In 2002, Wladimir Colmenares Carpió (Mr. Colmenares), along with his mother and sister, entered the United States on a K visa, which permits alien fianeées and fiancés (K-l visa holders) and their children (K-2 visa holders), to enter the United States to marry United States citizens. Under our immigration laws, upon such a marriage, eligible K-l visa holders and them children under age twenty-one may adjust their status to that of lawful conditional permanent residents. See 8 U.S.C. §§ 1186a, 1255(d).
Upon the marriage of his mother to a United States citizen, and over six months prior to his twenty-first birthday, Mr. Colmenares applied for a conditional adjustment of status under 8 U.S.C. § 1255(d). On September 23, 2005, almost three years after he entered the United States, and almost two-and-one-half years after he filed his application, the United States Citizenship and Immigration Services (USCIS) denied his request on the grounds that he was no longer under age *1093 twenty-one. An immigration judge agreed with that conclusion and the Board of Immigration Appeals (BIA) affirmed.
Mr. Colmenares now argues that, under 8 U.S.C. § 1255(d), K-2 visa holders applying for adjustment of status need not be under twenty-one when those applications are adjudicated. In response, the government defends the date-of-adjudication theory. It also urges an alternative ground for denial of Mr. Colmenares’s application: that an immigrant visa was not “immediately available” to him under 8 U.S.C. § 1255(a).
In light of the terms used in the relevant statutes, decisions from other courts, and the policies underlying our immigration laws, we conclude that a K-2 visa holder who timely applies for an adjustment of status under 8 U.S.C. § 1255(d) must be under twenty-one when he or she seeks to enter the United States, not when his or her subsequent application for adjustment of status is finally adjudicated. We reject the government’s proposed alternative ground for affirmance because the BIA did not reach that issue and the government’s argument is- inconsistent with a USCIS regulation and case authority. In light of the fact that Mr. Colmenares was under twenty-one when he sought to enter the United States, we reverse the decision of the BIA and remand for proceedings consistent with this opinion.
I. BACKGROUND
Mr. Colmenares is a native and citizen of Venezuela. In early 2002, his mother became engaged to James Sterling, a United States citizen working in Venezuela. Mr. Colmenares, his mother, and his sister sought to accompany Mr. Sterling to the United States and to become lawful permanent residents here.
A. The application process for lawful permanent residence
Under the applicable immigration laws, an alien with children who is engaged to a United States citizen and who seeks to enter the United States 'with them and become a lawful permanent resident must proceed through a detailed procedure involving six steps.
See generally Choin v. Mukasey,
Second, upon the USCIS’s approval of the citizen’s petition, the citizen’s fiancé(e) and his or her minor children must apply for K visas with the United States consular office in their country of origin.
See
8 U.S.C. § 1184(d); 22 C.F.R. § 41.81 (State Department regulation addressing the issuance of K visas by consular officers). In this context, a “child” is defined as an unmarried person under twenty-one.
See
8 U.S.C. § 1101(b)(1). The fiancé(e) and the child must file various documents establishing their eligibility for the visas and submit to a medical examination.
See Verovkin v. Still,
No. C 07-3987,
Third, once the K visas are issued (requiring action in both the United States and the country of origin), the fíancé(e) and his or her minor children may enter the United States. Fourth, the citizen and his or her fiancé(e) must marry within ninety days of the fiancé(e)’s entry. 8 U.S.C. § 1184(d). If the marriage does not occur within that period, the fiancé(e) and his or her children must depart from the United States, and they are subject to removal if they do not comply. Id.
Prior to 1986, the status of the non-citizen spouse and minor children was automatically adjusted to that of lawful permanent resident as soon as a valid marriage occurred. However, in 1986, Congress passed the Immigration Marriage Fraud Amendments (IMFA), Pub.L. 99-639, 100 Stat. 3537 (Nov. 10, 1986), which sought to deter fraud by aliens seeking to acquire lawful permanent residence in the United States based on marriage to United States citizens or lawful permanent resident aliens. Under these amendments, the now-married alien spouse and his or her children must complete a fifth step: they must file an application for an adjustment of status “to that of ... alien[s] lawfully admitted to the United States on a conditional basis.” 8 U.S.C. § 1255. The relevant statute provides in part:
(a) The status of an alien who was ... admitted ... into the United States ... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
(d) ... The Attorney General may not adjust, under subsection (a) of this section, the status of a nonimmigrant alien described in section 1101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien’s nonimmigrant status under section 1101(a)(15)(K) of this title.
Id.
The 1986 amendments also provide that the initial adjustment of status granted to K-l and K-2 visa holders is conditional. See 8 U.S.C. § 1186a(a)(l) (stating that “an alien spouse ... and an alien son or daughter ... shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis”). “[Djuring the 90-day period before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence,” the couple and the children of the non-citizen may proceed to a sixth step in the adjustment process: filing a petition to have the conditional status removed. See id. § 1186a(d)(l). In the joint petition, the couple must affirm that they are still married and that they did not enter into marriage for immigration purposes. Id. They must also provide information about their places of residence and their employment histories over the previous two years. Id.
B. Mr. Colmenares’s applications and the decisions of the immigration judge and the BIA
Mr. Colmenares and his family completed the first four steps in this process of *1095 seeking lawful, non-conditional permanent residence. First, Mr. Sterling filed a visa petition on behalf of Mr. Colmenares’s mother, as well as his sister and Mr. Colmenares himself, and the USCIS granted the petition. Second, Mr. Colmenares sought a K-2 visa from the United States consular officer in Venezuela, who issued it to him on September 24, 2002, when Mr. Colmenares was twenty years old. Third, on September 26, 2002, Mr. Colmenares, his mother, and his sister entered the United States. Fourth, Mr. Colmenares’s mother married Mr. Sterling on November 16, 2002, within ninety days of her entry into the United States, as required by 8 U.S.C. § 1184(d)(1).
On January 2, 2003, Mr. Colmenares, his mother, and his sister applied for adjustments of status with the Denver District Office of USCIS. Mr. Colemenares turned twenty-one on July 14, 2003, while his application for adjustment of status was still pending.
Over two years later, on September 23, 2005, the USCIS denied Mr. Colmenares’s application. It reasoned that he was over twenty-one on the date of adjudication of the application. The Department of Homeland Security (“DHS”) then served Mr. Colmenares with a Notice to Appear in removal proceedings, alleging that Mr. Colmenares was removable under 8 U.S.C. § 1227(a)(1)(B) (as an alien who was present in the United States in violation of the law) and under § 1227(a)(1)(C)® (as an alien who had remained in the United States longer than permitted).
At immigration removal hearings held August 1, 2006, and December 11, 2006, Mr. Colmenares appeared before an immigration judge and conceded removability. He indicated, however, that he had properly applied for an adjustment of status pursuant to 8 U.S.C. § 1255. On December 11, 2006, the immigration judge issued a three-page decision concluding that Mr. Colmenares was ineligible for the requested adjustment. The substantive portion of the immigration judge’s decision is contained within two paragraphs, which state:
The Court agrees with the Department of Homeland Security that pursuant to Immigration and Nationality Act Section 245(d) this respondent is not eligible to adjust his status in this country. The second sentence of that section in the Immigration and Nationality Act indicates that the Attorney General may not adjust the status of a nonimmigrant who entered the country on a K visa, except as the result of the marriage of that respondent to the citizen who filed the petition to accord the K status. There is an exception, but the exception is described “in the case of the minor child. ” The respondent is over 21, he no longer qualifies as a minor child under the Immigration and Nationality Act....
The Court would note that this problem of “aging up” has bedeviled applicants for a long time. The Congress of the United States gives the Court to address [sic] the problem with the Child Status Protection Act, which was effective in the year 2002. Unfortunately, the Child Status Protection Act does not extend benefits to aliens who enter the coimtry on K visas. It does seem that this respondent is not eligible to adjust his status pursuant to [8 U.S.C. § 1255(d)], and so the Court must pretermit his application.
Rec. vol. I, at 141^12 (emphasis added).
Mr. Colmenares appealed the immigration judge’s decision to the BIA, pursuant to 8 C.F.R. § 1003.1®). The BIA’s one-paragraph decision “affirm[ed] the decision of the Immigration Judge denying [Mr. Colmenares’s] application for adjustment of status for the reasons set forth by the *1096 Immigration Judge.... ” Rec. vol. I, at 2. This appeal followed.
II. DISCUSSION
Mr. Colmenares now argues that the BIA committed legal error by construing 8 U.S.C. § 1255(d) to bar his adjustment of status because he was over twenty-one when his application was adjudicated. He maintains that he remained eligible for adjustment of status because he was under twenty-one when he filed his application. In response, the government maintains that the BIA’s decision constitutes a reasonable interpretation of an ambiguous statute to which this court must defer under the principles set forth in
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
We begin our analysis with the question of Chevron deference. We agree with the government that § 1255(d) is ambiguous with respect to the time at which a K-2 visa holder must be under twenty-one to qualify for an adjustment of status. Unlike other provisions of our immigration laws, § 1255(d) does not expressly address that question. Nevertheless, for the reasons set forth below, we conclude that Chevron deference is not warranted here.
We then proceed to analyze the decisions of the BIA and the immigration judge under the less deferential framework set forth in
Skidmore v. Swift & Co.,
Finally, we turn to the government’s argument that the denial of Mr. Colmenares’s application for an adjustment of status should be upheld on the alternative ground that an immigrant visa was not “immediately available” when he filed his application.
See 8
U.S.C. § 1255(a). Applying the Supreme Court’s decision in
SEC v. Chenery,
A. The BIA’s decision is not entitled to deference under Chevron.
Under
Chevron,
we defer to an agency’s interpretation of a statute that it is responsible to implement if (1) the statute is ambiguous or silent as to the issue at hand and (2) the agency’s interpretation is neither “arbitrary, capricious, [n]or manifestly contrary to the statute.”
Herrerar-Castillo v. Holder,
When, as here, the agency’s interpretation was issued in an adjudication, we must consider whether the decision constitutes binding precedent within the agency.
Olson v. Fed. Mine Safety & Health Review Comm’n,
Here, the BIA’s decision was issued by a single Board member and does not rely on prior BIA decisions that establish binding precedent. Under the BIA’s own regulations, a single member lacks the authority to create rules of law that bind the agency in other cases. See 8 C.F.R. § 1003.1(e)(6)(ii) (indicating the need for a three-person panel if a precedent must be established); id. § 1003.1(g) (stating that “[b]y majority vote of the permanent Board members, selected decisions of the Board rendered by a three-member panel or by the Board en banc may be designated to serve as precedents in all proceedings involving the same issue or issues”).
We acknowledge that this court has occasionally afforded
Chevron
deference to unpublished, single-member decisions by the BIA.
See
Aple’s Br. at 8 (citing
Ochieng v. Mukasey,
In contrast, in Mr. Colmenares’s case, neither the BIA’s one-member decision nor the prior decision of the immigration judge relied on any BIA precedent. As a result, the BIA’s decision does not “carry the force of law,”
Mead Corp.,
*1098
Because the BIA’s decision does not “carry the force of law,”
Mead Corp.,
B. Under 8 U.S.C. § 1255(d), age at the time a K-2 visa is sought determines eligibility for adjustment of status.
To assess the reasoning of the BIA and the immigration judge under
Skid-more,
we must first consider the language of the applicable statute.
See Barnhart v. Sigmon Coal Co., Inc.,
1. Section 1255(d)’s cross-reference to 8 U.S.C. § 1101(a)(15)(K) suggests that the age at which an applicant “seeks to enter” the country is controlling.
Here, as we have noted, 8 U.S.C. § 1255(d) allows the adjustment of status of “a minor child” who has obtained a K-2 visa. In this context, “a minor child” is defined as “an unmarried person under twenty-one years of age.” 8 U.S.C. § 1101(b)(1). However, § 1255(d) does not itself directly address the question of when a K-2 visa holder applying for an adjustment of status must meet the under twenty-one requirement. Nevertheless, the statute does explain that the triggering event that allows the adjustment is “the marriage of the nonimmigrant (or in the case of the minor child) the parent.” Id. § 1255(d). And, importantly, it identifies the individuals whose status may be adjusted in the following terms: “non-immigrant alienfs] described in section 1101(a)(15)(K).” (emphasis added).
With regard to “the minor child,” the plain language of the referenced statute— § 1101(a)(15)(K) — offers a description that applies before the marriage occurs and before the alien enters the United States. It refers to
... an alien who—
(i) is the fiancee or fiance of a citizen of the United States (other than a citizen described in section 1154(a)(l)(A)(viii)(I) of this title) and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission;
... or
*1099 (iii) is the minor child of an alien described in clause (i) or (ii) and is accompanying, or following to join, the alien;
(emphasis added).
The statute thus focuses the inquiry on the age of the minor child when his parent is engaged and when he or she “seeks to enter the United States” on a K-l visa. Id. § 1101(a)(15)(K)(i) & (iii). That time-specific description of the qualifying status supports the view that the K-2 visa applicant’s age should be determined at the time he or she seeks to enter the country.
2. The use of age-independent terms in the statute governing permanent adjustments of status, 8 U.S.C. § 1186a, further supports the age-when-seeking-to-enter view.
This interpretation of § 1255’s age requirement is further supported by the text of a related statute, 8 U.S.C § 1186a. As we have noted, § 1186a sets forth the procedures by which an alien conditionally admitted to the United States may have that conditional status removed. It provides that such a request must be made “during the 90-day period before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence.” 8 U.S.C. § 1186a(d)(2)(A). Significantly, the individuals who may request the removal of conditional status are described as “an alien spouse” and “an alien son or daughter.” Id. § 1186a(a)(l). Those terms are defined as follows:
The term “alien spouse” means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) — ■
(B) under section 1184(d) ** of this title as the fiancee or fiance of a citizen of the United States, ...
(2) The term “alien son or daughter” means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the son or daughter of an individual through a qualifying marriage.
Id. § 1186a(g)(l)-(2) (emphasis added).
In our view, it is significant that § 1186a(l) uses the term “alien son or daughter” to describe a K-2 visa holder who has had his or her status adjusted on a conditional basis. That phrase is broader than the phrase used to describe an applicant for a K-2 visa — “a minor child” of a “fiancee or fiance of a citizen of the United States.” Id. § 1101(a)(15)(K)(i) & (iii). In particular, nothing in § 1186a’s use of the phrase “alien son or daughter” suggests that he or she must be under twenty-one years of age.
The government rightly observes that § 1186a “say[s] nothing about how these aliens achieve their [conditional adjustment of] status.” See Aple’s Br. at 19. Nevertheless, Congress’s use of an age-related term (“minor child”) in § 1255(d) and § 1101(a)(15)(K)(i) & (iii) to describe those applying for conditional adjustments of status, when combined with its use of an age-independent term (“alien son or daughter”) to describe those who have obtained conditional adjustments of status, is significant. It supports our view that if applicant for adjustment of status under § 1255(d) and 1101(a)(15)(K)(i) & (iii) is “a minor child” at the specified time (when he or she seeks to enter the country as the *1100 child of a fíancé(e)), then his or her age during a subsequent period — when the K-2 visa has been issued and his or her adjustment of status application is pending — is no longer relevant.
3. Under the Skidmore framework, the reasoning of the immigration judge and the BIA is not persuasive.
Here, the immigration judge and the BIA adopted a different view — that what is controlling in determining a K-2 visa holder’s eligibility for an adjustment of status under § 1255(d) is his or her age at the time the application is adjudicated. In support of that conclusion, the immigration judge first cited § 1255(d)’s use of the term “minor child” and reasoned that because Mr. Colmenares was no longer “a minor child,” he was no longer eligible for an adjustment of status. Second, the immigration judge explained, Congress had addressed the problem of “aging-out” in another statute, the Child Status Protection Act (CSPA), Pub.L. No. 107-208, 116 Stat. 927 (codified at 8 U.S.C. §§ 1151, 1153, 1154, 1157, 1158), which specifically provides that, in certain instances not applicable here, age is determined at the time of the filing. In our view, neither reason has “the power to persuade,”
Skid-more,
First, the use of the term “minor child,” provides no indication as to when that status must be established. Moreover, the immigration judge offered no reasoning as to why the date of adjudication should control over other possible dates, such as the date that the K-2 visa application is sought under 8 U.S.C. § 1184 or the date that the adjustment of status application is filed under 8 U.S.C. § 1255. In that regard, the immigration judge did not even mention the related statutory provisions that we have discussed, particularly 8 U.S.C. §§ 1101(a)(15)(K)(i) & (iii) and 1186a, which in our view lend considerable support to the view that it is age at the time a K-2 visa is sought that should control.
Second, as to the CSPA, we agree with the immigration judge that the statute does not apply to individuals like Mr. Colmenares who have obtained K-2 visas and who seek adjustment of status under 8 U.S.C. § 1255 and 8 U.S.C. § 1186a. Instead, the statute applies to petitioners seeking classification (1) as an immediate relative of a United States citizen,
see id.
§ 1151(b)(2)(A); (2) as the child of a lawful permanent resident,
id.
§§ 1153(a)(2)(A), 1153(d); (3) as the child of an applicant for employment-based permanent residence,
see id.
§ 1153(d); (4) as a diversity immigrant,
see id.
§§ 1153(d); and (5) as a child accompanying or following to join a refugee or asylum parent,
see id.
§§ 1157(c)(l)(2), 1158(b)(3). The CSPA provides that, in each of these instances, the controlling element is the age of the alien child on the date the petition is filed with the Attorney General.
See Padash v. INS,
Congress enacted the CSPA in 2002 to address “the ‘enormous backlog of adjustment of status (to permanent residence) applications’ which had developed at the INS.”
Padash,
Although the delayed decisions of the USCIS, the immigration judge, and the BIA have now placed Mr. Colmenares in a similar predicament, we cannot agree with the BIA as to the implications of the CSPA for K-2 visa holders seeking adjustments of status under 8 U.S.C. §§ 1255(d) and *1101 1186a. The language used in §§ 1255(d) and 1186a differs from the language used in the various other adjustment statutes to which the CSPA applies. In particular, the provisions to which the CSPA applies do not describe the person whose status may be adjusted in the same, time-specific terms that apply to Mr. Colmenares here. Compare, e.g., 8 U.S.C. § 1153(d) (using the terms “spouse” and “child” to describe individuals eligible for certain classes of immigrant visas) with § 1101(a)(15)(K)(i) & (iii) (using the term “minor child” of “the fiancee or fiance of a citizen of the United States ... who seeks to enter the United States”). Thus, contrary to the immigration judge’s reasoning, the fact that Congress amended other provisions with different language offers little guidance regarding the proper interpretation of the enactments now before us.
4. Court decisions have rejected the date-of-adjudication approach.
The decisions of the immigration judge and the BIA are further undermined by the only circuit court decision that has addressed the date-of-adjudication theory under 8 U.S.C. § 1255(d). In
Choin,
The Ninth Circuit disagreed with the BIA, concluding that a K-l visa holder who marries a United States citizen in good faith remains eligible for an adjustment of status even if he or she is divorced before the petition is adjudicated.
Choin,
Although Mr. Colmenares’s case involves age rather than marital status, the Ninth Circuit’s reasoning is equally applicable here. Mr. Colmenares’s application, like Ms. Choin’s, was valid when submitted. Contrary to the view of the immigration judge and the BIA, there is no indication in the statutory language that Mr. Colmenares became ineligible for an adjustment of status merely because he turned twenty-one (and twenty-two and twenty three) while waiting for an adjudication.
Additionally, a federal district court in California has rejected the BIA’s date-of-adjudication theory in a case involving a K-2 visa holder like Mr.
Colmenares
— i.e., one who turned twenty-one while his application for adjustment of status was pending.
See Verovkin,
5. The date-of-adjudication approach is fundamentally unfair.
Finally, in our view, the reading of the statute adopted by the immigration judge and the BIA violates basic principles of common sense and fairness. As one district court has observed, under the date-of-adjudication theory, a minor child could receive a K-2 visa up until the day of his twenty-first birthday, but that same visa would be worthless the next day.
Verovkin,
Accordingly, in light of the language of 8 U.S.C. §§ 1101(a)(15)(K) and 1255(d), we hold that a K-2 visa holder who applies for an adjustment of status must be under twenty-one at the time he or she “seeks to enter the United States” as the child of “the fiancee or fiance of a citizen of the United States.” See § 1101(a)(15)(K). In light of the language used in § 1101(a)(15)(K), the date that the individual “seeks to enter the United States” may be plausibly read as either (1) the date that the United States citizen files a petition for K-l and K-2 visas with the Secretary of Homeland Security under 8 U.S.C. § 1184(d)(1), or (b) the date that the K-l and K-2 visa applications are filed with the consular officer in the country of origin. See 22 C.F.R. § 41.81 (State Department regulation addressing the issuance of K visas by consular officers).
We need not decide which date is controlling here. Although the record does not indicate the exact dates on which Mr. Colmenares (1) filed a petition for a K visa with the Secretary of Homeland Security under 8 U.S.C. § 1184(d)(1), and (2) filed an application for a K visa with a consular officer in Venezuela (after the Secretary of Homeland Security approved the petition), the record does establish that Mr. Colmenares obtained a K-2 visa on September 24, 2002, when he was twenty years-old. Thus, he was under twenty-one when he “[sought] to enter the United States” as the child of “the fiancee or fiance of a citizen of the United States.” 8 U.S.C. § 1101(a)(15)(K). Mr. Colmenares’s age at the time of adjudication of his application for an adjustment of status did not render him ineligible for that adjustment. We *1103 therefore reverse the BIA’s ruling based on the date-of-adjudication theory.
C. Applying
SEC v. Chenery,
In its appellate brief, the government invokes 8 U.S.C. § 1255(a) as an alternative ground for affirmance of the BIA decision. As we have noted, section 1255(a) states
The status of an alien ... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
Id. § 1255(a) (emphasis added). The government contends that no immigrant visa is “immediately available” to Mr. Colmenares and that the denial of his application for an adjustment of status should be affirmed on that ground alone.
In light of the Supreme Court’s decision in
Chenery,
we do not reach this argument. “[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.”
In Mr. Colmenares’s case, neither the BIA nor the immigration judge addressed the 8 U.S.C. § 1255(a) argument now raised by the government. Additionally, a USCIS regulation and a district court decision undermine the government’s argument.
See
8 C.F.R. § 214.2(k)(6)(ii);
Verovkin,
Thus, “the court is powerless to affirm the administrative action by substituting what [may] be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency.”
Chenery,
*1104 III. CONCLUSION
In light of the plain language of 8 U.S.C. §§ 1255(d) and 1101(a)(15)(K), the decisions of other courts, and considerations of fairness and common sense, we hold that an individual who applies for an adjustment of status under § 1255(d) must be under twenty-one years of age on the date that he or she “seeks to enter the United States.” See § 1101(a)(15)(K). The date that the individual “seeks to enter the United States” may be plausibly read as either (1) the date that the United States citizen files a petition for K-l and K-2 visas with the Secretary of Homeland Security under 8 U.S.C. § 1184(d)(1), or (2) the date that the K-l and K-2 visa applications are filed with the consular officer in the country of origin. See id.; 22 C.F.R. § 41.8L
Here, Mr. Colmenares was under twenty-one on both of those dates. Thus, contrary to the decision of the BIA and the immigration judge, Mr. Colmenares’s age at the time of the adjudication of his application for an adjustment of status did not render him ineligible for that adjustment.
We do not consider the government’s alternative ground for affirmance — that an immigrant visa is not immediately available to Mr. Colmenares under § 1255(a)— because the BIA did not reach that issue.
Accordingly, we GRANT Mr. Colmenares’s petition for review, REVERSE the decision of the BIA ordering Mr. Colmenares’s removal, and REMAND for proceedings consistent with this opinion.
Notes
As noted above, section 1184(d) sets for the requirements for obtaining K-l and K-2 visas from a consular officer.