AVILA-PEREZ

Cite as 24 I&N Dec. 78 (BIA 2007) 	Interim Decision #3551
In re Rodolfo AVILA-PEREZ, Respondent
File A96 035 732 - Houston
Decided February 9, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Section 201(f)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1151(f)(1) (Supp. II
2002), which allows the beneficiary of an immediate relative visa petition to retain his status
as a “child” after he turns 21, applies to an individual whose visa petition was approved
before the August 6, 2002, effective date of the Child Status Protection Act, Pub. L.
No. 107-208, 116 Stat. 927 (2002), but who filed an application for adjustment of status
after that date.
(2) The respondent, whose visa petition was approved before August 6, 2002, and who filed
his adjustment of status application after that date, retained his status as a child, and
therefore an immediate relative, because he was under the age of 21 when the visa petition
was filed on his behalf.
FOR RESPONDENT: Timothy S. Hart, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Monica Thompson, Assistant
Chief Counsel
BEFORE: 	Board Panel: OSUNA, Acting Chairman; FILPPU and PAULEY, Board
Members.
PAULEY, Board Member:
In a decision dated September 13, 2005, an Immigration Judge found the
respondent statutorily ineligible for adjustment of status under section 245(a)
of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2000), because
he did not have a visa immediately available to him at the time his adjustment
application was filed, having lost his status as the child of a United States
citizen, and therefore as an immediate relative, when he turned 21 years of
age. 	The respondent has appealed from that decision. 	The appeal will be
sustained, and the record will be remanded for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The relevant events in this case are undisputed. The respondent was born
on April 4, 1976. On August 30, 1996, his mother filed a Petition for Alien
Relative (Form I-130) to accord him immediate relative status as the child of
78

Cite as 24 I&N Dec. 78 (BIA 2007) 	Interim Decision #3551
a United States citizen. The visa petition was approved on November 1, 1996,
with a priority date of August 29, 1996. The respondent overstayed the period
of his nonimmigrant visa and subsequently filed an Application to Register
Permanent Residence or Adjust Status (Form I-485) on October 15, 2003.
The Department of Homeland Security (“DHS”), formerly the Immigration
and Naturalization Service (“INS”), initiated removal proceedings against the
respondent and moved to pretermit his adjustment application. 	The DHS
argued that the respondent was ineligible to be classified as a child pursuant
to the provisions of the Child Status Protection Act, Pub. L. No. 107-208, 116
Stat. 927 (2002) (“CSPA”), because he had “aged out,” i.e., reached the age
of 21, prior to its August 6, 2002, enactment date. According to the DHS, the
CSPA only applies to an individual who “aged out” before August 6, 2002,
if his visa petition remained pending on that date or, if his visa petition had
been previously approved, an adjustment application had been filed on or
before August 6, 2002, on which no final determination had been made as of
that date. 	The DHS argued that the respondent did not qualify for CSPA
benefits and was therefore ineligible to adjust his status because he was
properly classified as the unmarried son of a United States citizen, to whom
a visa was not immediately available.
The respondent opposed the DHS’s motion, contending that he was eligible
for the benefits of the CSPA because his visa petition was approved before the
statute’s August 6, 2002, effective date and because his October 15, 2003,
adjustment application was the first use of his approved visa petition. Thus,
he argued that he retained his status as the child of a United States citizen and
was therefore an immediate relative, who was not subject to visa availability.
II. PROVISIONS OF THE CSPA
The CSPA amended the Act to provide “age-out” protection for certain
individuals who were classified as “children” at the time that a visa petition
or application for permanent residence was filed on their behalf, but who
turned 21 before their petition or application was ultimately processed. The
relevant provision of the CSPA in this case is section 2, which is codified at
section 201(f)(1) of the Act, 	8 U.S.C. § 1151(f)(i) (Supp. II 2002).1 That
section provides that an alien’s status as a child is determined as of the date
Section 201(f)(1) of the Act provides as follows:
Rules for Determining Whether Certain Aliens Are Immediate Relatives
(1) Age on petition filing date
[F]or purposes of subsection (b)(2)(A)(i), a determination of whether an alien satisfies
the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall
be made using the age of the alien on the date on which the petition is filed with the
Attorney General under section 204 to classify the alien as an immediate relative under
subsection (b)(2)(A)(i).
79
1

Cite as 24 I&N Dec. 78 (BIA 2007) 	Interim Decision #3551
on which a visa petition to classify him as an immediate relative is filed.
Thus, under the provisions of the CSPA, if the beneficiary of a visa petition
is under the age of 21 at the time of filing, he retains his status as a “child,”
even after he turns 21. 	See section 101(b)(1) of the Act, 8 U.S.C.
§ 1101(b)(1) (2000).
The effective date portion of the CSPA is section 8, which states the
following:
The amendments made by this Act shall take effect on the date of the enactment of
this Act [August 6, 2002] and shall apply to any alien who is a derivative beneficiary or
any other beneficiary of —
(1) a petition for classification under section 204 of the Immigration and Nationality
Act (8 U.S.C. 1154) approved before such date but only if a final determination has
not been made on the beneficiary’s application for an immigrant visa or adjustment
of status to lawful permanent residence pursuant to such approved petition;
(2) a petition for classification under section 204 of the Immigration and Nationality
Act (8 U.S.C. 1154) pending on or after such date; or
(3) an application pending before the Department of Justice or the Department of
State on or after such date.
CSPA § 8, 116 Stat. at 930 (emphasis added).
In interpreting this provision, the Immigration Judge concluded that the
benefits of the CSPA did not apply to the respondent because: (1) he turned
21 before August 6, 2002; and (2) although he was the beneficiary of a visa
petition approved before August 6, 2002, he had no pending adjustment
application filed on or before that date. 	Thus, the Immigration Judge
implicitly interpreted section 8(1) to include a requirement that the application
for adjustment of status must be filed before August 6, 2002, the effective date
of the CSPA.
III. ISSUES PRESENTED ON APPEAL
The outcome of this case depends on whether the effective date provision
in section 8(1) of the CSPA applies only to individuals who filed an
adjustment application on or before August 6, 2002. If the CSPA requires an
alien with an approved visa petition to have filed his adjustment application
before August 6, 2002, then the CSPA does not apply to the respondent,
whose adjustment application was filed on October 15, 2003.2 Without the
We note that the respondent asserts on appeal for the first time that he applied for an
immigrant visa in 1996 in Ciudad Juarez, Mexico, and that a final determination has never
been made on that application. We recognize that if this is true, the respondent would
clearly be eligible for the benefits of the CSPA, and we would not need to address the
timeliness of his adjustment application to obtain the benefits of the CSPA. Nonetheless,
we cannot rely on the respondent’s assertion to resolve this appeal. First, we note that the
respondent’s statement in his brief is directly contrary to his statement in his opposition to
(continued...)
80
2

Cite as 24 I&N Dec. 78 (BIA 2007) 	Interim Decision #3551
benefit of the CSPA, the respondent aged out on his 21st birthday on April 4,
1997, and, consequently, could only obtain a visa as a first-preference
unmarried son of a United States citizen, to whom an immigrant visa was not
immediately available at the time of his immigration proceedings.3 See
sections 201(a)(1), 203(a)(1) of the Act, 8 U.S.C. §§ 1151(a)(1), 1153(a)(1)
(2000); Department of State Visa Bulletin, Vol. VIII, No. 85 (Sept. 2005).
Accordingly, if the CSPA does not apply, then the respondent is ineligible to
adjust his status under section 245(a) of the Act.
If, however, the CSPA does not require an alien with an approved visa
petition to have filed his adjustment application before its effective date, then
the CSPA applies to the respondent because his visa petition was approved
before August 6, 2002. In that case, the respondent retained his status as a
child because he was 20 years old and unmarried when his mother filed the
visa petition on his behalf. See sections 101(b)(1), 201(b)(2)(A)(i), (f)(1) of
the Act. 	When the visa petition was approved, the respondent had an
immigrant visa immediately available to him because it was not subject to the
annual numerical limitations that can delay the availability of family-based
preference petitions. 	Compare section 201(a)(1) of the Act with section
201(b)(2)(A)(i) of the Act. Consequently, if the CSPA provisions apply to
this case, the respondent, who appears to be otherwise admissible, may be
eligible to adjust his status under section 245(a) of the Act.
IV. APPLICABILITY OF THE CSPA
A. Plain Language
We must employ the principles of statutory construction to ascertain
whether section 8(1) of the CSPA requires an alien with a visa petition that
was approved before August 6, 2002, to have filed his adjustment application
on or before that date. Proper statutory construction begins with the words of
the statute, which should be given their ordinary and natural meaning. Bailey
v. United States, 516 U.S. 137, 144-45 (1995); INS v. Cardoza-Fonseca, 480
U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984). If an
2 (...continued)
the Government’s motion to pretermit that his October 15, 2003, adjustment application was
his first use of his approved visa petition. Second, the respondent has not provided a copy
of his 1996 visa application, and there is no other evidence in the record to corroborate that
such a visa application was filed. While it is certainly possible that the respondent filed a
visa application in 1996 on which no final determination has been made, we cannot dispose
of this case on that basis because of the ambiguities and omissions in the record currently
before us.
3 We note that even under the most recent Department of State Visa Bulletin, a visa would
not be immediately available to the respondent as an unmarried son of a United States
citizen with an August 29, 1996, priority date. See Department of State Visa Bulletin, Vol.
VIII, No. 102 (Feb. 2007).
81

Cite as 24 I&N Dec. 78 (BIA 2007) 	Interim Decision #3551
ambiguity is perceived when a provision of the statute is read in isolation, it
is often clarified when it is interpreted in the context of the remainder of the
statutory scheme. Bailey v. United States, supra, at 146.
Reading section 8(1) of the CSPA in isolation, we find an ambiguity in that
provision. Section 8(1) contains no explicit requirement that an adjustment
application be pending as of the effective date of the CSPA. 	On the other
hand, it is certainly possible to construe the CSPA as having an implicit
requirement that an adjustment application must have been pending on its
effective date. 	That is, to make the CSPA applicable to a beneficiary of a
previously approved visa petition for whom “no final determination has been
made” on his adjustment application would seem to imply that such an
application was already filed on or before the effective date of the CSPA.4
Because section 8(1) of the CSPA is subject to two reasonable interpretations,
we look to the remaining provisions of that section for clarification. 	See
Bailey v. United States, supra, at 145-46 (providing that the meaning of
statutory language depends on context).
Sections 8(2) and 8(3) of the CSPA expressly provide that the statute
applies to the beneficiary of an immigrant petition whose application for an
immigrant visa or adjustment of status is “pending” on or after August 6,
2002. See CSPA §§ 8(2), 8(3), 116 Stat. at 930. Where Congress includes
particular language in one section of a statute but omits it in another section
of the same statute, it is generally presumed that Congress acts intentionally
in the inclusion or exclusion. 	INS v. Cardoza-Fonseca, supra, at 432;
Russello v. United States, 464 U.S. 16, 23 (1983). Had Congress intended to
restrict the protections of the CSPA under section 8(1) to only those
individuals who had visa or adjustment applications “pending” as of the date
of enactment, it presumably would have expressly so stated, as it stated that
the petitions and applications must be “pending” in the immediately following
subsections. 	Cf. Russello v. United States, supra, at 23 (stating that if
Congress had intended to restrict “an interest” in a particular subsection to one
4 We observe that before the functions of the INS were transferred to the DHS, the INS
issued an internal policy memorandum on February 14, 2003, offering guidelines to its field
officers as to the proper interpretation of the CSPA. 	See Memorandum of Johnny N.
Williams, Executive Associate Commissioner, Office of Field Operations, to INS Officials
(Feb. 14, 2003), reprinted in 80 Interpreter Releases, No. 11, Mar. 17, 2003, at 414. In that
memorandum, the INS construed section 8(1) of the CSPA to require that the adjustment
application must have been filed on or before August 6, 2002. While such policy guidelines
are not binding on the Board, we will nonetheless adopt an agency’s policy where
appropriate. See Matter of Singh, 21 I&N Dec. 427, 430-31 (BIA 1996). However, in the
instant case, the policy memorandum offers no guidance on why the DHS chose to construe
section 8(1) in such a manner or on how its construction furthers the objectives and policy
of the CSPA.
82

5
Cite as 24 I&N Dec. 78 (BIA 2007) 	Interim Decision #3551
involving an enterprise, it presumably would have done so expressly, as it did
in the immediately following subsection).5
We find further support for a broader interpretation of section 8(1) in
section 3 of the CSPA, 116 Stat. at 928. In that substantive section, Congress
expressly provided that the age of a child of a lawful permanent resident
would be determined based on a special mathematical formula, but “only if the
alien has sought to acquire the status of an alien lawfully admitted for
permanent residence within one year of such availability.” See CSPA § 3, 116
Stat. at 928. If Congress had intended to require aliens under section 8(1) to
have filed their adjustment applications within a specified time, it presumably
would have expressly so stated, as it did in section 3 of the CSPA. 	Cf.
Russello v. United States, supra, at 23.
Nevertheless, we cannot conclude that section 8(1) of the CSPA is
unambiguous, even when read in conjunction with section 3, as well as within
the context of section 8. While it is certainly reasonable to interpret section
8(1) more broadly in light of the other CSPA provisions, those provisions do
not clearly resolve the textual ambiguity in section 8(1). Where Congress’s
intent is not plainly expressed, we must determine a reasonable interpretation
of the language that effectuates its intent. Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). 	To discern
congressional intent, we turn to the legislative history of the CSPA. 	See
Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 160 (BIA 2001).
B. Legislative History
Upon review of the legislative history of the CSPA, we find no indication
that Congress intended to exclude from coverage of the CSPA those
individuals whose visa petitions were approved before its effective date, but
who waited until after its effective date to file an adjustment application. The
CSPA was created to remedy the problem of minor children of United States
citizens losing their immediate relative status and being demoted to the family
first-preference category as a result of the INS’s backlog in adjudicating visa
We note that the United States Court of Appeals for the Ninth Circuit, the only court that
has addressed the effective date language of the CSPA in a published decision, has
construed section 8(1) of the CSPA to broaden the statute’s applicability beyond individuals
whose applications were awaiting agency determinations, so as to also include those
individuals whose appeals were pending in the courts. Padash v. INS, 358 F.3d 1161, 1171-
72 (9th Cir. 2004). In so holding, the court observed that to construe the phrase “final
determination” in section 8(1) to mean a final determination before the agency would render
section 8(1) duplicative of section 8(3). Id. at 1171. Although that decision is not on point
and not binding in this case (which is governed by Fifth Circuit jurisprudence), it is still
noteworthy that the Ninth Circuit ultimately concluded that section 8(1) broadened the
applicability of the CSPA beyond individuals whose applications were pending before an
agency. Id.; see also Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989) (providing that the
Board follows circuit precedent in cases arising in that circuit).
83

Cite as 24 I&N Dec. 78 (BIA 2007) 	Interim Decision #3551
petitions and applications for adjustment of status. See H.R. Rep. No. 107-45
at 1-3 (2001), reprinted in 2002 U.S.C.C.A.N. 640, 641-42, 2001 WL
406244; see also 147 Cong. Rec. H2901-01 (daily ed. June 6, 2001)
(statements of Reps. Gekas, Jackson-Lee, and Smith), 2001 WL 617985. To
prevent these individuals from “aging out” because of INS processing delays,
Congress decided that a child’s age should be determined by the date his visa
petition was filed, not as of the date the INS reviewed his application, as it
would have been under the former law. H.R. Rep. No. 107-45 at 4.
There is no indication in the legislative history that Congress intended to
exclude from coverage of the CSPA those aliens whose visa petitions were
approved before the effective date of the statute merely because they waited
until after its enactment to file an adjustment application. Indeed, it would
effectuate Congress’s intent to protect a child whose visa petition was
approved before August 6, 2002, and whose adjustment application was filed
after that date, but who would have otherwise “aged out” because of
processing delays.
We turn to the evolution of the effective date language of the CSPA for
further guidance. In the earliest draft of the bill, which only protected children
of United States citizens, the provisions of the statute were to apply to all
beneficiaries of visa petitions filed before, on, or after its date of enactment.
H.R. Rep. No. 107-45 at 6. The Department of Justice expressed its concern
that the unlimited scope of this retroactivity provision would create a huge
administrative burden on the agency by potentially requiring the reopening of
completed adjudications as far back as 1952. Id. The Department recognized,
however, that Congress “may seek to address cases of children who have aged
out in the past” and proposed a “reasonable limit to retroactivity.” Id.
When 	the 	bill 	subsequently 	passed 	the 	United 	States 	House 	of
Representatives, the sweeping 	retroactivity provision 	was replaced 	by
language applying the CSPA to “all petitions and applications pending before
the Department of Justice or the Department of State on or after such date.”
H.R. 1209, 107th Cong. (2001); see also 147 Cong. Rec. H2901-01
(daily 	ed. 	June 	6, 	2001) 	(statement 	of 	Rep. 	Sensenbrenner),
2001 	WL 617985. 	Subsequently, the United States Senate, in addition to
extending the protections of the CSPA to children of lawful permanent
residents, temporary residents, asylees, and refugees, created the effective date
language that was ultimately enacted. S. 672, 107th Cong. (2002); see also
148 Cong. Rec. S5558-02 (daily ed. June 13, 2002) (statement of Sen. Reid),
2002 WL 1300166. 	The Senate’s effective date provision essentially
subsumed the House’s language into sections 8(2) and 8(3) of the CSPA and
created the new provisions of section 8(1).
The Senate offered no explanation for why it created a new effective date
provision aimed explicitly at individuals, like the respondent, whose visa
petitions were approved before the effective date of the CSPA. 	It is
84

Cite as 24 I&N Dec. 78 (BIA 2007) 	Interim Decision #3551
reasonable to conclude, however, that by including section 8(1) in the CSPA,
the Senate intended to expand the coverage of the statute beyond those
individuals whose visa petitions and applications were pending on the date of
the CSPA to also protect those individuals whose visa petitions were approved
before the effective date, but only if their applications had not already been
finally adjudicated. 	That is, the House’s revised effective date language
plainly would have covered all individuals whose adjustment applications
were pending before the agency on or after August 6, 2002, without regard to
when their visa petitions were approved. 	H.R. 1209, 107th Cong. 	In that
regard, the new language in section 8(1) extended more protection by ensuring
that certain individuals whose visa petitions were approved before August 6,
2002, 	were 	protected, 	without 	affording 	reopening 	to 	those 	whose
applications for a visa or adjustment of status had already been subject to a
final determination.6
We conclude that section 8(1) of the CSPA, as enacted, does not require an
individual whose visa petition was approved before its effective date to have
an adjustment application pending as of the date of its enactment. 	Our
interpretation of section 8(1) is based on the language of that section, viewed
both in isolation and in context. We also find support for our interpretation
of the section in the legislative history of the CSPA that recounts its purpose,
as well as in the evolution of its effective date language.7
V. CONCLUSION
In light of the foregoing, we disagree with the Immigration Judge’s
conclusion 	that 	the 	respondent 	was 	required 	to 	have 	his 	adjustment
application pending as of August 6, 2002, to receive the benefits of the CSPA.
Consequently, because he was still a “child” pursuant to the provisions of the
CSPA, he was an immediate relative and a visa was immediately available to
him. See sections 101(b)(1)(A), 201(b)(2)(A)(i), (f)(1) of the Act. He also
otherwise 	appears 	to 	be 	statutorily 	eligible 	for 	adjustment 	of 	status.
Accordingly, the respondent’s appeal will be sustained.
Given the passage of time since the Immigration Judge rendered her
decision and the fact that she did not fully consider all the relevant factors,
6 We note that in Padash v. INS, supra, at 1171-72, the Ninth Circuit also found support
for its expansion of the CSPA’s applicability in the evolution of section 8.
7 We recognize that the issue presented in the respondent’s case does not reflect the
principal concern expressed by Congress in the legislative history of the CSPA. As we have
already discussed, Congress voiced concern for children who, under the former law, “aged
out” during the INS’s delay in processing visa petitions and applications for adjustment of
status. Nevertheless, nothing in the language or legislative history of the CSPA indicates
that Congress intended to foreclose individuals in the respondent’s circumstances from
obtaining relief under the CSPA.
85

Cite as 24 I&N Dec. 78 (BIA 2007) 	Interim Decision #3551
however, we find it appropriate to remand the record to the Immigration Judge
to determine whether the respondent is eligible for adjustment of status and
whether he merits a favorable exercise of discretion. 	If necessary, the
appropriate background and security checks should also be conducted before
the entry of a final order. 	See Background and Security Investigations in
Proceedings Before Immigration Judges and the Board of Immigration
Appeals, 70 Fed. Reg. 4743, 4752-54 (Jan. 31, 2005).
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.
86