Note: Statutory Purpose and Deferring to Agency Interpretations of Laws. The Immigration Law Paradigm: “Aged Out”—Get Deported!
K-2 visa holders are children of alien-fiancé(e)s of United States citizens, who are issued a visa to accompany their parents to the U.S. An alien parent is issued a K-1 visa to travel to the U.S. to marry his or her U.S. citizen fiancé(e). Pursuant to one’s marriage to a U.S. citizen, the alien-parent and one’s minor children would become eligible to adjust their status to that of legal permanent residents—i.e., to obtain green cards. Until June 23, 2011, the Board of Immigration Appeals (“BIA”)—the agency appellate court that reviews judgments of immigration courts—interpreted the meaning of a “child” under 8 U.S.C. section 1101(a)(15)(K)(iii) as an unmarried person under the age of 21 at the time of adjudication of his or her petition to adjust one’s status. This meant that if such a child turned 21 before the United States Citizenship and Immigration Services (“USCIS”) could review his or her case, one was no longer eligible to adjust status (i.e., “aged out”), and therefore, was subject to deportation.
This interpretation subverted the whole purpose behind the K-visa statute—family unification—and produced controversial, inconsistent, and absurd results. Thus, when a person was admitted to the U.S. on a K-2 visa, he or she could immediately become ineligible for adjustment because of turning 21 just a few days following one’s admission. Likewise, two K-2 visa holders, who were the exact same age upon admission to the U.S., could experience opposite outcomes based solely on USCIS’ efficiency in adjudicating their applications.
The doctrine of “Chevron deference” requires reviewing federal courts to defer to agency interpretations of ambiguous provisions of the statutes they administer. The government has often used Chevron as a defense of its interpretation of the K-visa statute. This note argues that reviewing courts should consider statutory purpose as part of the Chevron analysis. In doing so, the note conducts a case study into the problem of “aging out” of K-2 visa beneficiaries. It argues that, despite the recent favorable resolution of the K-2 “age out” problem by the BIA, this issue should have been resolved by an Article III court, and that the government would have failed the Chevron test. Additionally, the note identifies another group of people currently struggling with a similar issue. Finally, the note offers two solutions to produce more logical and coherent results: (1) to always use statutory purpose as part of the Chevron analysis and (2) to employ canons of statutory construction should statutory purpose prove difficult to ascertain.
Ivan A. Pavlenko: J.D. Candidate, Syracuse University College of Law, 2013; B.A. International Relations, State University of New York at New Paltz, 2009.