Margarito Rodriguez Tovar v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MARGARITO RODRIGUEZ TOVAR, No. 14-73376 Petitioner, Agency No. v. A087-216-564 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 4, 2017 Pasadena, California Filed February 14, 2018 Before: Dorothy W. Nelson and Stephen Reinhardt, Circuit Judges, and George Caram Steeh,* District Judge. Opinion by Judge Reinhardt * The Honorable George Caram Steeh III, United States District Judge for the Eastern District of Michigan, sitting by designation. 2 RODRIGUEZ TOVAR V. SESSIONS SUMMARY** Immigration The panel granted and remanded Margarito Rodriguez Tovar’s petition for review of a Board of Immigration Appeals decision rejecting his application for adjustment of status. Relying on the BIA’s published opinion in Matter of Zamora-Molina, 25 I. & N. Dec. 606 (BIA 2011), the immigration judge and BIA rejected Rodriguez Tovar’s application for adjustment of status. The agency held that, because Rodriguez Tovar was over 21 years old in biological age on the date of his father’s naturalization, his F2A visa petition (for a minor child of a lawful permanent resident) immediately converted to an F1 visa petition (for an adult child of a U.S. citizen), and not to an immediate relative petition. The agency came to this conclusion even though Rodriguez Tovar was classified by statute as under 21 years old for purposes of his F2A petition, pursuant to the age calculation formula set forth by the Child Status Protection Act. The BIA concluded that Rodriguez Tovar was not eligible for adjustment of status because no visa was immediately available and that Rodriguez Tovar would be subject to removal forthwith. The panel observed that if Rodriguez Tovar’s father had remained an LPR instead of becoming a citizen, Rodriguez Tovar would have been eligible for a visa in the F2A category ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RODRIGUEZ TOVAR V. SESSIONS 3 in 2007, at which point his age under the statute would have been 20. Similarly, had he been afforded his statutory age when his father became a citizen, he would have been eligible for a visa immediately. The panel also noted that the government’s position would lead to the absurd result that Rodriguez Tovar would have to wait in line for a visa abroad and not become eligible for an F1 visa until more than twenty years after he would have been eligible for an F2A visa but for his father’s naturalization. Concluding that Congress had clear intent on the question at issue, the panel did not defer to the BIA’s opinion in Matter of Zamora-Molina. Reading the statue as a whole, the panel concluded that Congress intended “age of the alien on the date of the parent’s naturalization,” 8 U.S.C. § 1151(f)(2), to refer to statutory age—that is, age calculated according to 8 U.S.C. § 1153(h)(1). Under that ...

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