                                      PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 14-4831
                   _____________

                    SI MIN CEN,
                             Petitioner

                          v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                Respondent
              _____________

       On Petition for Review of an Order of the
            Board of Immigration Appeals
               (BIA No. A200-377-255)
    Immigration Judge: Honorable Frederic G. Leeds
                    _____________

               Argued: October 5, 2015

Before: SHWARTZ, KRAUSE, and GREENBERG, Circuit
                    Judges

             (Opinion filed: June 6, 2016)
                   _____________
Scott E. Bratton, Esquire (Argued)
Margaret Wong & Associates
3150 Chester Avenue
Cleveland, OH 44114

Counsel for Petitioner

Jeffrey R. Meyer, Esquire
Robert M. Stalzer, Esquire (Argued)
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

Counsel for Respondent

                         _____________

                OPINION OF THE COURT
                     _____________

KRAUSE, Circuit Judge.

       The Immigration and Nationality Act (INA) allows a
child under the age of twenty-one whose alien parent has
married a U.S. citizen abroad to obtain a temporary “K-4”
visa to accompany her parent to the United States and, based
on the parent’s marriage, to apply to adjust her status to that
of a lawful permanent resident. On a petition for review of a
decision of the Board of Immigration Appeals (BIA), we now
consider the validity of a regulation that makes it impossible
for a child who entered on such a visa to remain with her




                               2
family and adjust her status from within the United States if
she was over the age of eighteen at the time of her parent’s
marriage. Because the regulation departs from the plain
language of the INA, contravenes congressional intent, and
exceeds the permissible scope of the Attorney General’s
regulatory authority, we conclude it is invalid. We therefore
will grant the petition for review and will reverse and remand
to the BIA for further proceedings.

 I.    Background

        As a general matter, aliens abroad who have relatives
in the United States may be eligible to obtain lawful
permanent residence, but because it can take months or even
years for the pertinent paperwork to be processed, these aliens
may spend significant time separated from their loved ones
while they wait in their home countries for the appropriate
visa approval. See, e.g., 8 U.S.C. §§ 1151-1154; 146 Cong.
Rec. 27,160 (2000) (describing the lengthy delays faced by
those seeking relative-based visas). Congress sought to
ameliorate this problem for the immediate family members of
U.S. citizens through the creation, initially, of K-1 visas for
alien fiancé(e)s of U.S. citizens and then, more recently, of K-
3 visas for alien spouses of U.S. citizens. In addition, and of
particular significance for this case, Congress also provided
for K-2 and K-4 visas for, respectively, the minor children of
fiancé(e)s and spouses, up to age twenty-one. 1


       1
         The statutes relevant to K-2 and K-4 visa holders
refer to them as “minor child[ren],” 8 U.S.C.
§§ 1101(a)(15)(K)(iii), 1255(d), a term the BIA has long held,
and the parties do not dispute, has the same meaning as
“child” under 8 U.S.C. § 1101(b)(1). See, e.g., In re Le, 25 I.




                               3
       Once reunited with their families stateside, aliens with
one of these K-visas may apply for and, subject to the
discretion of the Attorney General, attain lawful permanent
residence without leaving the United States through a process
called “adjustment of status.” Petitioner in this case properly
obtained a K-4 visa as the nineteen-year-old daughter of a K-
3 alien spouse and accompanied her mother to the United
States to live with her stepfather, a U.S. citizen, while
Petitioner and her mother applied for adjustment of status.
Petitioner’s applications have been denied, however, on
account of a regulation that effectively bars any child with a
K-4 visa who was between the ages of eighteen and twenty-
one at the time of her parent’s marriage from obtaining lawful
permanent residence without first returning overseas. Our
analysis of Petitioner’s challenges to the validity of this


& N. Dec. 541, 547-50 (BIA 2011); see also 8 C.F.R.
§ 214.2(k)(3). “Child” is defined as “an unmarried person
under twenty-one” who fits within one of the subcategories
under § 1101(b)(1), some of which impose additional age
requirements. For purposes of this case, Petitioner was born
to her biological mother (by all representations, in wedlock)
and thus is not subject to additional age restrictions.
§ 1101(b)(1)(A). Accordingly, our regular reference in this
opinion to children under the age of twenty-one should not be
construed to implicitly remove the additional age restrictions
on accessing a K-visa that would accompany certain
categories of children. E.g., § 1101(b)(1)(E)(i) (generally
restricting adopted children from the definition of “child”
under the INA if they were over the age of sixteen at the time
of the adoption). As discussed in more detail below, infra
notes 11 & 15, we accept the BIA’s interpretation of the term
“minor child.”




                              4
regulation requires an understanding of the statutory and
regulatory regime that governs K-visa holders, as well as the
factual and procedural history of Petitioner’s case. We
address each below.

   A. Statutory and Regulatory Context

       The story of K-visas begins in 1970, when Congress
created K-1 and K-2 visas to allow the fiancé(e)s of U.S.
citizens and such fiancé(e)s’ unmarried children under the age
of twenty-one, respectively, to obtain temporary,
nonimmigrant status. Assuming the fiancé(e) and the U.S.
citizen married within three months, that status would allow
the fiancé(e) and children to await processing of their
applications for lawful permanent residence from within the
United States. Act of Apr. 7, 1970, Pub. L. No. 91-225,
§ 1(b), 84 Stat. 116, 116. In their original form, K-1 and K-2
visas triggered automatic lawful permanent residence for the
visa holders once the marriage was complete. See id. at
§ 3(b). This feature had the perverse effect, however, of
encouraging fraudulent marriages whereby some aliens
obtained K-1 visas and married U.S. citizens with the
intention to dissolve the marriage once they obtained lawful
permanent residence. In re Sesay, 25 I. & N. Dec. 431, 435-
38 (BIA 2011) (describing this marriage fraud problem).

       In 1986, Congress sought to curb such marriage fraud
by passing the Immigration Marriage Fraud Amendments
(IMFA), Pub. L. No. 99-639, 100 Stat. 3537 (1986), which
replaced K-1 and K-2 aliens’ streamlined method of obtaining
lawful permanent residence with the more structured
“adjustment of status” process. IMFA § 3(c); see also Carpio
v. Holder, 592 F.3d 1091, 1094 (10th Cir. 2010) (describing
the post-IMFA requirement that K-visa holders file an




                              5
application for adjustment of status in order to obtain lawful
permanent residence). Since the passage of the IMFA, K-1
and K-2 aliens are required to apply to adjust their status like
other aliens through the strictures of 8 U.S.C. § 1255(a),
which gives the Attorney General the discretion to provide
lawful permanent residence to certain aliens without requiring
them to first return to their countries of origin. See IMFA
§ 3(c). K-visa holders’ adjustment of status under § 1255(a)
is constrained by 8 U.S.C. § 1186a, which renders an alien’s
permanent status conditional for two years, after which time
the Government conducts an interview with the couple to
reaffirm the legitimacy of the marital union; if the
Government is satisfied, the status for both the alien spouse
and her children becomes truly permanent. IMFA § 2.

        To apply for status adjustment under § 1255(a), an
alien must take three steps: (1) file an application to adjust
status; (2) demonstrate eligibility under existing law to adjust
status; and (3) show that a permanent visa is immediately
available. 2 8 U.S.C. § 1255(a). Once an application is filed,


       2
        This third requirement refers to the limited number of
permanent visas apportioned to a given nation. Spouses and
children of U.S. citizens do not have to wait for such visas
because a separate statute makes permanent visas always
available to them regardless of their country of origin.
8 U.S.C. § 1151(b)(2)(A)(i). Meanwhile, children of lawful
permanent residents may obtain lawful permanent residence
themselves, but must wait for a country-specific visa to
become available. 8 U.S.C. § 1153(a)(2). Notably, even if a
K-visa holder’s parent becomes a citizen (as has Petitioner’s
mother), a K-visa holder must adjust through the § 1255(a)
process and cannot invoke a different basis for adjustment at




                               6
the ultimate decision as to whether that application is granted
is left to the discretion of the Attorney General, who also has
authority to promulgate regulations governing the adjustment
of status process. Id. The IMFA also created 8 U.S.C.
§ 1255(d), which, in its first iteration, barred the Attorney
General from adjusting a nonimmigrant’s status solely on the
basis of the K-visa. IMFA §§ 2(e), 3(b). That had the effect
of forcing K-1 and K-2 aliens to satisfy § 1255(a)(2)’s
eligibility requirement through the traditional means available
under the INA to alien family members—by proving a legally
cognizable familial relationship with the U.S. citizen
petitioner under 8 U.S.C. § 1151(b)(2)(A)(i), such as a marital
or a parent-child relationship. See, e.g., Kondrachuk v. U.S.
Citizenship & Immigr. Servs., No. C 08–5476 CW, 2009 WL
1883720, at *1-2 (N.D. Cal. June 30, 2009) (describing the
adjustment process for K-visa holders under § 1255(a)).
Procedurally, this meant that once the marriage took place,
not only the K-1 alien parent but also each K-2 stepchild
would need to prove eligibility through the submission of an
I-130 petition—a petition filed by the U.S. citizen attesting
that the K-2 alien was the “child” of the U.S. citizen. See id.;
Dep’t of Homeland Sec., Instructions for Form I-130, Petition
for Alien Relative (Mar. 23, 2015), available at
https://www.uscis.gov/sites/default/files/files/form/i-
130instr.pdf (last visited Mar. 22, 2016) (hereinafter
“Instructions for Form I-130”).

       This new requirement, however, produced an
unintended consequence for some K-2 children because,
under the INA, a stepchild only qualifies as a “child” of a


a later date, e.g., adjustment based on her parent’s
naturalization. See 8 C.F.R. § 245.1(c)(6)(ii).




                               7
U.S. citizen if “the child had not reached the age of eighteen
years at the time the marriage creating the status of stepchild
occurred.” 8 U.S.C. § 1101(b)(1)(B). Thus, an alien child up
to age twenty-one could obtain a K-2 visa and accompany her
alien parent and any younger siblings to the United States,
but, if she was eighteen to twenty-one years old when the
marriage took place, the U.S. stepparent could not file an I-
130 petition on her behalf. The stepchild, in other words, had
no mechanism to satisfy the requirements of § 1255(a)(2) and
no other means to adjust status from within the United States.
See, e.g., Kondrachuk, 2009 WL 1883720, at *1-2
(recounting the effect of the IMFA on K-2 visa holders); see
also Memorandum from Michael L. Aytes, Assoc. Dir., U.S.
Citizenship & Immigr. Servs. Domestic Ops., Regarding
Adjustment of Status for K-2 Aliens (Mar. 15, 2007),
available         at        https://www.uscis.gov/sites/default/
files/USCIS/Laws/Memoranda/Static_Files_Memoranda/
k2adjuststatus031507.pdf (last visited Mar. 22, 2016) (“Aytes
Memorandum”) (confirming the unintentional IMFA-created
gap). The upshot was that, upon expiration of her K-2 visa,
the stepchild was required to separate from her parents and
siblings and to return to her home country to apply for
admission to the United States from abroad based on her alien
parent’s newfound status as a lawful permanent resident. See
8 U.S.C. § 1153(a)(2); Kondrachuk, 2009 WL 1883720, at *2
& n.3 (explaining that because an immigrant visa is not
“immediately available” to a K-2 child based on the lawful
permanent resident status of her alien parent, such child may
not adjust status within the United States via § 1255(a)).




                               8
       This unintentional gap for older K-2 children 3
prompted the then-existing Immigration and Naturalization
Service (INS) 4 to take corrective action only two years after
the IMFA passed, which led—in conjunction with statutory
amendments passed by Congress in the same year—to the
regime that governs the status adjustment process for K-2
children today.        The INS promulgated 8 C.F.R.
§ 214.2(k)(6)(ii) (the “gap-filler”), under which a K-2 visa
holder is deemed eligible to apply for status adjustment based
solely on her K-1 parent “contracting a valid marriage to” the
U.S. citizen who originally petitioned for the K-1 visa (so
long as the marriage occurs within ninety days of the K-1
parent’s “admission as a nonimmigrant pursuant to a valid K-
1 visa”). See also Marriage Fraud Amendments Regulations,
53 Fed. Reg. 30,011, 30,017-18 (Aug. 10, 1988)
(Supplementary Information). This gap-filling regulation

      3
         Throughout this opinion, we use the descriptors
“older K-2” and “older K-4” to refer to a child who is under
twenty-one and thus young enough to obtain a K-2 or K-4
visa, but who was also over eighteen at the time of her
parent’s marriage and thus too old to qualify under 8 U.S.C.
§ 1101(b)(1)(B) as the “child” of her new stepparent.
      4
          On March 1, 2003, the INS was disbanded as an
independent agency within the United States Department of
Justice, and its functions were reassigned to the United States
Department of Homeland Security. Homeland Security Act
of 2002, Pub. L. No. 107-296, §§ 441, 451 & 471, 116 Stat.
2135, 2177-2212, codified at 6 U.S.C. §§ 251, 271 & 291.
The INS was the agency responsible for promulgating all the
regulations at issue in this case.




                              9
eliminated the need for a K-2 child to prove eligibility
through her stepparent’s I-130 petition by hinging the child’s
eligibility instead on her parent’s marriage and not on her
relationship with the U.S. stepparent. See In re Akram, 25 I.
& N. Dec. 874, 878 & n.6 (BIA 2012) (citing In re Le, 25 I. &
N. Dec. 541, 546 (BIA 2011) and In re Sesay, 25 I. & N. Dec.
at 438-40); In re Le, 25 I & N. Dec. at 550; Aytes
Memorandum.

        While the rulemaking process for the gap-filler was
underway, Congress also was legislating to the same effect,
and only a few months after the gap-filler was finalized,
President Reagan signed into law the Immigration Technical
Corrections Act of 1988 (ITCA), Pub. L. No. 100-525, 102
Stat. 2609, which added language to § 1255(d) that serves
virtually the same function as the gap-filler for K-1 and K-2
visas—the only K-visas then in existence. The ITCA
amended § 1255(d) to allow the Attorney General to adjust
the status of a K-visa holder “as a result of the marriage of the
nonimmigrant (or, in the case of a minor child, the parent) to
the citizen who filed the petition to accord that alien’s [K-1 or
K-2] nonimmigrant status,” thus making explicit that
eligibility for even an older K-2 child’s status adjustment
turned on the marriage and not whether the alien qualified as
her stepparent’s “child” under 8 U.S.C. § 1101(b)(1)(B). See
ITCA § 7(b).

       More than a decade later, in recognition of the fact that
K-visas benefited only alien fiancé(e)s and their children
while alien spouses and their children (who were already
stepchildren of U.S. citizens) still had to wait out approval of
their lawful permanent residence from abroad, Congress
expanded the K-visa program to create K-3 visas for foreign
spouses and K-4 visas for their minor children. See The




                               10
Legal Immigration Family Equity (LIFE) Act, Pub. L. No.
106-553, § 1103(a), 114 Stat. 2762, 2762A-142 (2000) (as
amended 2000); H.R. Rep. No. 106-1048, at 229-30 (2001).
Because the marriage has already taken place, the process for
obtaining these visas and adjusting status under the LIFE Act
varies slightly from that governing K-1 and K-2 visa holders.
To obtain a K-3 visa, the U.S. spouse must file two forms: an
I-129F petition, which lists the alien spouse’s children,
requires submission of a valid marriage certificate, and serves
as the petition for the K-visa itself, and an I-130 petition,
which identifies the marital relationship between the spouses
and begins the process for conferral of permanent residence.
See In re Akram, 25 I. & N. Dec. at 877; 8 C.F.R.
§ 214.2(k)(7); Dep’t of Homeland Sec., Instructions for
Petition for Alien Fiancé(e) 5 (June 13, 2013), available at
https://www.uscis.gov/sites/default/files/files/form/i-
129finstr.pdf (last visited Mar. 22, 2016); Instructions for
Form I-130. Upon approval of the I-129F petition and a
subsequent interview at a United States embassy or consulate
in the aliens’ home country, 6 a K-3 visa is issued to the alien

       5
          While the I-129F petition is still called the “Petition
for Alien Fiancé(e),” its instructions expressly indicate that it
is also the proper form to file on behalf of a K-3 spouse. 66
Fed. Reg. 42,587, 42,589 (Aug. 14, 2001) (explaining that,
upon passage of the LIFE Act, the INS would “use the Form
1-129F [to consider petitions for K-3 and K-4 visas] until
further notice”).
       6
         At this interview, each alien seeking a K-3 or K-4
visa must provide the following: (1) an individual Form DS-
160 application for each individual (including one for each
child, though each child’s eligibility is ultimately tied to the




                               11
spouse and K-4 visas are issued to the unmarried children of
the alien spouse under the age of twenty-one. In re Akram,
25 I. & N. Dec. at 877; 8 C.F.R. § 214.2(k)(3). A K-4 visa
then lasts for two years or until a child’s twenty-first birthday,
whichever comes first. 8 C.F.R. § 214.2(k)(8).

        Consistent with the goal of reunifying families
stateside pending approval of their permanent residence, the
LIFE Act also amended certain portions of the INA,
reflecting an intention that K-2 and K-4 children would be
accorded the same treatment. The LIFE Act reorganized the
subsection that creates all K-visas by authorizing K-1 visas
for fiancé(e)s in 8 U.S.C. § 1101(a)(15)(K)(i), K-3 visas for
spouses in § 1101(a)(15)(K)(ii), and K-2 and K-4 visas for
both categories of children (the children of K-1s and K-3s,
respectively) in § 1101(a)(15)(K)(iii). LIFE Act § 1103(a).
Thus, Congress provided for the issuance of both K-2 and K-
4 visas in the same statutory section, defined their intended


single I-129F form filed by the American citizen); (2) a valid
passport; (3) original or certified copies of birth certificates,
the marriage certificate for the marriage to the U.S. citizen
spouse, divorce or death certificates for any previous
marriages, and police certificates identifying past and present
countries of residence; (4) proof of a medical examination;
(5) evidence of financial support; (6) passport-style
photographs; (7) additional evidence of the spouse’s
relationship with the U.S. citizen; and (8) application fees for
each visa recipient. U.S. Dep’t of State: Bureau of Consular
Affairs, Nonimmigrant Visa for a Spouse (K-3),
https://travel.state.gov/content/visas/en/immigrate/family/spo
use-citizen.html (last visited Mar. 22, 2016).




                               12
recipients in the same terms as “the minor child[ren] of [K-1
or K-3 visa holders] [who are] accompanying, or following to
join [their alien parents],” 8 U.S.C. § 1101(a)(15)(K)(iii), and
extended § 1255(d)—the section that tied K-2 children’s
eligibility for adjustment of status under § 1255(a)(2) to “the
marriage of the [child’s parent] . . . to the citizen”—to K-4
children as well, see LIFE Act § 1103(c)(3).

       Notwithstanding Congress’s clear articulation of its
intent to accord the same reunification benefits to K-4
children as enjoyed by their K-2 counterparts, the INS took
the opposite tack. It not only failed to amend the 8 C.F.R.
§ 214.2(k)(6)(ii) gap-filler to reach older K-4 children or to
promulgate a new regulation to plug any perceived gap for
such individuals, it also promulgated 8 C.F.R. § 245.1(i) (“the
Regulation”), which recreated for older K-4 children the very
gap that § 1255(d) and 8 C.F.R. § 214.2(k)(6)(ii) had filled
for older K-2 children. See “K” Nonimmigrant Classification
for Spouses of U.S. Citizens and Their Children Under the
Legal Immigration Family Equity Act of 2000, 66 Fed. Reg.
42,587, 42,594 (Aug. 14, 2001) (Supplementary Information).
That is, instead of signaling that a K-4 child may adjust status
without being the beneficiary of a separate I-130 petition (an
impossibility for an alien child who does not qualify as the
“child” of her U.S. stepparent by virtue of having been over
eighteen at the time of the marriage), the Regulation provides:

       An alien admitted to the United States as a K-4
       under [8 U.S.C. § 1101(a)(15)(K)(iii)] may
       apply for adjustment of status to that of
       permanent residence pursuant to [8 U.S.C.
       § 1255] at any time following the approval of
       the Form I-130 petition filed on the alien’s




                              13
       behalf, by the same citizen who petitioned for
       the alien’s parent’s K-3 status.

8 C.F.R. § 245.1(i) (emphasis added).

        The Regulation thus ensnares a K-4 child who was
over the age of eighteen at the time of her parent’s marriage
in a legal quandary. Having qualified for the K-4 visa to
accompany her parent and younger siblings to the United
States to reunite with her U.S. stepparent, a K-4 child
between ages eighteen and twenty-one is limited by the
Regulation to obtaining lawful permanent residence only by
way of an I-130 petition filed by her stepparent—a petition
which § 1101(b)(1)(B) precludes that stepparent from filing
for a stepchild in this age group. Such a child, in other words,
has no recourse but to leave her family behind in the United
States and return to her home country to apply for a
permanent visa from abroad. 7

       It may seem strange to impose this plight on the
children of alien spouses given that the children of alien
fiancé(e)s may adjust status as a direct consequence of the
marriage and without having to independently demonstrate a
parent-child relationship with their U.S. stepparents under
§ 1101(b)(1)(B); that both K-2 and K-4 children obtain their

       7
         A K-4 child who was under eighteen at the time of
her parent’s marriage is still able to apply for adjustment of
status under the Regulation because, due to her age at the
time of the marriage, she would still qualify as her
stepparent’s “child” under § 1101(b)(1)(B).         Her I-130
petition thus could be approved and would render her eligible
to apply for permanent residence under § 1255(a).




                              14
nonimmigrant visas under § 1101(a)(15)(K)(iii); and that both
K-2 and K-4 children derive their eligibility to adjust status
from the same source: § 1255(d). The Regulation, however,
does just that. In re Akram, 25 I. & N. Dec. at 879-81, 883
(confirming that the Regulation establishes this catch-22 for
older K-4 children and expressly acknowledging that the
8 C.F.R. § 214.2(k)(6)(ii) gap-filling regulation absolves K-2
children of the same fate). Although the Seventh Circuit, in
Akram v. Holder, 721 F.3d 853, 864-65 (7th Cir. 2013),
struck down the Regulation as ultra vires, the Government
has continued to enforce it outside that Circuit—in this case
visiting its consequences upon Petitioner Si Min Cen.

   B. Factual and Procedural Background

       Cen is a Chinese national who was nineteen when her
mother married a U.S. citizen in China. After properly
obtaining her K-4 visa and moving to the United States with
her mother, Cen filed an application to adjust her status. As
required by the Regulation, Cen’s U.S. stepfather filed an I-
130 petition on her behalf, but that petition and hence Cen’s
application were denied because Cen was nineteen when her
mother married and therefore could not be deemed her
stepfather’s “child” under § 1101(b)(1)(B) for purposes of her
stepfather’s I-130 petition. 8

       At the same time, however, the Regulation also
precluded Cen from adjusting her status on the basis of her

       8
        It is undisputed that, once Cen passed her twenty-first
birthday, her K-4 visa expired, 8 C.F.R. § 214.2(k)(8), and if
she remains in the United States today, she does so without
authorization.




                              15
mother’s immigration status. After becoming a lawful
permanent resident, Cen’s mother filed an I-130 petition on
Cen’s behalf, which, because Cen is the biological child of
her mother, was approved by the Government. On the basis
of this approved I-130 petition, Cen again applied for
adjustment of status, but she was denied this time because
even though her mother’s I-130 petition on her behalf had
been approved—and even though her mother by that point
had become a naturalized U.S. citizen—the Regulation
specifies that, in order to be eligible for status adjustment, a
K-4 child’s I-130 petition must be filed by “the same citizen
who petitioned for the alien’s parent’s K-3 status,” i.e., the
U.S. stepparent. 8 C.F.R. § 245.1(i).

        Thwarted at every turn, Cen turned to the courts,
challenging the Regulation and the denial of her application
in the U.S. District Court for the District of New Jersey. At
least initially, Cen was again blocked when the Government
opened removal proceedings against her for overstaying her
original K-4 visa and served her with a Notice to Appear.
Because that action created a new administrative remedy for
Cen to pursue, the District Court lost subject matter
jurisdiction and Cen’s complaint was voluntarily dismissed.

       Cen duly appeared before an immigration judge (IJ) in
Newark, who determined that Cen was not entitled to relief
due to the Regulation. Bound by the BIA’s precedential
opinion in In re Akram, 25 I. & N. Dec. 874 (BIA 2012), the
IJ concluded that Cen could only seek to adjust through an I-
130 petition filed by her U.S. stepfather, not her mother, and
that her stepfather’s petition could not be approved because
Cen, who was nineteen at the time of the marriage, did not
qualify as her stepfather’s “child” under § 1101(b)(1)(B).
Cen appealed this decision to the BIA, which affirmed the IJ




                              16
and rooted its decision in In re Akram. The BIA determined
(1) that the legislative history and structure of the relevant
immigration laws supported the Regulation’s requirement that
only the stepparent may file an I-130 petition for a K-4 visa
holder, (2) that the BIA did not itself have authority to declare
regulations invalid in any event, and (3) that despite the
Seventh Circuit having previously rejected In re Akram and
struck down the Regulation, see Akram, 721 F.3d at 864-65,
the BIA was not bound by that decision outside the Seventh
Circuit.

       Cen now petitions this Court for review of the BIA’s
decision, arguing that the Regulation is ultra vires under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), and that she therefore should be
able to adjust her status either by way of an I-130 petition
filed by her mother or, like her K-2 counterparts,
automatically upon her mother’s adjustment, i.e., on the basis
of the marriage itself. 9




       9
          In the alternative, Cen argues that the Regulation
irrationally distinguishes between K-2 and K-4 children in
violation of her constitutional right to equal protection under
the law. Because we resolve this case on Chevron grounds,
we do not reach Cen’s constitutional claim. See, e.g., Lyng v.
Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445
(1988) (“A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them.”);
accord Akram, 721 F.3d at 858, 865.




                               17
 II.   Jurisdiction and Standards of Review

       We have jurisdiction to review final decisions of the
BIA under 8 U.S.C. § 1252. In this case, we review the
BIA’s decision de novo, subject to the principles of Chevron
deference because we are considering the propriety of a
regulation that has gone through notice-and-comment
rulemaking, United States v. Mead Corp., 533 U.S. 218, 226-
27 (2001), and because the BIA’s decision rests on legal
determinations made in its precedential opinion of In re
Akram, see INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999);
Orozco-Velasquez v. Att’y Gen., --- F.3d ---, No. 13-1685,
2016 WL 930241, at *2 (3d Cir. Mar. 11, 2016). 10

III.   Discussion

       Under the familiar two-step Chevron analysis, we first
determine under Step One if Congress has “directly addressed
the precise question at issue,” and if so, we strike down a
regulation that is contrary to Congress’s “unambiguously
expressed intent.” Chevron, 467 U.S. at 842-43. At Step One,
we consider the statutory text, as well as “traditional tools of
statutory construction,” including canons of construction and
the broader statutory context. Shalom Pentecostal Church v.

       10
         In its brief, the Government references the deference
courts afford to an agency’s interpretation of its own
regulations under Auer v. Robbins, 519 U.S. 452, 461 (1997).
Here, the BIA interpreted the Regulation’s effect in In re
Akram in a manner that is indeed consistent with the language
of the Regulation. We address below the underlying question
whether the Regulation itself is a permissible construction of
the INA, and we therefore review it through the lens of
Chevron.




                              18
Acting Sec’y U.S. Dep’t of Homeland Sec., 783 F.3d 156,
164-65 (3d Cir. 2015); United States v. Geiser, 527 F.3d 288,
292-94 (3d Cir. 2008). If, however, “the statute is silent or
ambiguous with respect to the specific issue,” we move on to
Step Two, where “the question for the court is whether the
agency’s [regulation] is based on a permissible construction
of the statute.” Chevron, 467 U.S. at 843. At Step Two, we
may consider “the plain language of the statute, its origin, and
purpose” in reviewing the reasonableness of a regulation.
Zheng v. Gonzales, 422 F.3d 98, 119 (3d Cir. 2005) (quoting
Appalachian States Low-Level Radioactive Waste Comm’n v.
O’Leary, 93 F.3d 103, 110 (3d Cir. 1996)). Step Two affords
agencies considerable deference, and “where Congress has
not merely failed to address a precise question, but has given
an ‘express delegation of authority to the agency to elucidate
a specific provision of the statute by regulation,’ then the
agency’s ‘legislative regulations are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary to
the statute.’” Zheng, 422 F.3d at 112 (quoting Chevron, 467
U.S. at 843-44). But deference under Step Two is not
absolute, and the regulation must still “harmonize[]” with the
statute, id. at 119 (quoting O’Leary, 93 F.3d at 110), and be
“reasonable in light of the legislature’s revealed design,”
NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co.,
513 U.S. 251, 257 (1995). Here, both parties urge that we
resolve the case at Step One, and there we begin.

   A. The Legitimacy of the Regulation Cannot be
      Resolved at Step One

       The Government argues that § 1255(d)’s plain text
unambiguously evinces Congress’s intent to bar older K-4
children from eligibility to apply for adjustment of status
under § 1255(a) because they cannot establish a




                              19
§ 1101(b)(1)(B)-compliant relationship with their U.S.
stepparents. Cen urges the opposite reading: that because
§ 1255(d) authorizes status adjustment “as a result of the
marriage of” the K-3 parent and U.S. stepparent, all K-4
children under twenty-one are unambiguously eligible to
adjust status on the basis of the marriage alone rather than the
parent-child relationship with their stepparents. Were the
Government correct that the plain language of the INA
categorically bars older K-4 children from eligibility, we
would have no need to proceed beyond Step One because the
Regulation would reflect Congress’s clearly stated intent. As
explained below, however, we can dispose of this contention
in short order because the two arguments pressed by the
Government at Step One are untethered from the text of the
statute.

        First, the Government cherry-picks language from
§ 1255(d) to urge that its authorization for the Attorney
General to adjust status on account of “. . . the citizen who
filed the petition to accord that alien’s nonimmigrant status”
expressly identifies the U.S. stepparent as the basis for any
adjustment and amounts to an unambiguous, affirmative
requirement that a K-4 child prove a legally cognizable
parent-child relationship with that stepparent to be eligible to
adjust status under § 1255(a). But, in full, the relevant
portion of § 1255(d) reads that the Attorney General may
adjust the status of an alien “as a result of the marriage of the
nonimmigrant (or, in the case of a minor child, the parent) to
the citizen who filed the petition to accord that alien’s
nonimmigrant status under [8 U.S.C. § 1101(a)(15)(K)].”
8 U.S.C. § 1255(d) (emphasis added). The Government, in
other words, would have us excise the “as a result of the
marriage of . . . the parent” language that immediately




                               20
precedes the excerpt on which it relies and thereby accord the
statute an entirely different meaning. We do not pay such
short shrift to Congress’s words. See, e.g., Inhabitants of
Montclair Twp. v. Ramsdell, 107 U.S. 147, 152 (1883) (“It is
the duty of the court to give effect, if possible, to every clause
and word of a statute[.]”). Instead, the reference to the
marriage between a K-4 child’s parent and the U.S. stepparent
precludes reading § 1255(d) to unambiguously require a K-4
child to prove a parent-child relationship with her stepparent.
Indeed, not only does the text of § 1255(d) nowhere indicate
that a parent-child relationship must be proven, but by its
terms, it expressly predicates a K-4 child’s eligibility on the
marital relationship between her K-3 parent and U.S.
stepparent (a topic to which we will return in Part III.B.1
below).

       The Government’s second attempt to anchor the
Regulation’s requirement in the plain text of the statute fares
no better. The Government would have us string together a
series of INA provisions that it insists, when read in tandem,
plainly and unambiguously require a K-4 child to demonstrate
a parent-child relationship with her U.S. stepparent to be
eligible to adjust status under § 1255(a). Specifically, the
Government argues that § 1255(d) does not absolve K-4
children from satisfying the three adjustment of status
requirements of § 1255(a); that a K-4 child therefore must
demonstrate eligibility and availability of an immigrant visa
like any other alien family member of a U.S. citizen by
complying with 8 U.S.C. § 1154(a)(1)(A)(i), which provides
that a U.S. citizen “claiming that an alien is entitled to . . . an
immediate relative status . . . may file a petition with the
Attorney General for such classification”; and that the
Supreme Court’s statement in INS v. Miranda, 459 U.S. 14,




                                21
15 & n.2 (1982) (per curiam), that a “visa petition” is
sufficient to satisfy the § 1255(a)(3) visa availability
requirement means that an I-130 petition (which, in the case
of K-4 children, would require compliance with the
§ 1101(b)(1) definition of “child”) is the proper method of
satisfying § 1154(a)(1)(A)(i).     Ergo, according to the
Government, § 1255(d) clearly and unambiguously provides
that the filing of an I-130 petition by the K-4 child’s U.S.
stepparent is the exclusive means by which a K-4 child may
adjust status.

       As a threshold matter, we would hesitate to conclude
that Congress clearly intended to deprive older K-4 children
of any opportunity to adjust status from within the United
States when the several disparate sections of the INA that,
together, supposedly erect this bar lack a single cross-
reference. See Restrepo v. Att’y Gen., 617 F.3d 787, 792-93
(3d Cir. 2010) (according significance to the absence of a
cross-reference when interpreting a statute); United States v.
Alvarez, 519 F.2d 1036, 1044 (3d Cir. 1975) (same). The
Government’s premises, in any event, suffer three
fundamental flaws.

       First, there is no question that, when Congress has not
provided otherwise, the eligibility of an immediate relative to
adjust status under § 1255(a) is typically satisfied by the
filing of an I-130 petition in accordance with
§ 1154(a)(1)(A)(i).      For K-visa holders, however, the
language of § 1255(d) suggests Congress did provide
otherwise, authorizing these aliens to apply instead on the
basis of the qualifying marriage.

     Second, the language in § 1154(a)(1)(A)(i) is neither
mandatory nor exclusive; indeed, while one “may” file an I-




                              22
130 petition to prove eligibility, that is not the only method of
adjustment, nor would that be a sensible reading given that
the 8 C.F.R. § 214.2(k)(6)(ii) gap-filler already allows K-2
children to adjust under § 1255(a) without filing an I-130
petition at all. Likewise, INS v. Miranda merely recognized
that a “visa petition” “would have satisfied” the § 1255(a)(3)
requirement; it did not hold that a visa petition was the
exclusive means to satisfy § 1255(a). 459 U.S. at 15 & n.2.

       Third, even assuming arguendo that a separate I-130
petition may be required for a K-4 child to adjust status,
nothing in § 1255(d) or § 1154(a)(1)(A)(i) supports the
Regulation’s requirement that such a petition be filed by the
U.S. stepparent and not by the alien parent once he or she has
obtained lawful permanent residence or, as in this case,
citizenship status.

        In view of these deficiencies in the Government’s
plain language argument, we cannot resolve this case at
Chevron Step One. Nor need we linger at Step One on
account of Cen’s own plain language argument, for even
assuming that the INA on its face permits older K-4 children
to apply for adjustment of status under § 1255(d), Congress
expressly delegated to the Attorney General in § 1255(a) the
authority to regulate eligibility to apply for adjustment of
status, and we held in Zheng v. Gonzales that “the text of INA
section [1255(a)] leaves some ambiguity about whether the
Attorney General may determine by regulation what classes
of aliens are eligible to apply for adjustment of status, thus
precluding reliance on the first prong of the Chevron test.”
422 F.3d at 120. As in Zheng, the Regulation bars a category
of aliens from adjusting their status under § 1255(a), and such
regulations are “subject to review for reasonableness under
the second prong of the Chevron test.” Id. at 114. We




                               23
therefore proceed to Step Two to consider whether the
Regulation falls within the scope of the Attorney General’s
delegated authority. 11


       11
          Of course, a determination that the language of
§ 1255(d) is itself ambiguous would be an independent reason
to proceed to Chevron Step Two. On the one hand, for the
reasons set forth below, there is a compelling argument that
the statutory language and structure of the INA clearly and
unambiguously authorize older K-4 children to apply for
adjustment of status on the basis of their parent’s marriage
and without proving an independent parent-child relationship
with their stepparent. See infra Part III.B.1. On the other
hand, the Government argues that the interplay of
§§ 1101(b)(1)(B), 1154(a)(1)(A)(i), 1255(a), and 1255(d)
makes the statute at worst ambiguous, and, while no party
here disputes that the term “minor child” in
§§ 1101(a)(15)(K)(iii) and 1255(d) has the same meaning as
“child” in § 1101(b)(1), the INA is not explicit on this point.
We need not decide whether § 1255(d) is itself ambiguous,
however, because Zheng mandates in any event that we
review the Regulation at Step Two as an exercise of the
Attorney General’s delegated authority to regulate eligibility.
422 F.3d at 119-20. To the extent there is arguably ambiguity
as to the meaning of “minor child” in § 1255(d), moreover,
we note that the BIA’s “long-standing interpretation . . . that
the undefined term ‘minor child’ means a ‘child,’ as defined
in section [1101](b)(1) of the [INA],” In re Le, 25 I. & N.
Dec. at 550; see also 8 C.F.R. § 214.2(k)(3), is consistent
with the language and purpose of the INA as described below
and therefore is entitled to Chevron deference. Cf. Akram,
721 F.3d at 856 (implicitly recognizing the reasonableness of




                              24
   B. The Regulation Is Invalid Under Step Two

       In Zheng, we held that where the INA appears by its
plain terms to render a class of aliens eligible to apply for
adjustment of status under § 1255(a) and the Attorney
General by regulation has barred that class from eligibility,
we review the regulation at Chevron Step Two to “determine
‘whether the regulation harmonizes with the plain language of
the statute, its origin, and purpose. So long as the regulation
bears a fair relationship to the language of the statute, reflects
the views of those who sought its enactment, and matches the
purpose they articulated, it will merit deference.’” 422 F.3d
at 119 (quoting O’Leary, 93 F.3d at 110). That deference,
however, is not unconditional, for while the Attorney
General’s discretionary authority under § 1255(a) “may be
ambiguous enough to allow for some regulatory eligibility
standards, it does not so totally abdicate authority to the
Attorney General as to allow a regulation . . . that essentially
reverses the eligibility structure set out by Congress.” Id. at
120.

        Here, as in Zheng, we conclude the Regulation does
reverse Congress’s eligibility structure and must be struck
down as “manifestly contrary” to the INA. Id. at 112
(quoting Chevron, 467 U.S. at 844). As explained below, our
conclusion rests on (1) the plain language of § 1255(d);
(2) the broader structure of the INA, as informed by canons of
statutory construction; (3) the regulatory and statutory context
of the LIFE Act; (4) the congressional purpose behind the
adjustment of status process; and (5) our own precedent

the BIA’s interpretation of “minor child” by citing to In re Le
for the proposition of defining a “minor child” as a “child”
under the INA).




                               25
circumscribing the scope of the Attorney General’s regulatory
authority under § 1255(a). We address these grounds in turn.

          1. Plain Language

       While the Government argues that the plain language
of § 1255(d) imposes the Regulation’s requirement that a
child prove a parent-child relationship with her U.S.
stepparent in order to adjust status under § 1255(a), we read
the statutory text to strongly indicate that Congress intended
the opposite: that the marriage of the child’s parent to the
child’s stepparent would itself render her eligible to apply for
adjustment of status and that the only parent-child
relationship of relevance to a K-4 child is the one between the
child and her K-3 alien parent—not her U.S. stepparent.

       By its plain terms, § 1255(d) provides that the
Attorney General may adjust a K-visa holder’s status “as a
result of the marriage of the nonimmigrant (or, in the case of
a minor child, the parent) to the citizen who filed the petition
to accord that alien’s nonimmigrant status.” 8 U.S.C.
§ 1255(d). A K-4 child’s eligibility to adjust status thus
accrues “as a result of the marriage of” her K-3 parent and
U.S. stepparent, not as a result of the K-4 child’s
§ 1101(b)(1)(B) relationship with her U.S. stepparent.
Indeed, the only relationships referenced in the text of
§ 1255(d) are the marital relationship between the K-3 parent
and the U.S. stepparent and the parent-child relationship
between the K-3 parent and the K-4 child; nowhere in
§ 1255(d) can we identify the source of the Regulation’s
procedural requirement that a K-4 child be the beneficiary of
an I-130 petition that proves she is the “child” of her new
stepparent as defined in § 1101(b)(1)(B). Thus, while the
Government rests its statutory interpretation of § 1255(d) on




                              26
the language referring to “the citizen who filed the [I-129F]
petition to accord [the K-4 child’s] nonimmigrant status,” see
supra Part III.A, we read “as a result of the marriage” to be
the operative words of the statute, making clear that it is the
marriage between the K-3 parent and the U.S. stepparent that
renders any K-4 child up to age twenty-one eligible to apply
for adjustment of status. 12 As such, it would stretch the
meaning of the text beyond its limits to read the mere mention
of the U.S. citizen petitioner in § 1255(d) to require that a K-4
child separately prove she qualifies as the “child” of her
stepparent under § 1101(b)(1)(B). 13


       12
          The language referencing “the citizen who filed the
petition to accord that alien’s nonimmigrant status” was
added to § 1255(d) in 1988 during Congress’s attempt to stem
the tide of marriage fraud. Read in context, this language
simply forecloses a K-visa holder from adjusting status based
on a K-1 or K-3 alien’s marriage to a different U.S. citizen
than the one who filed the I-129F petition on that alien’s
behalf. In the case of an alien fiancé(e), the statute thus
would prevent a K-2 child from adjusting status if her parent
were to marry someone other than the original U.S. citizen
petitioner, and in the case of an alien spouse, the statute
would prevent a K-4 child from adjusting status if her K-3
parent were to divorce, once stateside, from the U.S. citizen
spouse who initially filed the I-129F petition to accord the K-
3 and K-4 aliens their nonimmigrant visas and, perhaps,
remarry a different U.S. citizen.
       13
         Nor is there a plausible argument that the “parent”
referenced in the clause “or, in the case of a minor child, the
parent,” refers to the U.S. stepparent, as a K-4 child’s




                               27
        Moreover, the Government itself has already rejected
the very argument it makes here in two different regulations.
First, in the 8 C.F.R. § 214.2(k)(6)(ii) gap-filler, the
Government read § 1255(d)—even before it was amended by
the ITCA—to dispense with any need for the U.S. stepparent
to file an I-130 petition in order for a K-2 child to be eligible
to adjust status. And the Government’s continued adherence
to the gap-filler indicates that it has not departed from that
reading of § 1255(d) in the years since the ITCA. E.g., Aytes
Memorandum; see also In re Akram, 25 I. & N. Dec. at 878 &
n.6 (citing In re Le, 25 I. & N. Dec. at 546 and In re Sesay, 25
I. & N. Dec. at 438-40). Put another way, the Government’s
reading of § 1255(d) in this case would seem to render its
own gap-filling regulation ultra vires because both K-2 and
K-4 children derive their eligibility to seek status adjustment
under § 1255(a)(2) from the same statutory language in


eligibility to adjust status would then accrue “as a result of the
marriage of the [citizen] to the citizen.” This clearly cannot
be correct. In contrast, reading § 1255(d) as contemplating a
parent-child relationship between the K-3 parent and the K-4
child, rather than between the U.S. stepparent and the K-4
child, accords with the plain language and regulatory
interpretations of “minor child” as used in the provision that
authorizes K-4 visas in the first instance.            8 U.S.C.
§ 1101(a)(15)(K)(iii) (defining K-2 and K-4 children as “the
minor child of an alien described in clause (i) or (ii),” which
are the definitional clauses for K-1 and K-3 alien parents,
respectively (emphasis added)); see also In re Le, 25 I. & N.
Dec. at 547-48 (noting “minor child” has been interpreted to
mean “child” of the alien parent since 1973); 8 C.F.R.
§ 214.2(k)(3); 66 Fed. Reg., at 42,589.




                               28
§ 1255(d). We are hard-pressed to see how that plain
language can be read to require an I-130 petition for a K-4
child, but not for a K-2 child. The Government cannot have it
both ways.

        Second, in defining how K-3 and K-4 aliens may
adjust status under § 1255(a), 8 C.F.R. § 245.1(c)(6)(ii)
provides that a K-4 child “appl[ies] for adjustment of status
based upon the marriage of the K-3 spouse to the United
States citizen who filed a petition on behalf of the K-3
spouse.” With this language, which is materially identical to
language in 8 C.F.R. § 245.1(c)(6)(i) (defining eligibility for
K-1 and K-2 visa holders) and which tracks the statutory text
of § 1255(d), the Government itself has read a K-4 child’s
eligibility to apply for adjustment of status to turn on the
relationship between the K-3 spouse and U.S. citizen—not on
whether the K-4 child meets § 1101(b)(1)(B)’s definition of
“child” in relation to her new stepparent.

       Indeed, tying adjustment to the “petition [filed] on
behalf of the K-3 spouse,” 8 C.F.R. § 245.1(c)(6)(ii), rather
than to a second petition filed on behalf of the K-4 child,
makes sense given that a child obtains her K-4 visa as a
derivative of her K-3 parent, i.e., no separate petition is filed
in order to afford a K-4 child her initial nonimmigrant visa.
Obtaining a visa pursuant to § 1101(a)(15)(K) is obviously a
separate process from adjusting status under § 1255(a). But
because the K-4 visa—like the K-2 visa—is designed to
reunify families and, ultimately, to serve as a stepping-stone
toward permanent residence, the most logical reading of the
statute as a whole is that, whatever paperwork is required
once stateside, Congress meant to authorize an application for
adjustment based on the marriage. In the case of a K-2 child,
that is handled by the filing of an I-485 petition, which




                               29
identifies the basis of such child’s eligibility to apply for
status adjustment as the marriage of her K-1 parent to a U.S.
citizen, requiring only that the child append a copy of the K-1
parent’s “petition approval notice” and marriage certificate.
Dep’t of Homeland Sec., Form I-485, Application to Register
Permanent Residence or Adjust Status (revised Oct. 5, 2015),
available at https://www.uscis.gov/sites/default/files/files/
form/i-485.pdf (last visited Mar. 22, 2016). The Regulation’s
requirement that a K-4 child, in contrast, have her U.S.
stepparent file an I-130 on her behalf cannot be reconciled
with the plain language of § 1255(d) itself nor with the
Government’s prior interpretations of the very same text as
embodied in 8 C.F.R. § 214.2(k)(6)(ii) and 8 C.F.R.
§ 245.1(c)(6)(ii).

          2. Canons of Construction

       The irreconcilable conflict between the Regulation and
the statute becomes even more apparent when we consider
§ 1255(d) within the broader framework of the INA. While
the Government urges that we should interpret 8 U.S.C.
§ 1255 in isolation, we do not approach statutory construction
as a myopic exercise, but rather as a holistic endeavor in
which we “interpret the statute ‘as a symmetrical and
coherent regulatory scheme,’ and ‘fit, if possible, all parts
into an harmonious whole.’” FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (first quoting
Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995); then
quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389
(1959)); Shalom Pentecostal, 783 F.3d at 164-65 (considering
the overall design of the INA when assessing the plain
meaning of a statutory provision under a Chevron Step One
analysis); Alaka v. Att’y Gen., 456 F.3d 88, 104-05 (3d Cir.
2006) (considering the overall design of the INA when




                              30
interpreting a single provision). We therefore apply this
“traditional tool[] of statutory construction” to interpret
§ 1255(d) in its statutory context, see Chevron, 467 U.S. at
843 n.9; Bautista v. Att’y Gen., 744 F.3d 54, 58 (3d Cir.
2014), and, in doing so, identify no less than six relevant
canons of statutory interpretation that support our conclusion.

        First, where a statutory provision lists multiple
categories of individuals without differentiating between
them, Congress is presumed to have intended that all such
categories be treated the same. See Clark v. Martinez, 543
U.S. 371, 377-78 (2005) (concluding that, when a section of
the INA listed three categories of aliens without
differentiating between them, the statute clearly expressed
that all categories be treated the same because to treat each
category differently would “give the[] same words a different
meaning for each category [and] would be to invent a statute
rather than interpret one”). Here, Congress authorized both
K-2 and K-4 visas in a single subsection, 8 U.S.C.
§ 1101(a)(15)(K)(iii), reflecting congressional intent to
accord the same treatment to the two categories of visa
holders. The Government urges that § 1101(a)(15)(K) is
irrelevant to the propriety of the Regulation because it defines
only the mechanism by which one obtains a K-visa and has
nothing to do with adjustment of status under § 1255(a) and
(d). We agree that § 1101(a)(15)(K) on its face does not
speak to adjustment of status, but Congress’s decision to
address K-2 and K-4 visas together and without
differentiation in both § 1101(a)(15)(K)(iii) and § 1255(d)
provides textual and structural support for according them the
same treatment for adjustment purposes. See Clark, 543 U.S.
at 377-78.




                              31
        Second, we “normally” give “identical words and
phrases within the same statute . . . the same meaning,”
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224,
232 (2007), and, here, Congress used the term “minor child”
in both of the subsections dealing with K-visa holders:
§ 1101(a)(15)(K)(iii) and § 1255(d).          The Government
nonetheless would have us read “minor child” in
§ 1101(a)(15)(K)(iii) to mean the child of the K-3 alien parent
(for purposes of a K-4 child obtaining a K-visa), but then read
“minor child” in § 1255(d) to mean the child of the U.S.
stepparent (for purposes of a K-4 child adjusting status—thus
triggering § 1101(b)(1)(B)’s definition of stepchild for
adjustment purposes only and justifying the Regulation’s bar
to status adjustment for children whose parents wed after the
child turns eighteen). Even putting aside that the Government
eschews the latter interpretation of this very term in § 1255(d)
as it relates to K-2 children, there is no textual basis for its
reading of the statute, see supra note 13, nor any indication
Congress intended to alter whose child a K-4 “minor child”
must be for purposes of the K-visa versus adjustment of
status. Rather, the text and this interpretive canon lead us to
conclude the term should be interpreted the same way in both
places, covering the § 1101(b)(1) children of the K-3 alien
parent up to age twenty-one, see supra note 13, both for
purposes of obtaining a K-4 visa and for adjusting status once
stateside.

        Third, “our duty to construe statutes, not isolated
provisions,” Gustafson, 513 U.S. at 568, means that
definitions in other parts of the INA may also shed light on
what Congress envisioned would be necessary for a K-4 child
to apply to adjust her status. In this case, 8 U.S.C. § 1186a—
the provision explicitly cross-referenced in § 1255(d) that




                              32
describes the conditional lawful permanent residence status
for which K-visa holders apply under § 1255(a) and (d)—
provides further evidence that Congress did not intend to
require a K-4 child to prove she is the “child” of her U.S.
stepparent to apply for adjustment of status. Section
1186a(h)(2) defines the “alien son or daughter” who is subject
to the strictures of § 1186a as “an alien who obtains the status
of an alien lawfully admitted for permanent residence . . . by
virtue of being the son or daughter of an individual through a
qualifying marriage.” 8 U.S.C. § 1186a(h)(2) (emphasis
added). The Government’s reading of § 1255(d) would
require us to interpret the word “individual” in § 1186a(h)(2)
to refer only to the petitioning U.S. stepparent. But where
Congress intended to distinguish between the terms “alien
spouse” and “petitioning spouse,” it did so, as reflected
elsewhere in § 1186a. See, e.g., id. § 1186a(c)(3)(A)(ii) (“If .
. . the alien spouse and petitioning spouse appear at the
interview [to remove the conditional nature of the alien
spouse’s lawful permanent residence] . . .”); id.
§ 1186a(h)(1), (4) (separately defining “alien spouse” and
“petitioning spouse,” respectively). Congress opted not to do
so in defining “alien son or daughter” in § 1186a(h)(2), and,
as the Supreme Court has said, “[w]here Congress includes
particular language in one section of a statute but omits it
from another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate
inclusion or exclusion,” Russello v. United States, 464 U.S.
16, 23 (1983) (quoting United States v. Wong Kim Bo, 472
F.2d 720, 722 (5th Cir. 1972)); see also Shalom Pentecostal,
783 F.3d at 165. We thus accord significance to Congress’s
decision to describe an alien son or daughter’s basis for
admission to legal permanent residence under § 1186a—and,
by extension, under § 1255(d)—not as her status as the child




                              33
of the “petitioning spouse,” but as her status as the son or
daughter of either parent, so long as it is “through a
qualifying marriage.” 8 U.S.C. § 1186a(h)(2).

        Fourth, we find confirmation of Congress’s intent in
“the title of a statute and the heading of a section,” both of
which are “‘tools available for the resolution of a doubt’
about the meaning of a statute.” Almendarez-Torres v. United
States, 523 U.S. 224, 234 (1998) (quoting Bhd. of R.R.
Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528-59
(1947)). The part of the LIFE Act that created K-4 visas and
extended § 1255(d) to cover them is entitled “Encouraging
Immigrant Family Reunification,” Pub. L. No. 106-553, tit.
XI, 114 Stat. 2762, 2762A-142 (2000) (as amended 2000),
making apparent that Congress intended K-4 visas to enable
family reunification for parents and children up to age
twenty-one who were seeking lawful permanent residence—
not to authorize a temporary visit and concomitant statutory
bar on the eighteen to twenty-one year olds in that group from
ever adjusting status from within the United States. To
interpret the LIFE Act to require these children to separate
from their parents and younger siblings in the United States
and return to their home countries to apply for lawful
permanent residence would hardly “Encourag[e] Immigrant
Family Reunification”; it would statutorily impede it.

       Fifth, we interpret statutes consistent with the canon
that “Congress . . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions—it
does not, one might say, hide elephants in mouseholes.”
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).
Yet the Government would take us on a circuitous route
through the INA to explain how § 1255(d) should be read to
impose—by virtue of stringing together §§ 1255(a),




                              34
1154(a)(1)(A)(i), and 1101(b)(1)(B), see supra Part III.A—a
devastating burden on K-4 children that is inconsistent with
the statutory treatment of, and the agency’s own preexisting
regulatory framework for, K-2 children. The strictures of
statutory construction compel us instead to stay on the clear
path paved by the language of § 1255(d).

        Finally, we avoid interpreting statutes in a way that
would render them absurd. See, e.g., Republic of Iraq v.
Beaty, 556 U.S. 848, 861 (2009) (discounting a proffered
statutory interpretation in part because it would have been “an
absurd reading, not only textually but in the result it
produces”); Holy Trinity Church v. United States, 143 U.S.
457, 459-60 (1892) (construing a law “to avoid [] absurdity”).
Under the current regime, if a nineteen-year-old child of an
alien spouse stays behind in her home country while her alien
parent moves to the United States and adjusts status, that
child would be eligible to apply for lawful permanent
residence from abroad, albeit through a long and arduous
process. The very purpose of K-visas, however, is to allow
for family reunification stateside pending adjustment of status
for the alien parent and minor children of the new family. It
is therefore surely “unreasonable to believe that the
legislat[ure] intended,” Holy Trinity Church, 143 U.S. at 459,
that, in granting K-4 visas to older alien children, it was, in
effect, disqualifying any such child who chose to exercise that
visa from seeking lawful permanent residence from within the
United States.       Indeed, the Government’s reading of
§ 1255(d) would transform K-4 visas for older K-4 children
into nothing more than tourist visas, giving their holders only
a glimpse of what life with their families might have been like
in America before being sent home because they are legally




                              35
incapable of fulfilling § 1255(a)(2)’s eligibility requirement.
Such a reading defies common sense.

            3. Statutory and Regulatory Context

       The regulatory and statutory backdrop to the LIFE Act
further demonstrates that the Regulation is incompatible with
Congress’s eligibility scheme, for “Congress is presumed to
be aware of an administrative or judicial interpretation of a
statute and to adopt that interpretation when it re-enacts a
statute without change . . . [or] adopts a new law
incorporating sections of a prior law, . . . at least insofar as
[the prior interpretation] affects the new statute.” Lorillard v.
Pons, 434 U.S. 575, 580-81 (1978) (citations omitted). Here,
before passing the LIFE Act in 2000, Congress was aware
that the INS had promulgated 8 C.F.R. § 214.2(k)(6)(ii) to fill
the gap for older K-2 children and to ensure they would be
eligible to apply for adjustment of status on the basis of the
qualifying marriage, without having to demonstrate a parent-
child relationship with their new stepparent. And, of course,
Congress itself had amended § 1255(d) in 1988 to specify that
K-2 children could apply for status adjustment “as a result of
the marriage.” 14 ITCA § 7(b). Against this backdrop,

       14
          Indeed, there can be no question as to Congress’s
awareness of the prior existence of 8 C.F.R. § 214.2(k)(6)(ii)
because the gap-filler not only was on the books for twelve
years before the LIFE Act, but also was promulgated at the
same time as the ITCA, which added the “as a result of the
marriage” language to § 1255(d). The fact that the ITCA was
moving its way through Congress at the same time the gap-
filler was working its way through administrative rulemaking
indicates that both Congress and the Attorney General were—
even at the time of the gap-filler’s initial promulgation—on




                               36
Congress’s re-enactment of this language without alteration
when it extended § 1255(d) to the newly-created K-3 and K-4
visa holders indicates it expected K-4 children to likewise
benefit from the gap-filler.

       The Government counters that Congress also was
aware of the age restriction for a stepchild to qualify as a
“child” under § 1101(b)(1) and thus intended the LIFE Act to
create a gap for older K-4 children. We reject this argument
for three reasons. First, by adding the “as a result of the
marriage” language to § 1255(d) in 1988, Congress created an
alternative basis for eligibility to apply for status adjustment,
eliminating the need for K-2 and K-4 children to qualify as
the “child[ren]” of their U.S. stepparents under § 1101(b)(1).
See supra Part III.B.1. Second, the statutory text makes plain
that the only adult with whom a K-4 child must have a
§ 1101(b)(1) parent-child relationship is the K-3 alien parent.
See id. Third, Lorillard counsels that, while Congress was
presumptively aware of § 1101(b)(1)’s definition of “child”
when it passed the LIFE Act, it was also presumptively aware
that the INS had long interpreted “minor child” to mean an
individual under age twenty-one and already interpreted
§ 1255(d), through the gap-filler regulation, to relieve K-2
children of the strictures of § 1101(b)(1) for purposes of
adjusting status. 15 See 434 U.S. at 580-81. Thus, had


notice of each other’s interpretations. See, e.g., Williamson
Shaft Contracting Co. v. Phillips, 794 F.2d 865, 870 (3d Cir.
1986) (presuming that Congress was aware of a regulation
that had been promulgated eight years earlier).
       15
          Lorillard also further confirms that the term “minor
child” in § 1255(d) should be understood to mean “child” as




                               37
Congress intended to deviate from the gap-filler’s existing
interpretation, we would expect such deviation to have been
explicit. See id.




defined in § 1101(b)(1). The INS’s 1973 implementing
regulation for K-visas, 8 C.F.R. § 214.2(k)(3), “incorporated
the definition of a ‘child’ in [§ 1101(b)(1)],” which defines a
child as an unmarried person under twenty-one for purposes
of defining eligibility for a K-2 visa. In re Le, 25 I. & N.
Dec. at 548 (noting the agency has never defined “minor
child” but has instead used the statutory definition of “child”);
see also 66 Fed. Reg. 42,589 (Aug. 14, 2001) (“K-4 aliens
must be under 21 years of age and unmarried, in order to
continue to meet the definition of ‘child’ under section
[1101(b)(1)].”); Aytes Memorandum (“Officers should NOT
limit the adjustment of status of K-2 aliens to persons under
the age of 18 based on the term ‘minor child’ as it appears in
[1255(d)]. The INA does not define the term ‘minor child.’
Section [1101](b)(1) defines the term ‘child’ as ‘an unmarried
person under twenty-one years of age.’”). Against the
backdrop of the Government’s consistent “treat[ment] [of] the
term ‘minor child’ as synonymous with the term ‘child,’”
Congress re-enacted 8 U.S.C. § 1101(a)(15)(K) and “carried
the term ‘minor child’ over into [§ 1255(d)]” in 1986. In re
Le, 25 I. & N. Dec. at 548. Under Lorillard, we presume that,
in including the same term in § 1255(d) in both the ITCA and,
twelve years later, the LIFE Act, Congress was aware of and
acquiesced to this definition. 434 U.S. at 580-81.




                               38
           4. Congressional Purpose

       Setting aside the text, structure, and history of the
INA, the Government contends the Regulation is a reasonable
exercise of the Attorney General’s regulatory authority
because it furthers Congress’s intent to combat marriage
fraud. According to the Government, there is a greater risk
that K-3 and K-4 aliens will fraudulently obtain lawful
permanent residence than their K-1 and K-2 counterparts
because the marriages take place on foreign soil and because
alien spouses are subject to fewer prophylactic fraud
prevention measures than alien fiancé(e)s. 16 While the
Government’s interest in combatting marriage fraud is
indisputably a valid one, the Government fails to explain how
the Regulation furthers this goal and thus cannot justify the
Regulation on this basis.



      16
           Specifically, the Government places significance on
the fact that fiancé(e)s undergo scrutiny of their intent to
marry before being admitted to the United States (i.e., in the
I-129F petition, upon applying for a K-1 visa, and before
entry to the United States) and that they must establish their
marriage is legitimate at the time of adjustment under § 1255,
and again later when seeking to lift the conditional status
conferred under § 1186a. See, e.g., In re Sesay, 25 I. & N.
Dec. at 442. It is unclear to us how these examples show any
marked difference with alien spouses, who also must aver to
their marriage on the I-129F petition and again during the
interview that accompanies their application and must
demonstrate a valid marriage both upon initial adjustment of
status (via an I-130 petition) and when being interviewed to
lift the § 1186a conditions on such status.




                             39
        First, the INA already provides the Government with
several means of combatting marriage fraud. A K-3 parent
must have her initial visa petition—which includes proof of a
valid marriage—approved before she and her children may
even enter the United States, and the lawful permanent
resident status that K-3 and K-4 aliens obtain thereafter is
conditional under § 1186a. See supra Part I.A.              This
conditional status remains in place until the married couple
jointly files to lift this designation in the ninety-day window
preceding the second anniversary of obtaining conditional
legal status. See 8 U.S.C. § 1186a(c)(1)(A), (c)(3)(B),
(d)(2)(A). Only if, after an interview with the couple, the
Government concludes that the marriage is not fraudulent
does the alien’s status and that of her children become truly
permanent. See id. § 1186a(c)(1)(B), (c)(3). On the other
hand, if at any time during this two-year period the
Government concludes the marriage was fraudulent or has
been annulled or terminated, the alien’s permanent resident
status is rescinded and she and, by extension, her children are
rendered removable. See id. §§ 1186a(b)(1), (c)(3)(C);
1227(a)(1)(D)(i). This temporary, conditional status thus
provides the Government with a backstop to prevent
fraudulent marriages from resulting in permanent legal status
and an additional mechanism to catch fraud that may have
slipped through an initial review. Accord Gallimore v. Att’y
Gen., 619 F.3d 216, 222 (3d Cir. 2010) (“The purpose of [the
§ 1186a] scheme is obvious: to ferret out sham marriages
entered into for the purpose of obtaining entry into the United
States.”).

        Second, and more fundamentally, the Government has
failed to explain why a regulation that targets the children—
and more precisely, the older children—of alien spouses in




                              40
any way advances the underlying effort to combat marriage
fraud. That goal may be served by careful scrutiny of the K-3
parent’s I-129F and I-130 petitions and the documentation
required at the visa interview to prove both the K-3 parent’s
relationship with the U.S. citizen-spouse and the children’s
relationship with their K-3 parent, but the Government has
not shown how it is served by requiring a second I-130
petition on behalf of a K-4 child. Indeed, the Government
candidly conceded at oral argument that the Regulation’s
effect of forcing older K-4 children back overseas does not
prevent marriage fraud. Oral Arg. at 31:40-32:10. 17

       The stated goal of combatting marriage fraud thus
cannot explain the Regulation’s differential treatment of K-2
and K-4 children or why the Government should, in effect,
accord less value to the dignity and integrity of a family unit
when a U.S. citizen is already married to an alien spouse than
when an alien is entering the United States with the stated
intention of marrying a U.S. citizen.           In short, the
Government has failed to show the Regulation is “based on a
permissible construction of the statute,” Zheng, 422 F.3d at
116 (quoting Chevron, 467 U.S. at 843), or “comport[s] with
Congress’s stated intent,” id. at 119, to combat marriage
fraud.




       17
         An audio recording of the oral argument is available
online, at http://www2.ca3.uscourts.gov/oralargument/audio/
14-4831Cenv.AttyGenUSA.mp3.




                              41
          5. Limits on the Attorney General’s Regulatory
             Authority

        Finally, the considerations that led us in Zheng to hold
that the regulation in that case exceeded the permissible scope
of the Attorney General’s regulatory authority under
§ 1255(a) compel the same conclusion here. Zheng instructed
that we pay heed to “our obligation to respect the decisions of
the immigration agencies” but recognized our “even higher
obligation to respect the clearly expressed will of Congress.”
422 F.3d at 120. And while acknowledging the Attorney
General’s authority under § 1255(a) to regulate eligibility to
apply for adjustment of status, Zheng demarcated the bounds
of that authority: Where Congress has made clear through the
statutory language, structure, history, and purpose its intent to
authorize a certain class of aliens to apply for adjustment of
status, a regulation that strips such aliens of eligibility
altogether cannot be deemed “reasonable in light of the
legislature’s revealed design.”          Id. at 116 (quoting
NationsBank, 513 U.S. at 257); see id. at 119-20.

       Here, the Attorney General overstepped those bounds.
Whereas Congress envisioned that an alien spouse and her K-
4 children up to age twenty-one could enter the United States
and live as a family with the U.S. spouse while applying for
adjustment of status, the Regulation makes it legally
impossible for an older K-4 child to apply at all, so long as
she remains part of the family unit. And whereas, by enacting
§ 1255(d), Congress closed a gap that would have forced such
children to return to their home countries if they had passed
their eighteenth birthday by the date of their parent’s
marriage, the Regulation “essentially reverses the eligibility
structure set out by Congress,” id. at 120, by reopening that
gap and thereby categorically barring the otherwise eligible




                               42
class of older K-4 children from applying for adjustment
within the United States. Thus, as in Zheng, the Regulation
cannot be “harmonize[d] with the plain language of the
[INA], its origin, and purpose,” id. at 119 (quoting O’Leary,
93 F.3d at 110), and cannot survive scrutiny under Chevron
Step Two. 18

IV.   Conclusion

       While the nation’s immigration laws are at times
labyrinthine, we decline to hold today that they offer older K-
4 children nothing more than a legal dead end. For the
aforementioned reasons, although we reach our decision at
Chevron Step Two rather than Step One, we ultimately agree
with the thoughtful decision of the Seventh Circuit in Akram
and likewise hold that 8 C.F.R. § 245.1(i) is invalid.
Accordingly, we will grant Cen’s petition for review, reverse

      18
          We leave to the Department of Homeland Security
and the Attorney General, pursuant to her regulatory
authority, the appropriate mechanism to resolve this problem,
whether through providing a basis for eligibility analogous to
what now exists for K-2 children under the 8 C.F.R.
§ 214.2(k)(6)(ii) gap-filler (as effectuated by the I-485
petition) or otherwise. We note, however, that should the
Government decline to promulgate a regulation mirroring 8
C.F.R. § 214.2(k)(6)(ii) and instead simply allow a K-4 child
to adjust on the basis of an I-130 petition filed by her K-3
parent once that parent obtains lawful permanent residence,
the strictures of § 1255(a) would still require that K-4 child
prove the immediate availability of a country-specific visa,
see 8 U.S.C. § 1153(a)(2), thus denying her the same benefits
enjoyed under the gap-filler by her K-2 counterparts.




                              43
the Board’s decision, and remand Cen’s case for proceedings
consistent with this opinion.




                            44
