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, UNITEDSTATES
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 fam-ily 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 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), 116Stat. 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 obtain that highly sought-after document, the alien must fall
within one of a limited number of immigration cate-gories. 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.)
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 knownas 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
thebeneficiary, 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 “visanumbers”) 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 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
piggy-back 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 ad-missibility 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 de-rivative beneficiary)
must append an “affidavit of sup-port” 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 least 10 years, with an annual income “not
less than125% 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]
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), 116Stat. 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 “immediate 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]
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 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, thealien’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 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 apetition 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. 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 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 –844 (1984); INS v.
Aguirre-Aguirre, 526 U. S. 415 –425 (1999). Indeed,
“judicial deference to the Executive Branch is especially
appropriate in the immigration context,” where decisions
about a complex statu-tory scheme often implicate foreign
relations. Id., at 425. (Those hardy readers who have made it this
far will surely 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 Janus-faced. 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 “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 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]
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 theF1 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 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 doesnot have a legally recognized relationship with the
aged-out 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 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, more-over, 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 now-appropriate
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 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; 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-longer-appropriate) 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 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—viewof 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 sponsors 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 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]
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 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]
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.” 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. 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. 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]
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 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 parent 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 zero-sum 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. What-ever Congress might have meant in
enacting §1153(h)(3), it failed to speak clearly. Confronted
with a self-contradictory, 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.