Si Min Cen v. Attorney Gen. U.S.

825 F.3d 177

Si Min Cen, Petitioner

v.Attorney General United States of America, Respondent.

No. 14-4831

United States Court of Appeals, Third Circuit.

Argued: October 5, 2015

Opinion filed: June 6, 2016

Scott E. Bratton, Esquire (Argued), Margaret Wong & Associates, 3150 Chester Avenue, Cleveland, OH 44114, Counsel for Petitioner

Jeffrey R. Meyer, Esquire, Robert M. Stalzer, Esquire (Argued), United States Department of Justice, Office of Immigration Litigation, Civil Division, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: SHWARTZ, KRAUSE, and GREENBERG, Circuit Judges

OPINION OF THE COURT

KRAUSE, Circuit Judge.

The Immigration and Nationality Act (INA) allows a child under the age of twenty-one whose alien parent has married a U.S. citizen abroad to obtain a temporary “K–4” visa to accompany her parent to the United States and, based on the parent's marriage, to apply to adjust her status to that of a lawful permanent resident. On a petition for review of a decision of the Board of Immigration Appeals (BIA), we now consider the validity of a regulation that makes it impossible for a child who entered on such a visa to remain with her family and adjust her status from within the United States if she was over the age of eighteen at the time of her parent's marriage. Because the regulation departs from the plain language of the INA, contravenes congressional intent, and exceeds the permissible scope of the Attorney General's regulatory authority, we conclude it is invalid. We therefore will grant the petition for review and will reverse and remand to the BIA for further proceedings.

I. Background

As a general matter, aliens abroad who have relatives in the United States may be eligible to obtain lawful permanent residence, but because it can take months or even years for the pertinent paperwork to be processed, these aliens may spend significant time separated from their loved ones while they wait in their home countries for the appropriate visa approval. See, e.g. , 8 U.S.C. §§ 1151 -1154 ; 146 Cong. Rec. 27,160 (2000) (describing the lengthy delays faced by those seeking relative-based visas). Congress sought to ameliorate this problem for the immediate family members of U.S. citizens through the creation, initially, of K-1 visas for alien fiancé(e)s of U.S. citizens and then, more recently, of K-3 visas for alien spouses of U.S. citizens. In addition, and of particular significance for this case, Congress also provided for K-2 and K-4 visas for, respectively, the minor children of fiancé(e)s and spouses, up to age twenty-one.¹

Once reunited with their families stateside, aliens with one of these K-visas may apply for and, subject to the discretion of the Attorney General, attain lawful permanent residence without leaving the United States through a process called “adjustment of status.” Petitioner in this case properly obtained a K-4 visa as the nineteen-year-old daughter of a K-3 alien spouse and accompanied her mother to the United States to live with her stepfather, a U.S. citizen, while Petitioner and her mother applied for adjustment of status. Petitioner's applications have been denied, however, on account of a regulation that effectively bars any child with a K-4 visa who was between the ages of eighteen and twenty-one at the time of her parent's marriage from obtaining lawful permanent residence without first returning overseas. Our analysis of Petitioner's challenges to the validity of this regulation requires an understanding of the statutory and regulatory regime that governs K-visa holders, as well as the factual and procedural history of Petitioner's case. We address each below.

A. Statutory and Regulatory Context

The story of K-visas begins in 1970, when Congress created K-1 and K-2 visas to allow the fiancé(e)s of U.S. citizens and such fiancé(e)s' unmarried children under the age of twenty-one, respectively, to obtain temporary, nonimmigrant status. Assuming the fiancé(e) and the U.S. citizen married within three months, that status would allow the fiancé(e) and children to await processing of their applications for lawful permanent residence from within the United States. Act of Apr. 7, 1970, Pub. L. No. 91-225, § 1(b), 84 Stat. 116, 116. In their original form, K-1 and K-2 visas triggered automatic lawful permanent residence for the visa holders once the marriage was complete. See id. at § 3(b). This feature had the perverse effect, however, of encouraging fraudulent marriages whereby some aliens obtained K-1 visas and married U.S. citizens with the intention to dissolve the marriage once they obtained lawful permanent residence. In re Sesay , 25 I. & N. Dec. 431, 435–38 (BIA 2011) (describing this marriage fraud problem).

In 1986, Congress sought to curb such marriage fraud by passing the Immigration Marriage Fraud Amendments (IMFA), Pub. L. No. 99-639, 100 Stat. 3537 (1986), which replaced K-1 and K-2 aliens' streamlined method of obtaining lawful permanent residence with the more structured “adjustment of status” process. IMFA § 3(c); see also Carpio v. Holder , 592 F.3d 1091, 1094 (10th Cir. 2010) (describing the post-IMFA requirement that K-visa holders file an application for adjustment of status in order to obtain lawful permanent residence). Since the passage of the IMFA, K-1 and K-2 aliens are required to apply to adjust their status like other aliens through the strictures of 8 U.S.C. § 1255(a), which gives the Attorney General the discretion to provide lawful permanent residence to certain aliens without requiring them to first return to their countries of origin. See IMFA § 3(c). K-visa holders' adjustment of status under § 1255(a) is constrained by 8 U.S.C. § 1186a, which renders an alien's permanent status conditional for two years, after which time the Government conducts an interview with the couple to reaffirm the legitimacy of the marital union; if the Government is satisfied, the status for both the alien spouse and her children becomes truly permanent. IMFA § 2.

To apply for status adjustment under § 1255(a), an alien must take three steps: (1) file an application to adjust status; (2) demonstrate eligibility under existing law to adjust status; and (3) show that a permanent visa is immediately available.² 8 U.S.C. § 1255(a). Once an application is filed, the ultimate decision as to whether that application is granted is left to the discretion of the Attorney General, who also has authority to promulgate regulations governing the adjustment of status process. Id. The IMFA also created 8 U.S.C. § 1255(d), which, in its first iteration, barred the Attorney General from adjusting a nonimmigrant's status solely on the basis of the K-visa. IMFA §§ 2(e), 3(b). That had the effect of forcing K-1 and K-2 aliens to satisfy § 1255(a)(2)'s eligibility requirement through the traditional means available under the INA to alien family members—by proving a legally cognizable familial relationship with the U.S. citizen petitioner under 8 U.S.C. § 1151(b)(2)(A)(i), such as a marital or a parent-child relationship. See, e.g. , Kondrachuk v. U.S. Citizenship & Immigr. Servs. , No. C 08–5476 CW, 2009 WL 1883720, at *1–2 (N.D. Cal. June 30, 2009) (describing the adjustment process for K-visa holders under § 1255(a) ). Procedurally, this meant that once the marriage took place, not only the K-1 alien parent but also each K-2 stepchild would need to prove eligibility through the submission of an I-130 petition—a petition filed by the U.S. citizen attesting that the K-2 alien was the “child” of the U.S. citizen. See id. ; Dep't of Homeland Sec., Instructions for Form I-130, Petition for Alien Relative (Mar. 23, 2015), available at https://www.uscis.gov/sites/default/files/files/form/i-130instr.pdf (last visited Mar. 22, 2016) (hereinafter “Instructions for Form I-130”).

This new requirement, however, produced an unintended consequence for some K-2 children because, under the INA, a stepchild only qualifies as a “child” of a U.S. citizen if “the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.” 8 U.S.C. § 1101(b)(1)(B). Thus, an alien child up to age twenty-one could obtain a K-2 visa and accompany her alien parent and any younger siblings to the United States, but, if she was eighteen to twenty-one years old when the marriage took place, the U.S. stepparent could not file an I-130 petition on her behalf. The stepchild, in other words, had no mechanism to satisfy the requirements of § 1255(a)(2) and no other means to adjust status from within the United States. See, e.g. , Kondrachuk , 2009 WL 1883720, at *1–2 (recounting the effect of the IMFA on K-2 visa holders); see also Memorandum from Michael L. Aytes, Assoc. Dir., U.S. Citizenship & Immigr. Servs. Domestic Ops., Regarding Adjustment of Status for K-2 Aliens (Mar. 15, 2007), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/k2adjuststatus031507.pdf (last visited Mar. 22, 2016) (“Aytes Memorandum”) (confirming the unintentional IMFA-created gap). The upshot was that, upon expiration of her K-2 visa, the stepchild was required to separate from her parents and siblings and to return to her home country to apply for admission to the United States from abroad based on her alien parent's newfound status as a lawful permanent resident. See 8 U.S.C. § 1153(a)(2) ; Kondrachuk , 2009 WL 1883720, at *2 & n.3 (explaining that because an immigrant visa is not “immediately available” to a K-2 child based on the lawful permanent resident status of her alien parent, such child may not adjust status within the United States via § 1255(a) ).

This unintentional gap for older K-2 children³ prompted the then-existing Immigration and Naturalization Service (INS)⁴ to take corrective action only two years after the IMFA passed, which led—in conjunction with statutory amendments passed by Congress in the same...