we'll hear argument now in case twelve nine thirty mr chief justice and may it please the court the board of immigration appeals reasonably interpreted section eleven fifty three h three when it ruled th creation of a new petition by a new petitioner did not qualify as automatic conversion of an existing petition to an appropriate family sponsored category that interpretation is supported by the text and by the structure of the statutory s indeed in voids destabilizing that scheme by displacing waiting aliens who have long had qualifying relationships with lawful permanent residents and putting ahead of them in line a large number of adults aged out former derivative beneficiaries who have it's not the be twenty years no your honor it won't be twenty years but it could be years and these people in the f to be law and have already been waiting for years to get up to the front of the line what about all the time  know i think it's mistaken to think of a derivative beneficiary as waiting in line and being entitled to credit for waiting in line for a couple of different reasons first of all the derivatives rights are as the name suggests completely derivative of the principle beneficiaries rights if the principal beneficiary never becomes a lawful permanent resident never crosses the border into this country then the druid gets nothing for the time that the principal beneficiary spent waiting in line in addition there derivative beneficiaries who under any understanding of what it means to wait in line can't be conceived as having waited for the time that the principal beneficiary has waited and let me give you an example of that in the f for line someone could for line for fifteen years let's say as a principal beneficiary and then just as they've been getting up to the front of the line and their priority date is going to become current they get married to somebody and the person they get married to has a seventeen year old child at that point in time that stepchild at seventeen year old child under the definition of child in the statute will count as the principal beneficiaries child and if it's a year later the principal beneficiaries priority date becomes current and that principal beneficiary is entitled to immigrate to the united states and become a lawful permanent resident they're going to be able to bring that seventeen year old at that point eighteen year old step child along with them as a direct derivative beneficiary that stepchild did not wait in the line for the first fifteen years that principal beneficiary was waiting and so that example i think shows why when you look at a derivative beneficiary you want to look at the end of the process a snapshot in time of when the principal beneficiary is coming to this country and what the statute says it is her princip well i think that if if automatically converted in the context of the statute if that's triggered by a particular event then it has to happen as a result of that event yes your reading of the statute gives each three a very very narrow scope isn't a petition filed by a legal permanent resident on behalf of that person's spouse right and if that if they have a minor child the minor child would be a derivative right and  yes it also would apply in the situation where enough to a petition is filed for a child as the principal beneficiary and the child ages out of that status but i also like to say that it doesn't actually apply to all age perhaps even slightly narrower than your honor has describe it applies to situations where there can be automatic conversion of the existing petition in movement into a new appropriate category without a change in the petitioner and so for some of the reasons that i something like it let's look at all of the derivative beneficiaries in the eps f one two eight to be three or four and for the most part their grandchildren they would be your children sometimes nephews and nieces and now think of the set of what percent of that set do you think are accounted for by the f two a people who are the only ones on your interpretation that three would apply to i don't know what percentage in any idea any rough idea because if you just look at it ones natural instinct is just put justice alito said this is a minuscule component of a sec it's much bigger and therefore it's just unlikely that congress meant three to apply it to a microphone to a little molecule when there's a whole ocean now that's the kind of argument that you're up against i think so i wanted to ask you that empirical question if you can give me any idea of the empirical yes your honor well before i get to the question of the numbers and i can give you some numbers although not perfect numbers because of how records are kept in this area i just like to say that keep in mind that what congress was reasonably interpreted to be doing here is picking up on existing regulations that was targeted specifically at this very group that we're talking about i'm going to lay down the question but yeah they had a regulation so why didn't they copy the regulation well it would have been much much simpler to say this is limited to a beneficiaries then to write it the way they did and say this is to everybody who wagers out there are two reasons i think why they didn't copy the answer him and then ok with respect to the numbers in a reply brief on page eighteen in the footnote we've given the best numbers that we were able to come up with and they are not complete numbers about people who are aging out every year for as long as the state department's been keeping records about this which is not all that long and you can see that there is a series of current articles there for with respect to each year the first number in the parent relevant thing is if we can get some idea which seems paper that your interpretation of pausing to only to a subset of those people and just from reading it but it's quanta qualitative reading it sounds like a tiny program there are also people who adjust their status to lawful permanent resident in the united states and those numbers just aren't kept we try to get them so we don't talk to bruce between ten percent and sometimes you can talk to thirty percent it varies your honor and as i say these numbers aren't perfect but i think it gives you a sense of the universe that we're talking about here to the best of our ability so if i could turn back to just a sort of my horse question about why they didn't just go ahead and copy the language of the regulation into the statute and why they didn't just say  lay in the statute i think the reason gets back to what i was discussing earlier actually with justice alito which is that it actually would have been over inclusive if they had just said f two a beneficiaries are covered because there is a set of f to a deriv beneficiaries who don't benefit from the language of section eleven fifty three h three because they are the child of the petitioner is a spouse but they don't count as the child of the petitioner probably for a stepchild kind of situation like i was discussing earlier if the stepchild is over eighteen at the time of the marriage they don't count as a step parents child under the statute so there is a tiny corner here that would get carved out and actually congress did a very good job in the statute of capturing exactly the univers of people that was captured under the preexisting regulation the preexisting regulation required there to be another petition filed by the same petition or an automatic conversion to the appropriate gets exactly the same kind of result the o reason i think why congress might not have specified f two a in section eleven fifty three h three in addition to just its understanding of automatic conversion as a term of art in this area that was doing the work that it wanted is that section eleven fifty three three now function smoothly if there is a change in the family sponsored categories which has happened in the past congress has changed up those categories added categories and so if for instance congress were now to add a category four two lawful permanent residents who are exactly the same except that one has a minor child and one has an adult american child so the latter files a have to be petition gets in my own particular the date comes up the child is aged out and so now you would say that would be converted to enough to be petition but the person would be the child would be added much lower point right then of then the first one why would congress and want to i don't think that's necessarily true would depend on one of the priority dates were working between that when they were coming current in the different categories i do think it's true that the aged out f to a individual would go into the middle or the back of the f to the line the way that the priority dates are currently working out and the other one would be higher up well but they would yes i suppose that's true but the person who would be keeping your original priority date so they're not in total more than that and the reason congress might have wanted to put people into the middle or back of the f t p line and not right up to the front of the f t p line which would be the effect of respondents interpretation is that that's extremely disruptive to the line and i would like to spend a few minutes talking about that because i think it's critically important because it's going to before you do that  just ask you to respond to a different type of what congress was up to here and tell tell me what if anything you think assume you think that congress actually was not intending this very small category that congress was intending for this to be a pretty wide  provision but what congress was it was laboring under a misapprehension i mean it thought that you could do this kind of automatic conversion with respect to all of these people and it turns out congress was just utterly wrong on that so but congress includes the slant which about automatic conversion so what do i do if i basically have a hunch that that's what congress was thinking but yet the language that it adopted thoughts about automatic conversion which  isn't possible for many of this category i think it's the language that's on the face of the statute that's important and it's ambiguous for the very reason that you just gave which is that there are a lot of people for whom automatic conversion to the appropriate category just isn't going to appropriate in immigration contacts and i think any immigration context is appropriate for it it's this one because very delicate lines have to be drawn here if someone has helped someone else is hurt and it's something where you have to step very carefully otherwise there's going to be real destabilization of the system and just before i turn to that i may just say one more thing about what congress was thinking to the extent that you look at the legislative history here there is no indication that congress was thinking that this would sweep broadly in fact there are many statements on the floor about not wanting to displace people who are waiting in line which would cut in the other direction so the destabilization that would occur as a result of response interpretation would be many people and we can't quantify exactly how many but we have reason to think that the number is quite large would come pouring into in most cases the very front of the f to be line and would hold it up for very significant periods of time and perhaps even freeze that line altogether keep in mind that in that line there are only twenty six thousand two hundred fifty leases available per year nothing changes that and per country there are only about one thousand nine hundred pieces available per year so if you envision say thirty six hundred people from one country coming into the front of the f t line every single person in that line that's at least hundreds of thousands of people based on state department numbers and more than that probably if you have the other numbers it's going to wait for two additional years and if there are more people coming to the front lawn all those people are going to wait longer and the equities here are such that the people who are going to be pushback really haven't title meant to stay where they are and that's for this reason the people coming into the front of the line the aged out f three f four derivative beneficiaries have only just just moments before this happened obtain some kind of qualifying relationship with a u s citizen or a lawful permanent resident that would entire entitle them to family sponsored immigration prior to their parent the principal beneficiary becoming a lawful permanent resident they were just the nieces nephews to family sponsored immigration they've been waiting in the f t v line maybe for years they've been separated from their parents for that entire period of time most likely and what respondants position would mean would be that these aged out f three f order of beneficiaries would basically experience no period of separation from their parents because they would we don't have numbers on separation from parents we do know that these people the ones that would be called on the broad interpretation have also been waiting for years and years and years and d i mean all right go ahead i would say for the reasons i gave earlier though i don't think it's right to think of derivative beneficiaries as themselves waiting in line and i really do think that that's the wrong way to look at the problem in this case the reason that aged  two a derivative beneficiaries get the benefit of section eleven fifty three age three is not that they've been waiting in line it's that they themselves have a relationship to a lawful permanent resident they either didn't title them or would entitle them to be a principal beneficiary in their own right what is your real qual here with with the idea of an appropriate category or with automatic conversion on the response for you why you something are an automatic conversion because they say that as soon as the person ages out they they can be moved into a into another category that sounds like it's automatic and i do think you have to look at the phrase as a whole but i also don't think that that's what respondents are arguing they're arguing that why is an automatic well i think it's not automatic because at the moment we step back and say i think there are two different problems with response position one is the question of whether you can ever have automatic conversion to an appropriate category of an existing petition when you're subbing in someone new is the petitioner so that's one issue and then there's a separate issue of automatic just mean something occur without anybody having to initiate the change that's true so why isn't there or why isn't it automatic you know well i think with respect to the issue that i was just talking about which is the question of whether you can ever convert a petition to a make a petition to something that's by a new petition or they're there some action that's required you have to go to the new petition or the parents say would you like to petition you have to check that person and keep in mind they've never been checked at the beginning of this process when petitions are evaluated and approved to see if they qualify to be able to enter for instance to be a petition or you can't have committed certain crimes against minors and that will never have happened here so if you have to stop and do that check at that stage as well then it's starting to look a lot less automatic then there's a separate question as i say even if you did think that the statute could unambiguously be read to say that you can take a petition by someone's grandparent and make it into a petition by someone to parent there is a separate timing question that the parties are disputing here as well and that the board rolled on in its decision and won and that is what is the moment when automatic conversion is supposed to take place respondants argument is that it's supposed to take place at whatever time the beneficiary is interviewed essentially at the very end of the process a consular interview or it was just one of status interview or evaluation and that that's when automatic conversion are to happen but what the board says and i think quite reasonably is something different which is the statute gives you a date section eleven fifty three h one gives you a date as of which you were supposed to evaluate the derivative beneficiaries and that's the date that the visa it seems that you shouldn't be entitled to chevron deference on that question given what wend said about it i don't think that's true your honor i think as i read hwang in any event it says on page thirty three you get automatic conversion if the beneficiary is twenty one years or older pursuant to each one and then later in the decision on page thirty five it talks about the moment the beneficiary aged out but that i take it to be referring back to the h one determination that's been made so it's aged out not biologically in the sense of turning twenty one and celebrating you twenty first birthday but becoming twenty one over twenty one twenty one or over under each one as of that date that the vison ember becomes available to the parent i think that's how long is best interpreted there may be separate questions about whether people are entitled to the protections of each one but those aren't being raised in this case and it's not something that was itself ruled on and so i do think that there is a reasonable reading of the statute that says getting back to the question of automatically the moment the key moment is the moment that you're evaluating the derivative beneficiaries age as of and as of that date there either under twenty one and they can be treated as a child for the rest of the process or they're twenty one or over and you've got to figure out what can you do with them can they be automatically converted to an appropriate category or can they not and if not then they're out of luck and that is a way of reading the statute that makes it a very smooth movement from one category to another without any kind of gap in eligibility and it's a reasonable reading the statute so as i say i think respondents really do have to say we do have the reasonable reading of the statute i looked at the words here and it seems to me in the two paragraphs just of section five of section four they have is a critical step in their reaching their conclusion their belief that the legislative record demonstrates a clear concern on the part of congress who ameliorate the delays associating with the process of the visa processing and they say the same thing in paragraph just above yes or so that's what they think this statute is about but that statute that problem is taken care of in one v and so the question would be if that problem which subtracts all the days that there was a processing delay is taken care of on one b they can't be right but that was the purpose of three so  must you can say to me how that could possibly be right that reasoning then what we should do i guess if we think that you have authority in the government to interpret this minor part of the statute which i do generally send it back  and maybe give them and say you had to do this again because the reason you gave is not good i don't think it's a problem the reason they gave and i would like to explain why but even if there were probably the reason they gave i don't think it would be appropriate to send it back and let me talk about each of those with respect to the reasoning on the legislative history the way that i read the board decision is totally consistent with my own reading of legislative history which is to say that congress's overwhelming concern of the thing that congress talked about by far the most in that fairly sparse legislate legislative history here there's no report really there just a couple of days of debate within the congress talked about the most was the administrative delays that was congress's overarching concern and congress didn't really talk about h three they didn't really say what they were doing there they didn't really say what they were getting up to and so i think under those circumstances the board is reasonable in saying it makes sense to think that what congress was doing was not some kind of big change and destabilization of the whole immigrant visa system in the way that i described earlier it was doing something pretty small and it was taking an existing regulation and putting it into the statute and by doing that it could be so certain that it was going to cost us refuse slicing up to look at h re which talks about automatic conversion battered spouse sins of widow spouses and i think you're reading you're basically saying congress was not intending she let those people jump the line am i correct no you aren't you have to change better there is automatic conversion for self petitioners and their derivatives it's provided for in a provision that preexisted the child status protection act and very complete and total age out protection is provided in that protection act i think basically just to ensure that battered women people who are subject to abuse could get whatever benefit the child status protection act offered them even though they already had this other very good protection and i'm talking about a against aging out in sectional of fifty fo a one to one one and three but in addition it is possible to envision a situation where self petitioner could qualify under section eleven fifty three eighty three i don't know that anyone would ever go that route because they have this other provision that they can rely on may please the court the government began at step two of chevron but i would submit that this case can and should be resolved at step one the government is asking this court to read the statute in a highly disfavor third way such that it is not harmonious but at war with itself and nothing in the language requires that in fact i would recommend that the court turn to the back page of the government's brief where the statute is actually set forth and we can see that provision h three consists of one sentence and that sentence consists of two parts separated by a comma before the comma is the language sets forth one and only one eligibility criterion after the comma the language sets forth two things that shall be done if the eligibility criteria is satisfied now importantly the government does not contend that there is any ambiguity in the language before a comma everyone agrees that it contemplates and includes all derivative beneficiaries there's no dispute about that and a bedrock rule at step one inquiry is that the court reads the statute as a harmonious whole that goes double when we're talking about a single sentence so if there is a possible reading of this sentence that is harmonious with the clear opening clause that applies to all derivative beneficiaries under step one of chevron that is the reading the court gives to the statute it's especially important here because the precise question at issue in this case is a question of eligibility and scope who gets the benefit of the two benefits set forth the two duties set forth by the shells in the language after the comma and congress spoke to that directly in the language before the comma all derivative beneficiaries who have gone through the h one formula and whose age is determined to be over twenty one now the government's claim of ambiguity here depends on asking the court to read one of the benefits after the comma automatic conversion in such a narrow and limited way a way not required by the plain language a way that even the b i a actually did not adopt but such that it is incompatible with the broad scope set forth before the comma the court should be very suspicious of that reading because it is exactly the contrary of the traditional tool of statutory construction going back to brown  williamson and f t c versus mendell that says the court reads a statute holistically as a harmonious whole for the government's argument to work the court would have to be satisfied that we were in a situation like national association of homebuilders versus defenders of wildlife which is the only case of a cite for their ambiguity claim but there the court faced two different statutes and acted at different times that were clearly contradictory you could not comply with both of them at the same time you had to pick one or the other and in that context this court said that opens the door to agency interpretation so in order to know your automatic conversion to cover someone who have to file a new petition automatic conversion does not require the filing of a new petition  a new piece of paper that is the purpose when the board is addressed what can go the way this works you don't have to file a new petition that's common ground between us ca automatic conversion means that the old petition is deemed to have been approved in a different  adult to come in much less go ahead without a petition from that person well a couple of points on that justice scalia first of all if in the highly hypothetical situation if you have immigrated does not want an aged out child to come and join them in the united states it's then it is easy for the parent of awful permanent resident parent to withdraw a petition also the child cannot immigra person's name without that person's consent well the immigration the ultimate moment of immigration when the child comes in cannot happen without the parent's consent the parent under a provision that the government site and you're saying that this automatically gives the immigrate the first of all the child would have to provide proof that the parent is in fact a permanent resident and would also have to provide an affidavit of support under a provision of the government sites and its reply brief agreeing to support the child so that he or she does not become a public or someone who did not want the child to come in there are plenty of off ramps that that petition or intake and in order to avoid that now so that is not an impediment to argument at all in the usual case a petition has to show a bunch of things you have to come in and say i'm a legal ignore all of those requirements that usually have to be shown at the threshold for a petition to be accepted isn't that right that's that's not right at all just taken certainly not if they have to be ignored there is an adjudicator petition on file by the us citizen relatives but in order for the child to immigrate to the petition the new british or the lawful permanent resident parent has to meet all the requirements which are assessed at the moment that the child's visa application is adjudicated that is also when the determination of the ensure the qualifications of the petitioner to make sure that they actually are a us citizen or permanent resident entitle to petition and the qualifications of the beneficiary to make sure that they have met all the required act or is exactly right and the issue of of time i mean i think maybe it's worth backing up and talking about how we think automatic conversion is supposed to function it what happens is you have the petition originally filed it gets approved and then they wait until the number becomes current and then they each each beneficiary has to file a visa application which gets adjudicated now that can be adjudicated in one of two ways depending on whether the beneficiaries are in the united states or outside notably if the beneficiary inside the united states they go through  just out of status and there is no claim on the government side that there's any obstacle to automatic conversion at that point why is that because they both go in at the same time parent and child the officer always adjudicates the principal beneficiaries file first will approve the application and then the parent becomes a lawful permanent resident on the spot and then nothing prevents the officer from looking at the child and saying well i'm doing the h one calculation your age turns out to be over twenty one under this formula nonetheless i can treat your petition as automatically converting to f to be because you are the adult son or daughter of a newly minted woful permanent resident parent was sitting right here no difficulty at all certainly no impossibility of summing to accept that argument don't you have to accept your understanding of what the appropriate date is i mean let's suppose that the government is right that the date is the one that's actually specified in the statute which says the date on which an immigrant visa number becomes available at that  the parent is not even going to be a legal permanent resident isn't that right so that to two answers to that justice kagan first of all your question to ms goldberg was completely right which is that is not the approach that the board of immigration appeals took in weighing the board thought wrongly and the government now doesn't even try to defend it that the conversion had to happen if at all at the date that the moment the moment that the beneficiary age out that's what they say they say we look to see which category the petition converted to at the moment the beneficia age out that's on page thirty five they tried to defend that in front of the this is assumed that this is the right date the one that is actually specified in the statute can you win if that's the right that it is well we don't think that is the right date i know it's a can you win if it is the right that well i think at that point the question then becomes does the conversion have to happen immediately on at that time or as long as it's converted at some point in the future are we still interpret in the statute in a harmonious way automatically doesn't have to mean immediately now we think it can mean immediately if that's how the court chooses to interpret it and still win because we think the determination happens when the adjudication happens which is when under their current procedures they do the age calculation but even if the court disagrees with me on that and thinks that the statute  requires the determination to happen sooner all that means is that some point after the term the determination the petition shall be converted but that doesn't mean it has to be done right at the time of the determination i'd like to back up though and take on the premise of the question which is that each one somehow says that the conversion in each three has to happen on the date that the visa becomes available because that's not what the statute says h three does not say that the conversion has to happen on that date it could have said there are  regulations into a four point two off i specify when the conversion happens as of a particular time rip on a particular occur congress could have taken language like that and put it in th three it did all that each one is doing is setting out t second number is an h one b and the first number is the age of the child on the date the visa became available and that is reduced by the number in b which is the number of days of the petition was pending nothing in h one says you have to do this calculation at a particular time it just says when you do this calculation here are the numbers you use but it but the determination itself is a matter of agency procedure and under their current procedures it's not disputed what happened this happens at the time after the visa application has been filed and it is ready for adjudication when the officer sits down whether it's a state department consular officer outside the country or a c i s officer in the country sits down with the applicant and make sure that all of the eligibility criteria are met including this available for the alien namely for charles at that moment we calculate josephs age and it's twenty four so your idea is that charles is current everything's fine he goes to the port or the office wherever he's supposed to go and he brings joseph with you at that point joseph since he is no longer a child has to come in under another category and that category is going to be i guess to be because charles will be now in l p r and joseph will be unmarried over twenty one  with with one tweak which is i think you're positing that your brother and his son are outside the country not going for adjustment of status where the situation is a bit different because then your brother become a permanent resident immediately there's no problem going to a port ok but for consular processing i think what would happen is you when you go to the consular office judge briars application would be accepted and the calculation would be done for the  son and it would be all right you are now down no longer qualify as a derivative because you're twenty four but there is one thing missing charles has not filed a petition that what do we do about what happens then is what can happen already under the agency procedure which is they deny josephs application without prejudice to reactivation within a year which they can do they do it already judge bryer immigrates to the united states he goes up to the port he is admitted as a lawful permanent resident and the moment that happens in the moment joseph gets proof of that happening he goes back into the consulate and says all right they don't doesn't doesn't that doesn't charles as a lawful permanent resident have to follow a piece of paper called a petition in which joseph is mid primary beneficial i mean also we have two arguments on this our principle position is no because at that point there can be automatic conversion from your honour's petition  constructively and that's what automatic conversion is that the petition is deemed as though it had been filed for purposes of a different category and even in the situations where the government agrees it applies the f to a case not only the category changes the principal beneficiary changes because in the read the original f two a petition was for a spouse it converts to an f to be petition for the child with the aged out child there's no reason the government asserts that there is something in the nature of the word conversion that makes it impossible for the titian or to change that that is somehow a barrier now there's no reason to think that that's the case first of all to be i may never said that that was the case when the b a a talks about the meaning of conversion in the wang opinion it says a conversion is used when quote a visa petition converts from one of these a category to another not a problem here and the beneficiary of that petition then ferals within new classification without the need to file a visa petition nothing about the identity of the petitioner and conversion just means a transformation there's no reason that a change which can already the government agrees involve a change to a different category for a different principal beneficiary can also involve a new a change or which clearly did say that if the that a new petition has to be filed and it has to be filed by the same and if i understand you the period will be deemed to have filed a petition for admission of this no adult right that is correct but the parent withdraw the petition if he or she would ever wish to do so yes and the child cannot immigrate without the parent taking additional steps most notably the fi an affidavit of all of this flows from the word automatic this from the from the phrase automatic conversion yes and the fact that congress in the opening clause before the comma of this provision made very clear that it is to apply to all derivative beneficiaries because it says if you go through the calculation of age of h one which everyone agrees even the vacated panel opinion the ninth circuit agreed with this and even the government agrees that each one applies to all derivative beneficiaries and if you go through that calculation and your age is still over twenty one when you come through it then your petition shall automatically be converted to the appropriate category and if for some reason justice scalia the parent has a problem with that there are plenty of ways for the parent to stop the immigration of the child although i've never heard of a situation where that might actually happen one thing i would like to back up to just because we are at chevron step one and one of the issues that this court indicated in brown and williamson as important for that  that analysis is a modicum of common sense as to the manner in which congress would have been likely to delegate this particular question to the agency the question here isn't some interstitial matter or some filming of a gap that congress is not likely to have turned its mind to it is a foundational question who gets the benefit of these mandates after the comma of the automatic conversion and the retention of priority date it's unlikely that congress didn't think about something as basic as that and if they didn't mean to delegate that to the board of immigration appeals it's a very strange way of doing it because there's a slightly another understanding of chevron is that sometimes congress writes confusing statutes that point in two different directions at once and then there's a choice d the is the court make the best of it or does the agency make the best of it and the agency knows a lot about the subject matter and especially this agency and so irrespective of whether congress meant to delegate something in some very self conscious way this is a confusing statute it's kind of a model the i and the the agency gets to do it i would certainly agree justice kagan as a general matter that the immigration law is confusing but i don't think it's any more confusing than other statutes that where this court has worked through it and found the the ultimate provision at issue to be clear on the question at issue and here the question is who gets the benefit of it and we have an opening clause that is undisputed in its meaning that covers all derivative beneficiaries we also have benefits automatic conversion and retention priority date that clearly can be applied possibly not only possibly but easily to the full scope set out in the clause before the comma and we have an omission presumably deliberate of specific limitations not only in the regulations but also in the v visa provision which we cite which specifically call out the very group of the government now is trying to favor if congress had meant to say this only goes to f f two beneficiaries it had two very easy examples of how to do that it deliberately presumably chose not to do that as the fifth circuit observed and as the questioning earlier in the argument indicated if all that the congress was trying to do here was c existing regulation it was very easy for them to say so but this is an ameliorative provision even the knowledge that they were trying to solve a problem that happened when people have been waiting for a long period of time and not just the beneficiary but also the not just the derivative beneficiary but also the principal beneficiary i mean the the lead respondent in this case had been waiting a long time to emigrate with her husband and her family and then when the time came she was told you can all go except because he happened to turn twenty one four months before the visa number became available congress recognized that was a problem and tried to fix it and they did fix it clearly that is the commonsense reading of this provision that the clear language upfront before the comma sets out scope and the congress meant the remainder of the provision to be read consistently harmoniously holistically as this court has said it always does with that scope not to read it in tension in some kind of irretrievable hostility with itself which is the govern the argument that the government needs to convince this court of in order to even get to step two now first we do have an alternative argument with with which is you know independent even if this court were to agree that when our respondents children are not entitled to automatic conversion although we think they clearly are then at the very least there is another way to read the statute harmoniously which is that they are entitled to the retention of priority date that is the main benefit that is provided by each three it's the benefit that is mentioned in the in that did title of the statute and it's all that's needed to affirm the judgment here and again remember the stand all we're all we need to show for our purposes to affirm the court of appeals is that the language after the comic can be read in a way that i consistent with the language before the comma that sets out the broad scope of the provision it's at least possible to read the retention language as an independent benefit congress repeated the word shall meaning that is an independent mandate the object mandate is different it is the alien who retains the priority date whereas it's the aliens petition that is converted and we know from ron pare that a statute that says that there is a duty to do and a duty to do be can be at least read reasonably and trying to denote is the fact that what we're talking about here is a statute that the government is trying to argue is hopelessly internally inconsistent that is a step one argument that we think gets rejected at step one because the statute can read holistically and harmoniously and if there is any possible reading this is the language of brown and williamson and f t c versus mendell if the benefits after the comma can be read in a way that is consistent with the broad scope that congress said this statute is to apply to that is the reading to be given now this is at that would depend entirely upon whom which way do you want to get to the word automatically i frankly find it hard to think that all the things that you say are going to happen flow seems to be we would defer to the agency or not not to the circuit this is not seeking deference to the ninth circuit by any means just a silly i'm seeking deference to congress and its plain language and that's precisely the point now going back to automatic since your owners want full focus on that i mean automatic just means it happens without any further interaction by the by the alien all it means in the regulations is that the agency regards the petition as being approved in a different category and that certainly can happen in our case the government doesn't actually dispute that it happens in the adjustment of status context they just argue that somehow the the difference in petitioner is relevant but yours is a both suppose everybody knows that for the group the covered by the  fundamentally happens is that the petition gets filed by the u s citizen relative and then after it's approved just by basically checking that the relative is entitled to file that petition then everybody waits until the petition  the petition the priority date of the of the beneficiary becomes current according to the state department lines there it's not as though there's a a constant re updating to see if anyone has aged out or anyone is naturalized or no one's gotten married or anything like that if somebody wants to do that then obviously they can send something in but it's not as though there is a continuous updating of the file until the time comes when a visa application is submitted and when a visa application is submitted then it is adjudicated and then all of these things are checked and the determination of age under age one happens and that is the point where the automatic conversion is going to happen and as long as that happens while the parent is already a lawful permanent resident there is no obstacle to conversion and no obstacle to it being automatic because nothing else needs to be done all that has to happen is the officer has to regard it as having been approved in the f t can i can ask you a quick question yes or alternative or you're in justice scalia i take it your argument is look at the words the part the far the comm big now has the agency ever expressed a view in respect of whether you are right or wrong about your independent i don't think so so even though it meant the right thing i don't mean they are in respect to be send it back to the agency so that they can express a view in respect of that i think that certainly and possibly qualify for be without qualifying for a new group can you retain your original priority if you have  been converted to another category the way that it's a simple it's a we're obviously conjunctive the way the government has been applying this provision since it's an act and for over ten years justice scalia has been to require everybody even the people the f to a beneficiaries whom the government is now contending are entitled automatic conversion it has required them to file to get a new petition filed it has been denying automatic conversion to everybody and it did that up through the filing of our red brief it was only after we pointed this out a week before the government filed its reply brief in this court c i s issued new guidance saying ok henceforward you don't need to filing a petition anymore as far as i know for consular processing cases they're still doing  old way you still cannot get automatic conversion but you do get to retain your priority date they are clearly implementable as separate benefits that is how this has been done over the last ten or eleven years until the government came time to  all that proves is that you need either automatic conversion or the filing of a separate issue but you obviously need either one or the other of those two s before the report the alien show retain the original priority makes any sense we don't disagree with that justice scalia but we have new petitions that were filed as a protective matter in these cases that that's not a problem precisely because the government was requiring everyone to file a new petition all of the respondents children in this case have f to be petitions pending we don't think we need them our primary argument is they should have had the original petition converted but if for some reason this court disagrees we have to be petitions there as to which the priority date can and should be retained so either of these is a sufficient basis to affirm the court of appeals i haven't spoken much about step two of chevron because i think it can and should be resolved at step one but i would like to address the question that the response that was made in response to justice ginsburg's question at the beginning the point about the categories here it is a natural phenomenon of these categories of their flu it people are coming in and out of them at various times depending on naturalization on marriage on terminations marriages people adopt children as people decide not to immigrate as people pass away there is these are hermetically sealed categories also there is no way to apply h three without some kind of movement even the government's theory of h three some people are going to go out of the f two a category into the f to be category and so the question is under chevron step two which again we don't think the court needs to address has to be a draw on a rational line here within this group of beneficiaries are all f to be all children of lawful permanent residents and the line the b a drew is it says we're going to treat better people who have to lawful permanent resident parents then people who have one lawful permanent you your honor the response for trying to put far too heavy a burden on the government in the chevron deference case so long as the agency has arrived a reasonable reading of this very complicated statute the agency is entitled to deference here and the respondents idea that some kind of internal inconsistency is absolutely required here is wrong automatic conversion in the phrase about automatic conversion is ambiguous and it renders the whole provision ambiguous and let me address the idea that everyone before the comma three one in the if cla sectional empty three h three necessarily qualifies here that's not true under respondents own reading and it can't be true because there are going to be situations where someone has their age calculated as over twenty one as of the date that the so becomes available to the parent and the parent never becomes a lawful permanent resident they don't qualify they come to the border and they are not let through the border and so in that situation there are going to be people who are named in that first part of the clause and i don't automatically version what's he saying is that's true  that's no murder one it's not true with respect to f two a derivatives because they have an existing relationship with the existing petitioner they don't need the primary beneficiary to become a lawful permanent resident in order to get automatic conversion but the broader point is that we are talking about before their parents no it's not that they can clear parent has to become a citizen and then they can come in korea yes your honor but they don't have to get automatic conversion they are not relying on that new lawful permanent resident they are relying on their existing relationship with somebody else but the broader point here is we aren't necessarily talking about a subcategory of people who are named in that if we're going to benefit from automatic conversion there's another example as well in the diversity visa context diversity of the says don't have priority dates so it's awfully hard to see that derivative beneficiaries of diversity visas who are named in the each to definitional section are going to be able to necessarily benefit from section eleven fifty three h three and even if you did think that everybody had to sort of run through the eleven fifty three h three an the answer you come up with with respect to certain people is it's a no category there is no procreate category for them so the category is nothing i'd like to talk a little bit as well about the retention issues respondents discussed and the implication of respondents argument is as i think justice scalia recognized in his question that somebody can get a priority date and just walk around with it even if there is no valid petition pending as to them and even if their parent never becomes a lawful permanent resident so that would mean that eight out derivative beneficiaries under response interpretation would be better off than children whose parents never become a lawful permanent resident they would have a priority date somehow in their pocket that they could walk around with and use twenty years later when somebody filed a different they retain the priority date if the automatic conversion is possible so that there's a specific petition being identified that that priority date is going to attach to and not that you just some have a priority date which is keep in mind a filing date that you're just going to kind of hold and walk around with and  maybe retain well but in a situation in which the parent never becomes a lawful permanent resident that would mean that would turn the notion of a derivative beneficiary upside down that would mean that someone could in effect be a derivative beneficiary and use that priority date in the clearly on page thirty five of its decision says the conversion means that you don't need a new petition thank you counsel the case is submitted