VERONICA CUTHILL, Plaintiff-Appellee, v. ANTONY J. BLINKEN, Defendant-Appellant.
Docket No. 19-3138
United States Court of Appeals for the Second Circuit
August Term, 2020 (Argued: January 14, 2021 Decided: March 9, 2021)
Before: KATZMANN, LOHIER, and CARNEY, Circuit Judges.
Appeal from a judgment of the United States District Court for the District of Connecticut (Hall, J.). We hold that
BRADLEY B. BANIAS, Wasden Banias, LLC, Mount Pleasant, SC (Elizabeth Leete, Leete, Kosto & Wizner, LLP, Hartford, CT, on the brief), for Plaintiff-Appellee.
VICTOR M. MERCADO-SANTANA (Christopher A. Bates, William C. Peachey, Samuel P. Go, on the brief), United States Department of Justice, Washington, DC, for Defendant-Appellant.
In this case, we examine the architecture of a statutory regime, delving into the text, structure, purpose, and legislative history of the statute.
To qualify for an F2A visa, the son or daughter of a lawful permanent resident must be under 21 years old. The Child Status Protection Act (“CSPA“) mandates that the government exclude from the age calculation the time that it spent processing the visa petition. For example, if the daughter of a lawful permanent resident is 22 years old when her F2A visa becomes available but it took the government two years to process her petition, her “statutory age” for F2A purposes would be 20 years old, making her still eligible for an F2A visa. See
A related CSPA provision provides that if the parent of an F2A beneficiary naturalizes while the F2A petition is pending, the F2A petition may be converted to a more favorable immediate-relative petition, but only if “the age of the [son or daughter] on the date of the parent‘s naturalization” is under 21.
BACKGROUND
A. The Family-Based Visa Regime
Federal law allows citizens and lawful permanent residents (“LPRs“) of the United States to obtain immigrant visas for their sons or daughters to join them in the United States. The parent is called the “sponsor” and the son or daughter is called the “beneficiary.” Four types of such visas are relevant to this appeal:
- Immediate-relative visa: for minor (under 21) sons and daughters of citizens.
- F1 visa: for adult (21 or over) sons and daughters of citizens.
- F2A visa: for minor (under 21) sons and daughters of LPRs.
- F2B visa: for adult (21 or over) sons and daughters of LPRs.
See
As relevant here, the general visa application process is as follows. First, the sponsoring parent files a petition on Form I-130, Petition for Alien Relative, on behalf of his or her beneficiary son or daughter. The U.S. Citizenship and Immigration Services (“USCIS“) thereafter reviews the petition and, if everything is in order, approves it. This process can take up to a year or more. See generally Scialabba v. Cuellar de Osorio, 573 U.S. 41, 46–50 (2014) (plurality opinion).
Once the petition is approved, the journey for immediate-relative-visa seekers ends there: Visas in that category are not subject to any numerical caps, so they can receive their visas soon after their petitions are approved. Not so for the three other relevant visa categories — F1, F2A, and F2B. For those beneficiaries, approval results not in getting a visa, but only in
Thus, there are two relevant waiting periods for F1, F2A, and F2B visa seekers: (1) the time it takes for the agency to process the petition and (2) the time it takes for a visa to become available. One must therefore be mindful of the distinction between a visa petition, which is the first step in the process and earns the visa-seeker a spot in line, and a visa application, which can be filed only after the visa becomes available.4
When applying for a visa, age is extremely important. A minor son or daughter can obtain a visa much faster than an adult son or daughter can. There is great demand for visas by adult sons and daughters of citizens and LPRs, which results in long queues for F1 and F2B visas. Thus, while a minor son or daughter of a citizen can obtain an immediate-relative visa shortly after her petition is approved, an adult son or daughter of a citizen must first wait in the F1 visa queue, which was over six years long as of January 2021. See January 2021 Bulletin. Likewise, a minor son or daughter of an LPR can wait in the relatively short (and sometimes nonexistent) F2A queue while an adult son or daughter of an LPR must wait in the F2B visa queue, which was over five years long as of January 2021. See id.
Because the age determination is made after all that waiting time — i.e., after the petition is approved and the visa becomes available — there existed a serious problem whereby child beneficiaries “aged out” of their immediate-relative or F2A visa eligibility. The long wait times may have meant that a beneficiary who was a 17-year-old high school student when her mother petitioned for an F2A visa had become a 22-year-old college graduate by the time the visa became available. In other words, by the time child beneficiaries might become eligible to obtain the visas for which they originally petitioned, those beneficiaries might no longer be minors and thus no longer eligible for those visas.
B. The Child Status Protection Act
To fix this problem, Congress in 2002 — with unanimous bipartisan support — enacted
The CSPA enacted these changes via several interrelated provisions. First,
For F2A visa beneficiaries, the CSPA provides that, “[f]or purposes of [
It bears repeating that only the processing time — i.e., bureaucratic delay — is excluded from the age calculation. The time spent waiting for a visa to become available is not excluded. The CSPA thus provides that if the F2A beneficiary‘s statutory age is still 21 or older even after deducting the processing time, the F2A petition automatically converts to an F2B petition (which, recall, is for adult sons and daughters of LPRs). See
The CSPA went further still by addressing another contingency that occurs often while visa petitions are pending — namely, that the LPR sponsor becomes a naturalized U.S. citizen. Since the visa regime is tied to the sponsor‘s status, the change in the sponsor‘s status normally requires a corresponding change to the beneficiary‘s visa petition. The CSPA‘s solution for F2B applicants (adult sons and daughters of LPRs) is straightforward; its solution for F2A applicants (minor children of LPRs) is less so. See Scialabba, 573 U.S. at 51–52.
For F2B applicants, the CSPA provides that if the sponsor naturalizes while the
The CSPA does not have an analogous provision for an F2A beneficiary whose sponsor naturalizes. However, the statute contemplates that the F2A petition would be converted to a petition for an immediate-relative visa. The provision at issue in this case —
To recap, the CSPA indisputably covers most eventualities:
- If a citizen petitions for an immediate-relative visa for their minor son or daughter and the son or daughter turns 21 while the petition is pending. The beneficiary remains eligible for an immediate-relative visa so long as she was under 21 years old when the petition was filed. See
id. § 1151(f)(1) . - If an LPR petitions for an F2A visa for their minor son or daughter and the son or daughter turns 21 before a visa becomes available. Calculate the beneficiary‘s statutory age by taking their age at the time that the visa becomes available and deducting the processing time (but not the waiting time for visa availability). If the resulting age is under 21 years old, she remains eligible for an F2A visa. If the resulting age is 21 years or older, the F2A petition converts to an F2B petition, though the beneficiary retains her original priority date. See
id. § 1153(h)(3) . - If an LPR petitions for an F2B visa for their adult son or daughter and the parent naturalizes before a visa becomes available. The beneficiary can choose to stay in the F2B queue or transfer to the F1 queue. Either way, the beneficiary retains her original priority date. See
id. § 1154(k) . - If an LPR petitions for an F2A visa for their minor child and the parent naturalizes before a visa becomes available and the child‘s biological age is still under 21 years old. The sponsoring parent can convert the F2A petition into an immediate-relative petition. See
id. § 1151(f)(2) .
But the CSPA does not expressly cover one variation on the last scenario: A parent petitions for an F2A visa for her minor son or daughter and naturalizes when the son or daughter‘s statutory age is under 21 but his or her biological age is over 21. To determine whether such a petition can be converted from an F2A petition into an immediate-relative petition, should “the age of the alien on the date of the parent‘s naturalization” in
C. Factual and Procedural Background
The essential facts here are undisputed. On December 23, 1996, plaintiff-appellee
On September 29, 2016, Cuthill filed an I-130 petition for an F2A visa on behalf of her daughter, Diaz. On that day, Diaz was exactly 19 years 9 months and 6 days old. On September 27, 2017 — 363 days after filing — USCIS approved the petition. No F2A visas were available at the time, however, so Diaz was placed in the F2A queue, with a priority date of September 29, 2016. Diaz turned 21 on December 23, 2017 but — thanks to the CSPA — remained eligible for an F2A visa for 363 more days.
On June 25, 2018, while Diaz was still waiting for an F2A visa to become available, Cuthill naturalized as a U.S. citizen. At the time, Diaz was still statutorily under 21 years old, based on the exclusion of 363 days of processing time from her biological age. As such, on July 13, 2018, Cuthill sought to convert Diaz‘s F2A petition to one for an immediate-relative visa, which would have no waiting time for Diaz to receive a visa. Instead, however, the Department of State notified Cuthill that, because Diaz‘s biological age was over 21 years old, she has been transferred from the F2A queue to the F1 queue.
This had a crushing effect on Diaz‘s prospects of obtaining a family-based visa: Had the government allowed Diaz to proceed as an immediate relative, she would likely have received her visa soon after her mother‘s naturalization, since immediate-relative visas are not subject to any queues. And even if Diaz had stayed in the F2A queue, she would likely have reached the front of the visa line several months later, by December 2018. But her placement in the F1 queue — which, as of January 2021, makes visas available only for beneficiaries with a priority date on or before September 15, 2014 — means that Diaz will have to wait many more years to receive a visa.
In 2019, Cuthill filed suit against the U.S. Secretary of State in the United States District Court for the District of Connecticut. In a thorough and well-reasoned opinion, the district court (Hall, J.) granted summary judgment for Cuthill. The government timely appealed.
STANDARD OF REVIEW
We review the grant of summary judgment de novo. See Chunn v. Amtrak, 916 F.3d 204, 207 (2d Cir. 2019). Because there are no genuine disputes over material facts, the issues in this appeal are entirely legal in nature.
DISCUSSION
Our analysis proceeds as follows: First, we begin with the CSPA‘s text. We find that the CSPA‘s text favors Cuthill‘s position, although the government‘s text-based arguments are well taken. Second, we turn to the CSPA‘s structure. Here, we find that Cuthill‘s position better comports with the structure of the CSPA and the overall family-based visa scheme, though neither party‘s proposed reading of the statute is in complete harmony with the surrounding provisions. Third, we examine Congress‘s purpose in enacting the CSPA, and it is there that we find our clincher: The legislative history shows a clear desire by Congress to fix the age-out problem for all minor beneficiaries, and there is nothing to suggest that Congress intended to exclude beneficiaries like Diaz. Lastly, we address whether Chevron deference applies here and conclude that it does not.
A. Text
The key provision at issue,
In the case of a petition [for an F2A visa], if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i), the determination [of whether the son or daughter meets the requirement that he or she be under 21] shall be made using the age of the alien on the date of the parent‘s naturalization.
The government argues that “the age of the alien on the date of the parent‘s naturalization” refers to a son or daughter‘s biological age on the date of the parent‘s naturalization; Cuthill argues that it means a son or daughter‘s statutory age, which excludes processing time.
The term “age,” standing in isolation, normally means biological age. But the word “age” in the CSPA does not exist in a vacuum. Rather, it is part of an interlocking set of provisions, some of which employ the statutory age calculation. The dictionary is thus only a starting point. “[W]hen deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme. Our duty, after all, is to construe statutes, not isolated provisions.” King v. Burwell, 576 U.S. 473, 486 (2015); see also Corley v. United States, 556 U.S. 303, 314 n.5 (2009) (“[T]he meaning — or ambiguity — of certain words or phrases may only become evident when placed in context.“). So, to understand the text of
First,
Second,
But the third provision,
For purposes of [
§ 1153(a)(2)(A) , the provision discussed in the previous paragraph and which applies exclusively to F2A visas,] a determination of whether an alien satisfies the age requirement in [§ 1101(b)(1) , the first provision discussed above which provides for a default definition of “child,“] shall be made using –(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien . . . ; reduced by
(B) the number of days in the period during which the [F2A petition] was pending.
With that in mind, we turn to
The government advances several arguments in favor of its preferred reading, but we disagree with its hypertechnical construction of the CSPA.
The government first argues that a nearby provision in the CSPA,
The government next argues that, because
The government next argues that because
If the age of an alien is determined under [the F2A statutory formula] to be 21 years of age or older for the purpose[] of subsection[] (a)(2)(A) . . . the alien‘s petition shall automatically be converted to the appropriate category . . . .
But if we went by the government‘s narrow reading of the phrase “for the purpose[] of subsection[] (a)(2)(A),” then
In sum, based on our analysis of the interlocking provisions dealing with the word “age,” we hold that the text of
B. Statutory Scheme and Structure
Where the plain text does not conclusively resolve the question, we can draw upon a variety of interpretive tools, including statutory structure, to discern the text‘s meaning and purpose. See United States v. Davis, 961 F.3d 181, 187 (2d Cir. 2020). This is because “[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” King, 576 U.S. at 492. In examining the broader scheme and structure of the CSPA, we are mindful of the well-established rule that “absurd results are to be avoided.” McNeill v. United States, 563 U.S. 816, 822 (2011).
Our analysis of the statutory structure supports Cuthill‘s position. Three core structural principles permeate the CSPA and the family-based visa scheme: (1) bureaucratic processing time should not count against child beneficiaries’ ages; (2) sons and daughters of citizens receive preference over sons and daughters of LPRs; and (3) minor children receive preference over adult sons and daughters. As discussed below, the government‘s proposed reading contravenes all three, leading to absurd results: (1) processing time would count against Diaz‘s age; (2) Diaz would be in a worse position because her mother naturalized; and (3) Diaz would be in a worse position because she originally petitioned as a child rather than as an adult. Each is explained below.
First, one of the CSPA‘s core principles is that administrative processing time should not count in the age determination both for an immediate-relative beneficiary and for an F2A beneficiary. See
Second, there is no question that the statutory scheme gives preference to sons and daughters of citizens over sons and
Third, a key structural principle of the CSPA and U.S. immigration law is that minor children get preference over adult sons and daughters. See Fiallo v. Bell, 430 U.S. 787, 788 (1977) (noting that immigration law “grants special preference immigration status to aliens who qualify as the children . . . of United States citizens or lawful permanent residents“). One manifestation of this principle is the fact that minor sons and daughters of LPRs can wait in the short F2A queue while adult sons and daughters of LPRs must instead wait in the much longer F2B queue. But consider the government‘s reading of the CSPA: If a parent petitions for an F2B visa for their adult son or daughter and later naturalizes, the CSPA gives the beneficiary the option of either staying in the F2B queue or switching to the F1 queue. See
The strongest structural argument for the government is that the age-reduction formula does not mesh perfectly with Cuthill‘s reading of § 1151(f)(2). One of the key inputs in the age-reduction formula is “the date on which an immigrant visa number becomes available for [the minor beneficiary].”
There are two potential solutions. To begin with, we do not hold that § 1151(f)(2) necessarily incorporates § 1153(h) lock, stock, and barrel, including the timely application requirement. We need not decide, and do not decide, whether those elements are incorporated into § 1151(f)(2). Our holding is more limited, concluding only that § 1151(f)(2) incorporates the basic age-reduction formula — i.e., the notion that you take the beneficiary‘s current age and deduct processing time. This basic formula exists independently of the availability and application requirements, as illustrated by Diaz‘s own case: For the 363
And even if § 1151(f)(2) does incorporate the availability requirement, we agree with the district court that, in the context of § 1151(f)(2), the visa availability date could simply be interpreted as referring to the date of the parent‘s naturalization. After all, that is the date on which the relevant visa — which, in the context of § 1151(f)(2), is an immediate-relative visa — became available. We need not resolve this issue in this appeal, but suffice it to say that it does not pose an insurmountable obstacle to Cuthill‘s interpretation of § 1151(f)(2).
The government next argues that Cuthill‘s reading — that F2A petitioners in Diaz‘s situation roll over to the immediate-relative category rather than to the F1 category — actually hurts F2A beneficiaries, because F2A and F1 beneficiaries can bring their own minor children as derivative beneficiaries, see
Finally, the government argues that the F2A-to-immediate-relative switch is incongruent with the broader statutory scheme because § 1153(h) contemplates rollovers only within preference categories — i.e., between F2A and F2B. But this argument, too, is contradicted by § 1151(f)(2). There is no dispute that § 1151(f)(2) expressly provides for an F2A-to-immediate-relative switch if an F2A beneficiary is biologically under 21 years old when her parent naturalizes. Cuthill merely seeks to apply this existing mechanism to a subset of F2A beneficiaries. If anything, it is the government‘s proposed switch that is without precedent, as there is no express statutory F2A-to-F1 mechanism in the CSPA. See Tovar, 882 F.3d at 903 (“Neither the regulation nor the statute authorizes the result the government advocates here: conversion of an F2A petition into an F1 petition.“).
In sum, while Cuthill‘s reading is not free of complications, it is far more consistent with the CSPA‘s overall scheme and structure than the alternative proposed by the government. The government‘s reading
C. Purpose
In addition to the text and structure of the statute, Congress‘s purpose in enacting the CSPA — as reflected in the legislative history — can help us decipher the meaning of the statutory language. See Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1072 (2020). “Congress passes legislation with specific purposes in mind. When the ordinary tools of statutory construction permit us to do so, we must attempt to discover those purposes.” In re WorldCom, Inc., 723 F.3d 346, 360 (2d Cir. 2013).
While the government has raised colorable textual and structural arguments, we find that the purpose and history of the CSPA overwhelmingly favor Cuthill‘s reading of § 1151(f)(2). There is no dispute that Congress enacted the CSPA because it wanted to protect child beneficiaries from aging out of their age-dependent child visas. There is no indication whatsoever that Congress wanted to single out beneficiaries like Diaz for exclusion from the CSPA‘s anti-aging-out remedies. The government does not proffer any reason — nor could it — why Congress would want to do so.
While reliance on legislative purpose is sometimes criticized on the ground that Congress is a divided body that does not speak with a single voice or purpose, that critique does not apply here. It is hard to imagine a piece of legislation that speaks with more unmistakable clarity of purpose than the CSPA. See McCreary Cnty. v. Am. C.L. Union of Ky., 545 U.S. 844, 862 (2005) (“[S]crutinizing purpose does make practical sense . . . where an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter‘s heart of hearts.“).
The CSPA was motivated by bipartisan frustration with the fact that children were losing out on visas due to years-long processing delays. The legislation was co-sponsored by representatives of both major parties, passed the House of Representatives by a unanimous 416-0 vote, passed unanimously in the Senate Judiciary Committee after the addition of an amendment, passed the Senate by a unanimous voice vote, passed the House again by a unanimous voice vote, and signed into law by President George W. Bush. Senators and House members of both parties spoke in support of the legislation, and all of them focused on the same theme: Children should not lose their coveted status due to agency processing time.
By way of a sampling, the House Report describes the CSPA‘s purpose as “address[ing] the predicament of these aliens, who through no fault of their own, lose the opportunity to obtain an immediate relative visa before they reach age 21.” H.R. Rep. No. 107-45, at 2 (2001), reprinted in 2002 U.S.C.C.A.N. 640, 641. The Democratic co-sponsor in the House, Representative Sheila Jackson-Lee, said that the CSPA “corrects the problem of aging-out under current law,” under which “once children reach 21 years of age, they are no longer considered immediate relatives . . . [and] are placed in the back of the line of one of the [] backlog family-preference categories of immigrants.” 147 Cong. Rec.
To be fair, Congress focused more frequently on the aging out of children of U.S. citizens who petition for immediate-relative visas — i.e., the problem that was fixed by § 1151(f)(1). By comparison, the fate of F2A beneficiaries — which was addressed by § 1151(f)(2) and § 1153(h) — appears to have been less frequently mentioned. Nevertheless, the legislative record shows that Congress intended to protect all minor beneficiaries, and there is no indication whatsoever that Congress aimed to exclude any subset of minor beneficiaries from the CSPA‘s protections.6
In sum, the legislative history and purpose of the CSPA overwhelmingly support the incorporation of the age-reduction formula into § 1151(f)(2) in Diaz‘s case. Congress unmistakably intended that F2A beneficiaries should not be penalized by (1) administrative processing time or (2) their parents’ naturalization. The case before us presents a unique combination of the two, but there is no reason to think that Congress intended the result to be different. Thus, to the extent there is any remaining textual ambiguity about the meaning of the phrase “the age of the alien on the date of the parent‘s naturalization,” the legislative history clearly shows us the way.
At the end of the day, the strongest argument for the government is this: Congress wanted to fix the age-out problem for all minor beneficiaries, but while doing so, it overlooked one scenario — Diaz‘s — and failed to legislate a fix for it. If this were the case, we would agree that it would be up to Congress, not the courts, to repair the oversight, and certainly if our analysis is wanting, Congress is in a position to fix any oversight. But we do not think that is the case here. In affirming the district court, we do not hold that Congress would have legislated a fix for Diaz‘s predicament had it been aware of it. Rather, we hold — based on the text, structure, purpose, and legislative history of the CSPA — that Congress did legislate a fix via § 1153(h)(1) and § 1151(f)(2).
D. Chevron Deference
Lastly, the government argues that we should defer to the decision by the Board of Immigration Appeals (“BIA“) in Matter of Zamora-Molina, 25 I. & N. Dec. 606, 611 (B.I.A. 2011), in which the BIA adopted the same interpretation as the Department of State. Even assuming, without deciding, that Chevron deference
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.