 33-39, holding that automatic conversion and

priority date retention are not available where there is no cate-

gory to which a beneficiary’s petition can be converted, and

a new petition would have to be filed by a new petitioner. See

id. at 38-39; see also id. at 35 (explaining how “conversion”

and “retention” have traditionally been interpreted). Thus, the

BIA held that an aged-out derivative beneficiary of an F4

petition was not entitled to automatic conversion to a new cat-

egory and retention of her original priority date when her

father subsequently filed an F2 petition on her behalf. See id.

at 38-39.

I would hold that the BIA’s interpretation of § 1153(h)(3)

is reasonable. As discussed above, there is no appropriate cat-

egory to which derivative beneficiaries of F3 and F4 petitions

may be converted if they age out because a petition may not

be filed on behalf of a United States citizen’s niece, nephew,

or grandchild. No such family-preference categories exist. As

the BIA recognized, there is “no clear indication in the statute

that Congress intended to expand the historical categories eli-

gible for automatic conversion and priority date retention

. . . .” Id. at 36. The legislative history of the CSPA is also

unclear about whether Congress intended for aged-out F3 and

F4 derivative beneficiaries to receive the benefits of

§ 1153(h)(3). See id. at 36-38. Policy considerations also

counsel deference to the BIA’s interpretation of the statute.

Congress caps the number of visas available to aliens in each

preference category, and the demand for such visas far out-

strips the supply. See 8 U.S.C. § 1151(c); Matter of Wang, 25

I. & N. Dec. at 38. Reading section 1153(h)(3) as the majority

11842 DE OSORIO v. MAYORKAS

does will not permit more aliens to enter the country or keep

more families together, but will simply shuffle the order in

which individual aliens get to immigrate. If F3 and F4 deriva-

tive beneficiaries can retain their parents’ priority date, they

will displace other aliens who themselves have endured

lengthy waits for a visa. What’s more, these derivative

beneficiaries—who do not have one of the relationships in

section 1153(a) that would independently qualify them for a

visa—would bump aliens who do have such a qualifying rela-

tionship. As the BIA recognized, Congress could not have

intended this zero-sum game. See Matter of Wang, 25 I. & N.

at 36-38. I would defer to the agency’s reasonable construc-

tion of the statute at Chevron step two. See Brand X, 545 U.S.

at 980.

III. Conclusion

I would hold that § 1153(h)(3) is ambiguous about whether

aged-out F3 and F4 derivative beneficiaries are within its

ambit, and that the BIA’s conclusion that they are not is rea-

sonable. I believe that the BIA’s construction of this provision

is entitled to deference. See Mayo Found., 131 S. Ct. at 712;

Brand X, 545 U.S. at 980. Accordingly, I would affirm the

district court.

I respectfully dissent.