19-3138 Cuthill v. Blinken

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2020

(Argued: January 14, 2021 Decided: March 9, 2021)

Docket No. 19-3138

_______________

VERONICA CUTHILL,

Plaintiff-Appellee,

—v.—

ANTONY J. BLINKEN,

Defendant-Appellant. 1 _____________

Before: KATZMANN, LOHIER, and CARNEY, Circuit Judges.

_______________

Appeal from a judgment of the United States District Court for the District of Connecticut (Hall, J.). We hold that

(f)(2) incorporates the age- reduction formula in

(h)(1), which deducts processing time from the age of an F2A visa beneficiary. We therefore AFFIRM.

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Antony J. 1

Blinken is automatically substituted for former Secretary of State Michael Pompeo. _______________

BRADLEY B. BANIAS, Wasden Banias, LLC, Mount Pleasant, SC (Elizabeth Leete, Leete, Kosto & Wizner, LLP, Hartford, CT, on the brief), for Plaintiff-Appellee.

VICTOR M. MERCADO-SANTANA (Christopher A. Bates, William C. Peachey, Samuel P. Go, on the brief), United States Department of Justice, Washington, DC, for Defendant-Appellant. _______________ KATZMANN, Circuit Judge:

In this case, we examine the architecture of a statutory regime, delving into

the text, structure, purpose, and legislative history of the statute.

To qualify for an F2A visa, the son or daughter of a lawful permanent

resident must be under 21 years old. The Child Status Protection Act (“CSPA”)

mandates that the government exclude from the age calculation the time that it

spent processing the visa petition. For example, if the daughter of a lawful

permanent resident is 22 years old when her F2A visa becomes available but it

took the government two years to process her petition, her “statutory age” for F2A

purposes would be 20 years old, making her still eligible for an F2A visa. See

(h)(1).

A related CSPA provision provides that if the parent of an F2A beneficiary

naturalizes while the F2A petition is pending, the F2A petition may be converted

2 to a more favorable immediate-relative petition, but only if “the age of the [son or

daughter] on the date of the parent’s naturalization” is under 21.

§ 1151(f)(2).

The question before us is whether the term “age” in § 1151(f)(2) incorporates the

age-reduction formula set forth in § 1153(h)(1). Based on the text, structure,

purpose, and legislative history of the CSPA, we hold that it does. And because

Veronica Cuthill’s daughter was statutorily under 21 years old when Cuthill

naturalized, she qualifies for an immediate-relative visa.

BACKGROUND

A. The Family-Based Visa Regime

Federal law allows citizens and lawful permanent residents (“LPRs”) of the

United States to obtain immigrant visas for their sons or daughters to join them in

the United States. The parent is called the “sponsor” and the son or daughter is

called the “beneficiary.” Four types of such visas are relevant to this appeal:

• Immediate-relative visa: for minor (under 21) sons and daughters of citizens.

• F1 visa: for adult (21 or over) sons and daughters of citizens.

• F2A visa: for minor (under 21) sons and daughters of LPRs.

• F2B visa: for adult (21 or over) sons and daughters of LPRs.

See id. § 1151(b)(2)(A)(i) (immediate-relative visas); id. § 1153(a)(1) (F1 visas); id.

§ 1153(a)(2)(A) (F2A visas); id. § 1153(a)(2)(B) (F2B visas). The term “child” is 3 defined by statute to refer to “an unmarried person under twenty-one years of

age,” id. § 1101(b)(1), so we use the term “child” to refer only to a son or daughter

under the age of 21. 1

As relevant here, the general visa application process is as follows. First, the

sponsoring parent files a petition on Form I-130, Petition for Alien Relative, on

behalf of his or her beneficiary son or daughter. The U.S. Citizenship and

Immigration Services (“USCIS”) thereafter reviews the petition and, if everything

is in order, approves it. This process can take up to a year or more. See generally

Scialabba v. Cuellar de Osorio,

, 46–50 (2014) (plurality opinion).

Once the petition is approved, the journey for immediate-relative-visa

seekers ends there: Visas in that category are not subject to any numerical caps, so

they can receive their visas soon after their petitions are approved. Not so for the

three other relevant visa categories — F1, F2A, and F2B. For those beneficiaries,

approval results not in getting a visa, but only in getting a place in a second, often

longer line. See

at 47–48. This is because federal law caps the number of visas

issued each year in these categories, see

(a), and “demand regularly

1The relevant visa categories restrict eligibility to unmarried sons and daughters; Cuthill’s daughter was unmarried during the events at issue. 4 exceeds the supply,” Scialabba, 573 U.S. at 48. 2 As a consequence, the beneficiary of

an approved petition is placed in a first-come, first-served queue with others in

her category in order of “priority date”— that is, the date on which the visa

petition was filed. See id. at 47–48. Each month, the Department of State publishes

a bulletin indicating the cutoff dates for F1, F2A, and F2B visas. For example, the

January 2021 bulletin states that the cutoff date for F1 visas, with certain

exceptions, is September 15, 2014, meaning that visas are available for F1

beneficiaries whose petitions were filed before that date. See U.S. Dep’t of State,

Bureau of Consular Affairs, Visa Bulletin for January 2021 (hereinafter “January

2021 Bulletin”). 3 Once a visa becomes available, the beneficiary can apply for a

visa, schedule an interview, and, if all goes right, come to the United States.

Thus, there are two relevant waiting periods for F1, F2A, and F2B visa

seekers: (1) the time it takes for the agency to process the petition and (2) the time

it takes for a visa to become available. One must therefore be mindful of the

distinction between a visa petition, which is the first step in the process and earns

2 In quoting cases, we omit internal citations, quotation marks, footnotes, and alterations unless otherwise noted.

3https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/ 2021/visa-bulletin-for-january-2021.html. 5 the visa-seeker a spot in line, and a visa application, which can be filed only after

the visa becomes available. 4

When applying for a visa, age is extremely important. A minor son or

daughter can obtain a visa much faster than an adult son or daughter can. There

is great demand for visas by adult sons and daughters of citizens and LPRs, which

results in long queues for F1 and F2B visas. Thus, while a minor son or daughter

of a citizen can obtain an immediate-relative visa shortly after her petition is

approved, an adult son or daughter of a citizen must first wait in the F1 visa queue,

which was over six years long as of January 2021. See January 2021 Bulletin.

Likewise, a minor son or daughter of an LPR can wait in the relatively short (and

sometimes nonexistent) F2A queue while an adult son or daughter of an LPR must

wait in the F2B visa queue, which was over five years long as of January 2021. See

id.

Because the age determination is made after all that waiting time — i.e., after

the petition is approved and the visa becomes available — there existed a serious

problem whereby child beneficiaries “aged out” of their immediate-relative or

4There is a third potential source of delay: the time it takes to process the application once a visa becomes available. See Scialabba, 573 U.S. at 48–50. This delay occurs at the final stage of the process and is not relevant to this appeal. 6 F2A visa eligibility. The long wait times may have meant that a beneficiary who

was a 17-year-old high school student when her mother petitioned for an F2A visa

had become a 22-year-old college graduate by the time the visa became available.

In other words, by the time child beneficiaries might become eligible to obtain the

visas for which they originally petitioned, those beneficiaries might no longer be

minors and thus no longer eligible for those visas.

B. The Child Status Protection Act

To fix this problem, Congress in 2002 — with unanimous bipartisan

support — enacted the Child Status Protection Act (“CSPA”),

Stat. 927 (2002). Recall that, for immediate-relative-visa seekers, the only delay

they face is the time that USCIS takes to process the petition. By contrast, there are

two sources of delay for F1, F2A, and F2B visa seekers: (1) the time that USCIS

takes to process the petition and (2) the time that it takes for a visa to become

available. The CSPA provides that the former source of delay — the bureaucratic

processing time — should be subtracted from the biological age of a visa

beneficiary for purposes of determining their minor status. In contrast, the time

7 lost because of the latter source of delay — time spent waiting in a visa queue — is

not subtracted from the beneficiary’s age. See Scialabba, 573 U.S. at 53.

The CSPA enacted these changes via several interrelated provisions. First,

(f)(1) fixes the “aging out” problem for immediate-relative

beneficiaries by providing that, for immediate relatives, the “determination of

whether [such] an alien satisfies the [immigration law’s] age requirement [to be

under the age of 21] . . . shall be made using the age of the alien on the date on

which the petition is filed . . . .” In other words, as long as the beneficiary was

under 21 when the initial petition was filed, she remains eligible regardless of her

current age.

For F2A visa beneficiaries, the CSPA provides that, “[f]or purposes of [

(a)(2)(A), which requires F2A beneficiaries to be under 21 years old],

a determination of whether an alien [is under 21 years old] shall be made using”

the age of the beneficiary on the date when a visa becomes available, reduced by

the time that the petition was pending.

§ 1153(h)(1); see also Scialabba, 573 U.S.

at 52–53. For example, assume an F2A petition is filed for a 17-year-old beneficiary,

the agency takes two years to process the petition, and it takes three years for a

visa to become available. Prior to the CSPA, the now-22-year-old beneficiary was

8 out of luck: She would have aged out and would no longer be eligible for an F2A

visa. Thanks to the CSPA, however, we deduct the two years of processing time

(though not the three years of waiting time) yielding a statutory age of 20. As far

as the U.S. government is concerned, the two years of processing time never

happened.

It bears repeating that only the processing time — i.e., bureaucratic

delay — is excluded from the age calculation. The time spent waiting for a visa to

become available is not excluded. The CSPA thus provides that if the F2A

beneficiary’s statutory age is still 21 or older even after deducting the processing

time, the F2A petition automatically converts to an F2B petition (which, recall, is

for adult sons and daughters of LPRs). See

(h)(3); Scialabba, 573 U.S.

at 62. Sensibly, Congress provided that the beneficiary retains her original priority

date and does not have to go to the back of the F2B queue. See

(h)(3).

The CSPA went further still by addressing another contingency that occurs

often while visa petitions are pending — namely, that the LPR sponsor becomes a

naturalized U.S. citizen. Since the visa regime is tied to the sponsor’s status, the

change in the sponsor’s status normally requires a corresponding change to the

beneficiary’s visa petition. The CSPA’s solution for F2B applicants (adult sons and

9 daughters of LPRs) is straightforward; its solution for F2A applicants (minor

children of LPRs) is less so. See Scialabba, 573 U.S. at 51–52.

For F2B applicants, the CSPA provides that if the sponsor naturalizes while

the application is pending, the adult beneficiary has the choice of staying in the

F2B queue or transferring to the F1 queue, which covers adult sons and daughters

of citizens. See

(k). Again, Congress provided that the applicant

retains her original priority date regardless of which queue she chooses. See

§ 1154(k)(3).

The CSPA does not have an analogous provision for an F2A beneficiary

whose sponsor naturalizes. However, the statute contemplates that the F2A

petition would be converted to a petition for an immediate-relative visa. The

provision at issue in this case —

(f)(2) — provides that “[i]n the case

of [an F2A petition], if the petition is later converted, due to the naturalization of

the parent, to a petition to classify the alien as an immediate relative . . . the

determination [of whether the beneficiary is a minor] shall be made using the age

of the alien on the date of the parent’s naturalization.” In other words, as long as

the beneficiary is under 21 years old at the time of her sponsor’s naturalization,

she can transfer to the immediate-relative category.

10 To recap, the CSPA indisputably covers most eventualities:

• If a citizen petitions for an immediate-relative visa for their minor son or daughter and the son or daughter turns 21 while the petition is pending. The beneficiary remains eligible for an immediate-relative visa so long as she was under 21 years old when the petition was filed. See

§ 1151(f)(1).

• If an LPR petitions for an F2A visa for their minor son or daughter and the son or daughter turns 21 before a visa becomes available. Calculate the beneficiary’s statutory age by taking their age at the time that the visa becomes available and deducting the processing time (but not the waiting time for visa availability). If the resulting age is under 21 years old, she remains eligible for an F2A visa. If the resulting age is 21 years or older, the F2A petition converts to an F2B petition, though the beneficiary retains her original priority date. See id. § 1153(h)(3).

• If an LPR petitions for an F2B visa for their adult son or daughter and the parent naturalizes before a visa becomes available. The beneficiary can choose to stay in the F2B queue or transfer to the F1 queue. Either way, the beneficiary retains her original priority date. See id. § 1154(k).

• If an LPR petitions for an F2A visa for their minor child and the parent naturalizes before a visa becomes available and the child’s biological age is still under 21 years old. The sponsoring parent can convert the F2A petition into an immediate-relative petition. See id. § 1151(f)(2).

But the CSPA does not expressly cover one variation on the last scenario: A

parent petitions for an F2A visa for her minor son or daughter and naturalizes

when the son or daughter’s statutory age is under 21 but his or her biological age 11 is over 21. To determine whether such a petition can be converted from an F2A

petition into an immediate-relative petition, should “the age of the alien on the

date of the parent’s naturalization” in § 1151(f)(2) be interpreted as the statutory

age or as the biological age on that date? That is the question in this appeal.

C. Factual and Procedural Background

The essential facts here are undisputed. On December 23, 1996, plaintiff-

appellee Veronica Cuthill, a former U.K. citizen, gave birth to Tatiana Maria Diaz

de Junguitu Ullah, a current U.K. resident and citizen. Cuthill later immigrated to

the United States and became an LPR.

On September 29, 2016, Cuthill filed an I-130 petition for an F2A visa on

behalf of her daughter, Diaz. On that day, Diaz was exactly 19 years 9 months and

6 days old. On September 27, 2017 — 363 days after filing — USCIS approved the

petition. No F2A visas were available at the time, however, so Diaz was placed in

the F2A queue, with a priority date of September 29, 2016. Diaz turned 21 on

December 23, 2017 but — thanks to the CSPA — remained eligible for an F2A visa

for 363 more days.

On June 25, 2018, while Diaz was still waiting for an F2A visa to become

available, Cuthill naturalized as a U.S. citizen. At the time, Diaz was still statutorily

12 under 21 years old, based on the exclusion of 363 days of processing time from her

biological age. As such, on July 13, 2018, Cuthill sought to convert Diaz’s F2A

petition to one for an immediate-relative visa, which would have no waiting time

for Diaz to receive a visa. Instead, however, the Department of State notified

Cuthill that, because Diaz’s biological age was over 21 years old, she has been

transferred from the F2A queue to the F1 queue.

This had a crushing effect on Diaz’s prospects of obtaining a family-based

visa: Had the government allowed Diaz to proceed as an immediate relative, she

would likely have received her visa soon after her mother’s naturalization, since

immediate-relative visas are not subject to any queues. And even if Diaz had

stayed in the F2A queue, she would likely have reached the front of the visa line

several months later, by December 2018. But her placement in the F1

queue — which, as of January 2021, makes visas available only for beneficiaries

with a priority date on or before September 15, 2014 — means that Diaz will have

to wait many more years to receive a visa.

In 2019, Cuthill filed suit against the U.S. Secretary of State in the United

States District Court for the District of Connecticut. In a thorough and well-

13 reasoned opinion, the district court (Hall, J.) granted summary judgment for

Cuthill. The government timely appealed.

STANDARD OF REVIEW

We review the grant of summary judgment de novo. See Chunn v. Amtrak,

(2d Cir. 2019). Because there are no genuine disputes over material

facts, the issues in this appeal are entirely legal in nature.

DISCUSSION

Our analysis proceeds as follows: First, we begin with the CSPA’s text. We

find that the CSPA’s text favors Cuthill’s position, although the government’s text-

based arguments are well taken. Second, we turn to the CSPA’s structure. Here,

we find that Cuthill’s position better comports with the structure of the CSPA and

the overall family-based visa scheme, though neither party’s proposed reading of

the statute is in complete harmony with the surrounding provisions. Third, we

examine Congress’s purpose in enacting the CSPA, and it is there that we find our

clincher: The legislative history shows a clear desire by Congress to fix the age-out

problem for all minor beneficiaries, and there is nothing to suggest that Congress

intended to exclude beneficiaries like Diaz. Lastly, we address whether Chevron

deference applies here and conclude that it does not.

14 A. Text

The key provision at issue,

(f)(2), provides:

In the case of a petition [for an F2A visa], if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i), the determination [of whether the son or daughter meets the requirement that he or she be under 21] shall be made using the age of the alien on the date of the parent’s naturalization.

The government argues that “the age of the alien on the date of the parent’s

naturalization” refers to a son or daughter’s biological age on the date of the

parent’s naturalization; Cuthill argues that it means a son or daughter’s statutory

age, which excludes processing time.

The term “age,” standing in isolation, normally means biological age. But

the word “age” in the CSPA does not exist in a vacuum. Rather, it is part of an

interlocking set of provisions, some of which employ the statutory age calculation.

The dictionary is thus only a starting point. “[W]hen deciding whether the

language is plain, we must read the words in their context and with a view to their

place in the overall statutory scheme. Our duty, after all, is to construe statutes,

not isolated provisions.” King v. Burwell,

(2015); see also Corley v.

United States,

, 314 n.5 (2009) (“[T]he meaning — or ambiguity — of

certain words or phrases may only become evident when placed in context.”). So,

15 to understand the text of § 1151(f)(2), we must first look at three antecedent

provisions.

First,

(b)(1) provides a general definition that, subject to

certain complexities not relevant here, a “child” is “an unmarried person under

twenty-one years of age.” There can be no dispute that this refers to biological age.

Second,

(a)(2)(A) provides that F2A visas can be given to

“children of [LPRs].” As we just saw, the default definition of “child” is a person

under 21 years in biological age. Section 1153(a)(2)(A) thus appears to require that

F2A visa beneficiaries must be under 21 in biological years.

But the third provision,

(h)(1), explicitly requires a different

mechanism for determining a beneficiary’s age for the purposes of F2A visas and

one other visa category not relevant here. It provides:

For purposes of [§ 1153(a)(2)(A), the provision discussed in the previous paragraph and which applies exclusively to F2A visas,] a determination of whether an alien satisfies the age requirement in [§ 1101(b)(1), the first provision discussed above which provides for a default definition of “child,”] shall be made using –

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien . . . ; reduced by

(B) the number of days in the period during which the [F2A petition] was pending.

16 Id. In other words, the CSPA dictates that, in determining whether an F2A

beneficiary is a minor, we use a statutory formula rather than pure biological age.

With that in mind, we turn to § 1151(f)(2), the provision at issue. It provides

that “[i]n the case of a petition [for an F2A visa]” that is converted to an immediate-

relative visa due to the parent’s naturalization, “the determination [of whether an

alien satisfies the age requirement in § 1101(b)(1) — i.e., whether he or she is under

21] shall be made using the age of the alien on the date of the parent’s

naturalization.” Id. § 1151(f)(2). Because § 1151(f)(2) refers solely to F2A

beneficiaries, and because Congress specifically provided for a modified age

calculation for F2A beneficiaries, we conclude that the best textual reading of “the

age of the [F2A beneficiary] on the date of the parent’s naturalization” is that it

refers to the F2A beneficiary’s statutory age on such date.

The government advances several arguments in favor of its preferred

reading, but we disagree with its hypertechnical construction of the CSPA.

The government first argues that a nearby provision in the CSPA,

§ 1151(f)(1), uses the word “age” to refer to biological age, and that the term “age”

in § 1151(f)(2) therefore has the same meaning. But while we agree that “age” in

§ 1151(f)(1) refers to biological age, we do not take it as a given that “age” in

17 § 1151(f)(2) must have the same meaning. The reason § 1151(f)(1) indisputably

refers to biological age is that it deals solely with immediate-relative beneficiaries

and does not apply to F2A beneficiaries. In other words, the beneficiaries

discussed in § 1151(f)(1) are not subject to the F2A-specific age calculation, so there

is no way to calculate their age except biologically. But § 1151(f)(2) is an exception

to the general rule laid out in § 1151(f)(1). And it is an exception that applies only

to F2A beneficiaries, for whom “age” is calculated differently. All that § 1151(f)(1)

proves is the uncontroversial proposition that the word “age” standing alone

means biological age. It does not compel the conclusion that “age” has the same

meaning in the F2A-specific context, where Congress expressly provided for an

alternative calculation formula.

The government next argues that, because § 1151(f)(2) and § 1153(h) lack

any cross-references to each other, we cannot assume that § 1153(h)’s age-

reduction formula is incorporated into § 1151(f)(2). But while no one will ever

accuse the CSPA of being reader-friendly, there is still a clear textual path — albeit

a circuitous one — leading from § 1151(f)(2) to § 1153(h)(1). First, § 1151(f)(2)

expressly refers to “the [age] determination described in [§ 1151(f)(1)].” Jumping

to § 1151(f)(1), its age determination expressly cross-references “the age

18 requirement in [§ 1101(b)(1)]” which provides the default rule for calculating age

– i.e., biological age. But, as we know, § 1101(b)(1) is modified for F2A beneficiaries.

So if we keep following the trail, we see that § 1153(h)(1) expressly cross-references

§ 1101(b)(1) and provides that “[f]or purposes of [F2A visas], a determination of

whether an alien satisfies the age requirement in [§ 1101(b)(1)] shall be made

using” the statutory formula. This path thus leads from § 1151(f)(2) to § 1151(f)(1),

to § 1101(b)(1), and back up to § 1153(h). So while the government’s point stands,

the lack of neat cross-references does not negate our textual reading of § 1151(f)(2).

See Tovar v. Sessions,

(9th Cir. 2018) (“An explicit cross-reference

is unnecessary when the three provisions are so closely related and form a

cohesive whole.”).

The government next argues that because § 1153(h)(1) provides that the age-

reduction formula applies “[f]or purposes of subsection[] (a)(2)(A),” the reduction

formula can apply only to beneficiaries who actually apply for F2A visas under

subsection (a)(2)(A) once they become available, and not to beneficiaries who seek

to roll over into immediate-relative status under § 1151(f)(2). But the government’s

own reading of the CSPA suffers from the same flaw. The government contends

that because Diaz is over 21, she should be transferred to the F1 category. Though

19 the government does not say so expressly, it appears to contemplate that this

transfer is prescribed by § 1153(h)(3), which provides:

If the age of an alien is determined under [the F2A statutory formula] to be 21 years of age or older for the purpose[] of subsection[] (a)(2)(A) . . . the alien’s petition shall automatically be converted to the appropriate category . . . .

But if we went by the government’s narrow reading of the phrase “for the

purpose[] of subsection[] (a)(2)(A),” then § 1153(h)(3) clearly does not apply to

Diaz’s current predicament. That is because, “for the purpose[] of subsection[]

(a)(2)(A),” Diaz was still statutorily under 21 on the day that the government

transferred her to the F1 queue. Thus, the bottom line is that both proposed

interpretations must rely on similarly broad readings of the phrase “for purposes

of subsection (a)(2)(A).”

In sum, based on our analysis of the interlocking provisions dealing with

the word “age,” we hold that the text of § 1151(f)(2) favors Cuthill’s position. But

this is not a case that can be conclusively resolved on plain text alone. See Tovar,

(“[T]he text of § 1151(f)(2), standing alone, does not say which age

controls . . . .”). We thus turn to the broader structure of the CSPA to better

understand the text of § 1151(f)(2).

20 B. Statutory Scheme and Structure

Where the plain text does not conclusively resolve the question, we can

draw upon a variety of interpretive tools, including statutory structure, to discern

the text’s meaning and purpose. See United States v. Davis,

(2d

Cir. 2020). This is because “[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.” King,

. In examining the broader scheme and structure

of the CSPA, we are mindful of the well-established rule that “absurd results are

to be avoided.” McNeill v. United States,

(2011).

Our analysis of the statutory structure supports Cuthill’s position. Three

core structural principles permeate the CSPA and the family-based visa scheme:

(1) bureaucratic processing time should not count against child beneficiaries’ ages;

(2) sons and daughters of citizens receive preference over sons and daughters of

LPRs; and (3) minor children receive preference over adult sons and daughters. As

discussed below, the government’s proposed reading contravenes all three,

leading to absurd results: (1) processing time would count against Diaz’s age;

(2) Diaz would be in a worse position because her mother naturalized; and (3) Diaz

21 would be in a worse position because she originally petitioned as a child rather

than as an adult. Each is explained below.

First, one of the CSPA’s core principles is that administrative processing

time should not count in the age determination both for an immediate-relative

beneficiary and for an F2A beneficiary. See

(f)(1), 1153(h). Yet, the

government is effectively contending that the CSPA — for no discernible

reason — sub silentio maintained the pre-CSPA age-calculation regime for one

subset of F2A applicants. The government’s reading would leave a sizable hole in

the CSPA’s age-out protections. See King,

(“We cannot interpret

federal statutes to negate their own stated purposes.”).

Second, there is no question that the statutory scheme gives preference to

sons and daughters of citizens over sons and daughters of LPRs. The most obvious

example is that minor children of citizens do not have to wait in any queue, unlike

minor children of LPRs. Compare

(b), with

§ 1153(a). The

government’s reading turns this principle on its head: If Cuthill had remained an

LPR instead of becoming a citizen, her daughter would have stayed in the

relatively short F2A queue and her visa would have become available in 2018. But

because her mother became a citizen, Diaz was relegated to the much longer F1

22 queue and will have to wait many more years for a visa. Penalizing people for

becoming citizens runs counter to the entire family-based visa scheme.

Third, a key structural principle of the CSPA and U.S. immigration law is

that minor children get preference over adult sons and daughters. See Fiallo v. Bell,

(1977) (noting that immigration law “grants special preference

immigration status to aliens who qualify as the children . . . of United States

citizens or lawful permanent residents”). One manifestation of this principle is the

fact that minor sons and daughters of LPRs can wait in the short F2A queue while

adult sons and daughters of LPRs must instead wait in the much longer F2B queue.

But consider the government’s reading of the CSPA: If a parent petitions for an

F2B visa for their adult son or daughter and later naturalizes, the CSPA gives the

beneficiary the option of either staying in the F2B queue or switching to the F1

queue. See

(k). By contrast, if that same parent had petitioned for an

F2A visa for a minor child and later naturalizes when the child is biologically over

21 (but would have remained eligible for an F2A visa due to her statutory age), the

government’s reading says that the child has no options: she gets automatically

transferred to the F1 queue. The lack of an opt-out makes sense under Cuthill’s

reading because immediate-relative status is generally considered the crème-de-la-

23 crème of family-based visas. But the government’s reading leads to a highly

unlikely result where the CSPA penalizes child beneficiaries like Diaz by denying

them the opt-out provision that is afforded to adult beneficiaries.

The strongest structural argument for the government is that the age-

reduction formula does not mesh perfectly with Cuthill’s reading of § 1151(f)(2).

One of the key inputs in the age-reduction formula is “the date on which an

immigrant visa number becomes available for [the minor beneficiary].”

(h)(1)(A). It is from this date that one deducts processing time.

§ 1153(h)(1)(B). Further, the age-reduction formula provides that it applies in the

context of an F2A visa petition “only if the [beneficiary] has sought to acquire the

status of an alien lawfully admitted for permanent residence within one year of

[when an immigrant visa becomes available].” Id. § 1153(h)(1)(A). But immediate-

relative visas are always available, creating a conundrum if we accept Cuthill’s

argument that the age-reduction formula applies to F2A beneficiaries who convert

to immediate-relative beneficiaries: What should be considered the availability

date?

There are two potential solutions. To begin with, we do not hold that

§ 1151(f)(2) necessarily incorporates § 1153(h) lock, stock, and barrel, including the

24 timely application requirement. We need not decide, and do not decide, whether

those elements are incorporated into § 1151(f)(2). Our holding is more limited,

concluding only that § 1151(f)(2) incorporates the basic age-reduction

formula — i.e., the notion that you take the beneficiary’s current age and deduct

processing time. This basic formula exists independently of the availability and

application requirements, as illustrated by Diaz’s own case: For the 363 days after

her biological twenty-first birthday, the age-reduction formula allowed her to

remain in the F2A queue — even though a visa had not become available and she

had not applied for one. In other words, § 1153(h) allows an F2A beneficiary to

take advantage of the age-reduction formula even though the availability and

application requirements have not yet come into play. It is this concept that

1151(f)(2) incorporates when it refers to the age of an F2A beneficiary.

And even if § 1151(f)(2) does incorporate the availability requirement, we

agree with the district court that, in the context of § 1151(f)(2), the visa availability

date could simply be interpreted as referring to the date of the parent’s

naturalization. After all, that is the date on which the relevant visa — which, in the

context of § 1151(f)(2), is an immediate-relative visa — became available. We need

25 not resolve this issue in this appeal, but suffice it to say that it does not pose an

insurmountable obstacle to Cuthill’s interpretation of § 1151(f)(2).

The government next argues that Cuthill’s reading — that F2A petitioners

in Diaz’s situation roll over to the immediate-relative category rather than to the

F1 category — actually hurts F2A beneficiaries, because F2A and F1 beneficiaries

can bring their own minor children as derivative beneficiaries, see id. § 1153(d), but

immediate relatives cannot. But even if this were considered a downgrade (which,

given the choice between a long F1 queue and rapid receipt of an immediate-

relative visa, it likely is not), it is one that Congress expressly contemplated in

§ 1151(f)(2): If an F2A beneficiary is under 21 years old biologically when her

parent naturalizes, the F2A petition can be “later converted, due to the

naturalization of the parent, to a petition to classify the alien as an immediate

relative . . . .” Id. § 1151(f)(2). Congress made a common-sense judgment that the

immediate-relative category is far preferable to the F2A category even if that

means losing the ability to bring derivative beneficiaries. 5

5 Relatedly, the government argues that it is not always the case that the F2A-to-F1 switch is detrimental to visa beneficiaries. It points out that in 2001, around the time that the CSPA was enacted, the F1 queue was actually shorter than the F2A queue. But this argument misses the point: The relevant choice at issue is not between staying in the F2A queue and switching to the F1 queue, but

26 Finally, the government argues that the F2A-to-immediate-relative switch is

incongruent with the broader statutory scheme because § 1153(h) contemplates

rollovers only within preference categories — i.e., between F2A and F2B. But this

argument, too, is contradicted by § 1151(f)(2). There is no dispute that § 1151(f)(2)

expressly provides for an F2A-to-immediate-relative switch if an F2A beneficiary

is biologically under 21 years old when her parent naturalizes. Cuthill merely

seeks to apply this existing mechanism to a subset of F2A beneficiaries. If anything,

it is the government’s proposed switch that is without precedent, as there is no

express statutory F2A-to-F1 mechanism in the CSPA. See Tovar,

(“Neither the regulation nor the statute authorizes the result the government

advocates here: conversion of an F2A petition into an F1 petition.”).

In sum, while Cuthill’s reading is not free of complications, it is far more

consistent with the CSPA’s overall scheme and structure than the alternative

proposed by the government. The government’s reading turns the CSPA on its

head, contravenes three core features of our nation’s family-based visa scheme,

between switching to the F1 queue or switching to the immediate-relative category. These are the outcomes that the parties advocate for: The government says Diaz should go the F1 queue; Cuthill says Diaz should go to the immediate-relative category. As between these two options, there can be little doubt that the immediate-relative category is a far preferable route for the reason set forth above. 27 and yields the bizarre result of penalizing people for becoming U.S. citizens. See

(concluding that the government’s position leads to an “absurd result”

where “because [the F2A beneficiary]’s father became a citizen, [he] must now wait

decades longer for a visa than if his father had remained an LPR”).

C. Purpose

In addition to the text and structure of the statute, Congress’s purpose in

enacting the CSPA — as reflected in the legislative history — can help us decipher

the meaning of the statutory language. See Guerrero-Lasprilla v. Barr,

(2020). “Congress passes legislation with specific purposes in mind. When

the ordinary tools of statutory construction permit us to do so, we must attempt

to discover those purposes.” In re WorldCom, Inc.,

(2d Cir. 2013).

While the government has raised colorable textual and structural

arguments, we find that the purpose and history of the CSPA overwhelmingly

favor Cuthill’s reading of § 1151(f)(2). There is no dispute that Congress enacted

the CSPA because it wanted to protect child beneficiaries from aging out of their

age-dependent child visas. There is no indication whatsoever that Congress

wanted to single out beneficiaries like Diaz for exclusion from the CSPA’s anti-

28 aging-out remedies. The government does not proffer any reason — nor could

it — why Congress would want to do so.

While reliance on legislative purpose is sometimes criticized on the ground

that Congress is a divided body that does not speak with a single voice or purpose,

that critique does not apply here. It is hard to imagine a piece of legislation that

speaks with more unmistakable clarity of purpose than the CSPA. See McCreary

Cnty. v. Am. C.L. Union of Ky.,

(2005) (“[S]crutinizing purpose

does make practical sense . . . where an understanding of official objective emerges

from readily discoverable fact, without any judicial psychoanalysis of a drafter’s

heart of hearts.”).

The CSPA was motivated by bipartisan frustration with the fact that

children were losing out on visas due to years-long processing delays. The

legislation was co-sponsored by representatives of both major parties, passed the

House of Representatives by a unanimous 416-0 vote, passed unanimously in the

Senate Judiciary Committee after the addition of an amendment, passed the Senate

by a unanimous voice vote, passed the House again by a unanimous voice vote,

and signed into law by President George W. Bush. Senators and House members

of both parties spoke in support of the legislation, and all of them focused on the

29 same theme: Children should not lose their coveted status due to agency

processing time.

By way of a sampling, the House Report describes the CSPA’s purpose as

“address[ing] the predicament of these aliens, who through no fault of their own,

lose the opportunity to obtain an immediate relative visa before they reach age

21.” H.R. Rep. No. 107-45, at 2 (2001), reprinted in 2002 U.S.C.C.A.N. 640, 641. The

Democratic co-sponsor in the House, Representative Sheila Jackson-Lee, said that

the CSPA “corrects the problem of aging-out under current law,” under which

“once children reach 21 years of age, they are no longer considered immediate

relatives . . . [and] are placed in the back of the line of one of the [] backlog family-

preference categories of immigrants.” 147 Cong. Rec. H2902,

(2001). The Republican co-sponsor in the House, Representative George Gekas,

likewise spoke of the need to prevent children from being “thrown into a

completely different category” due to no fault of their own and causing them to

“wait years for final adjudication of that particular status.”

Senator Dianne

Feinstein, who proposed the Senate amendment, likewise said that the CSPA

“would protect children who are in danger of losing their eligibility for an

30 immigration visa” due to processing time. 147 Cong. Rec. S3275,

(2001).

To be fair, Congress focused more frequently on the aging out of children of

U.S. citizens who petition for immediate-relative visas — i.e., the problem that was

fixed by § 1151(f)(1). By comparison, the fate of F2A beneficiaries — which was

addressed by § 1151(f)(2) and § 1153(h) — appears to have been less frequently

mentioned. Nevertheless, the legislative record shows that Congress intended to

protect all minor beneficiaries, and there is no indication whatsoever that Congress

aimed to exclude any subset of minor beneficiaries from the CSPA’s protections. 6

In sum, the legislative history and purpose of the CSPA overwhelmingly

support the incorporation of the age-reduction formula into § 1151(f)(2) in Diaz’s

case. Congress unmistakably intended that F2A beneficiaries should not be

6 In case there is any lingering doubt that Congress intended to eliminate all “age-out” situations, the later words of some of the legislators involved also support our interpretation. A bipartisan group of then-current and former senators wrote in an amicus brief submitted to the Supreme Court — with emphasis in original — that they “crafted the CSPA to protect all children who seek to immigrate to this country from the consequences of ‘aging out,’ that is, turning 21 before a green card is available for them.” Brief of Current and Former Members of Congress as Amici Curiae in Support of Respondents, Scialabba v. Cuellar de Osorio,

(2014),

, at *1. Of course, such after- the-fact statements are of very limited value, but they serve as further confirmation that Congress intended the CSPA to fix all age-out situations. 31 penalized by (1) administrative processing time or (2) their parents’ naturalization.

The case before us presents a unique combination of the two, but there is no reason

to think that Congress intended the result to be different. Thus, to the extent there

is any remaining textual ambiguity about the meaning of the phrase “the age of

the alien on the date of the parent’s naturalization,” the legislative history clearly

shows us the way.

At the end of the day, the strongest argument for the government is this:

Congress wanted to fix the age-out problem for all minor beneficiaries, but while

doing so, it overlooked one scenario — Diaz’s — and failed to legislate a fix for it.

If this were the case, we would agree that it would be up to Congress, not the

courts, to repair the oversight, and certainly if our analysis is wanting, Congress is

in a position to fix any oversight. But we do not think that is the case here. In

affirming the district court, we do not hold that Congress would have legislated a

fix for Diaz’s predicament had it been aware of it. Rather, we hold — based on the

text, structure, purpose, and legislative history of the CSPA — that Congress did

legislate a fix via § 1153(h)(1) and § 1151(f)(2).

32 D. Chevron Deference

Lastly, the government argues that we should defer to the decision by the

Board of Immigration Appeals (“BIA”) in Matter of Zamora-Molina,

(B.I.A. 2011), in which the BIA adopted the same interpretation as the

Department of State. Even assuming, without deciding, that Chevron deference

applies when one agency (the Department of State) seeks to rely on the

interpretation of another agency (the Department of Justice), we agree with the

district court and with the Ninth Circuit that Chevron deference does not apply

here because “the intent of Congress is clear.” Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc.,

(1984); see also

at 842–43 (“If the intent of Congress

is clear, that is the end of the matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.”); Tovar,

(declining to apply Chevron deference to Zamora-Molina because “traditional tools

of statutory construction” and “the irrationality of the result sought by the

government” combine to “demonstrate beyond any question that Congress had a

clear intent on the question at issue”). As discussed above, the text, structure, and

33 legislative history of the CSPA conclusively show the “unambiguously expressed

intent of Congress” to protect beneficiaries like Diaz. Chevron,

. 7

CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

7 This conclusion is bolstered by the fact that the BIA’s analysis in Zamora- Molina does not purport to resolve any ambiguity. Rather, the BIA matter-of-factly concluded that the age-reduction formula clearly does not apply to § 1151(f)(2) based on a perfunctory review of the relevant provisions. See Zamora-Molina, 25 I. & N. Dec. at 610–11. This differentiates Zamora-Molina from the BIA decision that received Chevron deference in Scialabba. See 573 U.S. at 75. There, unlike in Zamora- Molina, the BIA recognized the statute’s ambiguity and conducted a lengthy analysis of the text, structure, and legislative history of the CSPA provision at issue. See Matter of Wang,

(B.I.A. 2009). 34