                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
              ________________

                    No. 18-1462
                 ________________

    CARMEN JOSEFINA CONTRERAS AYBAR;
     DARIO DE JESUS MORETA CONTRERA,

                                     Appellants

                          v.

  SECRETARY UNITED STATES DEPARTMENT OF
            HOMELAND SECURITY;
   DIRECTOR UNITED STATES CITIZENSHIP AND
           IMMIGRATION SERVICES;
   DIRECTOR UNITED STATES CITIZENSHIP AND
       IMMIGRATION SERVICES VERMONT;
ATTORNEY GENERAL UNITED STATES OF AMERICA;
     UNITED STATES ATTORNEY NEW JERSEY

                ________________

     Appeal from the United States District Court
            for the District of New Jersey
       (D.C. Civil Action No. 2-16-cv-01539)
       District Judge: Honorable Esther Salas
                 ________________
                 Argued November 6, 2018

Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges

             (Opinion filed: February 19, 2019)

Joshua S. Cohn, Esquire
James I. McClammy, Esquire
Benjamin Zhu, Esquire (Argued)
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017

Samuel I. Portnoy, Esquire
Gibbons
One Gateway Center
Newark, NJ 07102

      Counsel for Appellants

Chad A. Readler
  Acting Assistant Attorney General, Civil Division
William C. Peachey
  Director, Office of Immigration
  Litigation, District Court Section
Gisela A. Westwater
  Assistant Director, District Court Section
Alexander J. Halaska, Esquire (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868, Ben Franklin Station
Washington, DC 20044




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      Counsel for Appellees

Gary W. Kubek, Esquire
Matthew D. Forbes, Esquire
Meryl Holt Silverman, Esquire
Elizabeth Costello, Esquire
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022

      Counsel for Amicus Curiae

                     ________________

                OPINION OF THE COURT
                   ________________


AMBRO, Circuit Judge

       Carmen Josefina Contreras Aybar (“Carmen”) became
a lawful permanent resident under provisions of the
Immigration and Nationality Act (“INA”) known as the “U
Visa” statute. She then sought permanent resident status for
her son, Dario, based on a related provision of the INA, 8
U.S.C. § 1255(m)(3), which empowers the U.S. Department of
Homeland Security (“DHS”) to grant that status to certain
family members, including a “child,” of an immigrant in
Carmen’s situation. But that application hit a snag: while it
was pending Carmen’s son reached the age of twenty-one,
which made him ineligible under a DHS regulation that
implements § 1255(m)(3). Citing that regulation, it denied the
application.




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       Carmen and her son challenge the regulation as contrary
to § 1255(m)(3) as well as being arbitrary and capricious. But
we cannot sustain that challenge. Instead we hold that
§ 1255(m)(3) unambiguously requires DHS to assess the
familial relationship required under that statute as it exists
when DHS decides the application, even though this means a
child can “age out” of eligibility while an application is
pending. The DHS regulation in question adheres to this
unambiguous meaning of the statute, as did DHS’s denial of
Carmen’s application. We thus affirm the District Court’s
grant of summary judgment in favor of the Government.

I.     Background

       A. Legal Framework

        In 2000 Congress passed legislation that created a new
nonimmigrant visa classification—the U Visa—within the
INA. See Victims of Trafficking and Violence Protection Act
of 2000, Pub. L. No. 106-386, 114 Stat. 1464. It is a temporary
legal status offered to victims of rape and other specified
crimes who have cooperated, or are likely to cooperate, in the
investigation     and     prosecution    of     those    crimes.
See 8 U.S.C. § 1101(a)(15)(U)(i). Congress passed the statute
to “strengthen the ability of law enforcement agencies to
detect, investigate, and prosecute” the specified crimes, and to
“offer[] protection to victims of such offenses in keeping with
the humanitarian interests of the United States.” Pub. L. No.
106-386, § 1513(a)(2)(A). The statute also gives a pathway to
permanent resident status: after three years of holding a U
Visa, an alien may apply for permanent resident status under a
provision of the INA, 8 U.S.C. § 1255(m)(1), that applies
specifically to holders of U Visas.

     Certain U-Visa benefits also extend to qualifying family
members. Persons who are seeking or have already obtained




                               4
permanent resident status based on their receiving a U Visa,
such as Carmen, may seek that status for a qualifying family
member under 8 U.S.C. § 1255(m)(3). It states:

       Upon approval of adjustment of status under [8
       U.S.C. § 1255(m)(1)] of an alien [who received
       a principal U Visa,] the Secretary of Homeland
       Security may adjust the status of or issue an
       immigrant visa to a spouse, a child, or, in the case
       of an alien child, a parent who did not receive a
       [derivative U Visa] if the Secretary considers the
       grant of such status or visa necessary to avoid
       extreme hardship.

8 U.S.C. § 1255(m)(3). The term “child” is defined elsewhere
in the INA as “an unmarried person under twenty-one years of
age.” 8 U.S.C. § 1101(b)(1).

       DHS has promulgated regulations setting procedures
and criteria for obtaining permanent resident status under
8 U.S.C. § 1255(m)(3). See 73 Fed. Reg. 75,548–51 (Dec. 12,
2008). They contain a provision that requires a § 1255(m)(3)
applicant to meet the eligibility criteria through the time DHS
decides the application:

       The qualifying family relationship, [such as a
       parent–child relationship], [must] exist[] at the
       time of the U–1 principal’s adjustment and
       continue[] to exist through the adjudication of
       the adjustment or issuance of the immigrant visa
       for the qualifying family member.

8 C.F.R. § 245.24(g)(2). The parties refer to this regulation as
an “age-out regulation” because it creates the risk that a child
on whose behalf an application is filed under § 1255(m)(3) will
“age out” of eligibility before DHS acts on the application.




                                5
      B. Facts and Procedural History
       Carmen is a former citizen of the Dominican Republic
who entered the United States in 2005. The victim of a rape in
New York City, she assisted law enforcement with their
investigation and, on that basis, obtained a U Visa from DHS.
After holding the U Visa for more than three years, she
obtained permanent resident status under 8 U.S.C.
§ 1255(m)(1).

        After doing so, Carmen began the process to obtain the
same status for her son, Dario. She chose to do so under 8
U.S.C. § 1255(m)(3). Dario was one day shy of his twenty-
first birthday when Carmen began the application process by
filing the first of two petitions that were required under the
DHS regulations implementing the statutory provision.

        Although it initially approved Carmen’s petition, DHS
later revoked its approval and denied the petition because, by
the time DHS decided it, Dario “had reached the age of 21
years and did not meet the definition of child for immigration
purposes.”      Carmen appealed that decision to the
Administrative Appeals Office of the U.S. Citizenship and
Immigration Services (“Immigration Services”), which
dismissed the appeal based on 8 C.F.R. § 245.24(g)(2), the
age-out regulation noted above. It held the regulation was a
permissible implementation of § 1255(m)(3) that mandated
denial of Carmen’s petition.

       Carmen and Dario then filed a complaint in the District
Court under the Administrative Procedure Act, asserting that
the age-out regulation is invalid because it exceeds DHS’s
authority under 8 U.S.C. § 1255(m)(3) and is arbitrary and
capricious. On cross-motions for summary judgment, the
District Court granted summary judgment in favor of the
Government and denied it to Carmen and Dario, thus ruling the




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regulation is a valid means to implement 8 U.S.C.
§ 1255(m)(3). They appeal to us.
II.    Jurisdiction and Standard of Review

        The District Court had jurisdiction under
28 U.S.C. § 1331 to review DHS’s denial of the application
because it rested on DHS’s “interpretation of the legal
standards for eligibility for such adjustment.” Zheng v.
Gonzales, 422 F.3d 98, 111 (3d Cir. 2005). We have
jurisdiction over the District Court’s grant of summary
judgment under 28 U.S.C. § 1291, and we review de novo that
Court’s grant of summary judgment. See Dwyer v. Cappell,
762 F.3d 275, 279 (3d Cir. 2014).

III.   Discussion

        Carmen and Dario contend the age-out regulation is not
a valid implementation of 8 U.S.C. § 1255(m)(3). We consider
this contention under the familiar Chevron framework: “first,
if the statute is clear we must give effect to Congress’
unambiguous intent, and, second, if the statute is silent or
ambiguous with respect to a specific issue, we defer to an
implementing agency’s reasonable interpretation of that
statute.” De Leon–Ochoa v. Att’y Gen., 622 F.3d 341, 348 (3d
Cir. 2010) (citing Chevron, USA, Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984)). Put another way,
“[i]f Congress has directly and clearly spoken to the question
at issue, our Chevron analysis is complete at step one, and
Congress’s unambiguous intent controls.” Shalom Pentecostal
Church v. Acting Sec’y U.S. Dep’t of Homeland Security, 783
F.3d 156, 164 (3d Cir. 2015).
      To determine whether a statutory provision is
“unambiguous,” we consider the text of the provision and the
broader context of the statute as a whole, but we do not




                              7
consider legislative history. Geisinger Cmty. Med. Ctr. v.
Sec’y U.S. Dep’t of Health & Human Servs., 794 F.3d 383, 391
(3d Cir. 2015) (citing United States v. Geiser, 527 F.3d 288,
294 (3d Cir. 2008)).1 We also acknowledge the principle that
courts “are obligated to construe statutes sensibly and avoid
constructions which yield absurd or unjust results.” United
States v. Fontaine, 697 F.3d 221, 227 (3d Cir. 2012) (internal
quotation marks omitted); see also Hanif v. Att’y Gen., 694
F.3d 479, 483–84 (3d Cir. 2012). We consider each of these
guideposts in turn.

       A. Text

        The Government contends the plain terms of the statute
require DHS to determine eligibility at the time it rules on a
§ 1255(m)(3) application. For this argument, the Government
leans on the grammatical structure of the provision, which, by
its literal terms, only authorizes DHS to grant permanent
resident status to “a spouse, a child, or . . . a parent” of the
principal U-Visa holder. It argues that, in the case of a child
application, it cannot grant the application if the person in
question has reached the age of twenty-one before his status is
adjusted, as he no longer is a child under 8 U.S.C. § 1101(b)(1).

       The Government’s reading of § 1255(m)(3) finds
support in Robinson v. Napolitano, 554 F.3d 358 (3d Cir.
2009). There we reviewed Immigration Services’ denial of a
U.S. citizen’s application for permanent resident status for his
spouse under a provision of the INA that allows those
applications for “immediate relatives” of U.S. citizens. Id. at
363. While the application was pending, the U.S. citizen died
unexpectedly. Id. at 360. Immigration Services then denied

1
  Although we do not rest our interpretation of the statute on
legislative history, we thank the amicus curiae, Her Justice, for
its thorough and valuable submission on that subject.




                               8
the application, ruling the widow was not a “spouse” under
the INA at the time the application was decided; hence the
widow could not obtain permanent resident status as an
“immediate relative.” Id. at 363. The statute in question stated
that DHS “shall, if [it] determines that the facts stated in the
petition are true and that the alien in [sic] behalf of whom the
petition is made is an immediate relative . . . , approve the
petition.”     Id. (emphases omitted).         We agreed with
Immigration Services’ interpretation of the statute, holding
that “eligibility for an immediate relative visa depends upon
the alien’s status at the time [Immigration Services]
adjudicates the [applicable] petition, not when that petition
was filed.” Id. at 364. The grammatical structure of the
statute in Robinson is similar to the structure of § 1255(m)(3)
in that both statutes, by their literal terms, imply an
equivalence in time between the eligibility criteria
(“immediate relative” in Robinson; a “child” here) and DHS’s
authority to grant benefits (“shall . . . approve” in Robinson;
“may adjust” here). Robinson’s approach to a similar statute
thus cuts in favor of the Government’s interpretation of
§ 1255(m)(3).

        For their textual argument, Carmen and Dario focus on
the phrase “[u]pon approval of adjustment of status” in
§ 1255(m)(3). They contend this phrase establishes the timing
of the “child” determination DHS must make because the word
“upon” is a temporal word and the rest of § 1255(m)(3) is
linked to this timing. We are not persuaded. “Upon approval
of adjustment of status” imposes a precondition to DHS’s
consideration of an application under § 1255(m)(3); it does not
require DHS to determine eligibility under § 1255(m)(3) by
looking back to the state of affairs when the principal U-Visa
holder obtained LPR status.




                               9
       In sum, the text favors the Government’s position that a
potential beneficiary’s status as a “child” must be evaluated
when DHS rules on the § 1255(m)(3) application.

       B. Statutory Context
       We next consider other provisions of the U-Visa statute
and the INA to probe further the meaning of § 1255(m)(3).
Two provisions of the statute stand out as relevant. The first is
8 U.S.C. § 1101(a)(15)(U)(ii)(I), which extends derivative U-
Visa eligibility to the “unmarried siblings” of a U-Visa holder.
They are siblings who are “under 18 years of age on the date
on which such alien applied for [U-Visa] status.” Id.
(emphasis added). This provision suggests that, when
Congress wants a derivative U-Visa applicant’s age to be
determined as of the application date, it says that explicitly.
Similarly, the U-Visa statute expressly protects against the age-
out problem for derivative U-Visa applications as opposed to
the permanent resident application we review here. For the
former, a child applicant “shall continue to be classified as a
child” for purposes of the derivative U-Visa application even
if the child attains the age of twenty-one while the parent’s
application is pending. See 8 U.S.C. § 1184(p)(7)(A). No
equivalent safeguard applies to applications under
§ 1255(m)(3).
       A similar suggestion stems from provisions of the Child
Status Protection Act. Pub. L. No. 107-208, 116 Stat. 927.
Among other things, it protects child asylum applicants by
fixing their ages for asylum purposes as of when they submit
their applications, thus protecting them against the age-out
problem. See 8 U.S.C. § 1158(b)(3)(B). But, as the District
Court observed, that implies that other children seeking
immigration benefits could still age out of eligibility.




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      In short, the broader context of the statute also favors
the Government’s interpretation of § 1255(m)(3).
       C. The Absurdity Principle

        Appellants urge that several “absurd” results would
flow from reading § 1255(m)(3) as containing an age-out
mechanism for child applicants.            It would put child
applications at the whim of agency processing times, over
which applicants have absolutely no control. It also would
make it impossible to predict a child’s eligibility under the
statute at the time of filing an application. And it would mean
that two identically situated children—twin children of a
woman who obtains U-1 immigrant status, for example—
might be denied or granted LPR status based purely on how
quickly DHS processes their separate applications.

       There is heft to these arguments and, were we writing
on a blank slate, we may well be swayed. But, unfortunately,
we are not because Congress and the Supreme Court do not
appear to view “aging out” of immigration benefits as an
absurdity. Congress made that viewpoint clear in, among other
laws, the Child Status Protection Act, which protects certain
categories of children from aging out of immigration benefits
while their applications are pending. The incomplete coverage
of that Act implies Congress knows but has not addressed
when children not protected by it may still be subject to aging
out of eligibility due to the vagaries of the application process.
Similarly, in a recent decision, the Supreme Court
acknowledged without pause the potential for “aging out”
under the immigration laws. See Scialabba v. Cuellar de
Osorio, 573 U.S. 41, 45 (2014) (discussing the “aging out”
phenomenon in the immigration context and observing that
“someone who was a youngster at the start of the process may
be an adult at the end, and no longer qualify for an immigration
status given to minors”). We view these authorities as fatal to




                               11
appellants’ arguments based on the arguably absurd results of
a literal interpretation of § 1255(m)(3).
                 *      *      *      *      *

       We hold that 8 U.S.C. § 1255(m)(3) unambiguously
requires DHS to determine qualifying family member status
when it decides an application per that provision. It adhered to
that interpretation of the statute when it denied Carmen’s
§ 1255(m)(3) application for permanent resident status on
behalf of her son because he was no longer a child when it ruled
on the application. Hence our analysis concludes here, and we
affirm the District Court’s entry of summary judgment for the
Government.




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