769 F.3d 878
4th Cir.2014Background
- Regis (born Feb. 18, 1986) received a K-2 visa in Feb. 2007 as a derivative child of a K-1 visa holder; he was 20 when the visa was issued but turned 21 before entering the U.S. (entered Mar. 25, 2007).
- After the K-1 parent married the U.S. petitioner, Regis applied for adjustment to lawful conditional permanent resident on May 16, 2007; USCIS denied the application because he was over 21.
- Removal proceedings followed; an IJ denied adjustment relying on the Board of Immigration Appeals’ (BIA) precedent Matter of Le, which treats age at admission as controlling for K-2 eligibility.
- Regis appealed the IJ’s denial to the BIA; the BIA dismissed the appeal, adopting Matter of Le and holding Regis ineligible because he was over 21 at entry.
- Regis petitioned for review in the Fourth Circuit, arguing eligibility should be measured at the time he sought the K-2 visa (or at petition/consular filing), as the Tenth Circuit held in Carpio v. Holder.
- The Fourth Circuit applied Chevron deference to the BIA’s precedential interpretation in Matter of Le and denied Regis’ petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When must a K-2 holder be under 21 to qualify for adjustment of status? | Regis: Age should be measured when he sought the K-2 visa (petition or consular filing). | Government/BIA: Age must be under 21 at actual admission to the U.S.; Matter of Le governs. | Court: Statute ambiguous; defer to BIA’s Matter of Le—age at admission controls. |
| Whether the BIA’s interpretation is entitled to Chevron deference | Regis: Carpio controls (Tenth Circuit) and favors visa-application date. | Government: BIA’s published precedent is reasonable and governs outside Tenth Circuit. | Court: Chevron applies; BIA’s interpretation is a permissible construction and is owed deference. |
| Whether Carpio requires rejecting Matter of Le outside the Tenth Circuit | Regis: Relies on Carpio’s alternative reading. | Government: Carpio is not binding in the Fourth Circuit; Brand X allows agency construction to stand when reasonable. | Court: Carpio is reasonable but not controlling; Brand X/Government deference means Matter of Le governs here. |
| Whether estoppel or reliance on visa validity bars denial | Regis: Consular issuance and visa validity misled him to rely and enter during validity period. | Government: Issue not properly raised below; estoppel against the government requires affirmative misconduct. | Court: Waived below; generally estoppel requires affirmative misconduct and is inapplicable here. |
Key Cases Cited
- Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010) (held K-2 eligibility may be measured at time of seeking entry; alternative reading to BIA)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (establishes framework for judicial deference to agency statutory interpretations)
- Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (agency interpretation can supersede prior judicial construction if reasonable)
- I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (deference in immigration context; sensitive foreign-relations functions)
- Saintha v. Mukasey, 516 F.3d 243 (4th Cir. 2008) (discusses de novo review of legal questions and Chevron deference in immigration cases)