PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1988

NOEL JOSEPH MENOR REGIS,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Argued: September 16, 2014 Decided: October 16, 2014

Before DUNCAN, AGEE, and DIAZ, Circuit Judges.

Petition denied by published opinion. Judge Agee wrote the 

opinion, in which Judge Duncan and Judge Diaz joined. 

ARGUED: Alfred Castro Tecson, TECSON LAW OFFICE, Annandale, 

Virginia, for Petitioner. Colin James Tucker, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON 

BRIEF: Stuart F. Delery, Assistant Attorney General, Civil 

Division, Anthony W. Norwood, Senior Litigation Counsel, Office 

of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Respondent.
2

AGEE, Circuit Judge:

Petitioner Noel Joseph Menor Regis entered the United 

States in 2007 on a K-2 visa as the minor child of his mother, a 

nonimmigrant fiancée K-1 visa holder. After his mother married

the U.S. citizen who had petitioned for the family’s K visas, 

Regis applied to adjust his status to lawful conditional 

permanent resident. The United States Citizenship and 

Immigration Services (“USCIS”) denied Regis’ application because 

he had turned 21 before he entered the United States and was 

therefore not a qualifying “minor child.” See 8 U.S.C. 

§ 1255(d). An immigration judge (“IJ”) agreed with USCIS, and 

the Board of Immigration Appeals (the “Board”) affirmed.

In his petition for review to this Court, Regis contends 

that a K-2 visa holder’s eligibility for adjustment of status 

should be determined not by his age on the date of entry into 

the United States, but rather by his age at the time he 

initially sought the K-2 visa. Because we conclude that the 

Board’s interpretation of the relevant statutory provisions is

entitled to deference, we deny Regis’ petition for review.
3

I. Background

A. The Immigration Application Process

The Immigration and Nationality Act (the “INA” or the 

“Act”) defines two classes of nonimmigrant aliens that are 

pertinent to this appeal:

(i) . . . the fiancee or fiance of a citizen of the 

United States . . . who seeks to enter the United 

States solely to conclude a valid marriage with the 

petitioner within ninety days after admission; [and]

(iii) . . . the minor child of an alien described in 

clause (i) . . . accompanying, or following to join, 

the alien[.]

8 U.S.C. § 1101(a)(15)(K)(i), (iii) (emphasis added). 

The K visa process begins when a U.S. citizen petitions the 

Department of Homeland Security to designate a foreign national 

as a nonimmigrant fiancé or fiancée (the “fiancée”). Id.

§ 1184(d)(1); 8 C.F.R. § 214.2(k)(1). If the fiancée has a 

minor child that is accompanying or following to join her, that 

child “may be accorded the same nonimmigrant classification” 

without a separate petition. 8 C.F.R. § 214.2(k)(3). The 

approved petition is forwarded to the U.S. consulate in the 

fiancée’s home country. 22 C.F.R. § 41.81(a)(1). 

The fiancée must then submit a visa application to the U.S.

consulate in her home country, requesting a K-1 visa on behalf 

of herself and K-2 visas for her minor children whom she intends 

to join her. See id. § 41.81(a), (c). After receipt of an 
4

approved visa application, the consulate issues the K visas, 

which, as nonimmigrant visas, generally bear validity periods 

reflecting reciprocity between the United States and the 

practices of the particular foreign government. Id.

§ 41.112(b)(1). 

Issuance of a K-1 or K-2 visa, however, does not guarantee 

the visa holder’s entry into the United States. 8 U.S.C. 

§ 1201(h) (“Nothing in this chapter shall be construed to 

entitle any alien, to whom a visa or other documentation has 

been issued, to be admitted [to] the United States, if, upon 

arrival at a port of entry in the United States, he is found to 

be inadmissible under this chapter, or any other provision of 

law.”). Upon arrival at a port of entry into the United States, 

the alien fiancée –- like all nonimmigrant aliens -- must 

establish that he or she is then admissible. 8 C.F.R. 

§ 214.1(a)(3)(i). After admission into the United States, the 

alien fiancée must marry the U.S. citizen petitioner within 90 

days or depart the country along with any children holding a K-2 

derivative visa. 8 U.S.C. § 1184(d)(1). 

Following the marriage, the K–1 visa holder and her minor 

children holding K-2 visas may apply for adjustment of status to 

lawful conditional permanent resident. 8 U.S.C. § 1255(d); 8 

C.F.R. § 214.2(k)(6)(ii). The Attorney General may make the 

adjustment “in his discretion and under such regulations as he 
5

may prescribe.” 8 U.S.C. § 1255(a). The applicant must be 

eligible to receive an immigrant visa and be admissible to the 

United States for permanent residence. Id. 

Section 1255(d) specifically addresses adjustment of status 

for K-1 and K-2 nonimmigrant visa holders. Id. § 1255(d). 

Under the statute, the Attorney General may adjust their status 

to lawful conditional permanent resident “as a result of the 

marriage of the nonimmigrant (or, in the case of a minor child, 

the parent) to the citizen who filed the petition.” Id.

(emphasis added). 

The term “minor child” in 8 U.S.C. §§ 1101(a)(15)(K) and 

1255(d) is not defined in those statutes or elsewhere in the 

INA. However, based on the definition of “child” in the Act, 

see 8 U.S.C. § 1101(b)(1), the term “minor child” for purposes 

of K-2 visas has been construed by the Board as a person who is 

unmarried and under the age of 21. Matter of Le, 25 I. & N. 

Dec. 541, 550 (B.I.A. 2011). 

Section 1255 does not specify when during the immigration 

process a “minor child” is required to be under 21 years of age, 

and the statute is likewise silent as to when an applicant for 

adjustment of status must demonstrate eligibility. 8 U.S.C. 

§ 1255(a), (d); see also Carpio v. Holder, 592 F.3d 1091, 1098 

(10th Cir. 2010) (“[T]he use of the term ‘minor child,’ provides 

no indication as to when that status must be established.”). 
6

B. Regis’ Application Process

Regis is a native and citizen of the Philippines who was 

born on February 18, 1986. On February 13, 2007, the United 

States embassy’s consular office in the Philippines (the 

“Consulate”) issued a K-1 nonimmigrant visa to Regis’ mother, 

following the successful petition of her U.S. citizen fiancé. 

At the same time, the Consulate issued K-2 visas to Regis and 

his three siblings as the children of a K-1 visa holder. Regis 

was 20 years old when he received his K-2 visa, which stated 

that it would remain valid until August 11, 2007. 

Regis’ mother entered the United States sometime in 

February 2007 and married her U.S. citizen fiancé on February 

26, 2007. Regis did not accompany his mother, but entered the 

United States later on March 25, 2007, over a month after his 

21st birthday on February 18, 2007. 

On May 16, 2007, he timely filed an application for 

adjustment of status to lawful conditional permanent resident. 

USCIS denied the application, concluding that Regis was 

ineligible to adjust his status because he had already attained

age 21 and was no longer a “child” as defined in 8 U.S.C. 

§ 1101(b)(1). Regis moved for reconsideration, and USCIS 

dismissed that motion. 

On November 15, 2007, the Department of Homeland Security 

began removal proceedings against Regis by filing a Notice to 
7

Appear, which charged him with removability pursuant to 8 U.S.C. 

§ 1227(a)(1)(B), as an alien who was admitted to the United 

States as a nonimmigrant and remained beyond the time permitted. 

Appearing before the immigration court, Regis admitted the facts 

contained in the Notice to Appear and conceded removability. He

argued, however, that he was eligible for adjustment of status 

because he was less than 21 years old at the time he applied for 

the K-2 visa and cited Carpio v. Holder, 592 F.3d 1091 (10th 

Cir. 2010), in support. 

In Carpio, the petitioner had also entered the United 

States on a derivative K-2 visa but, unlike Regis, was less than 

21 years old on the date of entry. Id. at 1092. The Board

nevertheless denied the adjustment because the petitioner had 

turned 21 before the agency adjudicated his application. Id. at 

1092-93. The Tenth Circuit overturned the Board’s decision, 

concluding that eligibility should be determined as of the date 

a K-2 alien “seeks to enter” the United States. Id. at 1098-

1101. Given the particular facts before it, the court was not 

required to pinpoint when a K-2 applicant “seeks to enter,” but 

observed that the date 

may be plausibly read as either (1) the date that the 

United States citizen files a petition for K-1 and 

K–2 visas with the Secretary of Homeland Security 

under 8 U.S.C. § 1184(d)(1), or (b) the date that the 

K–1 and K–2 visa applications are filed with the 

consular officer in the country of origin.
8

Id. at 1104.

The IJ found Carpio inapplicable in this case under the 

holding in Matter of Le, 25 I. & N. Dec. 541 (B.I.A. 2011), 

which the Board had decided during the pendency of Regis’ case. 

In Matter of Le, a three-judge panel of the Board concluded that 

a K-2 visa holder’s age at the time he actually enters the 

United States determines whether he is a “minor child” under the 

INA. Id. at 550. Based on Matter of Le, the IJ denied Regis’

application for adjustment of status because Regis was over 21 

when he entered the United States under his K-2 visa. 

Accordingly, the IJ ordered Regis removed from the United 

States. 

Regis appealed to the Board, arguing again that he was 

eligible for adjustment of status because he was under 21 at the 

time he sought a K-2 visa. The Board dismissed Regis’ appeal, 

adopting and affirming the IJ’s decision. Concluding that 

Matter of Le was precedential and dispositive, the Board held

that Regis was ineligible to adjust status because he was not a

“minor child” at the time he was admitted to the United States. 

Regis filed a timely petition for review to this Court. We 

have jurisdiction to consider his petition under 8 U.S.C. 

§ 1252.
9

II. Discussion

We review the Board’s legal conclusions de novo. Saintha 

v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008). In the course of 

conducting our review, we recognize that because the Board is 

the agency that administers the INA, its interpretations of that 

Act may be entitled to deference under the Chevron doctrine. 

See id. (citing Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-43 (1984)).

Under Chevron, we must first determine whether the statute 

is “silent or ambiguous with respect to the specific issue.” 

Id. If the provision in question is unambiguous, then the plain 

meaning of the statute controls. Id. If, however, the 

relevant provision is ambiguous, then we will defer to the 

agency’s interpretation so long as it is “based on a permissible 

construction of the statute.” Id. “[T]he [Board’s]

interpretations . . . must be given controlling weight unless 

those interpretations are ‘arbitrary, capricious, or manifestly 

contrary to the statute.’” Fernandez v. Keisler, 502 F.3d 337, 

344 (4th Cir. 2007) (quoting Chevron, 467 U.S. at 844). The 

appellant bears a “substantial burden, as judicial deference ‘is 

especially appropriate in the immigration context where 

officials exercise especially sensitive political functions that 

implicate questions of foreign relations.’” Saintha, 516 F.3d 
10

at 251 (quoting I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 

(1999)).

A. The Board’s Decision in Matter of Le

Although the INA is silent as to when during the 

immigration process a K-2 visa holder must be under 21 to be 

eligible for adjustment of status, the Board has provided 

guidance in Matter of Le. In that case, the applicant entered 

the United States with his mother when he was 19 years old, but 

turned 21 before USCIS adjudicated his application for 

adjustment of status. 25 I. & N. Dec. at 542. USCIS denied the 

application because Le had turned 18 before the date of his 

mother’s marriage. Id. An IJ likewise denied Le’s adjustment 

of status, but on the ground that he had turned 21 before the 

agency had adjudicated his application. Id. 

The Board addressed two questions in Le’s appeal: (1) at 

what age is a child no longer a “minor child,” and, critical to 

this appeal, (2) at what point in the immigration process does 

the child’s age become “fixed” for purposes of the minor child 

determination. Id. at 544. Regarding the first question, the 

Board concluded that the defining age for a “minor child”

determination is age 21, not 18. Id. at 550 (noting the “longstanding interpretation by the implementing agency” and 

Congress’ implicit approval of that interpretation).
11

In addressing the second question –- at what point the K-2 

applicant must establish eligibility -- the Board looked to a 

previous decision in which it had analyzed the same question for 

K-1 applicants. In Matter of Sesay, the Board concluded that an

alien fiancée parent’s eligibility for adjustment of status must 

be established at the time of admission to the United States 

with the K-1 nonimmigrant visa. Matter of Sesay, 25 I. & N. 

Dec. 431, 440 (B.I.A. 2011). The Board in Matter of Le found 

Matter of Sesay’s reasoning to be equally persuasive in the 

context of K-1 visa holders’ minor children. Matter of Le, 25 

I. & N. Dec. at 545. Consequently, the Board determined “that 

to adjust status based on a K-2 visa, an alien derivative child 

must establish that he or she was under 21 years of age at the 

time of admission to the United States.” Id. at 541 (emphasis 

added). Since Le met that requirement, the Board held he was 

eligible for adjustment and reversed the IJ’s decision.1 

 1 We reject Regis’ argument that because Le had not yet 

turned 21 at the time he was admitted into the United States, 

Matter of Le is somehow inapplicable to this case. In deciding 

whether Le was eligible for adjustment, the Board was tasked 

with defining “minor child” and with designating the appropriate 

time for determining eligibility. Some, like Le, may satisfy 

the Board’s interpretation, and others like Regis, will not. 

The resulting interpretation nonetheless is applicable to all K2 applicants for adjustment. 
12

B. Chevron Deference

Because Matter of Le is a precedential opinion in which the 

Board interpreted a statute Congress has designated it to 

administer, we proceed in accordance with Chevron.2 Under 

Chevron’s first prong, we begin by asking whether the INA is 

ambiguous as to when a K-2 applicant for adjustment of status 

fails to qualify as a “minor child” under that statute. In 

other words, at what point in the immigration process does the 

K-2 visa applicant’s attaining age 21 function as a limiting 

event? As noted earlier, the INA is silent on this question. 

For his part, Regis has not contested that the relevant 

provisions are ambiguous. 

One possible reading, rejected in both Carpio and Matter of 

Le, is that the applicant must be a “minor child” at the time 

the adjustment is adjudicated. See Carpio, 592 F.3d at 1102 

(concluding that allowing eligibility to hinge on the agency’s 

speed could “violate[] basic principles of common sense and 

fairness”); Matter of Le, 25 I. & N. Dec. at 542. 

Alternatively, the Tenth Circuit in Carpio resolved that the INA

 2 The Board’s decision denying Regis’ appeal may not itself 

be entitled to Chevron deference because it is not precedential

(as a one Board member decision). See Cervantes v. Holder, 597 

F.3d 229, 233 n.5 (4th Cir. 2010). But the underlying 

interpretation is based on Matter of Le, which is a published 

and precedential Board decision. Chevron applies in these 

circumstances. See, e.g., Aguirre-Aguirre, 526 U.S. at 418, 

424-25; Ramirez v. Holder, 609 F.3d 331, 333-34 (4th Cir. 2010).
13

can “plausibly be read” to require the applicant to be under 21 

on either the date the U.S. citizen fiancé files the original 

petition or the date the K-2 visa application is filed with the 

U.S. consulate. Carpio, 592 F.3d at 1104. As the Board found

in Matter of Le, the statute can reasonably be construed in yet 

another way: setting eligibility as a “minor child” at the date 

of entry into the United States. 25 I. & N. Dec. at 541. 

In light of these differing but plausible interpretations, 

we join the Tenth Circuit and the Board in concluding that the 

INA’s silence on the issue creates an ambiguity. There is no 

plain language in the statute that resolves the question at 

issue here. See Carpio, 592 F.3d at 1096 (“We agree with the 

government that § 1255(d) is ambiguous with respect to the time 

at which a K-2 visa holder must be under twenty-one to qualify 

for an adjustment of status.”); Matter of Le, 25 I. & N. Dec. at 

543-44 (recognizing a statutory ambiguity regarding “the time at 

which the fiance(e) derivative child’s age is fixed for purposes 

of establishing adjustment eligibility”). 

Having found the statute to be ambiguous, we proceed to the 

next step under Chevron to determine whether the Board’s 

interpretation is a “permissible construction,” and not

“arbitrary, capricious, or manifestly contrary to the statute.” 

467 U.S. at 843-44. In Matter of Le, the Board offered several 

reasons why a K-2 visa holder’s age on the date of his actual 
14

admission should control eligibility for adjustment of status as 

a “minor child.” First, the Board reasoned that the date of an 

alien’s entry into the United States “best marks visa 

eligibility and availability, because ‘events that may occur 

between visa issuance and admission could extinguish the visa.’” 

Matter of Le, 25 I. & N. Dec. at 545 (quoting Matter of Sesay, 

25 I. & N. Dec. at 440). Relatedly, the Board noted that the 

entry date is the best determining point “because visa 

eligibility is reassessed upon application for admission at the 

port of entry.” Id. 

As to K-2 visa holders in particular, the Board further 

observed that the gap between issuance of the visa and admission 

“provides an additional opportunity for the parent’s visa 

validity to be extinguished, which would, in turn, render the 

child inadmissible even though a K-2 visa had been issued.” Id. 

The Board considered this factor important because the Act 

permits a minor child to follow the parent into the United 

States at a later date, id., as Regis did in this case. 

Finally, the Board pointed to language elsewhere in the Act 

that supports its interpretation. Specifically, the final 

sentence of 8 U.S.C. § 1184(d)(1) provides that an alien fiancée

and her minor children must depart the United States if the 

marriage does not occur “within three months after the admission

of the said alien and minor children.” This provision, the 
15

Board reasoned, “highlights the significance of admission” for 

determining an alien’s eligibility for adjustment. Matter of 

Le, 25 I. & N. Dec. at 545. 

Far from being arbitrary, capricious, or manifestly 

contrary to the statute, we find the Board’s determination of 

“minor child” status in Matter of Le well-reasoned. The Board’s 

analysis embraces the existing statutory and regulatory 

framework and reaches a result consistent with that framework. 

The Board’s interpretation of the INA –- that a K-2 visa holder 

seeking adjustment of status must be under 21 at the time of 

admission -- is therefore a permissible construction and is owed 

deference under Chevron. Accordingly, because Regis was over 21 

when he entered the United States, his application for 

adjustment of status was properly denied and he is properly 

removable.

Relying on the Tenth Circuit’s decision in Carpio, Regis 

insists that his eligibility for adjustment should have been

determined based on his age when he applied for the K-2 visa.3

 

 3 Regis also appears to make what can be best characterized 

as an estoppel argument. He contends that because the “ultimate 

purpose” of the K-2 visa is adjustment, the Consulate erred by 

issuing him a visa that remained “valid” until well after his 

21st birthday. He argues that he was justified in relying on 

and travelling within this validity period and should not be 

denied adjustment. However, as counsel conceded at oral 

argument, the issue was not properly raised below. “It is well 

established that an ‘alien must raise each argument to the 

(Continued)
16

As noted above, the Board rejected this argument because Carpio

would be controlling only in the Tenth Circuit and because the 

Board’s precedential interpretation in Matter of Le now decides 

the issue. See Nat’l Cable & Telecomms. Ass’n v. Brand X 

Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s prior 

judicial construction of a statute trumps an agency construction 

otherwise entitled to Chevron deference only if the prior court 

decision holds that its construction follows from the 

unambiguous terms of the statute and thus leaves no room for 

agency discretion.”). We find particularly noteworthy that the 

Tenth Circuit decided Carpio without the benefit of the Board’s 

subsequent precedential decision in Matter of Le. Although

Carpio sets forth a reasonable interpretation of the statute, we 

are bound under Chevron to defer to the Board’s equally 

reasonable construction.

 

[Board] before we have jurisdiction to consider it.” Kporlor v. 

Holder, 597 F.3d 222, 226 (4th Cir. 2010) (quoting Gandziami–

Mickhou v. Gonzales, 445 F.3d 351, 359 n.2 (4th Cir. 2006)). In 

view of Regis’ waiver concession, we do not consider this issue, 

but also note the general inapplicability of an estoppel 

argument against the government, at least absent “affirmative 

misconduct.” See Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 

2003) (“[T]he [Supreme] Court’s decisions indicate that estoppel 

may only be justified, if ever, in the presence of affirmative 

misconduct by government agents.”).
17

III.

For all these reasons, Regis’ petition for review of the 

Board’s decision is

DENIED.