                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-1988


NOEL JOSEPH MENOR REGIS,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Argued:   September 16, 2014                Decided:   October 16, 2014


Before DUNCAN, AGEE, and DIAZ, Circuit Judges.


Petition denied by published opinion.      Judge Agee         wrote   the
opinion, in which Judge Duncan and Judge Diaz joined.


ARGUED: Alfred Castro Tecson, TECSON LAW OFFICE, Annandale,
Virginia, for Petitioner.    Colin James Tucker, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.     ON
BRIEF: Stuart F. Delery, Assistant Attorney General, Civil
Division, Anthony W. Norwood, Senior Litigation Counsel, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
AGEE, Circuit Judge:

      Petitioner     Noel    Joseph     Menor       Regis      entered        the    United

States in 2007 on a K-2 visa as the minor child of his mother, a

nonimmigrant fiancée K-1 visa holder.                   After his mother married

the U.S. citizen who had petitioned for the family’s K visas,

Regis   applied      to    adjust    his       status     to     lawful       conditional

permanent      resident.          The   United          States     Citizenship             and

Immigration Services (“USCIS”) denied Regis’ application because

he had turned 21 before he entered the United States and was

therefore      not   a    qualifying    “minor       child.”            See     8    U.S.C.

§ 1255(d).      An immigration judge (“IJ”) agreed with USCIS, and

the Board of Immigration Appeals (the “Board”) affirmed.

      In his petition for review to this Court, Regis contends

that a K-2 visa holder’s eligibility for adjustment of status

should be determined not by his age on the date of entry into

the   United    States,     but     rather     by   his     age    at     the       time    he

initially sought the K-2 visa.                  Because we conclude that the

Board’s interpretation of the relevant statutory provisions is

entitled to deference, we deny Regis’ petition for review.




                                           2
                                         I. Background

                      A. The Immigration Application Process

         The       Immigration     and    Nationality            Act    (the    “INA”   or   the

“Act”)     defines        two     classes      of    nonimmigrant         aliens     that    are

pertinent to this appeal:

         (i) . . . the fiancee or fiance of a citizen of the
         United States . . . who seeks to enter the United
         States solely to conclude a valid marriage with the
         petitioner within ninety days after admission; [and]

         (iii) . . . the minor child of an alien described in
         clause (i) . . . accompanying, or following to join,
         the alien[.]

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

         The K visa process begins when a U.S. citizen petitions the

Department of Homeland Security to designate a foreign national

as   a    nonimmigrant          fiancé     or    fiancée         (the    “fiancée”).         Id.

§ 1184(d)(1);             8 C.F.R. § 214.2(k)(1).                  If the fiancée has a

minor child that is accompanying or following to join her, that

child     “may       be   accorded       the    same      nonimmigrant         classification”

without        a    separate     petition.           8    C.F.R.       § 214.2(k)(3).        The

approved       petition      is    forwarded         to    the    U.S.    consulate     in   the

fiancée’s home country.              22 C.F.R. § 41.81(a)(1).

         The fiancée must then submit a visa application to the U.S.

consulate in her home country, requesting a K-1 visa on behalf

of herself and K-2 visas for her minor children whom she intends

to join her.              See id. § 41.81(a), (c).                     After receipt of an


                                                 3
approved visa application, the consulate issues the K visas,

which, as nonimmigrant visas, generally bear validity periods

reflecting      reciprocity        between      the    United    States     and    the

practices      of    the     particular          foreign      government.          Id.

§ 41.112(b)(1).

      Issuance of a K-1 or K-2 visa, however, does not guarantee

the   visa    holder’s     entry    into       the   United   States.     8    U.S.C.

§ 1201(h)     (“Nothing      in    this    chapter      shall   be   construed      to

entitle any alien, to whom a visa or other documentation has

been issued, to be admitted [to] the United States, if, upon

arrival at a port of entry in the United States, he is found to

be inadmissible under this chapter, or any other provision of

law.”).      Upon arrival at a port of entry into the United States,

the   alien    fiancée     –-     like    all    nonimmigrant    aliens       --   must

establish     that   he     or    she     is    then   admissible.        8    C.F.R.

§ 214.1(a)(3)(i).          After admission into the United States, the

alien fiancée must marry the U.S. citizen petitioner within 90

days or depart the country along with any children holding a K-2

derivative visa.      8 U.S.C. § 1184(d)(1).

      Following the marriage, the K–1 visa holder and her minor

children holding K-2 visas may apply for adjustment of status to

lawful conditional permanent resident.                     8 U.S.C. § 1255(d); 8

C.F.R. § 214.2(k)(6)(ii).                The Attorney General may make the

adjustment “in his discretion and under such regulations as he

                                           4
may prescribe.”           8 U.S.C. § 1255(a).          The applicant must be

eligible to receive an immigrant visa and be admissible to the

United States for permanent residence.            Id.

       Section 1255(d) specifically addresses adjustment of status

for    K-1   and   K-2    nonimmigrant   visa   holders.       Id.   §   1255(d).

Under the statute, the Attorney General may adjust their status

to lawful conditional permanent resident “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.”      Id.

(emphasis added).

       The term “minor child” in 8 U.S.C. §§ 1101(a)(15)(K) and

1255(d) is not defined in those statutes or elsewhere in the

INA.     However, based on the definition of “child” in the Act,

see 8 U.S.C. § 1101(b)(1), the term “minor child” for purposes

of K-2 visas has been construed by the Board as a person who is

unmarried and under the age of 21.               Matter of Le, 25 I. & N.

Dec. 541, 550 (B.I.A. 2011).

       Section 1255 does not specify when during the immigration

process a “minor child” is required to be under 21 years of age,

and the statute is likewise silent as to when an applicant for

adjustment of status must demonstrate eligibility.                       8 U.S.C.

§ 1255(a), (d); see also Carpio v. Holder, 592 F.3d 1091, 1098

(10th Cir. 2010) (“[T]he use of the term ‘minor child,’ provides

no indication as to when that status must be established.”).

                                         5
                          B. Regis’ Application Process

        Regis is a native and citizen of the Philippines who was

born on February 18, 1986.                   On February 13, 2007, the United

States     embassy’s        consular       office    in        the    Philippines        (the

“Consulate”) issued a K-1 nonimmigrant visa to Regis’ mother,

following the successful petition of her U.S. citizen fiancé.

At the same time, the Consulate issued K-2 visas to Regis and

his three siblings as the children of a K-1 visa holder.                                Regis

was 20 years old when he received his K-2 visa, which stated

that it would remain valid until August 11, 2007.

        Regis’    mother       entered       the    United       States      sometime      in

February 2007 and married her U.S. citizen fiancé on February

26, 2007.        Regis did not accompany his mother, but entered the

United States later on March 25, 2007, over a month after his

21st birthday on February 18, 2007.

      On    May     16,    2007,    he     timely    filed       an    application        for

adjustment of status to lawful conditional permanent resident.

USCIS      denied    the       application,        concluding         that    Regis        was

ineligible to adjust his status because he had already attained

age   21   and    was     no   longer    a   “child”      as    defined      in    8    U.S.C.

§ 1101(b)(1).             Regis    moved     for    reconsideration,              and    USCIS

dismissed that motion.

      On November 15, 2007, the Department of Homeland Security

began removal proceedings against Regis by filing a Notice to

                                              6
Appear, which charged him with removability pursuant to 8 U.S.C.

§ 1227(a)(1)(B),     as    an   alien   who   was    admitted   to    the   United

States as a nonimmigrant and remained beyond the time permitted.

Appearing before the immigration court, Regis admitted the facts

contained in the Notice to Appear and conceded removability.                    He

argued, however, that he was eligible for adjustment of status

because he was less than 21 years old at the time he applied for

the K-2 visa and cited Carpio v. Holder, 592 F.3d 1091 (10th

Cir. 2010), in support.

     In    Carpio,   the    petitioner      had     also   entered    the   United

States on a derivative K-2 visa but, unlike Regis, was less than

21 years old on the date of entry.                  Id. at 1092.        The Board

nevertheless denied the adjustment because the petitioner had

turned 21 before the agency adjudicated his application.                    Id. at

1092-93.     The Tenth Circuit overturned the Board’s decision,

concluding that eligibility should be determined as of the date

a K-2 alien “seeks to enter” the United States.                      Id. at 1098-

1101.     Given the particular facts before it, the court was not

required to pinpoint when a K-2 applicant “seeks to enter,” but

observed that the date

     may be plausibly read as either (1) the date                that the
     United States citizen files a petition for                   K-1 and
     K–2 visas with the Secretary of Homeland                    Security
     under 8 U.S.C. § 1184(d)(1), or (b) the date                that the
     K–1 and K–2 visa applications are filed                    with the
     consular officer in the country of origin.


                                        7
Id. at 1104.

       The IJ found Carpio inapplicable in this case under the

holding in Matter of Le, 25 I. & N. Dec. 541 (B.I.A. 2011),

which the Board had decided during the pendency of Regis’ case.

In Matter of Le, a three-judge panel of the Board concluded that

a K-2 visa holder’s age at the time he actually enters the

United States determines whether he is a “minor child” under the

INA.    Id. at 550.       Based on Matter of Le, the IJ denied Regis’

application for adjustment of status because Regis was over 21

when    he     entered    the       United        States    under    his     K-2    visa.

Accordingly,       the   IJ     ordered       Regis      removed    from    the    United

States.

       Regis   appealed       to   the    Board,        arguing   again    that    he   was

eligible for adjustment of status because he was under 21 at the

time he sought a K-2 visa.                The Board dismissed Regis’ appeal,

adopting     and   affirming        the   IJ’s      decision.        Concluding         that

Matter of Le was precedential and dispositive, the Board held

that Regis was ineligible to adjust status because he was not a

“minor child” at the time he was admitted to the United States.

       Regis filed a timely petition for review to this Court.                           We

have    jurisdiction      to       consider       his    petition    under    8    U.S.C.

§ 1252.




                                              8
                                 II. Discussion

      We review the Board’s legal conclusions de novo.                       Saintha

v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008).                 In the course of

conducting our review, we recognize that because the Board is

the agency that administers the INA, its interpretations of that

Act may be entitled to deference under the Chevron doctrine.

See   id.   (citing    Chevron,     U.S.A.,   Inc.     v.   Natural    Res.       Def.

Council, Inc., 467 U.S. 837, 842-43 (1984)).

      Under Chevron, we must first determine whether the statute

is “silent or ambiguous with respect to the specific issue.”

Id.   If the provision in question is unambiguous, then the plain

meaning     of   the   statute    controls.     Id.          If,    however,      the

relevant    provision     is   ambiguous,     then   we     will    defer    to    the

agency’s interpretation so long as it is “based on a permissible

construction      of    the      statute.”       Id.         “[T]he     [Board’s]

interpretations . . . must be given controlling weight unless

those interpretations are ‘arbitrary, capricious, or manifestly

contrary to the statute.’”             Fernandez v. Keisler, 502 F.3d 337,

344 (4th Cir. 2007) (quoting Chevron, 467 U.S. at 844).                           The

appellant bears a “substantial burden, as judicial deference ‘is

especially       appropriate      in    the   immigration          context    where

officials exercise especially sensitive political functions that

implicate questions of foreign relations.’”                  Saintha, 516 F.3d




                                         9
at 251 (quoting I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425

(1999)).


                  A. The Board’s Decision in Matter of Le

     Although       the    INA   is       silent    as     to    when    during    the

immigration process a K-2 visa holder must be under 21 to be

eligible    for     adjustment      of    status,    the       Board    has   provided

guidance in Matter of Le.             In that case, the applicant entered

the United States with his mother when he was 19 years old, but

turned     21     before    USCIS        adjudicated      his     application      for

adjustment of status.         25 I. & N. Dec. at 542.             USCIS denied the

application because Le had turned 18 before the date of his

mother’s marriage.         Id.   An IJ likewise denied Le’s adjustment

of status, but on the ground that he had turned 21 before the

agency had adjudicated his application.                  Id.

     The Board addressed two questions in Le’s appeal: (1) at

what age is a child no longer a “minor child,” and, critical to

this appeal, (2) at what point in the immigration process does

the child’s age become “fixed” for purposes of the minor child

determination.       Id. at 544.          Regarding the first question, the

Board    concluded     that   the     defining      age    for    a    “minor   child”

determination is age 21, not 18.                 Id. at 550 (noting the “long-

standing        interpretation      by     the     implementing         agency”    and

Congress’ implicit approval of that interpretation).


                                           10
     In addressing the second question –- at what point the K-2

applicant must establish eligibility -- the Board looked to a

previous decision in which it had analyzed the same question for

K-1 applicants.       In Matter of Sesay, the Board concluded that an

alien fiancée parent’s eligibility for adjustment of status must

be established at the time of admission to the United States

with the K-1 nonimmigrant visa.             Matter of Sesay, 25 I. & N.

Dec. 431, 440 (B.I.A. 2011).           The Board in Matter of Le found

Matter    of    Sesay’s   reasoning   to   be   equally   persuasive   in   the

context of K-1 visa holders’ minor children.               Matter of Le, 25

I. & N. Dec. at 545.         Consequently, the Board determined “that

to adjust status based on a K-2 visa, an alien derivative child

must establish that he or she was under 21 years of age at the

time of admission to the United States.”              Id. at 541 (emphasis

added).        Since Le met that requirement, the Board held he was

eligible for adjustment and reversed the IJ’s decision. 1




     1
       We reject Regis’ argument that because Le had not yet
turned 21 at the time he was admitted into the United States,
Matter of Le is somehow inapplicable to this case. In deciding
whether Le was eligible for adjustment, the Board was tasked
with defining “minor child” and with designating the appropriate
time for determining eligibility.    Some, like Le, may satisfy
the Board’s interpretation, and others like Regis, will not.
The resulting interpretation nonetheless is applicable to all K-
2 applicants for adjustment.


                                      11
                               B. Chevron Deference

      Because Matter of Le is a precedential opinion in which the

Board     interpreted      a   statute      Congress    has        designated          it    to

administer,       we   proceed       in   accordance    with       Chevron. 2          Under

Chevron’s first prong, we begin by asking whether the INA is

ambiguous as to when a K-2 applicant for adjustment of status

fails to qualify as a “minor child” under that statute.                                       In

other words, at what point in the immigration process does the

K-2 visa applicant’s attaining age 21 function as a limiting

event?        As noted earlier, the INA is silent on this question.

For     his    part,   Regis        has   not    contested        that     the    relevant

provisions are ambiguous.

      One possible reading, rejected in both Carpio and Matter of

Le, is that the applicant must be a “minor child” at the time

the adjustment is adjudicated.                   See Carpio, 592 F.3d at 1102

(concluding that allowing eligibility to hinge on the agency’s

speed     could   “violate[]        basic   principles       of    common        sense      and

fairness”);       Matter       of     Le,   25     I.   &     N.         Dec.     at        542.

Alternatively, the Tenth Circuit in Carpio resolved that the INA

      2
       The Board’s decision denying Regis’ appeal may not itself
be entitled to Chevron deference because it is not precedential
(as a one Board member decision). See Cervantes v. Holder, 597
F.3d 229, 233 n.5 (4th Cir. 2010).           But the underlying
interpretation is based on Matter of Le, which is a published
and precedential Board decision.      Chevron applies in these
circumstances.   See, e.g., Aguirre-Aguirre, 526 U.S. at 418,
424-25; Ramirez v. Holder, 609 F.3d 331, 333-34 (4th Cir. 2010).


                                            12
can “plausibly be read” to require the applicant to be under 21

on either the date the U.S. citizen fiancé files the original

petition or the date the K-2 visa application is filed with the

U.S. consulate.        Carpio, 592 F.3d at 1104.        As the Board found

in Matter of Le, the statute can reasonably be construed in yet

another way: setting eligibility as a “minor child” at the date

of entry into the United States.            25 I. & N. Dec. at 541.

       In light of these differing but plausible interpretations,

we join the Tenth Circuit and the Board in concluding that the

INA’s silence on the issue creates an ambiguity.                  There is no

plain   language   in    the   statute   that    resolves   the   question    at

issue here.      See Carpio, 592 F.3d at 1096 (“We agree with the

government that § 1255(d) is ambiguous with respect to the time

at which a K-2 visa holder must be under twenty-one to qualify

for an adjustment of status.”); Matter of Le, 25 I. & N. Dec. at

543-44 (recognizing a statutory ambiguity regarding “the time at

which the fiance(e) derivative child’s age is fixed for purposes

of establishing adjustment eligibility”).

       Having found the statute to be ambiguous, we proceed to the

next    step   under    Chevron   to     determine   whether      the    Board’s

interpretation     is     a    “permissible      construction,”         and   not

“arbitrary, capricious, or manifestly contrary to the statute.”

467 U.S. at 843-44.       In Matter of Le, the Board offered several

reasons why a K-2 visa holder’s age on the date of his actual

                                       13
admission should control eligibility for adjustment of status as

a “minor child.”           First, the Board reasoned that the date of an

alien’s     entry         into     the    United     States      “best      marks     visa

eligibility       and     availability,      because      ‘events     that     may    occur

between visa issuance and admission could extinguish the visa.’”

Matter of Le, 25 I. & N. Dec. at 545 (quoting Matter of Sesay,

25 I. & N. Dec. at 440).                  Relatedly, the Board noted that the

entry     date      is     the     best    determining       point     “because       visa

eligibility is reassessed upon application for admission at the

port of entry.”          Id.

        As to K-2 visa holders in particular, the Board further

observed that the gap between issuance of the visa and admission

“provides      an    additional          opportunity      for   the    parent’s        visa

validity to be extinguished, which would, in turn, render the

child inadmissible even though a K-2 visa had been issued.”                            Id.

The    Board     considered        this    factor    important       because    the    Act

permits    a     minor     child    to    follow    the   parent     into    the     United

States at a later date, id., as Regis did in this case.

        Finally, the Board pointed to language elsewhere in the Act

that    supports         its   interpretation.            Specifically,      the     final

sentence of 8 U.S.C. § 1184(d)(1) provides that an alien fiancée

and her minor children must depart the United States if the

marriage does not occur “within three months after the admission

of the said alien and minor children.”                          This provision, the

                                             14
Board reasoned, “highlights the significance of admission” for

determining an alien’s eligibility for adjustment.                               Matter of

Le, 25 I. & N. Dec. at 545.

       Far      from    being         arbitrary,       capricious,     or    manifestly

contrary to the statute, we find the Board’s determination of

“minor child” status in Matter of Le well-reasoned.                         The Board’s

analysis        embraces        the     existing       statutory      and    regulatory

framework and reaches a result consistent with that framework.

The Board’s interpretation of the INA –- that a K-2 visa holder

seeking adjustment of status must be under 21 at the time of

admission -- is therefore a permissible construction and is owed

deference under Chevron.               Accordingly, because Regis was over 21

when       he   entered    the        United        States,   his     application      for

adjustment       of    status    was     properly      denied   and    he   is    properly

removable.

       Relying on the Tenth Circuit’s decision in Carpio, Regis

insists that his eligibility for adjustment should have been

determined based on his age when he applied for the K-2 visa. 3


       3
       Regis also appears to make what can be best characterized
as an estoppel argument. He contends that because the “ultimate
purpose” of the K-2 visa is adjustment, the Consulate erred by
issuing him a visa that remained “valid” until well after his
21st birthday.    He argues that he was justified in relying on
and travelling within this validity period and should not be
denied adjustment.     However, as counsel conceded at oral
argument, the issue was not properly raised below. “It is well
established that an ‘alien must raise each argument to the
(Continued)
                                               15
As noted above, the Board rejected this argument because Carpio

would be controlling only in the Tenth Circuit and because the

Board’s precedential interpretation in Matter of Le now decides

the   issue.     See   Nat’l    Cable       &   Telecomms.       Ass’n      v.   Brand   X

Internet   Servs.,     545    U.S.    967,      982   (2005)    (“A    court’s      prior

judicial construction of a statute trumps an agency construction

otherwise entitled to Chevron deference only if the prior court

decision      holds    that     its        construction        follows       from     the

unambiguous terms of the statute and thus leaves no room for

agency discretion.”).         We find particularly noteworthy that the

Tenth Circuit decided Carpio without the benefit of the Board’s

subsequent     precedential     decision        in    Matter    of    Le.        Although

Carpio sets forth a reasonable interpretation of the statute, we

are   bound    under   Chevron        to    defer     to   the       Board’s      equally

reasonable construction.




[Board] before we have jurisdiction to consider it.” Kporlor v.
Holder, 597 F.3d 222, 226 (4th Cir. 2010) (quoting Gandziami–
Mickhou v. Gonzales, 445 F.3d 351, 359 n.2 (4th Cir. 2006)). In
view of Regis’ waiver concession, we do not consider this issue,
but also note the general inapplicability of an estoppel
argument against the government, at least absent “affirmative
misconduct.”   See Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir.
2003) (“[T]he [Supreme] Court’s decisions indicate that estoppel
may only be justified, if ever, in the presence of affirmative
misconduct by government agents.”).



                                           16
                            III.

     For all these reasons, Regis’ petition for review of the

Board’s decision is

                                                      DENIED.




                             17
