Rosalina Cuellar DE OSORIO; Elizabeth Magpantay; Evelyn Y. Santos; Maria Eloisa Liwag; Norma Uy; Ruth Uy, Plaintiffs-Appellants, v. Alejandro MAYORKAS, Director, United States Citizenship and Immigration Services; Janet Napolitano, Secretary of the Department of Homeland Security, Hillary Rodham Clinton, Secretary of State, Defendants-Appellees. 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 Citizenship and Immigration Services; Alejandro Mayorkas, Director, United States Citizenship and Immigration Services; Lynne 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.
Nos. 09-56786, 09-56846.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 19, 2012. Filed Sept. 26, 2012.
1003
Sports Form, Inc. v. United Press Int‘l, Inc., 686 F.2d 750, 753 (9th Cir.1982). Here, it appears that the district court heeded our direction to proceed to trial and otherwise move towards a final judgment in this case without waiting for our interlocutory review. As a result, final judgment is now imminent and we need only exercise very limited review at this time. If there is an appeal from the trial court‘s final judgment, this panel will retain jurisdiction to hear any subsequent appeal. At that point, we may appropriately consider the broader claims that the Defendants raise in this appeal, if necessary.
AFFIRMED.
Amy Prokop and Carl Shusterman, Law Offices of Carl M. Shusterman, Los Angeles, CA, 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, CA, 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 Francisco, CA, for amici curiae American Immigration Council and National Immigrant Justice Center.
Deborah Susan Smith, Law Office of Deborah S. Smith, Helena, MT, for amici curiae American Immigration Lawyers As
Thomas Kirk Ragland, Benach Ragland LLP, Washington, D.C., for amicus curiae Active Dreams LLC.
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.
Opinion by Judge MURGUIA; Dissent by Judge MILAN D. SMITH, JR.
OPINION
MURGUIA, Circuit Judge, with whom PREGERSON, WARDLAW, FISHER, GOULD and PAEZ, Circuit Judges, join in full:
Appellants became lawful permanent residents and immigrated 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 entitled to relief under the Child Status Protection Act (“CSPA“),
The United States Citizen and Immigration Services (“USCIS“) denied Appellants’ requests for priority date retention under the CSPA. USCIS relied on the Board of Immigration Appeals’ (“BIA“) decision in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) that the CSPA does not apply to all derivative 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 unambiguously grants automatic conversion and priority date retention 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.
I. Family-based immigration overview
We begin with an overview of family-based immigration. Family-sponsored immigration allows U.S. citizens and lawful 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.
For non-immediate relatives of citizens, the INA establishes 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. citizens
F4: Brothers and sisters of U.S. citizens
Id.
After a U.S. citizen or LPR files a visa petition on behalf of a relative, USCIS determines if a qualifying relationship exists between the citizen or LPR petitioner and the alien relative 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 petition is filed, which is known as the “priority date.” Due to statutory limits for each visa category and a substantial backlog, 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 (showing 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 children may then receive derivative visas at the same time that the primary beneficiary receives a visa.
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
The first paragraph of subsection (h) addresses the more minor delay that occurs while USCIS processes a visa application.
Subsection (h)(2) defines the kinds of visa petitions to which the age-reduction formula in subsection (h)(1) applies. Id.
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 beneficiaries], 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.
The question presented in this appeal is whether the automatic conversion and date retention benefits provided by subsection (h)(3) apply only to aged-out F2A petition beneficiaries, or whether they also apply to derivative beneficiaries of the other family visa categories.
III. Matter of Wang
The BIA answered this question in Matter of Wang, 25 I. & N. Dec. 28 (BIA 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 processing formula,’ the language of [subsection (h)(3)] does not expressly state which petitions qualify for automatic conversion 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 regulatory 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 petitions filed by the same petitioner. Id. at 34-35. The BIA offered several examples. Under
The BIA also surveyed the legislative history of the CSPA and concluded that “there is no indication in the statutory language or legislative history of the CSPA that Congress intended to create a mechanism to avoid the natural consequence 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.
Under the BIA‘s interpretation of subsection (h)(3), only subsequent visa petitions that do not require a change of petitioner 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 pe
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 derivative 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 district 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, 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 petitions 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 derivative visas, and subsections (h)(1), (h)(2), and (h)(3) are interdependent, “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 quota
In contrast, the Second Circuit held that an aged-out derivative beneficiary of an F2B petition was not entitled to automatic 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 precedential 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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (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 unambiguous as to whether the priority date retention and automatic conversion benefits in subsection (h)(3) extend to aged-out derivative beneficiaries of all family visa petitions. To determine 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.2011).
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 original petition.”
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).
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 beneficiaries may automatically convert to a new appropriate category (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
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., — U.S. —, 132 S.Ct. 1350, 182 L.Ed.2d 341 (2012) (holding that § 906(c) of the Longshore and Harbor Workers’ Compensation Act is unambiguous notwithstanding disagreement between the Fifth, Ninth, and Eleventh Circuits about its meaning); Mohamad v. Palestinian Auth., — U.S. —, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012) (holding that the term “individual” as used in the Torture Victim Protection Act unambiguously encompasses only natural persons despite disagreement among several Circuits); see also Reno v. Koray, 515 U.S. 50, 64-65, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (“A statute is not ‘ambiguous for purposes of lenity merely because’ there is ‘a division of judicial authority’ over its proper construction.“) (quoting Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990)). Like the Fifth Circuit, we recognize that the Second Cir
The Government also contends the CSPA becomes ambiguous when its terms are applied to certain derivative beneficiaries. According to the Government, automatic conversion and priority date retention cannot be practicably applied to F3 and F4 derivative beneficiaries because, for a category conversion to be automatic, it must involve the same petition and the same petitioner. Under this definition, automatic conversion would not be possible for aged-out derivative beneficiaries 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 petition, a subsequent petition will require a new petitioner. In the case of an F3 petition, the derivative beneficiary‘s adult parent 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 relationship 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 primary 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
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 relevant. 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, 111 S.Ct. 599, 112 L.Ed.2d 608 (1991) (“When we find the terms of a statute
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 petition is automatically converted and retains the date of the “original petition.”
Any alleged impracticability is further undermined by the reality that when an F2A petition is converted to an F2B petition 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 beneficiary, 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 significantly less onerous or complicated than a visa conversion which entails a new petitioner.
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 daughter 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
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
Additionally,
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 number 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 neither the expertise nor the prerogative to make policy judgments.” Nat‘l Fed‘n of Indep. Bus. v. Sebelius, — U.S. —, 132 S.Ct. 2566, 2579, 183 L.Ed.2d 450 (2012).
The CSPA, “as a whole, clearly expresses Congress’ intention,” and we therefore do not defer to the BIA‘s interpretation of subsection (h)(3). Dole v. United Steelworkers of Am., 494 U.S. 26, 42, 110 S.Ct. 929, 108 L.Ed.2d 23 (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
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.
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,
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, 125 S.Ct. 2688, 162 L.Ed.2d 820 (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). 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 precision 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). Typically, such an ambiguity “lead[s] ... inexorably to Chevron step two.” Id.
Section 1153(h)(3) states: “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 original petition.”
Many reasonable constructions of
One could reasonably construe
Second,
Third,
The majority‘s reading of
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
Section
Accordingly, I would hold that it is unclear whether Congress intended for aged-out F3 and F4 derivative beneficiaries to enjoy automatic conversion to a new category and retention of their priority dates. Section
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 is reasonable, Chevron requires a federal court to accept the agency‘s construction of the statute, even if the agency‘s reading differs from what the court believes is the best statutory interpretation.” Brand X, 545 U.S. at 980. The BIA‘S interpretations of the INA are entitled to Chevron deference. See Negusie v. Holder, 555 U.S. 511, 517, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009).
The BIA interpreted
I would hold that the BIA‘s interpretation of
III. Conclusion
I would hold that
I respectfully dissent.
MARY H. MURGUIA
UNITED STATES CIRCUIT JUDGE
MILAN D. SMITH, JR.
UNITED STATES CIRCUIT JUDGE
Notes
(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 subsection (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 admitted 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 subsection (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) 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 petition.
(4) Application to self-petitions
Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.
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 positions of the respective parties and their amici” may demonstrate that a statute “do[es] embrace some ambiguities.” Dewsnup v. Timm, 502 U.S. 410, 416, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992); see also Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 739, 116 S.Ct. 1730, 135 L.Ed.2d 25 (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 determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (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. Nevertheless, 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, — U.S. —, 130 S.Ct. 3498, 177 L.Ed.2d 1085 (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, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005), and Rosmer v. Pfizer Inc., 263 F.3d 110, 118 (4th Cir.2001) (same).
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. Kristen may file an F2B petition for her daughter Sandy.
Contrary to the majority opinion, the statute does not “expressly recognize[] the possibility of automatic conversion of a subsequent petition.” As the Second Circuit noted, “[e]ach time the Act uses the word ‘conversion’ it describes a change—without need for an additional petition—from one classification to another, not from one person‘s family-sponsored petition to another.” Li, 654 F.3d at 384 (emphasis added).