Feimei Li v. Renaud

10-2560-cv
Li v. Renaud

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________

August Term, 2010

(Argued: May 12, 2011 Decided: June 30, 2011 )

Docket No. 10-2560-cv
____________________

FEIMEI LI, DUO CEN,

Plaintiffs-Appellants,

-v.-

DANIEL M. RENAUD, Director, Vermont Service Center, United States
Citizenship & Immigration Services, ALEJANDRO MAYORKAS, Director,
United States Citizenship & Immigration Services, ERIC H. HOLDER, JR.,
United States Attorney General, JANET NAPOLITANO,

Defendants-Appellees.
_____________________

Before: WINTER, POOLER, B.D. PARKER, Circuit Judges.

Plaintiffs-Appellants appeal the judgment of the District Court for the Southern District

of New York (Marrero, J.), dismissing their complaint for failure to state a claim. Plaintiffs-

Appellants argue that the Child Status Protection Act, and in particular 8 U.S.C. § 1153(h)(3),

entitles Duo Cen, an alien who aged out of eligibility for an immigrant visa as a derivative

beneficiary to his grandfather’s 1994 petition, to retain the 1994 priority date for his mother’s

2008 family-sponsored petition for Duo Cen. We disagree. Section 1153(h)(3) does not entitle

an alien to retain the priority date of an aged-out family preference petition if the aged-out family

preference petition cannot be “converted to [an] appropriate category.” Affirmed.
________________

Scott E. Bratton, Margaret Wong & Associates Co., LPA,
Cleveland, OH, for Appellants.
 David Bober, Sarah S. Normand (on the brief), Assistant United
States Attorneys, for Preet Bharara, United States Attorney,
Southern District of New York, New York, NY, for Appellees.

Mary Kenney, Beth Werlin, American Immigration Council,
Washington, DC, for Amicus Curiae American Immigration
Council and American Immigration Lawyers Association.

Nancy Morawetz, Washington Square Legal Services, Inc., New
York, NY, for Amicus Curiae Mohammed Golam Azam.

POOLER, Circuit Judge:

Plaintiffs-Appellants appeal the judgment of the District Court for the Southern District

of New York (Marrero, J.), dismissing their complaint for failure to state a claim. Plaintiffs-

Appellants argue that the Child Status Protection Act, and in particular 8 U.S.C. § 1153(h)(3),

entitles Duo Cen, an alien who aged out of eligibility for an immigrant visa as a derivative

beneficiary to his grandfather’s 1994 petition, to retain the 1994 priority date for his mother’s

2008 family-sponsored petition for Duo Cen. We disagree. Section 1153(h)(3) does not entitle

an alien to retain the priority date of an aged-out family preference petition if the aged-out family

preference petition cannot be “converted to [an] appropriate category.” Because Plaintiffs-

Appellants have specified no “appropriate category” to which Duo Cen’s grandfather’s petition

could be converted, Section 1153(h)(3) does not entitle him to retain the 1994 priority date from

his grandfather’s petition.

I.

A.

In 1952, Congress enacted the Immigration and Nationality Act (“INA”), establishing the

basic structure of today’s immigration laws. Pub. L. No. 82-414, 66 Stat. 163 (1952). Three

main features are relevant here. The Act (1) set a limit on the total number of immigrant visas

available; (2) continued and codified the national origins quota system established by the

Immigration Act of 1924, Pub. L. No. 68-139, 43 Stat. 153, which set maximum quotas for

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immigrant visas based on the nation of the immigrant’s birth (or, if the immigrant was part of

“the Asia-Pacific triangle,” based on the immigrant’s race); and (3) established a family

preference system that applied to each national origins quota category – 30% of each quota

category was set aside for parents of United States citizens and an additional 20% of each quota

category was set aside for spouses or children of lawfully admitted permanent residents of the

United States (“LPRs”). Pub. L. No. 82-414, §§ 202-03, 66 Stat. 163, 176-79 (1952). Although

brothers, sisters, sons, and daughters of United States citizens were not guaranteed quota slots,

they did receive a preference for any unused quotas. Id. § 203(a)(4), 66 Stat. at 178-79.

In 1965, concerned about discrimination on the basis of “race, sex, nationality, place of

birth, or place of residence,” Congress repealed the national origins quota system. Act of Oct. 3,

1965, Pub. L. No. 89-236, § 2, 79 Stat. 911, 911-12. Instead, Congress substituted a generally

uniform limit of 20,000 immigrants per year from any one country. Id.

Today, the INA specifies (1) a worldwide limitation on the total number of family-

sponsored immigrant visas issued each year, 8 U.S.C. § 1151(c); (2) preference categories for

certain types of family members of citizens and LPRs, id. § 1153(a); (3) numerical limitations on

the number of family-sponsored immigrant visas in each family preference category, id.; and (4)

a generally uniform limitation that natives of any single foreign state not constitute more than

7% of the visas granted to family-sponsored immigrants, id. § 1152(a)(2). Unlike other types of

family-sponsored immigrants, immediate relatives of United States citizens are not subject to

either the numerical limitations per country or the worldwide level of total visas granted per

year. Id. § 1151(b). Moreover, additional visas are available for immigrants of countries that

recently have sent few immigrants to the United States. Id. § 1153(c)(1)(B).

At all times relevant to this appeal, the INA provided the following family

preference categories:

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 F1: unmarried son or daughter of U.S. citizen
F2A: spouses or children of LPR, where a child is an unmarried
person under 21 (with some exceptions)
F2B: unmarried son or daughter of LPR
F3: married son or daughter of U.S. citizen
F4: brother or sister of U.S. citizen

See id. § 1153(a).

Under the INA, a citizen or LPR who desires that a family member receive an immigrant

visa must file a petition with the United States Citizenship and Immigration Services (“USCIS”).

Id. § 1154(a)(1). The citizen or LPR who files the petition is the petitioner and the sponsored

immigrant is the primary beneficiary. Generally, an immigrant cannot self-petition but must be

sponsored by a family member who is a citizen or LPR. If the sponsored immigrant – the

primary beneficiary – has a spouse or child accompanying or following to join, that spouse or

child is eligible to receive, as a derivative beneficiary, the same status as the primary beneficiary

when the primary beneficiary receives her visa. Id. § 1153(d).

When a citizen or LPR files a petition on behalf of an immigrant, USCIS determines

whether the immigrant is qualified to be a beneficiary. Id. § 1154(b). Once the beneficiary is

deemed qualified, USCIS approves the petition. See Drax v. Reno, 338 F.3d 98, 114 (2d Cir.

2003); accord Bolvito v. Mukasey, 527 F.3d 428, 430 (5th Cir. 2008).

USCIS’s approval of a petition does not automatically cause the agency to issue a visa or

grant permanent lawful resident status to the beneficiary; instead, the beneficiary receives a place

in line to wait for a visa. Bolvito, 527 F.3d at 431 n.4. Within preference categories, immigrant

visas are issued to beneficiaries on a first-come-first-served basis, in order of the date the

petition was filed (the petition’s priority date). Given the annual limitations on the total number

of visas that may be granted for a particular family preference category – and on the number of

natives of a single country who may receive visas – the waiting line to receive a visa often is

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long. The number of family preference petitions each year for visas for Chinese immigrants, for

example, far exceeds the numerical limitations for each family preference category. It is not

uncommon for such immigrants to wait a decade or more after USCIS granted the petition to

receive a visa.

B.

This regime, however, could have anomalous results. Eligibility was determined on the

date a visa became available, not when a petition was filed or approved. Thus, before August

2002, an immigrant might have waited in line for a visa for years only to lose his or her spot.

The reason was that at the time a visa became available, an immigrant sponsored by a family

member may no longer have been the spouse, child, or unmarried son or daughter of the

petitioner. If so, the immigrant was no longer eligible for a visa.

Child beneficiaries were especially affected by the long delays before a visa became

available. Many children “aged-out” of their status as a “child” – that is, after waiting years to

receive a visa, they were no longer under 21 years of age, and thus were not eligible to receive a

visa as a “child” of the petitioner. See 8 U.S.C. § 1101(b)(1) (defining “child”).

On August 6, 2002, Congress passed the Child Status Protection Act (“CSPA”) to

provide “age-out protection” to child beneficiaries. Pub. L. No. 107-208, 116 Stat. 927 (2002)

(codified at 8 U.S.C. §§ 1151(f), 1153(h), 1154(a)(1)(D), (k), 1157(c)(2), 1158(b)(3)). As is

relevant here, Congress focused on two separate periods of delay: (1) the time between when a

citizen or LPR sponsor filed a petition and USCIS granted the petition (USCIS processing

delay); and (2) the time between USCIS’s grant of the petition and the availability of a visa

(waiting time because of INA’s numerical limits per year). For the first delay, Congress

provided that the age of the immigrant on the date a visa became available would be reduced by

the number of days the petition was “pending” before USCIS (i.e., before the petition was

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granted or denied). 8 U.S.C.

§ 1153(h)(1). Thus, if USCIS took three years to grant a family petition filed when the child

beneficiary was 18 and a visa became available one year later, the beneficiary would be able to

receive the visa as a child beneficiary, despite the beneficiary’s age (22) at the time the visa

became available. For the second delay, Congress allowed immigrants whose age remained

above 21 years old after subtracting the period of USCIS processing delay to receive the benefit

of other preference categories for which they were eligible, while retaining their spot in line

(their priority date). Congress provided that for such beneficiaries:

the alien’s petition shall automatically be converted to the
appropriate category and the alien shall retain the original priority
date issued upon receipt of the original petition.

8 U.S.C. § 1153(h)(3).

This appeal turns on the interpretation of this provision.

II.

A.

On June 6, 1994, Yong Guang Li, a lawful permanent resident of the United States, filed

a family preference petition naming his unmarried adult daughter Feimei Li as the primary

beneficiary. Feimei Li’s 14-year-old child, Duo Cen (“Cen”), qualified as a derivative

beneficiary of Yong Guang Li’s 1994 petition.

On April 4, 1995, the INS approved the 1994 petition for Feimei Li, its primary

beneficiary. The INS set a priority date of June 6, 1994. At the time the petition was approved,

Cen was 15 years old and thus remained a “child” for purposes of the INA.

Because of a significant waiting line for those in the F2B family preference category,

Feimei Li did not receive a visa until March 2005. At that time, Cen was 26 years old. [Id.]

Because he was no longer a “child” under the INA, he could not derive beneficiary status from

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the 1994 petition. Thus, Cen had “aged out” of derivative beneficiary status before he could be

granted a visa on that ground.

Three years later, on April 25, 2008, Feimei Li, a lawful permanent resident, filed a

family preference petition naming Cen, her unmarried adult son, as the primary beneficiary. In a

cover letter that accompanied the 2008 petition, Feimei Li requested a priority date of June 6,

1994. Feimei Li argued that Cen was entitled to the priority date of her father’s 1994 petition,

under which Cen was a derivative beneficiary before aging out.

USCIS approved Feimei Li’s 2008 petition on August 7, 2008. However, USCIS

established the priority date as April 25, 2008, rather than the 1994 date requested by Feimei Li.

If USCIS had given the petition a 1994 priority date, Cen would have received a visa

immediately. However, because the petition was given a 2008 priority date, the Department of

State estimates that based on current processing times Cen will have to wait until 2017 for a visa.

B.

On September 4, 2008, Feimei Li and Cen filed suit, alleging that USCIS misinterpreted

a provision of the Child Status Protection Act, codified at 8 U.S.C. § 1153(h)(3), in setting the

priority date for Li’s 2008 petition. Feimei Li and Cen sued the director of USCIS’s Vermont

Service Center, the acting director of USCIS, the U.S. Attorney General, and the secretary of

Department of Homeland Security (“DHS”) (collectively, “Defendants”). Defendants moved to

dismiss the complaint for failure to state a claim, arguing that neither Feimei Li nor Cen had a

statutory right to have Feimei Li’s 2008 petition receive a 1994 priority date.

On April 27, 2010, the district court granted Defendants’ motion to dismiss. Applying

the two-step framework articulated by Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837 (1984), the district court first found that Section 1153(h)(3) was ambiguous

because it “does not explicitly articulate which petitions qualify for [automatic conversion and

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priority date retention].” Feimei Li v. Renaud, 709 F. Supp. 2d 230, 237 (S.D.N.Y. 2010). The

district court then deferred to the BIA’s interpretation of Section 1153(h)(3) in Matter of Wang,

25 I. & N. Dec. 28 (BIA 2009), because it found such interpretation reasonable. Feimei Li, 709

F. Supp. 2d at 241.

In Wang, the BIA held that “automatic conversion,” as the term is used in Section

1153(h)(3), means an automatic change in beneficiary classification “without the need to file a

new visa petition.” Wang, 25 I. & N. Dec. at 34-35. The BIA relied on “the relevant provisions

of 8 C.F.R. § 204.2(i), which have been in effect since 1987, [and which] provide for the

‘automatic conversion of preference classification’ from one preference category to another upon

the occurrence of certain events.” Id. at 34. Similarly, and based on 8 C.F.R. § 204.2(a)(4), the

BIA construed the word “retention” to apply only to “visa petitions filed by the same family

member.” Id. at 35. Accordingly, the BIA held that the automatic conversion and priority date

retention provisions of Section 1153(h)(3) do not apply to an alien who ages out of eligibility for

an immigrant visa as a derivative beneficiary, and on whose behalf a second family preference

petition is later filed by a different petitioner. Id. at 38-39.

Feimei Li and Cen timely appealed the district court’s dismissal of their complaint.

Because Cen does not challenge the district court’s dismissal of his complaint for lack of

standing, the argument is waived and his appeal is dismissed on that issue. See, e.g., In re

Wireless Data, Inc., 547 F.3d 484, 492 (2d Cir. 2008) (argument not raised on appeal is waived).

III.

A.

Feimei Li argues that her son Cen “should have been assigned a priority date of 1994

rather than 2008 under the Child Status Protection Act.” As relevant here, the CSPA provides

partial relief for child beneficiaries from both USCIS processing delay and the time they must

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wait to receive a visa. For the first such delay, 8 U.S.C. § 1153(h)(1) subtracts from a child

beneficiary’s age the time during which the applicable petition was pending:

For the purposes of subsections (a)(2)(A) [spouses and children of
lawful permanent residents] and (d) [derivative beneficiaries] of
this section, a determination of whether an alien satisfies the age
requirement [as a child] shall be made using –
(A) the age of the alien on the date on which an immigrant
visa number becomes available for such alien (or, in the
case of subsection (d) of this section, the date on which an
immigrant visa number became available for the alien’s
parent), . . . ; reduced by
(B) the number of days in the period during which the
applicable petition described in paragraph (2) was pending.

Id. § 1153(h)(1). As specified by Section 1153(h)(2), this calculation applies to certain types of

pending petitions:

(A) with respect to a relationship described in subsection
(a)(2)(A) of this section [spouses and children of lawful
permanent residents], a petition filed under section 1154 of
this title for classification of an alien child under subsection
(a)(2)(A) of this section; or
(B) with respect to an alien child who is a derivative
beneficiary under subsection (d) of this section, a petition
filed under Section 1154 of this title for classification of the
alien’s parent . . . .

Id. § 1153(h)(2).

This calculation applies to Cen, who was a derivative beneficiary of his grandfather’s

1994 petition for classification of Cen’s mother, Feimei Li. However, the parties agree that

because the 1994 petition was pending before USCIS for less than one year, and a visa became

available only when Cen was 26, Cen’s age for purposes of Section 1153 remains over 21 years

old despite the calculation.

Therefore, Feimei Li’s appeal centers on Section 1153(h)(3), which allows certain

beneficiaries to retain the priority date of a petition of which they have aged out while waiting

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for a visa to become available. In particular, Section 1153(h)(3) provides that:

If the age of an alien is determined under paragraph (1) to be 21
years of age or older for the purposes of subsections (a)(2)(A) and
(d) of this section, the alien’s petition shall automatically be
converted to the appropriate category and the alien shall retain the
original priority date issued upon receipt of the original petition.

Id.

Feimei Li principally argues that the 1994 petition by her father, Yong Guang Li, of

which her son Cen was the derivative beneficiary, should “automatically convert” to a different

petition – the 2008 petition by Feimei Li for Cen as an unmarried son – and that Cen should be

allowed to retain the original priority date of her father’s 1994 petition. Feimei Li acknowledges

that Cen was not eligible as a beneficiary under another category of her father’s 1994 petition

because the INA lacks a family preference category for grandchildren. However, Feimei Li

argues that this provision, like “many other sections of immigration law,” “permit[s] conversion

and retention of a priority date where the petitioner is not the same.”

Amici curiae American Immigration Council (“AIC”) and the American Immigration

Lawyers Association (“AILA”) offer a second interpretation of Section 1153(h)(3) that would

allow Cen to retain the 1994 petition’s priority date. AIC and AILA argue that automatic

conversion and retention of priority dates “are distinct and independent benefits.” Therefore,

because Cen was a derivative beneficiary to Yong Guang Li’s petition, but then aged-out, Cen

can “retain” that priority date to use for a future petition listing him as a beneficiary.

The Government disputes both Feimei Li’s and amici curiae’s interpretations. Instead,

the Government argues that Section 1153(h)(3) is ambiguous and this Court should defer to the

BIA’s interpretation of the provision in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009).

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 B.

1.

We first consider what weight to accord the BIA’s interpretation of Section 1153(h)(3) in

Wang. Pursuant to its delegated authority, the BIA interpreted the INA in a formal adjudication.

See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999) (Congress delegated the BIA the

authority to interpret the INA). Therefore, we evaluate the BIA’s interpretation according to

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). See United States

v. Mead Corp., 533 U.S. 218, 229-30 (2001) (specifying when Chevron deference is

appropriate).

Pursuant to Chevron, we first determine “whether Congress has directly spoken to the

precise question at issue.” 467 U.S. at 842. If so, “that is the end of the matter” because this

Court “must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. In

evaluating whether Congress has directly spoken to the issue, a reviewing court must first

exhaust the “traditional tools of statutory construction.” Id. at 843 n.9. “If, in light of its text,

legislative history, structure, and purpose, a statute is found to be plain in its meaning, then

Congress has expressed its intention as to the question, and deference is not appropriate.”

Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1287 (D.C. Cir. 2000) (internal quotation marks

omitted); see also Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) (“[Chevron]

deference to [an agency’s] statutory interpretation is called for only when the devices of judicial

construction have been tried and found to yield no clear sense of congressional intent.”). If,

instead, congressional intent is ambiguous after exhausting the traditional tools of statutory

construction, the reviewing court must then determine whether the agency’s construction is

reasonable. Chevron, 467 U.S. at 844.

Here, the district court found that Section 1153(h)(3) was ambiguous because “it refers

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only vaguely to ‘petitions’ that qualify for automatic conversion and Priority Date retention, but

does not explicitly articulate which petitions qualify for this favorable treatment.” Feimei Li,

709 F. Supp. 2d at 237. However, an alleged ambiguity in some part of the statutory provision at

issue does not end the inquiry. Even absent “explicit[] articulat[ion]” of all components of a

statutory provision, id., a reviewing court must still ask whether Congress has spoken to “the

precise question at issue” in the case. Chevron, 467 U.S. at 842. Here, the “precise question at

issue” is whether a derivative beneficiary who ages out of one family preference petition may

retain the priority date of that petition to use for a different family preference petition filed by a

different petitioner.1 Applying the traditional tools of statutory construction, as explained below,

we find that Congress’s intent on this point was clear. Section 1153(h)(3) does not entitle an

alien to retain the priority date of an aged-out family preference petition if the aged-out family

preference petition cannot be “converted to [an] appropriate category.” Therefore, deference to

the BIA’s interpretation of Section 1153(h)(3) is not appropriate in this case.

2.

As an initial matter, we reject amici curiae AIC and AILA’s argument that automatic

conversion and retention of priority dates “are distinct and independent benefits” provided by

Section 1153(h)(3).

The text of Section 1153(h)(3) belies this interpretation. The provision has a relative

simple sentence structure: If X, [then] A and B. As relevant here, if the alien’s age as calculated

without USCIS processing delay is 21 years or older, then “[A] the alien’s petition shall

1
Amicus curiae Mohammed Golam Azam urges this panel to limit our opinion to the
context of family preference petitions, without opining on the applicability of Section 1153(h)(3)
to employment petitions. The Government agrees, noting that this issue is not relevant to this
case and was not raised before the district court or in the parties’ briefs to this Court. We, too,
agree and leave the issue for another day.

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automatically be converted to the appropriate category and [B] the alien shall retain the original

priority date issued upon receipt of the original petition.” 8 U.S.C. § 1153(h)(3) (emphasis and

bracketed numbers added). Although in some situations we can read “and” to mean “or,”

Section 1153(h)(3) was structured to avoid that result in this case. Congress could have, but did

not, provide beneficiaries the option to select either conversion or retention or both. Instead,

Congress specified both an automatic conversion to a different category and a retention of the

original priority date.

Other provisions in the CSPA – which enacted Section 1153(h)(3) – indicate that

Congress intended to structure Section 1153(h)(3) as “If X, [then] A and B.” For example,

Section 6 of the CSPA, codified as 8 U.S.C. § 1154(k), separates the conversion and retention

benefits so that a beneficiary could choose whether or not to convert the petition. This provision

allows a beneficiary to avoid a conversion that would place them in a longer line to receive a

visa. Under prior law, when a sponsoring parent of an adult son or daughter naturalized, the

petition was converted from F2B (adult son/daughter of LPR) to F1 (adult son/daughter of

citizen) – a conversion that at the time forced sons and daughters of Phillipine parents to wait in

a longer line to receive a visa. H.R. Rep. No. 107-807 at 55-56 (2003). CSPA “fixe[d]” this

“troubling anomaly in the immigration law.” Id. In general, if an LPR petitions for her

unmarried son or daughter (an F2B petition), and the LPR later becomes a citizen before the son

or daughter receives a visa, then the petition “shall be converted” to a petition for an unmarried

son or daughter of a citizen (an F1 petition). 8 U.S.C. § 1154(k)(1). However, Section

1154(k)(2) explicitly provides that a beneficiary in that situation may “elect[] not to have such

conversion occur (or if it has occurred, to have such conversion revoked).” Id. § 1154(k)(2). As

the next paragraph in Section 1154(k) makes clear, “[r]egardless of whether a petition is

converted under this subsection or not,” such a beneficiary “may maintain” the priority date

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associated with the original petition. Id. § 1154(k)(3).

Thus, in Section 1154(k), Congress chose to make conversion and retention distinct and

independent benefits. Congress did so with language appropriate for such a purpose, specifying

that conversion is optional and may be revoked, and that a beneficiary may maintain the original

petition’s priority date regardless of whether the petition is converted. Id. §§ 1154(k)(1)-(3). In

contrast, Congress chose to require both conversion and retention in Section 1153(h)(3).

Congress was aware of the possibility of making the benefits “distinct and independent” and we

cannot assume that Congress unintentionally failed to do so. In the same statute, passed on the

same day, Congress chose to couple conversion and retention in one context and decouple the

benefits in another context. We cannot ignore Congress’s clearly expressed intent.

3.

Because Section 1153(h)(3) requires both automatic conversion to the appropriate

category and retention of the original petition’s priority date, we must decide whether such

conversion was possible in this case.

The text of Section 1153(h)(3) requires that a petition automatically be “converted to the

appropriate category.” This phrase rules out “converting” Li’s petition naming Cen as a

derivative beneficiary into Feimei Li’s petition naming Cen as an unmarried son of an LPR.

Such a change would not be a conversion “to the appropriate category.” As used in the CSPA

and prior regulations, the phrase conversion to an appropriate category refers to a petition in

which the category is changed, but not the petitioner. For example, 8 C.F.R. § 204.2(i) lists three

types of situations in which a petition will convert from one category to another – change in

marital status, attainment of age 21, and petitioner’s naturalization. Id. §§ 204.2(i)(1)-(3). For

each, the petitioner stays the same and the beneficiary is able to take advantage of a different

category. The same is true for the CSPA. Each time the Act uses the word “conversion” it

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describes a change – without need for an additional petition – from one classification to another,

not from one person’s family-sponsored petition to another. See CSPA, Pub. L. 107-208, §

2(f)(2), 116 Stat. 927, 927 (2002) (codified at 8 U.S.C. § 1151(f)(2)) (conversion from F2A to

immediate relative petition); id. § 2(f)(3) (codified at 8 U.S.C. § 1151(f)(3)) (conversion from F3

to F1 or from F3 to immediate relative petition); id. § 6(k)(1) (codified at 8 U.S.C. § 1154(k)(1))

(conversion from F2B to F1). Section 1153(h)(3) is explicit on this point, specifying that the

conversion is “to the appropriate category,” not to a different family-sponsored petition by a

different petitioner.

Feimei Li also argues that “many other sections of immigration law permit[] conversion

and retention of a priority date where the petitioner is not the same.” However, the statutory

language Feimei Li cites is meaningfully different than the language of Section 1153(h)(3).

Feimei Li is unable to cite a statutory provision or regulation that uses the term “convert[] to the

appropriate category” – or any form of the word “convert” – with respect to petitions filed by

different petitioners. For example, Feimei Li cites 8 C.F.R. § 204.5(e), which deals with “the

event that the alien is the beneficiary of multiple [employment-based] petitions” and provides

that “the alien shall be entitled to the earliest priority date.” Nowhere in the regulation is the

word convert mentioned – nor is it needed, since the beneficiary simply is able to use the earliest

priority date. See also 8 C.F.R. § 204.12(f)(1) (allowing alien doctor working in medically-

underserved area who changes jobs to retain priority date of prior employer’s petition).

In addition, Feimei Li cites instances in which immigrants are allowed to self-petition.

One example is when an alien is a beneficiary to a petition filed by an abusive spouse or parent.

To prevent the abusive party from using the immigration benefit to coerce and threaten the

beneficiary, victims of abuse may self-petition and use the earlier priority date for the self-

petition. Id. § 204.2(h)(2). The specific language used in the regulations is “transfer the visa

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petition’s priority date to the self-petition.” Id. This language expresses a different intent than

Section 1153(h)(3), which provides for a “conversion” “to the appropriate category” and

“retention” of the priority date. Because we must give effect to Congress’s unambiguously

expressed intent, we cannot ignore the meaningful differences between the language quoted by

Feimei Li and the language that Congress used in Section 1153(h)(3).

In sum, the phrase “convert[] to the appropriate category” is a required part of Section

1153(h)(3) and does not encompass transformations of a petition filed by one family sponsor to a

petition filed by another family sponsor. For Yong Guang Li’s 1994 petition, there is no

“appropriate category” to which to convert Cen, who was a derivative beneficiary of that

petition, as Yong Guang Li’s grandson. Because there is no family preference category for

grandchildren of LPRs, and Cen has not specified a category that would be appropriate, Cen

cannot be converted to an “appropriate category” with respect to his grandfather’s petition.

Therefore, Cen is not eligible under Section 1153(h)(3) to retain the 1994 priority date of his

grandfather’s petition. Accordingly, the district court did not err in dismissing Feimei Li’s

complaint for failure to state a claim.

IV.

For the foregoing reasons, we AFFIRM the judgment of the district court.

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