Margarito Rodriguez Tovar v. JEFFERSON B. SESSIONS III, Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARITO RODRIGUEZ TOVAR,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 14-73376
Agency No.
A087-216-564
OPINION
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.

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RODRIGUEZ TOVAR V. SESSIONS 2
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.

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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 statute,
Rodriguez Tovar’s age was only 19 on the date of his father’s
naturalization. Accordingly, the panel concluded that
Rodriguez Tovar’s visa application must be treated as one for
an immediate relative of a U.S. citizen, for which visas are
always immediately available.
COUNSEL
Ronald Tocchini (argued) and Lilia Guadalupe Alcaraz
(argued), Alcaraz Tocchini LLP, Tucson, Arizona, for
Petitioner.
Jessica Dawgert (argued), Senior Litigation Counsel;
Timothy G. Hayes, Trial Attorney; Cindy S. Ferrier, Assistant
Director; Office of Immigration Litigation, United States
Department of Justice, Washington, D.C.; for Respondent.

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RODRIGUEZ TOVAR V. SESSIONS 4
OPINION
REINHARDT, Circuit Judge:
This case illustrates the dangers of reading statutory
provisions in isolation. The question before us is whether
Margarito Rodriguez Tovar, a child of a lawful permanent
resident (LPR) who was deemed by statute to be a minor
child until the very day his father naturalized, still qualified
as a minor on that day, or whether instead his father’s
naturalization transformed him on the spot from a minor into
an adult. The government and the BIA have parsed individual
provisions of the labyrinthine Immigration and Nationality
Act to arrive at the latter position, with the effect that a
parent’s naturalization can cause a child to be deported
forthwith and to wait for decades in a foreign land for an
immigrant visa—a visa that he would have had in a short
period of time if his parent had not become a citizen.
We reject this reading because, considering the relevant
statutes as a whole, it is clearly not the interpretation that
Congress intended. Rather, we conclude that anyone who
under the relevant statutes is considered a minor child of an
LPR on the date of the parent’s naturalization (and who is the
beneficiary of a valid petition for an immigrant visa based on
that status) can obtain a visa as the minor child of a citizen
following his parent’s naturalization.
BACKGROUND
A. Legal Overview
This is a petition for review of a removal order denying
Rodriguez Tovar adjustment of status to lawful permanent

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RODRIGUEZ TOVAR V. SESSIONS 5
resident. Adjustment of status requires, among other things,
that the non-citizen have an immediately available immigrant
visa. 8 U.S.C. § 1255(i)(2)(B). One way to qualify for an
immigrant visa is through certain familial relationships to
current LPRs or citizens. The categories of qualifying
relationships include (as relevant to this case) (1) the minor
child, spouse, or parent of a citizen (“immediate relative”),
8 U.S.C. § 1151(b)(2)(A)(i); (2) the adult child of a citizen
(“F1”) , 8 U.S.C. § 1153(a)(1); (3) the minor child or spouse
of an LPR (“F2A”), 8 U.S.C. § 1153(a)(2)(A); and (4) the
adult child of an LPR (“F2B”), 8 U.S.C. § 1153(a)(2)(B):
Immediate
Relative
F1 F2A F2B
Minor child,
spouse, or
parent of a
citizen
Adult child
of a citizen
Minor child
or spouse of
an LPR
Adult child
of an LPR
§ 1151(b)(2)(A)(i) § 1153(a)(1) § 1153(a)(2)(A) § 1153(a)(2)(B)
Visas are always immediately available to people in the
first category—“immediate relatives” of U.S. citizens—but
are limited in the other categories. Within the limited
categories, visas become available on a “first-come, first-
served” basis. Scialabba v. Cuellar de Osorio, 134 S. Ct.
2191, 2198 (2014) (plurality). To get a place in line, a non-
citizen’s qualifying relative must file a visa petition, which
receives a priority date based on when it was filed. Id. at
2197–98. The Department of State’s Bureau of Consular
Affairs publishes a monthly Visa Bulletin that lists “current”

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RODRIGUEZ TOVAR V. SESSIONS 6
priority dates based on category and country of origin;1 a visa
is immediately available to a non-citizen if his priority date
is on or before the corresponding date in the bulletin. See 8
C.F.R. §§ 245.1(g)(1), 1245.1(g)(1).
In 2002, Congress passed the Child Status Protection Act,
Pub. L. No. 107-208, 116 Stat. 927 (“CSPA”), which
included various protections to let people stay longer in the
more advantageous minor-child categories (immediate
relative and F2A). Under one provision added by the CSPA,
an F2A beneficiary’s statutory age for visa purposes is
calculated by subtracting, from his actual age, the number of
days during which his F2A petition was pending. 8 U.S.C.
§ 1153(h)(1). Under another provision, a citizen’s child’s
eligibility for immediate relative status is determined by “the
age of the alien on the date on which the petition is filed.”
8 U.S.C. § 1151(f)(1). Finally, under a third provision, if an
LPR naturalizes while he has a pending F2A petition for his
minor child, the child’s eligibility for immediate relative
status is determined by “the age of the alien on the date of the
parent’s naturalization.” 8 U.S.C. § 1151(f)(2).
Sometimes the appropriate category for a visa petition
changes while the beneficiary is waiting for a visa. For
instance, a beneficiary can “age out” (turn 21) of the F2A
category, or the sponsoring parent can naturalize, making the
beneficiary no longer eligible for the LPR categories (F2A
and F2B). A variety of automatic conversion provisions
1 By “country of origin” we mean the country to which a non-citizen
is “chargeable,” which is typically the country of birth, subject to various
exceptions that do not affect this case. See 8 U.S.C. § 1152(b), (c);
22 C.F.R. § 42.12. Both parties agree that Rodriguez Tovar is chargeable
to Mexico.

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RODRIGUEZ TOVAR V. SESSIONS 7
govern these circumstances. Conversions based on aging out
of the F2A category occur on the day a visa number becomes
available in the F2A category, if the beneficiary’s statutory
age on that day, calculated pursuant to 8 U.S.C. § 1153(h)(1),
is over 21. 8 U.S.C. § 1153(h)(3). Conversions from the LPR
categories to the citizen categories occur “effective upon” the
date of the parent’s naturalization. 8 C.F.R. § 204.2(i)(3); see
also 8 U.S.C. § 1154(k)(1).
The CSPA also includes a provision designed to protect
adult children of LPRs. While the F1 line (for adult children
of citizens) is usually shorter than the F2B line (for adult
children of LPRs), sometimes the F1 line is longer. Matter
of Zamora-Molina, 25 I. & N. Dec. 606, 614 (B.I.A. 2011).
When that is true, conversion from F2B to F1 based on a
parent’s naturalization would mean that the adult child has to
wait longer for a visa than he would have if the parent had not
naturalized. Id. Expressing the view that immigrants should
not be “penalized for becoming citizens,” 148 Cong. Rec.
13744 (2002) (statement of Rep. Sensenbrenner); id. at 13745
(statement of Rep. Gekas), Congress adopted a provision
allowing adult children of newly-naturalized citizens to opt-
out of the automatic conversion and remain in the F2B
category. CSPA, sec. 6, § 204(k)(2) (codified at 8 U.S.C.
§ 1154(k)(2)).
B. Factual and Procedural History
Rodriguez Tovar was born in Mexico in 1983. He entered
the United States in 2000, when he was seventeen years old.
The next year his father—who was then an LPR—filed a
petition for him to obtain an immigrant visa under 8 U.S.C.
§ 1153(a)(2)(A)—the F2A category for minor children of

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RODRIGUEZ TOVAR V. SESSIONS 8
LPRs. The petition received a priority date of April 30, 2001,
but was not approved until over four years later, in mid-2005.
On July 3, 2006, Rodriguez Tovar’s father became a
naturalized U.S. citizen. At that time Rodriguez Tovar was 23
in biological age, but after subtracting the four years during
which his visa petition had been pending he was only 19
under the age-calculation formula in 8 U.S.C. § 1153(h)(1).
Had his father not become a citizen, a visa would have been
available to him in the F2A category on June 1, 2007—one
year after his father’s naturalization—when he was 20 under
§ 1153(h)(1). Alternatively, if Rodriguez Tovar were
considered, pursuant to 8 U.S.C. § 1151(f)(2), to be a minor
at the time of his father’s naturalization, a visa would have
been immediately available for him as the minor child of a
citizen.
In 2008, Rodriguez Tovar filed an application with
USCIS for adjustment of status to lawful permanent
residence. The application was denied and the government
initiated removal proceedings. During the removal
proceedings, Rodriguez Tovar renewed his application for
adjustment of status.
The IJ and the BIA rejected Rodriguez Tovar’s
application, relying on the BIA’s published opinion in Matter
of Zamora-Molina, 25 I. & N. Dec. 606 (B.I.A. 2011). They
held that, because Rodriguez Tovar was over 21 years old in
biological age on the date of his father’s naturalization, his
F2A petition immediately converted to an F1 petition and not
to an immediate relative petition, even though he was
classified by statute as under 21 years old for purposes of his
F2A petition, pursuant to the age calculation formula set forth
in § 1153(h)(1). They also held that there is no opt-out

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RODRIGUEZ TOVAR V. SESSIONS 9
provision allowing F2A beneficiaries to remain in the F2A
category after a parent’s naturalization. At best, according to
the IJ and the BIA, Rodriguez Tovar could choose to transfer
from the F1 category to the F2B category. However, there
was not a visa immediately available for Rodriguez Tovar in
either the F1 or F2B categories. So, according to the IJ and
the BIA, either way he would not be eligible for adjustment
of status, but would be subject to removal forthwith and a
very lengthy period of waiting for a visa in a foreign land.
Everyone agrees 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
on June 1, 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. However, the
government’s position is that because his father decided to
become a citizen when he did, Rodriguez Tovar was not
eligible for either visa and may now be deported forthwith
and must wait in the F1 line abroad.
The practical implications of the government’s position
are hard to overstate. We do not know exactly when
Rodriguez Tovar will be eligible for an immigrant visa in the
F1 category, because the government does not estimate when
visas will become available for certain priority dates; rather,
each year it determines what priority dates are now eligible
for visas. However, as of January 1, 2018—more than ten
years after Rodriguez Tovar would have been eligible for a
visa had his father not naturalized—he still has not reached
the front of the F1 line. In fact, during those ten-and-a-half
years the availability date for people coming from Mexico
through the F1 line has advanced just over five years (from

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RODRIGUEZ TOVAR V. SESSIONS 10
January 1, 1991 to May 1, 1996).2 Rodriguez Tovar’s priority
date is just under five years past the current availability date,
so if the current pace continues he will not be eligible for an
F1 visa until December 2027, more than twenty years after he
would have been eligible for an F2A visa but for his father’s
naturalization.
In fact, there is reason to believe that it may take even
longer. The government represented at oral argument that
“hundreds of thousands” of visa petitions were filed right
around the same time as Rodriguez Tovar’s petition due to a
statutory sunset date for certain adjustment of status
provisions. As the rate at which the availability date advances
depends on the number of petitions filed in each of the
intervening years, the wave of applications filed prior to April
30, 2001, will likely cause a significant further backlog,
contributing to even longer delays in this already
interminable process.
In sum, the government’s position is that because
Rodriguez Tovar’s father became a citizen, Rodriguez Tovar
must now wait decades longer for a visa than if his father had
remained an LPR. In the meantime the government seeks to
deport him to Mexico, with any future return subject to
unforeseeable modifications to the current immigration laws.
As we explain in the remainder of this opinion, the correct
2 Compare U.S. Dep’t of State, Visa Bulletin for June 2007 (May 11,
2007), available at https://travel.state.gov/content/travel/en/legal/visa-
law0/visa-bulletin/2007/visa-bulletin-for-june-2007.html, with U.S. Dep’t
of State, Visa Bulletin for January 2018 (Dec. 11, 2017), available
at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-
bulletin/2018/visa-bulletin-for-january-2018.html.

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RODRIGUEZ TOVAR V. SESSIONS 11
interpretation of the statute does not lead to this absurd result,
but rather to his entitlement to an immediately available visa.
DISCUSSION
In order to determine if Rodriguez Tovar has an
immediately available visa—rather than being deported and
required to wait twenty years, or possibly even more, before
being eligible for a visa, simply because his father became a
citizen—we must determine under which category his
petition actually falls. The BIA found, and the government
asserts, that Rodriguez Tovar falls under the F1 category, a
category in which there is no currently available visa. We
disagree, and instead conclude that Rodriguez Tovar’s visa
application must be treated as one for an immediate relative
of a U.S. citizen, for which visas are always immediately
available.3 We arrive at this conclusion by employing
“‘traditional tools of statutory construction’” which
demonstrate beyond any question “that Congress had a clear
intent on the question at issue.” The Wilderness Soc’y v. U.S.
Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir. 2003)
(quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
3 The government suggests that Rodriguez Tovar waived any claim
to immediate relative status by not raising it before us, even though the
BIA ruled on the issue. However, immediate relative status is not a
separate claim that can be waived. Rodriguez Tovar’s sole claim is that he
is eligible for adjustment of status. Resolving that claim requires us to
determine into which category his visa application falls, and in so doing
“[w]e are not bound by a party’s concession as to the meaning of the law.”
United States v. Ogles, 440 F.3d 1095, 1099 (9th Cir. 2006) (en banc).
Moreover, even if immediate relative status were a separate, waivable
claim, we could reach it in this case because the government briefed the
issue. See In re Riverside-Linden Inv. Co., 945 F.2d 320, 324 (9th Cir.
1991).

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RODRIGUEZ TOVAR V. SESSIONS 12
467 U.S. 837, 843 n.9 (1984)); see also Sung Kil Jang v.
Lynch, 812 F.3d 1187, 1190 (9th Cir. 2015). Moreover, the
irrationality of the result sought by the government shows
conclusively that there is only one possible answer to the
question before us. Accordingly, we do not defer to the BIA’s
opinion in Matter of Zamora-Molina, 25 I. & N. Dec. 606.4
A. Plain Language
Rodriguez Tovar was the beneficiary of a valid F2A
petition (as the minor child of an LPR) on the day his father
naturalized. Therefore, his petition’s conversion to another
category is governed by 8 U.S.C. § 1151(f)(2). Whether his
visa petition should be treated as an immediate relative
petition (minor child of a citizen) or an F1 petition (adult
child of a citizen) depends on the meaning of the phrase “the
age of the alien on the date of the parent’s naturalization.” 8
U.S.C. § 1151(f)(2). If his “age” for purposes of that
provision is less than 21, then he is the minor child of a U.S.
citizen and entitled to an immediate immigrant visa. If his
“age” for purposes of that provision is 21 or over, then he is
an adult child and must leave the country and wait in the
decades-long F1 line. According to the BIA and the
government, “age” means biological age, which would make
Rodriguez Tovar twenty-three years old on the relevant date.
However, reading the statute as a whole, we readily conclude
that Congress intended “age of the alien on the date of the
4 Even had we found the statute ambiguous we would not have
deferred to the BIA’s interpretation because the BIA denied the existence
of any ambiguity in the statute. See Gila Rivera Indian Cmty. v. United
States, 729 F.3d 1139, 1149 & n.11 (9th Cir. 2013); Negusie v. Holder,
555 U.S. 511, 521 (2009); see also Daniel J. Hemel & Aaron L. Nielson,
Chevron Step One-and-a-Half, 84 U. Chi. L. Rev. 757 (2017).

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RODRIGUEZ TOVAR V. SESSIONS 13
parent’s naturalization” to refer instead to statutory age—that
is, age calculated according to 8 U.S.C. § 1153(h)(1). Under
that statute, Rodriguez Tovar’s age was only 19 on the date
of his father’s naturalization for purposes of § 1151(f)(2).
We start with the fact that the text of § 1151(f)(2),
standing alone, does not say which age controls,
notwithstanding the government’s attempt to suggest that
“Congress mandated that ‘the [chronological] age of the alien
on the date of the parent’s naturalization’ matters.” (alteration
in brief). The word “chronological” appears nowhere in the
statute.
When interpreting the language of a statute we do not
look at individual subsections in isolation. Instead, “when
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, 135 S. Ct.
2480, 2489 (2015) (internal citations and quotation marks
omitted). The provision in question, 8 U.S.C. § 1151(f)(2),
deals specifically with conversions from the F2A category to
immediate relative status—it applies to “petitions under
section 1154 of this title initially filed for an alien child’s
classification as a family-sponsored immigrant under section
1153(a)(2)(A) of this title” that are “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).”
8 U.S.C. § 1151(f)(2). Therefore, the statute’s direction to
identify “the age of the alien on the date of the parent’s
naturalization” must be read in light of the fact that every
person to whom § 1151(f)(2) applies will, on that date, be the
beneficiary of an F2A petition previously filed by a parent or
spouse.

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RODRIGUEZ TOVAR V. SESSIONS 14
An F2A beneficiary’s age is calculated pursuant to the
formula in 8 U.S.C. § 1153(h)(1): “For purposes of
subsection[] (a)(2)(A)” whether someone is a minor is
determined by subtracting from his biological age “the
number of days in the period during which the applicable
petition described in paragraph (2) was pending.” Nothing in
the text of 8 U.S.C. § 1153(h)(1) precludes this formula from
applying to F2A beneficiaries who are potentially eligible for
visas due to a parent’s naturalization to the same extent that
it applies to F2A beneficiaries who are potentially eligible for
visas due to getting to the front of the F2A line.
Therefore, for any person subject to 8 U.S.C.
§ 1151(f)(2), age on the date of his parent’s naturalization for
visa purposes is biological age on that date reduced by the
number of days during which his F2A petition was pending.
Accordingly, anyone who qualified as a minor child for
purposes of an F2A visa on the date of his parent’s
naturalization also qualifies as a minor child for purposes of
obtaining an immediate relative visa based on that
naturalization.
The government asserts that the age-calculation formula
in 8 U.S.C. § 1153(h)(1) cannot apply to 8 U.S.C.
§ 1151(f)(2) because neither provision directly references the
other. However, the government ignores the role of 8 U.S.C.
§ 1153(a)(2)(A) in tying the two provisions together.
Section 1153(h)(1)’s age adjustment formula applies to
petitions filed under § 1153(a)(2)(A). Section 1151(f)(2), in
turn, deals exclusively with the conversion of petitions filed
under § 1153(a)(2)(A). The cross-references found in
§ 1153(h)(1) define the class of people who may take
advantage of the age-reduction provision, but they do not
limit the circumstances in which the reduced age is relevant.

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RODRIGUEZ TOVAR V. SESSIONS 15
An explicit cross-reference is unnecessary when the three
provisions are so closely related and form a cohesive whole.
An F2A beneficiary’s statutory age, and not his biological
age, thus determines to which category his petition is
converted upon his parent’s naturalization.
B. Other Provisions
Our conclusion that this is the correct interpretation of
“age” in 8 U.S.C. § 1151(f)(2) is buttressed by other statutory
and regulatory provisions. First, the history of the regulations
and statutes governing automatic conversion of visa petitions
upon a parent’s naturalization demonstrates that at the time
the CSPA was passed, both the Department of Justice and
Congress understood that petitions for minor children of
LPRs would convert to petitions for minor children of
citizens while petitions for adult children of LPRs would
convert to petitions for adult children of citizens. Second, the
CSPA included an opt-out provision for F2B to F1
conversions but no opt-out provision for conversions away
from F2A—a decision that makes sense only if F2A petitions
always convert to immediate relative petitions upon the
parent’s naturalization.
1. Automatic Conversion Provisions
The regulation governing automatic conversion of visa
petitions upon the sponsoring parent’s naturalization was first
adopted in 1965. At that time, there was no distinction
between visa petitions for minor children of LPRs and adult
children of LPRs—both fell into a single F2 category for “the
spouses, unmarried sons or unmarried daughters” of LPRs.
Act of Oct. 3, 1965, Pub. L. No. 89-236 sec. 3, § 203(a)(2),
79 Stat. 911, 913 (codified at 8 U.S.C. § 1153(a)(2) (1970)).

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RODRIGUEZ TOVAR V. SESSIONS 16
To implement this categorization and explain what happened
when the parent of an F2 beneficiary naturalized, the
Department of Justice adopted a regulation that dictated how
F2 petitions would be divided into immediate relative and F1
petitions:
Effective upon the date of naturalization of a
petitioner who had been lawfully admitted for
permanent residence, a currently valid petition
according preference status under [8 U.S.C.
§ 1153(a)(2)] to the petitioner’s spouse,
unmarried son, or unmarried daughter, shall
be regarded as approved to accord status as an
immediate relative under [8 U.S.C. § 1151(b)]
to the spouse, and unmarried son or unmarried
daughter who is under 21 years of age, and to
accord preference status under [8 U.S.C.
§ 1153(a)(1)] to the unmarried son or
unmarried daughter who is 21 years of age or
older.
Implementation of Act of Oct. 3, 1965, 30 Fed. Reg. 14772,
14775 (Nov. 30, 1965) (codified at 8 C.F.R. § 204.5(c)
(1966)).
In 1990, Congress divided the F2 category into its current
structure: F2A (spouses and minor children of LPRs) and
F2B (adult children of LPRs). Immigration Act of 1990, Pub.
L. No. 101-649, sec. 111, § 203(a)(2), 104 Stat. 4978, 4986
(codified at 8 U.S.C. § 1153(a)(2)). In order to implement that
statute, the Department of Justice amended the regulation to
read:

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RODRIGUEZ TOVAR V. SESSIONS 17
Effective upon the date of naturalization of a
petitioner who had been lawfully admitted for
permanent residence, a currently valid petition
according preference status under [8 U.S.C.
§ 1153(a)(2)] to the petitioner’s spouse and
unmarried children under twenty-one years of
age shall be regarded as having been approved
for immediate relative status under [8 U.S.C.
§ 1101(b)]. Similarly, a currently valid
petition according preference status under
[8 U.S.C. § 1153(a)(2)] for the unmarried son
or daughter over twenty-one years of age shall
be regarded as having been approved under
[8 U.S.C. § 1153(a)(1)].
Petition to Classify Alien as Immediate Relative of a United
States Citizen or as a Preference Immigrant, 57 Fed. Reg.
41053, 41063 (Sept. 9, 1992) (codified as amended at
8 C.F.R. § 204.2(i)(3)).
The principal change effected by this amendment was to
reorganize the regulation to match the division of the F2
category into the F2A and F2B categories. Whereas the
original version of the regulation recognized a single category
of petitions (F2) to be divided into two categories post-
naturalization (immediate relative for spouses and minor
children and F1 for adult children), the amended version
recognized that the categories were already divided and now
required only a one-to-one conversion: F2A petitions would
be converted to immediate relative petitions, and F2B
petitions would be converted to F1 petitions.

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RODRIGUEZ TOVAR V. SESSIONS 18
Parent is
an LPR
(pre-1990)
Parent is an
LPR
(post-1990)
Parent is a
Citizen
Minor
Child F2
F2A Immediate
Relative
Adult
Child
F2B F1
While the amended regulation, like the original
regulation, cites 8 U.S.C. § 1153(a)(2) generally without
specifically citing paragraphs (A) or (B), the first sentence of
the amended regulation implicitly refers to § 1153(a)(2)(A)
and the second sentence implicitly refers to § 1153(a)(2)(B).
Congress shared this understanding of the amended
regulation when it adopted the CSPA. One provision of the
CSPA codified the second half of the regulation (conversions
from F2B to F1) in order to create an exception to it (which
we discuss further in the next section). In so doing, Congress
explicitly cited § 1153(a)(2)(B) where the regulation had
done so only implicitly:
Except as provided in paragraph (2), in the
case of a petition under this section initially
filed for an alien unmarried son or daughter’s
classification as a family-sponsored
immigrant under [8 U.S.C. § 1153(a)(2)(B)],
based on a parent of the son or daughter being
an alien lawfully admitted for permanent
residence, if such parent subsequently
becomes a naturalized citizen of the United
States, such petition shall be converted to a
petition to classify the unmarried son or

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RODRIGUEZ TOVAR V. SESSIONS 19
daughter as a family-sponsored immigrant
under [8 U.S.C. § 1153(a)(1)].
CSPA, sec. 6, § 204(k)(1), 116 Stat. at 929 (codified at
8 U.S.C. § 1154(k)(1)).
Together, the amended regulation and the statutory
provision added by the CSPA demonstrate a clear
understanding of the relationship between the various
categories: F2A petitions convert to immediate relative
petitions, and F2B petitions convert to F1 petitions. Neither
the regulation nor the statute authorizes the result the
government advocates here: conversion of an F2A petition
into an F1 petition.
2. Opt-Out Provision
The CSPA also included a provision allowing adult
children to opt-out of the effects of an automatic conversion
from F2B to F1. CSPA, sec. 6, § 204(k)(2) (codified at
8 U.S.C. § 1154(k)(2)). Congress’s reason for adopting this
provision was to prevent LPRs from being “penalized for
becoming citizens” by having to wait longer for their adult
children to obtain immigrant visas. 148 Cong. Rec. 13744
(2002) (statement of Rep. Sensenbrenner); id. at 13745
(statement of Rep. Gekas).
A similar opt-out provision for F2A to F1 conversions
would avoid the absurd result suggested by the government
in this case, in which Rodriguez Tovar can now be deported
and must wait decades longer for a visa just because his
father naturalized. Congress, however, included no such
provision in the CSPA. In order to justify their interpretation
of the statute, the government and the BIA are forced to

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RODRIGUEZ TOVAR V. SESSIONS 20
characterize the failure to include such a provision as a
Congressional oversight. Matter of Zamora-Molina, 25 I. &
N. Dec. at 614. On our interpretation, however, Congress did
not overlook anything because it is always better to be the
minor child of a citizen (for whom there are no limits on the
number of visas available) than to be the minor child of an
LPR. If a minor child stays a minor child despite the parent’s
naturalization, then an opt-out provision parallel to 8 U.S.C.
§ 1154(k)(2) for F2A beneficiaries would have no purpose.
Given a choice, we will presume that Congress acts
competently and understands the implications of the
legislation it passes. Its decision not to adopt an opt-out
provision therefore supports our interpretation of the statute,
on which F2A petitions always convert to immediate relative
petitions.
The government takes the position that Rodriguez Tovar
could exercise the opt-out provision to transfer to the F2B
category rather than the F1 category—he just may not remain
in the F2A category. Matter of Zamora-Molina, 25 I. & N.
Dec. at 613–14. This interpretation of the opt-out provision
does not reduce the absurdity of the government’s position in
this case, because it would likely take even longer for
Rodriguez Tovar to be eligible for an F2B visa than for an F1
visa. In addition, the government’s interpretation is difficult
to square with the text of the statute, which says that if a
beneficiary opts out of automatic conversion, “any
determination with respect to the son or daughter’s eligibility
for admission as a family-sponsored immigrant shall be made
as if such naturalization had not taken place.” 8 U.S.C.
§ 1154(k)(2). Had Rodriguez Tovar’s father not naturalized,
Rodriguez Tovar would be eligible for a visa in the F2A
category, not the F2B category. An F2B visa is therefore not
the but-for result that the statute contemplates. This problem

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RODRIGUEZ TOVAR V. SESSIONS 21
with the government’s interpretation further strengthens our
conviction that Congress believed that F2A beneficiaries
would never need to opt out, because they would always
convert to the most advantageous category—immediate
relatives of U.S. citizens.
CONCLUSION
Our interpretation of 8 U.S.C. § 1151(f)(2) makes sense
within the context of the whole CSPA. Anyone who is treated
as a minor child of a lawful permanent resident for purposes
of an F2A petition is treated as a minor child of a citizen
when the parent naturalizes, and no one is penalized just
because his parent became a citizen. The government’s
interpretation leads to the absurd result that Rodriguez
Tovar’s father’s naturalization causes the deportation of his
son, who is then compelled to wait for decades in a foreign
land before he can return—despite the fact that had his father
simply remained an LPR, Rodriguez Tovar would have been
eligible for a visa within a year. That can hardly have been
Congress’s intent.
“[I]nterpretations of a statute which would produce
absurd results are to be avoided if alternative interpretations
consistent with the legislative purpose are available.” Griffin
v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982).
Accordingly, we conclude “that Congress had a clear intent
on the question at issue,” The Wilderness Soc’y, 353 F.3d at
1059: children of LPRs may take advantage of the age-
calculation formula in 8 U.S.C. § 1153(h)(1) for purposes of
converting to immediate relative status under § 1151(f)(2)
when their parents naturalize.

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RODRIGUEZ TOVAR V. SESSIONS 22
In other words, “age” in 8 U.S.C. § 1151(f)(2) refers
unambiguously to age as calculated under 8 U.S.C.
§ 1153(h)(1). We reject the BIA’s contrary holding in Matter
of Zamora-Molina, 25 I. & N. Dec. 606, as well as the district
court’s parallel reasoning in Alcaraz v. Tillerson, No. 2:17-
cv-457-ODW (C.D. Cal. July 26, 2017). The petition for
review is granted and the case is remanded to the BIA with
instructions to find that Rodriguez Tovar has an immediately
available visa as the immediate relative of a U.S. citizen and
to conduct further proceedings regarding the other
requirements for adjustment of status.
GRANTED and REMANDED.

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