Margarito Rodriguez Tovar v. Jefferson Sessions, 882 F.3d 895

Background

Rodriguez Tovar (born 1983, Mexico) entered the U.S. in 2000; his LPR father filed an F2A petition (minor child of LPR) on April 30, 2001 (priority date) which was approved in 2005.
By biological age, Rodriguez Tovar was 23 when his father naturalized on July 3, 2006; under the CSPA age‑reduction formula (8 U.S.C. § 1153(h)(1)) subtracting petition pendency, his statutory age on that date was 19.
If treated as an immediate relative (minor child of a citizen) upon father’s naturalization, a visa would have been immediately available; if treated as an adult child of a citizen (F1), no visa was available and he faced long delay and removal.
The IJ and BIA followed Matter of Zamora‑Molina and held that “age” in 8 U.S.C. § 1151(f)(2) meant biological age, so the F2A petition converted to F1 (adult child of citizen); no opt‑out applied to F2A.
The Ninth Circuit rejected that reading, concluding § 1151(f)(2) incorporates the CSPA age‑calculation in § 1153(h)(1), so Rodriguez Tovar was a minor for conversion and entitled to an immediately available immediate‑relative visa.
Court remanded to the BIA with instructions to treat him as an immediate relative and proceed on remaining adjustment‑of‑status requirements.

Issues

Issue	Rodriguez Tovar's Argument	Government's Argument	Held
Whether “age of the alien on the date of the parent’s naturalization” in 8 U.S.C. § 1151(f)(2) means statutory (CSPA) age or biological age	“Age” means statutory age as calculated under 8 U.S.C. § 1153(h)(1) (subtract pendency); thus he was a minor and converts to immediate‑relative	“Age” means biological/chronological age; because he was over 21 biologically, conversion makes him an adult (F1) and no immediate visa	Held that “age” unambiguously means statutory age under § 1153(h)(1); F2A beneficiaries who are minors by the CSPA convert to immediate‑relative status upon parent naturalization.
Whether F2A petitions can convert to F1 upon naturalization	F2A petitions convert to immediate‑relative when beneficiary’s CSPA age <21	Government: conversion can result in F1 if beneficiary is biologically ≥21	Held that statutory framework and history show F2A converts to immediate‑relative when CSPA age <21; F2A→F1 conversion is not authorized.
Whether the CSPA opt‑out for F2B→F1 implies F2A needed an opt‑out to avoid adverse results	No opt‑out needed because F2A beneficiaries always convert to the more favorable immediate‑relative category under the CSPA calculation	Government contends Congress’ failure to provide an F2A opt‑out shows beneficiaries can be shifted to less favorable categories	Held that absence of an F2A opt‑out supports interpretation that F2A always converts to immediate‑relative; Congress would not have needed an opt‑out for a conversion that is never disadvantageous.
Whether BIA precedent (Matter of Zamora‑Molina) and agency interpretation deserve deference	N/A (challenged as incorrect)	BIA urged deference to its prior interpretation	Court declined Chevron deference because statutory scheme was clear and BIA denied ambiguity; rejected Zamora‑Molina.

Key Cases Cited

Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014) (explaining visa categories and priority date mechanics)
King v. Burwell, 135 S. Ct. 2480 (2015) (read statutory language in context and as part of whole statutory scheme)
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for agency deference)
The Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051 (9th Cir. 2003) (identifying when Congress’ intent is clear)
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982) (avoid interpretations producing absurd results)
Negusie v. Holder, 555 U.S. 511 (2009) (limits on deference when agency denies ambiguity)
United States v. Ogles, 440 F.3d 1095 (9th Cir. 2006) (court not bound by party concession on law)
Sung Kil Jang v. Lynch, 812 F.3d 1187 (9th Cir. 2015) (statutory interpretation principles)
In re Riverside‑Linden Inv. Co., 945 F.2d 320 (9th Cir. 1991) (permitting consideration of issues even if not raised below)