Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 1 of 38

1 ROBERT L. REEVES California Bar No. 92878
2 NANCY E. MILLER California Bar No. 120031
3 JEREMIAH JOHNSON California Bar No. 227275
4 JOYCE A. KOMANAPALLI California BarNNo. 231436
5 REEVES & ASSOCIATES A PLC 2 North Lake Avenue, Ninth Floor
(62 ] 6 Pasaden~ CA 9110 1I Tel: (62 5779955-6777 7 Fax: 626 795-6999
irnrnigration@rreeves.com 8 99 Attorneys for Plaintiffs

T\,o";';:;
.,·<
,'!

"";c::;:;:::~~
c:::.
.>;:::;::7;~~~

\"~ ".:-"

"";i11

Vv·"·: -·"·:

1["'.".....))

C.,J)

r["·qq

:: -.-. ."....
~:: ·',c:·':~ ..:: .,
e:D
-._, UIl

10

11

12

THE UNITED STATES DISTRICT COURT FOR THE

13

CENTRAL DISTRICT OF CALIFORNIA

14
15 TERESITA G. COSTELO, and

a S)A CV0 8- 6888

16 LORENZO P. ONG, Individually And On Behalf Of All
17 .Others Similarly Situated,

) Case No. ) )

18

)

19
Plaintiffs, 20

) COMPLAINT FOR ) DECLARATORY, MANDAMUS ) AND INJUNCTIVE RELIEF

21

v.

)

)

22 MICHAEL CHERTOFF, Secretary Of ) [CLASS ACTION]

23 The Department Of Homeland

)

2244

Security; UNITED STATES CITIZENSHIP

) )

25 AND IMMIGRATION SERVICES; )

2266 EMILIO T. GONZALEZ, Director, )

United States Citizenship And

)

27 Immigration Services; DAVID

)

28 TYLER, Director, National Visa

)

Center; CHRISTINA POULOS,

)

1
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 2 of 38

1I Acting Director, California Service )

22 Center, United States Citizenship and )

Immigration Services; And

)

3 CONDOLEEZA RICE, Secretary of )

4 State,

)

)

5

Defendants.

)

6

)

7

) )

8

9

lIOO

COME NOW Plaintiffs TERESITA G. COSTELO and LORENZO P. ONG

1I1I
1I2 (hereinafter "Plaintiffs"), by their undersigned attorneys, and bring this civil action

1I3 for declaratory, mandamus and injunctive relief on behalf of themselves and all

1I4
others similarly situated against the above-named Defendants. They complain and
1I5
1I66 allege as follows:

17
18 I1. PRELIMINARY STATEMENT
19
1. Congress enacted the Child Status Protection Act of 2002 (CSPA), 20 21 codified at § 203(h) of the Immigration and Nationality Act (INA), 8 U.S.C. §
22 1153(a)(3), to provide immigration relief to children of immigrant parents. Prior to
23
24 CSPA children who reached the age of 21 were no longer eligible to obtain an

25 immigrant visa with the rest of their family. These children became known as 26
"age-outs." One provision of CSPA, specifically INA § 203(h)((1l ), provides relief
27
28 from government adjudication delays by allowing the amount of time the United

States Citizenship and Immigration Service (USCIS) takes to adjudicate the visa

2
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 3 of 38

I petition to be subtracted from the child's age on the date he or she becomes eligible

2 to immigrate to the United States. This provision alone would still leave some
3
4 children behind when families immigrate to the United States. However, Congress

5 also enacted Section 3 of CSPA, codified as INA § 203(h)(3), to keep children
6
7 together with their parents.

8

2. INNAA§§ 203(h)(3) states "(3) Retention ofpriority date.- If the age of

9
an alien is determined under paragraph (1I) to be 21 years of age or older for the
10

II purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically

12 be converted to the appropp1liate category and the alien shall retain the original
13
14 priority date upon receipt of the original petittiioonn.,.,"11 As such, an aged-out child,

15 who is a derivative beneficiary of the visa petition of his parent, can now reunite
16
with their family more quickly by utilizing their parent's earlier priority date. A
17

18 child abroad who aged-out is eligible under CSPA for an immigrant visa, and if the

19
child is in the United States, he or she will be able to adjust to legal resident status. 20

21

3. When a child who is a derivative beneficiary under the visa petition

22 filed for their parent turns twenty one, he or she is considered to have aged-out. As
23 an age-out, the child is ineligible to immigrate as a derivative beneficiary under the
24

25 petition filed for their parent. Some parents have to wait up to 20 years for their

26

27

11 (a)(2)(A) refers too§§ 203(a)(2)(A) of this chapter which provides the statutory authority to issue visas to unmarried sons and daughters of permanent resident aliens. Section (d) refers to 203 of this chapter which provides the

28

statutory authority to issue visas to derivative beneficiaries i.e. spouses and children to immigrate with the principal beneficiary such as the immigrating parent.

3
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 4 of 38

1 visa number to become available and during this time their children age-out.
2 Under INA § 203(a)(2)(B), a permanent resident parent has the right to petition his
3 4 unmarried adult children. The child's priority date would then be the date the

5 immigrant visa petition was filed. Because of the limited number of visas and the 6 77 backlog, the child would have to wait several more years to be reunited with his
8 family. Under CSPA, however, the priority date under which the parent
9
immigrated becomes the priority date of the aged-out child. This eliminates the 10 1I1I lengthy wait and makes the child's immigrant visa immediately available in most

12 cases.

13

14

4.

Although the USCIS has granted some visa petitions and permitted

15 retention of the earlier priority dates pursuant to INA § 203(h)(3), there appears to
16
be no uniform policy from USCIS as a whole. The lack of any regulations
17
18 regarding INA § 203(h)(3) or even policy memorandum has lead to arbitrary and
19 inconsistent decision-making affecting thousands on a global level. Furthermore, 20 21 Defendants' failure to promulgate regulations implementing CSPA benefits
22 violates the Administrative Procedure Act (CAAPA), 5 U.S.C. § 551 et seq.; the Due
23 2244 Process Clause and equal protection guarantee of the Fifth Amendment to the
25 United States Constitution; and Article II, §§ 1I and 3 of the United States
26 Constitution.
27
28

4
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 5 of 38

1 I

5. This class action lawsuit presents two different classes of aggrieved

2 individuals. The members of the first class are those who filed petitions with
3
4 requests for retention of the parent's original priority date which were denied. The

5 named plaintiff in the first class, Teresita Coastelo, is a mother who properly
6 7 petitioned for her two daughters but suffers the repercussions of inconsistent

8 decisions involving the unlawful denial for one child and an approval for another

9 child. Plaintiff Castelo is among thousands of persons in this class who will have
10
11 to wait several more years before she may reunite with both daughters in the

12 United States.

13

14

6. The members of the second class are those who have received no

15 response at all to their requests for retention of the original priority date. The
16 named plaintiff of this class, Lorenzo Ong, is a father who filed more than three
17 18 " years ago a petition requesting retention of his original priority date under CSPA.

19 Defendants have failed to respond. Plaintiff Ong is among a class of thousands of
20
21 parents who continue to wait year after year for Defendants to adjudicate their

22 cases pursuant to § 203(h)(3).

23

24

7. For the foregoing reasons, Plaintiffs Coastelo and Ong, on behalf of

25 themselves and those similarly situated, bring this class action complaint to compel

26 Defendants to properly adjudicate all cases filed under CSPA, or INA § 203(h)(3),
27

28

5
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 6 of 38

1 and comply with the requirements ofrreettaaining the parent's original priority date in

2
subsequent petitions filed by the parent.
3

4

5 II. 6
7

JURISDICTION AND VENUE
8. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §

8 1l3331 (federal question jurisdiction) and 8 U.S..Cc. § 1l3361 (the Mandamus and

9
Venue Act to compel an officer to perform a duty owed to plaintiffs.)
10

11

9. This Court also retains jurisdiction under the Fifth Amendment to the

12 United States Constitution and the Declaratory Judgment Act, 28 U.S.C. §§ 2201
13
1144 and 2202, to issue Orders regarding the construction and application of Section 3

15 of the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002),
16
codified at INA § 203(h), 8 U.S.C. § 1153(h). Similarly, this COoUmli has jurisdiction
17

18 to compel the Defendants to recognize the Plaintiffs' automatic conversion and

19
retention of the original priority date pursuant to INA § 203(h)(3), 8 U.S.C. § 20
21 1153(h)(3).

22

10. The Administrative Procedure Act, 5 U.S.C. §§ 702-706, provides

23
24 additional legal authority for this Court to review, hold unlawful and set aside

25 actions of administrative agencies that are unconstitutional; that exceed statutory

26 jurisdiction or authority; that fail to abide by statutory or regulatory procedures;
27
28 and that are arbitrary, capricious, an abuse of discretion or are otherwise not in

6
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 7 of 38

1 accordance with the applicable law. See 5 U.S..Cc. § 706. The Administrative
2 Procedure Act authorizes reviewing courts to entertain "any applicable form of
3 4 legal action," including "actions for declaratory judgments or writs of prohibitory

5 or mandatory injunction" that challenge the actions of administrative agencies and
6
7 to issue all necessary and appropriate orders to redress grievances resulting from

8 agency action. See 5 U.S.C. §§ 703, 706.
9
11. Venue is proper in the United States District COoUmli for the Central 10 11 District of California, pursuant to 28 U.S.C. § 1391 (b) because this is a civil action

12 in which the Defendants are either officers of the United States acting in their 13
14 official capacities or an agency of the United States; because Plaintiffs reside in

15 this judicial district; and because many of the events or omissions giving rise to the
16 claim occurred in this judicial district.
17

18 19 III. CLASS ALLEGATIONS

20

12. Plaintiffs bring this action on behalf of themselves and all other

21 persons similarly situated pursuant to Fed. R. Civ. Proc. Rule 23(a) and 23(b)(2).
22

23 Plaintiffs provisionally propose this action be certified on behalf of the following

24 class:

25

26

All persons who have filed an immigrant visa petition(s) for their child or

children with a request for the original priority date or are the derivative

27

beneficiary of an immigrant visa petition who face future and/or ongoing

28

separation from family members as a result of the Defendants failure to

7
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 8 of 38

1

automatically convert and retain the original visa petllttlwOn priority date

2

pursuant to Section 3 of the Child Status Protection Act.

3

4

13. Members of the proposed class number are in the thousands. The

5 class members are so numerous that joinder of all members is impracticable.
6
14. The claims of the proposed class representative and those of the
7

8 proposed class members raise common questions of law and fact concerning
9
whether the Defendants may refuse to recognize a statute that preserves a parent's
10
11 original priority date for use by their sons and daughters after they tum 21. This
12 and similar questions are common to the named Plaintiffs and to the members of
13
1144 the proposed class because Defendants have acted and will continue to act on

15 grounds generally applicable to both the named Plaintiffs and proposed class

16
members. The individual named Plaintiffs' claims are typical of the class claims.
17

18

15. The individual named Plaintiffs will adequately represent all members

19 of the proposed class. 20

21

16. The prosecution of separate actions by individual members of the

22 class would create a risk of inconsistent or varying adjudications establishing
23
incompatible standards of conduct by Defendants. The issuance of regulations,
24
25 forms, standards ancdl/or procedures is a national function of the Department of
26 Homeland Security, not a function performed differently in each individual case or
27
28 in each USCIS district or region.

8
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 9 of 38

1

17. Prosecution of separate actions·' would also create the risk that

2 individual class members will secure court orders that would as a practical matter
3

4 be dispositive of the claims of other class members not named parties to this

5 litigation, thereby substantially impeding the ability of unrepresented class 6 7 members to protect their interests.

8

18. Defendants, their agents, employees and predecessors and successors

9
in office have acted or refused to act, and will continue to act or refuse to act, on
10

11 grounds generally applicable to the class, thereby making appropriate injunctive

12 relief or corresponding declaratory relief with respect to the class as a whole. The 13 1144 individual named Plaintiffs will vigorously represent the interests of unnamed class

15 members. All members of the proposed class will benefit from the action brought
16
by the individual named Plaintiffs. The interests of the individual named Plaintiffs
17

18 and those of the proposed class members are identical.

19

20 21 IV. PARTIES

22

A. PLAINTIFFS

23

24 FIRST CLASS: Parents who have filed an immigrant visa petition or are the 25 adult children beneficiaries of an immigrant visa petition who face separation from 26 each other as a result of the Defendants refusal to automatically convert and retain
the original priority date of the original visa petition pursuant to Section 3 of the 27 Child Status Protection Act.
28

9
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 10 of 38

1

19. On July 22,,2200004, Plaintiff TERESITA G. COSTELO obtained U.S.

2 lawful permanent resident status through an approved Petition for Alien Relative
3
4 filed by her U.S. citizen mother on January 5, 1990. Also named in the petition as

5 derivative beneficiaries were Plaintiff Coastelo's two daughters, Angelyn G. 6 7 Costelo and Anne Theresa G. Costelo. When the petition by Plaintiff Coastelo's

8 mother was filed in 1990, Angelyn was 10 years old, and Anne Theresa was 13
9
years old. When Plaintiff Coastelo's priority date became current in 2004, Angelyn 10 11 and Anne Theresa aged-out because they were over 21 years old. Plaintiff Costelo
12 filed new immigrant visa petitions for her daughters on September 23, 2004, and 13 1144 also requested retention of the January 5, 1990 priority date. Defendants

15 responded with an approval of the original priority date for Angelyn, and a denial
16
of the original priority date for Anne Theresa. Plaintiff Costelo resides in Long
17

18 Beach, California, and her daughters remain in the Philippines.

19

20 2211 SECOND CLASS: Parents who have filed an immigrant visa petition who face
separation from their children as a result of the Defendants failure to act regarding 2222 the automatic conversion and retention of the original priority date of the original 23 visa petition pursuant to Section 3 of the Child Status Protection Act.

24

25

20. On June 16,,22004, Plaintiff LORENZO P. ONG obtained U.S. lawful

26 pennanent resident status through an approved immigrant visa petition filed by her
27
28 U.S. citizen sister on May 7, 1981. Also named in the petition as derivative

10
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 11 of 38

I beneficiaries were Plaintiff Ong's two daughters, Vermnilee M. Ong and
2 Lucheevette M. Ong. When the petition by PlaintiffOng's sister was filed in 1981,
3 4 Vermnilee was 4 years old, and Lucheevette was 2 years old. When Plaintiff Ong' s

55 priority date became current in July of 2002, they had aged-out because they were
6
77 over 21 years old. Plaintiff Ong filed new immigrant visa petitions for his

8 daughters on March 8, 2005, and also requested retention of the May 7, 1981
9
priority date. As of today, Defendants have not responded. Plaintiff Ong resides
10
1I1I in Artesia, California, and his daughters remain in the Philippines.

12

13

14

B. DEFENDANTS

15

21. Defendant MICHAEL CHERTOFF is the Secretary of the Department

16
of Homeland Security. He has a mandate, pursuant to 8 U.S.C. § 111103(a) and 6
17

18 U.S.C. § 202(3), to administer and enforce the Immigration and Nationality Act,

19 and to enforce other laws related to the immigration and naturalization of aliens. 20

21

22. Defendant UNITED STATES CITIZENSHIP AND IMMIGRATION

22 SERVICES is a department within the United States Department of Homeland
23
Security. That agency has a mandate, pursuant to 6 U.S.C. §§ 271l((aa)(2) and
24

25 271(b), to process and adjudicate immigrant visa petitions and other petitions for
26 immigration relief, and to process and adjudicate applications for immigration
27
28 benefits.

II
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 12 of 38

1

23. Defendant EMILIO T. GONZALEZ is the Director of United States

2 Citizenship and Immigration Services, a department within the United States
3
4 Department of Homeland Security. He has a mandate, pursuant to 6 U.S.C. §§

5 271 (a)(2) and 271l((b), to supervise the processing and adjudication of immigrant
6
77 visa petitions and other petitions for immigration relief.

8

24. Defendant CONDOLEEZZA RICE is the Secretary of the Department

9
of State. She has a duty, pursuant to 8 U.S..Cc. § 1I1I0044((a), to administer and enforce
10

11 the provisions of the INA and all other immigration and nationality laws related to

12 the powers, duties, and functions of diplomatic and consular officers. She also has
13
1144 the power, pursuant to 8 U.S.C. § 1II10044((aa), to establish regulations necessary for

15 carrying out her statutory authority.
16
25. Defendant DAVID TYLER is the Director of the National Visa
17
18 Center, an office within the Bureau of Consular Affairs for the United States
19 Department of State. He has a duty delegated by the Secretary of the United States 20 21 Department of State, pursuant to 8 U.S.C. § 1l110044(c), to administer and enforce the
22 immigration and nationality laws, and to process all approved immigrant visa 23 2244 petitions transferred from United States Citizenship and Immigration Services,
25 including applications for immigrant visas.
26
26. Defendant CHRISTINA POULOS is the Acting Director of the
27
28 California Service Center of UusScCrIsS.. She has a duty, delegated by the Director of

12
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 13 of 38

1 USCIlS, to oversee the filing and processing of applications for immigration
2 benefits and relief at the California Service Center.
3
4

5 IV. STATUTORY REFERENCES

6

7

27. Section 204 of the Immigration and Nationality Act, 8 U.S.C. § 1154,

8 governs petitions for classification as a family-sponsored preference immigrant.
9
See INNAA§§ 204(a))((1l)(B), 8 U.S.C. §1154(aa))((1l)(B)(i) "[a]ny alien lawfully admitted
10
11 for permanent residence claiming that an alien is entitled to a classification by

12 reason of the relationship described in § 203(a)(2) [of the INA] may file a petition
13
1144 with the Attorney General for such classification." INA § 204(a)((1l))(B)(i), 8

15 U.S.C. § 1ll15544((aa))((ll))((BB)(i).
16
28. Section 204(b) of the Immigration and Nationality Act, 8 U.S.C. §
17
18 1154(b) governs the approval of petitions for classification as a family-sponsored

19
preference immigrant. See INA § 204(b), 8 U.S.C. § ll54(b) ("[a]fter an 20
21 investigation of the facts in each case...the Attorney General shall, ifhhe determines

2222 that the facts stated in the petition are true and that the alien in behalf of whom the
23 2244 petition is made is an immediate relative specified in § 201 (b) [of the INA] or is

25 eligible for preference under subsection (a) or (b) of §§ 203 [of the INA], approve 26
the petition and forward one copy thereof to the Department of State. The
27
28

13
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 14 of 38

I Secretary of State shall then authorize the consular office concerned to grant the

2
preference status.").
3

4

29. Section 203 of the Immigration and Nationality Act sets forth the

55 preference allocation of immigrant visas for family-sponsored aliens. Specifically,
6 77 "[q]ualified immigrants who are the unman'ied sons or daughters of citizens of the

8 United States" fall into the first preference, or F1, family-sponsored immigrant visa
9
preference category. INAA,,§ 203(a))((1l), 8 U.S..Cc. § 1153(aa))((1l). Other "[q]ualified
10
1I1I immigrants (A) who are the spouses or children of an alien lawfully admitted for

12 pernmnanent residence, or (B) who are the unmarried sons or unmarried daughters 13 1144 (but are not the children) of an alien lawfully admitted for pernmnanent residence,"

15 fall into the second preference family-sponsored immigrant visa preference
16
category, or F2A and F2B preference categories, respectively. INA §§
17
18 203(a)(2)(A) and 203(a)(2)(B), 8 U.S.C. §§ 1153(a)(2)(A) and 1153(a)(2)(B).
19 Other "[q]ualified immigrants who are the manied sons or married daughters of 20 2211 citizens of the United States" fall into the third preference family-sponsored
2222 immigrant visa preference category, or F3 preference category. INA § 203(a)(3), 8 23 2244 U.S..Cc. § 1153(a)(3).

25

30. The statutory provision for the admission of immediate relatives of

26 United States citizens, who are not subject to limitations on immigrant visas, is
27

28 located at § 201l((bb))((22)(A)(i) of the INA. See INA § 20l1((bb))((22))(A)(i), 8 U.S..Cc. §

14
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 15 of 38

1 1151 (b)(2)(A)(i) (defining "immediate relatives" as "the children, spouses, and
2
parents of a citizen of the United States, except that, in the case of parents, such
3
4 citizens shall be at least 21 years of age.")

5

31. The allocation of immigrant visas for family-sponsored immigrants,

6
77 based upon the priority date, or filing date, of the petition for classification under §

8 204 of the INA, 8 U.S..Cc. § 1154, is governed by § 204(e)(l) of the INA and 22

9
C.F.R. §§ 42.53(a) and 42.54((aa))((1l). See INAA§§ 203 (e)(l), 8 U.S.C. § 1l115533((ee)(l) 10 11 (declaring that "[i]mmigrant visas made available under subsection (a) or (b) shall

12 be issued to eligible immigrants in the order in which a petition in behalf of each
13
1144 such immigrant is filed with the Attorney General...as provided inn§§ 204(a) [of the

15 INA])"; 22 C.F.R. § 42.53(a) (stating that "[t]he priority date of a preference visa
16
applicant under INA 203(a) or (b) shall be the filing date of the approved petition
17

18 that accorded preference status"); 22 C.F.R. § 42.54(a)(l) (declaring that

19 "[c]onsular officers shall request applicants to take the steps necessary to meet the 20
2211 requirements of INA 222(b) in order to apply formally for a visa as follows (1) In

2222 the chronological order of the priority dates of all applicants within each of the
23 2244 immigrant classifications specified in INA 203(a) and (b).")

25

32. The statutory provisions defining a child, for purposes of petitions for

26 classification underr§§ 204 of the INA, are located att§§ 1lO01l(b)(1l) of the INA. Under
27

28

15
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 16 of 38

1I those statutory sections, "[t]he term 'child' means an unmarried person under

2 twenty-one years of age." INAA§§ 101(b)(Il), 8 U.S..Cc. § 1101l((bb)(1).
3

4

33. CSPA relief from government adjudication delays is provided under

5 INAA§§ 203(h)(1). Under this provision, a child's age is adjusted by subtracting the 6 7 amount of time the United States Citizenship and Immigration Service (USCeIS)
8 takes to adjudicate the visa petition from the child's age on the date he or she
9
becomes eligible to immigrate to the United States. If the adjusted age is now
10
I11I under 21, that child has no longer aged-out and may immigrate with the parent.

12 INA § 203(h)(1) provides,

13

14

[f]or purposes of subsections (a)(2)(A) and (d) [ooff§§ 203 of the INA], a

determination of whether the alien satisfies the age requirement in the matter

15

preceding subparagraph (A) of§§ 101 (b)(1) [of the INA] shall be made using

16

-- (A) the age of the alien on the date on which an immigrant visa number

becomes available for such alien...but only if the alien has sought to acquire

17

the status of an alien lawfully admitted for pennanent residence within one

18

year of such availability; reduced by (B) the number of days in the period

19

during which the applicable petition described in paragraph (2) was pending.

20 21 If, after performing that calculation, "the age of an alien is determined under

22 paragraph (1) to be 21 years of age or older for the purposes of subsections
23
(a)(2)(A) and (d)."z2 Under INA § 203(h)(3), the alien's petition shall then
24

25 "automatically be converted to the appropriate category and the alien shall retain

26

27

2 2

(a)(2)(A)

refers

too§§

203(a)(2)(A)

oftthh;is

chapter

which

provides

the

statutory

authority

to

issue

visas

to

unmarried

28

sons and daughters of permanent resident aliens. Section (d) refers to 203 of this chapter which provides the statutory authority to issue visas to derivative beneficiaries i.e. spouses and children to immigrate with the principal

beneficiary such as the immigrating pareenntt.

16
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 17 of 38

1 the original priority date issued upon receipt of the original petition." INA §

2 203(h)(3), 8 U.S..Cc. § 1153(h)(3) (emphasis added).
3

4

5
6 vV.. STATEMENT OF FACTS

7

FIRST CLASS: PliaintiffTERESITA G. COaSSTTEELO:

8

9

34. On or about January 5, 1990, Plaintiff Teresita G. Castelo's United

10 States citizen mother filed a Petition for Alien Relative naming her the primary
11 beneficiary.
12

13

35. PlaintifffCoastelo's daughters, Angelyn G. Coastelo (born on November

14
3, 1980) and Anne Theresa Coastelo (born on July 6, 1977) were derivative 15 16 beneficiaries of the petition. When the petition by Plaintiff Coastee1lo0's mother was

1177 , filed in 1990, Angelyn was 10 years old, and Anne Theresa was 13 years old.

18

19

36. On or about January 22, 1990, the legacy Immigration and

20 Naturalization Service approved the visa petition.
21
37. On or about February 2004, the approved vV1Isa petition became 22
23 available. The delay since 1990 is the result of the oversubscription of visa
24 numbers that created an availability backlog until 2004. At that time, Plaintiff
25
26 Coaste1lo0's daughters aged-out because they were over 21 years old.

27

38.

28
States.

On or about July 22, 220004, Plaintiff Coastelo immigrated to the United 17
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 18 of 38

I

39. On or about September 23, 2004, Plaintiff Coastelo filed petitions on

2 behalf of her daughters with the California Service Center (CSC) of the United
3

4 States Citizenship and Immigration Service (USCeIS). The new priority date is

5 September 20, 2004. The current priority date for the Philippines for family-based
6
77 petitions filed by lawful permanent residents for unman"ied sons or daughters (21

8 years of age or older) is February 22, 1997.
9
40. On or about August 2, 220007, Plaintiff Coastelo requested Defendants to 10 1I1I retain her January 5, 1990 priority date for her daughters' immigrant visa petitions,

12 so that they could join the rest of the family in the U.S.

1l33

14

41. On or about February 12, 2008, Defendants approved Angelyn

1IS5 Coastelo's petition and retained the January 5, 1990 priority date.
16
42. On or about February 12, 2008, Defendants denied Anne Theresa's
17

18 request to retain the original priority date.

19

43. The denial of Anne Theresa's petition has and continues to cause

20

21 Plaintiff Coastelo emotional distress. She worries that Anne Theresa will never be

2222 reunited with her family. Plaintiff Coastelo experiences stress-related issues
23
2244 including headaches and tremors in her hands, and difficulty concentrating at work

25 due to the separation from her daughter. She struggles daily knowing that Anne

26 Theresa has been left behind alone in the Philippines. Despite her education and
27
28 strong work ethic, Anne Theresa will also have difficulty supporting herself in the

18
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 19 of 38

1 Philippines due to its high unemployment. What disturbs Plaintiff Coastelo the
2 most is that Defendants can issue random denials for otherwise eligible applicants
3
4 such as her daughter. If Anne Theresa were allowed to enter the U.S. with

55 Angelyn, she would be able to work to help her family financially.
6

7

8

B. SECOND CLASS: Plaintiff LORENZO P. ONG

9
44. On or about May 7, 1981, Plaintiff Lorenzo Ong's United States 10

11 citizen sister filed an immigrant visa petition for Lorenzo Ong. He became the

12 primary beneficiary of his sisterr''Ss petition.

13

14

45. PlaintiffOng's daughters, Vemilee Ong and Lucheevette, were named

15 derivative beneficiaries in the visa petition filed on· behalf of Plaintiff Ong. When
16
the petition was approved on August 4, 1981, Vemilee was 4 years old, and
17
18 Lucheevette was 2 years old.

19
46. On or about July of 2002, the visa became available. The delay since
20
21 1981 is the result of the oversubscription of visa numbers that created an
22 availability backlog until 2002. At that time, Plaintiff Ong's daughters aged-out
23
2244 because they were over 21 years old.

25

47.

26 States.
27

28

On or about June 16, 2004, Plaintiff Ong immigrated to the United

19
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 20 of 38

1

48. On October 20, 2005, Plaintiff Ong sent a letter to Defendants

2 requesting retention of his priority date pursuant to INA § 203(h)(3) for his
3

4 daughters to immigrate to the U.S. Defendants failed to respond. On December 1,

5 2005, Plaintiff sent another letter to Defendants with the same request. Again 6 77 Defendants failed to respond.

8

49. On or about March 8, 2005, Plaintiff Ong filed immigrant vV1Isa

9
petitions for his daughters with the California Service Center (CSC) of the United
10

11 States Citizenship and Immigration Service (USCIS). The current priority date for

12 the Philippines for family-based petitions filed by lawful permanent residents for 13
1144 unmarried sons or daughters (21 years of age or older) is February 22, 1997.

15

50. On or about April 9, 2007, Plaintiff Ong, by and through counsel,

16
filed a request for immigrant visa processing and retention of priority date under 17

18 CSPA. Defendants have not responded to this request.

19 51. The immigrant visa petitions that Plaintiff Ong filed for his daughters
20
21 are currently pending. Defendants have not responded to Plaintiff Ong's request to

22 retain the May 7, 1981 priority date.

23

24

52. Plaintiff Ong has and continues to suffer emotional distress as a result

25 of Defendants failure to respond to his pleas. His daughters have suppressed their
26 own personal and professional ambitions because of the delay. Because of their
27
28 limited income, they are unable to support themselves. Plaintiff Ong worries every

20
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 21 of 38

1 time his daughters get sick and he is unable to care for them. He spends over $100
2 per month for phone cards in order to keep in touch with his daughters. Phone
3
4 contact cannot substitute for personal contact.

5 6 7 VI. 8 9 10

LEGAL ARGUMENT
A. Claim For Declaratory And Injunctive Relief, Regarding The
Application Of Section 3 Of The Child Status Protection Act, INA § 203(h)(3), 8 U.S.C. § 1154(h)(3).

11
53. The plaintiffs hereby incorporate by reference all of the above-
12

13 mentioned paragraphs of the instant complaint.

14
54. Section 3 of the Child Status Protection Act provides as follows:
15

16

(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

17

(a)(2)(A) and (d), the alien's petition shall automatically be converted to the

18

appropriate category and the alien shall retain the original priority date

19

issued upon receipt of the original petition.3

20 Codified as INAA§§ 203(h)(3), 8 U.S.C. § 1153(h)(3).

21
55. The Defendants have failed to issue the Plaintiffs' visa petition with 22

23 the "original priority date." Specifically, the Defendants have refused to

24 acknowledge Plaintiffs' eligibility for the automatic conversion and retention of
25
26 the original priority date as specified at INA § 203(h)(3), 8 U.S.C. § 1153(h)(3).

27

3 3

(a)(2)(A)

refers

too§§

203(a)(2)(A)

of

this

chapter

which

provides

the

statutory

authority

to

issue

visas

to

unmarried

28

sons and daughters of permanent resident aliens. Section (d) refers to 203 of this chapter which provides the statutory authority to issue visas to derivative beneficiaries i.e. spouses and children to immigrate with the principal

beneficiary such as the immigrating parent.

21
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 22 of 38

1 Demand for visa numbers is often oversubscribed creating an availability backlog

2
spanning many years and even decades.
3

4

56. The Defendants' refusal to issue the visa petition with the original

55 priority date is at odds with the language, structure, hissttOmlYy and purpose of the 6 77 Child Status Protection Act.

8

57. The history and purpose of the Child Status Protection Act supports a

9
reading of Section 3 that is as ameliorative as it is inclusive. Indeed, Congress 10

11 enacted the Child Status Protection Act "to address the 'enormous backlog of

12 adjustment of status (to permanent residence) applications' which had developed at 1l33 1144 the [former] INS." Padash v. INS, 358 F.3d 1161, 1172 (9tthh Cir. 2004)(quoting
15 Child Status Protection Act of2001, H.R. Rep. No. 107-45, 107th Cong., 1st Sess., 16
at 2 (2001), reprinted in 2002 U.S.C.C.A.N. 640). The House Judiciary Committee 17
18 noted that at the time of enactment "the backlog of unprocessed visa[] applications

19
was close to one million," and that "approximately one thousand of the 20
21 applications reviewed each year by the agency were for individuals who had aged-
22 out of the relevant visa category since the time they had filed their petitions," due 23 2244 to delays in processing. Padash, supra at 1172-73 (citing H.R. Rep. No. 1I 077-45).

25

58. Congress expressly enacted the Child Status Protection Act to

26 "'address[] the predicament of those aliens, who through no fault of their own, lose
27

28 the opportunity to obtain [a]...visa. "'"' Padash, supra at 1ll!773 (quoting H.R. Rep.

22
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 23 of 38

1 No. 107-45, at 2). The United States Court of Appeals for the Ninth Circuit has
2 found that the Child Status Protection Act "was intended to address the often harsh
3
4 and arbitrmy effects of the age out provisions under the previously existing

5 statute." Padash, supra at 1173.

6

7

59. This Court should adhere to the general canon of construction that "a

8 rule intended to extend benefits should be 'interpreted and applied in an
9
ameliorative fashion." Padash, supra at 1173 (quoting Hernandez v. Ashcroft, 345
10
11 F.3d 824, 840 (99tthh Cir. 2003).)

12

60. The Defendants' interpretation and application of INAA§§ 203(h)(3), 8

13

1144 U.S.C. § 1153(h)(3) is anything but aIinlleliorative. Rather, the Defendants have

15 ignored both the clear language of the statute and Congressional intent regarding
16
this section oflaw.
17

18

61. Because Defendants have failed to abide by statutory procedures, their

19 actions are arbitrary, capricious and an abuse of discretion. 20

2211

62. Accordingly, Plaintiffs respectfully request that this Court enter an

22 Order consistent with Congressional intent and the clear language of the Child
23
Status Protection Act and declare the Plaintiffs' and class members' visa petitions
24

25 automatically convert and retain the original priority date pursuant to INA §

26 203(h)(3), 8 Uu..sS..cC.. § 1153(h)(3).
27

28

23
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 24 of 38

1

B. Petition For Writ Of Mandamus. Pursuant To 28 U.S.C. § 1361 And

2

1l66551l(A).

3

4

63. The plaintiffs hereby incorporate by reference all preceding

55 paragraphs of the instant complaint, as stated therein.

6

7

64. The All Writs Act specifies, "all courts established by Act of

8 Congress may issue all writs necessary or appropriate in aid of their respective
9
jurisdictions and agreeable to the usages and principles of law." 28 U.S..Cc. §
10
11 1l66551l((aa)»). When the '"''obligation of a Court of Appeals to review on the merits

12 may be defeated by an agency that fails to resolve disputteess,,'"' the All Writs Act
13
1144 authorizes courts to '"''resolve claims of unreasonable delay in order to protect its

15 future jurisdiiccttiioonn..'"' Confederated Tribes of the Umatilla Indian Reservation v.
16
Bonneville Power Admin., 342 F.3d 924, 930 (9th Cir. 2003) (quoting Telecomm.
17
18 Research & Action Ctr. v. FCC, 750 F.2d 70,,776 (D.C. Cir. 1984)).

19
65. The Mandamus and Venue Act of 1962 authorizes district courts to 20 21 issue writs of mandamus "to compel an officer or employee of the United States or
22 any agency thereof to perform a duty owed to the plaintiffs." 28 U.S.C. § 1361.
23
66. A federal court may issue a writ of mandamus to compel a federal
24

25 official's performance of official duties, pursuant to 28 U.S.C. § 1361 when "'(1) 26
the individual's claim is clear and certain; (2) the official's duty is 27 28 nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt,

24
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 25 of 38

1 and (3) no other adequate remedy is available."'"' Kildare v. Saenz, 325 F.3d 1078,

2
1084 (9th Cir. 2003).
3

4

67. Mandamus relief is available, in particular, to remedy executive

5 officials' failure to act on visa petitions for lawful admission into the United States.
6
77 See Patel v. Reno, 134 F.3d 929, 931-32, 933 (9th Cir. 1997) (recognizing

8 availability of mandamus relief for failure of consulate to act on visa applications

9
by spouse and children of United States citizen for an eight-year period).
10

11

68. Plaintiffs have a clear and certain right to have the Defendants issue

12 visa petitions in a reasonable time, and in a reasonable manner. See Greater Los
13
1144 Angeles Council on Deafness, Inc. v. Baldridge, 827 F.2d 1353, 1362 (9th Cir.

15 1987) (noting that "the plaintiffs have a clear right to have the Department [of
16
Health and Human Services] act on their administrative complaint and the
17
18 Department has a duty to act," even if the agency ultimately does not afford the

19 plaintiffs relief on their disability claims); See also, Paunescu, 76 F. Supp. 2d at 20 2211 900-01 (holding that 8 U.S.C. § 1255 "'provide[s] a 1liigght to an adjudication [of an
22 adjustment of status application]...within a reasonable time,"') (quoting
23
2244 Agbemaple v. INS, 1998 U.S. Dist. LEXIS 7953 (N.D. Ill. 1998).) Here, a
25 reasonable manner is one in accordance with the statutory framework.
26

27
28

25
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 26 of 38

1

69. A petitioner for a writ of mandamus has a "clear and certain claim"

2 when he or she has a "legal entitlement to the relief sought" that is judicially
3

4 enforceable. Lowry v. Barnhart, 329 F.3d 1019, 1021-22 (9th Cir. 2003).

5

70. For the reasons stated above, the language, structure, history and

6

7 purpose of Section 3 of the Child Status Protection Act make clear that Congress

8 intended that visa petitions of child beneficiaries who tum twenty-one years of age
9
while awaiting immigrant visa processing automatically convert to the proper 10 11 category and retain the original priority date.

12

71. An agency action is ministerial, for purposes of mandamus relief,

13

14 when the action "has been defined as a clear, non-discretionary agency obligation

15 to take a specific affirmative action, which obligation is positively commanded and
16 'so plainly prescribed as to be free from doubt."'"' Independence Mining Co. v.
17

18 Babbitt, 105 F.3d 502, 508 (9th Cir. 1997) (citing Azurin v. Von Raab, 803 F.2d

19 993, 995 (9th Cir. 1986)»). 20

21

72. The Defendants have a non-discretionary duty to issue the correct

22 priority date of approved visa petitions. 23
73. Because Congress specifically provided for the "automatic" conversion
24
25 and retention of the original priority date, Defendant's duty is non discretionary
26 and has been clearly defined.
27
28

26
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 27 of 38

1

74. There is no other adequate remedy at law for the Defendants' refusal

2 to recognize the plaintiffs' right to retain the original priority date. The plaintiffs
3

4 have jointly filed numerous requests with the defendants to enable them. See Sun

5 v. Ashcroft, 370 F.J3d 932, 943 (9th Cir. 2004) (declaring that "'where the agency's
6
77 position on the question at issue appears already set, and it is very likely what the

8 result of recourse to administrative remedies would be, such recourse would be
9
futile and is not required"') (quoting El Rescate Legal Services, Inc. v. Executive
10
11 Office for Immigration Review, 959 F.2d 7422,,7747 (9th Cir. 1991)»).

12

75. Accordingly, the plaintiffs respectfully request that this Court issue a

13

1144 writ of mandamus, compelling the Defendants to perform their non-discretionary

15 duty to issue the correct original priority date pursuant to INA § 203(h)(3), 8
16
U.S.C. § 1ll15533((hh))((3).
17

18

19

C. Claim Under The Administrative Procedure Act: Violation Of Due

20

Process Clause Due To Defendants' Failure To Abide By Their Own

21

Regulations.

22

23

76. The Administrative Procedure Act C("AAPA") permits lawsuits by

24 people "suffering legal wrong because of agency action, or adversely affected or
25
2266 aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. §

27 702. 28

27
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 28 of 38

I

77. The APA defines "agency action" as "the whole or part of an agency

2 rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to
3

4 act." 5 U.S.C. § 551(13).

5

7S8. An "order" and "relief' signify "a final disposition...in a matter other

6

77 than rule making," or the "taking of other action on the application or petition of,

8 and beneficial to, a person." 5 U.S.C. §§ 551(4), 551(11).

9
79. A "failure to act," in turn, is "properly understood as a failure to take
10

11 one of the agency actions," or their equivalents, specified inn§§ 551(13). Norton v.

12 Southern Utah Wilderness Alliance, 542 U.S. 55, 62 (2004).

1l33

14

8so0. The APA also allows a reviewing court to "compel agency action

15 unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).
16
8S1I. The Ninth Circuit specifies adherence to the following guidelines to
17

18 ascertain whether an unreasonable delay in agency action warrants the issuance of

19 relief under the APA: 20

21

1) a 'rule of reason' governs the time agencies take to make decisions;

2) delays where human health and welfare are at stake are less

22

tolerable than delays in the economic sphere; 3) consideration should

23

be given to the effect of ordering agency action on agency activities of

24

a competing or higher priority; 4) the court should consider the nature of the interests prejudiced by delay; and 5) the agency need not act

25

improperly to hold that agency action has been unreasonably delayed.

26

27
28

28
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 29 of 38

1I In re California Power Exchange Com., 245 F.3d 1110, 1124-25 (9th Cir. 2001)
2 (citing Towns of Wellesley, Concord, and Nordwood, Mass. v. FERC, 829 F.2d
3
4 275,277 (1st Cir. 1987)) (citations omitted)).

5

82. In determining agency compliance with the "'rule of reason,"'"' courts

6
77 will consider "the complexity of the task at hand, the significance (and

8 permanence) of the outcome, and the resources available to the agency." The
9
Mashpee Wampanoag Tribal Council, Inc., v. Norton, 336 F.3d 1094, 1103 (D.C.
10
1I1I Cir. 2003) (amended opinion).

12

83. Here, the Defendants' assessment of Plaintiffs' priority date is not a

13

1144 complex task. Indeed, the plain and clear language of INA § 203(h)(3) provides

15 for automatic conversion and retention of the original priority date. The failure to
16
implement concrete regulations grounded in Congressional intent and the plain
17
18 language of CSPA to safeguard families from separation has lead to arbitrary and
19 inconsistent decision-making affecting thousands on a global level. Defendants'
20
21 failure to promulgate regulations implementing CSPA benefits violates the
22 Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.; the Due Process
23
2244 Clause and equal protection guarantee of the Fifth Amendment to the United States
25 Constitution; and Article II,,§§§ 1I and 3 of the United States Constitution.
26 84. The outcome of the Defendants' detennination of the priority date is
27
28 significant and permanent. A current priority date is a statutory prerequisite for

29
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 30 of 38

1 admission as an alien lawfully admitted to the United States for permanent

2 residence.
3

4

85. There is no indication that the Defendants lack the resources to make

5 the necessary determinations of Plaintiffs' priority dates.

6

7

86. The instant case involves paramount issues of human health and

8 welfare - Plaintiffs' fundamental interest in reuniting and remaining with their

9
family in the United States.
10

11

87. No competing or higher agency priorities justify the delay in the

12 refusal to issue the correct visa petition with the correct priority date.

13

14

88. Plaintiffs have significant, fundamental interests that have been

15 prejudiced by the errors and inaction in their cases. Plaintiffs have a fundamental
16
interest protected by the Fifth Amendment in family unity and in maintaining their
17

18 familial ties. To be sure, the Fifth Amendment's Due Process Clause "applies to

19
all 'persons' within the United States, including aliennss..'"' Kaur v. Ashcroft, 388 20
21 F.3d 734, 737 (9th Cir. 2004) (quoting Zadvydas v. Davis, 533 U.S. 678, 693

22 (2001)»). Plaintiffs' fundamental interest in the unity and integrity of their families
23 24 is protected by the Due Process Clause. See Stanley v. Illinois, 405 U.S. 645, 651

25 (1972) (recognizing that "the integrity of the family unit has found protection in the

26 Due Process Clause of the Fourteenth Amendment").
27

28

30
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 31 of 38

1

89. The Defendants have identified no other interests that would be

2
prejudiced by an Order compelling the immediate issuance of the visa petitions
3

4 with the correct original priority date pursuant to INA § 203(h)(3), 8 U.S.C. §

5 1l115533((hh)(3).
6
7

8 VIII. IRREPARABLE INJURY
9
90. As a result of Defendants' actions (and inactions) families are being
10
11 tom apart, lives are destroyed and hope is vanquished.

12

91. To be sure, the Plaintiffs and those similarly situated to the individual

13

1144 named Plaintiffs will suffer irreparable injury unless this Court orders equitable

15 relief. Such injury includes but is not limited to deprivation of due process and
16
equal protection creating indefinite lengths of family separation.
17

18

92. Such separation causes Plaintiffs insufferable despair and extreme

19
psychological, emotional, physical and economic hardship. Damages cannot 20
21 adequately address the injuries suffered by Plaintiffs and their proposed class

22 members.
23 2244 IIIlIl

25 IIlIl

26 IIlIl
27
28 IIlIl

31
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 32 of 38

1 IX. CLAIM FOR RELIEF
2 93. The Plaintiffs are entitled to a writ of mandamus from this Court,
3
4 which would compel the immediate and correct issuance of the visa petition,

55 pursuant to 28 U.S.C. §§ 1651(a) and 1361, and 5 U.S.C. § 706(1).

6

7

94. The Plaintiffs are eligible for the payment of attorneys' fees, related

8 expenses, and costs, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
9

10
11 X. PRAYER FOR RELIEF

12

13 WHEREFORE, Plaintiffs pray that this Court:

14
1I. Assume jurisdiction over this action;
15

16

2. Certify this action as a class action pursuant to Rule 23(b)(2),

17

Fed.R.Civ.Proc.;

18

19

3. Declare that Defendants' denial of original priority date retention for

20

derivative beneficiaries of approved petitions for alien relatives who

21
have reached the age of 21 or over, violate the Child Status Protection 22

23

Act; the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.; the

24

due process clause and equal protection guarantee of the Fifth

25

26

Amendment to the United States Constitution; and Article II, Sections

27

I and 3 of the United States Constitution;

28

32
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 33 of 38

1

4. Issue preliminary and permanent injunctions requmng that

2 Defendants, their agents, employees, and successors in office timely
3

4

adjudicate Form I-1l30 petitions presented by the individual named

5

Plaintiffs, their proposed class members, and uphold the tenets of the

6

7

CSPA.

8

5. Award Plaintiffs costs of suit and attorney's fees reasonably incUmlTed

9
as a result of this lawsuit; and 10

11

6. Grant such further relief as the Court may deem just and proper.

12

13

14

Dated: June 19,2008

Respectfully Submitted,

15

16

17

Nancy E. !filler

18

Robert Reeves

19

Jeremiah Johnson

Joyce A. Komanapalli

20

REEVES & ASSOCIATES, A PLC

21

2 North Lake Ave., Ninth Floor

Pasadena, CA 9110011

22

23

Attorneys for Plaintiffs

24

25

26

27

28

33
CLASS ACTION COMPLAINT

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 34 of 38
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
NOTICE O.F ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY
This case has been assigned to District Judge James V. Selna and the assigned discovery Magistrate Judge is Stephen J. Hillman. The case number on all documents filed with the Court should read as follows:
SACV08- 688 JVS (SHx)
Pursuant to General Order 05-07 of the United States District Court for the Central District of California, the Magistrate Judge has been designated to hear discovery related motions.
All discovery related motions should be noticed on the calendar of the Magistrate Judge

NOTICE TO COUNSEL

A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is filed., a copy of this notice must be served on all plaintiffs).

Subsequent documents must be filed at the following location:

U Western Division
312 N. Spring St., Rm. G-8 Los Angeles, CA 90012

[X]l Southern Division

U Eastern Division

411 West Fourth St., Rm.1-053

3470 Twelfth St., Rm. 134

Santa Ana, CA 92701-4516

Riverside, CA 92501

Failure to file at the proper location will result in your documents being returned to you.

CV-18 (03/06)

NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 35 of 38

Nancy E. Miller, SBN 120u00331l Robert L. Reeves, SBN 92878 Jeremiah Johnson, SBN 227275 Joyce A. Komanapalli, SBN 231436 2 NOrth Lake Ave., Suite 950 Pasadena, CA 91101 (626)795-6777
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

TERESITA G. COSTELO; LORENZO P. ONG, Individually and On Behalf of All Others Similarly Situated;
Plaintiff( s)
v.

CASE NUMBER

MICHAEL CHERTOFF, Secretary of the Department of Homeland Security, See Attached
Defendant( s)

SUMMONS

TO: THE ABOVE-NAMED DEFENDANT(S):
YOU ARE HEREBY SUMMONED and required to file with this court and serve upon plaintiffs attorney _ "N'"N,~aa~~nn",.c,c,",'y-,--'-E,'E",',.-,'-.--',MM""'"l""--i"."ll~~l""""ee,,",",r _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ , whose address is:
Reeves and Associates, APLC 2 North Lake Ave., Suite 950 Pasadena, CA 91101 (626)795-6777

an answer to the ~-_i] complaint 1r::-:::1 _____________ amended complaint

counterclaim [~] cross-

claim which is herewith served upon you within ~ _Q_Q__ days after service of this Summons upon you, exclusive

of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded

in the complaint.

Date: JUN 2 0 2008

CLERK, U.S. DISTRICT COURT

By:

LA'REEEE: HORN

----~~~~~~---------

CV-1lA (01101)

SUMMONS

CCOD-1A

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 36 of 38

1

SUMMONS ATTACHMENT

2 TERESITA G. COSTELO, and LORENZO P. ONG,

3 Individually And On Behalf Of All Others Similarly Situated,

4

Plaintiffs,

5

v.

6 MICHAEL CHERTOFF, Secretary Of The Department Of Homeland Security;

7 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES;

8 EMILIO T. GONZALEZ, Director, United States Citizenship And Immigration

9 Services; DAVID TYLER, Director, National Visa Center; CHRISTINA

10 POULOS, Acting Director, California Service Center, United States Citizenship

11 and Immigration Services; and CONDOLEEZA RICE, Secretary of State,

12

Defendants.

13

14

15

16

17

18

19

20

21

22

23

24

25

ATTACHMENT TO SUMMONS

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 37 of 38
UNITED S' ;,Ss DISTRICT COURT, CENTRAL DISTRICT .':::AALUlFORNIA

CIVIL COVER SHEET

=::J ) le(aa) PLAINTIFFS (Check box ff you are representing yourself [ ::J)

DEFENDANTS

TERESITA G. COaSSTTEELO; LORENZO P. ONG,

MICHAEL CHERTOFF, Secretary of the

Individually and On Behalf of All Others

Department of Homeland Sseeccuurrity, et al;i

Similarly Situated

(b) County of Residence of F1irrst Listed Plaintiff (Except in U,.SS_. Plaintiff Cases)

((Cc))

Attormneys (FF1irrm Name, Address and Telephone Numbbeerr. If you
pprrOovV1iddee ssaammee.))

cir '"-::;'J:'T ~'

Nancy E. Mliller, SBN 120031

Robert L. Reeves SBN 92878 k_.~

·,• •c
.

·•; • ::

County of Residence of First Listed Defendant (In U.S. Plaintiff Cases Only)"·
I~~bmoy'ilf Koowol
I!

Jeremiah Johnson, SBEN 227275

Joyce A. Komanapalli, SBN 231436

2 North Lake Ave., Suite 950

Pasadena, CA 91101 (626)795-6777

II.

BASIS OF JURISDICTION ({Place an X in one box only.)

[i__ 1U.S. Governme nt Plaintiff

-_~-_;i 3 Federal Question (U,.S. Government Not a Party)

cz::J J CZ :j 2U.S. Governme nt Defendant i~- 4 Diversity ({Indicate Citizenship of
Parties in Item I!I!I!)

IIlIl. CITIZENSHIP OF PRINCIPAL PARTIES -FFoor Diiveerrsity Ccaassees Onnly
(Place an X in one box for plaintiff and one for defendant.)

Citizen of This State

PTF rr--_~::]~

DEF 1

I!ncorporated or Principal P!lace of Business in this State

PTF

DEF

44 [c--==::::--1:44

Citizen of Another State

2

Citizen or Subject of a =---_---::J] 3
ForeIign Ccoouunntry

2
Do 3

Incorporated and Prriincipal Pllace
of Business in Another State
Foreign Nation

·. J 5
c:_:J 6

~~--., 5 _J6

IV. ORIGIN (PilaceanXinoneboxonly.,)

1 Origina!l

:i-"-"';i 2 Removed from

Proceeding

State Court

v.V REQUESTED IN COMPLAINT:

3 Remanded from Appellate Court

i~-~i 4 Reinstated or
Reopened

It_Ii 5 Transferred from another district (specify):

6 Multi-·District Litigation

JURY DEMAND:

No (Check 'Yes' only if demanded in complaint.)

7 Appeal to District Judge from Magistrate Judge

CLASS ACTION under F.R.C.P. 23: [,.;;:', yYo.>, ,'-,'., No

--] MONEY DEMANDED IN COMPLAINT: $

VI. CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause., Do not cite jurisdictional statutes un!less diversity.,)
Complaint for Declaratory, Mandamus and Injunctive Relief [Class Action]

VII. NATURE OF SUIT (Place an X in one box only.)

SSttaattee RReeaappppoorrttiioonnmmeenntt

110 Insurance 120 Marine

i 310 Airplane

4110 Antitrust

315 Airplane Product

430 Banks and Bank·'mlng

130 Miller Act

Liabillty

I 45500 CCoommmmeerrccee//IICCCC RRaalllleesS/le'etctci j"',=: 140 Negotiable Instrument

[~J 320 Assault, Libel &

446600 DDeeppoorrttaattiioonn

150 Recovery of I)v"rp',yn,ent

Slander

''----------~~ 470 Racketeer Influenced and

&JuEdngfmoercnetment

. 330 FecI. Employers'

Corrupt Organ!izatilons 48800 CCoonnssuummeerr CCrreeddiitt

151 Medicare Act

UabHlty ~ 340 Marine

449900 CCaabbllee//SSaatt TTVV

152

of Defaulted

345 Marine Product

810 Selective Service

850 Securities/Commodities/

Exchange

:=J 875 Customer Challenge

~~--_·_-'_·,

12 uUSsCc 3410

i_Xx._Ji 890 Other Statutory

C

Liability

v~;·~;·~~!e"Jaymentli;::·= 153 RRf~ej"~o~~v'e"·r~yn~:: )v"rp'!Yn,entl~', 335500 MMLiaoobttooilrrityVVeehhiiccllee

o oi

355 Motor Vehicle

160 Stockholders' Suits 119900 OOtthheerr CCoonnttrraacctt 195 Contract Product UabH'tlity

C

Product Liability
336600 OOtthheerr PPeerrssoonnaall IInnjjuurryy

.::J Actions
~-- :J 891 Agricultural Act
CJ 892 Economic Stabilization

196 Franchise

C 362 PerssoonnaalllInnjjury-

I1L1~

==··~:t,J;£i~opfi@'r:::.=:=ll
11 365

MMeedd MMaallpprraaccttiiccee Personal Injury-

Act

2110o Land Condemnation

Product Lliaiabblllilty

893 Environmental Matters 894 Energy Allocation Act

220 Foreclosure

889955 Freedom of I!nfo. Act

L_____j 230 Rent Lease & Ejectment

900 Appea!l of Fee Doeetetemn1ninine,a-1-Il",.:, 240 Torts to Land

368 Asbestos Personal Injury Product Liability

ltion Under Equal

LJ 245 Tort Product LliiaabbIHliity

Access to Justice [~__~_~ 950 Constitutionality of

[ J 290 All Other Real Property

State Statutes

510 Motions to Vacate Sentence Habeas
5 3 0 GGeenerali
" I 535 Death Penalty 540 Mandamus/l Other
550 Civil Rights J 555 Prison
Condition

Labor Standards Act
720Labor/Mgmt. Relations
l- ___! 730Labor/Mgmt. Reporting & Disclosure Act
Cj40Railway Labor Act
C.j 7900ther Labor Utig.
r·-- 1791 Empl. Ret Inc.
I

i 441 Voting
i 442 Employment
443 Housing/Accommodations
444 Welfare 445 American with
Disabilities Employment 446 American with Disabilities Other

[-=:J 610 Agriculture
620 Other Food & Drug
1I 625 Drug Related Seizure of Property 21
uUSscC 881
630 Lliiqquuor Llaawws
640 RR & Truck
650 Airline Regs
C::'i 660 Occupational
Safety/Health
D 699000Otthheer

C~·--·:887700 Taxes (U.,S. Plaintiff or Defendant)
] 8711IRRSS- Third Party

VIiII(a). IDENTICAL CASES: Has this action been previously filed and dismissed, remanded or closed? 'Xl No !=i Yes

If yes, fist case number{s):

FOR OFFICE USE ONLY: Case Number: CV-71 (07105)

CIVIL COVER SHEET

Page 1 of 2
CCOD-JS44

Case 8:08-cv-00688-JVS-SH Document 1 Filed 06/20/2008 Page 38 of 38
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET
AFTER COMPLETING THE FRONT SIDE OF FORM CV-71, COMPLETE THE INFORMATION REQUESTED BELOW.

VIllIlI(b). RELATED CASES: Have any cases been previously filed that are related to the present case?

l._Jl':{{J No LL_ _i! Yes

If yes, list case number(s):
Civil cases are deemed related if a previously filed case and the present case:
(Check all boxes that apply)! ...JA. Arise from the same or closely related transactions, happenings, or events; or
L__J] B. Call for determination of the same or substantially related or similar questions of law and fact; or
IIi C. For other reasons would entail substantial duplication of labor if heard by different judges; or
D. Involve the same patent, trademark or copyright, and one of the factors identified abqve 1inn a, bb or c also is present.

IX. VENUE: List the California County, or State if other than California, in which EACH named plaintiff resides (Use an additional sheet if necessary)
Check here if the U.S. government, its agencies or employees is a named plaintiff.
Los Angeles County

List the California County, or State if other than California, in which EACH named defendant resides.
i xX i Check here if the U.S. government, its agencies or employees is a named defendant.
Orange County; Washington D.C.

(Use an additional sheet if necessary).

List the California County, or State if other than California, in which EACH claim arose. Note: In land condemnation cases, use the location of the tract of land involved.
Orange County; Washington D.C.

(Use an additional sheet if necessary)

X. SIGNATURE OF ATTORNEY (OR PRO PER):

Date 06/19/2008

Nancy

Notice to Counsel/Parties: The CV-71 (JS-44) Civil Cover Sh t and the information contained herein neither replace nor supplement the

filing and service of pleadings or other papers as required by w. This form, approved by the Judicial Conference of the United States in

September 1974, is required pursuant to Local Rule 3-1 is not filed but is used by the Clerk of the Court for the purpose of statistics, venue

and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet.)

Key to Statistical codes relating to Social Security Cases:

Nature of Suit Code Abbreviation

Substantive Statement of Cause of Action

861

HIA

All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social

Security Act, as amended. Also, include claims by hospitals, skilled nursing facilities, etc., for

certification as providers of services under the program. (42 U.S.G. 1935FF(b))

862

BL

All claims for "Black Lung" benefits under Title 4,,PPaarrt B, of the Federal Coal Mine Health

and Safety Act of 1969. (30 U.S.C. 923)

863

DIWC

All claims filed by insured workers for disability insurance benefits under Title 2 of the Social

Security Act, as amended; plus all claims filed for child's insurance benefits based on

disability. (42 U.S.C. 405(g))

863

DIVVW

All claims filed for widows or widowers insurance benefits based on disability under Title 2 of

the Social Security Act, as amended. (42 U.S.C. 405(g9))

864 865
CV-71 (07/05)

SSID RSI

All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, as amended.

All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42 U.S.C. (g))

CIVIL COVER SHEET

Page 2 of 2

 
 Case 8:08-cv-00688-JVS-SH Document 32 Filed 08/25/08 Page 1 of 2 Page ID #:479

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 08-688 JVS (SHx)

Date August 25, 2008

Title

Teresita G. Costelo et al. v. Michael Chertoff, et al.

Present: The Honorable

James V. Selna

Karla J. Tunis Deputy Clerk

Not Present Court Reporter

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings: (IN CHAMBERS) Plaintiffs’ Order Denying Motions to Amend Class Definition and to Certify Class, and Staying Action for 180 days

Plaintiffs Teresita Costelo et al. (collectively “Costelo”) brought a motion seeking certification of a class for injunctive and declaratory relief against Defendants Michael Chertoff et al. (collectively “Chertoff”). The requested relief involves the interpretation of a provision of the Child Status Protection Act, codified at § 203(h)(3) of the Immigration and National Act (“INA”), 8 U.S.C. § 1153(h)(3) (hereinafter “§ 203(h)(3)”). While the motion was pending, Costelo also filed a motion to amend to proposed class definition.

Chertoff argues that the Court should deny certification, because the government has already certified two similar cases for hearing before the Board of Immigration Appeals (“BIA”) (“the pending § 203 cases”). Further, because the government has requested a written opinion from the BIA interpreting § 203(h)(3), Chertoff requests that the Court decline to issue its own interpretation of the statute until such time as the BIA has had an opportunity to rule on the issue.

The Court is sensitive to Costelo’s concern that (1) the BIA may chose not to issue a written opinion on the pending § 203 cases; and (2) there is no time limit in which the BIA must rule on those cases, if ever. However, the resolution of Costelo’s class certification analysis, including common questions of law and superiority, is affected by construction of the substantive statute and the Court believes that it would benefit greatly from any interpretation of § 203(h)(3) which the BIA might issue.

Because the Court finds that the BIA expertise in this area might help this Court

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 2

Case 8:08-cv-00688-JVS-SH Document 32 Filed 08/25/08 Page 2 of 2 Page ID #:480
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 08-688 JVS (SHx)

Date August 25, 2008

Title

Teresita G. Costelo et al. v. Michael Chertoff, et al.

reach a proper conclusion, and further, because administrative review might preclude the need for review by this Court, the Court declines to rule on the merits of Costelo’s motion at this time. See El Rescate Legal Services, Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 747 (9th Cir. 1999) (A court may apply a prudential exhaustion requirement where (1) agency expertise makes agency consideration necessary to generate a record and reach a decision; (2) not applying exhaustion would encourage bypass of administrative scheme; and (3) administrative review is likely to allow the agency to correct its mistake and preclude the need for judicial review.). The Court declines, however, to impose an exhaustion requirement in the absence of a statutory mandate. See id.

Accordingly, this action is stayed in its entirety for 180 days to afford the BIA an opportunity to issue an interpretation of § 203(h)(3) in the first instance.

Costelo’s motions to amend the class definition and to certify the class are therefore denied without prejudice. If appropriate, Costelo may renew those motions or submit revised motions after the expiration of the stay.

Chertoff shall keep both Costelo and the Court apprised of any relevant developments in the pending § 203 cases and shall also file the following documents: (1) within 14 days, a copy of all briefs submitted by any parties in the pending § 203 cases thus far; (2) within 14 days of their filing, a copy of any briefs submitted in the pending § 203 cases in the future; and (3) within 90 days, a report detailing the status of the pending § 203 cases.

Initials of Preparer

0 kjt

:

00

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 2

 
 Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 1 of 21 Page ID #:1062

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9

10

CASE NO: SACV 08-688 JVS (SHx)

11 TERESITA G. COSTELO, et al ,

12

Plaintiff(s),

ORDER RE

13

MOTION TO CERTIFY CLASS

14

v.

15
MICHAEL CHERTOFF, et al,
16
Defendant(s).
17

18

19
Plaintiffs Teresita G. Costelo (“Costelo”) and Lorenzo P. Ong (“Ong”)
20
(collectively, “Plaintiffs”) seek certification of a class for injunctive and
21
declaratory relief against Defendants Michael Chertoff, et al. (collectively,
22
“Defendants”). Defendants oppose. The motion is GRANTED, as set forth below.
23

24 I.
25

Background

26

Plaintiffs’ requested relief involves the interpretation of a provision of the

27

28

1

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 2 of 21 Page ID #:1063

1 Child Status Protection Act (“CSPA”), codified at § 203(h)(3) of the Immigration 2 and National Act (“INA”), 8 U.S.C. § 1153(h)(3) (hereinafter “§ 203(h)(3)”).

3

4

Plaintiffs previously moved for class certification in July 2008 (Docket No.

5 4), which was denied without prejudice on the grounds that the Court “would

6 benefit greatly from any interpretation of § 203(h)(3) which the BIA [Board of
7 Immigrant Appeals] might issue” in two similar cases pending before the BIA
8 (Docket No. 32, at 1). As a result, the case was “stayed in its entirety for 180 days 9 to afford the BIA an opportunity to issue an interpretation of § 203(h)(3) in the
first instance.” (Id. at 2.) Prior to the June 15, 2009 hearing on this motion, the
10
BIA had issued no such interpretation and the stay had expired. Then, the day after
11
the hearing, the BIA decided Matter of Wang, 25 I. & N. Dec. 28 (B.I.A. June 16,
12
2009), as set forth below.1
13

14
Presently before the Court is Plaintiffs’ second motion for class certification.
15

16 II. Legal Standard
17

18

A motion for class certification involves a two-part analysis. First, Plaintiffs

19 must demonstrate that the proposed class satisfies the requirements of Rule 23(a):

20 (1) the members of the proposed class must be so numerous that joinder of all

21 claims would be impracticable; (2) there must be questions of law and fact

22 common to the class; (3) the claims or defenses of the representative parties must

23 be typical of the claims or defenses of absent class members; and (4) the

24

25

1 While the parties dispute whether Wang was properly decided, and whether it is a

26 reasonable opinion subject to Chevron deference, there is no dispute that it addressed nearly the

27 same issue presented here. (Supp’l Mot. Br. 1; Supp’l Opp’n Br. 1-2; see also Amicus Br. 1-3.)

28

2

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 3 of 21 Page ID #:1064

1 representative parties must fairly and adequately protect the interests of the class.

2 Fed. R. Civ. P. 23(a).

3

4

Second, Plaintiffs must meet the requirements of at least one of the

5 subsections of Rule 23(b). Here, Plaintiffs contend that the class qualifies under

6 Rule 23(b)(2), for which a class may be maintained where “the party opposing the
7 class has acted or refused to act on grounds that apply generally to the class, so that 8 final injunctive relief or corresponding declaratory relief is appropriate respecting 9 the class as a whole.” Fed. R. Civ. P. 23(b)(2).

10
The party seeking certification must provide facts sufficient to satisfy the
11
requirements of Rule 23(a) and (b). Doninger v. Pac. Nw. Bell, Inc., 564 F.2d
12
1304, 1308-09 (9th Cir. 1977). In turn, the district court must conduct a rigorous
13
analysis to determine whether the prerequisites of Rule 23 have been met. Gen.
14
Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). While the Court’s analysis must be 15 rigorous, Rule 23 confers “broad discretion to determine whether a class should be 16 certified, and to revisit that certification throughout the legal proceedings before
17 the court.” Armstrong v. Davis, 275 F.3d 849, 872, n.28 (9th Cir. 2001).
18

19

In Falcon, the Supreme Court reiterated the well-recognized precept that

20 “‘the class determination generally involves considerations that are enmeshed in

21 the factual and legal issues comprising the plaintiff’s cause of action.’” Falcon,

22 457 U.S. at 160 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469

23 (1978)). Nevertheless, there is “nothing in either the language or history of Rule

24 23 that gives a court any authority to conduct a preliminary inquiry into the merits

25 of a suit in order to determine whether it may be maintained as a class action.” 26 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974).

27

28

3

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 4 of 21 Page ID #:1065

1 III. Discussion

2

3

According to Plaintiffs, the “issue before this Court is whether the

4 government can ignore the requirements of [] § 203(h)(3) and refuse to adjudicate

5 applications for lawful permanent residence under the correct (original) priority

6 date.” (Mot. Br. 16.) More precisely, as set forth below, the issue is whether the
7 automatic conversion and date retention provisions of § 203(h)(3) apply to aliens
8 who age out of eligibility for an immigrant visa as the derivative beneficiary of a 9 third- or fourth-preference visa petition, and on whose behalf a second-preference
petition is later filed by a different petitioner.2 An understanding of this issue
10
requires some context.
11

12
Over a decade ago, “an enormous backlog of adjustment of status (to
13
permanent residence) applications . . . developed at the INS.” H.R. Rep. No.
14
107-45, at *2 (2001), as reprinted in 2002 U.S.C.C.A.N. 640, 641. As a result, 15 child beneficiaries of visa applications often would “age-out,” or turn twenty-one, 16 before the application was processed, thereby requiring the applicant to shift into a 17 lower preference category and be placed “at the end of a long waiting list for a 18 visa.”3 Id. The CSPA was enacted on August 6, 2002 “essentially . . . to provide 19 relief to children who might ‘age out’ of their beneficiary status because of
20 administrative delays in visa processing or adjustment application adjudication.”
21 Wang, 25 I. & N. Dec. at 31; accord Padash v. INS, 358 F.3d 1161, 1167 (9th Cir.
22 2004).

23

24

25

2 For the preference categories, see 8 U.S.C. § 1153(a)(1)-(4).

26

3 For immigration purposes, a “child” is defined as an unmarried individual under age

27 twenty-one. 8 U.S.C. § 1101(b)(1).

28

4

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 5 of 21 Page ID #:1066

1

Among other things, the CSPA amended § 203 of the INA by adding what is

2 now subsection (h). This provision allows certain aliens to maintain the status of a

3 child of a lawful resident alien for purposes of the 2A preference category even

4 after turning twenty-one. Specifically, § 203(h) provides that an alien’s age for

5 purposes of the 2A category is to be determined by subtracting the time that the
6 petition for classification was pending from the alien’s age at the time that a visa
7 number becomes available. 8 U.S.C. § 1153(h)(1)-(2); Baruelo v. Comfort, No. 05 8 C 6659, 2006 WL 3883311, at *3 (N.D. Ill. Dec. 19, 2006). In addition, the statute 9 provides that if the alien is determined to be twenty-one or older after applying this
calculation, the “petition shall automatically be converted to the appropriate
10
category and the alien shall retain the original priority date issued upon receipt of
11
the original petition” – in other words, the date the original petition was filed. 8
12
U.S.C. § 1153(h)(3); accord Padash, 358 F.3d at 1174.
13

14
Plaintiffs’ complaint challenges Defendants’ lack of a uniform policy 15 implementing §203(h)(3), and seeks declaratory and injunctive relief on behalf of 16 members of a proposed class. In their motion, as amended,4 Plaintiffs move to 17 certify the following two subclasses:
18

19

Individuals who a) have or will have obtained lawful permanent

20

resident status as a result of being a primary beneficiary of a prior

21

family or employment based visa petition or diversity immigrant visa

22

application on or after August 6, 2002; b) are the parents of an adult

23

child or children (sons and daughters) who are or were a derivative

24

beneficiary of their prior family or employment based visa petition or

25

diversity immigrant visa application; c) have or will have filed a

26

27

4 For the motion to amend, see Docket No. 57.

28

5

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 6 of 21 Page ID #:1067

1

subsequent family based immigrant visa petition(s) (Form I-130) for

2

their adult child or children (sons and daughters) under the F2B

3

category; and d) whose subsequent family based immigrant visa

4

petition(s) (Form I-130) is entitled to the automatic retention of the

5

original priority date of the petitioner’s prior family or employment

6

based visa petition or diversity immigrant visa application pursuant to

7

INA § 203(h)(3).

8

9

Individuals who a) are or were a derivative beneficiary of a family or

employment based visa petition or diversity immigrant visa
10

application where the primary beneficiary obtained or will obtain
11

lawful permanent resident status on or after August 6, 2002; b) whose
12
age is 21 years or older for the purposes of INA §§ 203(a)(2)(A) and

13
(d) as determined under INA § 203(h)(1); c) whose family or

14
employment based visa petition or diversity immigrant visa

15

application is entitled to the automatic conversion to the F2B category

16

and retention of the original priority date of the original family or

17

employment based visa petition or diversity immigrant visa

18

application pursuant to INA § 203(h)(3); and d) face future and/or

19

ongoing separation from family members as a result of Defendants’

20

failure to automatically convert the immigrant visa petition and retain

21

the original visa petition priority date pursuant to INA § 203(h)(3).5

22

23

5 Costello amends the subclasses in her original motion to include, inter alia, references

24 to diversity immigrant visa applications. (Compare Docket No. 53, with Docket No. 57.)

25 Subsection (a) of 8 U.S.C. § 1153 provides a preference allocation for family-based visa

26 petitions, subsection (b) for employment-based petitions, and subsection (c) for diversity

27 immigrant visa applications.

28

6

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 7 of 21 Page ID #:1068

1

2 (Mot. Br. 2.) But the complaint defines the class as:

3

4

All persons who have filed an immigrant visa petition(s) for their

5

child or children with a request for the original priority date or are the

6

derivative beneficiary of an immigrant visa petition who face future

7

and/or ongoing separation from family members as a result of the

8

Defendants [sic] failure to automatically convert and retain the

9

original visa petition priority date pursuant to Section 3 of the Child

Status Protection Act.
10

11
(Compl. ¶ 12, emphasis supplied.) The complaint also includes two subclasses:
12

13
Parents who have filed an immigrant visa petition or are the adult

14
children beneficiaries of an immigrant visa petition who face

15

separation from each other as a result of the Defendants [sic] refusal

16

to automatically convert and retain the original priority date of the

17

original visa petition pursuant to Section 3 of the Child Status

18

Protection Act.

19

20

Parents who have filed an immigrant visa petition who face separation

21

from their children as a result of the Defendants [sic] failure to act

22

regarding the automatic conversion and retention of the original

23

priority date of the original visa petition pursuant to Section 3 of the

24

Child Status Protection Act.

25
26 (Id. at 9-10.) The Court is bound to class definitions provided in the complaint

27

28

7

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 8 of 21 Page ID #:1069

1 and, absent an amended complaint, will not consider certification beyond it.6

2

3

Plaintiffs seek certification under Rule 23(a) and (b)(2). Before turning to

4 this two-part analysis, however, the Court takes up the logic that caused it to stay

5 this case in the first place – that the BIA should be afforded an opportunity to

6 interpret § 203(h)(3).

7

8

A. The BIA Cases

9
As a preliminary matter, Defendants contend that judicial review of this
10
motion should be denied, or further delayed, to the extent that administrative action
11
by the BIA may preclude class certification or require additional review by this
12
Court.
13

14
The Court has already stayed this action for 180 days to afford the BIA an 15 opportunity to interpret § 203(h)(3) – the central provision at issue here – in two
16

17

18

19

6 Berlowitz v. Nob Hill Masonic Mgmt., Inc., No. C-96-01241 MHP, 1996 WL 724776,

20 at *2 (N.D. Cal. Dec. 6, 1996) (rejecting plaintiff’s attempt to certify a class different from that

21 alleged in the complaint, because the “court is bound by the class definition provided in the

22 complaint . . . and will not consider certification of the class beyond the definition provided in

23 the complaint unless plaintiffs choose to amend it”); see also Ortiz v. McNeil-PPC, Inc., Nos.

24 07cv678-MMA(CAB), 08cv536-MMA(CAB), 2009 WL 1322962, at *2 (S.D. Cal. May 8,

25 2009); Stuart v. Radioshack Corp., No. C-07-4499 EMC, 2009 WL 281941, at *2 (N.D. Cal.

26 Feb. 5, 2009). But see Pop’s Pancakes, Inc. v. NuCO2, Inc., 251 F.R.D. 677, 680 n.1 (S.D. Fla.

27 2008).

28

8

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 9 of 21 Page ID #:1070

1 related cases pending before the BIA.7 Notably, the BIA recently decided one of

2 those cases. Based on its reading of § 203(h)(3) and the legislative history, the
3 BIA in Wang held that the automatic conversion and priority date retention
4 provisions did not apply to an alien who aged out of eligibility for an immigrant
5 visa as the derivative beneficiary of a fourth-preference visa petition, and on whose 6 behalf a second-preference petition was later filed by a different petitioner. 25 I. & 7 N. Dec. at 38-39. Notwithstanding Defendants’ arguments in their supplemental 8 brief, the BIA opinion in Wang does not make this case any less appropriate for 9 class certification. To the contrary, it is persuasive authority on a question of law
common to the putative class members. This point is neatly illustrated by
10
Defendants themselves, who point out that Wang “specifically declined to follow
11
Maria T. Garcia, an unpublished, nonprecedential decision often cited by
12
Plaintiffs.”8 (Supp’l Opp’n Br. 2.)
13

14
Accordingly, the Court does not find Wang a reason to delay further 15 consideration of this motion, much less deny class certification.
16

17

As to the other case pending before the BIA, Defendants have apprised the

18 Court of BIA correspondence, dated April 16, 2009, indicating that this “case[ is]

19

20

7 The cases are Matter of Wang and In the matter of Patel: “Wang involves the aging-out

21 of a derivative beneficiary of a family preference petition[;] Patel involves the aging-out of a

22 derivative beneficiary of an employment preference petition.” (Opp’n Br. 22-23.)

23

8 Defendants cite to Wang, 25 I. & N. Dec. at 33 n.2, citing Matter of Garcia, A79 001

24 587, 2006 WL 2183654, at * (B.I.A. June 16, 2006), which “agree[d] with the respondent that

25 where [a child] was classified as a derivative beneficiary of the original petition, the ‘appropriate

26 category’ for purposes of section 203(h)(3) is that which applies to the ‘aged-out’ derivative

27 vis-a-vis the principal beneficiary of the original petition.”

28

9

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 10 of 21 Page ID #:1071

1 under active consideration . . . and [a] decision[] may be expected soon.” (Docket

2 No. 52, Ex. A.) With respect to this case, Defendants assert that the Court’s 3 interpretation of § 203(h)(3) would be subject to immediate review as soon as the 4 BIA’s decision is issued.

5

6

To support this claim, Defendants vaguely allude to prudential exhaustion

7 and the Chevron doctrine. (Opp’n Br. 6-7.) Prudential exhaustion counsels courts 8 to exhaust administrative remedies; it is discretionary in this context,9 and only 9 applies where:

10

(1) agency expertise makes agency consideration necessary to
11
generate a proper record and reach a proper decision; (2) relaxation of
12
the requirement would encourage the deliberate bypass of the
13
administrative scheme; and (3) administrative review is likely to allow

14
the agency to correct its own mistakes and to preclude the need for

15

judicial review.

16

17 Gonzales v. DHS, 508 F.3d 1227, 1234 (9th Cir. 2007) (internal quotation marks 18 omitted). Here, none of these prerequisites are clearly implicated. Further 19 guidance by the BIA, while helpful, is not necessary because the BIA has already 20 provided a relevant interpretation of § 203(h)(3). The Ninth Circuit in Padash has 21 also provided a general interpretation of § 203(h), as set forth in greater detail
22 below. There is also nothing to suggest that Plaintiffs are attempting to bypass the

23

24

9 To the extent that the BIA provides available remedies, the Ninth Circuit in Sun v.

25 Ashcroft, observed that “a court is free to require exhaustion of such remedies – not because of

26 any jurisdictional objection or statutory command but simply because it makes sense.” 370 F.3d

27 932, 942 (9th Cir. 2004) (internal quotation marks omitted).

28

10

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 11 of 21 Page ID #:1072

1 BIA. The Court has afforded the BIA an opportunity to construe § 203(h)(3). The
2 BIA has done so in Wang, which is more relevant to this case because, as here, it
3 involves family-based petitions, as opposed to employment-based petitions.
4 Moreover, despite recent assurances, there is no guarantee that the BIA will issue
5 its opinion as to employment-based petitions any time soon, which in any event 6 would be irrelevant to the class defined below. Previously, the Court expressed 7 “sensitiv[ity] to Costelo’s concern that (1) the BIA may chose not to issue a written 8 opinion on the pending § 203 cases; and (2) there is no time limit in which the BIA 9 must rule on those cases, if ever.” (Docket No. 32, at 1.) Finally, there is no
suggestion that the BIA has erred below and thus requires an allowance to correct
10
its mistake; the BIA has simply failed to act as to the other § 203 case.
11

12
In National Cable & Telecommunications Ass’n v. Brand X Internet
13
Services, 545 U.S. 967, 983 (2005), cited by Defendants, the Supreme Court made
14
the following observation in reference to the Chevron doctrine of administrative 15 deference: “Only a judicial precedent holding that the statute unambiguously 16 forecloses the agency’s interpretation, and therefore contains no gap for the agency 17 to fill, displaces a conflicting agency construction.” On this basis, Defendants 18 assert that the “added work and expense of litigating this issue twice on a class
19 scale militates against class certification at this time.” (Opp’n Br. 7-8.) This
20 argument lacks force now that the BIA has decided Wang.10
21

22

Although Wang is more directly on point, the Court may also benefit from

23

24

10 Additionally, the Court agrees that Defendants’ reliance on “consular

25 nonreviewability” is misplaced insofar as Plaintiffs seek to compel Defendants “to adopt

26 uniform rules and policy in accordance with [] §203(h)(3) rather than reviewing individual

27 decisions of consular officers.” (Reply Br. 5.)

28

11

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 12 of 21 Page ID #:1073

1 the Ninth Circuit’s interpretation of § 203(h) in a related case. In Padash, the

2 Ninth Circuit explained that, under the CSPA, an individual eligible for permanent
3 residence as a derivative beneficiary under 8 U.S.C. § 1153(d), who is over twenty-
4 one years of age, may have his status adjusted provided that: (1) he was a “child” 5 on the date upon which the immigrant visa became available for his parents, (2) he 6 applied for adjustment of status within one year of availability, and (3) he aged-out 7 while waiting for his application to be adjudicated. 358 F.3d at 1167 (citing 8 8 U.S.C. § 1153(h)(1)(A)-(B)). While the circuit did not interpret § 203(h)(3), 9 specifically, it did endorse a broad reading of CSPA, generally:

10

Congress had but one goal in passing the [CSPA] – to override the
11
arbitrariness of statutory age-out provisions that resulted in young
12
immigrants losing opportunities, to which they were entitled, because
13
of administrative delays. Accordingly, adopting a restrictive reading

14
of the statute in order to limit relief, would contravene Congress’s

15

intent, and the purpose and objective of the law.

16

17 Id. at 1174 (emphasis supplied). The circuit further observed that “Congress 18 passed the Act to provide broad protection to young immigrants who were required 19 to wait years for their approved visas to become available, only to have agency 20 delays in processing their applications or petitions prevent them from obtaining 21 permanent residence status,” and clarified that “Congress did not make the Act
22 retroactive to all immigrants previously denied relief [but] only to those individuals

23 whose cases had not yet been finally resolved, and thus only to those whose

24 records were readily available to the agency.” Padash, 358 F.3d at 1174.

25

26

At a minimum, Defendants seek to limit the scope of the class “to the Ninth

27 Circuit in order to allow further development of this issue across the country.”

28

12

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 13 of 21 Page ID #:1074

1 (Opp’n Br. 2; see also Supp’l Opp’n Br. 3-4.) Defendants cite Hootkins v.

2 Chertoff, No. CV 07-5696 CAS (MANx), 2009 WL 57031, at *4 (C.D. Cal. Jan. 6,
3 2009), for the proposition that this Court should be “mindful of the importance of
4 allowing the government to litigate legal issues before different courts throughout
5 the country.” But, unlike in Hootkins, the interest that other circuits have in 6 litigating this general issue appears to be attenuated by the Wang decision, and by 7 the fact that a number of other circuits have endorsed the Ninth Circuit’s broad 8 understanding of the CSPA in Padash, even within the past couple of months. E.g., 9 Midi v. Holder, 566 F.3d 132 (4th Cir. 2009); Calix-Chavarria v. Attorney General
of U.S., 182 Fed. Appx. 72, 75 (3d Cir. 2006); Corea v. U.S. Attorney General, 170
10
Fed. Appx. 700, 701 (11th Cir. 2006).
11

12
Accordingly, the Court can divine no principled reason to limit the proposed
13
class to the Ninth Circuit. For purposes of this action, a putative class member in
14
New Mexico is not differently situated from one in California by virtue of the fact 15 that the former resides in the Tenth Circuit and the latter in the Ninth Circuit. The 16 Court therefore declines to limit the scope of the class in this manner.
17

18

B. Rule 23(a)

19

20

With this background the Court now turns to the question of whether the

21 proposed class satisfies all four of the Rule 23(a) requirements, i.e., numerosity,

22 commonality, typicality, and adequacy of representation.

23

24

1. Numerosity

25

26

Rule 23(a)(1) requires that the class be “so numerous that joinder of all

27 members is impracticable.” Fed. R. Civ. P. 23(a)(1). Here, Plaintiffs allege that

28

13

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 14 of 21 Page ID #:1075

1 “the proposed class includes thousands.” (Mot. Br. 7.) Plaintiffs’ counsel claims

2 to have at least 26 such cases, but offers no supporting evidence. (Id.) Nor do
3 Plaintiffs offer any support for the claim that “a large portion of the attorneys” at a 4 recent conference had encountered similar cases. (Id. at 8.) Such a claim is vague 5 and, even where Plaintiffs offer greater precision, there is nothing to substantiate 6 their claim about the number of visas issued each year, which in any event requires 7 the Court to speculate as to the number of putative class members.11 (Id.)

8

9

Notwithstanding these shortcomings, Plaintiffs are not required “to state the

exact number and identity of every class member because to do so would frustrate
10

the purpose of class actions when recoveries may be numerous but small.” In re
11
U.S. Fin. Sec. Litig., 69 F.R.D. 24, 34 (S.D. Cal. 1975) (citing Herbst v. Able, 278
12
F. Supp. 664 (S.D.N.Y.1967)). “Where the exact size of the class is unknown but

13
general knowledge and common sense indicate that it is large, the numerosity

14
requirement is satisfied.” Orantes-Hernandez v. Smith, 541 F. Supp. 351, 370

15 (D.C. Cal. 1982). Defendants do not contest that numerosity is satisfied, and the

16 Court finds that this requirement has been met.12 E.g., Ark. Ed. Ass’n v. Bd. of Ed.

17 of Portland, Ark. School Dist., 446 F.2d 763, 765 (8th Cir. 1971) (class of twenty

18

19

11 However, the House Judiciary Committee reported that, due to administrative delays

20 of up to three years before the passage of the CSPA, approximately one thousand of the visa

21 applications reviewed each year were for individuals who had aged-out since the time they had

22 filed their petitions. Padash, 358 F.3d at 1172-73 (citing 2002 U.S.C.C.A.N. 640, 641).

23

12 Factors relevant to the impracticability of joinder “include judicial economy arising

24 from the avoidance of a multiplicity of actions, geographic dispersion of class members,

25 financial resources of class members, the ability of claimants to institute individual suits, and

26 requests for prospective injunctive relief which would involve future class members.” Robidoux

27 v. Celani, 987 F.2d 931, 936 (2d Cir. 1993). These factors weigh in Plaintiffs’ favor.

28

14

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 15 of 21 Page ID #:1076

1 black teachers in school district was sufficiently numerous).

2

3

2. Commonality

4

5

Rule 23(a)(2) requires that questions of law or fact be common to the class.

6 This requirement is permissively construed. Hanlon v. Chrysler Corp., 150 F.3d

7 1011, 1019 (9th Cir. 1998). “The existence of shared legal issues with divergent 8 factual predicates is sufficient, as is a common core of salient facts coupled with 9 disparate legal remedies within the class.” Id.

10
“[T]ypicality and commonality are similar and tend to merge.” Dukes v.
11
Wal-Mart, Inc., 509 F.3d 1168, 1184 (9th Cir. 2007). “Commonality examines the
12
relationship of facts and legal issues to class members, while typicality focuses on
13
the relationship of facts and issues between the class and its representatives.” Id. at
14
n.12. Here, questions of law common to all class members include:
15

16

• Whether Defendants failed to adopt policies and procedures in

17

accordance with § 203(h)(3);

18

19

• Whether Defendants failed to promulgate a uniform policy to

20

implement § 203(h)(3).

21

22

• Whether § 203(h)(3) preserves a parent’s original priority date for

23

use by their unmarried sons and daughters who are twenty-one years

24

of age or older;

25

26

• Whether Defendants’ challenged practices and policies violate §

27

203(h)(3); and

28

15

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 16 of 21 Page ID #:1077

1

• Whether Defendants’s failure to promulgate regulations

2

implementing § 203(h)(3) violates the Administrative Procedure Act

3

(“APA”), 5 U.S.C. § 551 et seq., due process and equal protection

4

under the Fifth Amendment, and §§ 1 and 3 of Article II.

5
6 Most importantly, the underlying common question of law is whether the
7 automatic conversion and date retention provisions of § 203(h)(3) apply to aliens
8 who age out of eligibility for an immigrant visa as the derivative beneficiary of a 9 third- or fourth-preference visa petition, and on whose behalf a second-preference
petition is later filed by a different petitioner. This common question of law, and
10
other ancillary questions, are sufficient to satisfy the permissive requirements of
11
Rule 23(a). However, even if these questions of law are common to all class
12
members, not all class members necessarily have standing to assert claims with
13
respect to § 203(h)(3), as discussed below.
14

15

3. Typicality

16

17

In examining typicality, the Court considers “whether other members have

18 the same or similar injury, whether the action is based on conduct which is not

19 unique to the named plaintiffs, and whether other class members have been injured

20 by the same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508

21 (9th Cir. 1992) (internal quotation marks omitted). Like commonality, typicality is

22 a “permissive” standard and “the focus should be on the defendants’ conduct and

23 plaintiff’s legal theory, not the injury caused to the plaintiff.” Simpson v.

24 Fireman’s Fund Ins. Co., 231 F.R.D. 391, 396 (N.D. Cal. 2005) (internal quotation

25 marks omitted).

26

27

Defendants challenge the proposed class as overbroad because, inter alia,

28

16

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 17 of 21 Page ID #:1078

1 various subclasses lack standing. To establish standing, Plaintiffs must show

2 injury, causation, and redressability. See Lujan v. Defenders of Wildlife, 504 U.S.
3 555, 560 (1992). It is undisputed that the named plaintiffs themselves have
4 standing. Costelo became a lawful permanent resident on July 22, 2004 as a
5 primary beneficiary of a third-preference visa petition filed by her mother on
6 January 5, 1990. (Compl. ¶ 19.) She filed a second-preference petition for her two 7 daughters on September 23, 2004, and alleges that Defendants denied one of her 8 two daughters, a derivative beneficiary of the original petition, the retention of the 9 January 5, 1990 priority date. (Id.) Ong became a lawful permanent resident on
July 16, 2004 as a primary beneficiary of a fourth-preference visa petition filed by
10
her sister on May 7, 1981. (Id. ¶ 20.) He filed a second-preference petition for his
11
two daughters on March 8, 2005, and alleges that Defendants have failed to
12
respond to his request to retain the May 7, 1981 priority date for his daughters,
13
derivative beneficiaries of the original petition. (Id. ¶ 20.)
14

15

In evaluating the standing issue, which bears on typicality in this case, the

16 Court looks to the language of 8 U.S.C. § 1153, upon which this action so heavily

17 depends. The gravamen of this action is that the class has been injured by

18 Defendants’ failure to promulgate regulations implementing § 203(h)(3) so that a

19 derivative beneficiary who has aged out of a third- or fourth-preference visa

20 petition may automatically convert her status to that of a beneficiary of a second-

21 preference category, and retain the priority date previously accorded to her as the

22 derivative beneficiary of the original petition. Significantly, the second-preference

23 category applies only to the children and unmarried sons and daughters of

24 “permanent resident aliens,” such as Plaintiffs. 8 U.S.C. § 1153(a)(2).

25

26

It is therefore reasonable to presume that Plaintiffs, as “permanent resident

27 aliens,” have standing to assert this entitlement. What is less clear, as Defendants

28

17

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 18 of 21 Page ID #:1079

1 point out, is whether the children of such aliens have standing as derivative

2 beneficiaries. (Opp’n Br. 11, citing 8 C.F.R. § 103.3(a)(iii)(B), and various
3 cases.)13 Nor is it even clear whether immigrant parents who are not yet
4 “permanent resident aliens” have standing. Moreover, Wang suggests that whether
5 an alien obtains permanent residence through family-based visa petitions,
6 employment-based petitions, or diversity immigrant applications may control the 7 underlying legal issue here. See 25 I. & N. Dec. at 35 (“[T]he concept of 8 ‘retention’ of priority dates has always been limited to visa petitions filed by the 9 same family member.”). The Court finds Plaintiff’s reply brief inadequate to
address these concerns and, therefore, is unwilling to certify a broad class so long
10
as doubt remains. Also, to the extent that Plaintiffs have the burden to show that
11
their claims and defenses are typical to those of the proposed class, see Zinser v.
12
Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001), the Court finds
13
that the class is more properly limited to putative class members who, like
14
Plaintiffs, became lawful permanent residents as primary beneficiaries of third- and 15 fourth-preference visa petitions listing their children as derivative beneficiaries, 16 and who subsequently filed second-preference petitions on behalf of their aged-out 17 unmarried sons and daughters, for whom Defendants have not granted automatic 18 conversion or the retention of priority dates pursuant to § 203(h)(3).
19

20

21

13 For example, Blacher v. Ridge, 436 F. Supp. 2d 602, 606 n.3 (S.D.N.Y. 2006), cites 8

22 C.F.R. § 103.3(a)(iii)(B), which holds that, in the context of immigration appeals, “the person or

23 entity with legal standing in a proceeding . . . does not include the beneficiary of a visa petition.”

24 See also Do Vale v. INS, No. 01-216-ML, 01-507-ML, 2002 WL 1455347, at *5 (D.R.I. June

25 25, 2002) (“While the denial of the family visa petition may have been prejudicial to Petitioner’s

26 wife, it was not prejudicial to the Petitioner [as the beneficiary of a family-based visa

27 petition].”).

28

18

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 19 of 21 Page ID #:1080

1

4. Adequacy of Representation

2

3

Rule 23(a)(4) requires that the class representatives must “fairly and

4 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In

5 determining adequacy of class representation, the Court considers (1) whether any

6 conflicts of interest exist between the named plaintiffs and the class members,
7 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997); and (2) whether the 8 named plaintiffs’ counsel will adequately protect the interests of the class, Dukes, 9 474 F.3d at 1233.

10
As to the first consideration, because the Court has narrowed the class
11
above, Defendants’ arguments that Plaintiffs cannot fairly and adequately protect
12
the interests of the class are no longer applicable. (Oppo. Br. 20-24.) The Court
13
finds that Plaintiffs are perfectly capable of representing other “permanent resident
14
alien” parents who filed petitions on behalf of children who subsequently aged-out 15 and for whom Defendants have not granted the automatic conversion and retention 16 of priority dates pursuant to § 203(h)(3). There is nothing to suggest otherwise.
17 Cf. Cummings v. Connell, 316 F.3d 886, 896 (9th Cir. 2003) (“[T]his circuit does
18 not favor denial of class certification on the basis of speculative conflicts.”).
19

20

As to the second consideration, Defendants do not dispute that “Plaintiffs’

21 attorneys have litigated numerous cases in the federal courts involving the rights of

22 aliens, and have substantial expertise in handling immigration cases.” (Mot. Br.

23 21, Exs. A & B.) The Court finds that counsel will adequately protect the interests

24 of the class.

25

26

Accordingly, the adequacy requirement is satisfied.

27

28

19

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 20 of 21 Page ID #:1081

1

C. Rule 23(b)(2)

2

3

Plaintiffs seek certification of a class pursuant to Rule 23(b)(2). A class may

4 be certified under this subsection when “the party opposing the class has acted or

5 refused to act on grounds that apply generally to the class, so that final injunctive

6 relief or corresponding declaratory relief is appropriate respecting the class as a
7 whole.” Fed. R. Civ. P. 23(b)(2). Defendants contend that certification under Rule
8 23(b)(2) is not warranted where, as here, they have not refused to act on grounds 9 generally applicable to putative class members, but in fact have acted by
“certif[ying] this exact issue to the Board” in two cases related to the interpretation
10
of § 203(h)(3). However, the question of whether Defendants have or have not
11
failed to act is uniformly applicable to the class. Moreover, Defendants’ argument
12
is misplaced to the extent Plaintiffs challenge “Defendants’ failure to promulgate
13
regulations implementing CSPA benefits.” (Compl. ¶ 4.) On that claim, with
14
respect to § 203(h)(3) in particular, Plaintiffs seeks injunctive and declaratory 15 relief as well as costs and fees, but do not seek compensatory damages. (Compl. at 16 32-33.)
17

18

Accordingly, certification is proper under Rule 23(b)(2).14

19

20 IV. Conclusion
21

22

14 Defendants do not make much of their argument that, “[i]f class litigation were to

23 proceed at this time, the interests of those lawful permanent residents whose sons and daughters

24 would be displaced under Plaintiffs’ reading of 8 U.S.C. § 1153(h)(3) must be evaluated to

25 determine if they are necessary parties.” (Opp’n Br. 4 n.4.) This argument presupposes that the

26 Court will confer new rights on Plaintiffs rather than enforce rights which they already had by

27 virtue of congressional action.

28

20

Case 8:08-cv-00688-JVS-SH Document 74 Filed 07/16/09 Page 21 of 21 Page ID #:1082

1

For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for class

2 certification subject to certain revisions. The class is defined as: “Aliens who
3 became lawful permanent residents as primary beneficiaries of third- and fourth-
4 preference visa petitions listing their children as derivative beneficiaries, and who
5 subsequently filed second-preference petitions on behalf of their aged-out 6 unmarried sons and daughters, for whom Defendants have not granted automatic 7 conversion or the retention of priority dates pursuant to § 203(h)(3).” The Court 8 recognizes that the BIA has weighed in on this matter, but the underlying legal 9 question is still subject to debate. It is not necessary for the Court to resolve the
question at this time; for purposes of class certification, it is sufficient that the
10
question is common to the class a whole.
11

12
The Court appoints the law firm of Reeves & Associates as lead class
13
counsel.
14

15

IT IS SO ORDERED.

16

17

18
19 DATED: July 16, 2009
20
21

_________________________________ JAMES V. SELNA UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

28

21

 
 Case 8:08-cv-00688-JVS-SH Document 92 Filed 11/10/09 Page 1 of 4 Page ID #:1793

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SA08-00688-JVS (SHx)

Date November 10, 2009

Title

Teresita G. Costelo, et al. v. Michael Chertoff, et al.

Present: The Honorable

James V. Selna

Terri Steele Deputy Clerk

Not Present Court Reporter

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings: (In Chambers) Order re Cross-Motions for Summary Judgment and Motion to Stay Discovery

Plaintiffs Teresita Costelo and Lorenzo Ong, appearing individually and on behalf of all others similarly situated (collectively, “Plaintiffs”) and Defendants Janet Napolitano, et al. (collectively, “Defendants”) have filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56. Defendants have also filed a motion to stay discovery pending the decision on cross-motions for summary judgment.

I. Legal Standard

Summary judgment is appropriate where the record, read in the light most favorable to the nonmoving party, indicates that “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The initial burden is on the moving party to demonstrate an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Material facts are those necessary to the proof or defense of a claim, and are determined by reference to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. If the moving party meets its burden, then the nonmoving party must produce enough evidence to rebut the moving party’s claim and create a genuine issue of material fact. Id. at 322-23. If the nonmoving party meets this burden, then the motion will be denied. Nissan Fire & Marine Ins. Co. v. Fritz Co., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000).

Where the parties have made cross-motions for summary judgment, the Court must consider each motion on its own merits. Fair Hous. Council v. Riverside Two, 249 F.3d

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 4

Case 8:08-cv-00688-JVS-SH Document 92 Filed 11/10/09 Page 2 of 4 Page ID #:1794
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SA08-00688-JVS (SHx)

Date November 10, 2009

Title

Teresita G. Costelo, et al. v. Michael Chertoff, et al.

1132, 1136 (9th Cir. 2001). The Court will consider each party’s evidentiary showing, regardless of which motion the evidence was tendered under. See id. at 1137.

II. Discussion
The issue in this case is whether a provision of the Child Status Protection Act (“CSPA”), § 203(h)(3) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1153(h)(3), allows “aged-out” derivative beneficiaries of third- or fourthpreference (“F3” and “F4,” respectively) visa petitions to automatically convert their derivative petitions to second-preference (“F2B”) visa petitions, thereby retaining their original priority date. On July 19, 2009, the Court certified a class consisting of:
Aliens who became lawful permanent residents as primary beneficiaries of third- and fourth-preference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second-preference petitions on behalf of their aged-out unmarried sons and daughters, for whom Defendants have not granted automatic conversion or the retention of priority dates pursuant to § 203(h)(3).
(Docket No. 74.)
This Court decided this exact issue in Zhang v. Napolitano, --- F. Supp. 2d ----, 2009 WL 3347345 (C.D. Cal. October 9, 2009), holding that the Board of Immigration Appeals’s (“BIA”) interpretation of § 203(h)(3) of the INA set forth in Matter of Wang, 25 I. & N. Dec. 28 (B.I.A. 2009) was entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The BIA in Wang held that “[t]he automatic conversion and priority date retention provisions of [§ 203(h)(3)] do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a fourth-preference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner.”

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 4

Case 8:08-cv-00688-JVS-SH Document 92 Filed 11/10/09 Page 3 of 4 Page ID #:1795
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SA08-00688-JVS (SHx)

Date November 10, 2009

Title

Teresita G. Costelo, et al. v. Michael Chertoff, et al.

Plaintiffs have presented only one argument that was not explicitly considered in Zhang.1 They argue that the Wang interpretation contradicts INA § 203(h)(4), which states that § 203(h)(1)-(3) “shall apply to self-petitioners and derivatives of selfpetitioners.” Plaintiffs argue that, under the BIA’s interpretation, an aged-out derivative of a self-petitioner would have no appropriate category to automatically convert to, yet, § 203(h)(4) is explicit that § 203(h)(3) conversion applies to derivatives of self-petitioners.

Plaintiffs contention is simply incorrect. 8 U.S.C. §§ 1154(A)(1)(D)(i)(I) & (III) provide explicit statutory authority for automatic reclassification for a self-petitioner or derivative self-petitioner who ages-out prior to the priority date becoming current. Section 1154(A)(1)(D)(i)(I) states:

Any child who attains 21 years of age who has filed a [self-petition] that was filed or approved before the date on which the child attained 21 years of age shall be considered (if the child has not been admitted or approved for lawful permanent residence by the date the child attained 21 years of age) a petitioner for preference status under paragraph (1), (2), or (3) of section 1153(a) of this title, whichever paragraph is applicable, with the same priority date assigned to the self-petition . . . . No new petition shall be required to be filed.

Section 1154(A)(1)(D)(i)(III) states:

Any derivative child who attains 21 years of age who is included in a [selfpetition] that was filed or approved before the date on which the child attained 21 years of age shall be considered (if the child has not been admitted or approved for lawful permanent residence by the date the child attained 21 years of age) a VAWA self-petitioner with the same priority date

1 In their Reply Brief, Plaintiffs also argued that Congress could not have been intended to

solely address administrative delay in the CSPA because of the “opt-out” provision of INA § 204(k)(2)

was aimed at preventing injustice where a F2B petition converted to the F1 line, which, for certain

countries, had a longer wait. The Court fails to see the relevance of § 203(k)(2) to the situation here.

The “opt-out” provision was intended to prevent the unmarried sons or daughters of lawful permanent

residents from being penalized by their parents attaining U.S. citizenship. 148 Cong. Rec. H4991 (daily

ed. July 22, 2002) (statement of Rep. Sensenbrenner). It sought to prevent “naturalizing-out” and is

unrelated to the “aging-out” provisions of CSPA.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 3 of 4

Case 8:08-cv-00688-JVS-SH Document 92 Filed 11/10/09 Page 4 of 4 Page ID #:1796
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SA08-00688-JVS (SHx)

Date November 10, 2009

Title

Teresita G. Costelo, et al. v. Michael Chertoff, et al.

as that assigned to the [self-petitioner]. No new petition shall be required to be filed.

Thus, there is no contradiction between Wang and INA § 203(h)(4). Selfpetitioners or derivatives of self-petitioners are explicitly reclassified by statute when they age-out, leaving no gap of ineligibility, unlike the aged-out derivative beneficiaries of F3 or F4 petitions. Section 203(h)(4) supports, rather than contradicts, the Wang interpretation.

For the reasons laid out in Zhang, the Court finds that Section 203(h)(3) is ambiguous and that the BIA’s interpretation is reasonable. See Zhang, 2009 WL 3347345, at *5-7. Accordingly, Defendants are entitled summary judgment.

III. Conclusion

For the foregoing reasons, the Court DENIES Plaintiffs’ motion and GRANTS Defendants motion. Defendants motion to stay discovery is DENIED as moot.

IT IS SO ORDERED.

Initials of Preparer

ts

:

00

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 4 of 4

 
 Case 8:08-cv-00688-JVS-SH Document 95 Filed 11/18/09 Page 1 of 2 Page ID #:1803

1 UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA

3 SOUTHERN DIVISION

4 TERESITA COSTELO, et al.,

) No. SA CV08-00688-JVS (SHx)

5

)

Plaintiffs, )

6

)

v.

)

7

)

JANET NAPOLITANO, Secretary, )

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

8 Department of Homeland

)

Security, et al.,

)

9

)

Defendants. )

10

11

Defendants’ Motion for Summary Judgment came on regularly for

12 hearing on November 9, 2009, before the Honorable James V. Selna,

13 United States District Judge. The Court, having considered the

14 pleadings, evidence presented, memoranda of points and authorities,

15 and oral arguments presented at the time of the hearing, and in

16 accordance with the proposed Statements of Uncontroverted Facts and

17 Conclusions of Law filed herein:

18

HEREBY ORDERS, ADJUDGES, AND DECREES that Defendants’ Motion

19 for Summary Judgment is granted. Judgment is hereby entered in

20 favor of Defendants with Defendants recovering from Plaintiffs

21 their costs.

22
23 Dated: November 18, 2009
24 Presented by:
25 TONY WEST
26 Assistant Attorney General Civil Division
27 U.S. Department of Justice

___________________________ JAMES V. SELNA United States District Judge

28 ELIZABETH J. STEVENS Assistant Director

SACV 08-06919 JVS(SHx)

Case 8:08-cv-00688-JVS-SH Document 95 Filed 11/18/09 Page 2 of 2 Page ID #:1804

District Court Section 1 Office of Immigration Litigation

2 S/ Gisela A. Westwater

3

GISELA A. WESTWATER Trial Attorney

4 District Court Section Office Of Immigration Litigation

5 Civil Division

Department of Justice

6 P. O. Box 868

Washington, D.C. 20044 7 Tel: (202) 532-4174

8 Fax: (202) 616-8962 Email: Gisela.Westwater@usdoj.gov

9 Attorneys for Defendants
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SACV 08-06919 JVS(SHx)

2

 
 Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 1 of 26 Page ID #:80

I ROBERT L. REEVES California Bar No. 92878
2 NANCY E. MILLER California Bar No. 120031
3 JEREMIAH JOHNSON California Bar No. 227275
4 JOYCE A. KOMANAPALLI California Bar No. 231436
5 REEVES & ASSOCIATES, A PLC 2 North Lake Avenue, Ninth Floor
6 Pasadena, CA 9110 1 Tel: (626) 795-6777
7 Fax: (626) 795-6999 immigration@rreeves.com
8 9 Attorneys for Plaintiffs

10

THE UNITED STATES DISTRICT COURT FOR THE

II

CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

12

TERESITA G. COSTELO, and

)

13 LORENZO P. ONG, Individually And ) Case No. SACV08-688 JVS (SHx)

14 On Behalf Of All Others Similarly

)

15 Situated,

16

v.

Plaintiffs,

) ) ) MEMORANDUM OF POINTS AND

17 MICHAEL CHERTOFF, Secretary Of ) AUTHORITIES IN SUPPORT OF

The Department Of Homeland

) MOTION FOR CLASS

18 Security; UNITED STATES

) CERTIFICATION

19 CITIZENSHIP AND IMMIGRATION )

20 SERVICES; EMILIO T.

)

GONZALEZ, Director, United States )

21 Citizenship And Immigration

) Hearing Date:

22 Services; DAVID TYLER, Director, ) Time:

National Visa Center; CHRISTINA ) Courtroom:

23 POULOS, Acting Director, California )

August 11, 2008 1:30pm 10C

24 Service Center, United States

)

Citizenship and Immigration Services; )

25 And CONDOLEEZA RICE, Secretary )

26 of State,

)

27

Defendants.

)

28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTlFlCATlON OF CLASS ACTION

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 2 of 26 Page ID #:81

Plaintiffs, by and through their undersigned attorneys, hereby move this court,
2

3 pursuant to Federal Rule of Civil Procedure 23, to certify this case as
4
action. See F.R.C.P. Rule 23(a), (b)(2). This motion is supported by th
5
6 pleadings, exhibits on file in this case and the following memorandum.

7

8
I. PROPOSED CLASS DEFINITION.

9

10

Plaintiffs seek certification provisionally of the following class of similar!

II situated persons:

12

All persons who have filed an immigrant visa petition(s) for their child 0

13

children with a request for the original priority date or are the derivativ

14

beneficiary of an immigrant visa petition who face future and/or ongoin

15

separation from family members as a result of the Defendants failure t

automatically convert and retain the original visa petition priority dat

16

pursuant to Section 3 of the Child Status Protection Act.

17

18

Plaintiffs seek to have this class certified under F.R.C.P. 23.

19

20
II. THIS ACTION SATISFIES THE RE UIREMENTS OF RULE 23

21

OF THE FEDERAL RULES OF CIVIL PROCEDURE.

22

23

In order to be certified for class treatment, an action must satisfy the four

24
requirements of Rule 23(a) of the Federal Rules of Civil Procedure. Mor an v.
25

26 Laborers Pension Trust Fund, etc., 81 F.R.D. 669, 675 (N.D. Cal. 1979). Court
27
frequently certify classes in the immigration context where the plaintiffs challeng
28

MEMORANDUM OF POINTS AND AUTHORiTIES IN SUPPORT OF MOTION POR CERTIFICATION OF CLASS ACTION
2

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 3 of 26 Page ID #:82

the legality of a practice or policy of the immigration service. I In the instant case,

2 not only do Plaintiffs challenge the legality of a practice and policy of th
3
immigration service, but Plaintiffs also meet the four requirements of F.R.C.P.
4
5 23(a) and satisfY the requirements ofF.R.C.P. 23(b)(2).

6
A. This Action Satisfies The Four Requirements Of F.R.C.P 23(a).
7

8

All class actions in federal court must meet the prerequisites of Rule 23(a).

9 There are four prerequisites: 1) Numerosity: the class must be so numerous tha
10
joinder of all members individually is "impracticable"; 2) Commonality: ther
II

12 must be questions of law or fact common to the class; 3) Typicality: the claims 01
13
defenses of the class representative must be typical of the claims or defenses of th
14
IS class; 4) Adequacy of representation: the person representing the class must b

16 able to fairly and adequately protect the interests of all members ofthe class.

17

18

1. Because the Class Is So Numerous, Joinder i

Impracticable.

19

20

21
, See. e.g., National Center for Immigrants' Rights, Inc. v.INS, Civ. No. 83-7927-KN (CD. Cal.)(order issued July 22 9, 1985, certitying a nationwide class of all persons subject to an INS regulation under challenge); Illinois Migrant
Council v. Pilliod, 540 F.2d 1062, 1072 (7'h Cir. 1976), modified, 548 F.2d 715 (7'h Cir. 1977); Flores v. Meese, No. 23 85-4544RJK (C.D. Cal., August 11, 1988)(class of children in INS Western Region); Haitian Refugee Center v.
Smith, 676 F.2d 1023,1026 n.l, 1033 (class of Haitian political asylum applicants denied by the INS District in 24 Miami, Florida); Orantes Hernandez v. Smith, 541 F. Supp. 351, 371 (C.D. Cal., 1982); Gorbach v. Reno, 219 F.3d
1087 (9'h Cir. 2000); LULAC v.lNS, No. 87-4757-WDK (C.D. Cal., July 15, 1988)(class of persons eligible for 25 legalization who, in reliance on INS, failed to file application by deadline), affd sub nom. Catholic Soc. Servs. Inc.
v. Thornburgh, 956 F.2d 914 (9'h Cir. 1992), vacated sub nom. on other grounds, Reno v. Catholic Soc. Servs., Inc., 26 509 U.S. 43 (1993); Zambrano et al. v.INS, No. S-88-455-EJG (E.D.Cal., August 9, 1988)(class of aliens who were
discouraged from filing or denied legalization because oflNS regulations on "public charge"), affd 972 F.2d 27 1122(9'h Cir. 1992), vacated on other grounds, 509 U.S. 918 (1993); Haitian Refugee Center v. Nelson, 694 F. Supp.
864 (S.D. Fla. 1988)(class of farmworker legalization applicants denied due process as a result of several INS 28 procedures), affd 872 F.2d 1555 (11'h Cir. 1989), affd sub nom. McNary v. Haitian Refugee Center, Inc., 498 U.S.
479 (1991).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTIFICATION Of CLASS ACTION
3

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 4 of 26 Page ID #:83

Rule 23(a)(l) of the Federal Rules of Civil Procedure requires that the clas

2 be "so numerous that joinder is impractical." F.R.C.P. 23(a)(I). Here, th
3
proposed class includes the thousands of parents who have filed an immigrant vis
4
5 petition or are the adult children beneficiaries of an immigrant visa petition wh

6
face separation from family as a result of the Defendants refusal to automaticall
7
8 convert and retain the original priority date of the original visa petition pursuant t

9 Section 3 of the Child Status Protection Act ("CSPA"). As discussed below and
10
evidenced in supporting exhibits, the proposed class and this action meet all of th
II

12 requirements under the Federal Rules of Civil Procedure for class certification.

13
See Exhibit A (Declaration of Nancy E. Miller, Esq.); Exhibit B (Declaration 0
14
15 Jeremiah Johnson, Esq.)

16

Here, joinder of all the possibly affected persons is not feasible and Plaintiff:

17

have more than satisfied the numerosity requirement of F.R.C.P. 23(a)(1). Se
18

19 Carey v. Greyhound Bus Co., 500 F.2d 1372, 1381 (5 th Cir. 1974)(number of clas

20
members assumed to be 28); Arkansas Education Ass'n v. Board of Education, 44
21
22 F.2d 763,765-66 (8 th Cir. 1971)(class membership of20 persons). See ="""'-'=.Ii

23 3B Moore's Federal Practice 23.05[1] at 23-154 to 23-155 (1978).
24

25

Furthermore, it is not necessary to establish the exact size of the class i

26 order to satisfY F.R.C.P. 23(a)(I), especially when plaintiffs are unable to identi
27
the names of class members with reasonable diligence. See In re Financia
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTIFICATION OF CLASS ACTION
4

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 5 of 26 Page ID #:84

Securities Litigation, 69 F.R.D. 24, 34 (S.D. Cal. 1975); 7 Wright & Miller

2 Federal Practice and Procedure: Civil § 1762. Indeed, "[w]here the exact size 0
3
the class is unknown but general knowledge and common sense indicate that it i
4
5 large, the numerosity requirement is satisfied." Orantes-Hernandez v. Smith, 541

6
F. Supp. 351, 371 (C.D. Cal. 1982). Because Plaintiffs are challengin
7
8 Defendants' lack of uniform policy and failure to implement regulation

9 addressing the automatic conversion and retention provision pursuant to INA §
10
203(h)(3) as applied to thousands of individuals and families, many of whO!
11

12 cannot be identified at this stage of the litigation, Plaintiffs satisfY the numerosit

13
requirement ofF.R.C.P. 23(a)(I).
14

15

Moreover, this COUlt may consider factors other than class size 1

16 determining whether joinder would be impracticable, including the geographica
17
diversity of class members; the ability of Plaintiffs to identifY individual clas
18

19 members; the ability of individual claimants to institute separate suits; and the typ
20
of review sought. These other factors further evidence the impracticability 0
21
22 joinder in the present case. See Section II(A)(2)(a), (b),(c),(d), infra.

23
a. The Plaintiffs Are Geographically Dispersed.
24

25

26

27

28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTIFICATION OF CLASS ACTION
5

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 6 of 26 Page ID #:85

The geographical location of class members in this case makes joinde

2 impracticable.2 See Exhibits A, B, supra. Individuals falling under the propose
3
class definition are immigrants from several countries throughout the world.
4
5 such, joinder of all class members is impractical.

6

b. Members Of The Proposed Class Are Not Specifieall

7

Identifiable.

8
The fact that members of the proposed class are not specifically identifiable
9

10 further supports certification of this class, since "joinder of unknown individuals i

11 certainly impracticable.,,3 The identity of all individuals eligible under Section 3
12
13 of the CSPA, codified at INA § 203(h)(3) cannot be detennined.

14

e. Members Of The Proposed Class Are Unable To Initiat

15

Individual Action.

16

The ability of individual class members to institute separate suits is also an

17
important factor in determining impracticability of joinder. See Paxton v. Unio
18

19 Nat'l Bank, 688 F.2d 552, 559 (8th Cir. 1982), cert. denied, 460 U.S. 1083 (1983);

20
see also Council of the Blind v. Regan, 709 F.2d 1521, 1543-4, n. 48 (D.C. Cir.
21

22 1983)(Robinson, CJ dissenting on other grounds)(practicability of joinde

23 includes consideration of ability of individual claimants to institute separate suits).
24

25
26 2 See Ziedman v. 1. Ray McDermott & Co., Inc., 651 F.2d 1030,1038 (5th Cir. 1981); see also Newberg on Class Actions 2d at § 3.06; Council of the Blind v. Regan, 709 F.2d 1521, 1543-4, nA8 (D.C. Cir. 1983)(Robinson, C.J.,
27 dissenting on other grounds). In one case, the fact that defendants were located from California to New York and from North Carolina to Nebraska made joinder not only impractical but impossible, even though there were only
28 thirteen defendants. Dale Electronics, Inc. v. R.C.L. Electronics, Inc., 53 F.R.D. 531, 534 (D.N.H. 1971). 3 Jack v. American Linen Supply Co., 498 F.2d 122, 124 (5th Cir. 1974).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTIFICATION OF CLASS ACTION
6

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 7 of 26 Page ID #:86

Here, many potential class members are not able to afford the high costs 0

2 litigating their own individual case. See Exhibit B, Declaration of Jeremia
3
Johnson, Esq. This fact indicates that class certification is appropriate.
4
5 Morgan v. Sielaff, 546 F.2d 218, 222 (7th Cir. 1976)("Only a representativ
6
proceeding avoids a multiplicity of lawsuits and guarantees a hearing fo
7
8 individuals, such as many of the class members here, who by reason of ignorance

9 poverty, illness or lack of counsel may not have been in a position to seek one 0
10
their own behalf').
11

12

d. When The Only Relief Sought By Plaintiffs Is Injunctiv

13

And Declaratory In Nature, Courts Are More Willing T

Certify A Class.

14

15
When plaintiffs are seeking injunctive or declaratory relief, the court
16

17 approach F.R.C.P. 23 liberally. In particular, courts have liberally construed th

18
numerosity requirement of F.R.C.P. 23 such that smaller classes are les
19
20 objectionable. See Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975).

21 Furthermore, the burden on plaintiffs to identify the class members represented i
22
substantially reduced. See Doe v. Charleston Area Medical Center, Inc., 529 F.2
23
24 638,645 (4th Cir. 1975)("where the only relief sought for the class is injunctive an
25
declaratory in nature ...even 'speculative and conclusory representations' as to th
26
27 size of the class suffice as to the requirement of many," quoting Doe v. Flowers,

28 364 F. Supp. 953, 954 (N.D.W. Va. 1973), affd, 416 U.S. 922 91974)).

MEMORANDUM OF POINTS AND AUTHORITlES IN SUPPORT OF MOTION FOR CERTIFICATION OF CLASS ACTION
7

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 8 of 26 Page ID #:87

Here, Plaintiffs not only challenge Defendants' lack of uniform polic

2 implementing the provisions of Section 3 of CSPA, codified at INA § 203(h)(3),
3
but they are also seeking declaratory and injunctive relief on behalf of members 0
4
5 the proposed class. Because Plaintiffs have effectively satisfied the strictel

6
numerosity requirement of F.R.C.P. 23(a)(1), a fortiori, Plaintiffs meet th
7
8 requirements ofthe rule when liberally construed. See Section II(a)(1), supra.

9

2. Plaintiffs Present Questions Of Law Or Fact Common To Th

10

Proposed Class.

11

12

Rule 23(a)(2) requires that there be "questions oflaw or fact common to the

13
class." Rodriguez v. Swank, 318 F. Supp. 289, 293-4 (ND. Ill. 1970), afrd 403
14
15 U.S. 901 (1971)(emphasis added)(common legal question satisfied Rule 23[a][2]).

16 Generally, a lawsuit challenging a pattern and practice of allegedly illegal conduc
17
presents common questions oflaw and fact. See, ~ LaDuke v. Nelson, 762 F.2
18
19 1318, 1332 (9th Cir. 1985); Illinois Migrant Council v. Pilliod, 540 F.2d at 1066
20
67, 1072; Medrano v. Allee, 347 F. Supp. 605, 610 (S.D. Tex. 1972), modified,
21
22 416 U.S. 802 (1974). Here, both questions of law and questions of fact ar

23 common to the claims of the proposed class members and the named plaintiffs.

24

25

The issues of fact common to the proposed class include the Defendants'

26 failure to adopt policies and procedures in accordance with INA § 203(h)(3);
27
Defendants' failure to promulgate a uniform policy to implement Section 3 of th
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTIFICATION OF CLASS ACTION
8

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 9 of 26 Page ID #:88
CSPA, INA § 203(h)(3). Specifically, the claims of the proposed clas
2 representative and those of the proposed class members raise common questions 0
3
law and fact concerning whether the Defendants may refuse to recognize a statut
4
5 that preserves a parent's original priority date for use by their sons and daughter
6
after they turn 21. Although the USCIS has granted some visa petitions an
7
8 permitted retention of the earlier priority dates pursuant to INA § 203(h)(3), ther
9 appears to be no uniform policy from Defendants as a whole.
10
Common questions of law presented in this proposed class action includ
11
12 whether Defendants' challenged practices and policies violate INA § 203(h)(3);
13
whether Defendants' failure to promulgate regulations implementing CSP
14
15 benefits violates the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.,
16 the Due Process Clause and equal protection guarantee of the Fifth Amendment t
17
the United States Constitution, and Article II §§ 1 and 3 of the United State
IS
19 Constitution.
20
The questions of fact and law raised by Plaintiffs are not unique to any
21
22 individual class member, rather they are issues common to the thousands 0
23 individuals who are eligible for lawful pennanent resident status pursuant to INA §
24
25 203(h)(3). The claims of the proposed class representatives and those of th
26 proposed class members raise common questions of law and fact, i.e. whethe
27
Defendants may simply disregard the provisions of CSPA, an ameliorative la
28
or MEMORANDUM POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR CERTIFICATION OF CLASS ACTION
9

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 10 of 26 Page ID #:89

enacted by Congress to preserve a parent's original priority date for use by thei

2 sons and daughters after they age out. Plaintiffs are seeking broad-based relief tc

3
be applied across the board for the benefit of all class members.
4

5

Courts have made clear that the commonality requirement is met if the

6
members of the class have allegedly been affected by a general policy of the
7
8 defendant and the general policy is the focus of the litigation. See ~ LaDuke v.

9 Nelson, 762, F.2d 1318, 1332 (9th Cir. 1985)' Illinois Migrant Council v. Pilliod
10
540 F.2d 1062, 1066-67, 1072 (th Cir. 1976); Medrano v. Allee, 347 F. Supp. 605,
11

12 610 (S.D. Tex. 1972), modified, 416 U.S. 802 (1974); Sweet v. General Tire ane

13
Rubber Co., 74 F.RD. 333, 335 (ND. Ohio 1976). Even if there are individua
14
15 variations in the facts or legal issues as they relate to a particular named plaintiff 0

16 proposed class member, the commonality requirement is satisfied so 1ong as the
17
class shares some common question oflaw or fact. See ~ Eisen v. Carlisle ane
18
19 Jacqueline, 391 F.2d 555, 562 (2nd Cir. 1968) (class certification granted
20
notwithstanding "varying fact patterns underlying each individual ... transaction").
21
22 See also Senter v. General Motors Corp., 532 F.2d 511, 524 (6th Cir. 1976), £§1

23 denied, 429 U.S. 870 (1976)(class celiification granted in employmen
24
25 discrimination action even though it was "manifest that every decision to hire, fire

26 or discharge an employee may involve individual consideration"); Norwalk CORE
27
v. Norwalk Redeveloping Agency, 395 F.2d 920,937 (2nd Cir. 1968)(class certified
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTIFICATION OF CLASS ACTION
10

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 11 of 26 Page ID #:90

in challenge to relocation practices or urban renewal project despite the differen

2 treatment suffered by each tenant during the relocation process); Cullen v. Nevv
3
York State Civil Service Commission Cullen v. New York State Civil Service
4
5 Commission, 435 F. Supp. 546, 559 (E.D. N.Y. 1977)(c1ass certification granted in

6
lawsuit challenging coercive practices in obtaining political contributions from
7
8 public employees even though "fact questions specific to each instance of the

9 alleged coercion will remain").
10
3. Plaintiffs Are Typical Of The Claims Of The Class.
II

12

Rule 23(a)(3) requires that the claims of the named plaintiffs be "typical of

13
the claims ... of the class." Meeting this requirement usually follows from the
14
15 presence of common questions of law. As such, courts have construed

16 subdivisions (a)(2) and (a)(3) to be largely duplicative. See 3B Moore's Federa
17
Practice 23.06-2, at 23-325.4
18

19

This requirement under F.R.C.P. 23(a)(3) is shown in the Fifth's Circui

20
Court of Appeals decision in Gonzalez v. Cassidy, 474 F.2d 67, 71 n. 7 (5th Cir.
21

22 1973). There the court construed the typicality requirement as follows: "[The

23
named plaintiff] was typical of the class within the meaning of Rule 23(a)(3
24
25

26 4 See also Orantes-Hernandes v. INS. 541 F. Supp. 351. 371 (C.D.Cal. 1982); American Airlines. Inc. v. Transport Workers Union, 44 F.R.D. 47, 48 (N.D. Okla. 1968) (holding (a)(3) met by representatives "sharing common with
27 the class any claim or defense it has"); Mersay v. First Republic Corp., 43 F.R.D. 465, 468-69 (S.D. N.Y. 1968)(allegation that defendants engage in scheme common to all members of class held to support finding that
28 claims of representative party typical). As set forth above, common questions of law and fact exist in the case at bar.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTIFICATION OF CLASS ACTION
11

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 12 of 26 Page ID #:91

because he did not have interests which conflicted with those of the class, an

2 because his claims for relief were based on the same legal or remedial theory."
3
Here the representative plaintiffs here have absolutely no interests that conflic
4
5 with those of the proposed class as in Gonzalez. Similarly, the named plaintiff:

6
have identical legal theories as to the class they seek to represent, and they seel
7
8 identical injunctive and declaratory relief for themselves and for the class as

9 whole.
10
This Court must keep "in mind what the basic thrust of the action concerns.'
II

12 Davy v. Sullivan, 354 F. Supp. 1320, 1325 (M.D. Ala. 1973). The "basic thrust"

13
of this action is to compel Defendants to properly adjudicate all cases filed unde
14
15 CSPA, or INA § 203(h)(3), and comply with the requirements of retaining th

16 parent's original priority date.
17
Because no conflict exists between Plaintiffs and the class they seek t
18

19 represent and the issues herein arise out of a regulation and policy that is applie
20
across the board to all class members, the typicality requirement of F.R.C.P.
21
22 23(a)(3) is satisfied.

23
4. Plaintiffs Will Adequately Represent The Proposed Class.

24

25

The final requirement, F.R.C.P. 23(a)(4), is that the named plaintiffs "will

26 fairly and adequately protect the interest of the class." There are two principa
27
elements of this requirement: (1) the class representative's interests must be co
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTIFICATION OF CLASS ACTION
12

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 13 of 26 Page ID #:92

extensive and not antagonistic to the class members' interests, and (2) counsel fo

2 the named representatives be qualified. See ",Jo",hn~s""o",n,,---,-v-,--.-",G,->e",o"-r"",,,,--,,-,~,,-,-,-"'.L-'='-'="""''''I

3
Inc., 417 F.2d 1122, 1124-25 (5 th Cir. 1969).
4

5

The interest of the class representatives here are not antagonistic to those 0

6
the proposed class members. Moreover, the individual named Plaintiffs wil
7
8 adequately represent all members of the proposed class. Their mutual goal is t

9 declare Defendants' practices unlawful and to enjoin further violations. See Baile
10
v. Ryan Stevedoring, Inc., 528 F.2d 551 (5th Cir. 1976).
II

12

Finally, Plaintiffs' attorneys have litigated numerous cases in the federal

13
courts involving the rights of aliens, and have substantial expertise in handlin
14
15 immigration cases. See Exhibits A,B supra. For these reasons, the adequacy 0

16 representation requirement is satisfied.
17
B. This Action Satisfies The Requirements Of Rule 23(b)(2).
18

19

In addition to satisfying the four requirements ofF.R.C.P. 23(a), a propose

20
class must meet one of the requirements of F.R.C.P. 23(b). Here, Plaintiffs mee
21

22 the requirements of F.R.C.P. 23(b)(2) because "the party opposing the class ha

23 acted or refused to act on grounds generally applicable to the class thereby makin
24
25 appropriate final injunctive relief or corresponding declaratory relief with respec

26 to the class as a whole." F.R.C.P. 23(b)(2). In order to meet the requirements 0
27
subsection (b)(2), it is not necessary that defendants have "act[ed] directly agains
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTIFICATION OF CLASS ACTION
13

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 14 of 26 Page ID #:93
each member of the class." Rather, as long as the actions of the defendants "affec
2 all persons similarly situated, [and] his acts apply generally to the whole class," th
3
class is maintainable under F.R.C.P. 23(b)(2). See 7A Wright & Miller, Federa
4
5 Practice and Procedure, § 1775 at 19.
6
To be sure, Defendants' actions have affected all persons similarly situate
7
8 and apply generally to the whole class. Specifically, Defendants have failed t
9 apply Section 3 of the CSPA, codified at INA § 203(h)(3), to thousands of vis
10
petitions and have failed to implant any policy or regulations regarding such.
II
12 Defendants' failure to implement any regulations, policy or procedures i
13
accordance with CSPA, to which Plaintiffs challenge, is applied generally to al
14
15 class members. If Plaintiffs prevail in this lawsuit, then final declaratory an
16 injunctive relief will be appropriate for the benefit of all individuals who fal
17
within the defined class. As such, the requirements of subsection (b)(2) have bee
18
19 met.
20
21
22
23
III. Conclusion
24
25 The focus of the factual mqUIry into the propriety of class certification i
26 whether there is sufficient evidence to support a "reasonable judgment" that th
27
requirements of F.R.C.P. 23 have been met. Blackie v. Barrack, 524 F.2d 891
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTIFICATION OF CLASS ACTION 14

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 15 of 26 Page ID #:94

900-01 (9th Cir. 1975), cert. denied 429 U.S. 816 (1976). Here, Plaintiffs meet all

2 the requirements of class certification pursuant to F.R.C.P. 23.5 Accordingly, th
3
class as proposed herein should be certified.
4

5

6
Dated: July 11, 2008
7
8

Respectfully Submitted, IslNancy E. Miller

9

Nancy E. Miller

10

Robert L. Reeves

Jeremiah Johnson

II

Joyce A. Komanapalli

12

REEVES & ASSOCIATES, A PLC

13

2 North Lake Ave., Ninth Floor

Pasadena, CA 91101

14

IS

Attorneys for Plaintiffs

16

17

18

19

20

21

22

23

24

25

26 5 The Ninth Circuit Court of Appeals has disapproved of the issuance of a class-wide preliminary injunction withou the district court first, at least provisionally, certifying the case as a class action. See Zepeda v. INS. 753 F.2d 719.
27 727-29 (9th Cir. I985)(injunctive relief must be limited to the named plaintiffs unless the court certifies the class); National Center for Immigrants' Rights, Inc. v. INS, 743 F.2d 1365. 1371 (9'h Cir. 1984)(same). For this reason. the
28 motion for class certification should be resolved before or atthe same time as the plaintiffs' motion for preliminary injunction.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CERTIFICATION OF CLASS ACTION
]5

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 16 of 26 Page ID #:95

1 DECLARATION OF NANCY E. MILLER
2

3
4 1. I, Nancy E. MILLER, am an attorney at law duly licensed to practice before all

5 of the courts of the State of California. I am also admitted to practice before the
6
U.S. Court of Appeals for the Fifth Circuit, and the U.S. Court of Appeals for the
7

8 Second Circuit. If called upon to do so, I could and would testify competently to

9
the facts set forth herein as these facts are within my personal knowledge.
10

11

12 2. I am a senior Attorney with the Law Offices of Reeves & Associates. In the
13
14 course and scope of my employment, I am responsible for meeting with and

15 providing consultations to individuals and families seeking immigration assistance.
16
Furthermore, I represent hundreds of individuals and families regarding their
17
18 immigration matters. Specifically I personally represent and/or have represented

19 over twenty cases involving the automatic conversion and retention of the original 20
21 priority date pursuant to the Child Status Protection Act, Section 203(h)(3) of the

22 Immigration and Nationality Act. 23

24

25 3. As such, I am familiar with the Child Status Protection Act and the types of

26 families and individuals that can be affected by this law. I have also co-authored a
27

28

1

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 17 of 26 Page ID #:96

1 number of educational articles written for immigrants and their families concerning

2 the Child Status Protection Act and the automatic conversion and retention
3
4 proVISIOn. As a result of these articles I have had the opportunity to meet with and

5 discuss this provision with hundreds of persons both at my office in Pasadena and
6
7 in the community.

8

9
4. I am familiar with the caseload at Reeves & Associates. I am aware that our
10
11 office represents at a minimum 40 clients who are seeking automatic conversion

12 and retention of the original priority date under INA § 203(h)(3) and would qualify
13
14 as class members under the proposed class definition. Furthermore, I have

15 consulted with a minimum of 100 individuals and families who appear to be prima
16
facie eligible for automatic conversion and retention and would qualify as class
17

18 members under the proposed class definition. During these consultations, a

19 number of families had indicated to me that the cost of retaining an attorney to 20
21 pursue the automatic conversion and retention would be prohibitive.

22

23 24 5. On July 25, 2008 through July 28, 2008 I attended a conference of the

25 American Immigration Lawyers Association and had the opportunity to discuss the

26 Child Status Protection Act and the automatic conversion and retention provision
27

28

2

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 18 of 26 Page ID #:97

1 with immigration attorneys from all over the United States. I personally met with

2 several attorneys, including attorneys from Texas and New York, who indicated to
3
4 me that they also represent clients who would appear to qualify as class members

5 under the proposed class definition. Furthermore, at the conference I had the
6
7 opportunity to attend a seminar specifically regarding the Child Status Protection

8 Act attended by over 100 immigration attorneys. At the seminar, the moderator

9
specifically referenced the automatic conversion and retention provision ofINA §
10
11 203(h)(3), this instant class action case and indicated the broad applicability of this

12 provision. After having attended this conference and discussing this case with a
13
14 number of immigration attorneys from around the United States, I am convinced

15 that class members under the proposed class definition would number in the tens of
16
thousands. Additionally, since I started practicing immigration law in 1985, I have
17

18 regularly reviewed the monthly U.S. Department of State visa bulletins and know

19 that there has always been a significant backlog of immigrant visa petitions waiting
20
21 for their priority date to become current from countries throughout the world.

22

23
6. I consider myself a knowledgeable and experienced immigration attorney.
24

25 Often I am consulted by other attorneys regarding immigration matters, including

26 the Child Status Protection Act. I am a member of the American Immigration
27

28

3

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 19 of 26 Page ID #:98

1 Lawyers Association CAlLA) and the Los Angeles Bar Association, Immigration
2
Section. I am currently the AILA liaison to the Executive Office for Immigration
3
4 Review, Immigration Court. As an experienced immigration attorney I would

5 estimate that class members under the proposed class definition would number in
6
7 the tens of thousands.
8
9
7. I declare under penalty of perjury under the laws of the United States of
10
11 America that the foregoing statements are true and correct to be best of my 12 Imowledge based on information provided to me.
13
14

15 Executed this 11th day of July in 2008 in Pasadena, California.
16 17
18 lsi Nancy E. Miller
19
20 21 Nancy E. Miller

22

23

24

25

26

27

28

4

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 20 of 26 Page ID #:99

1
DECLARATION OF JEREMIAH JOHNSON 2
3
4
1. I, Jeremiah JOHNSON, am an attorney at law duly licensed to practice before
5
6 all of the courts of the State of California. If called upon to do so, I could and
7 would testify competently to the facts set forth herein as these facts are within my
8
9 personal knowledge.
10
11
2. I am the San Francisco Managing Attorney and a partner with the Law Offices
12
13 of Reeves & Associates. In the course and scope of my employment, I am
14 responsible for meeting with and providing consultations to individuals and
15
16 families seeking immigration assistance. Furthermore, I represent hundreds of

17 individuals and families regarding their immigration matters. Specifically I
18
personally represent and/or have represented over twenty cases involving the 19

20 automatic conversion and retention of the original priority date pursuant to the

21
Child Status Protection Act, Section 203(h)(3) of the Immigration and Nationality 22
23 Act.

24

25
26 3. As such, I am familiar with the Child Status Protection Act and the types of

27 families and individuals that can be affected by this law. I have also co-authored a

28

1

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 21 of 26 Page ID #:100

1 number of educational articles written for immigrants and their families concerning

2 the Child Status Protection Act and the automatic conversion and retention
3
4 prOVISIOn. As a result of these articles I have had the opportunity to meet with and

5 discuss this provision with hundreds of persons both at my office in San Francisco
6
and in the community.
7

8

9
4. I am familiar with the caseload at Reeves & Associates. I am aware that our 10

11 office represents at a minimum 40 clients who are seeking automatic conversion

12 and retention of the original priority date under INA § 203(h)(3) and would qualify 13 14 as class members under the proposed class definition. Furthermore, I have

15 consulted with a minimum of 100 individuals and families who appear to be prima
16 facie eligible for automatic conversion and retention and would qualifY as class
17

18 members under the proposed class definition. During these consultations, a

19 number of families had indicated to me that the cost of retaining an attorney to
20
21 pursue the automatic conversion and retention would be prohibitive.

22

23 24 5. On July 25, 2008 through July 28, 2008 I attended a conference of the

25 American Immigration Lawyers Association and had the opportunity to discuss the

26 Child Status Protection Act and the automatic conversion and retention provision
27

28

2

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 22 of 26 Page ID #:101

1 with immigration attorneys from all over the United States. I personally met with

2 several attorneys, including attorneys from Texas and New Yark, who indicated to
3
4 me that they also represent clients who would appear to qualifY as class members

5 under the proposed class definition. Furthermore, at the conference I had the
6
7 opportunity to attend a seminar specifically regarding the Child Status Protection

8 Act attended by over 100 immigration attorneys. At the seminar, the moderator

9
specifically referenced the automatic conversion and retention provision of INA §
10
11 203(h)(3), this instant class action case and indicated the broad applicability of this

12 provision. After having attended this conference and discussing this case with a 13 14 number of immigration attorneys from around the United States, I am convinced

15 that class members under the proposed class definition would number in the tens of
16
thousands. 17

18

19 6. I consider myself a knowledgeable and experienced immigration attorney.
20
21 Often I am consulted by other attorneys regarding immigration matters, including

22 the Child Status Protection Act. I am a member of the American Immigration
23
Lawyers Association and regularly read, study and familiarize myself with current 24

25 trends, cases and policy relating to immigration law. As an experienced 26

27

28

3

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 23 of 26 Page ID #:102

I immigration attorney I would estimate that class members under the proposed class
2 definition would number in the tens ofthousands.
3

4

5 7. I declare under penalty of perjury under the laws of the United States of
6
7 America that the foregoing statements are true and correct to be best of my

8 knowledge based on information provided to me.
9

10
II Executed this 9th day of July in 2008 in San Francisco, California.

12

13

14

IS

16
Jeremiah Johnson
17

18

19
20

21
22

23

24

25

26

27

28

4

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 24 of 26 Page ID #:103

PROOF OF SERVICE

2

I am employed in the county of Los Angeles, State of California. I am over the

3 age of 18 and not a party to the within action. My business address is 2 North Lake

Avenue, Suite 950, Pasadena, California 91101.
4

5

On July 11,2008, I served the foregoing documents: NOTICE OF MOTION

6 AND MOTION FOR CERTIFICATION OF CLASS ACTION; MEMORANDU

OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR

7 CERTIFICATION OF CLASS ACTION; DECLARATION OF NANCY E.

8 MILLER, ESQ.; DECLARATION OF JEREMIAH JOHNSON, ESQ.; AND

PROPOSED ORDER GRANTING CLASS CERTIFICATION; on the interested

9 parties in the action described as

10
D by placing the true copies thereof enclosed in sealed envelopes addressed as stated on
11 the attached mailing list:

12 [ZJ by placing D the original and [ZJ a true copy thereof enclosed in sealed envelopes
13 addressed as follows:

14
SEE ATTACHED SERVICE LIST
15
16 [ZJ By Mail

17

D By placing a true copy thereof enclosed in a sealed envelope, with postage

18 thereon fully prepaid, in the United States mail at Pasadena, California.

19

[ZJ As follows: I am "readily familiar" with the firm's practice of collection and

20 processing correspondence for mailing. Under that practice it would be deposited with

U.S. postal service on that same day with postage thereon fully prepaid at Pasadena,

21 California in the ordinary course of business. I am aware that on motion of the party

served, service is presumed invalid if postal cancellation date or postage meter date is
22
more than one day after date of deposit for mailing in affidavit.

23
D By Personal Service.
24

25

D I personally deliver a copy of said document(s) to the office(s) of the

addressee(s).
26

27

D I caused such document(s) to be hand-delivered to the office(s) of the

addressee( s).
28

PROOF OF SERVICE - 1

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 25 of 26 Page ID #:104

o By Facsimile ~ I caused such document(s) to be faxed to the office of the
addressee(s). The transmission of the above document to each party served, consisting 0
2 _ _ _~pages, was reported as complete and without error as shown by the attached
facsimile transmission confirmation report issued by the transmitting facsimile machine 3 number (626) 795-6999 or (626) 795-6300.

4

Executed on July 11, 2008, at Pasadena, California.
5

o 6

(State) I deelare under penalty of perjury under the laws of the State of California

that the above is true and eorrect.
7

8 ~(Federal) I deelare that I am employed in the office of a member of the bar of this
court at whose direction the service was made.
9

10 ~(Federal) I deelare under penalty ofpe~jury under the laws of the United States of
America that the foregoing is true and correct.
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PROOF OF SERVICE - 2

Case 8:08-cv-00688-JVS-SH Document 9 Filed 07/14/08 Page 26 of 26 Page ID #:105

Service List

2 Civil Process Clerk U.S. Attorney Office
3 300 N. Los Angeles St., Room 7516
Los Angeles, CA 90012
4

5 ivl11~hael ChertolJ
6 Secretary of the Department of Homeland IJepai1ment of ilomeiarld
7 Oake of General Counsel 20528
8

9

10

of Hilnwln

OjJjce of 11 Washington

Counsel 20528

12
David
13

Director

14 Office of the 15 2201
Washington D.C. 20520
16
ndcdcczza Rice
17
18
19 Washington

19
State 19

20 Christina Poulos,
21
US
22 OHicc General Counsel 20528
23

24

25

26

27

28

PROOF OF SERVICE - 3

 
 Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 1 of 34 Page ID #:1114

1 TONY WEST

Assistant Attorney General

2 Civil Division

U.S. Department of Justice

3

ELIZABETH J. STEVENS

4 Assistant Director

District Court Section

5

GISELA A. WESTWATER NSB 21801

6 Trial Attorney

District Court Section

7 Office of Immigration Litigation

U.S. Department of Justice

8

P.O. Box 868, Ben Franklin Station

Washington, DC 20044

9

Telephone: (202) 532-4174

Facsimile: (202) 616-8962

10

E-mail: gisela.westwater@usdoj.gov

11 Attorneys for Defendants

12 UNITED STATES DISTRICT COURT
13 CENTRAL DISTRICT OF CALIFORNIA
14 SOUTHERN DIVISION
15

16 TERISITA COSTELO, et al., )

17

)

Plaintiffs,

)

18 v.

) )

19

) )

20

JANET NAPOLITANO, Secretary, Department of

) )

21

Homeland Security, et al., ) )

22

Defendants.

)

)

23 _______________________

)

No. SACV 08-00688 JVS(SHx)
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF GISELA WESTWATER
Date: November 9, 2009 Time: 1:30 p.m. Courtroom: 10C Honorable James V. Selna

24

25

26

27

28

MOTION FOR SUMMARY JUDGMENT
08-CV-00688-JVS(SHx)

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 2 of 34 Page ID #:1115

1

2

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

3

TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

4

PLEASE TAKE NOTICE that on Monday, November 9, 2009 at 1:30

5 p.m., or as soon thereafter as the matter may be heard, before

6 the Honorable James V. Selna, United States District Judge,

7 Courtroom 10C, 411 West Fourth Street, Room 1053, Santa Ana,

8 California 92701-4516, Defendants, by and through their

9 attorney, Gisela A. Westwater, will and hereby do move the Court

10 to grant summary judgment in favor of Defendants.

11

This Motion is based on the following Memorandum of Points

12 and Authorities, Declaration, attached Exhibits, and on such

13 other and further arguments, documents, and grounds as may be

14 advanced at, before, and after the hearing on this matter.

15

STATEMENT OF COMPLIANCE WITH LOCAL RULE 7-3

16

Defendants contacted opposing counsel’s office on September

17 8, 2009 and spoke directly with counsel on September 11, 2009

18 regarding cross-motions for summary judgment.

19

Respectfully submitted,

20 Dated: October 1, 2009

21

s/ Gisela A. Westwater

22

GISELA A. WESTWATER

Trial Attorney

23

District Court Section

Office of Immigration

24

Litigation

U.S. Department of Justice

25

26

27

28

MOTION FOR SUMMARY JUDGMENT
08-CV-00688-JVS(SHx)

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 3 of 34 Page ID #:1116
TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES .......................... 1
FACTUAL BACKGROUND ....................................... 1 LEGAL BACKGROUND ......................................... 2
A. Family Preference Petitions Under the INA. .... 2 B. The Child Status Protection Act of 2002 ........ 5 ARGUMENT ................................................. 8 I. LEGAL STANDARD FOR SUMMARY JUDGMENT. ................ 8 II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE 8 U.S.C. § 1153(h)(3) DOES NOT AUTHORIZE THE TRANSFER OF A PRIORITY DATE FROM A TERMINATED DERIVATIVE INTEREST IN AN F3 OR F4 PETITION TO A SEPARATE AND UNRELATED F2B PETITION. ........................................... 9 A. 8 U.S.C. § 1153(h)(3) IS AMBIGUOUS. ............ 9 B. THE AGENCY’S INTERPRETATION OF 8 U.S.C. §
1153(h)(3) IS REASONABLE. ................................ 12 1. Factors Cited in Matter of Wang Establishing
that BIA’s Interpretation is Reasonable. 13 2. Other Factors Establishing that Matter of
Wang is a Reasonable Interpretation. ............... 17 C. PLAINTIFFS’ POSITION IS NOT REASONABLE. ....... 19 D. EXAMPLES UNDER COMPETING INTERPRETATIONS. ..... 21 III. ANY CLAIMS RELATED TO THE PROMULGATION OF REGULATIONS MUST FAIL. ......................................... 22 IV. PLAINTIFFS’ CLAIMS MUST FAIL. ...................... 25 CONCLUSION ................................................... 25 CERTIFICATE OF SERVICE
i

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 4 of 34 Page ID #:1117
TABLE OF AUTHORITIES
Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001) ............................ 24, 25
Allen v. Wright 468 U.S. 737, S. Ct. 3315, 82 L. Ed. 2d 554 (1984) ...... 23
Alonso-Varona v. Mukasey, 319 Fed. Appx. 502 (9th Cir. 2009) ...................... 17
Bae v. Immigration & Naturalization Service, 706 F.2d 866 (8th Cir. 1983) ............................. 5
Baruelo v. Comfort, No. 05-cv-6659, 2006 U.S. Dist. LEXIS 94309 (N.D. Ill. 2006) ............................. 8
Bolvito v. Mukasey, 527 F.3d 428 (5th Cir. 2008) ........................... 3, 12
Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977) ...... 9
Central Delta Water Agency v. United States, 306 F.3d 938 (9th Cir. 2002) ........................... 23
Chen v. Rice, 2008 U.S. Dist. LEXIS 57052 (E.D. Penn. 2008) ........... 19
Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) .............................. 9, 13
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971) ..... 9
Cooney v. Edwards, 971 F. 2d 345 (9th Cir. 1992) ........................... 23
Fernandez v. Brock, 840 F.2d 622 (9th Cir. 1988) ............................ 23
Gallard v. INS, 486 F.3d 1136 (9th Cir. 2007) ........................... 13
INS v. Aguirre-Aguirre, 526 U.S. 415, 119 S. Ct. 1439, 143 L. Ed. 2d 590 (1999) ............................ 12, 13
ii

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 5 of 34 Page ID #:1118
INS v. Miranda, 459 U.S. 14, 103 S. Ct. 281, 74 L. Ed. 2d 12 (1982) ...... 5
Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 351 (1992) ... 23
Matter of Khan, 14 I. & N. Dec. 122 (BIA 1972) ........................... 5
Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) .................... 6, passim
Montgomery v. French, 299 F.2d 730 (8th Cir. 1962) ............................. 2
Motor Vehicle Manufacturers Ass'n v. State Farm Mutual, 463 U.S. 29, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983) .... 9
Norton v. So. Utah Wilderness Alliance, 542 U.S. 55, 124 S. Ct. 2373, 159 L. Ed. 2d 137 (2004) .. 24
Ochoa-Amaya v. Gonzales, 479 F.3d 989 (9th Cir. 2007) ..................... 6, passim
Ogbolumani v. USCIS, 523 F. Supp. 2d 864 (N.D. Ill. 2007) .................. 3, 5
Padash v. INS, 358 F.3d 1161 (9th Cir. 2004) ........................... 19
Ramos-Lopez v. Holder, 563 F.3d 855 (9th Cir. 2009) ......................... 9, 12
Reducindo v. Gonzales, No. 05-cv-451, 2006 U.S. Dist. LEXIS 28816 (M.D. Fl. 2006) ............. 7
Santiago v. INS, 526 F.2d 488 (9th Cir. 1975) ............................. 4
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976) .... 23
Spencer Enters. v. United States, 345 F.3d 683 (9th Cir. 2003) ............................. 9
Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1124 (9th Cir. 2000) ........................... 23
United States v. Wenner, 351 F.3d 969 (9th Cir. 2003) ............................ 19
iii

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 6 of 34 Page ID #:1119
Yuk-Ling Wu Jew v. Attorney General, 524 F. Supp. 258 (D.C. 1981) ............................. 5
Ward v. Holder, No. 07-cv-443, 2009 WL. 453390 (M.D. Fla. 2009) ....... 4, 5
STATUTES 5 U.S.C. § 706(1) ........................................ 23, 24 5 U.S.C. § 706(2) .......................................... 8, 9 8 U.S.C. § 1101(b)(1) ......................................... 4 8 U.S.C. § 1101(b)(1)(A) ...................................... 4 8 U.S.C. § 1101(b)(1)(B) ...................................... 4 8 U.S.C. § 1101(b)(1)(C) ...................................... 4 8 U.S.C. § 1101(b)(1)(D) ..................................... 4 8 U.S.C. § 1151(a)(1) ......................................... 3 8 U.S.C. § 1151(c) ............................................ 3 8 U.S.C. § 1151(c)(1)(A)(i) ................................... 3 8 U.S.C. § 1151(f) ........................................... 20 8 U.S.C. § 1153(a) ............................................ 2 8 U.S.C. § 1153(a)(2)(B) ...................................... 7 8 U.S.C. § 1153(d) ............................................ 4 8 U.S.C. § 1153(e) ........................................ 3, 22 8 U.S.C. § 1153(h) ........................................ 6, 10 8 U.S.C. § 1153(h)(1) ................................. 4, passim 8 U.S.C. § 1153(h)(2) ......................................... 6 8 U.S.C. § 1153(h)(3) ................................. 7, passim 8 U.S.C. § 1154(a)(1)(A)(i) ................................... 2 8 U.S.C. § 1154(e) ............................................ 5 8 U.S.C. § 1158(b)(3)(B) ..................................... 20
iv

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 7 of 34 Page ID #:1120 8 U.S.C. § 1182(a)(7)(A) ..................................... 2 8 U.S.C. § 1182(a)(7)(B) ...................................... 2 REGULATIONS 8 C.F.R. § 204.1(a)(1) ....................................... 23 8 C.F.R. § 204.2(a)(4) .................................. 15, 21 8 C.F.R. § 204.2(h)(2) .............................. 15, passim 8 C.F.R. § 204.5(e) .......................................... 18 8 C.F.R. § 205.1(a)(3)(i)(H) ................................. 14 8 C.F.R. § 245.1(g)(1) ..................................... 4 FEDERAL RULES OF CIVIL PROCEDURES Fed. R. Civ. P. 56(c) ......................................... 8 PUBLIC LAWS Homeland Security Act of 2002, Pub. L. No. 107-296 § 451(b), 116 Stat. 2135, 2196 (2002) 2 Child Status Protection Act ("CSPA"), Pub. L. No. 107-208, 116 Stat. 927 (2002), .............. 6
v

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 8 of 34 Page ID #:1121

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

FACTUAL BACKGROUND

3

Plaintiff Teresita Costelo (“Costelo”) is a lawful permanent

4 resident (“LPR”) of the United States. (Complaint, ¶ 19.) She

5 immigrated to the United States as the beneficiary of a family-

6 sponsored third-preference (“F3”) petition filed by her mother in

7 1990. (Id.) Costelo’s two daughters were listed as Costelo’s

8 derivative beneficiaries. (Id.) When an F3 visa number became

9 available in 2004, Costelo’s daughters were ineligible to

10 immigrate with her because they had aged-out (i.e., turned 21

11 years old under the age formula contained in the Immigration and

12 Nationality Act (“INA”)). (Id.) After immigrating, Costelo

13 filed family-sponsored second-preference (“F2B”) petitions on

14 behalf of her daughters on September 23, 2004. (Id.) Costelo

15 requested that her F2B petitions be assigned the priority date

16 from the F3 petition. (Id.)

17

Plaintiff Lorenzo Ong (“Ong”) immigrated to the United

18 States as the beneficiary of a family-sponsored fourth-preference

19 (“F4”) petition filed by his sister in 1981. (Id., ¶ 20.) Ong’s

20 daughter was listed as his derivative beneficiary. (Id.) By the

21 time a F4 visa number became available in 2002, Ong’s daughter

22 was no longer eligible for derivative benefits. (Id.) On March

23 8, 2005, Ong filed an F2B petition on behalf of his daughter and

24 requested that the F2B petition be assigned the same priority

25 date the F4 petition. (Id.)

26

On July 16, 2009, the Court certified a class consisting of:

27

Aliens who became lawful permanent residents as primary

beneficiaries of third- and fourth preference visa

28

petitions listing their children as derivative

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

1

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 9 of 34 Page ID #:1122

1

beneficiaries, and who subsequently filed

second-preference petitions on behalf of their aged-out

2

unmarried sons and daughters, for whom Defendants have

not granted automatic conversion or the retention of

3

priority dates pursuant to § 203(h)(3).

4 (Doc. 74.)

5

LEGAL BACKGROUND

6 A. Family Preference Petitions Under the INA.

7

“Admission of an alien to this country is not a right but a

8 privilege which is granted only upon such terms as the United

9 States prescribes.” Montgomery v. French, 299 F.2d 730, 734 (8th

10 Cir. 1962). To enter and remain in the United States lawfully,

11 Congress requires each alien to possess a valid visa conferring

12 immigrant or non-immigrant status. 8 U.S.C. §§ 1182(a)(7)(A)&(B).

13

There are several different types of “immigrant visas.” The

14 family-sponsored immigrant visa categories - which are the type

15 at issue in this case – require a United States citizen or LPR

16 “petitioner” to file a Form I-130 with USCIS1 in order to

17 classify the intended “primary beneficiary” under one of the

18 congressionally-created immigrant relative categories in the INA.

19 8 C.F.R. § 204.1(a)(1). There are various immigrant

20 classifications for relatives of United States citizens and

21 lawful permanent residents; however, there is no statutory

22 category that permits a grandparent to petition directly for his

23 or her grandchild or for an aunt or uncle to petition directly

24 for a niece or nephew. See, generally, 8 U.S.C. § 1153(a)

25

26 1 Although 8 U.S.C. § 1154(a)(1)(A)(i) provides for filing
27 with the “Attorney General,” the Homeland Security Act of 2002, Pub. L. No. 107-296 § 451(b), 116 Stat. 2135, 2196 (2002),
28 transferred the authority over these matters to USCIS.

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

2

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 10 of 34 Page ID #:1123

1 (listing familial relationships recognized by Congress for

2 immigrant visas).

3

Immigrant visas are made available “to eligible immigrants

4 in the order in which a petition in behalf of each such immigrant

5 is filed.” 8 U.S.C. § 1153(e). The filing date of a petition 6 constitutes the “priority date” for that petition and establishes 7 the beneficiary’s proverbial “place in line.” 8 C.F.R. 8 § 204.1(c).

9

The total number of family-sponsored immigrant visas per

10 year is capped at 480,000. 8 U.S.C. § 1151(c)(1)(A)(i). Those

11 classified as “immediate relatives” are not subject to numerical

12 limits and do not have to wait for allocation of a visa number

13 before they can immigrate. 8 U.S.C. § 1151(a)(1). The other 14 family-based classifications, however, fall under four 15 numerically limited “preference” categories. See 8 U.S.C.

16 § 1153(a). Preference categories are subject to allocation 17 worldwide; in other words, Congress has limited the number of 18 visas that will be granted each year depending on the “priority” 19 of the beneficiary’s relationship to the petitioner and the

20 beneficiary’s country of origin. 8 U.S.C. §§ 1151(a)(1) and (c);

21 see also Bolvito v. Mukasey, 527 F.3d 428, 429-32 (5th Cir. 2008)

22 (explaining the visa petitioning process).

23

Because Congress has limited how many visas the Government

24 may issue in any given year and to any given group, an alien may 25 have to wait several years before a visa number will become 26 available to him or her under the numerical allocation system.

27 See Ogbolumani v. USCIS, 523 F. Supp. 2d 864, 869-70 (N.D. Ill.

28 2007). To determine whether an immigrant visa is immediately

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

3

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 11 of 34 Page ID #:1124

1 available, one looks to the Department of State, Bureau of

2 Consular Affairs Visa Bulletin. 8 C.F.R. § 245.1(g)(1).

3

Despite not having created a directly-petitionable category

4 for “grandchildren” or “nieces and nephews” of United States 5 citizens, Congress has historically allowed “children”2 of aliens

6 to “derive” immigration benefits from their parents in order to

7 avoid separating “children” from parents. These “children” of

8 primary beneficiaries are allowed to accompany or follow to join

9 their parents under “the same status” and “order” so long as they

10 maintain the required relationship with the primary beneficiary. 11 8 U.S.C. § 1153(d).3 See 9 U.S. Dep’t of State, Foreign Affairs

12 Manual § 40.1 n. 7.1 (derivative interest in visa petition is

13 valid only “as long as the alien following to join has the

14 required relationship with the principal alien”) (quoted in Ward

15 v. Holder, No. 07-cv-443, 2009 WL 453390, *3 (M.D. Fla. 2009)).

16 Nonetheless, derivative beneficiaries’ interests in a petition

17 are not the equivalent of “actual preferences.” Santiago v. INS,

18 526 F.2d 488, 491 (9th Cir. 1975). For example, a derivative

19

20 2 “Child” is a legally operative term defined in the INA in
21 pertinent part as “an unmarried person under twenty-one years of
age.” 8 U.S.C. § 1101(b)(1). For purposes of derivatives of F3 22 and F4 petitions, age is calculated under 8 U.S.C. § 1153(h)(1).

23

3 8 U.S.C. § 1153(d) provides:

24

Treatment of family members. A spouse or child as

25

defined in [8 U.S.C. § 1101(b)(1)(A), (B), (C), (D), or

(E)] shall, if not otherwise entitled to an immigrant

26

status and the immediate issuance of a visa under

subsection (a), (b), or (c), be entitled to the same

27

status, and the same order of consideration provided in

the respective subsection, if accompanying or following

28

to join, the spouse or parent.

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

4

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 12 of 34 Page ID #:1125

1 beneficiary may not immigrate before the primary beneficiary, and 2 if the primary beneficiary of a visa petition loses eligibility 3 for the visa, then the spouse and children who previously had 4 derivative eligibility will lose it. Ward, 2009 WL 453390 at *3;

5 Yuk-Ling Wu Jew v. Attorney General, 524 F. Supp. 258 (D.C.

6 1981); Matter of Khan, 14 I. & N. Dec. 122 (BIA 1972).

7 B. The Child Status Protection Act of 2002

8

Once an immigrant visa becomes available to an alien under

9 the visa petition, the alien must then apply for the issuance of 10 a travel visa or for adjustment of status. See Ogbolumani, 523 11 F. Supp. 2d at 869 (describing process for aliens once visa

12 number becomes available). Under the INA, eligibility for the

13 immigration benefit is determined on the day of admission to the 14 United States or the date of adjudication of an application to 15 adjust status. 8 U.S.C. § 1154(e) (alien cannot be admitted to

16 United States if determined no longer eligible for classification 17 at port of entry). Thus, an alien who had an immigrant visa 18 available still had to maintain eligibility for that visa 19 classification until the date he or she obtained LPR status. See

20 Bae v. Immigration & Naturalization Service, 706 F.2d 866, 870 21 (8th Cir. 1983) (alien seeking adjustment of status as “unmarried 22 son of LPR” ineligible for benefit when married while application 23 was pending adjudication). It might take several months for the

24 Department of State to issue a visa or for USCIS to adjudicate an 25 application to adjust status. INS v. Miranda, 459 U.S. 14, 18, 26 103 S. Ct. 281, 74 L. Ed. 2d 12 (1982).

27

Due to backlogs in adjudication of adjustment applications,

28 large numbers of aliens were aging-out of eligibility for

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

5

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 13 of 34 Page ID #:1126

1 immigration benefits for which they had previously qualified.

2 See Matter of Wang, 25 I. & N. Dec. 28, 36-37 (BIA 2009)

3 (discussing congressional history). Congress recognized the

4 inequity of an alien waiting years for a visa number to become

5 available only to lose final entitlement due to agency delays in

6 issuance of the visa (or adjudication of the adjustment of status

7 application). Id. To alleviate these concerns, Congress enacted

8 the Child Status Protection Act (“CSPA”), Pub. L. No. 107-208,

9 116 Stat. 927 (2002), codified at various sections of the INA.

10 Id. The CSPA did not create new family preference categories

11 (i.e., did not authorize grandparents to file petitions directly

12 on behalf of grandchildren or aunts and uncles to file petitions

13 directly on behalf of nieces and nephews). See 8 U.S.C.

14 § 1153(h). The CSPA also did not alleviate the effects of

15 numerical limitations. Ochoa-Amaya v. Gonzales, 479 F.3d 989,

16 994 (9th Cir. 2007). Rather, the CSPA provided relief by

17 allowing certain aliens to exclude periods of administrative

18 delay from their chronological age. See 8 U.S.C. § 1153(h)(1);

19 Wang, 25 I. & N. Dec. at 31.

20

It is commonly understood that portions of Section 3 of the

21 CSPA, codified at 8 U.S.C. § 1153(h)(1) and (2),4 alleviate the

22

23

4 (1) In general

24

For the purposes of subsections (a)(2)(A) and (d)

25

of this section, a determination of whether an alien

satisfies the age requirement [as a child] shall be

26

made using –

27

(A) the age of the alien on the date on which an immigrant

visa number becomes available for such alien (or in the case

28

of subsection (d) of this section, the date on which an

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

6

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 14 of 34 Page ID #:1127

1 effects of administrative delays by allowing the exclusion of

2 those periods from the calculation of age for purposes of

3 determining if an alien is a “child” under the INA. Wang, 25 I.

4 & N. Dec. at 38. It is also commonly understood that 8 U.S.C. 5 § 1153(h)(3)5 provides authority for the automatic conversion of

6 a petition filed to classify the “child” of an LPR as a

7 derivative beneficiary of the LPR’s spouse. Under § 1153(h)(3),

8 this petition converts into a petition filed to classify the

9 alien directly under 8 U.S.C. § 1153(a)(2)(B) without the

10 petitioner needing to file a new petition. Reducindo v.

11 Gonzales, No. 05-cv-451, 2006 U.S. Dist. LEXIS 28816, at *4 (M.D.

12

13 immigrant visa number became available for the alien’s

14

parent), ...; reduced by (B) the number of days in the

period during which the applicable petition described in

15

paragraph (2) was pending.

16

(2) Petitions described

17

The petition described in this paragraph is –

18

(A) with respect to a relationship described in subsection

19

(a)(2)(A) of this section, a petition filed under section

1154 of this title for classification of an alien child

20

under subsection (a)(2(A) of this section; or (B) with

respect to an alien child who is a derivative beneficiary

21

under subsection (d) of this section, a petition filed under

subsection (d) of this title for classification of the

22

alien’s parent...

23

5 (3) Retention of Priority Date

24

If the age of an alien is determined under

25

paragraph (1) to be 21 years of age or older for the

purposes of subsections (a)(2)(A)[spouses/children of

26

LPRs] and (d)[derivative beneficiaries] of this

section, the alien’s petition shall automatically be

27

converted to the appropriate category and the alien

shall retain the original priority date issued upon

28

receipt of the original petition.

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

7

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 15 of 34 Page ID #:1128

1 Fl. 2006) (derivative F2A petition that had automatically2 converted under § 1153(h)(3) was being held in abeyance by USCIS 3 pending F2B availability); Baruelo v. Comfort, No. 05-cv-6659, 4 2006 U.S. Dist. LEXIS 94309 at *28-29 (N.D. Ill. 2006)

5 (recognizing that CSPA automatically converted F2A petition into

6 F2B petition).

7

USCIS does not allow aged-out former derivative

8 beneficiaries of other immigrant classifications to benefit from

9 § 1153(h)(3). The only published guidance on this point supports

10 USCIS’ position. Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009).

11

ARGUMENT

12

The question in this case is whether, under 8 U.S.C.

13 § 1153(h)(3), aliens who lost their derivative entitlement to 14 benefits under F3 and F4 petitions filed on behalf of their 15 parents may transfer the priority date from the F3 or F4

16 petitions to F2B petitions subsequently filed by their parents.

17 I. LEGAL STANDARD FOR SUMMARY JUDGMENT.

18

Summary judgment is appropriate when the “pleadings,

19 depositions, answers to interrogatories, and admissions on file,

20 together with the affidavits, if any, show that there is no 21 genuine issue as to any material fact and that the moving party 22 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 23 56(c).

24

This Court’s review of USCIS’ assignment of a priority date

25 to Plaintiffs’ F2B petitions is governed by Section 706(2)(A) of

26 the Administrative Procedure Act (“APA”), which provides that a

27 “reviewing court shall . . . hold unlawful and set aside agency

28 action, findings, and conclusions found to be . . . arbitrary,

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

8

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 16 of 34 Page ID #:1129

1 capricious, an abuse of discretion, or otherwise not in 2 accordance with law.” 5 U.S.C. § 706(2). See Spencer Enters. v. 3 United States, 345 F.3d 683, 693 (9th Cir. 2003) (“[A]n agency 4 decision or finding of fact may be reversed if it is ‘arbitrary,

5 capricious, [or] an abuse of discretion,’ or ‘unsupported by 6 substantial evidence.’”). Review under the arbitrary and 7 capricious standard is narrow, and an agency’s interpretation of 8 an ambiguous statute is controlling so long as it is

9 “reasonable.” Chevron USA, Inc. v. Natural Resources Defense

10 Council, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)).

11

Accordingly, review under the APA is highly deferential and

12 the agency’s actions are presumed to be valid. See Citizens to

13 Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S. Ct. 814, 14 28 L. Ed. 2d 136, (1971), abrogated on other grounds by Califano 15 v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977).

16 The Court must affirm the agency’s decision if the agency 17 presents a rational basis for the action and if the action is 18 within the agency’s statutory authority. Motor Vehicle 19 Manufacturers Ass’n v. State Farm Mutual, 463 U.S. 29, 42-43, 103

20 S. Ct. 2856, 77 L. Ed. 2d 443 (1983).

21 II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE 8 U.S.C.

§ 1153(h)(3) DOES NOT AUTHORIZE THE TRANSFER OF A PRIORITY

22

DATE FROM A TERMINATED DERIVATIVE INTEREST IN AN F3 OR F4

PETITION TO A SEPARATE AND UNRELATED F2B PETITION.

23

A. 8 U.S.C. § 1153(h)(3) IS AMBIGUOUS.

24

The first step in analyzing Plaintiffs’ claim is to review

25

the statute at issue to determine if “the statute is silent or

26

ambiguous with respect to the specific issue.” Chevron, 467 U.S.

27

at 843, 467 U.S. at 843 (quoted in Ramos-Lopez v. Holder, 563

28

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

9

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 17 of 34 Page ID #:1130

1 F.3d 855, 860 (9th Cir. 2009)). A quick review of 8 U.S.C. 2 § 1153(h) reveals the internal ambiguity of this section of the 3 CSPA. The language in 8 U.S.C. §§ 1153(h)(1) and (h)(3) is 4 identical. Yet, determining that “(a)(2)(A) and (d)” is not

5 self-explanatory, Congress added section § 1153(h)(2) to clarify 6 the exact petitions that might be considered for relief under 7 § 1153(h)(1). There is no corresponding paragraph indicating 8 which petitions are eligible for relief under § 1153(h)(3).

9 Therefore, 8 U.S.C. § 1153(h)(3) is ambiguous.

10

When applying the language of § 1153(h)(1) to the

11 beneficiaries of F2A petitions and the derivative beneficiaries

12 of all family, employment, and diversity petitions, the language

13 of the statute operates without problem. For example, a United 14 States citizen files an I-130 petition to classify her daughter, 15 “Mae,” under F3. USCIS takes two years to adjudicate the

16 petition. Due to oversubscription in the F3 category, several 17 more years pass before a visa becomes available. Mae’s priority 18 date becomes current when her son, “Tim,” is twenty-two years old 19 by normal calculations. Mae and Tim seek to obtain immigrant

20 visas. Under § 1153(h)(1), Tim is issued a visa because: (1) he 21 is the beneficiary of a visa petition filed “under (d) of this 22 section” to classify his “parent under subsection (a), (b), or 23 (c) of this section;” (2) he “sought to acquire” status within

24 one year of a visa becoming available to Mae; and (3) under the 25 age calculation, he is only twenty years old (twenty-two years 26 old minus the two years that the petition was awaiting

27 adjudication by USCIS). 8 U.S.C. § 1153(h). In the above

28 scenario, every word in 8 U.S.C. § 1153(h)(1) is used, and none

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

10

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 18 of 34 Page ID #:1131

1 is superfluous. The same basic analysis works smoothly for

2 derivative beneficiaries of the other family-based categories.

3

However, in applying the terms of § 1153(h)(3) to derivative

4 beneficiaries of all family-based petitions, the result is

5 convoluted. The operative language of § 1153(h)(3) only makes 6 sense in reference to petitions originally filed to classify an 7 alien as the primary or derivative beneficiary of an F2A 8 petition. For example, a lawful permanent resident files an F2A

9 petition on behalf of his wife. Even though he could file a 10 petition directly on behalf of his minor child, “Sue,” he decides 11 to save filing fees and instead lists Sue as a derivative of his

12 wife. When Sue turns 21, she no longer qualifies as a derivative

13 beneficiary. On that day, the “alien’s petition” “automatically 14 converts” to the “appropriate category” and “retains” the 15 original priority date issued upon the receipt of the original

16 (and only) petition. The appropriate category on that date is

17 F2B. Thus, Sue moves seamlessly from one valid “appropriate

18 category” to another valid “appropriate category.”

19

When applied to the facts of Plaintiffs’ cases, however, the

20 result is less clear. As stated earlier, Costelo was the 21 beneficiary of an F3 petition and Ong of an F4 petition. 22 Although their daughters were listed as derivative beneficiaries 23 on those F3/F4 petitions just like Sue in the example above,

24 Cosetlo and Ong’s daughters were not eligible for any other 25 status when the F3/F4 petition was filed. Costelo’s mother and 26 Ong’s sibling could not have filed a petition directly for

27 Plaintiffs’ daughters because the INA does not recognize a

28 classification for grandchildren or nieces and nephews of United

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

11

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 19 of 34 Page ID #:1132

1 States citizens. See Bolvito,527 F.3d at 434 (no classification 2 for grandchildren). Thus, when Plaintiffs’ daughters aged-out, 3 their petitions, if eligible for consideration under 4 § 1153(h)(3), would “automatically convert” to the only

5 “appropriate category” - termination. Plaintiffs daughters “fell

6 off the INA map,” so to speak.

7

Plaintiffs’ arguments that the clear language of the statute

8 calls for the CSPA to apply to the F2B petition filed by

9 Plaintiffs in 2004 and 2005 misses the mark. The petitions filed 10 by Plaintiffs to classify their daughters under “(a)(2)(B)” were 11 not with respect to alien children or derivative beneficiaries.

12 See 8 U.S.C. § 1153(h)(3) (limiting provision to aliens

13 determined over 21 years of age “for the purposes of subsections 14 (a)(2)(A) and (d)”). Thus, the “plain language” of 8 U.S.C. 15 § 1153(h)(3) defeats Plaintiffs’ claim that their F2B petitions

16 are eligible for consideration under this paragraph of the CSPA.

17 The Court must conclude that the statute’s meaning is ambiguous.

18

B. THE AGENCY’S INTERPRETATION OF 8 U.S.C. § 1153(h)(3) IS

REASONABLE.

19

Having determined that the statute’s meaning is ambiguous,

20

the next step is to review the agency’s interpretation of the

21

statute to determine “whether the agency’s answer is based on a

22

permissible construction of the statute.” INS v. Aguirre-

23

Aguirre, 526 U.S. 415, 425, 119 S. Ct. 1439, 143 L. Ed. 2d 590

24

(1999). The Court may “not overturn an agency decision at the

25

second step unless it is arbitrary, capricious, or manifestly

26

contrary to the statute.” Ramos-Lopez v. Holder, 563 F.3d at 860

27

(internal citations omitted).

28

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

12

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 20 of 34 Page ID #:1133

1

In this case, the agency’s interpretation of the statute is

2 found in Matter of Wang, 25 I. & N. Dec. 28 (2009).6 The BIA’s

3 interpretation of 8 U.S.C. § 1153(h)(3) in Matter of Wang is

4 reasonable. A correct interpretation of this statute can only be

5 made by reviewing the provision in its full context, as was done

6 by the BIA in Matter of Wang. See Gallard v. INS, 486 F.3d 1136,

7 1140 (9th Cir. 2007) (reading a statute with a view to its place

8 in the overall statutory scheme also requires reading it in

9 “historical context”).

10

1. Factors Cited in Matter of Wang Establishing that

BIA’s Interpretation is Reasonable.

11

On June 16, 2009, the BIA issued a precedential opinion

12

analyzing the CSPA's “automatic conversion” and “priority date

13

retention” provision. See Matter of Wang, 25 I. & N. Dec. 28

14

(BIA Jun. 16, 2009). The facts of Wang are as follows: a United

15

States citizen petitioned for her brother (“Wang”) to be approved

16

on a fourth-preference visa (“F4”), with his wife and children

17

listed as derivative beneficiaries. Before a visa number became

18

available to Wang, one of his daughters turned 21. A visa number

19

subsequently became available to Wang as primary beneficiary, and

20

he obtained legal permanent residency. Thereafter, Wang filed a

21

separate petition on behalf of his unmarried adult daughter to

22

classify her for an F2B visa. Wang argued that the priority date

23

from the F4 petition filed by his sister should be applied to the

24

F2B petition that he had filed and that the F2B petition should

25

26

27

6 Published decisions of the Board of Immigration Appeals

(“BIA”) are accorded Chevron deference. Aguirre-Aguirre, 526

28 U.S. at 425.

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

13

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 21 of 34 Page ID #:1134

1 “automatically convert” to an “appropriate category.” The BIA

2 rejected this interpretation of the CSPA.

3

The BIA began by noting that the CSPA does not expressly

4 state which petitions qualify for automatic conversion and

5 retention of priority dates. Id. at 33. In light of that

6 ambiguity, the Board looked to the regulatory and statutory

7 context in which Congress enacted the statute.

8

The BIA began from the premise that, in passing the CSPA,

9 Congress would have intended its language usage to be consistent 10 with the current immigration scheme and past practice, 11 specifically past usage of the terms “automatic,” “conversion,”

12 and “retention of priority date.” Id. at 35. Under statute and

13 regulation, the term “conversion” had consistently been used to 14 mean that a visa petition (and hence the beneficiary’s 15 classification) could convert from one valid family-based visa

16 category to another valid family-based visa category without the 17 need for the petitioner to file a new visa petition on behalf of 18 the beneficiary. Id. at 34-36. For example, under 8 C.F.R. 19 § 205.1(a)(3)(i)(H), an F1 petition (“unmarried adult son or

20 daughter of a United States citizen”) would automatically convert 21 to an F3 petition (“married son or daughter of a United States 22 citizen”) without the United States citizen parent being required 23 to file a new petition. Prior to the passage of the CSPA, only

24 one transfer from a valid classification to a subsequent valid 25 classification required the filing of a new and separate 26 petition: reclassification from F2A to F2B upon the alien turning

27 21. See Matter of Wang at 34-35. Instead, for this

28 reclassification to take place, lawful permanent residents were

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

14

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 22 of 34 Page ID #:1135

1 required to file new petitions when their children reached 21

2 years of age. 8 C.F.R. § 204.2(a)(4). The BIA found the

3 similarities between the language used in 8 C.F.R. § 204.2(a)(4)

4 (“In such case, the original priority date will be retained if

5 the subsequent petition is filed by the same petitioner.”)

6 (emphasis added) and the language used in 8 U.S.C. § 1153(h)(3)

7 (“the alien’s petition shall automatically be converted to the

8 appropriate category and the alien shall retain the original

9 priority date issued upon receipt of the original petition.”)

10 (emphasis added) to be more than coincidence. Matter of Wang at

11 34. This similarity suggests that § 1153(h)(3) was designed to

12 bring the F2A conversions in line with conversions between the

13 other classifications. Wang, 25 I. & N. Dec. at 34.

14

Similarly, the BIA noted that “retention” or revalidation of

15 priority dates had historically been limited to visa petitions 16 filed by the same family member.7 Matter of Wang at 35; see also

17 8 C.F.R. 204.2(a)(4) (for reclassification from F2A to F2B, the

18 petitioner had to be the same person).

19

20

7 Consider the following hypothetical: Alan naturalized in

2001 and immediately filed petitions on behalf of his parents and

21 unmarried sister. As “immediate relatives” of a United States

citizen, Alan’s parents immigrated immediately. His sister,

22 however, had to wait until a visa became available to her in the

F4 category. In 2006, Alan’s mother naturalized and filed an F1 23 petition on behalf of her daughter. In 2009, Alan’s sister has

about ten more years to wait for an F4 visa with a 2001 priority 24 date and seven more years to wait for an F1 visa with a 2006

25 priority date. See September 2009 Visa Bulletin at Exhibit A. Had she been able to “transfer” the priority date from the F4

26 petition to the F1 petition, Alan’s sister would only have to wait two more years for a visa. Id. Such a transfer, however,

27 is not authorized because the petitioners are not the “same” and

the petitions were not filed for “the same preference

28 classification.” 8 C.F.R. 204.2(h)(2).

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

15

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 23 of 34 Page ID #:1136

1

The BIA next turned to legislative history. Id. at 36-38.

2 Repeated discussion in the House of Representatives suggested an

3 intent to provide some relief “without displacing others who have

4 been waiting patiently in other visa categories.” Id. at 37

5 (quoting 148 Cong. Rec. H4989 (statement of Rep. Jackson-Lee), 6 2002 WL 1610632, at *H4992; 147 Cong. Rec. H2901, 2001 WL 617985, 7 at *H2902). Thus, the BIA concluded that, "[w]hile the CSPA was 8 enacted to alleviate the consequences of administrative delays,

9 there is no clear evidence that it was intended to address delays 10 resulting from visa allocation issues, such as the long wait 11 associated with priority dates." Matter of Wang at 38.

12

In light of the regulatory/statutory context and legislative

13 history, the Board examined to which category the first Wang 14 petition would have converted at the moment the derivative 15 beneficiary aged-out. When that child reached 21 years old,

16 there was no INA preference category for an adult niece of a 17 United States citizen; hence there was no qualifying relationship 18 supporting “automatic conversion” to another preference category. 19 Matter of Wang at 35. Simply put, no “appropriate category”

20 existed to which the petition could convert. Moreover, there was 21 no basis for retaining the earlier priority date because a 22 different petitioner - the father, not the aunt - had filed the 23 F2B petition. Id. at 35.

24

Most importantly, the BIA reasoned that if Wang’s F2B

25 petition was accorded the earlier priority date, the former child

26 beneficiary would “jump” to the front of the line, causing all

27 the individuals behind her to fall further behind in the queue.

28 Matter of Wang at 38. Finally, the BIA noted that the CSPA was

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

16

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 24 of 34 Page ID #:1137

1 passed so that beneficiaries would not suffer due to governmental 2 administrative delays. The Wangs, however, faced delay that was 3 caused by the high demand for a finite number of visas, not any 4 administrative delay. Id. at 38. The BIA concluded that, absent

5 clear legislative intent to create open-ended grandfathering of 6 priority dates for derivative beneficiaries in the context of a 7 different relationship, to be used at any time, it would refuse 8 to automatically convert the derivative classification to a

9 [non-existent] family preference or find fault with the priority

10 date USCIS had given to the second petition. Id. at 39.

11

The Board's decision makes clear that 8 U.S.C. § 1153(h)(3)

12 applies only when a LPR files an F2A petition designating a child

13 as a primary or derivative beneficiary. If the child turns 21 14 before a visa number becomes available, the F2A petition will 15 automatically convert to an independent F2B petition with the

16 original priority date. Matter of Wang, at 33-38. 8 U.S.C. §

17 1153(h)(3).

18

2. Other Factors Establishing that Matter of Wang is

a Reasonable Interpretation.

19

In addition to the reasons articulated by the BIA in Matter

20

of Wang, there are several other reasons why the BIA’s

21

interpretation of 8 U.S.C. § 1153(h)(3) is reasonable.

22

Under the INA and agency regulations, terminated petitions

23

cannot be resurrected by subsequent petitions - regardless of

24

whether they were filed by the same petitioner. 8 C.F.R.

25

§ 204.2(h)(2) (cannot reaffirm earlier petition by filing a new

26

one if the earlier one has been revoked or terminated). The CSPA

27

did nothing to change this. See Alonso-Varona v. Mukasey, 319

28

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

17

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 25 of 34 Page ID #:1138

1 Fed. Appx. 502, 504 (9th Cir. 2009) (where earlier petition had 2 been revoked by marriage but alien had subsequently divorced, 3 nothing in the CSPA would permit him to reclaim the priority date 4 from the revoked 1992 petition). In addition, subsequent

5 petitions filed by a different petitioner lack the privity 6 necessary to claim the earlier priority date. See 8 C.F.R. § 7 204.2(h)(2) (only the same petitioner, filing for the same 8 beneficiary in the same category, can reaffirm earlier unrevoked

9 petition).

10

Also, despite the INA allowing “automatic” conversions

11 between many classifications, Congress never provided for

12 “delayed” conversions where an alien was “temporarily” ineligible

13 for classification under the INA. Even in the case of 14 employment-based visas, a later visa petition is not entitled to 15 an earlier visa petition’s priority date where the earlier

16 petition has been terminated or revoked. 8 C.F.R. 204.5(e) 17 (revoked employment petition will not confer a priority date for 18 transfer to other employment petitions and “priority date is not 19 transferable to another alien”). See Bender's Immigration

20 Bulletin, 11-20 Bender's Immigra. Bull. 2 (Oct. 15, 2006) ("When 21 the change of relationship or status of the immediate succeeding 22 relationship is not one that will support a petition, no new 23 preference is established and the priority date is lost, even if

24 the later status change would support a petition."). Compare 25 this with the treatment of the son of a United States citizen. 26 He may marry and divorce without losing his priority date because

27 there would always be an “appropriate category” for him under the

28 INA.

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

18

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 26 of 34 Page ID #:1139

1

Additionally, Courts have been clear that, in passing the

2 CSPA, Congress was focused on reuniting the families of current

3 U.S. citizens and Legal Permanent Residents - not the families of

4 intending immigrants. Ochoa-Amaya v. Gonzales, 479 F.3d 989, 991

5 (9th Cir. 2007) (“The laudable purpose of this provision is to 6 prevent children of United States citizens from ‘aging-out’”.); 7 Chen v. Rice, 2008 U.S. Dist. LEXIS 57052, *28 (E.D. Penn. 2008) 8 (“The CSPA was passed to expedite the unification of qualifying

9 derivative family members of United States citizens and legal 10 permanent residents, which had been delayed by processing 11 backlogs.”) In this vein, the CSPA protects “young immigrants

12 losing opportunities, to which they were entitled, because of

13 administrative delays.” Padash v. INS, 358 F.3d 1161, 1174 (9th 14 Cir. 2004). Neither purpose is furthered by Plaintiffs’ 15 interpretation of the statute: Plaintiffs were not U.S. Citizens

16 or LPRs at the time that F3/F4 immigrant petitions were filed,

17 and their daughters did not age-out due to administrative delays.

18

C. PLAINTIFFS’ POSITION IS NOT REASONABLE.

19

Plaintiffs’ interpretation of § 1153(h)(3) does not comport

20 with a literal or contextual reading of the CSPA. To accept 21 Plaintiffs’ position, the Court would have to ignore the 22 operative terms of § 1153(h)(3). But under basic tenets of 23 statutory interpretation, a statute should not be construed to

24 render words or phrases mere surplusage. See United States v.

25 Wenner, 351 F.3d 969, 975 (9th Cir. 2003).

26

Plaintiffs argue that aged-out derivative beneficiaries of

27 F3 and F4 petitions can transfer the F3/F4 priority dates to

28 separate F2B petitions. Since the wait for an F2B visa is always

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

19

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 27 of 34 Page ID #:1140

1 shorter than for an F3 or F4 visa, as soon as the F2B petition is 2 filed, a visa number would be immediately available under 3 Plaintiffs’ position. If it had been Congress’ intent that aged4 out derivatives be able to immigrate immediately after their

5 parents, Congress could have dispensed altogether with the 6 complicated formula of § 1153(h)(1) and the conversion process of 7 8 U.S.C. § 1153(h)(3). Instead, it could have simply frozen the 8 age of all derivatives to the date of filing, as it did in other

9 sections of the CSPA. See 8 U.S.C. § 1151(f) (freezing age of 10 child of United States citizen to date petition filed); 8 U.S.C. 11 § 1158(b)(3)(B) (children will not age-out of derivative

12 classification under asylum petitions). The Ninth Circuit has

13 already declined to interpret the CSPA in such a way as to render

14 its formulas superfluous. See Ochoa-Amaya, 479 F.3d at 993.

15

Plaintiffs’ bid to affix the F3 and F4 priority dates to

16 separate F2B petitions also ignores the CSPA’s mandate that the 17 “alien’s petition shall automatically be converted to the 18 appropriate category.” 8 U.S.C. § 1153(h)(3). The F2B petitions 19 do not need to “convert” because they were originally filed in

20 the appropriate category - F2B. Plaintiffs cannot have

21 “retention” without “conversion”.

22

Plaintiffs also ignore the purposes behind “derivative”

23 status and the CSPA. Plaintiffs were never separated from their

24 daughters while they were children - the purpose behind 25 “accompanying or following to join” status. And now that their 26 daughters are grown women, Plaintiffs are in the same position as

27 all other LPR parents wanting to reunite with adult sons and

28 daughters.

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

20

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 28 of 34 Page ID #:1141

1

D. EXAMPLES UNDER COMPETING INTERPRETATIONS.

2

To illustrate the inequity in Plaintiffs’ position, consider

3 the following hypothetical:

4

In 2000, “Tania” immigrated as the beneficiary of an

5 immediate relative petition. Her son was not eligible to 6 immigrate with her because immediate relatives may not have 7 derivative beneficiaries. 8 C.F.R. § 204.2(a)(4). Tania filed 8 an F2B petition in 2001 for her unmarried son. He is still

9 waiting for a visa number to become available.

10

Meanwhile, “Mimi” was the beneficiary of a Form I-130 filed

11 in 1995. When Mimi gained lawful resident status in 2009,

12 however, her daughter no longer qualified as a “child.” In 2009,

13 Mimi filed an F2B petition for her daughter. If the 1995 14 priority date were applied to the 2009 petition, a visa number 15 would be immediately available to her daughter.

16

Mimi's daughter and Tania's son are both grown adults.

17 Both are entitled to F2B classification. Both parents love their

18 offspring and want them to live close by. Yet, Tania became a

19 lawful permanent resident nine years before Mimi and filed her

20 F2B petition eight years before Mimi filed hers.

21

Clearly, Congress did not intend Mimi's daughter to

22 resurrect the earlier priority date because, as a child, she was

23 never really “in line.” But for her “child” status, Mimi’s

24 daughter did not fit into any of Congress’ priority categories 25 back in 1995. Mimi's apron strings were cut by adulthood. Upon 26 filing of the second petition, Mimi's daughter stepped into an

27 entirely different line with different rules. The Government

28

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

21

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 29 of 34 Page ID #:1142

1 should consider Tania’s and Mimi’s petitions on a first come,
2 first served basis in compliance with 8 U.S.C. § 1153(e).
3 III. ANY CLAIMS RELATED TO THE PROMULGATION OF REGULATIONS MUST FAIL.
4 In their filings (Complaint, ¶¶ 4, 16, 83) and in this
5 Court’s order certifying a class (Doc. 74), reference is made to
6 Defendants’ alleged failure to promulgate regulations
7 implementing the CSPA. Plaintiffs have failed, however, to
8 identify any requirement that Defendants promulgate such
9 regulations, that Plaintiffs have standing to enforce a
10 requirement if it existed, or that the issuance of Matter of Wang
11 does not render any such claim moot. Additionally, Plaintiffs
12 failed to request any specific relief related to the alleged
13 failure to promulgate regulations. See Complaint, Section X,
14 Prayer for Relief (omitting any reference to Defendants’ “alleged
15 failure to promulgate regulations” and requesting no order that
16 Defendants’ promulgate any such regulations). Accordingly, the
17 Court should dismiss any claims for relief pertaining to the
18 promulgation of regulations.
19 Alternatively, even if the Court finds that Plaintiffs’
20 complaint raised a claim for relief relating to Defendants’
21 alleged failure to promulgate regulations, Plaintiffs lack
22 standing to raise these claims because (1) Plaintiffs have not
23 been harmed by any such failure; (2) Defendants had no such duty;
24 (3) no private right of action exists; and (4) the issue is moot.
25 Additionally, any request for relief should be dismissed for
26 failure to state a claim because the remedy for such violation –
27

28

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

22

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 30 of 34 Page ID #:1143

1 a Court order requiring the promulgation of the regulations –

2 would not redress any of Plaintiffs’ alleged injuries.

3

In order to have standing to bring suit, a plaintiff has the

4 burden of establishing: “(1) an injury in fact” that is (a)

5 concrete and particularized and (b) actual or imminent, not 6 conjectural or hypothetical; (2) the injury must be fairly 7 traceable to the challenged action of the defendant; and (3) it 8 must be likely, as opposed to merely speculative, that the injury

9 will be redressed by a favorable decision.” See Lujan v. 10 Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 11 L. Ed. 2d 351 (1992); Simon v. Eastern Kentucky Welfare Rights

12 Org., 426 U.S. 26, 46, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976);

13 Central Delta Water Agency v. United States, 306 F.3d 938, 947 14 (9th Cir. 2002). Where a plaintiff alleges that agency action 15 has been unlawfully withheld or unreasonably delayed pursuant to

16 the APA, the appropriate remedy is for the court to compel the 17 action in question. See 5 U.S.C. § 706(1); Fernandez v. Brock, 18 840 F.2d 622, 626 (9th Cir. 1988) (the injury must be fairly 19 traceable to or caused by the Secretary's failure to promulgate

20 regulations and must be likely to be redressed by compelling the 21 promulgation of regulations) (citing Allen v. Wright, Allen v. 22 Wright, 468 U.S. 737, 751, 104 S. Ct. 3315 , 82 L. Ed. 2d 556 23 (1984)). Moreover, the satisfaction of such a remedy may remove

24 an issue from the “case or controversy” requirement of Article 25 III of the Constitution, and result in the dismissal of the claim 26 as moot. See Thomas v. Anchorage Equal Rights Commission, 220

27 F.3d 1124 (9th Cir. 2000); Cooney v. Edwards, 971 F.2d 345, 346

28 (9th Cir. 1992).

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

23

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 31 of 34 Page ID #:1144

1

Here, the BIA’s issuance of Matter of Wang on June 16, 2009

2 satisfied the remedy that a plaintiff challenging the delayed

3 promulgation of regulations may seek. Thus, there remains no

4 remediable case or controversy stemming from USCIS’s allegedly

5 unlawful delay in the promulgation of an implementing regulation,

6 and the Court should dismiss any related claim that it deems to

7 have been raised in Plaintiffs’ complaint.

8

Furthermore, Plaintiffs have failed to establish that

9 Defendants had a duty to promulgate any implementing regulation. 10 The Supreme Court has noted that “the only agency action that can 11 be compelled under the APA is action legally required. This

12 limitation appears in [5 U.S.C. §] 706(1)’s authorization for

13 courts to ‘compel agency action unlawfully withheld.’” Norton v. 14 So. Utah Wilderness Alliance, 542 U.S. 55, 63, 124 S. Ct. 2373; 15 159 L. Ed. 2d 137 (2004) (emphasis in the original). The Court

16 reasoned further that the APA simply extended the traditional 17 practice, prior to its passage, of achieving judicial review 18 through a writ of mandamus and that the mandamus remedy was 19 normally confined to enforcement of “a specific, unequivocal

20 command.” Id. (internal quotations and citations omitted).

21 Plaintiffs have cited no “unequivocal command” that USCIS

22 promulgate regulations implementing 8 U.S.C. § 1153(h)(3).

23

Finally, Plaintiffs have failed to establish that a private

24 right of action exists authorizing them to enforce a requirement 25 to promulgate regulations. Private rights of action to enforce 26 alleged violations of federal statutes must be created by

27 Congress. See Alexander v. Sandoval, 532 U.S. 275, 287, 121 S.

28 Ct. 1511, 149 L. Ed. 2d 517 (2001). Absent an express or implied

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

24

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 32 of 34 Page ID #:1145

1 statutory intent to create a private right to enforce a statute 2 and an accompanying remedy, “a cause of action does not exist and 3 courts may not create one, no matter how desirable that might be 4 as a policy matter, or how compatible with the statute.”

5 Alexander, 532 U.S. at 286-87. Not only have Plaintiffs failed 6 to establish a private right of action, they have failed to 7 establish a “duty” to promulgate regulations and that Matter of 8 Wang has not satisfied any general requirement to provide

9 guidance that might exist.

10 IV. PLAINTIFFS’ CLAIMS MUST FAIL.

11

Nothing in the CSPA extends its benefits to F2B petitions.

12 Thus, no authority required Defendants to assign a priority date

13 to the F2B petitions different than their 2004 and 2005 filing 14 dates. The CSPA does not authorize automatic conversion of 15 Plaintiffs’ daughters’ derivative interests in the F3 and F4

16 petitions upon their turning 21. Their daughters were not 17 eligible for any classification at that time and the CSPA did not 18 create a new classification. As a result, Plaintiffs have failed 19 to identify a discrete agency action that Defendants were

20 required to take or that was "unlawfully withheld." No relief,

21 by writ of mandamus or declaratory judgment, is warranted under

22 the facts of this case.

23

CONCLUSION

24

The Defendants respectfully request this court grant

25 Defendants’ motion and enter summary judgment for the Defendants.

26 DATED: October 1, 2009

27

/s/ Gisela A. Westwater

GISELA A. WESTWATER (NB # 21801)

28

District Court Section

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

25

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 33 of 34 Page ID #:1146

1

Office of Immigration Litigation

U.S. Department of Justice

2

P.O. Box 868, Ben Franklin Station

Washington, DC 20044

3

Telephone: (202) 532-4174

Facsimile: (202) 616-8962

4

E-mail: gisela.westwater@usdoj.gov

5

Attorney for Defendants

6

7

8

9 10 11

12

13 14 15

16 17 18 19

20 21 22 23

24 25 26

27

28

MOTION FOR SUMMARY JUDGMENT

08-CV-00688-JVS(SHx)

26

Case 8:08-cv-00688-JVS-SH Document 78 Filed 10/01/09 Page 34 of 34 Page ID #:1147

1

CERTIFICATE OF SERVICE

2 Case No. SACV 09-06919 JVS(SHx)

3

I hereby certify that on October 1, 2009, a copy of the

4 foregoing "NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT” was

5 filed electronically using the Court’s electronic filing system.

6 I understand that notice of this filing will be sent to all

7 parties by operation of the Court's electronic filing system.

8

9

10

/s/ Gisela A. Westwater

GISELA A. WESTWATER (NB 21801)

11

Trial Attorney

12 Attorney for Defendants
13

14

15

16 17 18 19

20 21 22 23

24 25 26

27

28

MOTION FOR SUMMARY JUDGMENT
08-CV-00688-JVS(SHx)

 
 Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 1 of 23

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ROSALINA CUELLAR DE OSORIO;



ELIZABETH MAGPANTAY; EVELYN Y.

SANTOS; MARIA ELOISA LIWAG;

NORMA UY; RUTH UY,

Plaintiffs-Appellants,

v.

ALEJANDRO MAYORKAS, Director,



United States Citzenship and

Immigration Services; J ANET

NAPOLITANO, Secretary of the

Department of Homeland Security,

HILLARY RODHAM CLINTON,

Secretary of State,

 Defendants-Appellees.

No. 09-56786
D.C. No. 5:08-cv-00840-
JVS-SH

16793

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 2 of 23

16794

DE OSORIO v. M AYORKAS

 TERESITA G. C OSTELO; 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; L YNNE

SKEIRIK, Director, National Visa

Center; CHRISTINA POULOS, Acting

Director, California Service

Center, United States Citizenship

and Immigration Services; H ILLARY

RODHAM CLINTON, Secretary of

State,

 Defendants-Appellees.

No. 09-56846
D.C. No. 8:08-cv-00688-
JVS-SH
OPINION

Appeal from the United States District Court for the Central District of California
James V. Selna, District Judge, Presiding

Argued and Submitted July 15, 2011—Pasadena, California

Filed September 2, 2011
Before: Pamela Ann Rymer, Richard C. Tallman, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Tallman

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 3 of 23

DE OSORIO v. M AYORKAS

16797

COUNSEL
Nancy E. Miller (argued), Robert L. Reeves, Jeremiah Johnson, Anthony J. Favero, Reeves and Associates, APLC, Pasadena, California; Amy Prokop, Carl Shusterman, Law Offices of Carl Shusterman, Los Angeles, California; for plaintiffsappellants Teresita G. Costelo, Lorenzo P. Ong, Rosalina Cuellar de Osorio, Elizabeth Magpantay, Evelyn Y. Santos, Maria Eloisa Liwag, Norma Uy and Ruth Uy.
Gisela A. Westwater (argued), Elizabeth J. Stevens, Aaron D. Nelson, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for defendantsappellees Janet Napolitano, Jonathan Scharfen, et al.
Mary Kenney, American Immigration Council, Washington, D.C., for amici curiae American Immigration Council and American Immigration Lawyers Association.

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 4 of 23

16798

DE OSORIO v. M AYORKAS OPINION

TALLMAN, Circuit Judge:

This case involves parents who face separation from their children due to the way our immigration system operates. Appellants, the parents, have all immigrated to the United States and become lawful permanent residents. Their children, however, have not been able to join them because the children are no longer under the age of 21.

Appellants became lawful permanent residents through the family-sponsored immigration process, which allows certain aliens to immigrate based on their status as relatives of either U.S. citizens or lawful permanent residents. When Appellants began this process, they all had children under the age of 21 who would have been eligible to immigrate with them under the Immigration and Nationality Act (INA). See 8 U.S.C. §§ 1101(b)(1), 1153(d) (entitling a child under the age of 21 to the same immigration status as a parent). However, due to years-long delays associated with the family-sponsored immigration process, these children turned 21 before their parents were able to immigrate or adjust status. Because these children had “aged out” of child status under the INA by the time their parents immigrated or adjusted status, they were no longer eligible to accompany their parents.

The question we are faced with today is whether Appellants’ children are entitled to any relief under the Child Status Protection Act (CSPA), 8 U.S.C. § 1153(h), which was enacted to help keep families together by expediting the immigration process for certain aged-out aliens. United States Citizenship and Immigration Services (CIS) denied Appellants’ requests for relief under the CSPA, and Appellants challenge the denial as arbitrary and capricious. The district court, deferring to the Board of Immigration Appeals’ (BIA) interpretation of § 1153(h), held that the CSPA did not apply to Appellants’ children. Because we agree that the BIA’s

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 5 of 23

DE OSORIO v. M AYORKAS

16799

interpretation of § 1153(h) warrants deference, we affirm the district court’s grant of summary judgment in favor of CIS. We hold that Appellants’ children are not among the aged-out aliens entitled to relief under § 1153(h).

I

Understanding this appeal requires familiarity with the family-sponsored immigration process and, specifically, the complicated family preference system. Family-sponsored immigration is one of the primary avenues by which an alien can obtain lawful permanent residence in the United States, along with employment-based immigration, diversity-based immigration, and asylum. The family-sponsored immigration process allows a U.S. citizen or lawful permanent resident (LPR) to file a form I-130 immigration petition on behalf of an alien relative. 8 U.S.C. § 1153(a). After the petition is filed, CIS determines if it establishes a qualifying relationship between the citizen or LPR petitioner and the alien relative beneficiary. Because there is no annual cap on the number of permanent resident visas (also known as “green cards”) available to immediate relatives of U.S. citizens, a citizen’s spouse, child under the age of 21, or parent can apply for one immediately.

For other qualifying relatives of citizens and for qualifying relatives of LPRs, the number of visas available annually is capped. Id. § 1151(c). To allocate these visas, the INA establishes the following preference system:

Aliens subject to the worldwide [numerical limitation] for family-sponsored immigrants shall be allotted visas as follows:

(1) Unmarried sons and daughters [age 21 or older] of citizens

Qualified immigrants who are the unmarried sons or daughters of citizens of the United States shall be

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 6 of 23

16800

DE OSORIO v. M AYORKAS

allocated visas in a number not to exceed [numerical quota formula].

(2) Spouses and unmarried sons and unmarried daughters of permanent resident aliens

Qualified immigrants—

(A) who are the spouses or children [under 21] of an alien lawfully admitted for permanent residence, or

(B) who are the unmarried sons or unmarried daughters (but are not the children) of an alien lawfully admitted for permanent residence,

shall be allocated visas in a number not to exceed [numerical quota formula].

(3) Married sons and married daughters of citizens

Qualified immigrants who are the married sons or married daughters of citizens of the United States shall be allocated visas in a number not to exceed [numerical quota formula].

(4) Brothers and sisters of citizens

Qualified immigrants who are the brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age, shall be allocated visas in a number not to exceed [numerical quota formula].

Id. § 1153(a). If an I-130 petition establishes one of these qualifying relationships, CIS approves it and places the alien beneficiary “in line” in the appropriate preference category. These family preference categories are referred to as F1, F2A,

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 7 of 23

DE OSORIO v. M AYORKAS

16801

F2B, F3, or F4, corresponding to § 1153(a)’s numbered paragraphs.

Because annual demand for family preference visas exceeds the statutory cap in all categories, a beneficiary may wait years before a visa becomes available, with some categories having longer wait times than others. The beneficiary’s place in line is determined by the date the petition was filed, which is known as the “priority date.” Every month, the State Department publishes a visa bulletin with updated “cut off dates” for each family preference category. When the cut-off date is later than the beneficiary’s priority date, the priority date is “current,” and a lawful permanent resident visa is then available for the beneficiary. In order to obtain the visa and become an LPR, however, the beneficiary must act within one year of notification of visa availability to complete consular processing (if abroad) or apply for an adjustment of status (if present in the United States).

Under the INA, a beneficiary’s spouse or child is deemed a “derivative” beneficiary entitled to the same immigration status and priority date as the primary beneficiary:

A spouse or child . . . shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a) . . . of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

8 U.S.C. § 1153(d). Importantly, to be considered a “child,”

a person must be unmarried and under the age of 21.

Id.

§ 1101(b)(1). Due to the long wait times often associated with

family preference visas, some aliens who begin the process

eligible to immigrate as a child—either as the primary benefi-

ciary of an F2A petition or as a derivative beneficiary of a

petition for a parent in any of the other family preference

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 8 of 23

16802

DE OSORIO v. M AYORKAS

categories—will “age out” of eligibility by turning 21 before a visa becomes available.

In 2002, Congress enacted the CSPA to provide relief to “aged out” alien children by allowing them either to maintain “child” status longer, see 8 U.S.C. § 1153(h)(1), or to automatically convert to a valid adult visa category while retaining the priority date associated with their original petition, see id. § 1153(h)(3). The issue before us is whether an aged-out derivative beneficiary of an F3 petition (for married sons or daughters of U.S. citizens) or F4 petition (for siblings of U.S. citizens)—i.e., a grandchild or niece or nephew of a U.S. citizen—is entitled to automatic conversion and priority date retention, or either of them separately, under the CSPA.

II

Two cases, each with multiple plaintiffs, were consolidated before us in this appeal. The facts of these cases illustrate the family-sponsored immigration process and the age-out problem.

A

In one case, Rosalina Cuellar de Osorio was the beneficiary of an F3 petition filed by her U.S. citizen mother on May 5, 1998. Cuellar de Osorio’s son, who was born in July 1984, was thirteen at the time and a derivative beneficiary of the F3 petition. By the time Cuellar de Osorio’s priority date became current on November 1, 2005, her son had turned 21 and aged out of derivative status. Therefore, he was no longer eligible to immigrate with his mother. After Cuellar de Osorio became an LPR in August 2006, she filed an F2B petition (for adult sons or daughters of LPRs) on behalf of her son. Invoking the CSPA, she requested retention of the original F3 petition’s May 5, 1998, priority date for the F2B petition, which would enable her son to immigrate much sooner than if he was

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 9 of 23

DE OSORIO v. M AYORKAS

16803

assigned a more recent priority date based on the F2B filing date.

On June 23, 2008, Cuellar de Osorio filed a lawsuit against CIS in the Central District Court of California along with several other similarly situated plaintiffs who had asked CIS for (and not obtained) priority date retention for their aged-out children.1 They sought declaratory and mandamus relief, alleging that CIS arbitrarily and capriciously failed to grant the requested priority dates in violation of the CSPA provisions codified at 8 U.S.C . § 1153(h)(3).

The district court held the case in abeyance pending a precedential BIA decision interpreting § 1153(h) in Matter of Wang. On June 16, 2009, the BIA issued its decision, which held that the automatic conversion and priority date retention provisions of the CSPA did not apply to derivative beneficiaries of F4 petitions. See 25 I. & N. Dec. 28 (B.I.A. 2009). The district court then granted summary judgment to CIS on October 9, 2009, holding that the BIA’s interpretation of § 1153(h) in Matter of Wang, according to which the Plaintiffs were not entitled to relief, should receive Chevron deference. Plaintiffs timely appealed.

1Sisters Elizabeth Magpantay, Evelyn Y. Santos, and Maria Eloisa Liwag were each the beneficiary of an F3 petition filed by their U.S. citizen father on January 29, 1991. Each also has children who aged out of derivative status before the F3 petition’s priority date became current on December 15, 2005. The sisters seek to retain the F3 petition’s 1991 priority date on new F2B petitions they have filed for their now-adult sons and daughters.
Norma Uy was the beneficiary of an F4 petition filed by her U.S. citizen sister on February 4, 1981. She has a daughter, Ruth, who aged out of derivative status before the F4 petition’s priority date became current in July 2002. Norma and Ruth seek to retain the F4 petition’s 1981 priority date on a new F2B petition Norma has filed on behalf of Ruth.

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 10 of 23

16804

DE OSORIO v. M AYORKAS B

Meanwhile, on June 20, 2008, Teresita G. Costelo and Lorenzo Ong had separately filed a class-action lawsuit in district court. Costelo was the beneficiary of an F3 petition filed by her U.S. citizen mother on January 5, 1990. At the time, she had two daughters, aged 10 and 13, who were derivative beneficiaries of the petition. By the time Costelo’s priority date became current fourteen years later in 2004, both daughters had aged out of derivative status. After Costelo became an LPR, she filed F2B petitions for her adult daughters and requested retention of the January 5, 1990, priority date for the F2B petitions.

Ong was the beneficiary of an F4 petition filed by his U.S. citizen sister in 1981. At that time, he had two daughters, aged 2 and 4. By the time Ong’s priority date became current twenty-one years later in 2002, his daughters had aged out of derivative status. In March 2005, after Ong obtained LPR status, he filed F2B petitions on behalf of his now-adult daughters and requested retention of the 1981 priority date for these petitions.

On July 16, 2009, the district court certified a class in Costelo v. Chertoff consisting of:

Aliens who became lawful permanent residents as primary beneficiaries of [F3 and F4] visa petitions listing their children as derivative beneficiaries, and who subsequently filed [F2B] petitions on behalf of their aged-out unmarried sons and daughters, for whom Defendants have not granted automatic conversion or the retention of priority dates pursuant to § [1153](h)(3).

After the parties cross-moved for summary judgment, the district court granted summary judgment to the government on November 12, 2009, again deferring to Matter of Wang .

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 11 of 23

DE OSORIO v. M AYORKAS

16805

Plaintiffs timely appealed. The appeals in De Osorio and Costelo have been consolidated before us.

III

We review de novo a district court’s grant of summary judgment. Family Inc. v. U.S. Citizenship & Immigration Servs., 469 F.3d 1313, 1315 (9th Cir. 2006). The interpretation of a statute is a question of law , United States v. Cabaccang, 332 F.3d 622, 624-25 (9th Cir. 2003) (en banc), and “we review de novo the BIA’s determination of questions of law, except to the extent that deference is owed to its interpretation of the governing statutes and regulations. ” GarciaQuintero v. Gonzales , 455 F.3d 1006, 1011 (9th Cir. 2006). We review a precedential decision of the BIA interpreting a governing statute according to the principles of Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837 (1984). INS v. Aguirre-Aguirre , 526 U.S. 415, 425 (1999).

Under the familiar two-step Chevron framework, we first ask “whether Congress has directly spoken to the precise question at issue. ” 467 U.S. at 842. If it has, we “must give effect to the unambiguously expressed intent of Congress, ” regardless of the agency’s interpretation. Id. at 842-43. If, on the other hand, the statute is “silent or ambiguous ” with regard to the issue, we proceed to step two and determine “whether the agency’s answer is based on a permissible construction of the statute. ” Id. at 843 (footnote omitted). We must defer to the agency’s interpretation if it is reasonable. Id. at 844 (holding that when Congress has left a gap for an agency to fill, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator or agency. ”).

IV

We now turn to the statutory provision at issue. In order to address the age-out problem, Congress passed the CSPA in

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 12 of 23

16806

DE OSORIO v. M AYORKAS

2002. See Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002). The CSPA, in relevant part, amended the INA to provide as follows:

(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 . . . 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 . . . for classification of an alien child under subsection (a)(2)(A) of this section; or

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 13 of 23

DE OSORIO v. M AYORKAS
(B) with respect to an alien child who is a derivative beneficiary under subsection (d) of this section, a petition filed . . . for classification of the alien’s parent under subsection (a), (b), or (c) of this section.

16807

(3) Retention of priority date

If the age of an alien is determined under paragraph (a) 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.

8 U.S.C. § 1153.

[1] The parties do not dispute the meaning of paragraphs (1) and (2) above. Paragraph (1) provides that, if an alien applies for a visa within a year of one becoming available (i.e., within one year of the priority date on a relevant petition becoming current), the alien’s age for purposes of determining whether she is a “child” is determined by her age on the date the visa became available minus the number of days that the petition was “pending”—that is, the number of days between the filing of the petition with CIS and its approval by CIS. See Ochoa-Amaya v. Gonzales , 479 F.3d 989, 993 (9th Cir. 2007). In this way, paragraph (1) ensures that an alien does not lose “child” status solely because of administrative delays in the processing of an otherwise valid petition. However, it does not address the much longer oversubscription delays that are typical between the approval of a petition and the availability of a visa. 2

2For example, imagine that a U.S. citizen filed a petition for an alien relative on September 1, 2002, that was approved by CIS on September 15, 2002, and the beneficiary’s priority date became current on September 15,

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 14 of 23

16808

DE OSORIO v. M AYORKAS

Paragraph (2), which is referenced at paragraph (1)(B), simply defines the universe of petitions to which the agereduction formula in paragraph (1) applies. Paragraph (2)(A) refers to F2A petitions for children of LPRs. See 8 U.S.C. § 1153(a)(2)(A). Paragraph (2)(B) refers to any family preference petition for which a child is a derivative beneficiary.3 See id. § 1153(d).

[2] At issue is the meaning of paragraph (3), which provides relief to aliens who are 21 or over even after the agereduction formula in paragraph (1) is applied. In such a case, “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. § 1153(h)(3). Importantly, this is different from the relief offered by paragraph (1). Paragraph (1) allows an aged-out alien to remain eligible for a visa as a “child” under the original petition. Paragraph (3), in contrast, does not allow the aged-out alien to retain child status. Instead, it allows him to move into a different category as an adult without having to file a new petition and get a new priority date. The aged-out alien may still wait in line in the new category, but because he is able to retain an older priority date, his wait time is reduced. The parties dispute whether aged-out derivative beneficiaries of F3 and F4 petitions are entitled to this relief. To answer this question, we undertake our Chevron analysis.

2010. The age of a beneficiary or derivative beneficiary for purposes of

determining whether she was still a “child” would be determined by sub-

tracting 15 days from her age on September 15, 2010. No adjustment to

her age would be made to compensate for the eight years between Septem-

ber 15, 2002, and September 15, 2010. See Ochoa-Amaya, 479 F.3d at 993

(rejecting argument that a petition is

“pending” for purposes of

§ 1153(h)(1)(B) from the date it is filed until the date a visa becomes

available).

3It also refers to any employment-based or diversity-based petition for

which a child is a derivative beneficiary. See 8 U.S.C. § 1153(b), (c).

Those petitions are not relevant to this appeal.

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 15 of 23

DE OSORIO v. M AYORKAS A

16809

Our first charge under Chevron is to ascertain, by “employing traditional tools of statutory construction, ” whether “Congress had an intention on the precise question at issue. ” 467 U.S. at 843 n.9. We begin, as always, with an examination of the statute’s plain language. See Nw. Env. Def. Ctr. v. Brown , 640 F.3d 1063, 1070 (9th Cir. 2011).

1

First of all, we reject any contention that the word “petition” in paragraph (3) is ambiguous because it is not defined by express reference to paragraph (2), as it is in paragraph (1). As we explain, express reference to paragraph (2) is unnecessary.

[3] Paragraph (3)’s initial clause makes it contingent upon the operation of paragraph (1). See 8 U.S.C. § 1153(h)(3) (“If the age of an alien is determined under paragraph (1) to be 21 years of age or older . . . ”). Thus, paragraph (3) is triggered only if one has determined by doing the age-reduction calculation in paragraph (1) that an alien is 21 or over. 4 If it is triggered, “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. Because “the alien” is necessarily one to whom paragraph (1) was applied, “the alien’s petition” naturally refers to the “applicable petition” that was considered in paragraph (1)(B). See id. § 1153(h)(1)(B). After all, if the alien had a petition that

4The facts of Cuellar de Osorio’s case illustrate how paragraph (1)’s calculation works with respect to paragraph (3). Cuellar de Osorio’s original F3 petition was filed on May 5, 1998, and approved on June 30, 1998. Thus, it was “pending” for 56 days. Her son, who was a derivative of the F3 petition, was born on July 18, 1984. When the petition’s priority date became current on November 1, 2005, he was 21 years and 106 days old. Subtracting the 56 days of “pending” time, his age is 21 years, 50 days. Therefore, he is 21 or over, and paragraph (3) is triggered.

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 16 of 23

16810

DE OSORIO v. M AYORKAS

was not an “applicable petition” under paragraph (1), the alien would never undergo the paragraph (1) calculation, and therefore, would never be considered at paragraph (3).

An “applicable petition” in paragraph (1) is explicitly defined by reference to paragraph (2). See § 1153(h)(1)(B) (referring to “the applicable petition described in paragraph (2)”). As explained previously, paragraph (2) describes F2A petitions for a child and any family preference petition for which a child is a derivative beneficiary. Therefore, paragraph (3) says that any of these petitions “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. § 1153(h)(3). Despite this plain language, however, we find that paragraph (3)’s meaning is ambiguous for another reason.

2

The plain language of a statute does not control if “its application leads to unreasonable or impracticable results. ” Valladolid v. Pac. Operations Offshore, LLP , 604 F.3d 1126, 1133 (9th Cir. 2010) (internal quotation and citation omitted); see also Avendano-Ramirez v. Ashcroft , 365 F.3d 813, 816 (9th Cir. 2004). Despite paragraph (3)’s plain language, it does not practicably apply to certain of the petitions described in paragraph (2).

The phrase “the alien’s petition shall automatically be converted to the appropriate category, ” 8 U.S.C. § 1153(h)(3), suggests that the same petition, filed by the same petitioner for the same beneficiary, converts to a new category. This understanding comports with the ordinary meaning of the word “automatic,” which implies that the conversion should happen without any outside input, such as a new petitioner. It also comports with current regulatory practice allowing “automatic conversion” of a petition between certain family preference categories upon the beneficiary’s change in marital

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 17 of 23

DE OSORIO v. M AYORKAS

16811

status or attainment of the age of 21, or upon the petitioner’s naturalization. See 8 C.F.R. § 204.2(i). In each of these situations, it is the qualifying relationship that changes, not the identity of petitioner or the beneficiary. Since there is no change in the parties to the petition, the same petition can simply be reclassified “automatically.”

Not so, however, for F3 and F4 petitions when a derivative ages out. In such a case, there is no “appropriate category” for the petition to “automatically be converted to ” vis-a-vis the same petitioner. For example, in the case of an F3 petition for married sons and daughters of U.S. citizens for which a child is a derivative beneficiary, the original petitioner is the child’s U.S. citizen grandparent. After the derivative turns 21, there is no qualifying relationship between the petitioner and the derivative, because a U.S. citizen cannot petition on behalf of an adult grandson or granddaughter. See 8 U.S.C. § 1153(a). The same difficulty arises in the case of an F4 petition for a U.S. citizen’s sibling for which a child is a derivative beneficiary. The original petitioner is the child’s U.S. citizen aunt or uncle. After the derivative turns 21, there is no qualifying relationship between the petitioner and the derivative, because a U.S. citizen cannot petition on behalf of a niece or nephew. See id.

Appellants contend that there is an “appropriate category”

for an aged-out F3 or F4 derivative to convert into because,

at the moment paragraph (3) operates, the derivative can

establish a qualifying F2B relationship as the adult son or

daughter of an LPR. Paragraph (3) operates when a visa has

become available for the derivative’s parent as the primary

beneficiary of the F3 or F4 petition, the derivative has applied

for a visa within one year, and the derivative has been deter-

mined to be 21 or older under paragraph (1).

5 See id.

5To the extent that the government argues that paragraph (3) operates at the moment the derivative turns 21, we disagree. Paragraph (3) cannot possibly operate at the moment the derivative turns 21, because it is not even triggered until the derivative has already been determined to be at least 21 even after subtracting pending petition time as required by paragraph (1). See 8 U.S.C. § 1153(h).

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 18 of 23

16812

DE OSORIO v. M AYORKAS

§ 1153(h)(1). At that point, the derivative’s parent may have obtained LPR status under the original F3 or F4 petition, in which case the aged-out derivative qualifies for the F2B category. But while F2B may well be an “appropriate category” for the aged-out derivative to convert to, this conversion cannot “automatically” take place, given that a new petitioner— the LPR parent—is required. Appellants essentially ask us to ignore the word “automatically” in paragraph (3). We decline to do so. See Miller v. United States , 363 F.3d 999, 1008 (9th Cir. 2004) ( “Courts must aspire to give meaning to every word of a legislative enactment. ”).

[4] In short, despite the fact that the word “petition” in paragraph (3) can be read to encompass all petitions in paragraph (2), including F3 and F4 petitions, automatic conversion does not practicably apply to F3 and F4 petitions. Therefore, we find paragraph (3)’s meaning to be unclear.

3

Appellants argue that, regardless of whether automatic conversion applies, paragraph (3) unambiguously entitles an aged-out derivative beneficiary of an F3 or F4 petition to priority date retention. We disagree because we find that Congress did not speak clearly as to whether priority date retention can be applied independently of automatic conversion.

Again turning to the text of paragraph (3), if an alien is determined to be 21 or older, “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. ” 8 U.S.C. § 1153(h)(3). It is certainly possible to read this language, which includes two grammatically independent clauses, as conferring automatic conversion and priority date retention as independent benefits. However, it is also entirely possible to interpret it as conferring those two benefits jointly. See Li v. Renaud , ___ F.3d ___, 2011

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 19 of 23

DE OSORIO v. M AYORKAS

16813

WL 2567037 at *7 (2d Cir. 2011) ( “Congress could have, but did not, provide beneficiaries the option to select either conversion or retention or both.”). Automatic conversion and priority date retention commonly (though not always) happen together in the family-sponsored immigration scheme. See 8 C.F.R. § 204.2(i) (providing priority date retention with automatic conversion). But cf. id. § 204.2(a)(4) (granting priority date retention without automatic conversion). Furthermore, elsewhere in the CSPA, Congress much more explicitly indicated when it intended automatic conversion and priority date retention to operate independently. See CSPA § 6, codified at 8 U.S.C. § 1154(k)(3) (“Regardless of whether a petition is converted under this subsection or not, if an [alien] described in this subsection was assigned a priority date with respect to such petition . . . he or she may maintain that priority date. ”).

Because paragraph (3) can be interpreted both ways, it is ambiguous. When a statutory provision is ambiguous, we may “look to its legislative history for evidence of congressional intent,” United States v. Daas , 198 F.3d 1167, 1174 (9th Cir. 1999), but in this case the legislative history is inconclusive. There is no specific discussion of particular age-out protections for derivative beneficiaries of family preference petitions. See, e.g., H.R. Rep. No. 107-807, at 49-50 (2003) . Because we find no clearly expressed congressional intent on the precise question whether derivative beneficiaries of F3 and F4 petitions are entitled to automatic conversion or priority date retention, we must proceed to step two of the Chevron analysis.

B

At step two of Chevron we ask whether the administering agency’s interpretation of the statutory provision at issue is “permissible.” See 467 U.S. at 843. The step two test “is satisfied if the agency’s interpretation reflects a plausible construction of the statute’s plain language and does not otherwise conflict with Congress’ expressed intent. ” Or.

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 20 of 23

16814

DE OSORIO v. M AYORKAS

Trollers Ass’n v. Gutierrez , 452 F.3d 1104, 1116 (9th Cir. 2006) (internal quotation omitted ). “We will not overturn an agency decision at the second step unless it is arbitrary, capricious, or manifestly contrary to the statute. ” Ramos-Lopez v. Holder, 563 F.3d 855, 859 (9th Cir. 2009) (internal quotation omitted).

[5] The relevant agency interpretation of § 1153(h)(3) was articulated by the BIA in Matter of Wang, 25 I. & N. Dec. 28. In Matter of Wang, the BIA found that, under the existing regulatory scheme, “automatic conversion” happens only when “neither the beneficiary nor an immigration officer need take any action to effect the conversion to the new preference category.” Id. at 35. Thus, the BIA concluded that a petition could only “automatically be converted” under § 1153(h)(3) when it could transfer from one visa category to another such that “the beneficiary of that petition then falls within a new classification without the need to file a new visa petition. ” Id. The BIA also concluded that priority date retention could not operate separately from automatic conversion, rejecting the contention that “all children who were derivative beneficiaries would gain favorable priority date status, even with regard to a new visa petition that is wholly independent of the original petition and that may be filed without any time limitation in the future.” Id. at 36; see also id. at 39 (finding no clear legislative intent “to create an open-ended grandfathering of priority dates that allow[s] derivative beneficiaries to retain an earlier priority date set in the context of a different relationship, to be used at any time ”).

[6] The effect of Matter of Wang is to limit § 1153(h)(3)’s applicability to only one petition type: F2A. This is the only petition with an “appropriate category” to which an aged-out primary or derivative beneficiary may “automatically be converted” without a change in petitioner. For example, an agedout primary beneficiary of an F2A petition filed by his LPR parent can become the beneficiary of an F2B petition filed by that same parent. The same is true for an aged-out derivative

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 21 of 23

DE OSORIO v. M AYORKAS

16815

beneficiary of an F2A petition filed by his LPR parent for a spouse.6 But an aged-out derivative beneficiary of any other
family preference petition category, such as F3 or F4, cannot
qualify for a new category without a new petitioner.

[7] We find the BIA’s interpretation of § 1153(h)(3) to be a “permissible” one. See Chevron, 467 U.S. at 843. It “reflects a plausible construction of the statute’s plain language, ” Or. Trollers Ass’n, 452 F.3d at 1116 (internal quotation omitted), because it accords with the ordinary usage of the word “automatic” to describe something that occurs without requiring additional input, such as a different petitioner . We also note that, contrary to Appellants’ assertion, the BIA’s construction does not render § 1153(h)(3)’s reference to § 1153(d) meaningless. See 8 U.S.C. § 1153(h)(3) (referring to “subsections (a)(2)(A) and (d)” (emphasis added)). The reference to subsection (d), which entitles an alien beneficiary’s child to the same status as the parent, has a clear function under the BIA’s interpretation because it covers aged-out derivative beneficiaries of F2A petitions. Without this reference, only aged-out primary beneficiaries of F2A petitions would be entitled to relief, because subsection (a)(2)(A) refers only to the spouses or children of LPRS, not the children of alien beneficiaries.

Appellants also argue that the BIA’s interpretation is unreasonable because it effects no significant change from the status quo. It is true that prior to CSPA’s passage, an aged-out derivative beneficiary of an F2A petition was already entitled to priority date retention when an F2B petition was filed on his or her behalf. See 8 C.F.R. § 204.2(a)(4) (“[I]f the [derivative beneficiary of an F2A petition] reaches the age of twentyone prior to the issuance of a visa to the principal alien parent, a separate petition will be required. In such a case, the origi-

6Note that a child can be either a primary or a derivative beneficiary of an F2A petition. Many families choose to save filing fees by including a child as a derivative on an F2A petition for a spouse rather than as a primary beneficiary on a separate F2A petition.

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 22 of 23

16816

DE OSORIO v. M AYORKAS

nal priority date will be retained if the subsequent petition is filed by the same petitioner .” (emphasis added)). But this regulation does not provide for automatic conversion, and it does not address aged-out primary beneficiaries of F2A petitions. Therefore, § 1153(h)(3) as interpreted by the BIA is not without effect.

Nor do we find that this interpretation “conflict[s] with Congress’ expressed intent. ” Or. Trollers Ass’n , 452 F.3d at 1116. It is clear that Congress wanted the CSPA to provide some measure of age-out relief to all derivative beneficiaries of family preference petitions. See, e.g., H.R. Rep. No. 107807 at 49 (referring to the CSPA as “extend[ing] age-out protection” to the children of family-sponsored immigrants) . However, it is undisputed that all derivative beneficiaries are protected from age-out due to administrative delays under § 1153(h)(1). In fact, this was the only form of relief that House sponsors referred to when they introduced the provisions at issue, which the Senate had added. See, e.g., 148 Cong. Rec. H4990 (daily ed. July 22, 2002) (statement of Rep. Sensenbrenner) (noting that the Senate’s amendments addressed “situations where alien children lose immigration benefits by ‘aging out’ as a result of INS processing delays .”) (emphasis added).

As the BIA recognized, protection from administrative delays was highly significant to Congress. See Matter of Wang, 25 I. & N. Dec. at 36-37 (noting that “the drive for the legislation was the then-extensive administrative delays in the processing of visa petitions”). While the Senate bill’s sponsor expressed an intent to address oversubscription delays as well, she focused only on children of LPRs, who could fall into the F2A category. See 147 Cong. Rec. S3275-76 (daily ed. Apr. 2, 2001) (statement of Sen. Feinstein). Given that § 1153(h)(1) entitles all derivative children to relief from administrative delays, we cannot say that the BIA’s interpretation of § 1153(h)(3) is contrary to congressional intent sim-

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-1 Page: 23 of 23

DE OSORIO v. M AYORKAS

16817

ply because it affords additional relief only to children in the F2A category.

[8] Finally, we point out that limiting § 1153(h)(3)’s applicability to F2A petitions is “a reasonable policy choice for the agency to make. ” Chevron, 467 U.S. at 845. Applying § 1153(h)(3) to all derivative beneficiaries would result in a fundamental change to the family preference scheme, because it would effectively treat an aged-out derivative beneficiary of an F3 or F4 petition as if he or she had been independently entitled to his or her own priority date based on his or her status as the grandchild, niece, or nephew of a citizen. However, those relationships have never been recognized as qualifying ones under U.S. immigration law. This same problem does not arise for a derivative of an F2A petition because he or she can be independently eligible for a priority date as the primary beneficiary of an F2A petition. It is therefore not arbitrary or otherwise unreasonable for the BIA’s interpretation of § 1153(h)(3) to draw the line where it does. This interpretation warrants our deference under Chevron.

V

[9] We hold that § 1153(h)(3) is ambiguous as to whether derivative beneficiaries of F3 and F4 family preference petitions are entitled to automatic conversion or priority date retention. Because we also hold that the BIA’s interpretation of § 1153(h)(3) is reasonable, we defer to it under Chevron. Under that interpretation, automatic conversion and priority date retention do not apply to F3 and F4 petitions. Therefore, Appellants are not entitled to relief. The judgment of the district court is AFFIRMED.

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-2 Page: 1 of 5

United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings (December 2009)

Judgment • This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. •
•

Purpose (Panel Rehearing): A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not
addressed in the opinion. Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 12/2009

1

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-2 Page: 2 of 5

► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 12/2009

2

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-2 Page: 3 of 5

• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at under Forms.
• You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at under Forms.
Attorneys Fees • Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. • All relevant forms are available on our website at under Forms or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari • Please refer to the Rules of the United States Supreme Court at
Counsel Listing in Published Opinions • Please check counsel listing on the attached decision. • If there are any errors in a published opinion, please send a letter in writing within 10 days to: ► West Publishing Company; 610 Opperman Drive; PO Box 64526; St. Paul, MN 55164-0526 (Attn: Kathy Blesener, Senior Editor); ► and electronically file a copy of the letter via the appellate ECF system by using “File Correspondence to Court,” or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.

Post Judgment Form - Rev. 12/2009

3

Case: 09-56786 09/02/2011

ID: 7880229 DktEntry: 44-2 Page: 4 of 5

Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit

BILL OF COSTS

Note:

If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief

REQUESTED Each Column Must Be Completed

ALLOWED To Be Completed by the Clerk

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

Reply Brief

$

$

$

$

Other**

$

$

$

$

TOTAL: $

TOTAL: $

* Costs per page may not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

Continue to next page.

Case: 09-56786 09/02/2011 Form 10. Bill of Costs - Continued

ID: 7880229 DktEntry: 44-2 Page: 5 of 5

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

 
 Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 1 of 18 Page ID #:1038

1

2

3

UNITED STATES DISTRICT COURT

4

CENTRAL DISTRICT OF CALIFORNIA

5

6 BAILUN ZHANG,

)

)

7

Plaintiff, )

)

8

v.

)

)

9 JANET NAPOLITANO,

)

)

10

Defendant. )

________________________________ )

11

ARBI TOROSSIAN, ET AL,

)

12

)

Plaintiffs, )

13

v.

)

)

14 DAVID DOUGLAS, ET AL,

)

)

15

Defendants. )

________________________________ )

16

SHAHAB DOWLATSHAHI,

)

17

)

Plaintiff, )

18

)

v.

)

19

)

ERIC HOLDER, et al,

)

20

)

Defendants. )

21 ________________________________ )

SACV 09-93 JVS(SHx) CV 08-6919 JVS(SHx) CV 08-5301 JVS(SHx)

22 ROSALINA CUELLAR DE OSORIO,et al, )

)

23

Plaintiffs, )

)

24

v.

)

)

25 AYTES, et al,

)

)

26

Defendants. )

________________________________ )

27

EDCV 08-840 JVS(SHx)

28

1

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 2 of 18 Page ID #:1039

1 ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT AND MOTION

2

TO DISMISS DOWLATSHAHI ACTION

3

4

These cases concern the proper interpretation of a provision of the Child

5 Status Protection Act (“CSPA”) § 203(h)(3) of the Immigration and Nationality

6 Act (“INA”), codified at 8 U.S.C. § 1153(h)(3).

7

8

Plaintiffs in these actions are parents, and in some cases their adult children,

9 who under § 203(h)(3) seek to transfer the priority date from family third- and 10 fourth-preference (“F3” and “F4,” respectively) visa petitions1 to family second11 preference (“F2B”) visa petitions.2 The F3 and F4 petitions were filed by U.S.

12 citizen relatives on behalf of the parent-Plaintiffs, whereas the F2B petitions were

13 filed by the parent-Plaintiffs on behalf of their adult sons and daughters after the

14 parents became lawful permanent residents of the United States. These sons and

15 daughters, named as derivative beneficiaries of the F3 and F4 petitions, lost

16 eligibility to immigrate as derivative beneficiaries when they turned twenty-one

17 before a visa number became available to their parents. Plaintiffs now seek review

18 of the U.S. Citizenship and Immigration Services’s (“USCIS’s”) determination that

19 the sons and daughters were not eligible to adjust status based on an automatic

20

21

1 The F3 and F4 classifications are codified at 8 U.S.C. § 1153(a)(3) and (4),

22 respectively.
23 2 The F2B classification is codified at 8 U.S.C. § 1153(a)(2)(B). This provision relates to
24 “unmarried sons or unmarried daughters,” as opposed to the “children,” of lawful permanent
25

26 residents. In relevant part, a “child” is an unmarried person under age twenty-one. 8 U.S.C. §

27 1101(b)(1).

28

2

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 3 of 18 Page ID #:1040

1 conversion of the F3 and F4 petitions to F2B petitions and the retention of the

2 original priority date from the former petitions. Plaintiffs seek relief under the

3 Declaratory Judgment Act, 28 U.S.C. § 2201; the All Writs Act, 28 U.S.C. § 1651;

4 the Mandamus Act, 28 U.S.C. § 1361; and the Administrative Procedure Act

5 (“APA”), 5 U.S.C. § 701 et seq.

6

7

Presently before the Court are the parties’ cross-motions for summary

8 judgment under Federal Rule of Civil Procedure 56.

9

10 I. Background

11

12

These cases present a question of first impression for the federal judiciary.

13 Defendants frame the issue as follows:

14

15

[W]hether, under [§ 203(h)(3)], aliens who aged-out of their

16

derivative [F3 and] F4 classification[s] may transfer the priority date

17

from [those] petition[s] to a later F2B petition when the petitions

18

[were] filed by different petitioners and after there has been a gap in

19

eligibility for classification under the INA.

20

21 (Defs.’ Mot. Br. 7-8.) No federal court has addressed this precise issue. But the

22 Board of Immigration Appeals (“BIA”) has issued a published decision in Matter

23 of Wang, 25 I. & N. Dec. 28, 28 (B.I.A. 2009), holding that “[t]he automatic

24 conversion and priority date retention provisions of [§ 203(h)(3)] do not apply to

25 an alien who ages out of eligibility for an immigrant visa as the derivative

26 beneficiary of a fourth-preference visa petition, and on whose behalf a second-

27

28

3

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 4 of 18 Page ID #:1041

1 preference petition is later filed by a different petitioner.” Accordingly, the issue

2 here is whether the Court should give deference to Wang under the two-step

3 framework of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

4 467 U.S. 837 (1984).

5

6

To make this inquiry, the Court provides background on the statutory

7 provision at issue, the agency interpretation on point, and the factual circumstances

8 of the present cases.

9

10

A. Section 203(h)(3)

11

12

Over a decade ago, “an enormous backlog of adjustment of status (to

13 permanent residence) applications . . . developed at the INS.” H.R. Rep. No.

14 107-45, p. 2 (2001), as reprinted in 2002 U.S.C.C.A.N. 640, 641. As a result, child

15 beneficiaries of visa applications often would “age out,” or turn twenty-one, before

16 the application was processed, thereby requiring the applicant to shift into a lower

17 preference classification and be placed “at the end of a long waiting list for a visa.”

18 Id. Most notably, “children” at the F2A classification would shift to the F2B

19 classification for “unmarried sons [and] unmarried daughters” upon turning

20 twenty-one. Compare 8 U.S.C. § 1153(a)(2)(A), with id. § 1153(a)(2)(B). The

21 CSPA was enacted to provide age-out protection for individuals who were children

22 at the time a petition or application for permanent resident status was filed on their

23 behalf. Padash v. INS, 358 F.3d 1161, 1167 (9th Cir. 2004).

24

25

Among other things, the CSPA amended § 203 of the INA by adding what is

26 now subsection (h). Section 203(h) provides that an alien’s age for purposes of the

27

28

4

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 5 of 18 Page ID #:1042

1 F2A classification is to be determined by subtracting the time that the petition for

2 classification was pending from the alien’s age at the time that a visa number

3 becomes available. 8 U.S.C. § 1153(h)(1)-(2). If the alien is determined to be

4 twenty-one or older after applying this calculation, the statute provides for the

5 automatic conversion of the petition to the appropriate category and the retention

6 of the original priority date from when the original petition was filed. Id. §

7 1153(h)(3). Specifically, § 203(h)(3) provides:

8

9

If the age of an alien is determined under paragraph (1) to be 21 years

10

of age or older for the purposes of subsections (a)(2)(A) and (d) of

11

this section, the alien’s petition shall automatically be converted to the

12

appropriate category and the alien shall retain the original priority date

13

issued upon receipt of the original petition.

14

15 8 U.S.C. § 1153(h)(3). This provision, at the heart of the controversy here, was

16 interpreted by the BIA in Wang.

17

18

B. The BIA’s decision in Wang

19

20

In Wang, a visa number became available to the plaintiff as a beneficiary of

21 an F4 petition filed by his U.S. citizen sister after one of his daughters, a derivative

22 of her father on the original petition, aged out. 25 I. & N. Dec. at 29. The plaintiff

23 then filed an F2B petition for his aged-out daughter. Id. at 30. At issue in Wang

24 was “whether a derivative beneficiary who has aged out of a fourth-preference visa

25 petition may automatically convert her status to that of a beneficiary of a second-

26 preference category pursuant to [§ 203(h) of the INA].” 25 I. & N. Dec. at 30. In

27

28

5

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 6 of 18 Page ID #:1043

1 resolving this issue, the BIA squarely addressed the automatic conversion and

2 priority date retention provisions of § 203(h)(3).

3

4

The BIA began by observing that the phrases “automatic conversion” and

5 “retention” had recognized meanings in the regulatory and statutory context in

6 which Congress enacted § 203(h)(3). The BIA noted that 8 C.F.R. § 204.2(i)

7 provides for the “automatic conversion” from one preference category to another

8 upon the occurrence of certain events, id. at 34 (citing Automatic Conversion of

9 Classification of Beneficiary, 52 Fed. Reg. 33,797 (Sept. 8, 1987)), and that 8

10 C.F.R. § 204.2(a)(4) provides for “retention” of a priority date for “a lawful

11 permanent resident’s son or daughter who was previously eligible as a derivative

12 beneficiary under a second-preference spousal petition filed by that same lawful

13 permanent resident.” Id. The BIA further observed that the CSPA added § 201(f)

14 to the INA, for which the “conversion” of the original petition from one preference

15 category to another occurs automatically by operation of law. Id. at 34-35. Based

16 on these regulatory and statutory provisions, the BIA held that “conversion” means

17 to shift from one visa category to another without the need to file a new visa

18 petition, and that “retention” of priority dates is limited to visa petitions filed by

19 the same family member. Id. The BIA therefore concluded that § 203(h)(3) did

20 not apply to the plaintiff’s daughter in Wang:

21

22

First, with regard to the “automatic conversion” referenced in section

23

203(h)(3), we look to see to which category the fourth-preference

24

petition converted at the moment the beneficiary aged out. When the

25

beneficiary aged out from her status as a derivative beneficiary on a

26

fourth-preference petition, there was no other category to which her

27

28

6

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 7 of 18 Page ID #:1044

1

visa could convert because no category exists for the niece of a United

2

States citizen. Second, if we apply the “retention” language of section

3

203(h) here, we look to see if the new petition was filed on the

4

beneficiary’s behalf by the same petitioner. In the beneficiary’s case,

5

the new visa petition has been filed by her father, not by her aunt

6

(who was the original petitioner).

7

8 Id. at 35 (emphases added). But the BIA’s inquiry did not end there. The BIA also

9 searched the CSPA’s legislative history for evidence of a congressional intent to

10 expand the use of the automatic conversion and priority date retention concepts.

11 The BIA found none. Instead, the BIA noted that House reports and related

12 statements from House members revealed “that the drive for the legislation was the

13 then-extensive administrative delays in the processing of visa petitions and

14 applications resulting in the aging out of beneficiaries of petitions filed by United

15 States citizens and the associated loss of child status for immigration purposes.”

16 Id. at 36-37 (citing the Congressional Record). The BIA also found “repeated

17 discussion in the House . . . of the intention to allow for retention of child status

18 ‘without displacing others who have been waiting patiently in other visa

19 categories.’” Id. at 37 (citing the Congressional Record). Accordingly, the BIA

20 held that the automatic conversion and priority date retention provisions did not

21 apply to an alien who aged out of eligibility for an immigrant visa as the derivative

22 beneficiary of an F4 petition, and on whose behalf an F2B petition was later filed 23 by a different petitioner. Id. at 38-39.3

24

25

26

3 The BIA’s reasoning in Wang applies with equal vigor to the automatic conversion and

27 priority date retention from an F3 to an F2B petition. For example, in the case of Torossian

28

7

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 8 of 18 Page ID #:1045

1

C. The Facts in These Cases

2

3

The factual circumstances of these cases are similar to those in Wang.

4

5

Plaintiff Bailun Zhang immigrated to the United States from China in 2008

6 as the beneficiary of an F4 petition filed by his U.S. citizen sister in 1991.

7 (Zhang Compl. ¶ 4.) His son was a derivative of that petition, but aged out prior to

8 the date that Zhang’s visa was issued. (Id. ¶ 9.)

9

10

Plaintiff Ojik Babomian came to the United States from Iran in 1996, and

11 became a lawful permanent resident as the beneficiary of an F3 petition filed by

12 her U.S. citizen mother in 1998. (Torossian Compl. ¶¶ 26, 30.) Plaintiff Arbi

13 Torossian, her son, aged out before Babomian was eligible to adjust her status to

14 that of lawful permanent resident in 2007. (Id. ¶ 31.)

15

16

Plaintiff Shahab Dowlatshahi immigrated to the United States as the

17 beneficiary of an F4 petition filed by his U.S. citizen sister in 1993. (Dowlatshahi

18 Compl. at 2.) His daughter was a derivative of that petition, but aged out before 19 Dowlatshahi’s visa number became available.4

20

21 below, “there was no other category to which [his] visa could convert because no category exists
22 for the [grandson] of a United States citizen,” and “the new visa petition has been filed by [his 23
mother], not by [his grandmother] (who was the original petitioner).” 25 I. & N. Dec. at 35. 24
4 Dowlatshahi has moved to dismiss his case in light of the Court’s class certification in a 25
26 related case. (Docket No. 50.) Defendants do not oppose. (Docket No. 53.) The Court

27 addresses this motion separately in Section III.C below.

28

8

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 9 of 18 Page ID #:1046

1

Plaintiffs Rosalina Cuellar de Osorio, Elizabeth Magpantay, Evelyn Y.

2 Santos, Maria Eloisa Liwag, and Norma Uy became lawful permanent residents in

3 2006 and 2007 as the result of visa petitions filed by their U.S. citizen relatives.

4 (de Osorio Compl. ¶ 9-13.) Plaintiff Ruth Uy is Uy’s daughter. In the original visa

5 petitions that resulted in the parent-Plaintiffs’ current lawful permanent residence,

6 their children were listed as derivative beneficiaries. These children aged out

7 before their parents adjusted status.

8

9

The parent-Plaintiffs in these cases filed F2B petitions on behalf of their

10 aged-out children. Plaintiffs filed suit claiming that, under § 203(h)(3), the F2B

11 petitions should be assigned the priority date of the earlier F3 and F4 petitions filed

12 by their U.S. citizen relatives.

13

14

With this background, the Court now considers the parties’ cross-motions

15 for summary judgment.

16

17 II. Legal Standard

18

19

Summary judgment is appropriate where the record, read in the light most

20 favorable to the nonmoving party, indicates that “there is no genuine issue as to

21 any material fact and . . . the moving party is entitled to a judgment as a matter of

22 law.” Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477 U.S. 317, 323-24

23 (1986). The initial burden is on the moving party to demonstrate an absence of a

24 genuine issue of material fact. Celotex, 477 U.S. at 323. Material facts are those

25 necessary to the proof or defense of a claim, and are determined by reference to

26 substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

27

28

9

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 10 of 18 Page ID #:1047

1 fact issue is genuine “if the evidence is such that a reasonable jury could return a

2 verdict for the nonmoving party.” Id. at 248. If the moving party meets its burden,

3 then the nonmoving party must produce enough evidence to rebut the moving

4 party’s claim and create a genuine issue of material fact. Id. at 322-23. If the

5 nonmoving party meets this burden, then the motion will be denied. Nissan Fire &

6 Marine Ins. Co. v. Fritz Co., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000).

7

8

Where the parties have made cross-motions for summary judgment, the

9 Court must consider each motion on its own merits. Fair Hous. Council v.

10 Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The Court will consider each

11 party’s evidentiary showing, regardless of which motion the evidence was tendered

12 under. See id. at 1137.

13

14 III. Discussion

15

16

There are no factual disputes here. Thus, the only issue is whether the

17 USCIS’s decision not to apply § 203(h)(3)’s automatic conversion and priority date

18 retention provisions in these cases runs afoul of the “arbitrary and capricious”

19 standard of the APA.

20

21

Under the APA, a final agency action can be set aside only if it is “arbitrary,

22 capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

23 U.S.C. § 706(2)(A). A decision is arbitrary and capricious if the agency “has relied

24 on factors which Congress has not intended it to consider, entirely failed to

25 consider an important aspect of the problem, offered an explanation for its decision

26 that runs counter to the evidence before the agency, or is so implausible that it

27

28

10

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 11 of 18 Page ID #:1048

1 could not be ascribed to a difference in view or the product of agency expertise.”

2 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

3 (1983); accord George v. Bay Area Rapid Transit, 577 F.3d 1005, 1010 (9th Cir.

4 2009).

5

6

The party challenging an agency’s action as arbitrary and capricious bears

7 the burden of proof. “‘Indeed, even assuming the [agency] made missteps . . . the

8 burden is on petitioners to demonstrate that the [agency’s] ultimate conclusions are

9 unreasonable.’” George, 577 F.3d at 1011 (alterations and ellipses in original)

10 (quoting City of Olmsted Falls, Ohio v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002)).

11 Even when an agency explains its decision with less than ideal clarity, a reviewing

12 court will not upset the decision on that account “if the agency’s path may

13 reasonably be discerned.” Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S.

14 461, 497 (2004). Accordingly, review under the arbitrary and capricious standard

15 is narrow, and the reviewing court may not substitute its judgment for that of the

16 agency. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 376 (1989); accord

17 United States v. Snoring Relief Labs Inc., 210 F.3d 1081, 1085 (9th Cir. 2000).

18

19

Here, the Court finds that Plaintiffs have not carried their burden to show

20 that the USCIS’s action in these cases was arbitrary and capricious, and agrees

21 with Defendants that the BIA’s decision in Wang is entitled to Chevron deference.

22

23

A. The Chevron Standard

24

25

Wang is dispositive of this motion. The Plaintiffs fail to carry their burden

26 on these cross-motions because, at bottom, they cannot show that Wang is not

27

28

11

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 12 of 18 Page ID #:1049

1 entitled to Chevron deference.

2

3

The U.S. Attorney General has vested the BIA with power to exercise its

4 “independent judgment and discretion in considering and determining cases

5 coming before [it].” 8 C.F.R. § 1003.1(d)(1). The Supreme Court has therefore

6 recognized “that the BIA should be accorded Chevron deference as it gives

7 ambiguous statutory terms ‘concrete meaning through a process of case-by-case

8 adjudication.’” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (citing INS v.

9 Cardoza-Fonseca, 480 U.S. 421, 448-49 (1987)). Chevron established a familiar

10 two-step framework for deciding whether an agency’s interpretation of a statute is

11 proper. At the first step, the Court asks whether the statute’s plain terms “directly

12 address[ ] the precise question at issue.” 467 U.S. at 843. If the statute is

13 ambiguous on the point, the Court defers at step two to the agency’s interpretation

14 so long as the construction is “a reasonable policy choice for the agency to make.”

15 Id. at 845.

16

17

B. Application of Chevron

18

19

Here, Defendants’ interpretation is permissible at both steps.

20

21

1. Section 203(h)(3) Is Ambiguous

22

23

The Court finds that § 203(h)(3) is ambiguous at Chevron step one, and

24 endorses the explanation of this ambiguity articulated in Wang itself:

25

26

If the beneficiary is determined to be 21 years of age or older pursuant

27

28

12

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 13 of 18 Page ID #:1050

1

to section 203(h)(1) of the Act, then section 203(h)(3) provides that

2

“the alien’s petition shall automatically be converted to the

3

appropriate category and the alien shall retain the original priority date

4

issued upon receipt of the original petition.” Unlike sections

5

203(h)(1) and (2), which when read in tandem clearly define the

6

universe of petitions that qualify for the “delayed processing

7

formula,” the language of section 203(h)(3) does not expressly state

8

which petitions qualify for automatic conversion and retention of

9

priority dates.

10

11 25 I. & N. Dec. at 33 (emphasis added). There is nothing on the face of the statute

12 to support Plaintiffs’ contention that this ambiguity arises only “by focusing on the

13 wrong familial relationship as well as the wrong point in time.” (Torossian Pls.’

14 Opp’n Br. 3-4.) This contention is further belied by its reliance on the BIA’s

15 unpublished decision in Matter of Garcia, A79 001 587, 2006 WL 2183654 (B.I.A.

16 June 16, 2006). That the BIA interpreted § 203(h)(3) differently on another

17 occasion does not prove that the provision is “plain and unambiguous.” (Torossian

18 Pls.’ Opp’n Br. 2.) Indeed, it suggests the opposite. In any event, only the BIA’s

19 published decisions have precedential value. See 8 C.F.R. § 1003.1(g).

20

21

The Court need not belabor this point. Suffice it to say that Plaintiffs

22 effectively concede the issue in their opposition briefs. According to Plaintiffs,

23 when a hypothetical derivative beneficiary ages out of an F3 or F4 petition, “he

24 automatically converts to the appropriate category (as determined by his

25 relationship to the direct beneficiary[)].” (Pls.’ Opp’n Br. 8.) That Plaintiffs must

26 add an explanatory parenthetical underscores the ambiguity surrounding the

27

28

13

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 14 of 18 Page ID #:1051

1 interpretation of § 203(h)(3).

2

3

2. Wang’s Interpretation of § 203(h)(3) Is Reasonable

4

5

The Court also concludes that the BIA’s interpretation of § 203(h)(3) in

6 Wang was “a reasonable policy choice for the [BIA] to make” at Chevron step two.

7 467 U.S. at 845.

8

9

The BIA in Wang declined to apply the automatic conversion and priority

10 date retention provisions of § 203(h)(3) “[a]bsent clear legislative intent to create

11 an open-ended grandfathering of priority dates that allow derivative beneficiaries

12 to retain an earlier priority date set in the context of a different relationship, to be

13 used at any time.” Id. at 39. The BIA began by noting that the provision does not

14 expressly state which petitions qualify for automatic conversion and priority date

15 retention. Id. at 33. The BIA then found that the regulatory and statutory context,

16 as well as the legislative record, supported a narrower interpretation of § 203(h)(3).

17 Id. at 34-39. The BIA concluded that the automatic conversion and priority date

18 retention provisions did not apply to an alien who aged out of eligibility for an

19 immigrant visa as the derivative beneficiary of a fourth-preference visa petition,

20 and on whose behalf a second-preference petition was later filed by a different

21 petitioner. Id. at 38-39. Hence, the BIA’s interpretation in Wang finds ample

22 regulatory and statutory support, and is buttressed by the Congressional Record.

23 As such, it is reasonable.

24

25

Plaintiffs’ arguments to the contrary are unavailing.

26

27

28

14

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 15 of 18 Page ID #:1052

1

Plaintiffs contend that the CSPA was intended to protect those “who turned

2 twenty-one and subsequently lost their eligibility for immigration benefits.”

3 (Torossian Pls. Opp’n Br. 6.) But they neglect to point out that Congress was also

4 concerned with not “displacing others who have been waiting patiently in other

5 visa categories.” 25 I. & N. Dec. at 37 (citing the Congressional Record). In any

6 event, the adult sons and daughters here faced no administrative delay per se, but

7 rather a high demand for a limited number of visas. This accords with the BIA’s

8 observation in Wang that, “[w]hile the CSPA was enacted to alleviate the

9 consequences of administrative delays, there is no clear evidence that it was

10 intended to address delays resulting from visa allocation issues, such as the long

11 wait associated with priority dates.” Id. at 38.

12

13

Plaintiffs also assert that the BIA’s interpretation renders the words “and

14 (d)” superfluous within the text of § 203(h)(3). But beneficiaries of petitions filed

15 under subsection (d) include derivative beneficiaries of F2A petitions. Given the

16 BIA’s reliance on a perceived intent of Congress not to expand the protection of

17 the act, the Court cannot say that an interpretation of the reference to subsection (d)

18 which restricts subsection (d) to beneficiaries of derivative F2A petitions is

19 unreasonable. At a minimum there is an ambiguity, and it is the BIA’s duty to

20 resolve it.

21

22

Plaintiffs further contend that the BIA failed to discuss various regulatory

23 and statutory provisions. But none of Plaintiffs’ cited examples weigh heavily

24 because none use the terms “conversion” and “retention” in conjunction.

25 (Torossian Pls.’ Opp’n Br. 16-18, citing 8 C.F.R. § 204.2(h)(2); 8 C.F.R. §

26 204.5(e); 8 C.F.R. § 204.12(f)(1); USA Patriot Act of 2001, Pub. L. No. 107-56, §

27

28

15

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 16 of 18 Page ID #:1053

1 421(c) 423, 115 Stat. 272; Western Hemisphere Savings Clause, P.L. 94-571, 90

2 Stat. 2703 (October 20, 1976).)

3

4

Finally, Plaintiffs cite Baruelo v. Comfort, No. 05 C 6659, 2006 WL

5 3883311 (N.D. Ill. Dec. 29, 2006), for the proposition that adult sons and daughters

6 should not have to go to the back of another line to wait for visa numbers to

7 become available. But Baruelo is inapposite. There, the plaintiff was a primary

8 beneficiary of an F2A petition filed by her mother, a lawful permanent resident.

9 Id. at *1. The petition was approved but administrative delays prevented the

10 plaintiff from obtaining her visa until after she had aged out into the F2B

11 preference classification. The plaintiff in Baruelo is precisely the class of alien that

12 the BIA determined to be eligible for automatic conversion and priority date

13 retention under § 203(h)(3). Thus, the holding in Baruelo comports with the BIA’s

14 decision in Wang.

15

16

Accordingly, Wang is entitled to Chevron deference, and Defendants did not

17 act arbitrarily or capriciously in refusing to apply § 203(h)(3) to the adult sons and

18 daughters in these cases.

19

20

C. Dowlatshahi’s Motion

21

22

As a final matter, Plaintiff Shahab Dowlatshahi has filed a motion to dismiss

23 his case. (Docket No. 50.) The motion is based on Dowlatshahi’s asserted

24 membership in a class certified under Rule 23(b)(2) by this Court in Costello v.

25 Chertoff, ___ F.R.D. ___, 2009 WL 2223006 (C.D. Cal. July 16, 2009):

26

27

28

16

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 17 of 18 Page ID #:1054

1

Aliens who became lawful permanent residents as primary

2

beneficiaries of third- and fourth-preference visa petitions listing their

3

children as derivative beneficiaries, and who subsequently filed

4

second-preference petitions on behalf of their aged-out unmarried

5

sons and daughters, for whom Defendants have not granted automatic

6

conversion or the retention of priority dates pursuant to § 203(h)(3).

7

8 Id. at *9. Dowlatshahi “believes that [Rule] 23(b)(2) renders his membership in

9 the class created by Costelo as mandatory and therefore moves to dismiss his

10 independent action.” (Docket No. 50, at 7.) The Court entertains the motion

11 despite its noncompliance with the Local Rules. (Docket No. 51.) To be sure,

12 although the class in Costello is mandatory in that class members do not have an

13 automatic right to notice or a right to opt out of the class, see Reeb v. Ohio Dep’t

14 of Rehab. and Corr., 435 F.3d 639, 645-46 (6th Cir. 2006), the “mandatory” nature

15 of the class does not necessarily preclude Dowlatshahi’s separate suit. The Court

16 nonetheless grants the motion in accordance with Dowlatshahi wishes and in view

17 of Defendant’s non-opposition. (Docket No. 53.)

18

19

20

21

22

23

24

25

26

27

28

17

Case 5:08-cv-00840-JVS-SH Document 63 Filed 10/09/09 Page 18 of 18 Page ID #:1055

1 IV. Conclusion

2

3

For the foregoing reasons, the Court DISMISSES Dowlatshahi v. Holder, et

4 al., CV 08-5301 JVS (SHx). The Court DENIES the Plaintiffs’ motions and

5 GRANTS Defendants’ motions in the remaining cases. The Court cannot compel

6 Defendants to act where their inaction was not arbitrary, capricious, or an abuse of

7 discretion. 5 U.S.C. § 706(2)(A).

8

9

IT IS SO ORDERED.

10

11 DATED: October 9, 2009

12

13

________________________________

14

UNITED STATES DISTRICT JUDGE

15

JAMES V. SELNA

16

17

18

19

20

21

22

23

24

25

26

27

28

18

 
 Case: 8:08-cv-688 As of: 01/06/2013 05:41 AM PST 1 of 11
(SHx), APPEAL, CLOSED
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Southern Division − Santa Ana)
CIVIL DOCKET FOR CASE #: 8:08−cv−00688−JVS−SH

Costello v. Chertoff Assigned to: Judge James V. Selna Referred to: Magistrate Judge Stephen J. Hillman Related Cases: 2:08−cv−05301−JVS−SH
2:08−cv−06919−JVS−SH
5:08−cv−00840−JVS−SH
Case in other court: 9th CCA, 09−56846 Cause: 05:551 Administrative Procedure Act
Plaintiff

Date Filed: 06/20/2008 Date Terminated: 11/18/2009 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Teresita G. Costello

represented by Nancy Ellen Miller Reeves and Associates APC 2 North Lake Avenue Suite 950 Pasadena, CA 91101−1871 626−795−6777 Email: nmiller@rreeves.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert L Reeves Reeves &Associates 2 North Lake Avenue Ninth Floor Pasadena, CA 91101−1871 626−795−6777 Fax: 626−795−6999 Email: fang@rreeves.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Lorenzo P. Ong Individually and on Behalf of all Others Similarly Situated

represented by Nancy Ellen Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert L Reeves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Michael Chertoff Secretary of The Department of Homeland Security

represented by Elizabeth J Stevens United States Department of Justice Office of Immigration Litigation − Civil Division PO Box 878 Ben Franklin Station Washington, DC 20044 202−616−9752 Fax: 202−305−7000 Email: elizabeth.stevens@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:08-cv-688 As of: 01/06/2013 05:41 AM PST 2 of 11

Defendant United States Citizenship and Immgration Services
Defendant Emilio T. Gonzalez Director, United States Citzenship and Imigration Services
Defendant David Tyler Director, National Visa Center
Defendant Christina Poulos
Amicus American Immigration Law Foundation

Gisela A Westwater US Department of Justice Office of Immigration Litigation − Civil Division PO Box 868 Ben Franklin Station Washington, DC 20044 202−532−4174 Fax: 202−616−8962 Email: gisela.westwater@usdoj.gov ATTORNEY TO BE NOTICED
represented by Elizabeth J Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth J Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth J Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth J Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) ATTORNEY TO BE NOTICED
represented by Amy Carole Prokop Carl Shusterman Law Offices 600 Wilshire Blvd Suite 1550 Los Angeles, CA 90017 213−623−4592 Fax: 213−623−3720 Email: aprokop@shusterman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:08-cv-688 As of: 01/06/2013 05:41 AM PST 3 of 11

Date Filed 06/20/2008 06/20/2008 06/24/2008 07/11/2008 07/11/2008 07/11/2008 07/14/2008
07/14/2008 07/14/2008 07/18/2008
07/18/2008 07/18/2008 07/28/2008 07/28/2008

# Docket Text
1 COMPLAINT against defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez.(Filing fee $ 350). Filed by plaintiffs Teresita G. Costello, Lorenzo P. Ong.(ade) (Entered: 06/24/2008)
2 CERTIFICATION of Interested Parties filed by PLAINTIFFS Teresita G. Costello, Lorenzo P. Ong, (ade) (Entered: 06/24/2008)
3 INITIAL ORDER FOLLOWING FILING OF COMPLAINT by Judge James V. Selna, (see order for details) (db) (Entered: 06/25/2008)
4 NOTICE OF MOTION AND First MOTION to Certify Class Action (Part 1) filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. Motion set for hearing on 8/11/2008 at 01:30 PM before Judge James V. Selna. (Miller, Nancy) (Entered: 07/11/2008)
5 NOTICE OF MOTION AND First MOTION to Certify Class Action (Part2) filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. Motion set for hearing on 8/11/2008 at 01:30 PM before Judge James V. Selna. (Miller, Nancy) (Entered: 07/11/2008)
6 NOTICE OF MOTION AND First MOTION to Certify Class Action (Part 3) filed by plaintiffs Teresita G. Costello, Lorenzo P. Ong. Motion set for hearing on 8/11/2008 at 01:30 PM before Judge James V. Selna. (Miller, Nancy) (Entered: 07/11/2008)
7 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Title page is missing RE: First MOTION to Certify Class Action (Part2) 5 , First MOTION to Certify Class Action (Part 3) 6 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (rrp) (Entered: 07/14/2008)
8 NOTICE OF MOTION AND First MOTION to Certify Class Action filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. Motion set for hearing on 8/11/2008 at 01:30 PM before Judge James V. Selna. (Miller, Nancy) (Entered: 07/14/2008)
9 MEMORANDUM in Support of First MOTION to Certify Class Action 8 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 07/14/2008)
10 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Local Rule 11−8 Memorandum/brief exceeding 10 pages shall contain table of contents. RE: Memorandum in Support of Motion 9 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (nca) (Entered: 07/18/2008)
11 NOTICE OF MOTION AND Amended MOTION to Certify Class Action filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. Motion set for hearing on 8/11/2008 at 01:30 PM before Judge James V. Selna. (Miller, Nancy) (Entered: 07/18/2008)
12 MEMORANDUM in Support of Amended MOTION to Certify Class Action 11 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 07/18/2008)
13 NOTICE of Appearance filed by attorney Elizabeth J Stevens on behalf of Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez (Stevens, Elizabeth) (Entered: 07/28/2008)
14 OPPOSITION to First MOTION to Certify Class Action 8 , Amended MOTION to Certify Class Action 11 filed by Defendants David Tyler, Christina Poulos,

Case: 8:08-cv-688 As of: 01/06/2013 05:41 AM PST 4 of 11

07/29/2008 08/04/2008 08/04/2008 08/05/2008 08/06/2008
08/06/2008 08/06/2008 08/07/2008 08/07/2008 08/07/2008 08/13/2008 08/13/2008
08/15/2008 08/18/2008

Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit A, # 2 Appendix)(Stevens, Elizabeth) (Entered: 07/28/2008)
15 PROOF of Service OF SERVICE filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong, re Amended MOTION to Certify Class Action 11 served on 07/21/2008. (Miller, Nancy) (Entered: 07/29/2008)
16 REPLY Reply In Support of Motion To Certify Class Action filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 08/04/2008)
17 DECLARATION of Nancy E. Miller In Support of Amended MOTION to Certify Class Action 11 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 08/04/2008)
18 NOTICE OF MOTION AND First MOTION to Amend Amended MOTION to Certify Class Action 11 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. Motion set for hearing on 9/8/2008 at 01:30 PM before Judge James V. Selna. (Miller, Nancy) (Entered: 08/05/2008)
19 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Local Rule 11−6 Memorandum/brief exceeds 25 pages RE: Reply (Motion related) 16 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (rrp) (Entered: 08/06/2008)
20 ORDER Continuing Plaintiffs Motion for Class Certification 8 and Setting Hearing for Motion to Amend the Proposed Class Definition 18 by Judge James V. Selna. Motion for Class Certification is continued to 08/11/08. (db) (Entered: 08/06/2008)
24 MINUTES OF IN CHAMBERS ORDER by Judge James V. Selna Continuing Plaintiff's Motion for Class Certification and Setting Hearing for Motion to Amend the Proposed Class Definition 11 18 . Motions set for hearing on 8/20/2008 at 08:00 AM before Judge James V. Selna. (nbo) (Entered: 08/07/2008)
21 First NOTICE of Appearance filed by attorney Gisela Ann Westwater on behalf of Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez (Westwater, Gisela) (Entered: 08/07/2008)
22 RESPONSE IN SUPPORT of Amended MOTION to Certify Class Action 11 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 08/07/2008)
23 RESPONSE IN SUPPORT of Amended MOTION to Certify Class Action 11 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Attachments: # 1 Exhibit)(Miller, Nancy) (Entered: 08/07/2008)
25 NOTICE of Related Case(s) filed by Attorney for Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. Related Case(s): 5:08−cv−00840 (Westwater, Gisela) (Entered: 08/13/2008)
26 OPPOSITION to First MOTION to Amend Amended MOTION to Certify Class Action 11 18 and to Motion to Amend Proposed Class Definition filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Westwater, Gisela) (Entered: 08/13/2008)
27 SUPPLEMENT to Defendants' Opposition to Motion to Amend Proposed Class Definition filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Westwater, Gisela) (Entered: 08/15/2008)
28 RESPONSE IN SUPPORT of First MOTION to Amend Amended MOTION to Certify Class Action 11 18 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 08/18/2008)

Case: 8:08-cv-688 As of: 01/06/2013 05:41 AM PST 5 of 11

08/20/2008 08/22/2008 08/22/2008 08/25/2008
09/16/2008 09/16/2008 09/18/2008 09/25/2008 10/01/2008

29 MINUTES OF Motion Hearing held before Judge James V. Selna taking under submission Plaintiffs' MOTION for Certification of Class Action 8 ,and Plaintiffs' MOTION to Amend the Proposed Class Definition 18 . Court Reporter: Sharon Seffens. (db) (Entered: 08/21/2008)
30 NOTICE OF MOTION AND MOTION to Dismiss Case filed by Attorney for Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. Motion set for hearing on 10/27/2008 at 01:30 PM before Judge James V. Selna. (Attachments: # 1 Exhibit Documentation of Patel Referral, # 2 Exhibit Documentation of Wang Referral, # 3 Appendix Complaint, # 4 Proposed Order Proposed Order to Dismiss)(Westwater, Gisela) (Entered: 08/22/2008)
31 NOTICE OF MOTION re MOTION to Dismiss Case 30 filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. Motion set for hearing on 10/27/2008 at 01:30 PM before Judge James V. Selna. (Westwater, Gisela) (Entered: 08/22/2008)
32 MINUTES OF IN CHAMBERS ORDER by Judge James V. Selna: DENYING MOTIONS TO Amend Class Definition and to Certify Class, and Staying action for 180 days: (See document for details.) Accordingly, this action is stayed in its entirety for 180 days to afford the BIA an opportunity to issue an interpretation of § 203 (h)(3) in the first instance. Costelo's motions to amend the class definition and to certify the class are therefore denied without prejudice. If appropriate, Costelo may renew those motions or submit revised motions after the expiration of the stay. Chertoff shall keep both Costelo and the Court apprised of any relevant developments in the pending § 203 cases and shall also file the following documents: (1) within 14 days, a copy of all briefs submitted by any parties in the pending § 203 cases thus far; (2) within 14 days of their filing, a copy of any briefs submitted in the pending § 203 cases in the future; and (3) within 90 days, a report detailing the status of the pending § 203 cases. (rla) (Entered: 08/25/2008)
33 SUPPLEMENT filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Supplement certification document, # 2 Proposed Order Final Certification, # 3 Supplement Patel's Brief to BIA, # 4 Supplement USCIS brief to BIA, # 5 Supplement Patel request for supp brief)(Westwater, Gisela) (Entered: 09/16/2008)
34 SUPPLEMENT filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Supplement Certification, # 2 Supplement Final Certification, # 3 Supplement Wang's brief to BIA, # 4 Supplement USCIS Supplement, # 5 Supplement Wang request for Supplemental Brief)(Westwater, Gisela) (Entered: 09/16/2008)
35 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Incorrect document is attached to the docket entry RE: Supplement (non−motion), Supplement (non−motion) 34 , Supplement (non−motion), Supplement (non−motion) 33 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (rrp) (Entered: 09/18/2008)
36 ORDER by Judge James V. Selna: the following document(s) be STRICKEN for failure to comply with the Local Rules, General Order and/or the Courts Case Management Order: Supplement 34 , Supplement 33 , for the following reasons: Document lacks face page, case number and name of document. It is unclear from the filing what action or purpose the document requests or serves; (twdb) (Entered: 09/25/2008)
37 SUPPLEMENT filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit USCIS Certification Package, # 2 Exhibit Respondent Brief, # 3 Exhibit USCIS Brief and Request to Submit Suppl, # 4 Exhibit USCIS Suppl Brief, # 5 Exhibit Respondent Request to Submit Suppl)(Westwater, Gisela) (Entered: 10/01/2008)

Case: 8:08-cv-688 As of: 01/06/2013 05:41 AM PST 6 of 11

10/01/2008
10/16/2008 10/21/2008 11/21/2008 12/05/2008 12/05/2008 12/10/2008 12/24/2008 01/12/2009
03/18/2009 04/09/2009 04/17/2009
04/17/2009 04/21/2009

38 SUPPLEMENT filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit USCIS Certification Documents, # 2 Exhibit Respondent Brief, # 3 Exhibit USCIS Brief and Request to Submit Supp, # 4 Exhibit USCIS Suppl Brief, # 5 Exhibit Respondent Request to Submit Suppl)(Westwater, Gisela) (Entered: 10/01/2008)
39 SUPPLEMENT filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit Supplemental Brief Submitted by Patel, # 2 Exhibit Supplemental Brief Submitted by Wang)(Westwater, Gisela) (Entered: 10/16/2008)
40 MINUTES OF IN CHAMBERS ORDER Vacating Defendants' Motion to Dismiss 30 held before Judge James V. Selna. In light of the stay, this Court orders the Defendant's Motions to Dismiss vacated and the 10/27/08 hearing off calendar. (db) (Entered: 10/22/2008)
41 STATUS REPORT of Related Cases Pending before BIA filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Westwater, Gisela) (Entered: 11/21/2008)
42 SUPPLEMENT filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit A − Amicus Request (Patel), # 2 Exhibit B − Amicus Request (Wang))(Westwater, Gisela) (Entered: 12/05/2008)
43 NOTICE of Related Case(s) filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. Related Case(s): 2:08−CV−05301 (Westwater, Gisela) (Entered: 12/05/2008)
44 SUPPLEMENT filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit A − Patel, # 2 Exhibit B − Wang)(Westwater, Gisela) (Entered: 12/10/2008)
45 SUPPLEMENT filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit A)(Westwater, Gisela) (Entered: 12/24/2008)
46 SUPPLEMENT filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit A − USCIS Request for Clarification, # 2 Exhibit B − Amicus in Patel, # 3 Exhibit C − Amicus in Wang, # 4 Exhibit D − USCIS Response to Amicus, # 5 Exhibit E − USCIS Response to Amicus − Wang)(Westwater, Gisela) (Entered: 01/12/2009)
47 ORDER Setting Scheduling Conference for 4/27/2009 10:30 AM before Judge James V. Selna. (Attachments: # 1 Exhibit) (kt) (Entered: 03/18/2009)
48 STATUS REPORT on Status Inquiry Filed by USCIS with BIA filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit A − Patel, # 2 Exhibit B − Wang)(Westwater, Gisela) (Entered: 04/09/2009)
49 NOTICE OF MOTION AND MOTION to Continue Scheduling Conference from April 27, 2009 to June 8, 2009 Re: Scheduling Order, Set Deadlines/Hearings 47 filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Proposed Order Proposed Order, # 2 Exhibit A − status inquiries)(Westwater, Gisela) (Entered: 04/17/2009)
50 STATUS REPORT Joint Report of Conference of Parties filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 04/17/2009)
51 ORDER by Judge James V. Selna: granting 49 Motion to Continue: IT IS ORDERED THAT this matter is reset for a scheduling conference on May 11,

Case: 8:08-cv-688 As of: 01/06/2013 05:41 AM PST 7 of 11

04/22/2009 05/11/2009
05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009
05/26/2009 06/01/2009 06/15/2009 06/15/2009
06/17/2009

2009, at 10:30 a.m. IT IS SO ORDERED. (rla) Modified on 4/21/2009 (rla). (Entered: 04/21/2009)
52 SUPPLEMENT filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit A − BIA Reply Letter)(Westwater, Gisela) (Entered: 04/22/2009)
65 MINUTES OF Scheduling Conference held before Judge James V. Selna. The Court directs counsel for plaintiffs to file a new notice of motion for their class certification motion not later than 05/15/2009 with a hearing date of 06/15/2009 at 1:30 p.m. Any opposition to the motion shall be filed by 05/26/2009 and any reply not later than 06/01/2009. The Court continues the Scheduling Conference to 6/15/2009 01:30 PM before Judge James V. Selna.Court Reporter: Sharon Seffens. (db) (Entered: 06/23/2009)
53 NOTICE OF MOTION AND MOTION to Certify Class Action filed by plaintiff Teresita G. Costello, Lorenzo P. Ong. Motion set for hearing on 6/15/2009 at 01:30 PM before Judge James V. Selna. (Miller, Nancy) (Entered: 05/15/2009)
54 MEMORANDUM in Support of MOTION to Certify Class Action 53 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 05/15/2009)
55 DECLARATION of Nancy E. Miller In Support of Plaintiff's Second Amended Motion for Class Certification MOTION to Certify Class Action 53 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Attachments: # 1 Exhibit Exhibits)(Miller, Nancy) (Entered: 05/15/2009)
56 DECLARATION of Jeremiah Johnson In Support of Plaintiff's Second Amended Motion for Class Certification MOTION to Certify Class Action 53 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 05/15/2009)
57 Motion to Amend Proposed Class Definition re MOTION to Certify Class Action 53 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 05/15/2009)
58 Certificate OF SERVICE filed by Plaintiff Teresita G. Costello, Lorenzo P. Ong, re Motion Related Document 57 , Memorandum in Support of Motion 54 , Declaration (Motion related), Declaration (Motion related) 55 , MOTION to Certify Class Action 53 , Declaration (Motion related) 56 served on 05/15/2009. (Miller, Nancy) (Entered: 05/15/2009)
59 MEMORANDUM in Opposition to MOTION to Certify Class Action 53 filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Westwater, Gisela) (Entered: 05/26/2009)
60 REPLY Support MOTION to Certify Class Action 53 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 06/01/2009)
63 MINUTES re Plaintiffs' Motion for Certify of Class Action 53 held before Judge James V. Selna. Counsel make their arguments. The Court takes the motion under submission. Court Reporter: Sharon Seffens. (db) (Entered: 06/18/2009)
64 MINUTES OF Scheduling Conference held before Judge James V. Selna. The Court sets the case management dates with the agreement of counsel as follows: Discovery cut−off 12/1/2009. Bench Trial set for 3/16/2010 08:30 AM before Judge James V. Selna. Final Pretrial Conference set for 3/1/2010 11:00 AM before Judge James V. Selna. (See Order for further details)Court Reporter: Sharon Seffens. (db) (Entered: 06/18/2009)
61 MINUTES OF IN CHAMBERS ORDER BY Judge James V. Selna, re Additional Briefing: The Court currently has under submission plaintiffs' motion for class certification. The Court invites the parties to submit a brief of no more than five pages discussing the impact of Matter of Wang, 25 I &N Dec. 28 (BIA 2009), decided June 16, 2009, on the motion (rla) (Entered: 06/17/2009)

Case: 8:08-cv-688 As of: 01/06/2013 05:41 AM PST 8 of 11

06/18/2009 06/25/2009 07/01/2009 07/01/2009 07/01/2009 07/07/2009 07/10/2009 07/10/2009 07/10/2009 07/16/2009
09/04/2009 09/25/2009 09/29/2009

62 SUPPLEMENT filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit A − Matter of Wang)(Westwater, Gisela) (Entered: 06/18/2009)
66 Briefing Schedule filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez (Westwater, Gisela) (Entered: 06/25/2009)
67 NOTICE OF MOTION AND MOTION to File Amicus Brief filed by Amicus American Immigration Law Foundation. (Attachments: # 1 Proposed Order Granting Leave to File Amicus Curiae Brief, # 2 Brief of Amicus Curiae)(Prokop, Amy) (Entered: 07/01/2009)
68 SUPPLEMENT to MOTION to Certify Class Action 53 Opposing Certification filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit A − Briefing Schedule in Related Cases, # 2 Exhibit B − Table of Immigration Classifications)(Westwater, Gisela) (Entered: 07/01/2009)
69 SUPPLEMENT to MOTION to Certify Class Action 53 Brief Regarding Matter of Wang filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 07/01/2009)
70 OPPOSITION Opposition re: MOTION to File Amicus Brief 67 filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Westwater, Gisela) (Entered: 07/07/2009)
71 SUPPLEMENT to MOTION to File Amicus Brief 67 filed by Amicus American Immigration Law Foundation. (Prokop, Amy) (Entered: 07/10/2009)
72 REPLY To Defendants' Opposition to Amici Curiae Motion For Leave to File Brief filed by Plaintiff Teresita G. Costello. (Miller, Nancy) (Entered: 07/10/2009)
73 MINUTES (IN CHAMBERS) ORDER by Judge James V. Selna: granting 67 Motion to File Amicus Brief. The Court grants the motion of the American Immigration Law Foundation and American Immigration Lawyers Association to appear as amici curiae (Amici), and orders Amicis brief on the class certification motion filed. (ade) (Entered: 07/13/2009)
74 ORDER by Judge James V. Selna: ORDER GRANTING MOTION TO CERTIFY CLASS 53 : (See document for details.) For the foregoing reasons, the Court GRANTS Plaintiffs motion for class certification subject to certain revisions. The class is defined as: Aliens who became lawful permanent residents as primary beneficiaries of third− and fourthpreference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second−preference petitions on behalf of their aged−out unmarried sons and daughters, for whom Defendants have not granted automatic conversion or the retention of priority dates pursuant to § 203(h)(3). The Court recognizes that the BIA has weighed in on this matter, but the underlying legal question is still subject to debate. It is not necessary for the Court to resolve the question at this time; for purposes of class certification, it is sufficient that the question is common to the class a whole. The Court appoints the law firm of Reeves &Associates as lead class counsel. IT IS SO ORDERED. (rla) (Entered: 07/16/2009)
75 ANSWER to Complaint − (Discovery) 1 filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez.(Westwater, Gisela) (Entered: 09/04/2009)
76 Stipulated Briefing Schedule filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez (Westwater, Gisela) (Entered: 09/25/2009)
77 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Incorrect event selected, correct event is Hearing RE: Miscellaneous Document 76 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other

Case: 8:08-cv-688 As of: 01/06/2013 05:41 AM PST 9 of 11

10/01/2009
10/05/2009 10/05/2009 10/09/2009 10/09/2009
10/12/2009
10/26/2009 10/26/2009
10/26/2009 11/02/2009 11/02/2009 11/02/2009

action as the court deems appropriate. (rrp) (Entered: 09/29/2009)
78 NOTICE OF MOTION AND MOTION for Summary Judgment as to Complaint filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. Motion set for hearing on 11/9/2009 at 01:30 PM before Judge James V. Selna. (Attachments: # 1 Exhibit Proposed Facts and Law, # 2 Proposed Order Granting Judgment for Defendants)(Westwater, Gisela) (Entered: 10/01/2009)
79 STIPULATED BRIEFING SCHEDULE AND HEARING DATE re MOTION for Summary Judgment as to Complaint 78 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 10/05/2009)
80 AMENDED STIPULATED BRIEFING SCHEDULE AND HEARING DATE re MOTION for Summary Judgment as to Complaint 78 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 10/05/2009)
81 EXHIBIT Filed filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit A − Part I, # 2 Exhibit A − Part II, # 3 Exhibit B − Part I, # 4 Exhibit B − Part II, # 5 Exhibit B − Part III, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E)(Westwater, Gisela) (Entered: 10/09/2009)
82 NOTICE OF MOTION AND Cross MOTION for Summary Judgment as to The Case filed by PLAINTIFF Teresita G. Costello. Motion set for hearing on 11/9/2009 at 01:30 PM before Judge James V. Selna. (Attachments: # 1 Supplement Memorandum of Points &Authorities, # 2 Supplement Statement of Uncontroverted Facts &Law, # 3 Proposed Order Proposed Order)(Miller, Nancy) (Entered: 10/09/2009)
83 NOTICE OF MOTION AND MOTION to Stay pending Resolution of cross motions for summary judgment (Stay Discovery) filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. Motion set for hearing on 11/9/2009 at 01:30 PM before Judge James V. Selna. (Attachments: # 1 Exhibit A, # 2 Proposed Order Staying Discovery)(Westwater, Gisela) (Entered: 10/12/2009)
84 MEMORANDUM in Opposition to Cross MOTION for Summary Judgment as to The Case 82 filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Westwater, Gisela) (Entered: 10/26/2009)
85 MEMORANDUM in Opposition to MOTION to Stay pending Resolution of cross motions for summary judgment (Stay Discovery) MOTION to Stay pending Resolution of cross motions for summary judgment (Stay Discovery) 83 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Attachments: # 1 Declaration Declaration of Nancy E. Miller, # 2 Exhibit Defendants' Response to Plaintiff's Discovery Requests)(Miller, Nancy) (Entered: 10/26/2009)
86 MEMORANDUM in Opposition to MOTION for Summary Judgment as to Complaint 78 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Attachments: # 1 Statement of Uncontroverted Facts and Conclusions of Law)(Miller, Nancy) (Entered: 10/26/2009)
87 EXHIBIT Filed filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Westwater, Gisela) (Entered: 11/02/2009)
88 REPLY in support of MOTION for Summary Judgment as to Complaint 78 filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and Immgration Services, Emilio T. Gonzalez. (Westwater, Gisela) (Entered: 11/02/2009)
89 REPLY in support of MOTION to Stay pending Resolution of cross motions for summary judgment (Stay Discovery) MOTION to Stay pending Resolution of cross motions for summary judgment (Stay Discovery) 83 filed by Defendants David Tyler, Christina Poulos, Michael Chertoff, United States Citizenship and

Case: 8:08-cv-688 As of: 01/06/2013 05:41 AM PST 10 of 11

11/02/2009 11/09/2009
11/10/2009 11/18/2009 11/18/2009 11/18/2009 11/19/2009 04/20/2012
04/20/2012
04/27/2012
05/23/2012

Immgration Services, Emilio T. Gonzalez. (Attachments: # 1 Declaration of Gisela A. Westwater)(Westwater, Gisela) (Entered: 11/02/2009)
90 REPLY IN SUPPORT Cross MOTION for Summary Judgment as to The Case 82 filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. (Miller, Nancy) (Entered: 11/02/2009)
91 MINUTES re Defendant's Motion for Summary Judgment as to Complaint 78 ; Plaintiff's Cross Motion for Summary Judgment 82 ; and Defendant's Motion to Stay Pending Resolution of Cross Motions for Summary Judgment 83 held before Judge James V. Selna. The Courts tentative ruling is issued. Counsel make their arguments. The Court takes the above referenced motions under submission. Court Reporter: Bridget Montero. (db) (Entered: 11/10/2009)
92 MINUTES (IN CHAMBERS) ORDER re Cross−Motions for Summary Judgment and Motion to Stay Discovery 78 82 and 83 by Judge James V. Selna. For the foregoing reasons, the Court DENIES Plaintiffs motion 82 and GRANTS Defendants motion 778 . Defendants motion to stay discovery is DENIED as moot 83 . (See Order for details) (db) (Entered: 11/12/2009)
93 NOTICE OF APPEAL to the 9th CCA filed by Plaintiffs Teresita G. Costello, Lorenzo P. Ong. Appeal of Order on Motion for Summary Judgment,, Order on Motion to Stay Order (other),,, Order on Motion to Stay Order (other) 92 . (Filing fee $455, receipt number 09730000000006171073.) (Miller, Nancy) (Entered: 11/18/2009)
94 REPRESENTATION STATEMENT re Notice of Appeal to 9th Circuit Court of Appeals, 93 . (Miller, Nancy) (Entered: 11/18/2009)
95 ORDER by Judge James V. Selna, GRANTING MOTION for Summary Judgment as to Complaint 78 . (Made JS−6. Case Terminated.) (ade) (Entered: 11/19/2009)
96 NOTIFICATION by Circuit Court of Appellate Docket Number 09−56846, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals, 93 as to Plaintiff Teresita G. Costello, Lorenzo P. Ong. (dmap) (Entered: 11/20/2009)
97 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 93 filed by Lorenzo P. Ong, Teresita G. Costello, CCA # 09−56846. En banc oral argument will take place during the week of 6/18/2012, in Pasadena, California. The date and time will be determined by separate order. For further information or special requests regarding scheduling, please contact Deputy Clerk. Within 7 days from the date of this Order, the parties shall forward to the Clerk of Court 25 additional paper copies of the original briefs including amicus briefs) and excerpts of record. (See attached Order for further details). The Order Order received in this district on 4/20/2012. (jp) (Entered: 04/25/2012)
98 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 93 filed by Lorenzo P. Ong, Teresita G. Costello CCA # 09−56846Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35−3. This three−judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. Order received in this district on 4/20/2012. (dmap) (Entered: 04/25/2012)
99 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 93 filed by Lorenzo P. Ong, Teresita G. Costello CCA # 09−56846. Oral argument in this en bane case will be held at 10:00 a.m. on Tuesday, June 19,2012, in Courtroom Three of the Richard H. Chambers Courthouse, located at 125 South Grand Avenue in Pasadena, California 91105. Order received in this district on 4/27/2012. (dmap) (Entered: 05/02/2012)
100 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 93 filed by Lorenzo P. Ong, Teresita G. Costello, CCA # 09−56846. The motions of the National Immigrant Justice Center and the American Immigration Council; the American Immigration Lawyers Association and the Catholic Legal Immigration Network, Inc.; and Active Dreams LLC for leave to file amicus briefs are granted. The Clerk shall file the briefs submitted with the motions. See the order for the rest of the details. Order received in this district on 5/23/2012.

Case: 8:08-cv-688 As of: 01/06/2013 05:41 AM PST 11 of 11

06/11/2012 11/16/2012 12/19/2012

(Entered: 05/24/2012)
101 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 93 filed by Lorenzo P. Ong, Teresita G. Costello CCA # 09−56846. Appellees' motion for leave to file a brief and exhibits responding to amici is granted. See the order for the rest of the details. Order received in this district on 6/11/2012. (dmap) (Entered: 06/12/2012)
102 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 93 filed by Lorenzo P. Ong, Teresita G. Costello CCA # 09−56846. The unopposed motion to stay the mandate pending filing of a petition for writ of certiorari is granted. The mandate is stayed until December 26, 2012. If a petition for certiorari is filed, the stay shall continue until final disposition by the U.s.Supreme Court. Order received in this district on 11/16/2012. (dmap) (Entered: 11/19/2012)
103 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 93 CCA # 09−56846. The unopposed motion to stay the mandate pending filing of a petition for writ of certiorari is GRANTED (Doc. 101). The mandate is stayed until 1/25/2013. If a petition for certiorari is filed, the stay shall continue until final disposition by the U.S. Supreme Court. Order received in this district on 12/19/12. Order received in this district on 12/19/12. (car) (Entered: 12/20/2012)

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ROSALINA CUELLAR DE OSORIO;



ELIZABETH MAGPANTAY; EVELYN Y.

SANTOS; MARIA ELOISA LIWAG;

NORMA UY; RUTH UY,

Plaintiffs-Appellants,

v.

ALEJANDRO MAYORKAS, Director,



United States Citzenship and

Immigration Services; J ANET

NAPOLITANO, Secretary of the

Department of Homeland Security,

HILLARY RODHAM CLINTON,

Secretary of State,

 Defendants-Appellees.

No. 09-56786
D.C. No. 5:08-cv-00840-
JVS-SH

11811

11812

DE OSORIO v. M AYORKAS

 TERESITA G. C OSTELO; 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; L YNNE

SKEIRIK, Director, National Visa

Center; CHRISTINA POULOS, Acting

Director, California Service

Center, United States Citizenship

and Immigration Services; H ILLARY

RODHAM CLINTON, Secretary of

State,

 Defendants-Appellees.

No. 09-56846
D.C. No. 8:08-cv-00688-
JVS-SH
OPINION

Appeal from the United States District Court for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted June 19, 2012—Pasadena, California
Filed September 26, 2012
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.

DE OSORIO v. M AYORKAS
Opinion by Judge Murguia; Dissent by Judge M. Smith

11813

11814

DE OSORIO v. M AYORKAS

COUNSEL
Nancy Ellen Miller (argued), Reeves & Associates, APLC, Pasadena, California; Amy Prokop and Carl Shusterman

DE OSORIO v. M AYORKAS

11815

(argued), Law Offices of Carl M. Shusterman, Los Angeles, California, for plaintiff-appellant Rosalina Cuellar de Osorio.

Amy Prokop and Carl Shusterman, Law Offices of Carl M. Shusterman, Los Angeles, California, 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, California for plaintiffsappellants 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, California, for amici curiae American Immigration Council and National Immigrant Justice Center.

Deborah Susan Smith, Law Office of Deborah S. Smith, Helena, Montana, for amici curiae American Immigration Lawyers Association and Catholic Legal Immigration Network, Inc.

Thomas Kirk Ragland, Benach Ragland LLP, Washington, D.C., for amicus curiae Active Dreams LLC.

11816

DE OSORIO v. M AYORKAS 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”), 8 U.S.C. § 1153(h). The CSPA provides, among other things, that when certain aged-out aliens apply for visas under a new category for adults, they may retain the filing date of the visa petition for which they were listed as derivative beneficiaries when they were children. This ensures that visas are available quickly, rather than requiring the now-adult aliens to wait many more years in a new visa line.

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.

DE OSORIO v. M AYORKAS I. Family-based immigration overview

11817

We begin with an overview of family-based immigration.

Family-sponsored immigration allows U.S. citizens and law-

ful 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. 8

U.S.C. §§ 1151(c), 1152(a)(2). The INA also establishes pref-

erence categories based on the relationship between citizens

or LPRs and their alien relatives, and limits the number of

family-sponsored immigrant visas that can be granted to

members of each preference category. Id. § 1153(a). Unlike

other types of family-sponsored visa applicants, children,

spouses, and parents (i.e. “immediate relatives”) of U.S. citi-

zens are not subject to the annual visa limits.

Id.

§ 1151(b)(2)(A)(i).

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. § 1153(a).

After a U.S. citizen or LPR files a visa petition on behalf of a relative, USCIS determines if a qualifying relationship

11818

DE OSORIO v. M AYORKAS

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. 8 U.S.C. § 1153(d) (“A spouse or child . . . shall . . . be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”). The INA defines a “child” as an unmarried person under the age of twenty-one. 8 U.S.C. § 1101(b)(1). The primary beneficiary’s son or daughter can only receive a derivative visa if he or she is under twenty-one when the parent’s priority date becomes current. Often children who qualify for derivative visas at the time a petition is filed on their parent’s behalf are over the age of twenty-one by the time their parent receives the visa, and therefore may not immigrate to the United States with their parent. This is referred to as “aging out” of visa eligibility. Aging out also affects children who are the primary beneficiaries of F2A petitions, as they are no longer eligible for an F2A visa (for spouses and children of LPRs) once they turn twenty-one. Because some delays are many years long, children may age out even if they were very young when a petition was filed on their parent’s behalf.

DE OSORIO v. M AYORKAS II. The Child Status Protection Act

11819

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 8 U.S.C. § 1153(h).1 Subsection (h) addresses two sources of

1The CSPA states in relevant part:
(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)

11820

DE OSORIO v. M AYORKAS

delay that can cause a beneficiary to age out of child status: (1) USCIS processing delays and (2) the wait times between USCIS’s approval of a visa petition and when a visa becomes available. Three parts of subsection (h) are relevant to our discussion.

The first paragraph of subsection (h) addresses the more

minor delay that occurs while USCIS processes a visa appli-

cation. 8 U.S.C. § 1153(h)(1). Subsection (h)(1) establishes

the method to determine an alien’s age “[f]or purposes of sub-

sections (a)(2)(A) and (d) [of § 1153],” which respectively

address F2A visas (for the children of LPRs),

id.

§ 1153(a)(2)(A), and derivative visas (for the children of pri-

mary beneficiaries), id. § 1153(d). Subsection (h)(1) provides

that for purposes of determining if a visa applicant qualifies

as a child, the alien’s “age” is his age on the date the visa

becomes available minus “the number of days in the period

during which the applicable petition ” was pending after being

filed. Id. § 1153(h)(1). Subsection (h)(1) thus ensures that an

alien does not lose “child” status due to administrative delays

in the processing of his parent’s visa petition.

Subsection (h)(2) defines the kinds of visa petitions to which the age-reduction formula in subsection (h)(1) applies. Id. § 1153(h)(2). Subsection (h)(2)(A) identifies F2A petitions, which are for children of LPRs. Id. § 1153(h)(2)(A). Subsection (h)(2)(B) identifies all other categories of visas for which a child may be a derivative beneficiary (family,

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.

DE OSORIO v. M AYORKAS
employment, and diversity-based visa petitions). § 1153(h)(2)(B).

11821 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. § 1153(h)(3). In other words, subsection (h)(3) requires that when aliens age out of child status for purposes of their original petition, their applications be automatically converted to the new appropriate category for adults. Additionally, it enables such aliens to retain the priority date assigned to their original petition. The effect of this older priority date is that the beneficiary is placed at or near the front of the visa line, and a visa would likely be available immediately or soon. Without this automatic conversion and priority date retention, the alien will have to go to the back of the line for the new category, and might wait many more years for a visa.

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 (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

11822

DE OSORIO v. M AYORKAS

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 8 C.F.R. § 204.2(i)(3), if an LPR petitioner becomes a citizen, his adult son or daughter’s visa petition automatically converts from an F2B petition (for adult sons and daughters of LPRs) to an F1 petition (for adult sons and daughters of citizens), and retains its original priority date. In this case, the identity of the petitioner remains the same. Additionally, 8 C.F.R. § 204.2(a)(4) allows an aged-out derivative beneficiary of an F2A spousal petition to retain his priority date as long as the original petitioner (his parent) submits an F2B visa petition on his behalf. Again, the petitioner remains the same. Wang, 25 I. & N. Dec. at 35. The BIA assumed that when Congress enacted subsection (h)(3), it understood past usage of these regulatory terms. Id.

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.

DE OSORIO v. M AYORKAS

11823

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 petitions. This is because these aged-out beneficiaries may become primary beneficiaries of an F2B petition filed by the same petitioner.

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,

11824

DE OSORIO v. M AYORKAS

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 quotation

DE OSORIO v. M AYORKAS

11825

marks omitted). The Fifth Circuit thus declined to defer to the BIA’s interpretation of subsection (h)(3), instead holding that automatic conversion is available for derivative beneficiaries of all family petitions, even when this necessitates a change in the identity of the petitioner.

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 (1984). INS v. AguirreAguirre, 526 U.S. 415, 424 (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

11826

DE OSORIO v. M AYORKAS

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. 2010).

[1] 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.” 8 U.S.C. § 1153(h)(3).

[2] 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). 8 U.S.C. § 1153(h)(1). In turn, subsection (h)(2) identifies both F2A beneficiaries (children of LPRs) and child derivative beneficiaries of all other visa categories. Id. § 1153(h)(2).

[3] However, we do not assess subsection (h)(3) in a vacuum, but rather consider the text in its statutory context. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). The effect of subsection (h)(3) is explicitly contingent upon the operation of subsection (h)(1). The first words of subsection (h)(3) read “[i]f the age of an alien is determined under [subsection (h)(1)] to be 21 years of age or older, ” then the alien’s petition will be automatically converted to the

DE OSORIO v. M AYORKAS

11827

appropriate category and he will retain the original priority date. 8 U.S.C. § 1153(h)(3). By subsection (h)(3)’s own terms, then, an alien is entitled to automatic conversion and priority date retention under subsection (h)(3) only if he is determined to be over twenty-one after applying the reduction calculation in subsection (h)(1). Id.; see also Khalid, 655 F.3d at 370 ( “The benefits of automatic conversion and priority date retention are explicitly conditioned on a particular outcome from the formula in (h)(1) . . . . ”).

[4] 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 twentyone. 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 8 U.S.C. § 1153(a)(2)(A)) and derivative visas for the children of primary beneficiaries of all visa categories (established by 8 U.S.C. § 1153(d)). It is undisputed that subsection (h)(1) applies to all derivative beneficiaries, and to accord a different meaning to the phrase as used in subsection (h)(3) violates the “presumption that a given term is used to mean the same thing throughout a statute. ” Brown v. Gardner, 513 U.S. 115, 118 (1994). We therefore read Congress’s repeated references to “subsections (a)(2)(A) and (d)” as expressions of its intent to extend automatic conversion and priority date retention to all family-sponsored derivative beneficiaries.

11828

DE OSORIO v. M AYORKAS

The existence of a circuit split does not itself establish ambiguity in the text of the CSPA. See, e.g., Roberts v. SeaLand Servs., Inc. , 132 S. Ct. 1350 (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. , 132 S. Ct. 1702 (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 (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 (1990)). Like the Fifth Circuit, we recognize that the Second Circuit concluded that a petition cannot be automatically converted where a change in petitioner is required, and we respectfully disagree. See Khalid, 655 F.3d at 373 (citing Li, 654 F.3d at 383). The Second Circuit’s decision not to consider the interrelatedness of sections (h)(1), (h)(2) and (h)(3) does not undermine our conclusion that the statute, read as a whole, unambiguously answers the question before us.

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 agedout 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 par-

DE OSORIO v. M AYORKAS

11829

ent 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

[5] 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 rele-

2For example, U.S. citizen Adele files an F3 petition on behalf of her adult son Aron, and includes Aron’s daughter Naira as a derivative beneficiary. By the time Aron receives a visa, Naira is over twenty-one. Adele can no longer petition on Naira’s behalf, as there is no qualifying relationship between a grandmother and her adult granddaughter. Once Aron becomes an LPR, Aron may file an F2B petition for his daughter Naira.
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.
The question here is whether the original F3 or F4 petition should be automatically converted to an F2B petition, and if the F2B petition retains the priority date of the F3 or F4 petition.

11830

DE OSORIO v. M AYORKAS

vant. 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 (1991) ( “When we find the terms of a statute unambiguous, judicial inquiry is complete except in rare and exceptional circumstances.”). Plainly, a change in policy announced by the statute’s plain language cannot be impracticable just because it is a change or because it does not specify how exactly that change is to be implemented. Id. A statute that requires an agency to change its existing practices does not necessarily “lead to absurd or impracticable consequences.” Seattle-First Nat’l Bank v. Conaway, 98 F.3d 1195, 1197 (9th Cir. 1996) (internal quotation marks omitted). We have no doubt that USCIS can develop a process for the F3 and F4 petitions of aged-out derivative beneficiaries to be automatically converted to F2B petitions, with new petitioners and new beneficiaries. The plain meaning of the CSPA controls.

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.” 8 U.S.C. § 1153(h)(3). This reference to an “original petition” suggests the possibility of a new petition, obtained either by editing the original petition or “automatically” requesting a new petition that identifies a new petitioner and primary beneficiary .3

3The “original petition” clause also contradicts the dissent’s assertion that § 1153(h)(3) is ambiguous because an F2B petition for an aged-out F3 or F4 derivative beneficiary could entail a new petition and petitioner. Dissent at 11837-38. The CSPA provides that a petition is to be automatically converted and is to “retain the original priority date issued upon receipt of the original petition. ” 8 U.S.C. § 1153(h)(3). Therefore, notwithstanding the use of the word “conversion” in other parts of the INA, the CSPA expressly recognizes the possibility of automatic conversion of a subsequent petition. A new petition is not a “problem” in the plain meaning of the statute that renders the language ambiguous. See Dissent at 11839.

DE OSORIO v. M AYORKAS

11831

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.

[6] 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 of the CSPA. But these unresolved procedural questions do not create ambiguity in the text or result in a visa system “ ‘so bizarre that Congress could not have intended’ it. ” Dep’t of Revenue of Or. v. ACF Indus., Inc. , 510 U.S. 332, 347 (1994) (quoting Demarest, 498 U.S. at 191). Therefore, the plain lan-

4For a derivative beneficiary, the benefits of § 1153(h) are triggered on “the date on which an immigrant visa number became available for the alien’s parent.” 8 U.S.C. § 1153(h)(1)(A). Some time will elapse between the date a visa is available to the parent and the date the visa is approved (entitling the parent may file an F2B petition for the adult son or daughter).

11832

DE OSORIO v. M AYORKAS

guage of the CSPA is not impracticable. It is the agency’s task to resolve these complications, not the court’s.

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 8 C.F.R. § 204.2(a)(4), which pre-dated the CSPA, an LPR is entitled to file an F2B petition on behalf of an aged-out son or daughter and retain the original priority date from the LPR’s original F2A petition. For such aliens, the only benefit of the CSPA over the current regulatory rule under the Government’s reading is automatic conversion, as the regulation requires that the LPR parent file a new F2B petition on behalf of his or her son or daughter to qualify for priority date retention. Thus, under the Government’s interpretation, subsection (h)(3)’s only effects are to extend automatic conversion and priority date retention to aged-out primary beneficiaries of F2A visa petitions, and automatic conversion to F2A derivative beneficiaries. Like the Fifth Circuit, “[w]e are skeptical that this meager benefit was all Congress meant to accomplish through subsection (h)(3), especially where nothing in the statute singles out derivative beneficiaries of secondpreference petitions for special treatment. ” Khalid, 655 F.3d at 374.

Additionally, 8 C.F.R. § 204.2(a)(4) explicitly requires that to qualify for priority date retention, the identity of the petitioner must remain the same, while the CSPA contains no such requirement. If Congress intended to limit automatic conversion to only subsequent petitions in which the petitioner remains the same, the regulations provided a clear example of the language it could have used. Congress’s decision not to track the regulatory language further suggests that the CSPA is not merely a codification of regulatory practice. See id. at 374 n.9 (citing 8 C.F.R. § 204.2(a)(4)).

DE OSORIO v. M AYORKAS

11833

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 agedout 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 , 132 S. Ct. 2566, 2579 (2012).

[7] 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 (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 marks omitted)). Automatic conversion and priority date retention are available to all visa petitions identified in subsection (h)(2). Because “the intent of Congress is clear, that is the end of the matter, ” Chevron, 467 U.S. at 842, and we do not consider past agency practice or legislative history. We join the Fifth Circuit in “giv[ing] effect to the unambiguously expressed intent of Congress. ” Id. at 843.

[8] 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 .

11834

DE OSORIO v. M AYORKAS

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, 8 U.S.C. § 1153(h), “is far from a model of clarity. ” Robles-Tenorio v. Holder, 444 F. App’x 646, 649 (4th Cir. 2011). The Second Circuit recently held that § 1153(h)(3) means the exact opposite of what the majority holds. See Li v. Renaud , 654 F.3d 376, 382-83 (2d Cir. 2011). Other courts, including the original three-judge panel in this case, concluded that § 1153(h)(3) is ambiguous, and that the Board of Immigration Appeals’s (BIA) decision is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See, e.g., Cuellar de Osorio v. Mayorkas , 656 F.3d 954, 965-66 (9th Cir. 2011), vacated, 677 F.3d 921 (9th Cir. 2012); Zhong v. Novak , No. 08-4597, 2010 WL 3302962, at *7-9 (D.N.J. Aug. 18, 2010); Co v. U.S. Citizenship & Immigration Serv., No. CV 09-776-MO, 2010 WL 1742538, at *4 (D. Or. Apr. 23, 2010); cf. Robles-Tenorio, 444 F. App’x at 649 (“It is unclear whether the text and structure of (h)(1) and (h)(3) can be reconciled in any coherent or reasonable fashion.”). If the meaning of § 1153(h)(3) were truly as clear and unmistakable as the majority holds, it certainly has eluded more than its share of reasonable jurists. 1

1I 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 (1992); see also Smiley v. Citibank (S.D.), N.A. , 517 U.S. 735, 739 (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

DE OSORIO v. M AYORKAS

11835

I would hold that 8 U.S.C. § 1153(h)(3) is ambiguous because it contains language simultaneously including and excluding derivative beneficiaries of F3 and F4 visa petitions from the benefits of the Child Status Protection Act (the CSPA), 8 U.S.C. § 1153(h). Because Congress did not “speak[ ] with the precision necessary to say definitively whether [the statute] applies to ” F3 and F4 derivative beneficiaries, I would proceed to Chevron step two. Mayo Found. for Med. Educ. & Research v. United States , 131 S. Ct. 704, 711 (2011) (first alteration added, second alteration in original, and citation omitted). At step two, I would defer to the BIA’s interpretation of § 1153(h)(3) in Matter of Wang, 25 I. & N. Dec. 28 (2009). Because the majority holds otherwise, I respectfully dissent.

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 (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).

that language is used, and the broader context of the statute as a whole. ” Robinson v. Shell Oil Co. , 519 U.S. 337, 341 (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 , 130 S. Ct. 3498 (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 (2005), and Rosmer v. Pfizer Inc., 263 F.3d 110, 118 (4th Cir. 2001) (same).

11836

DE OSORIO v. M AYORKAS

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. ” 8 U.S.C. § 1153(h)(3). The crux of the appeal is whether F3 and F4 derivative beneficiaries are entitled to the benefits provided in this provision.

Many reasonable constructions of § 1153(h)(3) are possible. One could reasonably read § 1153(h)(3), as the majority does, to include F3 and F4 derivative beneficiaries because this provision references the age-calculation formula in § 1153(h)(1), which covers derivative beneficiaries of F3 and F4 petitions through § 1153(h)(2). But three limitations in § 1153(h)(3) complicate matters: (1) that a petition must be converted “to the appropriate category; ” (2) that only “the alien’s petition” may be converted; and (3) that the conversion process has to occur “automatically.” See 8 U.S.C. § 1153(h)(3). By ignoring statutory language contrary to its interpretation before finding the plain meaning clear, the majority not only misconstrues its role at Chevron step one, but it also runs afoul of Supreme Court precedent controlling how courts are supposed to interpret statutes. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife , 551 U.S. 644, 666 (2007) (“In making the threshold determination under Chevron, ‘a reviewing court should not confine itself to examining a particular statutory provision in isolation.’ ”) (citation omit-

DE OSORIO v. M AYORKAS

11837

ted); FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 133 (2000) (“It is a ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’ ”) (citation omitted).

One could reasonably construe § 1153(h)(3) as excluding aged-out F3 and F4 derivative beneficiaries. This provision requires conversion “to the appropriate category. ” 8 U.S.C. § 1153(h)(3). Section 1153(a) identifies the only categories for which a family-preference petition may be filed: (1) “[u]nmarried sons and daughters of citizens; (2) “[s]pouses and unmarried sons and unmarried daughters of permanent resident aliens;” (3) “[m]arried sons and married daughters of citizens;” and (4) “[b]rothers and sisters of citizens. ” Id. § 1153(a)(1)-(4). The children eligible to enter as derivative beneficiaries of their parents’ visa petitions are the grandchildren, nieces, and nephews of United States citizens. When those children turn 21 and are no longer eligible to enter with their parents, there is no section 1153(a) category into which they fit on their own. This led the Second Circuit to conclude that Congress did not intend to provide them the benefits of automatic conversion and retention of their original priority dates: “Because there is no family preference category for grandchildren of [lawful permanent residents], and Cen has not specified a category that would be appropriate, Cen cannot be converted to an ‘appropriate category’ with respect to his grandfather’s petition. Therefore, Cen is not eligible under Section 1153(h)(3) to retain the 1994 priority date of his grandfather’s petition.” Li, 654 F.3d at 385 (emphasis added). We should do the same.

Second, § 1153(h)(3) requires “the alien’s petition ” to be automatically converted. 8 U.S.C. § 1153(h)(3). As the majority concedes, conversion of F3 and F4 derivative beneficiaries to the F2B category requires “a subsequent petition ” and “a new petitioner” because “the identity of the petitioner changes from the beneficiary’s grandparent or aunt or uncle to his par-

11838

DE OSORIO v. M AYORKAS

ent.” See id. § 1153(a)(2)(B). But “a subsequent petition ” is not the alien’s original petition. Because the alien’s original petition cannot be converted, as § 1153(h)(3) requires, and, instead, an entirely new petition must be filed, one could also reasonably conclude that Congress did not intend to cover F3 and F4 derivative beneficiaries in § 1153(h)(3).2 See Li, 654 F.3d at 384 (implying that § 1153(h)(3) does not apply where “a different family-sponsored petition by a different petitioner” is required).

Third, § 1153(h)(3) mandates that the conversion process occur “automatically.” 8 U.S.C. § 1153(h)(3). The majority correctly recognizes that “[w]hen the parents of aged-out derivative beneficiaries of F3 or F4 petitioners receive their visas and attain [lawful permanent resident] status, they can file F2B petitions naming their now-adult sons and daughters as primary beneficiaries. ” See id. § 1153(a)(2)(B). An action cannot be “automatic” if it depends on what a person can or may do, not what he or she definitely will do. A process is “automatic” if it is “self-acting or self-regulating, ” or occurs “without thought or conscious intention. ” Webster’s Third New International Dictionary 148 (2002). As the original panel in this case concluded, “The phrase ‘the alien’s petition shall automatically be converted to the appropriate category,’ 8 U.S.C. § 1153(h)(3), suggests that the same petition, filed by the same petitioner for the same beneficiary, converts to a new category. This understanding comports with the ordinary meaning of the word ‘automatic,’ which implies that the conversion should happen without any outside input, such as a new petitioner.” Cuellar de Osorio v. Mayorkas , 656 F.3d 954, 962 (9th Cir. 2011), withdrawn by 677 F.3d 921, 921-22 (9th Cir. 2012).

2Contrary 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).

DE OSORIO v. M AYORKAS

11839

The majority’s reading of § 1153(h)(3) thus strains the ordinary meaning of the word “automatically,” essentially reading this limitation on which petitions may be converted out of the statute. This is not a sound approach to statutory interpretation. See Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 175 (2009) ( “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.”) (citation omitted); 62 Cases, More or Less, Each Containing Six Jars of Jam v. United States , 340 U.S. 593, 596 (1951) ( “Congress expresses its purpose by words. It is for us to ascertain—neither to add nor to subtract, neither to delete nor to distort. ”).

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 § 1153(h)(3) is ambiguous. The majority disregards the lack of any appropriate category to which derivative beneficiaries of F3 and F4 petitions can be converted before finding the plain language clear. In doing so, the majority overlooks highly relevant evidence from the overall statutory scheme that Congress did not intend for these individuals to receive the benefits identified in § 1153(h)(3). See Brown & Williamson , 529 U.S. at 132-33 (stating that “a reviewing court should not confine itself to examining a particular statutory provision in isolation ” and should consider how statutory language fits into “the overall statutory scheme”) (citation omitted). It forgets that “[i]n ascertaining the plain meaning of the statute, the court must look to . . . the language and design of the statute as a whole. ” K Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291 (1988).

Section 1153(h)(3) is also unclear about whether aged-out derivative beneficiaries are entitled to retain their original pri-

11840

DE OSORIO v. M AYORKAS

ority dates. Importantly, § 1153(h)(3) ties automatic conversion and retention of an original priority date together by specifying that an eligible 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.” 8 U.S.C. § 1153(h)(3) (emphasis added). “[T]he Supreme Court has said that ‘and’ presumptively should be read in its ‘ordinary’ conjunctive sense unless the ‘context’ in which the term is used or ‘other provisions of the statute’ dictate a contrary interpretation. ” OfficeMax, Inc. v. United States, 428 F.3d 583, 589 (6th Cir. 2005) (listing cases); see also Bruesewitz v. Wyeth LLC , 131 S. Ct. 1068, 1078 (2011) (noting that “linking independent ideas is the job of a coordinating junction like ‘and’ ”). Nothing in the statute suggests that Congress meant for the word “and” to be read as “or.” Since the word “and” ties the two benefits together, the ambiguity about the availability of automatic conversion to F3 and F4 derivative beneficiaries also renders the statute ambiguous as to whether such beneficiaries are entitled to retention of their original priority dates. See Li, 654 F.3d at 383-84 (rejecting the argument that the two benefits are distinct and independent).

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 1153(h)(3) appears to give contradictory answers to this question. Because this provision’s plain terms do not yield a clear and consistent answer, I would proceed to Chevron step two.

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

DE OSORIO v. M AYORKAS

11841

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 (2009).

The BIA interpreted § 1153(h)(3) in Matter of Wang, 25 I. & N. Dec. at 33-39, holding that automatic conversion and priority date retention are not available where there is no category to which a beneficiary’s petition can be converted, and a new petition would have to be filed by a new petitioner. See id. at 38-39; see also id. at 35 (explaining how “conversion” and “retention” have traditionally been interpreted). Thus, the BIA held that an aged-out derivative beneficiary of an F4 petition was not entitled to automatic conversion to a new category and retention of her original priority date when her father subsequently filed an F2 petition on her behalf. See id. at 38-39.

I would hold that the BIA’s interpretation of § 1153(h)(3) is reasonable. As discussed above, there is no appropriate category to which derivative beneficiaries of F3 and F4 petitions may be converted if they age out because a petition may not be filed on behalf of a United States citizen’s niece, nephew, or grandchild. No such family-preference categories exist. As the BIA recognized, there is “no clear indication in the statute that Congress intended to expand the historical categories eligible for automatic conversion and priority date retention . . . .” Id. at 36. The legislative history of the CSPA is also unclear about whether Congress intended for aged-out F3 and F4 derivative beneficiaries to receive the benefits of § 1153(h)(3). See id. at 36-38. Policy considerations also counsel deference to the BIA’s interpretation of the statute. Congress caps the number of visas available to aliens in each preference category, and the demand for such visas far outstrips the supply. See 8 U.S.C. § 1151(c); Matter of Wang, 25 I. & N. Dec. at 38. Reading section 1153(h)(3) as the majority

11842

DE OSORIO v. M AYORKAS

does will not permit more aliens to enter the country or keep more families together, but will simply shuffle the order in which individual aliens get to immigrate. If F3 and F4 derivative beneficiaries can retain their parents’ priority date, they will displace other aliens who themselves have endured lengthy waits for a visa. What’s more, these derivative beneficiaries—who do not have one of the relationships in section 1153(a) that would independently qualify them for a visa—would bump aliens who do have such a qualifying relationship. As the BIA recognized, Congress could not have intended this zero-sum game. See Matter of Wang, 25 I. & N. at 36-38. I would defer to the agency’s reasonable construction of the statute at Chevron step two. See Brand X, 545 U.S. at 980.

III. Conclusion

I would hold that § 1153(h)(3) is ambiguous about whether aged-out F3 and F4 derivative beneficiaries are within its ambit, and that the BIA’s conclusion that they are not is reasonable. I believe that the BIA’s construction of this provision is entitled to deference. See Mayo Found., 131 S. Ct. at 712; Brand X, 545 U.S. at 980. Accordingly, I would affirm the district court.

I respectfully dissent.

 
 Case: 5:08-cv-840 As of: 04/01/2013 05:05 PM PDT 1 of 9 (SHx),APPEAL,CLOSED,DISCOVERY,RELATED−G,STAYED
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Eastern Division − Riverside)
CIVIL DOCKET FOR CASE #: 5:08−cv−00840−JVS−SH

Rosalina De Osorio et al v. Jonathan Scharfen et al Assigned to: Judge James V. Selna Referred to: Magistrate Judge Stephen J. Hillman Related Cases: 8:08−cv−00688−JVS−SH
8:09−cv−00093−JVS−SH
Case in other court: 9th CCA, 09−56786 Cause: 08:1105(a) Aliens: Habeas Corpus to Release INS Detainee
Plaintiff

Date Filed: 06/23/2008 Date Terminated: 10/09/2009 Jury Demand: None Nature of Suit: 465 Other Immigration Actions Jurisdiction: U.S. Government Defendant

Rosalina Cuellar De Osorio

represented by Amy Carole Prokop Carl Shusterman Law Offices 600 Wilshire Blvd Suite 1550 Los Angeles, CA 90017 213−623−4592 Fax: 213−623−3720 Email: aprokop@shusterman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Shusterman Carl Shusterman Law Offices 600 Wilshire Boulevard, Suite 1550 Los Angeles, CA 90017 213−623−4592 Fax: 213−623−3720 Email: carl@shusterman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Elizabeth Magpantay

represented by Amy Carole Prokop (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Shusterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Evelyn Y Santos

represented by Amy Carole Prokop (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Shusterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Maria Eloisa Liwag

represented by

Case: 5:08-cv-840 As of: 04/01/2013 05:05 PM PDT 2 of 9

Amy Carole Prokop (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Shusterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Norma Uy

represented by Amy Carole Prokop (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Shusterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Ruth Uy

represented by Amy Carole Prokop (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Shusterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Jonathan Scharfen Acting Director of the United States Citizenship and Immigration Services

represented by Aaron D Nelson US Department of Justice Office of Immigration Litigation P O Box 868 Ben Franklin Station Washington, DC 20044 202−305−0691 Fax: 202−616−8962 Email: aaron.nelson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant US Attorney LA−CV AUSA − Office of US Attorney Civil Division 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213−894−2879 Email: USACAC.Civil@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gisela A Westwater US Department of Justice PO Box 868 Ben Franklin Station Washington, DC 20044 202−532−4174

Case: 5:08-cv-840 As of: 04/01/2013 05:05 PM PDT 3 of 9

Fax: 202−616−8962 Email: gisela.westwater@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Michael Chertoff Secretary US Department of Homeland Security

represented by Aaron D Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Assistant US Attorney LA−CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gisela A Westwater (See above for address) ATTORNEY TO BE NOTICED

Defendant
Condoleeza Rice Secretary of State

represented by Aaron D Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Assistant US Attorney LA−CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gisela A Westwater (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/23/2008
06/23/2008 06/23/2008
06/30/2008 08/14/2008
08/15/2008 08/18/2008

# Docket Text
1 COMPLAINT filed by plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos against Defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice. (Filing fee $350)(ad) (ad). (Entered: 06/26/2008)
60 DAY Summons Issued re Complaint 1 as to defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice. (ad) (Entered: 06/26/2008)
2 CERTIFICATION AND NOTICE of Interested Parties filed by plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. (ad) (ad). (Entered: 06/26/2008)
3 STANDING ORDER by Judge Stephen G. Larson (See document for further information) (am) (Entered: 06/30/2008)
4 NOTICE of Appearance filed by attorney Aaron D Nelson on behalf of Defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice (Nelson, Aaron) (Entered: 08/14/2008)
5 NOTICE Notice of Related Case filed by Defendant Jonathan Scharfen, Michael Chertoff, Condoleeza Rice. (Nelson, Aaron) (Entered: 08/15/2008)
6 FIRST STIPULATION Extending Time to Answer the complaint as to Jonathan Scharfen answer now due 9/22/2008; Michael Chertoff answer now due 9/22/2008; Condoleeza Rice answer now due 9/22/2008, filed by Defendant Jonathan Scharfen; Michael Chertoff; Condoleeza Rice.(Nelson, Aaron) (Entered: 08/18/2008)

Case: 5:08-cv-840 As of: 04/01/2013 05:05 PM PDT 4 of 9

08/20/2008
08/20/2008
08/20/2008
09/03/2008
09/11/2008 09/22/2008
11/14/2008 11/24/2008 11/24/2008 11/24/2008 12/02/2008 12/17/2008

7 PROOF OF SERVICE Executed by Plaintiff Maria Eloisa Liwag, Norma Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos, uponJonathan Scharfen served on 6/23/2008, answer due 9/22/2008. The Summons and Complaint were served by personal service and certified mail, by Federal statute. Service accepted by Patricia Myles on behalf of Jonathan Scharfen. Original Summons not returned. (Prokop, Amy) (Entered: 08/20/2008)
8 PROOF OF SERVICE Executed by Plaintiff Maria Eloisa Liwag, Norma Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos, uponMichael Chertoff served on 6/23/2008, answer due 9/22/2008. The Summons and Complaint were served by personal service and certified mail, by Federal statute. Service accepted by Patricia Myles on behalf of Michael Chertoff. Original Summons not returned. (Prokop, Amy) (Entered: 08/20/2008)
9 PROOF OF SERVICE Executed by Plaintiff Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos, uponCondoleeza Rice served on 6/23/2008, answer due 9/22/2008. The Summons and Complaint were served by personal service and certified mail, by Federal statute. Service accepted by Patricia Myles on behalf of Condoleeza Rice. Original Summons not returned. (Prokop, Amy) (Entered: 08/20/2008)
10 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 07−02 −Related Case− filed. Related Case No: SA CV 08−688 JVS (SHx). Case transfered from Judge Stephen G. Larson and Magistrate Judge Ralph Zarefsky to Judge James V. Selna and Magistrate Judge Stephen J. Hillman for all further proceedings. The case number will now reflect the initials of the transferee Judge ED CV 08−840 JVS (SHx). Signed by Judge James V. Selna (la) (Entered: 09/09/2008)
11 INITIAL ORDER FOLLOWING FILING OF COMPLAINT ASSIGNED TO JUDGE SELNA by Judge James V. Selna. (See Order for details) (db) (Entered: 09/15/2008)
12 NOTICE OF MOTION AND MOTION to hold case in abeyance pending Precedent Decision by BIA, MOTION to Dismiss Complaint( Motion set for hearing on 12/8/2008 at 01:30 PM before Judge James V. Selna.) filed by defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice. (Attachments: # 1 Motion to Dismiss, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Proposed Order)(Nelson, Aaron) (Entered: 09/22/2008)
13 ORDER setting Scheduling Conference for 1/5/2009 10:30 AM before Judge James V. Selna. (Attachments: # 1 Exhibit) (kt) (Entered: 11/14/2008)
14 MEMORANDUM in Opposition to MOTION to hold case in abeyance pending Precedent Decision by BIA MOTION to Dismiss Complaint 12 filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. (Prokop, Amy) (Entered: 11/24/2008)
15 NOTICE OF ERRATA filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. correcting MEMORANDUM in Opposition to Motion, 14 (Prokop, Amy) (Entered: 11/24/2008)
16 MEMORANDUM in Opposition to MOTION to hold case in abeyance pending Precedent Decision by BIA MOTION to Dismiss Complaint 12 filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. (Prokop, Amy) (Entered: 11/24/2008)
17 MINUTES OF IN CHAMBERS ORDER Granting Defendants' Motion to Stay Action held before Judge James V. Selna 12 . This action is stayed in its entirety...The Court finds that oral argument would not be helpful and vacates the 12/08/08 hearing. FRCivP 78; L.R. 7−15. (See minute order for further details) (db) (Entered: 12/02/2008)
18 STIPULATION to Continue Scheduling Conference from January 5, 2009 to March 16, 2009 Re: Scheduling Order, Set Deadlines/Hearings 13 filed by Plaintiff Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. (Attachments: # 1 Proposed Order Proposed Order

Case: 5:08-cv-840 As of: 04/01/2013 05:05 PM PDT 5 of 9

12/17/2008
03/02/2009
04/02/2009
04/07/2009 04/07/2009 04/07/2009
04/07/2009 04/07/2009 04/07/2009 04/07/2009 04/07/2009 04/07/2009 04/07/2009 04/07/2009 04/07/2009 04/07/2009 04/07/2009 04/07/2009 04/07/2009 04/20/2009

to Continue Scheduling Conference)(Prokop, Amy) (Entered: 12/17/2008)
19 ORDER ON STIPULATION TO CONTINUE CONFERENCE by Judge James V. Selna 18 . Scheduling Conference now set for 01/05/09 is continued to 03/16/09 at 10:30 a.m. (db) (Entered: 12/19/2008)
20 PARTIES' JOINT RULE 26(F) REPORT filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. (Attachments: # 1 Exhibit Exhibit A to Joint Report)(Prokop, Amy) (Entered: 03/02/2009)
21 NOTICE of Manual Filing filed by Defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice of Select Immigration Records. (Nelson, Aaron) (Entered: 04/02/2009)
22 Defendants' EX PARTE APPLICATION to File Certified Documents Under Seal (smi) (Entered: 04/13/2009)
23 ORDER by Judge James V. Selna granting 22 Ex Parte Application to Seal (smi) (Entered: 04/13/2009)
24 SEALED DOCUMENT − NOTICE OF FILING OF CERTAIN DOCUMENTS IN ACCORDANCE WITH AGREEMENT BETWEEN THE PARTIES (smi) (Entered: 04/13/2009)
25 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS LIWAG VOL. 1 (smi) (Entered: 04/13/2009)
26 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS LIWAG VOL. 2 (smi) (Entered: 04/13/2009)
27 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS CUELLAR DE OSORIO VOL 1 (smi) (Entered: 04/13/2009)
28 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS CUELLAR DE OSORIO VOL 2 (smi) (Entered: 04/13/2009)
29 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS CUELLAR DE OSORIO VOL 3 (smi) (Entered: 04/13/2009)
30 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS MAGPANTAY, ELIZABETH VOL 1 (smi) (Entered: 04/13/2009)
31 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS MAGPANTAY, ELIZABETH VOL 2 (smi) (Entered: 04/13/2009)
32 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS MAGPANTAY, ELIZABETH VOL 3 (smi) (Entered: 04/13/2009)
33 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS MAGPANTAY, ELIZABETH VOL 4 (smi) (Entered: 04/13/2009)
34 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS SANTOS VOL 1 (smi) (Entered: 04/13/2009)
35 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS SANTOS VOL 2 (smi) (Entered: 04/13/2009)
36 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS UY VOL 1 (smi) (Entered: 04/13/2009)
37 SEALED DOCUMENT − CERTIFIED IMMIGRATION DOCUMENTS UY VOL 2 (smi) (Entered: 04/13/2009)
38 NOTICE OF MOTION AND MOTION to Continue Scheduling Conference from April 27, 2009 to June 8, 2009 filed by Defendant Jonathan Scharfen, Michael Chertoff, Condoleeza Rice. Motion set for hearing on 4/27/2009 at 10:30 AM before Judge James V. Selna. (Attachments: # 1 Exhibit)(Nelson, Aaron) (Entered: 04/20/2009)

Case: 5:08-cv-840 As of: 04/01/2013 05:05 PM PDT 6 of 9

04/21/2009 04/21/2009
05/11/2009 06/11/2009 06/15/2009 06/18/2009 06/18/2009
07/01/2009 07/08/2009 07/08/2009 07/09/2009 08/21/2009
08/31/2009

39 MEMORANDUM in Opposition to MOTION to Continue Scheduling Conference from April 27, 2009 to June 8, 2009 38 filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. (Prokop, Amy) (Entered: 04/21/2009)
40 ORDER by Judge James V. Selna: granting 38 Motion to Continue: IT IS FURTHER ORDERED THAT this matter is reset for a scheduling conference on May 11, 2009, at 10:30 a.m. [Note date change.] Absent an affirmative indication from the BIA that it intends to issue written opinions in Patel and/or Wang, the Court will not entertain further continuances of the Rule 26(f) Conference. IT IS SO ORDERED. (rla) Modified on 4/21/2009 (rla). (Entered: 04/21/2009)
45 MINUTES OF Scheduling Conference held before Judge James V. Selna. The Court and counsel confer regarding scheduling. The Court continues the Scheduling Conference to 6/15/2009 01:30 PM before Judge James V. Selna.Court Reporter: Sharon Seffens. (db) (Entered: 06/23/2009)
41 NOTICE of Appearance filed by attorney Gisela A Westwater on behalf of Defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice (Westwater, Gisela) (Entered: 06/11/2009)
43 MINUTES OF Scheduling Conference held before Judge James V. Selna. The Court and counsel confer regarding motions for summary judgment. The Court will consider the matter and issue a further minute order seting this case and the related cases for hearing on said motion on the same date. Court Reporter: Sharon Seffens. (db) (Entered: 06/18/2009)
42 Notice of BIA Decision in Related Matter of Wang filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos (Attachments: # 1 Exhibit BIA Decision in Matter of Wang)(Prokop, Amy) (Entered: 06/18/2009)
44 MINUTES OF IN CHAMBERS ORDER Setting Hearing Date for Motions for Summary Judgment held before Judge James V. Selna. The Court orders that motions for summary judgment matters shall be filed with a hearing date of 09/21/2009 at 3:00 p.m. The Court directs counsel to meet and confer regarding a briefing schedule with the last brief being filed no later than 09/08/2009. (db) (Entered: 06/18/2009)
46 BRIEFING SCHEDULE AND RESET HEARING DATE filed by Defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice (Westwater, Gisela) (Entered: 07/01/2009)
47 NOTICE OF LODGING filed re Miscellaneous Document 46 (Attachments: # 1 Proposed Order Approving Schedule)(Westwater, Gisela) (Entered: 07/08/2009)
48 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Incorrect event selected, correct event is Reset RE: Miscellaneous Document 46 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (rrp) (Entered: 07/08/2009)
49 ORDER by Judge James V. Selna, Approving stipulated Briefing and hearing schedule on Motion for Summary Judgment 46 , ( Responses due by 9/8/2009, Replies due by 9/14/2009. Motion set for hearing on 9/28/2009 at 03:00 PM before Judge James V. Selna.) (ade) (Entered: 07/10/2009)
50 NOTICE OF MOTION AND MOTION to Stay Case pending Resolution of Class Action in Costelo v. Napolitano 08−688 (JVS) filed by Defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice. Motion set for hearing on 9/14/2009 at 01:30 PM before Judge James V. Selna. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Proposed Order Granting Defendants' Motion to Stay Proceedings)(Nelson, Aaron) (Entered: 08/21/2009)
51 NOTICE OF MOTION AND MOTION for Summary Judgment filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. Motion set for hearing on 9/28/2009 at 03:00 PM before Judge James V. Selna. (Attachments: # 1 Memorandum of Points and

Case: 5:08-cv-840 As of: 04/01/2013 05:05 PM PDT 7 of 9

08/31/2009 08/31/2009
08/31/2009
08/31/2009
09/07/2009 09/08/2009 09/09/2009 09/14/2009 09/21/2009 09/21/2009 09/28/2009 10/09/2009

Authorities in Support of Motion, # 2 Statement of Uncontroverted Facts and Conclusions of Law, # 3 Proposed Statement of Decision)(Prokop, Amy) (Entered: 08/31/2009)
52 NOTICE OF ERRATA filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. correcting MOTION for Summary Judgment 51 (Prokop, Amy) (Entered: 08/31/2009)
53 NOTICE OF MOTION AND Corrected MOTION for Summary Judgment filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. Motion set for hearing on 9/28/2009 at 03:00 PM before Judge James V. Selna. (Attachments: # 1 Memorandum of Points and Authorities in Support of Motion for Summary Judgment, # 2 Corrected Statement of Uncontroverted Facts and Conclusions of Law, # 3 Cuellar de Osorio Proposed Statement of Decision)(Prokop, Amy) (Entered: 08/31/2009)
54 MEMORANDUM in Opposition to MOTION to Stay Case pending Resolution of Class Action in Costelo v. Napolitano 08−688 (JVS) MOTION to Stay Case pending Resolution of Class Action in Costelo v. Napolitano 08−688 (JVS) 50 filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. (Prokop, Amy) (Entered: 08/31/2009)
55 NOTICE OF MOTION AND MOTION for Summary Judgment as to Complaint filed by Defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice. Motion set for hearing on 9/28/2009 at 03:00 PM before Judge James V. Selna. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration Declaration of Aaron Nelson, # 3 Exhibit Ex. A, # 4 Exhibit Ex. B, # 5 Exhibit Ex. C, # 6 Statement of Uncontroverted Facts and Conclusions of Law, # 7 Proposed Order Proposed Judgment)(Nelson, Aaron) (Entered: 08/31/2009)
56 REPLY In support of motion MOTION to Stay Case pending Resolution of Class Action in Costelo v. Napolitano 08−688 (JVS) MOTION to Stay Case pending Resolution of Class Action in Costelo v. Napolitano 08−688 (JVS) 50 filed by Defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice. (Nelson, Aaron) (Entered: 09/07/2009)
57 MEMORANDUM in Opposition to MOTION for Summary Judgment as to Complaint 55 filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. (Prokop, Amy) (Entered: 09/08/2009)
58 MINUTES OF IN CHAMBERS ORDER by Judge James V. Selna Denying 50 Motion to Stay Case. The Court finds that oral argument would not be helpful on these matters and vacates the 09/14/09 hearing. (nbo) (Entered: 09/09/2009)
59 OPPOSITION to Corrected MOTION for Summary Judgment 53 filed by Defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice. (Attachments: # 1 Exhibit A)(Nelson, Aaron) (Entered: 09/14/2009)
60 REPLY to Defendants' Opposition to Plaintiffs' Corrected MOTION for Summary Judgment 53 filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. (Prokop, Amy) (Entered: 09/21/2009)
61 REPLY In support of motion MOTION for Summary Judgment as to Complaint 55 filed by Defendants Jonathan Scharfen, Michael Chertoff, Condoleeza Rice. (Nelson, Aaron) (Entered: 09/21/2009)
62 MINUTES re Plaintiff's Motion for Summary Judgment 51 , Defendants' Motion for Summary Judgment 55 held before Judge James V. Selna. The Courts tentative ruling is issued. The Court takes the above referenced motions under submission. Court Reporter: Sharon Seffens. (db) (Entered: 09/30/2009)
63 ORDER by Judge James V. Selna: RE CROSS−MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO DISMISS DOWLATSHAHI ACTION: (See document for details.) the Court DISMISSES Dowlatshahi v. Holder, et al., CV

Case: 5:08-cv-840 As of: 04/01/2013 05:05 PM PDT 8 of 9

11/03/2009 11/03/2009 11/12/2009 11/13/2009 11/16/2009 11/08/2011
04/20/2012
04/20/2012
04/27/2012

08−5301 JVS (SHx). The Court DENIES the Plaintiffs' motions and GRANTS Defendants' motions in the remaining cases. The Court cannot compel Defendants to act where their inaction was not arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(A). IT IS SO ORDERED. MD JS−6. Case Terminated. (rla) (Entered: 10/13/2009)
64 NOTICE OF APPEAL to the 9th CCA filed by Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. Appeal of Order on Motion for Summary Judgment,,,,,,,, 63 . (Filing fee $455, receipt number 09730000000006100693.) (Prokop, Amy) (Entered: 11/03/2009)
65 Civil Appeals Docketing Statement received from Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos forwarded to 9th CCA. RE: Notice of Appeal to 9th Circuit Court of Appeals, 64 (Attachments: # 1 Order on Summary Judgment, # 2 Representation Statement)(Prokop, Amy) (Entered: 11/03/2009)
67 NOTIFICATION by Circuit Court of Appellate Docket Number 09−56786, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals, 64 as to Plaintiffs Maria Eloisa Liwag, Norma Uy, Ruth Uy, Jonathan Scharfen, Rosalina Cuellar De Osorio, Elizabeth Magpantay, Evelyn Y Santos. (lra) (Entered: 11/16/2009)
66 TRANSCRIPT DESIGNATION AND ORDERING FORM Court of Appeals Case Number: 09−56786; Re: 64 (Prokop, Amy) (Entered: 11/13/2009)
68 CERTIFICATE OF RECORD Transmitted to USCA re Notice of Appeal to 9th Circuit Court of Appeals, 64 filed by Maria Eloisa Liwag, Elizabeth Magpantay, Rosalina Cuellar De Osorio, Norma Uy, Evelyn Y Santos, Ruth Uy ; Court of Appeals Case Number: 09−56786. (dmap) (Entered: 11/16/2009)
69 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 64 filed by Maria Eloisa Liwag, Elizabeth Magpantay, Rosalina Cuellar De Osorio, Norma Uy, Evelyn Y Santos and Ruth Uy CCA # 09−56786 and 09−56846. Defendants−appellees are directed to file a response to plaintiffs−appellants petition for rehearing and petition for rehearing en banc filed with this court on October 17, 2011. The response shall not exceed 15 pages or 4200 words and shall be filed within 21 days of the date of this order. Parties who are registered for ECF must file the response electronically without submission of paper copies. Parties who are not registered ECF filers must file the original response plus 50 paper copies. Order received in this district on 11/8/2011. (dmap) (Entered: 11/10/2011)
70 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 64 , CCA # 09−56786. En banc oral argument will take place during the week of 6/18/2012, in Pasadena, California. The date and time will be determined by separate order. For further information or special requests regarding scheduling, please contact Deputy Clerk. Within 7 days from the date of this Order, the parties shall forward to the Clerk of Court 25 additional paper copies of the original briefs including amicus briefs) and excerpts of record. (See attached Order for further details). The Order Order received in this district on 4/20/2012. (jp) (Entered: 04/25/2012)
71 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 64 filed by Maria Eloisa Liwag, Elizabeth Magpantay, Rosalina Cuellar De Osorio, Norma Uy, Evelyn Y Santos, Ruth Uy CCA # 09−56786. Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35−3. This three−judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. Order received in this district on 4/20/2012. (dmap) (Main Document 71 replaced on 4/25/2012) (dmap). (Entered: 04/25/2012)
72 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 64 filed by Maria Eloisa Liwag, Elizabeth Magpantay, Rosalina Cuellar De Osorio, Norma Uy, Evelyn Y Santos and Ruth Uy CCA # 09−56786. Oral argument in this en bane case will be held at 10:00 a.m. on Tuesday, June 19,2012, in Courtroom Three of the Richard H. Chambers Courthouse, located at 125 South Grand Avenue

Case: 5:08-cv-840 As of: 04/01/2013 05:05 PM PDT 9 of 9

05/23/2012
06/11/2012 11/16/2012 12/19/2012

in Pasadena, California 91105. Order received in this district on 4/27/2012. (dmap) (Main Document 72 replaced on 5/2/2012) (dmap). (Entered: 05/02/2012)
73 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 64 filed by Maria Eloisa Liwag, Elizabeth Magpantay, Rosalina Cuellar De Osorio, Norma Uy, Evelyn Y Santos, Ruth Uy, CCA # 09−56786. The motions of the National Immigrant Justice Center and the American Immigration Council; the American Immigration Lawyers Association and the Catholic Legal Immigration Network, Inc.; and Active Dreams LLC for leave to file amicus briefs are granted. The Clerk shall file the briefs submitted with the motions. See the order for the rest of the details. Order received in this district on 5/23/2012. Order received in this district on 5/23/2012. (dmap) (Entered: 05/24/2012)
74 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 64 filed by Maria Eloisa Liwag, Elizabeth Magpantay, Rosalina Cuellar De Osorio, Norma Uy, Evelyn Y Santos, Ruth Uy CCA # 09−56786. Appellees' motion for leave to file a brief and exhibits responding to amici is granted. Order received in this district on 6/11/2012. (dmap) (Entered: 06/12/2012)
75 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 64 filed by Maria Eloisa Liwag, Elizabeth Magpantay, Rosalina Cuellar De Osorio, Norma Uy, Evelyn Y Santos, Ruth Uy CCA # 09−56786. The unopposed motion to stay the mandate pending filing a petition of or writ of cetiorari is granted. The mandate is stayed until December 26, 2012. If a petition for certiorari is filed, the stay shall continue until final disposition by the U.S.Supreme Court. Order received in this district on 11/16/2012. (dmap) (Entered: 11/19/2012)
76 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 64 CCA # 09−56786. The unopposed motion to stay the mandate pending filing of a petition for writ of certiorari is GRANTED (Doc. 101). The mandate is stayed until 1/25/2013. If a petition for certiorari is filed, the stay shall continue until final disposition by the U.S. Supreme Court. Order received in this district on 12/19/12. (car) Modified on 12/20/2012 (car). (Entered: 12/20/2012)

 
 (Slip Opinion)

OCTOBER TERM, 2013

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
SCIALABBA, ACTING DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ET AL.
v. CUELLAR DE OSORIO ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 12–930. Argued December 10, 2013—Decided June 9, 2014
The Immigration and Nationality Act permits qualifying U. S. citizens and lawful permanent residents (LPRs) to petition for certain family members to obtain immigrant visas. A sponsored individual, known as the principal beneficiary, is placed into a “family preference” category based on his relationship with the petitioner. 8 U. S. C. §§1153(a)(1)–(4). The principal beneficiary’s spouse and minor children in turn qualify as derivative beneficiaries, “entitled to the same status” and “order of consideration” as the principal. §1153(d). The beneficiaries then become eligible to apply for visas in order of “priority date”—that is, the date a petition was filed. §1153(e)(1). Because the immigration process often takes years or decades to complete, a child seeking to immigrate may “age out”—i.e., reach adulthood and lose her immigration status—before she reaches the front of the visa queue. The Child Status Protection Act (CSPA) sets forth a remedy in that circumstance, providing that “[i]f the age of an alien is determined . . . to be 21 years of age or older,” notwithstanding certain allowances for bureaucratic delay, §§1153(h)(1)–(2), “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.” §1153(h)(3). Respondents, principal beneficiaries who became LPRs, filed petitions for their aged-out children, asserting that the newly filed petitions should receive the same priority date as their original petitions. Instead, U. S. Citizenship and Immigration Services (USCIS) gave the new petitions current priority dates. The District Court granted the Government summary judgment, deferring to the Board of Immi-

2

SCIALABBA v. CUELLAR DE OSORIO

Syllabus
gration Appeals’ (BIA’s) determination that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion under §1153(h)(3). The en banc Ninth Circuit reversed, holding that the provision unambiguously entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention.
Held: The judgment is reversed, and the case is remanded.
695 F. 3d 1003, reversed and remanded. JUSTICE KAGAN, joined by JUSTICE KENNEDY and JUSTICE GINS-
BURG, concluded that the BIA’s textually reasonable construction of §1153(h)(3)’s ambiguous language was entitled to deference. Pp. 13– 33.
(a) Because §1153(h)(3) does not speak unambiguously to the issue here, a court must defer to the BIA’s reasonable interpretation. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844. The first clause of §1153(h)(3) states a condition that encompasses every aged-out beneficiary of a family preference petition. The second clause, however, does not easily cohere with the first. It prescribes a remedy that can apply to only a subset of the beneficiaries described in the first clause. This remedial prescription directs immigration officials to take the alien’s petition and convert it from a category benefitting a child to an appropriate category for adults, without any change in the petition, including its sponsor, or any new filing. Moreover, this conversion is to be “automati[c]”—that is, one involving no additional decisions, contingencies, or delays. Thus, the only aliens who may benefit from §1153(h)(3)’s back half are those for whom automatic conversion is possible.
The understanding that “automatic conversion” entails nothing more than picking up the petition from one category and dropping it into another for which the alien now qualifies matches the exclusive way immigration law used the term when §1153(h)(3) was enacted. See 8 CFR §204.2(i)(1)–(3) (2002). And Congress used the word “conversion” in the identical way elsewhere in the CSPA. See, e.g., §§1151(f)(2), (3).
If the term meant more than that in §1153(h)(3), it would undermine the family preference system’s core premise: that each immigrant must have a qualified and willing sponsor. See §§1154(a), (b). If an original sponsor does not have a legally recognized relationship with the aged-out derivative beneficiary, another sponsor, e.g., the old principal beneficiary, must be swapped in for the alien to qualify for a new family preference category. But immigration officials cannot assume that a new sponsor is eligible and willing to petition on the alien’s behalf, given the numerous requirements the law imposes on family preference petitioners. See, e.g., §1154(a)(1)(B)(i)(II). Nei-

Cite as: 573 U. S. ____ (2014)

3

Syllabus
ther can they figure out whether a valid sponsor exists unless he files and USCIS approves a new petition—the very thing §1153(h)(3) says is not required.
In any case, a new qualified sponsor will rarely exist at the requisite time. An alien is deemed to age out on “the date on which an immigrant visa number became available for the alien’s parent.” §1153(h)(1)(A). Since aging out triggers automatic conversion, the date of automatic conversion is best viewed as the same. But at that time, the aged-out beneficiary’s parent cannot yet be a citizen or LPR, and so no new, qualified sponsor will be ready to step into the old one’s shoes.
On the above account, §1153(h)(3)’s second clause provides a remedy to those principal and derivative beneficiaries who had a qualifying relationship with an LPR both before and after they aged out. In contrast, aliens like respondents’ children—the nieces, nephews, and grandchildren of the initial sponsors—cannot qualify for “automatic conversion”: they lacked a qualifying preference relationship with the initial petitioner, and so cannot fit into a new preference category without obtaining a new sponsor.
The ambiguity created by §1153(h)(3)’s ill-fitting clauses left the BIA to choose how to reconcile the statute’s different commands. It reasonably opted to abide by the inherent limits of §1153(h)(3)’s remedial clause, rather than go beyond those limits so as to match the sweep of the first clause’s condition. When an agency thus resolves statutory tension, ordinary principles of administrative deference require this Court to defer. See National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 666. Pp. 13–22.
(b) Respondents take issue with the BIA’s interpretation, but none of their contentions is persuasive. Pp. 22–33.
(1) Respondents aver that every aged-out beneficiary could be automatically converted if immigration officials substituted new sponsors and managed the timing of conversion so that a new sponsor existed on the relevant date. These administrative maneuvers are not in keeping with the natural and long-established meaning of “automatic conversion,” they require conversion to occur on a date that has no connection to the alien’s aging out, and they demand administrative juggling to make automatic conversion work. And that painstakingly managed process still cannot succeed because a derivative’s parent may never become able to sponsor a visa—and immigration officials cannot practicably tell whether a given parent has done so. Pp. 22–27.
(2) Respondents argue that the word “and” in the second clause of §1153(h)(3) indicates that priority date retention is a benefit wholly independent of automatic conversion. But “and” does not neces-

4

SCIALABBA v. CUELLAR DE OSORIO

Syllabus
sarily disjoin two phrases, and context suggests that the instructions work in tandem. In other statutory and regulatory provisions respecting “conversions,” retention of a priority date is conditional on a conversion occurring. See, e.g., §§1154(k)(1)–(3). Respondent’s reading would make priority date retention conditional on something the statute nowhere mentions. And it would engender unusual results that, without some clearer statement, the Court cannot conclude that Congress intended. Pp. 27–30.
(3) Finally, respondents contend that, assuming §1153(h)(3) is ambiguous, the BIA acted unreasonably in choosing the more restrictive reading. But the BIA’s interpretation benefits from administrative simplicity and fits with immigration law’s basic first-come, firstserved rule. By contrast, respondents would scramble the priority order Congress established by allowing aged-out derivative beneficiaries, like respondents’ sons and daughters, to enter the visa queue ahead of beneficiaries who had a qualifying relationship with an LPR for a far longer time. Pp. 31–33.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, agreed that the BIA’s interpretation was reasonable, but not because an agency has authority to resolve direct conflicts within a statute. There is no conflict or internal tension in §1153(h)(3). The first clause of the provision defines the persons potentially affected, but does not grant anything to anyone. The particular benefit provided by the statute— automatic conversion and retention of priority date—is found exclusively in the second clause, and that relief requires, at minimum, that an aged-out beneficiary have his own eligible sponsor who is committed to providing financial support for the beneficiary. Beyond that, Congress did not speak clearly to which petitions can be automatically converted. The BIA’s reasonable interpretation of §1153(h)(3) is consistent with the ordinary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration system. Pp. 1–4.
KAGAN, J., announced the judgment of the Court and delivered an opinion, in which KENNEDY and GINSBURG, JJ., joined. ROBERTS, C. J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which BREYER, J., joined, and in which THOMAS, J., joined except as to footnote 3.

Cite as: 573 U. S. ____ (2014)

1

Opinion of KAGAN, J.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–930
_________________
LORI SCIALABBA, ACTING DIRECTOR, UNITED 
 STATES CITIZENSHIP AND IMMIGRATION 
 SERVICES, ET AL., PETITIONERS v. ROSA-
 LINA CUELLAR DE OSORIO ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 9, 2014]

JUSTICE KAGAN announced the judgment of the Court and delivered an opinion, in which JUSTICE KENNEDY and JUSTICE GINSBURG join.
Under the Immigration and Nationality Act, 8 U. S. C. §1101 et seq., citizens and lawful permanent residents (LPRs) of the United States may petition for certain family members—spouses, siblings, and children of various ages—to obtain immigrant visas. Such a sponsored individual is known as the petition’s principal beneficiary. In turn, any principal beneficiary’s minor child—meaning an unmarried child under the age of 21—qualifies as a derivative beneficiary, “entitled to the same [immigration] status” and “order of consideration” as his parent. §1153(d). Accordingly, when a visa becomes available to the petition’s principal beneficiary, one also becomes available to her minor child.
But what happens if, sometime after the relevant petition was filed, a minor child (whether a principal or a derivative beneficiary) has turned 21—or, in immigration

2

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
lingo, has “aged out”? The immigration process may take years or even decades to complete, due in part to bureaucratic delays associated with reviewing immigration documents and in (still greater) part to long queues for the limited number of visas available each year. So someone who was a youngster at the start of the process may be an adult at the end, and no longer qualify for an immigration status given to minors. The Child Status Protection Act (CSPA), 116 Stat. 927, ensures that the time Government officials have spent processing immigration papers will not count against the beneficiary in assessing his status. See 8 U. S. C. §1153(h)(1). But even with that provision, the beneficiary may age out solely because of the time he spent waiting in line for a visa to become available.
The question presented in this case is whether the CSPA grants a remedy to all aliens who have thus outpaced the immigration process—that is, all aliens who counted as child beneficiaries when a sponsoring petition was filed, but no longer do so (even after excluding administrative delays) by the time they reach the front of the visa queue. The Board of Immigration Appeals (BIA or Board) said no. It interpreted the CSPA as providing relief to only a subset of that group—specifically, those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent. We now uphold the Board’s determination as a permissible construction of the statute.
I 
 A 

An alien needs an immigrant visa to enter and permanently reside in the United States. See §1181(a).1 To
——————
1 An alien already in the United States—for example, on a student or temporary worker visa—must obtain “adjustment of status” rather than an immigrant visa to become a lawful permanent resident. See 8

Cite as: 573 U. S. ____ (2014)

3

Opinion of KAGAN, J.
obtain that highly sought-after document, the alien must fall within one of a limited number of immigration categories. See §§1151(a)–(b). The most favored is for the “immediate relatives” of U. S. citizens—their parents, spouses, and unmarried children under the age of 21. See §§1151(b)(2)(A)(i), 1101(b)(1). Five other categories— crucial to this case, and often denominated “preference” categories—are for “family-sponsored immigrants,” who include more distant or independent relatives of U. S. citizens, and certain close relatives of LPRs.2 Specifically, those family preference categories are:
F1: the unmarried, adult (21 or over) sons and daughters of U. S. citizens;
F2A: the spouses and unmarried, minor (under 21) children of LPRs;
F2B: the unmarried, adult (21 or over) sons and daughters of LPRs;
F3: the married sons and daughters of U. S. citizens;
F4: the brothers and sisters of U. S. citizens. §§1151(a)(1), 1153(a)(1)–(4).3
(A word to the wise: Dog-ear this page for easy reference, because these categories crop up regularly throughout this opinion.)
——————
U. S. C. §1255(a). Because the criteria for securing adjustment of status and obtaining an immigrant visa are materially identical, we use the single term “immigrant visa” to refer to both.
2 The “family preference” label, as used by immigration officials, applies only to these five classifications, and not to the category for “immediate relatives” of U. S. citizens. See Brief for Petitioners 3, n. 1.
3 Immigrant visas can also go to aliens with special, marketable skills, see §§1151(a)(2), 1153(b), or to aliens from countries with historically low immigration to the United States, see §§1151(a)(3), 1153(c). None of the respondents here sought visas under those “employmentbased” or “diversity” categories.

4

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
The road to obtaining any family-based immigrant visa begins when a sponsoring U. S. citizen or LPR files a petition on behalf of a foreign relative, termed the principal beneficiary. See §§1154(a)(1)(A)(i), (a)(1)(B)(i)(I), (b); 8 CFR §204.1(a)(1) (2014). The sponsor (otherwise known as the petitioner—we use the words interchangeably) must provide U. S. Citizenship and Immigration Services (USCIS) with evidence showing, among other things, that she has the necessary familial relationship with the beneficiary, see §§204.2(a)(2), (d)(2), (g)(2), and that she has not committed any conduct disqualifying her from sponsoring an alien for a visa, see, e.g., 8 U. S. C. §1154(a)(1)(B)(i)(II) (barring an LPR from submitting a petition if she has committed certain offenses against minors). USCIS thereafter reviews the petition, and approves it if found to meet all requirements. See §1154(b).
For a family preference beneficiary, that approval results not in getting a visa then and there, but only in getting a place in line. (The case is different for “immediate relatives” of U. S. citizens, who can apply for and receive a visa as soon as a sponsoring petition is approved.) The law caps the number of visas issued each year in the five family preference categories, see §§1151(c)(1), 1152, 1153(a)(1)–(4), and demand regularly exceeds the supply. As a consequence, the principal beneficiary of an approved petition is placed in a queue with others in her category (F1, F2A, or what have you) in order of “priority date”—that is, the date a petition was filed with USCIS. See §1153(e)(1); 8 CFR §204.1(b); 22 CFR 42.53(a) (2013). Every month, the Department of State sets a cut-off date for each family preference category, indicating that visas (sometimes referred to by “visa numbers”) are available for beneficiaries with priority dates earlier than the cut-off. See 8 CFR §245.1(g)(1); 22 CFR §42.51(b). The system is thus first-come, first-served

Cite as: 573 U. S. ____ (2014)

5

Opinion of KAGAN, J.
within each preference category, with visas becoming available in order of priority date.
Such a date may benefit not only the principal beneficiary of a family preference petition, but also her spouse and minor children. Those persons, labeled the petition’s “derivative beneficiar[ies],” are “entitled to the same status, and the same order of consideration” as the principal. 8 U. S. C. §§1153(d), (h). Accordingly, when a visa becomes available for the principal, one becomes available for her spouse and minor children too. And that is so even when (as is usually but not always the case) the spouse and children would not qualify for any family preference category on their own. For example, the child of an F4 petition’s principal beneficiary is the niece or nephew of a U. S. citizen, and federal immigration law does not recognize that relationship. Nonetheless, the child can piggyback on his qualifying parent in seeking an immigrant visa—although, as will be further discussed, he may not immigrate without her. See 22 CFR §40.1(a)(2); infra, at 6, 20–21, 31–32.
Once visas become available, the principal and any derivative beneficiaries must separately file visa applications. See 8 U. S. C. §1202(a). Such an application requires an alien to demonstrate in various ways her admissibility to the United States. See, e.g., §1182(a) (1)(A) (alien may not have serious health problems); §1182(a)(2)(A) (alien may not have been convicted of certain crimes); §1182(a)(3)(B) (alien may not have engaged in terrorist activity). Notably, one necessary showing involves the U. S. citizen or LPR who filed the initial petition: To mitigate any possibility of becoming a “public charge,” the visa applicant (whether a principal or derivative beneficiary) must append an “affidavit of support” executed by that sponsoring individual. §§1182(a)(4)(C)(ii), 1183a(a)(1). Such an affidavit legally commits the sponsor to support the alien, usually for at

6

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
least 10 years, with an annual income “not less than 125% of the federal poverty line.” §1183a(a)(1)(A); see §§1183a(a)(2)–(3).
After the beneficiaries have filed their applications, a consular official reviews the documents and, if everything is in order, schedules in-person interviews. See §1202(h). The interviews for a principal and her children (or spouse) usually occur back-to-back, although those for the children may also come later.4 The consular official will determine first whether the principal should receive a visa; if (but only if) the answer is yes, the official will then consider the derivatives’ applications. See 22 CFR §§40.1(a)(2), 42.62, 42.81(a). Provided all goes well, everyone exits the consulate with visas in hand—but that still does not make them LPRs. See 8 U. S. C. §1154(e). Each approved alien must then travel to the United States within a set time, undergo inspection, and confirm her admissibility. See §§1201(c), 1222, 1225(a)–(b). Once again, a derivative’s fate is tied to the principal’s: If the principal cannot enter the country, neither can her children (or spouse). See §1153(d); 22 CFR §40.1(a)(2). When, but only when, an alien with an immigrant visa is approved at the border does she finally become an LPR.5

——————
4 See Dept. of State, The Immigrant Visa Process: Visa Applicant Interview, online at http://travel.state.gov/content/visas/english/ immigrate/immigrant-process/interview/applicant_interview.html (all Internet materials as visited June 5, 2014, and available in Clerk of Court’s case file).
5 The last part of the immigration process is streamlined for aliens already residing in the United States who have applied for adjustment of status. See n. 1, supra. The immigration officer interviewing such an alien, upon finding her visa-eligible, may declare her an LPR on the spot. See 8 U. S. C. §1255(i)(2). But here too, the officer will not make a derivative beneficiary an LPR unless and until he approves that status for the principal. See 22 CFR §40.1(a)(2).

Cite as: 573 U. S. ____ (2014)

7

Opinion of KAGAN, J.
B
All of this takes time—and often a lot of it. At the front end, many months may go by before USCIS approves the initial sponsoring petition.6 On the back end, several additional months may elapse while a consular official considers the alien’s visa application and schedules an interview.7 And the middle is the worst. After a sponsoring petition is approved but before a visa application can be filed, a family-sponsored immigrant may stand in line for years—or even decades—just waiting for an immigrant visa to become available. See, e.g., Dept. of State, Bureau of Consular Affairs, 9 Visa Bulletin, Immigrant Numbers for December 2013 (Nov. 8, 2013).
And as the years tick by, young people grow up, and thereby endanger their immigration status. Remember that not all offspring, but only those under the age of 21 can qualify as an “immediate relative” of a U. S. citizen, or as the principal beneficiary of an LPR’s F2A petition, or (most crucially here) as the derivative beneficiary of any family preference petition. See supra, at 3, 5. So an alien eligible to immigrate at the start of the process (when a sponsor files a petition) might not be so at the end (when an immigration official reviews his documents for admission). He may have “aged out” of his original immigration status by the simple passage of time.
In 2002, Congress enacted the Child Status Protection Act (CSPA), 116 Stat. 927, to address the treatment of those once-but-no-longer-minor aliens. One section of the Act neatly eliminates the “aging out” problem for the offspring of U. S. citizens seeking to immigrate as “imme-

——————
6 See USCIS, Processing Time Information, online at https:// egov.uscis.gov/cris/processingTimesDisplayInit.do.
7 See The Immigrant Visa Process: Interview, online at http://travel.state.gov/content/visas/english/immigrate / immigrant-process/ interview.html.

8

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
diate relatives.” Under that provision, the “determination of whether [such] an alien satisfies the [immigration law’s] age requirement . . . shall be made using [his] age” on the date the initial petition was filed. 8 U. S. C. §1151(f )(1). The section thus halts the flow of time for that group of would-be immigrants: If an alien was young when a U. S. citizen sponsored his entry, then Peter Pan-like, he remains young throughout the immigration process.
A different scheme—and one not nearly so limpid— applies to the offspring of LPRs and aliens who initially qualified as either principal beneficiaries of F2A petitions or derivative beneficiaries of any kind of family preference petition. Section 3 of the CSPA, now codified at 8 U. S. C. §1153(h), contains three interlinked paragraphs that mitigate the “aging out” problem for those prospective immigrants. The first two are complex but, with some perseverance, comprehensible. The third—the key provision here—is through and through perplexing.8
——————
8 The full text of these three paragraphs, for the masochists among this opinion’s readers, is as follows:
“(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 classifi-

Cite as: 573 U. S. ____ (2014)

9

Opinion of KAGAN, J.
The first paragraph, §1153(h)(1), contains a formula for calculating the age of an alien “[f]or purposes of subsections (a)(2)(A) and (d)”—that is, for any alien seeking an immigrant visa directly under F2A or as a derivative beneficiary of any preference category. The “determination of whether [such] an alien satisfies the [immigration law’s] age requirement”—that is, counts as under 21— “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 [derivative beneficiaries], the date on which an immigrant visa number became available for the alien’s parent) . . . ; reduced by
“(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.” §1153(h)(1).
The cross-referenced second paragraph, §1153(h)(2), then explains that the “applicable petition” mentioned is the petition covering the given alien—so again, either an F2A petition filed on his own behalf or any petition extending to him as a derivative.
Taken together, those two paragraphs prevent an alien from “aging out” because of—but only because of— bureaucratic delays: the time Government officials spend reviewing (or getting around to reviewing) paperwork at
——————
cation 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.” 8 U. S. C. §1153(h).

10

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
what we have called the front and back ends of the immigration process. See supra, at 6–7. The months that elapse before USCIS personnel approve a family preference petition (“the period during which the applicable petition described in paragraph (2) was pending”) do not count against an alien in determining his statutory “age.” Neither do the months a consular officer lets pass before adjudicating the alien’s own visa application (the period after “an immigrant visa number becomes available for such alien (or . . . [his] parent)”). But the time in between—the months or, more likely, years the alien spends simply waiting for a visa to become available—is not similarly excluded in calculating his age: Every day the alien stands in that line is a day he grows older, under the immigration laws no less than in life. And so derivative beneficiaries, as well as principal beneficiaries of F2A petitions, can still “age out”—in other words, turn 21, notwithstanding §1153(h)(1)’s dual age adjustments— prior to receiving an opportunity to immigrate.
What happens then (if anything) is the subject of §1153(h)’s third paragraph—the provision at issue in this case. That paragraph 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.”
The provision thus first references the aged-out beneficiaries of family preference petitions, and then directs immigration officials to do something whose meaning this opinion will further consider—i.e., “automatically convert” an alien’s petition to an “appropriate category.”
The Board of Immigration Appeals (BIA) addressed the

Cite as: 573 U. S. ____ (2014)

11

Opinion of KAGAN, J.
meaning of §1153(h)(3) in Matter of Wang, 25 I. & N. Dec. 28 (2009); its interpretation there is what we review in this case. Wang was the principal beneficiary of an F4 petition that his sister, a U. S. citizen, filed in 1992. At that time, Wang’s daughter was 10 years old, and thus qualified as a derivative beneficiary. But Wang waited in line for a visa for more than a decade, and by the time his priority date finally came up, his daughter had turned 22 (even after applying §1153(h)(1)’s age-reduction formula). Wang thus obtained a visa for himself, boarded a plane alone, and entered the United States as an LPR. He then filed a new preference petition on his daughter’s behalf— this one under F2B, the category for LPRs’ adult sons and daughters. USCIS approved that petition, with a priority date corresponding to the date of Wang’s filing. Wang contended that under §1153(h)(3), his daughter was instead entitled to “retain the original priority date” given to his sister’s old F4 petition, because that petition could “automatically be converted” to the F2B category.
The Board rejected that argument. It explained that “the language of [§1153(h)(3)] does not expressly state which petitions qualify for automatic conversion and retention of priority dates.” Id., at 33. Given that “ambiguity,” the BIA looked to the “recognized meaning” of “the phrase ‘automatic conversion’ ” in immigration statutes and regulations—which it “presume[d]” Congress understood when enacting the CSPA. Id., at 33–35. “Historically,” the BIA showed, that language applied only when a petition could move seamlessly from one family preference category to another—not when a new sponsor was needed to fit a beneficiary into a different category. Id., at 35. Some aged-out aliens’ petitions could accomplish that maneuver, because the alien had a qualifying relationship with the original sponsor, and continued to do so upon aging out; in that event, the Board held, §1153(h)(3) ensured that the alien would retain his original priority date.

12

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
See id., at 34–35. But the F4 petition filed by Wang’s sister could not “automatically be converted” in that way because Wang’s daughter never had a qualifying relationship with the sponsor: “[N]o category exists for the niece of a United States citizen.” Id., at 35–36. That is why Wang himself had to file a new petition on his daughter’s behalf once she aged out and could no longer ride on his sibling status. The Board saw no evidence that Congress meant “to expand the use of the concept[ ] of automatic conversion” to reach such a case. Id., at 36. And the Board thought such an expansion unwarranted because it would allow aliens like Wang’s daughter, who lacked any independent entitlement to a visa during the years her father spent standing on the F4 queue, to “cut[ ] in line ahead of others awaiting visas in other preference categories.” Id., at 38.
C
The respondents in this case are similarly situated to Wang, and they seek the same relief. Each was once the principal beneficiary of either an F3 petition filed by a U. S. citizen parent or an F4 petition filed by a U. S. citizen sibling. Each also has a son or daughter who, on the date of filing, was under 21 and thus qualified as a derivative beneficiary of the petition. But as was true of Wang’s daughter, the respondents’ offspring had all turned 21 (even accounting for §1153(h)(1)’s age adjustments) by the time visas became available. Accordingly, the respondents immigrated to the United States alone and, as new LPRs, filed F2B petitions for their sons and daughters. Each argued that under §1153(h)(3), those petitions should get the same priority date as the original F3 and F4 petitions once had. USCIS instead gave the new F2B petitions current priority dates, meaning that the sons and daughters could not leapfrog over others in the F2B line.
This case began as two separate suits, one joining many

Cite as: 573 U. S. ____ (2014)

13

Opinion of KAGAN, J.
individual plaintiffs and the other certified as a class action. In each suit, the District Court deferred to the BIA’s interpretation of §1153(h)(3) in Wang, and accordingly granted summary judgment to the Government. See Zhang v. Napolitano, 663 F. Supp. 2d 913, 919 (CD Cal. 2009); Costelo v. Chertoff, No. SA08–00688, 2009 WL 4030516 (CD Cal., Nov. 10, 2009). After consolidating the two cases on appeal, a panel of the Ninth Circuit affirmed: Like the lower courts, it found §1153(h)(3) ambiguous and acceded to the BIA’s construction. 656 F. 3d 954, 965–966 (2011). The Ninth Circuit then granted rehearing en banc and reversed in a 6-to-5 decision. 695 F. 3d 1003 (2012). The majority concluded that “the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to [all] aged-out derivative beneficiaries,” and that the Board’s contrary conclusion “is not entitled to deference.” Id., at 1006.
We granted certiorari, 570 U. S. ___ (2013), to resolve a Circuit split on the meaning of §1153(h)(3),9 and we now reverse the Ninth Circuit’s decision.
II
Principles of Chevron deference apply when the BIA interprets the immigration laws. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–844 (1984); INS v. Aguirre-Aguirre, 526 U. S. 415, 424–425 (1999). Indeed, “judicial deference to the Executive Branch is especially appropriate in the immigration context,” where decisions about a complex statutory scheme often implicate foreign relations. Id., at 425. (Those hardy readers who have made it this far will surely
——————
9 Compare 695 F. 3d 1003, 1006 (CA9 2012) (case below) (holding that §1153(h)(3) extends relief to all aged-out derivative beneficiaries); Khalid v. Holder, 655 F. 3d 363, 365 (CA5 2011) (same), with Li v. Renaud, 654 F. 3d 376, 385 (CA2 2011) (holding that §1153(h)(3) not merely permits, but requires the Board’s contrary interpretation).

14

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
agree with the “complexity” point.) Under Chevron, the statute’s plain meaning controls, whatever the Board might have to say. See 467 U. S., at 842–843. But if the law does not speak clearly to the question at issue, a court must defer to the Board’s reasonable interpretation, rather than substitute its own reading. Id., at 844.
And §1153(h)(3) does not speak unambiguously to the issue here—or more precisely put, it addresses that issue in divergent ways. We might call the provision Janusfaced. Its first half looks in one direction, toward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family preference petition. But as the BIA recognized, and we will further explain, the section’s second half looks another way, toward a remedy that can apply to only a subset of those beneficiaries—and one not including the respondents’ offspring. The two faces of the statute do not easily cohere with each other: Read either most naturally, and the other appears to mean not what it says. That internal tension makes possible alternative reasonable constructions, bringing into correspondence in one way or another the section’s different parts. And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme.
Begin by reading the statute from the top—the part favoring the respondents. Section 1153(h)(3)’s first clause—“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)”—states a condition that every aged-out beneficiary of a preference petition satisfies. That is because all those beneficiaries have had their ages “determined under paragraph (1)” (and have come up wanting): Recall that the age formula of §1153(h)(1) applies to each alien child who originally qualified (under

Cite as: 573 U. S. ____ (2014)

15

Opinion of KAGAN, J.
“subsections (a)(2)(A) and (d)”) as the principal beneficiary of an F2A petition or the derivative beneficiary of any family preference petition. On its own, then, §1153(h)(3)’s opening clause encompasses the respondents’ sons and daughters, along with every other once-young beneficiary of a family preference petition now on the wrong side of 21. If the next phrase said something like “the alien shall be treated as though still a minor” (much as the CSPA did to ensure U. S. citizens’ children, qualifying as “immediate relatives,” would stay forever young, see supra, at 7–8), all those aged-out beneficiaries would prevail in this case.
But read on, because §1153(h)(3)’s second clause instead prescribes a remedy containing its own limitation on the eligible class of recipients. “[T]he alien’s petition,” that part provides, “shall automatically be converted to the appropriate category and the alien shall retain the original priority date.” That statement directs immigration officials to take the initial petition benefitting an alien child, and now that he has turned 21, “convert[ ]” that same petition from a category for children to an “appropriate category” for adults (while letting him keep the old priority date). The “conversion,” in other words, is merely from one category to another; it does not entail any change in the petition, including its sponsor, let alone any new filing. And more, that category shift is to be “automatic”— that is, one involving no additional decisions, contingencies, or delays. See, e.g., Random House Webster’s Unabridged Dictionary 140 (2d ed. 2001) (defining “automatic” as “having the capability of starting, operating, moving, etc., independently”); The American Heritage Dictionary 122 (4th ed. 2000) (“[a]cting or operating in a manner essentially independent of external influence”). The operation described is, then, a mechanical cut-and-paste job— moving a petition, without any substantive alteration, from one (no-longer-appropriate, child-based) category to another (now-appropriate, adult) compartment. And so

16

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
the aliens who may benefit from §1153(h)(3)’s back half are only those for whom that procedure is possible. The clause offers relief not to every aged-out beneficiary, but just to those covered by petitions that can roll over, seamlessly and promptly, into a category for adult relatives.
That understanding of §1153(h)(3)’s “automatic conversion” language matches the exclusive way immigration law used the term when Congress enacted the CSPA. For many years before then (as today), a regulation entitled “Automatic conversion of preference classification” instructed immigration officials to change the preference category of a petition’s principal beneficiary when either his or his sponsor’s status changed in specified ways. See 8 CFR §§204.2(i)(1)–(3) (2002). For example, the regulation provided that when a U. S. citizen’s child aged out, his “immediate relative” petition converted to an F1 petition, with his original priority date left intact. See §204.2(i)(2). Similarly, when a U. S. citizen’s adult son married, his original petition migrated from F1 to F3, see §204.2(i) (1)(i); when, conversely, such a person divorced, his petition converted from F3 to F1, see §204.2(i)(1)(iii); and when a minor child’s LPR parent became a citizen, his F2A petition became an “immediate relative” petition, see §204.2(i)(3)—all again with their original priority dates. Most notable here, what all of those authorized changes had in common was that they could occur without any change in the petitioner’s identity, or otherwise in the petition’s content. In each circumstance, the “automatic conversion” entailed nothing more than picking up the petition from one category and dropping it into another for which the alien now qualified.10
——————
10 The dissent responds to this fact only with a pair of non-sequiturs. Post, at 18–19 (opinion of SOTOMAYOR, J.). First, the dissent cites a statutory provision that does not use the word “conversion” at all, so can hardly attest to its meaning. See 8 U. S. C. §1154(a)(1)(D)(i)(III). And next, the dissent cites a regulation that post-dated the CSPA by

Cite as: 573 U. S. ____ (2014)

17

Opinion of KAGAN, J.
Congress used the word “conversion” (even without the modifier “automatic”) in the identical way in two other sections of the CSPA. See Law v. Siegel, 571 U. S. ___, ___ (slip op., at 7) (2014) (“[W]ords repeated in different parts of the same statute generally have the same meaning”). Section 2 refers to occasions on which, by virtue of the above-described regulation, a petition “converted” from F2A to the “immediate relative” category because of the sponsor parent’s naturalization, or from the F3 to the F1 box because of the beneficiary’s divorce. 8 U. S. C. §§1151(f )(2), (3). Then, in §6, Congress authorized an additional conversion of the same nature: It directed that when an LPR parent-sponsor naturalizes, the petition he has filed for his adult son or daughter “shall be converted,” unless the beneficiary objects, from the F2B to the F1 compartment—again with the original priority date unchanged. 8 U. S. C. §§1154(k)(1)–(3). (That opt-out mechanism itself underscores the otherwise mechanical nature of the conversion.) Once again, in those cases, all that is involved is a recategorization—moving the same petition, filed by the same petitioner, from one preference classification to another, so as to reflect a change in either the alien’s or his sponsor’s status. In the rest of the CSPA, as in the prior immigration regulation, that is what “conversion” means.
And if the term meant more than that in §1153(h)(3), it would undermine the family preference system’s core
——————
years, and thus is equally irrelevant to what Congress intended. See 71 Fed. Reg. 35732, 35749 (2006) (adding 8 CFR §204.2(i)(1)(iv)). Moreover, both provisions relate to a sui generis circumstance in which a person can self-petition for a visa because her U. S. citizen or LPR relative either died or engaged in domestic abuse. In that situation, the alien’s eligibility rests throughout on her connection to the deceased or abusive relative; no new party must ever come in, as one has to in a case like Wang, to salvage a no-longer-effective petition. See infra, at 18 (addressing the problems that the substitution of a new petitioner raises).

18

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
premise: that each immigrant must have a qualified sponsor. Consider the alternative addressed in Wang—if “automatic conversion” were also to encompass the substitution of a new petitioner for the old one, to make sure the aged-out alien’s petition fits into a new preference category. In a case like Wang, recall, the original sponsor does not have a legally recognized relationship with the agedout derivative beneficiary (they are aunt and niece); accordingly, the derivative’s father—the old principal beneficiary—must be swapped in as the petitioner to enable his daughter to immigrate. But what if, at that point, the father is in no position to sponsor his daughter? Suppose he decided in the end not to immigrate, or failed to pass border inspection, or died in the meanwhile. Or suppose he entered the country, but cannot sponsor a relative’s visa because he lacks adequate proof of parentage or committed a disqualifying crime. See §1154(a)(1)(B)(i)(II); 8 CFR §204.2(d)(2); supra, at 4. Or suppose he does not want to—or simply cannot—undertake the significant financial obligations that the law imposes on someone petitioning for an alien’s admission. See 8 U. S. C. §§1183a(a)(1)(A), (f )(1)(D); supra, at 5. Immigration officials cannot assume away all those potential barriers to entry: That would run counter to the family preference system’s insistence that a qualified and willing sponsor back every immigrant visa. See §§1154(a)–(b). But neither can they easily, or perhaps at all, figure out whether such a sponsor exists unless he files and USCIS approves a new petition—the very thing §1153(h)(3) says is not required.
Indeed, in cases like Wang, the problem is broader: Under the statute’s most natural reading, a new qualified sponsor will hardly ever exist at the moment the petition is to be “converted.” Section 1153(h)(3), to be sure, does not explicitly identify that point in time. But §1153(h)(1) specifies the date on which a derivative beneficiary is

Cite as: 573 U. S. ____ (2014)

19

Opinion of KAGAN, J.
deemed to have either aged out or not: It is “the date on which an immigrant visa number became available for the alien’s parent.” See §§1153(h)(1)(A)–(B). Because that statutory aging out is the one and only thing that triggers automatic conversion for eligible aliens, the date of conversion is best viewed as the same. That reading, moreover, comports with the “automatic conversion” regulation on which Congress drew in enacting the CSPA, see supra, at 16–17: The rule authorizes conversions “upon” or “as of the date” of the relevant change in the alien’s status (including turning 21))—regardless when USCIS may receive notice of the change. 8 CFR §204.2(i); but cf. post, at 14 (SOTOMAYOR, J., dissenting) (wrongly stating that under that rule conversion occurs upon the agency’s receipt of proof of the change). But on that date, no new petitioner will be ready to step into the old one’s shoes if such a substitution is needed to fit an aged-out beneficiary into a different category. The beneficiary’s parent, on the day a “visa number became available,” cannot yet be an LPR or citizen; by definition, she has just become eligible to apply for a visa, and faces a wait of at least several months before she can sponsor an alien herself. Nor, except in a trivial number of cases, is any hitherto unidentified person likely to have a legally recognized relationship to the alien. So if an aged-out beneficiary has lost his qualifying connection to the original petitioner, no conversion to an “appropriate category” can take place at the requisite time. As long as immigration law demands some valid sponsor, §1153(h)(3) cannot give such an alien the designated relief.
On the above account—in which conversion entails a simple reslotting of an original petition into a nowappropriate category—§1153(h)(3)’s back half provides a remedy to two groups of aged-out beneficiaries. First, any child who was the principal beneficiary of an F2A petition (filed by an LPR parent on his behalf) can take advantage

20

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
of that clause after turning 21. He is, upon aging out, the adult son of the same LPR who sponsored him as a child; his petition can therefore be moved seamlessly—without the slightest alteration or delay—into the F2B category. Second, any child who was the derivative beneficiary of an F2A petition (filed by an LPR on his spouse’s behalf) can similarly claim relief, provided that under the statute, he is not just the spouse’s but also the petitioner’s child.11 Such an alien is identically situated to the aged-out principal beneficiary of an F2A petition; indeed, for the price of another filing fee, he could just as easily have been named a principal himself. He too is now the adult son of the original LPR petitioner, and his petition can also be instantly relabeled an F2B petition, without any need to substitute a new sponsor or make other revisions. In each case, the alien had a qualifying relationship before he was 21 and retains it afterward; all that must be changed is the label affixed to his petition.12
In contrast, as the Board held in Wang, the aged-out derivative beneficiaries of the other family preference categories—like the sons and daughters of the respondents here—cannot qualify for “automatic conversion.” Recall that the respondents themselves were principal beneficiaries of F3 and F4 petitions; their children, when under 21, counted as derivatives, but lacked any qualifying preference relationship of their own. The F3 derivatives were the petitioners’ grandsons and granddaughters;
——————
11 Given the statute’s broad definition of “child,” the only F2A derivative beneficiaries who fall outside that proviso are stepchildren who were over the age of 18 when the petitioner married the spousal beneficiary. See §1101(b)(1)(B). The Government represents that thousands of children are designated as F2A derivatives every year. See Reply Brief 18, n. 13.
12 It is, therefore, impossible to understand the dissent’s statement that conversion of such a petition to an appropriate category requires “ ‘substantive alteration’ to [the] petition.” See post, at 19, n. 8 (opinion of SOTOMAYOR, J.).

Cite as: 573 U. S. ____ (2014)

21

Opinion of KAGAN, J.
the F4 derivatives their nephews and nieces; and none of those are relationships Congress has recognized as warranting a family preference. See 8 U. S. C. §§1153(a)(3)– (4). Now that the respondents’ children have turned 21, and they can no longer ride on their parents’ coattails, that lack of independent eligibility makes a difference. For them, unlike for the F2A beneficiaries, it is impossible simply to slide the original petitions from a (no-longerappropriate) child category to a (now-appropriate) adult one. To fit into a new category, those aged-out derivatives, like Wang’s daughter, must have new sponsors—and for all the reasons already stated, that need means they cannot benefit from “automatic conversion.”
All that said, we hold only that §1153(h)(3) permits—not that it requires—the Board’s decision to so distinguish among aged-out beneficiaries. That is because, as we explained earlier, the two halves of §1153(h)(3) face in different directions. See supra, at 14. Section 1153(h)(3)’s first part—its conditional phrase—encompasses every aged-out beneficiary of a family preference petition, and thus points toward broad-based relief. But as just shown, §1153(h)(3)’s second part—its remedial prescription— applies only to a narrower class of beneficiaries: those aliens who naturally qualify for (and so can be “automatically converted” to) a new preference classification when they age out. Were there an interpretation that gave each clause full effect, the Board would have been required to adopt it. But the ambiguity those ill-fitting clauses create instead left the Board with a choice—essentially of how to reconcile the statute’s different commands. The Board, recognizing the need to make that call, opted to abide by the inherent limits of §1153(h)(3)’s remedial clause, rather than go beyond those limits so as to match the sweep of the section’s initial condition. On the Board’s reasoned view, the only beneficiaries entitled to statutory relief are those capable of obtaining the remedy designated. When

22

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
an agency thus resolves statutory tension, ordinary principles of administrative deference require us to defer. See National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 666 (2007) (When a statutory scheme contains “a fundamental ambiguity” arising from “the differing mandates” of two provisions, “it is appropriate to look to the implementing agency’s expert interpretation” to determine which “must give way”).
III
The respondents urge us to overturn the Board’s judgment for three independent reasons. First, and principally, they take issue with the Board’s—and now our—view of the limits associated with “automatic conversion”: They argue that every aged-out beneficiary’s petition can “automatically be converted” to an “appropriate category,” and that the two halves of §1153(h)(3) are thus reconcilable. Second, the respondents contend that even if “automatic conversion” does not extend so far, §1153(h)(3) separately entitles each such beneficiary to the benefit of his original petition’s priority date. And third, they claim that the Board’s way of resolving whatever ambiguity inheres in §1153(h)(3) is arbitrary and capricious. The dissenting opinion reiterates the first two arguments, though with slight variation and in opposite order, while forgoing the third. See post, at 9–19 (opinion of SOTOMAYOR, J.) (hereinafter the dissent). We find none of the contentions persuasive.
A
The respondents (and the dissent) initially aver that every aged-out beneficiary (including their own sons and daughters) can “automatically be converted” to an “appropriate” immigration category, if only immigration officials try hard enough. The Government, in the respondents’ view, can accomplish that feat by substituting new spon-

Cite as: 573 U. S. ____ (2014)

23

Opinion of KAGAN, J.
sors for old ones, and by “managing the timing” of every conversion to ensure such a new petitioner exists on the relevant date. Brief for Respondents 33. And because, the respondents say, it is thus possible to align the two halves of §1153(h)(3)—even if through multiple administrative maneuvers—immigration officials are under an obligation to do so. We disagree, for reasons that should sound familiar: Several are the same as those we have just given for upholding the Board’s interpretation. But still, we walk through the respondents’ argument step-by-step, to show how far it departs from any ordinary understanding of “automatic conversion.”
The first (and necessary) premise of that argument does not augur well for the remainder: It is the view that the “automatic conversion” procedure permits a change in the petitioner’s identity. According to the respondents, the aged-out beneficiaries’ parents, upon becoming LPRs, can be subbed in for the original sponsors (i.e., the beneficiaries’ grandparents, aunts, and uncles), and the petitions then converted to the F2B category. But as we have shown, the “automatic conversion” language—as most naturally read and as long used throughout immigration law—contemplates merely moving a petition into a new and valid category, not changing its most essential feature. See supra, at 15–17. That alone defeats the respondents’ position.
And a further problem follows—this one concerning the date of automatic conversion. The respondents need that date to come at a time when the derivative beneficiaries’ parents (the substitute petitioners) are already living in the United States as LPRs; otherwise, the petitions could not qualify for the F2B box. In an attempt to make that possible, the respondents propose that conversion be viewed as taking place when “the derivative beneficiary’s visa . . . application is adjudicated.” Brief for Respondents 29. But as we have (again) demonstrated, the statute is

24

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
best read as establishing a different date: that “on which an immigrant visa number became available for the alien’s parent”—when, by definition, the parent is not yet an LPR. §1153(h)(1); see supra, at 18–19. That is the moment when a derivative ages out, which is the single change conversion reflects. By contrast, the respondents’ suggested date has no connection to that metamorphosis; the date of adjudication is merely when an immigration official later discovers that a child has turned 21. And that date is itself fortuitous, reflecting no more than when an immigration officer got around to reviewing a visa application: The possibility of conversion would thus depend on bureaucratic vagaries attending the visa process. So the respondents’ mistaken view of the timing of conversion is another off-ramp from their argument.13
——————
13 Still, the respondents’ view of the timing of conversion is better than the dissent’s. As an initial matter, the dissent’s objection to assessing conversion as of the date a visa becomes available hinges on an imaginary difficulty. That approach, the dissent complains, cannot be right because that date always “occurs before the point at which the child is determined to have aged-out.” Post, at 15. Well, yes. The date a visa becomes available is, under the statute, the date an alien ages out (or not); and that status change of course occurs before an immigration official, reviewing a visa application, finds that it has done so. But what of it? When an official determines that an alien was no longer a child on the date a visa became available, he also assesses whether automatic conversion was available to the alien as of that prior date. In other words, here as elsewhere in immigration law, conversion occurs (or not) upon the date of the relevant status change—and no other. See supra, at 19. And once that is understood, the supposed difficulties the dissent throws up all melt away. At the time of the status change, F2A petitions can be converted without further contingencies, decisions, or delays, whereas no other petitions can. But cf. post, at 16, 17, n. 7 (countering, irrelevantly, that after an F2A petition is automatically converted, additional steps remain in the immigration process). And immigration officials later reviewing visa applications know that fact, and can treat the different classes of aged-out beneficiaries accordingly.
Further, the dissent compounds its error by suggesting a baseless alternative date: “the moment when USCIS receives proof,” no matter

Cite as: 573 U. S. ____ (2014)

25

Opinion of KAGAN, J.
Yet there is more—because even after substituting a new petitioner and delaying the conversion date in a way the statute does not contemplate, the respondents must propose yet further fixes to make “automatic” conversion work for their sons and daughters. The respondents’ next problem is that even on the conversion date they propose, most of them (and other derivatives’ parents) were not yet LPRs, and so could not possibly be sponsors. In the ordinary course, principal and derivative beneficiaries living abroad apply for their visas at the same time and go to the consulate together for back-to-back interviews. See supra, at 6. And even if the parent is approved first, that alone does not make her an LPR; she still must come to this country, demonstrate her continued eligibility, and pass an inspection. See ibid. Thus, the respondents must recommend changes to the visa process to get the timing to work—essentially, administrative juggling to hold off the derivative beneficiary’s visa adjudication until his parent has become an LPR. In particular, they suggest that the consular official defer the derivative’s interview, or that the official nominally “reject the application” and then instruct the derivative to “reapply after the principal beneficiary immigrates.” Brief for Respondents 30. But the need for that choreography (which, in any event, few if any of the respondents conformed to) renders the conversion process only less “automatic,” because now it requires special intervention, purposeful delay, and deviation from

——————
how far in the future, that a new petitioner stands ready and willing to sponsor an aged-out beneficiary. Post, at 15. Not even the respondents propose such a date, and for good reason. It has no grounding in the CSPA or in any regulatory practice, and it bears no connection to the timing of the status change (aging out) that triggers conversion (or even, as the respondents’ date does, to the later determination of that change). The only thing appearing to support the dissent’s date is a single-minded resolve, statutory text and administrative practice notwithstanding, to grant relief to every possible aged-out beneficiary.

26

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
standard administrative practice. Conversion has become not a machine that would go of itself, but a process painstakingly managed.
And after all this fancy footwork, the respondents’ scheme still cannot succeed, because however long a visa adjudication is postponed, a derivative’s parent may never become able to sponsor a relative’s visa—and immigration officials cannot practicably tell whether a given parent has done so. We have noted before the potential impediments to serving as a petitioner—including that a parent may not immigrate, may not qualify as a sponsor, or may not be able to provide the requisite financial support. See supra, at 17–18. The respondents offer no way to deal with those many contingencies. Require the parent to submit a new petition? But the entire point of automatic conversion (as the respondents themselves agree) is to obviate the need for such a document. See Brief for Respondents 30, 42. Investigate the parent’s eligibility in some other way? But even were that possible (which we doubt) such an inquiry would not square with the essential idea of an automatic process. Disregard the possibility that no legal sponsor exists? But then visas would go, inevitably and not infrequently, to ineligible aliens. And so the workarounds have well and truly run out on the respondents’ argument.14
——————
14 Nor does the dissent offer any serious aid to the respondents. The dissent initially acknowledges that automatic conversion cannot involve “additional decisions, contingencies, or delays.” Post, at 13. But no worries, the dissent continues: “[O]nce [an alien’s parent] provides confirmation of her eligibility to sponsor” the aged-out alien, the original petition “can automatically be converted to an F2B petition, with no additional decision or contingency” or (presumably) delay. Post, at 14. Think about that: Once every decision, contingency, and delay we have just described is over (and a parent has at long last turned out to be a viable sponsor), the dissent assures us that no further decisions, contingencies, and delays remain. Or, put differently, there are no contingencies after all the contingencies have been resolved; no deci-

Cite as: 573 U. S. ____ (2014)

27

Opinion of KAGAN, J.
That leaves us with the same statutory inconsistency with which we began. Having followed each step of the respondents’ resourceful (if Rube Goldbergish) argument, we still see no way to apply the concept of automatic conversion to the respondents’ children and others like them. And that means we continue to face a statute whose halves do not correspond to each other—giving rise to an ambiguity that calls for Chevron deference.
B
The respondents, however, have another idea for reconciling §1153(h)(3)’s front and back parts (and this back-up claim becomes the dissent’s principal argument). Recall that the section’s remedial clause instructs that “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 respondents (and the dissent) ask us to read the italicized language as conferring a benefit wholly independent of automatic conversion. On that view, aged-out derivatives, even though ineligible for conversion, could “retain the[ir] original priority date[s]” if their parents file a new petition (as the respondents in fact did here “as a protective matter,” Tr. of Oral Arg. 55). And then, everyone encompassed in §1153(h)(3)’s first clause would get at least some form of relief (even if not both forms) from the section’s second. For this argument, the respondents principally rely on the word “and”: “Where the word ‘and’ connects two” phrases as in §1153(h)(3)’s back half, the respondents contend, those terms “operate independently.”
——————
sions after all the decisions have been made; and no delay after all the delay has transpired. And as if that argument were not awkward enough, consider that it would make automatic conversion turn on the filing of a new document that shows the parent’s eligibility to sponsor her aged-out son or daughter—the very thing, as all parties agree, that conversion is supposed to render unnecessary. See supra, at 18, 26.

28

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
Brief for Respondents 39; see post, at 9. But the conjunction “and” does not necessarily disjoin
two phrases in the way the respondents say. In some sentences, no doubt, the respondents have a point. They use as their primary example: “[I]f the boat takes on water, then you shall operate the bilge pump and you shall distribute life jackets.” Brief for Respondents 39; see also post, at 10 (offering further examples). We agree that “you shall distribute life jackets” functions in that sentence as an independent command. But we can come up with many paired dictates in which the second is conditional on the first. “If the price is reasonable, buy two tickets and save a receipt.” “If you have time this summer, read this book and give me a report.” Or, shades of this case: “If your cell-phone contract expires, buy a new phone and keep the old number.”15 In each case, the second command functions only once the first is accomplished. Whether “and” works in that way or in the respondents’ depends, like many questions of usage, on the context. See, e.g., Caraco Pharmaceutical Laboratories, Ltd. v.
——————
15 The dissent appears to think that something helpful to its view follows from repeating the word “shall” and changing the subject of the commands. See post, at 9–10. But that is not so, as some further examples show. “If you advance to the next round, my assistant shall schedule an interview and you shall come in to answer questions.” “If the plane is low on fuel, the tanks shall be refilled and the pilot shall fly the route as scheduled.” In these sentences, as in our prior ones, the second command is conditional on the first; all that differs is that these sentences are (much like statutes) more formal and stilted. And the dissent’s citation of United States v. Ron Pair Enterprises, Inc., 489 U. S. 235 (1989), adds nothing to its argument. There, we construed the following provision: “[T]here shall be allowed to the holder of [a secured] claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.” Id., at 241. We held that the phrase “provided for under the agreement” qualifies the words “any reasonable fees, costs, or charges,” but not the words “interest on such claim.” Id., at 241–242. What relevance that interpretation bears to this case eludes us.

Cite as: 573 U. S. ____ (2014)

29

Opinion of KAGAN, J.
Novo Nordisk A/S, 566 U. S. ___, ___ (2012). Here, we think, context compels the Board’s view that
the instructions work in tandem. The first phrase instructs immigration officials to convert a petition (when an “appropriate category” exists); the next clarifies that such a converted petition will retain the original priority date, rather than receive a new one corresponding to the date of conversion. That reading comports with the way retention figures in other statutory and regulatory provisions respecting “conversions”; there too, retention of a priority date is conditional on a conversion occurring. See 8 U. S. C. §§1154(k)(1)–(3); 8 CFR §204.2(i); supra, at 16. The respondents wish to unhook the “retention” phrase from that mooring, and use it to explain what will attend a different event—that is, the filing of a new petition. But that is to make “retention” conditional on something the statute nowhere mentions—a highly improbable thing for Congress to have done. (If, once again, a teacher says to “read this book and give me a report,” no one would think he wants a report on some unidentified subject.) And indeed, the respondents’ and dissent’s own examples prove this point: In not a single one of their proffered sentences is the second command contingent on the occurrence of some additional, unstated event, as it would have to be under the respondents’ construction of §1153(h)(3); rather, each such command (e.g., “distribute life jackets”) flows directly from the stated condition (e.g., “if the boat takes on water”). So by far the more natural understanding of §1153(h)(3)’s text is that retention follows conversion, and nothing else.
The respondents’ contrary view would also engender unusual results, introducing uncertainty into the immigration system’s operation and thus interfering with statutory goals. Were their theory correct, an aged-out alien could hold on to a priority date for years or even decades while waiting for a relative to file a new petition.

30

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
Even if that filing happened, say, 20 years after the alien aged out, the alien could take out his priority-date token, and assert a right to spring to the front of any visa line. At that point, USCIS could well have a hard time confirming the old priority date, in part because the names of derivative beneficiaries need not be listed on a visa petition. And the possibility of such leap-frogging from many years past would impede USCIS’s publication of accurate waiting times. As far as we know, immigration law nowhere else allows an alien to keep in his pocket a priority date untethered to any existing valid petition. Without some clearer statement, we cannot conclude Congress intended here to create such a free-floating, open-ended entitlement to a defunct petition’s priority date. See Wang, 25 I. & N. Dec., at 36.16

——————
16 The dissent claims that USCIS “administered priority date retention in exactly this manner” before the CSPA’s enactment, post, at 10, but that confident assertion is just not so—or at least not in any way that assists the respondents. The dissent principally relies on 8 CFR §204.2(a)(4), which prior to the CSPA’s enactment permitted an agedout F2A derivative beneficiary to retain his old priority date “if [a] subsequent petition is filed by the same petitioner” as filed the original. Far from authorizing an open-ended, free-floating entitlement, that now-superseded regulation allowed an alien to keep his priority date only if he (unlike the respondents’ offspring) had a qualifying relationship with the initial petitioner—that is, only if he fell within the group that the BIA in Wang thought entitled to relief. See 25 I. & N. Dec., at 34–35. And the other provisions the dissent cites (which, unlike §204.2(a)(4), continue to operate) similarly fail to support the dissent’s position, because they enable an alien to retain a priority date only if attached to an existing valid petition. See 8 U. S. C. §1154(k)(3) (permitting an alien to retain a priority date associated with an existing F2B petition); 8 CFR §204.5(e) (permitting an alien to retain a priority date associated with an existing employment-based petition); §204.12(f)(1) (permitting an alien to retain a priority date associated with an existing employment-based petition for immigrating physicians).

Cite as: 573 U. S. ____ (2014)

31

Opinion of KAGAN, J.
C
Finally, the respondents contend that even if §1153(h)(3) points at once in two directions—toward a broader scope in its first half and a narrower one in its second—the BIA acted unreasonably in choosing the more restrictive reading. In their view, the Board has offered no valid reason, consistent with “the purposes and concerns of the immigration laws,” to treat their own sons and daughters less favorably than aliens who were principal and derivative beneficiaries of F2A petitions. Brief for Respondents 47. Indeed, the respondents suggest that the BIA, “for its own unfathomable reasons, disapproves of Congress’s decision to allow any aged-out” aliens to get relief, and has thus “limited [§1153(h)(3)] to as few derivative beneficiaries as possible.” Id., at 55.
We cannot agree. At the least, the Board’s interpretation has administrative simplicity to recommend it. Under that view, immigration authorities need only perform the kind of straightforward (i.e., “automatic”) conversion they have done for decades—moving a petition from one box to another to reflect a given status change like aging out. See Wang, 25 I. & N. Dec., at 36. The respondents, as we have shown, would transform conversion into a managed, multi-stage process, requiring immigration and consular officials around the world to sequence and delay every aged-out alien’s visa adjudication until they are able to confirm that one of his parents had become a qualifying and willing F2B petitioner. And according to the Government’s (incomplete) statistics, that would have to happen in, at a minimum, tens of thousands of cases every year. See Reply Brief 18, n. 13.
Still more important, the Board offered a cogent argument, reflecting statutory purposes, for distinguishing between aged-out beneficiaries of F2A petitions and the respondents’ sons and daughters. See Wang, 35 I. & N. Dec., at 38. As earlier explained, the F2A beneficiaries

32

SCIALABBA v. CUELLAR DE OSORIO

Opinion of KAGAN, J.
have all had a qualifying relationship with an LPR for the entire period they have waited in line—i.e., since their original priority dates. See supra, at 19–20. That means that when immigration authorities convert their petitions, they will enter the F2B line at the same place as others who have had a comparable relationship for an equal time. The conversion thus fits with the immigration law’s basic first-come-first-served rule. See 8 U. S. C. §1153(e); supra, at 4. By contrast, the derivative beneficiaries of F3 and F4 petitions, like the respondents’ sons and daughters, lacked any qualifying relationship with a citizen or LPR during the period they waited in line. See supra, at 20–21. They were, instead, the grandchildren, nieces, or nephews of citizens, and those relationships did not independently entitle them to visas. If such aliens received relief under §1153(h)(3), they would jump over thousands of others in the F2B line who had a qualifying relationship with an LPR for a far longer time. That displacement would, the Board reasonably found, scramble the priority order Congress prescribed.
The argument to the contrary assumes that the respondents’ sons and daughters should “receive credit” for all the time the respondents themselves stood in line. Brief for Respondents 50. But first, the time the respondents spent waiting for a visa may diverge substantially from the time their children did. Suppose, for example, that one of the respondents had stood in the F4 queue for 15 years, and with just 4 years to go, married someone with a 17-year-old son. Under the respondents’ reading, that derivative beneficiary, after aging out, would get the full benefit of his new parent’s wait, and so displace many thousands of aliens who (unlike him) had stood in an immigration queue for nearly two decades. And second, even when the derivative qualified as such for all the time his parent stood in line, his status throughout that period hinged on his being that parent’s minor child. If his par-

Cite as: 573 U. S. ____ (2014)

33

Opinion of KAGAN, J.
ent had obtained a visa before he aged out, he would have been eligible for a visa too, because the law does not demand that a prospective immigrant abandon a minor child. But if the parent had died while waiting for a visa, or had been found ineligible, or had decided not to immigrate after all, the derivative would have gotten nothing for the time spent in line. See supra, at 5–6. Similarly, the Board could reasonably conclude, he should not receive credit for his parent’s wait when he has become old enough to live independently. In the unavoidably zerosum world of allocating a limited number of visas, the Board could decide that he belongs behind any alien who has had a lengthier stand-alone entitlement to immigrate.
IV
This is the kind of case Chevron was built for. Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly. Confronted with a selfcontradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law. Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role. We decline that path, and defer to the Board.
We therefore reverse the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.

Cite as: 573 U. S. ____ (2014)

1

ROBERTS, C. J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–930
_________________
LORI SCIALABBA, ACTING DIRECTOR, UNITED 
 STATES CITIZENSHIP AND IMMIGRATION 
 SERVICES, ET AL., PETITIONERS v. ROSA-
 LINA CUELLAR DE OSORIO ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 9, 2014] 

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA joins, concurring in the judgment.
I agree with much of the plurality’s opinion and with its conclusion that the Board of Immigration Appeals reasonably interpreted 8 U. S. C. §1153(h)(3). I write separately because I take a different view of what makes this provision “ambiguous” under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984).
As the plurality reads section 1153(h)(3), the statute’s two clauses address the issue before the Court “in divergent ways” and “do not easily cohere with each other.” Ante, at 14. For the plurality, the first clause looks “toward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family preference petition,” while the second clause offers narrower relief that can help “only a subset of those beneficiaries.” Ibid. Such “ill-fitting clauses,” the plurality says, “left the Board with a choice—essentially of how to reconcile the statute’s different commands.” Ante, at 21.
To the extent the plurality’s opinion could be read to suggest that deference is warranted because of a direct conflict between these clauses, that is wrong. Courts defer to an agency’s reasonable construction of an ambiguous

2

SCIALABBA v. CUELLAR DE OSORIO

ROBERTS, C. J., concurring in judgment
statute because we presume that Congress intended to assign responsibility to resolve the ambiguity to the agency. Chevron, supra, at 843–844. But when Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Direct conflict is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice. Chevron is not a license for an agency to repair a statute that does not make sense.1
I see no conflict, or even “internal tension,” ante, at 14, in section 1153(h)(3). See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000) (we must “interpret the statute ‘as a symmetrical and coherent regulatory scheme,’ and ‘fit, if possible, all parts into a[ ] harmonious whole’ ” (citation omitted)).
The statute reads:
“If the age of an alien is determined under [section 1153(h)(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.” §1153(h)(3).
The first clause states a condition—one that beneficiaries from any preference category can meet—and thereby
——————
1 National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644 (2007), is not to the contrary. There the Court confronted two different statutes, enacted to address different problems, that presented “seemingly categorical—and, at first glance, irreconcilable— legislative commands.” Id., at 661. We deferred to an agency’s reasonable interpretation, which “harmonize[d] the statutes,” in large part because of our strong presumption that one statute does not impliedly repeal another. Id., at 662–669. Home Builders did not address the consequences of a single statutory provision that appears to give divergent commands.

Cite as: 573 U. S. ____ (2014)

3

ROBERTS, C. J., concurring in judgment
defines the persons potentially affected by this provision. But the clause does not grant anything to anyone. I disagree with the plurality that the first clause “points toward broad-based relief,” ante, at 21, because I do not think the first clause points toward any relief at all.2
Imagine a provision of the Tax Code that read: “If a student is determined to be enrolled at an accredited university, the student’s cost of off-campus housing shall be deductible on her tax return.” It would be immediately apparent from that provision that an enrolled student who lives on campus is not entitled to the deduction, even though the student falls within the conditional first clause. And yet no one would describe the two clauses as being in tension. If the Internal Revenue Service then interpreted the term “cost of off-campus housing” to exclude payments by a student who rents a home from his parents, a court would determine whether that interpretation was reasonable. The same is true in this case.3
The particular benefit provided by section 1153(h)(3) is found exclusively in the second clause—the only operative
——————
2 For the same reason, I do not agree with the contention in JUSTICE SOTOMAYOR’s dissent that the first clause of section 1153(h)(3) unambiguously “answers the precise question in this case.” Post, at 6.
3 JUSTICE SOTOMAYOR’s dissent accuses me of “ignor[ing]” the first clause of section 1153(h)(3), “treating [that] clause as a nullity,” and denying the clause “effect.” Post, at 20–21. But that point is correct only if the reader adopts JUSTICE SOTOMAYOR’s own premise, that the first clause has operative effect on its own. I give the statute’s first clause precisely the (limited) effect it is meant to have: it defines who is potentially affected by section 1153(h)(3). JUSTICE SOTOMAYOR’s response to the campus housing example proves my point by acknowledging that who gets relief under a statute depends entirely on the meaning of the statute’s operative provision, not on the reach of the introductory clause. See post, at 21. The Court would not reject a reasonable interpretation of the term “cost of off-campus housing,” as JUSTICE SOTOMAYOR’s dissent would, simply because the IRS could have interpreted the term to cover more students who fall within the prefatory clause.

4

SCIALABBA v. CUELLAR DE OSORIO

ROBERTS, C. J., concurring in judgment
provision. There we are told what an aged-out beneficiary (from whatever preference category) is entitled to: His petition “shall automatically be converted to the appropriate category and the alien shall retain the original priority date.” §1153(h)(3). But automatic conversion is not possible for every beneficiary in every preference category, as the plurality convincingly demonstrates. Ante, at 15–19. Automatic conversion requires, at minimum, that the beneficiary have his own sponsor, who demonstrates that he is eligible to act as a sponsor, and who commits to providing financial support for the beneficiary. Ante, at 18. Some aged-out children will not meet those prerequisites, and they cannot benefit from automatic conversion even under respondents’ interpretation of the statute.4
Beyond those requirements, however, Congress did not speak clearly to which petitions can “automatically be converted.” §1153(h)(3). Whatever other interpretations of that provision might be possible, it was reasonable, for the reasons explained by the plurality, for the Board to interpret section 1153(h)(3) to provide relief only to a child who was a principal or derivative beneficiary of an F2A petition. That interpretation is consistent with the ordinary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration system. Ante, at 15–20. It also avoids the problems that would flow from respondents’ proposed alternative interpretations, including the suggestion that retention of the original priority date provides a benefit wholly separate from automatic conversion. Ante, at 18–19, 22–32.
I concur in the judgment.

——————
4 JUSTICE SOTOMAYOR’s dissent is wrong that “the relief promised in §1153(h)(3) (priority date retention and automatic conversion) can be given” to every aged-out child in every preference category, post, at 21, and it therefore follows that the statute is ambiguous.

Cite as: 573 U. S. ____ (2014)

1

ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–930
_________________
LORI SCIALABBA, ACTING DIRECTOR, UNITED 
 STATES CITIZENSHIP AND IMMIGRATION 
 SERVICES, ET AL., PETITIONERS v. ROSA-
 LINA CUELLAR DE OSORIO ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 9, 2014]

JUSTICE ALITO, dissenting.
I agree with many of JUSTICE SOTOMAYOR’s criticisms of the plurality opinion. I also agree with THE CHIEF JUSTICE’s critique of the plurality’s suggestion that, when two halves of a statute “do not easily cohere with each other,” an agency administering the statute is free to decide which half it will obey. Ante, at 14. After all, “[d]irect conflict is not ambiguity, and the resolution of such conflict is not statutory construction but legislative choice.” Ante, at 2 (ROBERTS, C. J., concurring in judgment). While I, like JUSTICE SOTOMAYOR, would affirm the Court of Appeals, my justification for doing so differs somewhat from hers.
As I see it, the question before us is whether there is or is not an “appropriate category” to which the petitions for respondents’ children may be converted. If there is, the agency was obligated by the clear text of 8 U. S. C. §1153(h)(3) to convert the petitions and leave the children with their original priority dates. Any such conversion would be “automatic,” because the agency’s obligation to convert the petitions follows inexorably, and without need for any additional action on the part of either respondents or their children, from the fact that the children’s ages

2

SCIALABBA v. CUELLAR DE OSORIO

ALITO, J., dissenting
have been calculated to be 21 or older.1 If there is not an appropriate category, then the agency was not required to convert the petitions.
By the time respondents became legal permanent residents and filed new petitions for their children (if not sooner), there existed an appropriate category to which the original petitions could be converted. That is because at that point the children all qualified for F2B preference status, as unmarried, adult children of legal permanent residents. Accordingly, the agency should have converted respondents’ children’s petitions and allowed them to retain their original priority dates.2
Section 1153(h)(3) is brief and cryptic. It may well contain a great deal of ambiguity, which the Board of Immigration Appeals in its expertise is free to resolve, so long as its resolution is a “permissible construction of the statute.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). But the statute is clear on at least one point: “If the age of an alien is determined under [§1153(h)(1)] to be 21 years of age or older . . . , 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” (emphasis added). The Board was not free to disregard this clear statutory command.

——————
1 I do not believe the term “converted” demands the interpretation the plurality gives it, for the reasons advanced in JUSTICE SOTOMAYOR’s dissenting opinion.
2 The Government does not argue that respondents’ children were ineligible for relief because, as a factual matter, their ages were never “determined . . . to be 21 years of age or older,” §1153(h)(3), after an appropriate category became available. I therefore do not opine on this issue.

Cite as: 573 U. S. ____ (2014)

1

SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–930
_________________
LORI SCIALABBA, ACTING DIRECTOR, UNITED 
 STATES CITIZENSHIP AND IMMIGRATION 
 SERVICES, ET AL., PETITIONERS v. ROSA-
 LINA CUELLAR DE OSORIO ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 9, 2014]

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins, and with whom JUSTICE THOMAS joins except as to footnote 3, dissenting.
Although the workings of our Nation’s immigration system are often complex, the narrow question of statutory interpretation at the heart of this case is straightforward. Which aged-out children are entitled to retain their priority dates: derivative beneficiaries of visa petitions in all five family-preference categories, or derivative beneficiaries of petitions in only one category? The initial clause of 8 U. S. C. §1153(h)(3) provides a clear answer: Aged-out children may retain their priority dates so long as they meet a single condition—they must be “determined . . . to be 21 years of age or older for purposes of” derivative beneficiary status. Because all five categories of aged-out children satisfy this condition, all are entitled to relief.
Notwithstanding this textual command, the Board of Immigration Appeals (BIA) ruled that four of the five categories of aged-out children to whom §1153(h)(3) unambiguously promises priority date retention, are, in fact, entitled to no relief at all. See Matter of Wang, 25 I. & N. Dec. 28, 38–39 (2009). The Court defers to that interpretation today. In doing so, the Court does not identify any

2

SCIALABBA v. CUELLAR DE OSORIO

SOTOMAYOR, J., dissenting
ambiguity in the dispositive initial clause of §1153(h)(3). Indeed, it candidly admits that the clause mandates relief for “every aged-out beneficiary of a family-preference petition” in any of the five categories. Ante, at 21. The Court nevertheless holds that the BIA was free to ignore this unambiguous text on the ground that §1153(h)(3) also offers aged-out derivative beneficiaries a type of relief— automatic conversion—that it thinks can apply only to one of the five categories. The Court thus perceives a conflict in the statute that, in its view, permits the BIA to override §1153(h)(3)’s initial eligibility clause.
In reaching this conclusion, the Court fails to follow a cardinal rule of statutory interpretation: When deciding whether Congress has “specifically addressed the question at issue,” thereby leaving no room for an agency to fill a statutory gap, courts must “interpret the statute ‘as a . . . coherent regulatory scheme’ and ‘fit, if possible, all parts into [a] harmonious whole.’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132–133 (2000) (citation omitted). Because the Court and the BIA ignore obvious ways in which §1153(h)(3) can operate as a coherent whole and instead construe the statute as a self-contradiction that was broken from the moment Congress wrote it, I respectfully dissent.
I
Under Chevron, the first question we ask when reviewing an agency’s construction of a statute is whether “Congress has directly spoken to the precise question at issue.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984). If it has, then “the court, as well as the agency, must give effect to th[at] unambiguously expressed intent.” Id., at 842–843. Congress has spoken directly to the question in this case.
United States citizens and lawful permanent residents (LPRs) may petition for certain relatives who reside

Cite as: 573 U. S. ____ (2014)

3

SOTOMAYOR, J., dissenting
abroad (known as the “principal beneficiaries” of such petitions) to receive immigrant visas. Congress has defined five categories of eligible relatives—referred to as family-preference categories—with annual limits on the number of visas that may be issued within each category.1 Because the demand for visas outstrips supply, the wait for a visa can often last many years. While a principal beneficiary waits, her place in line is determined based on her “priority date,” the date on which her petition was filed. See §1153(e)(1); 8 CFR §204.1(b) (2014); 22 CFR §42.53(a) (2013). Priority dates are therefore crucial—the earlier one’s priority date, the sooner one’s place will come up in line and a visa will be available. Significantly, when the wait ends and a principal beneficiary finally becomes eligible to apply for a visa, 8 U. S. C. §1153(d) enables the beneficiary’s spouse and minor children (known as “derivative beneficiaries”) to do so too.
This case arises from a common problem: Given the lengthy period prospective immigrants must wait for a visa, a principal beneficiary’s child—although younger than 21 when her parent’s petition was initially filed— often will have turned 21 by the time the parent’s priority date comes up in line. Such a child is said to have “aged out” of derivative beneficiary treatment under §1153(d). By way of example, respondent Norma Uy was the principal beneficiary of an F4 family-preference petition filed by her U. S. citizen sister in February 1981. That petition listed Norma’s daughter, Ruth, who was then two years old, as a derivative beneficiary. If Norma had reached the front of the visa line at any time before Ruth’s 21st birthday, §1153(d) would have enabled Ruth to accompany
——————
1 The five categories are F1 (unmarried adult children of U. S. citizens); F2A (spouses and unmarried minor children of LPRs); F2B (unmarried adult children of LPRs); F3 (married children of U. S. citizens); and F4 (brothers and sisters of U. S. citizens). 8 U. S. C. §§1153(a)(1)–(4).

4

SCIALABBA v. CUELLAR DE OSORIO

SOTOMAYOR, J., dissenting
Norma to the United States. Unfortunately, it took more than two decades for Norma’s priority date to become current, by which point Ruth was 23 and thus too old for derivative beneficiary status under §1153(d). Norma therefore immigrated alone to the United States, where she filed a new F2B petition (for unmarried children of LPRs) on Ruth’s behalf. Before §1153(h)(3) was enacted, however, an immigrant in Ruth’s position would have been unable to retain the February 1981 priority date from her original petition; the law would have instead required her to receive a new priority date all the way at the back of the F2B line.
Congress responded to this problem by enacting §1153(h)(3), a provision entitled “[r]etention of priority date.” It states:
“If the age of an alien is determined under [the formula specified in] paragraph (1)[2] to be 21 years of age or older for the purpos[e] of . . . [§1153(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 provision’s structure is crucial to its meaning. The initial clause (call it the “eligibility clause”) specifies who is eligible for relief. The concluding clause (call it the “relief clause”) describes the two forms of relief to which eligible persons are entitled. As the title of the provision suggests, the main form of relief is the right of an aged-out derivative beneficiary to retain the priority date of her original petition. In Ruth Uy’s case, such relief would mean the difference between resuming her wait near the
——————
2 As the plurality explains, ante, at 9–10, the formula specified in paragraph (1) subtracts out bureaucratic delays resulting from the Government’s review of the relevant immigration paperwork. That formula is not at issue in this case.

Cite as: 573 U. S. ____ (2014)

5

SOTOMAYOR, J., dissenting
front of the F2B line (which would allow her to receive a visa in short order) and being sent to the back of the line (where she would potentially have to wait an additional 27 years). Brief for Respondents 52.
The question in this case is which aged-out beneficiaries of family-preference petitions are eligible for priority date retention: the aged-out beneficiaries of petitions in all five family-preference categories (which would include respondents’ children, who were derivative beneficiaries of F3 and F4 petitions for adult children and adult siblings of U. S. citizens, respectively), or the aged-out beneficiaries of only F2A petitions for spouses and children of LPRs (the interpretation offered by the BIA)?
Congress answered that question in §1153(h)(3)’s eligibility clause, which specifies that relief is to be conferred on any immigrant who has been “determined under [the formula specified in] paragraph (1) to be 21 years of age or older” for the purpose of §1153(d). As the plurality concedes, this clause “states a condition that every aged-out beneficiary of a preference petition satisfies”—that is, it makes eligible for relief aged-out children within each of the F1, F2A, F2B, F3, and F4 categories. Ante, at 14.
Congress made this clear in two mutually reinforcing ways. First, by referring to the formula set forth in “paragraph (1),” the statute incorporates that paragraph’s cross-reference to §1153(h)(2). Section 1153(h)(2) in turn defines the set of covered petitions to include, “with respect to an alien child who is a derivative beneficiary under [§1153(d)], a petition filed . . . for classification of the alien’s parent under [§1153(a)].” And §1153(a) encompasses all five family-preference categories. See §§1153(a)(1)–(4). Second, §1153(h)(3) promises relief to those who are found to be 21 “for the purpos[e] of . . . [§1153](d),” the provision governing derivative beneficiaries. And that provision also unambiguously covers all five family-preference categories. See §1153(d) (a minor child

6

SCIALABBA v. CUELLAR DE OSORIO

SOTOMAYOR, J., dissenting
is “entitled to the same status” as a parent who is the principal beneficiary of a petition filed under §1153(a)); §1153(a) (setting forth the five family-preference categories).
In short, §1153(h)(3)’s eligibility clause answers the precise question in this case: Aged-out beneficiaries within all five categories are entitled to relief. “[T]he intent of Congress is clear,” so “that is the end of the matter.” Chevron, 467 U. S., at 842.
II
 A 

Because it concedes that §1153(h)(3)’s eligibility clause unambiguously “encompasses every aged-out beneficiary of a family-preference petition,” ante, at 21, the plurality tries to fit this case into a special pocket of Chevron jurisprudence in which it says we must defer to an agency’s decision to ignore a clear statutory command due to a conflict between that command and another statutory provision. See ante, at 14, 21. Thus, unlike in the usual Chevron case, where ambiguity derives from the fact that the text does not speak with sufficient specificity to the question at issue, the plurality argues that this is a case in which ambiguity can only arise—if it is to arise at all—if Congress has spoken clearly on the issue in diametrically opposing ways.3 As the plurality frames it, §1153(h)(3)’s
——————
3 To understand the kind of conflict that can make deference appropriate to an agency’s decision to override unambiguous statutory text, consider the provisions at issue in National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644 (2007). One provision, §402(b) of the Clean Water Act, 33 U. S. C. §1342(b), commanded, “without qualification, that the [Environmental Protection Agency] ‘shall approve’ a transfer application” whenever nine exclusive criteria were satisfied. 551 U. S., at 661. A second provision, §7(a)(2) of the Endangered Species Act of 1973, 16 U. S. C. §1536(a)(2), was “similarly imperative,” ordering “ ‘[e]ach Federal agency’ ” to ensure that its actions were “ ‘not likely to jeopardize’ ” an endangered species. 551

Cite as: 573 U. S. ____ (2014)

7

SOTOMAYOR, J., dissenting
eligibility and relief clauses are “Janus-faced,” and that conflict “makes possible alternative reasonable constructions.” Ante, at 14.
In rushing to find a conflict within the statute, the plurality neglects a fundamental tenet of statutory interpretation: We do not lightly presume that Congress has legislated in self-contradicting terms. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory. . . . [T]here can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously”). That is especially true where, as here, the conflict that Congress supposedly created is not between two different statutes or even two separate provisions within a single statute, but between two clauses in the same sentence. See ibid. (“[I]t is invariably true that intelligent drafters do not contradict themselves”). Thus, time and again we have stressed our duty to “fit, if possible, all parts [of a statute] into [a] harmonious whole.” FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389 (1959); see also Morton v. Mancari, 417 U. S. 535, 551 (1974) (when two provisions “are capable of co-existence, it is the duty of the courts . . . to regard each as effective”). In reviewing an agency’s construction of a statute, courts “must,” we have emphasized, “interpret the statute ‘as a . . . coherent regulatory scheme’ ” rather than an internally inconsistent muddle, at war with itself and defective from
——————
U. S., at 662. “[A]pplying [§7(a)(2)’s] language literally,” we observed, would contravene the “mandatory and exclusive list of [nine] criteria set forth in §402(b),” because it would “engraf[t] a tenth criterion onto” the statute. Id., at 662–663. The agency accordingly could not “simultaneously obey” both commands: It could consider 9 criteria or 10, but not both. Id., at 666. In that circumstance, we found it appropriate to defer to the agency’s choice as to “which command must give way.” Ibid.

8

SCIALABBA v. CUELLAR DE OSORIO

SOTOMAYOR, J., dissenting
the day it was written. Brown & Williamson, 529 U. S., at 133. And in doing so, courts should “[e]mplo[y] traditional tools of statutory construction.” INS v. Cardoza-Fonseca, 480 U. S. 421, 446 (1987). Each of these cautions springs from a common well: As judicious as it can be to defer to administrative agencies, our foremost duty is, and always has been, to give effect to the law as drafted by Congress.
The plurality contends that deference is appropriate here because, in its view, 8 U. S. C. §1153(h)(3)’s two clauses are “self-contradictory.” Ante, at 33. But far from it being unworkable (or even difficult) for the agency to obey both clauses, traditional tools of statutory construction reveal that §1153(h)’s clauses are entirely compatible.
B
The plurality argues that although §1153(h)(3)’s eligibility clause clearly encompasses aged-out beneficiaries within all five preference categories, the relief clause implies a conflicting “limitation on the eligible class of recipients.” Ante, at 15. The plurality infers that limitation from two premises. First, it contends that no agedout child may retain her priority date unless her petition is also eligible for automatic conversion. And second, it asserts that only aged-out F2A beneficiaries may receive automatic conversion. As a result, the plurality concludes, it was reasonable for the BIA to exclude aged-out children in the four other categories from receiving both automatic conversion and priority date retention, thereby rendering §1153(h)(3)’s eligibility clause defunct.
The plurality’s conclusion is wrong because its premises are wrong. For one, §1153(h)(3) is naturally read to confer priority date retention as an independent form of relief to all aged-out children, regardless of whether automatic conversion is separately available. And even if that were wrong, the plurality’s supposition that only F2A beneficiaries can receive automatic conversion is incorrect on its

Cite as: 573 U. S. ____ (2014)

9

SOTOMAYOR, J., dissenting
own terms. Because either of these interpretations would treat §1153(h)(3) as a coherent whole, the BIA’s construction was impermissible.
1
The most obvious flaw in the plurality’s analysis is its presumption that §1153(h)(3) permits an aged-out child to retain her original priority date only if her petition can be automatically converted. That is incorrect for many reasons.
When an immigrant is determined to have aged out of derivative beneficiary status, §1153(h)(3) prescribes two forms of relief: “[T]he 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.” We have held that when a statute provides two forms of relief in this manner, joined by the conjunction “and,” the two remedies are “distinct.” United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241– 242 (1989). That understanding makes particular sense here, where Congress used the mandatory word “shall” twice, once before each form of relief. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) (“[T]he mandatory [term] ‘shall’ . . . normally creates an obligation impervious to judicial discretion”). Moreover, the two “shall” commands operate on different subjects, further reinforcing that they prescribe distinct remedies: An aged-out “alien’s petition shall automatically be converted,” but it is “the alien” herself who, in all events, “shall retain” her original priority date. §1153(h)(3) (emphasis added).
The plurality responds with a series of examples in which the word “and” is used to join two commands, one of which is—as the plurality asserts here—dependent on another. Ante, at 28, and n. 15. But as the plurality recognizes, ante, at 28, that is hardly the only way the

10

SCIALABBA v. CUELLAR DE OSORIO

SOTOMAYOR, J., dissenting
word can be used. For example: “If today’s baseball game is rained out, your ticket shall automatically be converted to a ticket for next Saturday’s game, and you shall retain your free souvenir from today’s game.” Or: “If you provide the DMV with proof of your new address, your voter registration shall automatically be converted to the correct polling location, and you shall receive in the mail an updated driver’s license.” It is plain in both of these examples that the two commands are distinct—the fan in the first example can keep her free souvenir even if she cannot attend next Saturday’s game; the new resident will receive an updated driver’s license even if she is ineligible to vote. What the plurality does not explain is why we should forgo the same understanding of §1153(h)(3)’s relief clause when that would treat the statute as a coherent whole (and when the plurality’s alternative interpretation would render the statute a walking self-contradiction within the span of a few words).
With the text unavailing, the plurality turns to a policy argument. The plurality worries that if automatic conversion and priority date retention are independent benefits, aged-out beneficiaries will be able to “hold on to a priority date for years . . . while waiting for a relative to file a new petition,” which might hamper U. S. Citizenship and Immigration Services (USCIS) operations. Ante, at 29–30. But the plurality’s fears of administrative inconvenience are belied by the fact that USCIS has administered priority date retention in exactly this manner for years, with no apparent problems. Well before §1153(h)(3) was enacted, a regulation provided aged-out F2A derivative beneficiaries the ability to retain their priority dates without also providing automatic conversion. See 8 CFR §204.2(a)(4) (permitting priority date retention after a “separate petition” is filed); 57 Fed. Reg. 41053, 41059 (1992) (adopting this provision). Indeed, the USCIS continues to instruct field officers that a “separate petition” must be filed in

Cite as: 573 U. S. ____ (2014)

11

SOTOMAYOR, J., dissenting
order for such beneficiaries to “retain” their “original priority date[s].” Adjudicator’s Field Manual, ch. 21.2(c)(5), online at http://www.uscis.gov/iframe/ilink/docView/ AFM/HTML/AFM/0-0-0-1.html (all Internet materials as visited June 5, 2014, and available in Clerk of Court’s case file). The notion that it is somehow impossible for an immigrant to retain her priority date contingent upon the filing of a separate petition is therefore contradicted by years of agency experience.4
——————
4 The plurality does not dispute that USCIS has administered priority date retention as a form of relief independent from automatic conversion for years. Ante, at 30, n. 16. It nonetheless argues that the same approach is impermissible here for the counterintuitive reason that a pre-existing regulation used express language limiting priority date retention to derivative beneficiaries of F2A petitions alone. See ante, at 30, n. 16 (noting that 8 CFR §204.2(a)(4) permitted an aged-out beneficiary to retain her priority date “ ‘if the subsequent petition is filed by the same petitioner’ ”). Congress included no such language to limit the scope of priority date retention in 8 U. S. C. §1153(h)(3), however, which just reinforces what the eligibility clause already makes clear: Priority date retention is independently available for aged-out derivative beneficiaries of all family-preference petitions, not just F2A petitions.
The plurality also fails to account for the numerous other contexts in which USCIS has administered priority date retention as a benefit distinct from automatic conversion. See, e.g., §1154(k)(3) (providing priority date retention to unmarried adult children of LPRs whose parents become naturalized citizens “[r]egardless of whether a petition is converted”); 8 CFR §204.5(e) (“A petition approved on behalf of an alien under [the employment-based immigration provisions of §1153(b)] accords the alien the priority date of the approved petition for any subsequently filed [employment] petition”); §204.12(f)(1) (a “physician beneficiary” who finds a “new employer [who] desir[es] to petition [USCIS] on the physician’s behalf” must submit a new petition, but “will retain the priority date from the initial” petition). Finally, the plurality suggests that priority date retention can operate independently of automatic conversion only if the date to be retained is attached to a valid petition. Ante, at 30, and n. 16. But that cannot be squared with USCIS’s longstanding practice of allowing F2A beneficiaries to retain the priority dates from their no-longer valid petitions upon the filing of a new petition.

12

SCIALABBA v. CUELLAR DE OSORIO

SOTOMAYOR, J., dissenting
In the end, the plurality suggests that we should defer to the BIA’s all-or-nothing approach because “context compels” it. Ante, at 28. Yet fatally absent from the plurality’s discussion of context is any mention of the first clause of the very same provision, which, as the plurality admits, unambiguously confers relief upon all five categories of aged-out children. That clause is dispositive, because—assuming that F2A beneficiaries alone can receive automatic conversion—a reading that treats automatic conversion and priority date retention as independent benefits is the only one that would “produc[e] a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988); see also Home Builders, 551 U. S., at 666 (“ ‘It is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme” ’ ”).
2
Even if it were somehow impossible for an aged-out child to retain her priority date independently of automatic conversion, the plurality is wrong to view automatic conversion as a benefit that F2A beneficiaries alone may enjoy.
Section 1153(h)(3) provides that if an aged-out child qualifies for relief under the statute’s eligibility clause, “the alien’s petition shall automatically be converted to the appropriate category.” Whether an aged-out beneficiary in a given preference category may enjoy this relief turns on how one understands the words “automatically” and “converted.” Because the statute does not define the terms, we apply their ordinary meaning. See Burrage v. United States, 571 U. S. ___, ___ (2014) (slip op., at 6).
The ordinary meaning of “automatic” is “ ‘having the capability of starting, operating, moving, etc., inde-

Cite as: 573 U. S. ____ (2014)

13

SOTOMAYOR, J., dissenting
pendently’ ” based upon some predetermined predicate event, with no “additional decisions, contingencies, or delays.” Ante, at 15 (quoting Random House Webster’s Unabridged Dictionary 140 (2d ed. 2001)). The ordinary meaning of “convert” is “to change (something) into a different form.” Id., at 444. Here, the statute specifies the form into which an aged-out child’s petition shall be changed: another petition in the “appropriate category.” §1153(h)(3). Tying the terms together, then, “automatic conversion” means changing an old petition into a new petition in an appropriate category upon the occurrence of some predicate event, without a further decision or contingency.
All aged-out beneficiaries can have their petitions automatically converted under this definition. Perhaps most sensibly, all five categories of petitions may be converted to an appropriate category, without any further decision or contingency, upon a logical predicate event: when USCIS receives confirmation that an appropriate category exists. To see how this would work, recall the case of Norma Uy, and her daughter, Ruth. Norma was the principal beneficiary of an F4 petition filed by her U. S. citizen sister; Ruth was a derivative beneficiary of the same petition. Because Ruth had aged out of derivative beneficiary status prior to Norma’s reaching the front of the visa line, Norma immigrated to the United States without Ruth. Once Norma became an LPR, however, she also became eligible to file a new petition on Ruth’s behalf under the F2B category (unmarried adult children of LPRs), §1153(a)(2)(B). Thus, once Norma provides confirmation of that eligibility to sponsor Ruth (i.e., that she is an LPR, that Ruth is her daughter, and that she has not committed disqualifying criminal conduct, see ante, at 4), Ruth’s original F4 petition can automatically be converted to an

14

SCIALABBA v. CUELLAR DE OSORIO

SOTOMAYOR, J., dissenting
F2B petition, with no additional decision or contingency.5 Indeed, this is how USCIS already applies automatic
conversion in other contexts. For example, when an LPR has filed an F2A petition on behalf of a spouse or child, and the LPR subsequently becomes a U. S. citizen, a provision entitled “[a]utomatic conversion of preference classification,” 8 CFR §204.2(i), permits the F2A petition to be automatically converted to an “immediate relative” petition, §204.2(i)(3). See ante, at 16. Significantly, the predicate event that triggers this conversion is the agency’s receipt of proof that the petition’s sponsor has become a U. S. citizen—proof, in other words, that there is an appropriate category into which the petition can be converted.6 Section 1153(h)(3)’s automatic conversion remedy can sensibly be administered in the same way.
The plurality’s contrary conclusion that automatic conversion is impossible for all but one category of familypreference petitions hinges on three basic misunderstand-
——————
5 Of course, just like any other beneficiary of a family visa petition, one whose petition has been automatically converted must still satisfy the requirements for actually obtaining a visa. See ante, at 5. For example, all visa applicants must attach an “affidavit of support” from their sponsors. 8 U. S. C. §1182(a)(4)(C)(ii). As is true for any other beneficiary, nothing stops a sponsor from declining to swear their support for the beneficiary of an automatically converted petition after a visa has become available. Converting petitions upon proof of an appropriate category therefore produces no uncertainties or contingencies that do not already exist for all family visa applicants to begin with.
6 See Dept. of State, If You Were an LPR and Are Now a U. S. Citizen: Upgrading a Petition, online at http://travel.state.gov/visa/immigrants/ types/types_2991.html#5. The regulation cited by the plurality, 8 CFR §204.2(i), is not to the contrary; it merely establishes that when an automatic conversion occurs, it shall be treated as “[e]ffective upon the date of naturalization,” §204.2(i)(3). As the State Department’s instructions make clear, the conversion itself takes place after the new citizen “send[s] proof of [her] U. S. citizenship to the National Visa Center.” Dept. of State, If You Were an LPR and Are Now a U. S. Citizen: Upgrading a Petition.

Cite as: 573 U. S. ____ (2014)

15

SOTOMAYOR, J., dissenting
ings. First, the plurality contends that automatic conversion is triggered not by confirmation of the existence of an appropriate category, but rather by a different predicate event: the moment when “ ‘an immigrant visa number bec[omes] available for the alien’s parent.’ ” Ante, at 19. This is a curious argument, not least because nothing in §1153(h)(3) suggests it. That provision simply makes automatic conversion available “[i]f the age of an alien is determined” to be “be 21 years of age or older” for purposes of §1153(d). Section 1153(h)(3) thus states the condition that an immigrant must satisfy to be eligible for automatic conversion, but it nowhere commands when the conversion should occur. There is no reason why conversion cannot occur at the logical point just described: the moment when USCIS receives proof that an appropriate category exists.
The plurality acknowledges that §1153(h)(3) “does not explicitly identify th[e] point in time” at which a “petition is to be ‘converted.’ ” Ante, at 18. It nevertheless suggests that the date when a conversion occurs “is best viewed” as the date when a visa became available for the aged-out child’s parent. Ante, at 19. But Congress could not have intended conversion to occur at that point for a glaring reason: The date on which a visa becomes available for an aged-out child’s parent occurs before the point at which the child is determined to have aged-out under §1153(d)— the very requirement §1153(h)(3) prescribes for the agedout child to be eligible for automatic conversion in the first place. As the plurality explains, ante, at 5–6, such age determinations occur when an immigration official reviews the child’s derivative visa application, which invariably happens after a visa became available for the child’s parent as the principal beneficiary. At best, then, the plurality’s interpretation requires USCIS to convert petitions at a time when it does not know which petitions are eligible for conversion; at worst, it requires the automatic

16

SCIALABBA v. CUELLAR DE OSORIO

SOTOMAYOR, J., dissenting
conversion of petitions benefiting immigrants who will never even qualify for such relief (i.e., aged-out immigrants who, for any number of reasons, never file a visa application and so are never determined by officials to be older than 21).
Faced with this fact, the plurality falls back to the position that automatic conversion must merely be viewed as having occurred “as of th[e] . . . date” when a parent’s visa becomes available, although the actual “assess[ment]” of the conversion will necessarily occur at some future point in time. Ante, at 24, n. 13. That approach, however, introduces precisely the kind of “additional decisions, contingencies, and delays” that the plurality regards as inconsistent with the ordinary meaning of “automatic,” ante, at 15. For even under the plurality’s view, automatic conversion cannot actually be “assesse[d]” until and unless the aged-out child decides to apply for a visa and officials assessing the child’s application deem her to have aged out (events which may themselves be contingent on the child’s parent first filing her own successful visa application, see ante, at 6). The far simpler approach is for conversion to occur automatically upon the most logical moment suggested by the statute: the moment when USCIS confirms that an “appropriate category” exists, §1153(h)(3). Indeed, the plurality fails to explain why this cannot be the proper predicate; it simply dismisses such an approach as supported “only” by “a single-minded resolve . . . to grant relief to every possible aged-out beneficiary.” Ante, at 25, n. 13. But that criticism is revealing: The “single-minded resolve” the plurality maligns is Congress’ own, for it is Congress that expressly provided, in the eligibility clause, for aged-out beneficiaries in all five categories to be granted relief.
The plurality’s second argument is a corollary of its first. If automatic conversion must occur when a visa first becomes available for a parent, the plurality frets, that

Cite as: 573 U. S. ____ (2014)

17

SOTOMAYOR, J., dissenting
will mean an aged-out child will have her petition automatically converted before immigration officials can ascertain whether her parent is even qualified to sponsor her. See ante, at 17–18. True enough, but that only confirms that it makes no sense to force USCIS to convert petitions so prematurely. The plurality’s fears can all be averted by having automatic conversion occur, as with petitions sponsored by LPRs who later become U. S. citizens, supra, at 13–15, when USCIS receives confirmation that conversion is appropriate.7
The plurality’s final argument is that something about the term “conversion” precludes relief for all but the agedout derivative beneficiaries of F2A petitions. The plurality accepts that “conversion” will always require changing some aspects of a petition, including its preference category (e.g., from F2A to F2B) and the identity of its principal beneficiary (e.g., from an aged-out child’s parent to the
——————
7 The plurality is unsatisfied with this approach to automatic conversion on the theory that, in order to eliminate all additional “decisions, contingencies, or delays” in the process, this solution postpones the moment of “conversion” until the necessary contingencies are satisfied. Yet the plurality’s approach does the same thing, because even on its account, some “decisions, contingencies, or delays” must occur before conversion can actually be assessed by immigration officials (i.e., a parent’s visa must become available, the child must apply for a visa, and immigration officials must deem her to have aged out, see supra, at 16). So the only question is whether the “conversion” should be considered to occur after all “decisions, contingencies, or delays” are in the past such that there is an appropriate category for conversion, or after only some. The former understanding would allow the unambiguous language of the eligibility clause to be carried into effect; the latter would preclude relief for four categories of derivative beneficiaries. In support of its restrictive interpretation, the plurality offers only the argument that converting a petition upon proof of an appropriate category would require the “filing of a new document. . . that shows the parent’s eligibility to sponsor her aged-out [child].” Ante, at 26, n. 14. The fact that a statute may require an agency to process a form is not a reason to disregard a coherent reading of a statute in favor of a selfcontradictory one.

18

SCIALABBA v. CUELLAR DE OSORIO

SOTOMAYOR, J., dissenting
child). But the plurality asserts that a related kind of change is entirely off the table: a change to the identity of the petition’s sponsor. Ante, at 15. If a converted petition requires a different sponsor than the original petition, the plurality suggests, then it cannot be “converted” at all.
The plurality points to nothing in the plain meaning of “conversion” that supports this distinction. It instead argues that a “conversion” cannot entail a change to the identity of a petition’s sponsor because that is “the exclusive way immigration law used the term when Congress enacted the CSPA.” Ante, at 16. But immigration law has long allowed petitions to be converted from one category to another in contexts where doing so requires changing the sponsor’s identity. In 2006, for example, the Secretary of Homeland Security promulgated a regulatory provision entitled “automatic conversion of preference classification,” 8 CFR §204.2(i)(1)(iv), which allows the automatic conversion of a petition filed by a U. S. citizen on behalf of her spouse to a widower petition if the citizen dies before the petition is approved. That conversion requires changing the sponsor from the citizen to the widower himself. The fact that the agency used the word “conversion” to refer to a process in which the petition’s sponsor was changed, just a few years after 8 U. S. C. §1153(h)(3) was enacted, strongly suggests that the term did not have the exclusive meaning that the plurality suggests. Similarly, §1154(a)(1)(D)(i)(III), a provision enacted two years before §1153(h)(3), see Victims of Trafficking and Violence Protection Act of 2000, 114 Stat. 1522, provides that a petition filed by a battered spouse on behalf of her child “shall be considered” a self-petition filed by the child herself if the child ages out—a conversion that obviously requires changing the identity of the sponsor from the battered spouse to the aged-out child. And §1153(h)(4) confirms that such “self-petitioners” are entitled to §1153(h)(3)’s automatic conversion remedy. The plurality never ex-

Cite as: 573 U. S. ____ (2014)

19

SOTOMAYOR, J., dissenting
plains how it can be mandatory to “convert” the identity of the sponsors in these contexts yet impermissible to “convert” the sponsors of the petitions at issue here—an understanding that is especially implausible in light of Congress’ command that such petitions “shall automatically be converted to the appropriate category.” §1153(h)(3).8
III
The concurrence reaches the same result as the plurality does, but for a different reason. It begins by recognizing that §1153(h)(3)’s eligibility clause “states a condition” that is satisfied by aged-out “beneficiaries from any preference category.” Ante, at 2 (ROBERTS, C. J., concurring in judgment). The concurrence thus acknowledges that the eligibility clause encompasses aged-out beneficiaries of family-preference petitions in the F1, F2A, F2B, F3, and F4 categories.
The concurrence nonetheless concludes that the BIA was free to exclude F1, F2B, F3, and F4 beneficiaries from
——————
8 Moreover, had Congress actually intended to permit relief only where a new petition has the same sponsor as the original petition, it had a ready model in the language of a pre-existing regulation. See 8 CFR §204.2(a)(4) (conferring priority date retention on a derivative beneficiary only “if the subsequent petition is filed by the same petitioner”). If it had wanted to limit §1153(h)(3) to just the beneficiaries preferred by the BIA, “Congress could easily have said so.” Kucana v. Holder, 558 U. S. 233, 248 (2010).
The plurality’s argument that a “conversion” cannot entail a change to a petition’s sponsor ultimately boils down to this: A “conversion” cannot include “any substantive alteration” to a petition, ante, at 15, except when it can. For example, a “conversion” can (indeed, must) entail changing a petition’s family-preference category and changing the petition’s principal beneficiary (from the aged-out child’s parent to the child herself). And the plurality concedes that in other contexts, conversion must entail changing the identity of a petition’s sponsor from the beneficiary’s qualifying relative to the beneficiary himself. Ante, at 16–17, n. 10. The plurality does not explain why the word “conversion” can encompass all of these other substantive alterations, but not a change to the identity of a petition’s sponsor in just this case.

20

SCIALABBA v. CUELLAR DE OSORIO

SOTOMAYOR, J., dissenting
the clear scope of the eligibility clause because of a perceived ambiguity as to which beneficiaries can receive “automatic conversion.” See ante, at 4 (“Congress did not speak clearly to which petitions can ‘automatically be converted’ ”). In other words, the concurrence concludes that it was reasonable for the agency to ignore the clear text of the eligibility clause because the phrase “automatic conversion” might be read in a manner that would benefit F2A beneficiaries alone.
This is an unusual way to interpret a statute. The concurrence identifies no case in which we have deferred to an agency’s decision to use ambiguity in one portion of a statute as a license to ignore another statutory provision that is perfectly clear. To the contrary, “[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.” United Sav. Assn. of Tex., 484 U. S., at 371.
The concurrence justifies its conclusion only by treating the eligibility clause as a nullity. The concurrence is quite candid about its approach, arguing that §1153(h)(3)’s relief clause is its “only operative provision” and that the eligibility clause does not “grant anything to anyone.” Ante, at 3. Yet “[i]t is our duty ‘to give effect, if possible, to every clause and word of a statute.’ ” United States v. Menasche, 348 U. S. 528, 538–539 (1955). And there is an easy way to give meaning to the eligibility clause: The clause identifies who is entitled to the benefits specified in the ensuing relief clause.
The concurrence relies ultimately on an irrelevant hypothetical: “If a student is determined to be enrolled at an accredited university, the student’s cost of off-campus housing shall be deductible on her tax return.” Ante, at 3. In this example, the concurrence points out, it is “apparent. . . that an enrolled student who lives on campus is not

Cite as: 573 U. S. ____ (2014)

21

SOTOMAYOR, J., dissenting
entitled to the deduction, even though the student falls within the conditional first clause.” Ibid. That is correct, but it says nothing about this case. For in the hypothetical, it is plain that the promised relief (a tax deduction for off-campus housing) cannot apply to the persons at issue (students who live on campus). Here, however, the relief promised in §1153(h)(3) (priority date retention and automatic conversion) can be given to persons specified in the initial eligibility clause (aged-out children in all five family-preference categories). See supra, at 9–19. And once one recognizes that aged-out children in each category unambiguously covered by the eligibility clause can receive relief, the BIA’s view that no children in four of those categories can ever receive any relief cannot be reasonable.9
* * *
Congress faced a difficult choice when it enacted §1153(h)(3). Given the “zero-sum world of allocating a limited number of visas,” ante, at 33, Congress could have

——————
9 More fundamentally, the concurrence’s hypothetical is irrelevant because it altogether ignores a critical feature of the statute before us: §1153(h)(2)’s express enumeration of the covered petitions to include petitions filed within the F1, F2A, F2B, F3, and F4 preference categories. See supra, at 5–6. A proper analogy would therefore be a provision that says the following: “If a student is determined to be enrolled at an accredited junior college, community college, or 4-year college, the student’s room and board shall be tax-deductible and the student shall receive financial aid.” Is there any permissible reading of this provision under which, although expressly covered in the eligibility clause, all junior and community college students are categorically forbidden to receive both the tax deduction and financial aid? Of course not. And that would be true even if the term “room and board” were ambiguous and thus open to an interpretation under which only 4-year students could receive the tax deduction. Likewise here, where F1, F2B, F3, and F4 derivative beneficiaries may not be categorically excluded from relief because they are indisputably covered by §1153(h)(3)’s eligibility clause and able to receive the relief described in the relief clause.

22

SCIALABBA v. CUELLAR DE OSORIO

SOTOMAYOR, J., dissenting
required aged-out children like Ruth Uy to lose their place in line and wait many additional years (or even decades) before being reunited with their parents, or it could have enabled such immigrants to retain their place in line— albeit at the cost of extending the wait for other immigrants by some shorter amount. Whatever one might think of the policy arguments on each side, however, this much is clear: Congress made a choice. The plurality’s contrary view—that Congress actually delegated the choice to the BIA in a statute that unambiguously encompasses aged-out children in all five preference categories and commands that they “shall retain the[ir] original priority date[s],” §1153(h)(3)—is untenable.
In the end, then, this case should have been resolved under a commonsense approach to statutory interpretation: Using traditional tools of statutory construction, agencies and courts should try to give effect to a statute’s clear text before concluding that Congress has legislated in conflicting and unintelligible terms. Here, there are straightforward interpretations of §1153(h)(3) that allow it to function as a coherent whole. Because the BIA and the Court ignore these interpretations and advance a construction that contravenes the language Congress wrote, I respectfully dissent.