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Regis v. Holder

United States Court of Appeals, Fourth Circuit

October 16, 2014

NOEL JOSEPH MENOR REGIS, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Argued September 16, 2014

On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED:

Alfred Castro Tecson, TECSON LAW OFFICE, Annandale, Virginia, for Petitioner.

Colin James Tucker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

BRIEF:

Stuart F. Delery, Assistant Attorney General, Civil Division, Anthony W. Norwood, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before DUNCAN, AGEE, and DIAZ, Circuit Judges. Judge Agee wrote the opinion, in which Judge Duncan and Judge Diaz joined.

OPINION

Page 879

AGEE, Circuit Judge:

Petitioner Noel Joseph Menor Regis entered the United States in 2007 on a K-2 visa as the minor child of his mother, a nonimmigrant fiancée K-1 visa holder. After his mother married the U.S. citizen who had petitioned for the family's K visas, Regis applied to adjust his status to lawful conditional permanent resident. The United States Citizenship and Immigration Services (" USCIS" ) denied Regis' application because he had turned 21 before he entered the United States and was therefore not a qualifying " minor child." See 8 U.S.C. § 1255(d). An immigration judge (" IJ" ) agreed with USCIS, and the Board of Immigration Appeals (the " Board" ) affirmed.

In his petition for review to this Court, Regis contends that a K-2 visa holder's eligibility for adjustment of status should be determined not by his age on the date of entry into the United States, but rather by his age at the time he initially sought the K-2 visa. Because we conclude that the Board's interpretation of the relevant statutory provisions is entitled to deference, we deny Regis' petition for review.

I. Background

A. The Immigration Application Process

The Immigration and Nationality Act (the " INA" or the " Act" ) defines two classes of nonimmigrant aliens that are pertinent to this appeal:

(i) . . . the fiancee or fiance of a citizen of the United States . . . who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission; [and]
(iii) . . . the minor child of an alien described in clause (i) . . . accompanying, or following to join, the alien[.]

8 U.S.C. § 1101(a)(15)(K)(i), (iii) (emphasis added).

The K visa process begins when a U.S. citizen petitions the Department of Homeland Security to designate a foreign national as a nonimmigrant fiancé or fiancée (the " fiancée" ). Id. § 1184(d)(1); 8 C.F.R. § 214.2(k)(1). If the fiancée has a minor child that is accompanying or following to join her, that child " may be accorded the same nonimmigrant classification" without a separate petition. 8 C.F.R. § 214.2(k)(3). The approved ...


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