[00:00:00] Speaker 04:
24-1431, Dekovic versus Rubio.

[00:00:07] Speaker 02:
Mark Barb, Lector Immigration for the Appellants.

[00:00:11] Speaker 02:
If Ms.

[00:00:11] Speaker 02:
Dekovic had not become a U.S.

[00:00:14] Speaker 02:
citizen, her son, Alejandro, would have been able to immigrate to the United States as the minor son of an LPR.

[00:00:23] Speaker 02:
Even though he would have been well over the age of 21 at the time he became an LPR himself, his age was frozen in the F2A category by virtue of the Age Out Protections of the Child Status Protection Act, or CSPA.

[00:00:39] Speaker 02:
However, because Mr. Kovach became a citizen before her son's visa interview, the government contends that those age-out protections were stripped from Alejandro, and he now must wait many, many more years until he can join the rest of his family in the United States.

[00:00:59] Speaker 02:
Such an interpretation violates the text, structure, and purpose of the CSBA and should not be upheld.

[00:01:05] Speaker 04:
Where did the delay?

[00:01:07] Speaker 04:
Which delay is the statute trying to get at?

[00:01:12] Speaker 02:
The processing time for USCIS to adjudicate a family petition to prove the existence of that family relationship.

[00:01:20] Speaker 04:
OK, what if, I mean, there could be harsh results for someone who's a US citizen if their child, if they became naturalized at a

[00:01:33] Speaker 04:
you know, when their child was close to age 21 and there was a delay?

[00:01:37] Speaker 02:
Well, no.

[00:01:40] Speaker 02:
If a person is a U.S.

[00:01:42] Speaker 02:
citizen and they file an I-130, a petition for their child, when they are still under 21, CSBA will freeze the date, the age of that child.

[00:01:54] Speaker 04:
Based on their biological age?

[00:02:00] Speaker 04:
Yes.

[00:02:00] Speaker 04:
Right.

[00:02:01] Speaker 02:
Okay.

[00:02:02] Speaker 02:
Fair enough.

[00:02:06] Speaker 02:
Using traditional tools of statutory construction, it is clear that Congress did not intend to penalize this unique subset of F2A children.

[00:02:16] Speaker 01:
Can you discuss why we shouldn't be persuaded by sort of the way that the district court reasoned through the textual argument here that there isn't a cross reference and immigration law, immigration statutes are complex and have many invocations of what a child is.

[00:02:36] Speaker 01:
And so we really do rely on sort of an integrative statutory presentation in the text.

[00:02:43] Speaker 01:
And here we don't have that.

[00:02:45] Speaker 02:
Absolutely.

[00:02:46] Speaker 02:
It is notoriously complex.

[00:02:48] Speaker 02:
And I also wish Congress could have been a little more clear.

[00:02:53] Speaker 02:
But I think they were clear enough.

[00:02:54] Speaker 02:
The district court judge relied on the plain text of 1151F2.

[00:03:01] Speaker 02:
As three other circuits have cautioned, however, analyzing the use of the word age

[00:03:08] Speaker 02:
in that subsection must be done in connection with the entire statute to see how the different provisions interact with each other.

[00:03:17] Speaker 02:
I agree that if we only look in isolation at F2, it just says age.

[00:03:23] Speaker 02:
Congress doesn't explicitly say there should be a different method here.

[00:03:28] Speaker 02:
But when we do do that deeper dive and look into three other sections, I'm referring to 1101,

[00:03:36] Speaker 02:
B1, which is the default definition of child, which is biological in general.

[00:03:42] Speaker 02:
When the CSBA refers to child, they mean 21.

[00:03:46] Speaker 02:
However,

[00:03:47] Speaker 02:
1153H1 then provides a carve-out.

[00:03:51] Speaker 02:
And it's this particular class of people that we're talking about, people whose parents were green card holders and the beneficiaries, the children, were under 21 at the times their petitions were filed.

[00:04:04] Speaker 02:
For this discrete class of individuals, there's a different method.

[00:04:08] Speaker 02:
That method basically doesn't penalize these individuals for the amount of time it took USCIS to adjudicate their petitions.

[00:04:16] Speaker 04:
But that but that method is not textual.

[00:04:19] Speaker 04:
That method is built on case law, legislative history,

[00:04:26] Speaker 02:
I would respectfully disagree.

[00:04:28] Speaker 02:
I'm looking at other texts that talk about how to define this class.

[00:04:34] Speaker 02:
If I'm looking at F2, what's notable about that section is it only applies to F2A beneficiaries, people who started the process in the F2A category.

[00:04:46] Speaker 00:
Which is a lawful permanent resident, right?

[00:04:49] Speaker 02:
These would be the minor children, minor unmarried children of a lawful permanent resident.

[00:04:54] Speaker 02:
That's right, Your Honor.

[00:04:56] Speaker 00:
And that's what we have here, right?

[00:04:58] Speaker 02:
That is, that is absolutely correct.

[00:05:01] Speaker 00:
We have a lawful permanent resident.

[00:05:03] Speaker 00:
So this would have applied.

[00:05:06] Speaker 00:
And so the question becomes, what is the effect of it once there's a conversion to, they become a naturalized citizen?

[00:05:15] Speaker 02:
Right.

[00:05:16] Speaker 02:
Should the beneficiary be penalized for the fact that their parent became a citizen, or should they continue to have the same age-out protections that they previously demonstrated by showing that when you subtracted their

[00:05:32] Speaker 02:
the amount of time that was spent on the I-130 processing from their biological age at the time a visa first became available, they were under 21.

[00:05:41] Speaker 02:
So this particular person, Alejandro, had already obtained that benefit.

[00:05:46] Speaker 02:
He met the requirements.

[00:05:47] Speaker 02:
And so then to lose that simply because his parent went into what is generally supposed to be a more favorable position, the CSBA gives lots of preferences to

[00:06:00] Speaker 02:
family members of citizens.

[00:06:02] Speaker 00:
But now you're talking about the purpose of the act and legislative history.

[00:06:09] Speaker 00:
We first have to determine that the use of the word age in the statute is ambiguous before we can go there, don't we?

[00:06:22] Speaker 02:
Again, I would argue that it's unambiguous.

[00:06:26] Speaker 02:
Again, I think it's

[00:06:28] Speaker 02:
clear.

[00:06:29] Speaker 02:
I wish it were clearer.

[00:06:30] Speaker 02:
But when I look at those other three statutes, 1101B1, 1153H1, and 1151F1, and I read them in concert, they all inform

[00:06:43] Speaker 02:
how I decipher the use of the word age in F2.

[00:06:48] Speaker 02:
F2 can only apply to F2A beneficiaries.

[00:06:52] Speaker 02:
And the other section of the statute says, this is the special rule.

[00:06:55] Speaker 02:
This is the carve out that we have for F2A beneficiaries.

[00:06:59] Speaker 02:
And so it's incorporated into that meaning of the word age.

[00:07:03] Speaker 02:
This is different than an F1.

[00:07:04] Speaker 02:
F1 similarly can only apply to a discrete group of people.

[00:07:09] Speaker 02:
These are individuals who were under 21 when

[00:07:13] Speaker 02:
their citizen parent filed for them.

[00:07:15] Speaker 02:
In other words, they were immediate relatives from the get-go.

[00:07:19] Speaker 02:
So in that sense, age clearly means biological.

[00:07:22] Speaker 00:
So succinctly, would it be fair to say that your argument is that if you read the statute in context, that the age rule is based on what category the parent was in at the time they filed, and it doesn't change.

[00:07:42] Speaker 00:
So the parent here was an F2A applicant.

[00:07:49] Speaker 00:
They are in 1153H1 and they stay in that category because that's what they were when they filed.

[00:08:01] Speaker 02:
No, that's not right.

[00:08:04] Speaker 02:
No, they don't stay in the category, but the rules for deciding when they might convert to another category still rely upon that modified age calculation.

[00:08:15] Speaker 02:
Here, we're talking about a conversion, which we think should have been.

[00:08:18] Speaker 00:
Yeah, I think we're saying the same thing, which is that if you qualified because you filed F2A as a lawful permanent resident for a calculation based on 1153H1,

[00:08:34] Speaker 00:
That is how age is calculated.

[00:08:36] Speaker 00:
And my point is that calculation rule doesn't change just because you're naturalized during the waiting period.

[00:08:45] Speaker 02:
That's right, yes, I would agree with that.

[00:08:47] Speaker 01:
And your argument is that the text is unambiguous, correct?

[00:08:53] Speaker 01:
Yes.

[00:08:54] Speaker 01:
And that the reliance on the statutory scheme is a perfectly appropriate place to look, notwithstanding the absence of a cross-reference.

[00:09:05] Speaker 01:
Is that your argument?

[00:09:07] Speaker 02:
That's correct.

[00:09:10] Speaker 01:
Yes, and why I mean I think I'm a little bit stuck on on that it was the question that I asked you earlier and it seemed to be most persuasive to the district courts reading of the text that to endorse the argument that you're making, we would expect to see a cross reference in the text and we don't.

[00:09:29] Speaker 02:
Once again, I wish it would have been more clear, but we do see We see that we see the connections with this we see the connective tissue between these different statutes f2 for example references f1 f1 in turn references the default definition of child under 21 the biological age, but then

[00:09:53] Speaker 02:
1153H1 we know modifies 1101B1.

[00:09:58] Speaker 02:
So by connecting the dots, I think it does implicitly cross reference other statutes.

[00:10:07] Speaker 02:
It says, because this category of people in F2A is limited only to F2A,

[00:10:15] Speaker 02:
By connecting those dots, I must use the age calculation that Congress carved out for F2As.

[00:10:20] Speaker 02:
And once a person has achieved that protection, they met the requirements, they did the math, they're still under 21, they sought to acquire within a year, they don't lose that.

[00:10:37] Speaker 04:
This is really complicated and you're doing a really good job.

[00:10:42] Speaker 04:
What concerns me is that you want to pick and choose on what rights sort of go to your client.

[00:10:51] Speaker 04:
You want the age for someone who applied under F2A to apply, but you want then for the applicant to

[00:11:07] Speaker 04:
convert over into the process for a naturalized citizen where there wouldn't be a wait time, right?

[00:11:15] Speaker 04:
Correct.

[00:11:16] Speaker 04:
And that seems contradictory, doesn't it?

[00:11:20] Speaker 04:
I mean, if you want to freeze them in F2A status for AIDS, shouldn't you freeze them in F2A status for everything?

[00:11:29] Speaker 02:
That would be great.

[00:11:30] Speaker 02:
If my client stayed stuck in F2A, he'd be here now.

[00:11:35] Speaker 02:
But he didn't stay stuck in F2A.

[00:11:37] Speaker 04:
No, I understand that.

[00:11:38] Speaker 04:
But that has implications beyond this case.

[00:11:42] Speaker 04:
Because in other cases where somebody might be coming through the process, they might be stuck with a waiting period where they wouldn't if they moved into a naturalized citizen.

[00:11:56] Speaker 04:
F1, is that right?

[00:11:59] Speaker 02:
You're going to have to help me.

[00:12:00] Speaker 02:
Where are you headed on this?

[00:12:03] Speaker 04:
I'm not sure.

[00:12:03] Speaker 04:
Well, I'm just saying in some instances, the argument that you're making could work against somebody.

[00:12:10] Speaker 00:
If they freeze an F2A status, am I understanding correctly that they would have a choice on how it's calculated?

[00:12:26] Speaker 02:
So nobody is arguing here that their category remains at F2A.

[00:12:31] Speaker 02:
The options here are either that F2A converts to immediate relative, that's our position, as long as they satisfy the criteria under 1153H1, or they're converted under the government's interpretation to F1, which is another non-immediate relative category.

[00:12:52] Speaker 04:
And the reason why they do that, and that's all based on the age calculation.

[00:12:56] Speaker 04:
Correct.

[00:12:57] Speaker 04:
Right.

[00:12:57] Speaker 02:
And which age calculation applies?

[00:12:59] Speaker 04:
You want the age calculation, you want the naturalized citizen benefit for, they're becoming a citizen right now, or they get their visa right now, but you want the age calculation from the F2A person, right?

[00:13:17] Speaker 02:
Yes, the age calculation sticks to them.

[00:13:20] Speaker 02:
It doesn't go away.

[00:13:22] Speaker 02:
They met the criteria.

[00:13:23] Speaker 02:
Congress meant them meant for them to have it under the government's interpretation.

[00:13:27] Speaker 02:
It's taken away from them, right?

[00:13:30] Speaker 04:
No, I get that.

[00:13:31] Speaker 04:
And so I guess my whole point, which I haven't made very clearly is is what you're asking for is we end up cobbling together two different kinds of status here.

[00:13:41] Speaker 04:
We use the age from someone who has applied for a visa under the permanent legal resident category.

[00:13:47] Speaker 04:
But ultimately, they get their visa because their parent was naturalized as a citizen because it converted.

[00:13:58] Speaker 02:
It happens all the time that there are conversions of all different types.

[00:14:02] Speaker 02:
That's not an issue.

[00:14:04] Speaker 02:
There's no problems with conversion.

[00:14:06] Speaker 04:
Oh, I agree.

[00:14:07] Speaker 04:
But you only want to convert part of it.

[00:14:10] Speaker 02:
No, I want to convert the whole thing.

[00:14:12] Speaker 02:
I want to keep the age-out protections they were given for having satisfied the criteria and not penalize them when their parent naturalizes, which creates this

[00:14:23] Speaker 02:
weird group of people, all other F2As will be able to take advantage of that.

[00:14:28] Speaker 02:
People, F2As whose parents never naturalized, F2As whose parents did naturalize, but even under the biological, using the biological age, they're still children.

[00:14:39] Speaker 02:
They get those age out protections.

[00:14:41] Speaker 02:
But this little donut hole of people are penalized.

[00:14:44] Speaker 02:
And that's what I'm saying is unfair and is frankly not grounded in sufficiently in the statute.

[00:14:48] Speaker 01:
The CSPAs, turning away from the text to your sort of more purpose-driven arguments, I mean, if the CSPA's purpose is to avoid bureaucratic processing time, you don't want to avoid the delay caused by bureaucratic processing time, here, do we view naturalization in the same way?

[00:15:07] Speaker 01:
I mean, naturalization doesn't seem to be the sort of harm that the CSPA is targeted at ameliorating.

[00:15:17] Speaker 02:
No, the processing time of the naturalization application has no bearing on any of the... It's not my question on the processing time of the naturalization application, but the CSPA's purpose

[00:15:33] Speaker 01:
Is that the delay associated with bureaucratic processing time should not be held against the applicant and here naturalization is unlike bureaucratic delay caused by processing time right.

[00:15:49] Speaker 02:
It's different, but the consequence of the governance interpretation is that this person moved from a situation where, you're right, they were protected from not being penalized for bureaucratic delays, and then move into a category where they lose that protection.

[00:16:04] Speaker 02:
They now suddenly are harmed by those bureaucratic delays.

[00:16:10] Speaker 02:
And I think it's clear from the purpose of the CSBA that Congress was trying to avoid that.

[00:16:16] Speaker 04:
OK, thank you, counsel.

[00:16:23] Speaker 04:
Please proceed.

[00:16:24] Speaker 03:
Good morning, Your Honors.

[00:16:24] Speaker 03:
May it please the Court, Christopher Giger on behalf of the U.S.

[00:16:27] Speaker 03:
Secretary of State and Director of the National Visa Center.

[00:16:30] Speaker 03:
Your Honor, I have two points.

[00:16:32] Speaker 03:
First, as a threshold matter, this Court still should hold that the plaintiffs here have not challenged a final agency action because the initial visa classification is not the culmination of the agency's decision-making process.

[00:16:46] Speaker 01:
Let's talk about that for a second in relation to the other circuits that have passed on this question.

[00:16:53] Speaker 01:
So, in Cuthill, that was similarly procedurally postured to the case here.

[00:16:59] Speaker 01:
Do you agree?

[00:17:00] Speaker 01:
Yes.

[00:17:00] Speaker 01:
Okay.

[00:17:01] Speaker 01:
So, there was no final agency action issue there.

[00:17:07] Speaker 01:
It seems to me that the government's argument in support of non-reviewability assumed that should the case be postured like it is here, where the reclassification decision was made by the National Visa Center, you would have a final agency action.

[00:17:23] Speaker 01:
Do you disagree with that?

[00:17:24] Speaker 03:
I think there was an assumption in that case that there was final agency action, but ultimately it wasn't litigated in that case.

[00:17:32] Speaker 01:
Well, it's not so much what interests me and that I'd like to get your response to.

[00:17:36] Speaker 01:
It's not I'm not talking about some sort of litigation estoppel for the government or anything like that.

[00:17:40] Speaker 01:
But the the way in which your final agency argument proceeded in tell us.

[00:17:47] Speaker 01:
assumed that the reason you were arguing consular non-reviewability was because if it was the reclassification decision that we have here, there's no question it would just be final.

[00:17:58] Speaker 01:
There was nothing to litigate.

[00:17:59] Speaker 01:
It was just the antecedent premise of your argument there.

[00:18:03] Speaker 03:
In that case, Your Honor, I think that because the government took the position that there was a consular non-reviewability prevented litigation, or a preventive review, excuse me,

[00:18:20] Speaker 03:
It's still it that that position doesn't necessarily, I think, include the fact that there could still not be final agency action.

[00:18:29] Speaker 03:
I do recognize the point, but I think but because that wasn't actually litigated because that point wasn't Raised.

[00:18:35] Speaker 03:
It doesn't preclude this court from it doesn't preclude us from the government from deciding later arguing later that this is not a final agency action.

[00:18:42] Speaker 01:
Right.

[00:18:43] Speaker 01:
And again, I'm not at all suggesting that you're precluded in some way from making this argument.

[00:18:47] Speaker 01:
It just seems strange to me that the government's argument and tell us really attempted to advocate that the procedural the appropriate procedural posture for seeking review is precisely the one that we have here.

[00:19:00] Speaker 03:
I certainly take that point, Your Honor.

[00:19:02] Speaker 03:
However, I do think that

[00:19:05] Speaker 03:
I mean, Tela's also explained that this was not, I think it ultimately supports that it wasn't a final agency action, because the court determined that there wasn't a consular officer that made a final decision, that made a decision that would then prevent review.

[00:19:21] Speaker 03:
And I think part of that, to kind of segue into the point here, that this is not the culmination of the agency's decision-making process,

[00:19:30] Speaker 03:
This is ultimately only an initial classification that is still subject to change.

[00:19:34] Speaker 01:
What is the recourse if we agree with you that there's nothing final here?

[00:19:37] Speaker 03:
Then the court should not address the statutory interpretation and the court would reverse the district court's holding.

[00:19:49] Speaker 01:
Right.

[00:19:51] Speaker 01:
To be more clear, not what our mandate is, what is the recourse for the petitioner?

[00:19:55] Speaker 03:
he would not be able to bring suit until a consular officer and until a visa until his visa application is ruled on.

[00:20:04] Speaker 03:
That is our position that that is the culmination of the agencies.

[00:20:08] Speaker 00:
That would be I mean that could 20 years could be as much as 20 years here.

[00:20:14] Speaker 00:
It would depend on if he remains in country of origin and the but but I mean we're talking decades.

[00:20:22] Speaker 03:
that.

[00:20:23] Speaker 03:
Uh potentially, I would ultimately depend on the priority date and whether or not Mr Jimenez would remain in the F one preference category or if he would get married and change to the F three preference category, which that point ultimately is part of part and parcel to the fact that this is not the final decision because it is still subject to

[00:20:52] Speaker 03:
The rights and obligations that flow from the preference category, or excuse me, these are not rights and obligations that flow.

[00:20:58] Speaker 03:
Rather, as the Supreme Court has described, this is merely marking Mr. Jimenez's place in line.

[00:21:03] Speaker 03:
And his rights to a visa and to apply for a visa are no different now than they would be years from now when a visa becomes available.

[00:21:12] Speaker 03:
Rather, the preference category only represents how many visas are available in a given year in that category.

[00:21:18] Speaker 03:
But it doesn't change his eligibility or the fact that he can later

[00:21:21] Speaker 03:
That he can still apply for one.

[00:21:23] Speaker 03:
Okay, but in, even if this is final agency action your honor here 1150 the age reduction formula and 1153 h1 is expressly limited.

[00:21:36] Speaker 03:
to the age determination for sons and daughters of lawful permanent residents and is not imparted into the calculations for sons and daughters of U.S.

[00:21:45] Speaker 03:
citizens or naturalized U.S.

[00:21:47] Speaker 03:
citizens in 1151 F2.

[00:21:49] Speaker 01:
I'm going to pose a question to you that's the same as, I'm sorry, Judge McHugh, please.

[00:21:54] Speaker 01:
No, go ahead.

[00:21:56] Speaker 01:
I was going to pose a question to you that's similar to one that the government got from the bench in the Second Circuit, which is,

[00:22:03] Speaker 01:
Can you name a single provision where Congress intended that the act of naturalization downgrades the visa status of a newly naturalized citizens family?

[00:22:16] Speaker 03:
Well, Your Honor, I can't name a specific provision that does that.

[00:22:21] Speaker 03:
However, here, this case is ultimately about congressional choices and the plain language that Congress chose to invoke when enacting the CSPA.

[00:22:30] Speaker 03:
Congress explicitly chose to limit the age reduction formula in 1153H1 to only 1153A2A&D, which is not applicable here.

[00:22:41] Speaker 03:
That's specifically for sons and daughters of LPRs.

[00:22:44] Speaker 03:
Moreover, if this court were to accept the plaintiff's argument, the court would have to rewrite the age reduction in 1153 H2 in order to, excuse me, in H1 in order to graft it into the calculation that the parties agree is controlling here.

[00:23:01] Speaker 03:
That's 1151.

[00:23:02] Speaker 00:
Let me ask you this.

[00:23:03] Speaker 00:
We have every circuit that has looked at this so far has ruled against you.

[00:23:10] Speaker 00:
on this issue and we have a very thoughtful decision from the district court here that rules in favor of you.

[00:23:18] Speaker 00:
And when you look, parse out the analysis from all of those decisions, I think you can make a pretty good argument that the use of the word age in

[00:23:30] Speaker 00:
1151 F2 is ambiguous.

[00:23:34] Speaker 00:
And once it's ambiguous, don't we look at the things that Judge Rossman was just referring to, which is congressional intent and policy and an overarching intent in the statutes not to penalize people when they become citizens.

[00:23:54] Speaker 03:
If the language is ambiguous here, but Your Honor, the court should be hard pressed to hold that the plain language of the statutory provisions here is contrary to congressional intent.

[00:24:07] Speaker 04:
There are in, and as I was saying that this- What is a, I mean, what is one thing that would counsel in favor of the idea that Congress wanted this result or intended this result?

[00:24:21] Speaker 03:
Well, Judge Carson, you actually suggested you said that the petitioner's argument could work against somebody.

[00:24:29] Speaker 03:
In that case, it would work against individuals.

[00:24:33] Speaker 03:
Let me rephrase.

[00:24:34] Speaker 03:
The plaintiff's argument would work against beneficiaries who are seeking to bring derivative beneficiaries.

[00:24:40] Speaker 03:
Because under the immediate relative preference category, derivative beneficiaries cannot be included.

[00:24:45] Speaker 03:
But under the F1 preference category, they can.

[00:24:48] Speaker 03:
And so when looking at the text of this, in the language of these statutory provisions,

[00:24:57] Speaker 03:
even though I certainly take the point that Mr. Jimenez will have to wait longer, but Congress could have seen that this would be not allowing derivative beneficiaries would be a negative and harm certain beneficiaries of naturalized US citizens.

[00:25:12] Speaker 03:
And on top of that, I think Congress understood that they understood the significant benefit that is provided to being a US citizen or being the son or daughter of a US citizen and wanted to ensure

[00:25:23] Speaker 03:
that those benefits flow to children of US citizens.

[00:25:27] Speaker 03:
And take Mr. Jimenez's case as an example.

[00:25:30] Speaker 03:
When his mother naturalized and became a US citizen, he was 24 years old.

[00:25:33] Speaker 03:
He was never a child under the INA of a US citizen.

[00:25:36] Speaker 03:
I think Congress also understood that.

[00:25:40] Speaker 03:
On top of that, Judge Rossman, you mentioned that, as the district court also mentioned, that there is no cross references.

[00:25:47] Speaker 03:
And I think it's safe to say, reading the CSPA, Congress was well aware that it knew how to cross reference.

[00:25:54] Speaker 01:
But we also know how to read statutes without a cross reference.

[00:25:59] Speaker 01:
I mean, the point is not necessarily that we need a cross reference to know that we look at

[00:26:06] Speaker 03:
statutory text and related provisions holistically isn't that fair that is fair your honor but i think the lack of a cross reference the fact that 1153 h1 limits itself to 1153 a2 a and d and that even as the second circuit noted

[00:26:23] Speaker 03:
This court would have to rewrite the triggering age preserving date in 1153 H1 in order to graft it into 1151 F2.

[00:26:31] Speaker 03:
That specifically being that in 1153 H1, it is the date of visa becomes available.

[00:26:40] Speaker 03:
Whereas if this court were to require that language into 1151 F2, it would essentially have to rewrite the reduction to say that it's the age of the date of naturalization reduced by the number of days the petition was pending, and it would have to remove the language that requires the alien to apply for lawful permanent residency within one year.

[00:27:03] Speaker 03:
So the court would have to change this congressional, this statutory language.

[00:27:09] Speaker 03:
And I'll also note in terms of structure, Congress chose two distinct structures for determining age, one for sons and daughters of U.S.

[00:27:20] Speaker 03:
citizens in 1151F,

[00:27:21] Speaker 03:
and another for sons and daughters of lawful permanent residents in 1153H.

[00:27:26] Speaker 03:
These are distinct provisions.

[00:27:29] Speaker 03:
And when the court looks at 1151F1 and F2, there is no indication that the age reduction formula for sons and daughters of lawful permanent residents is imparted onto that.

[00:27:42] Speaker 03:
And I'll even note, Your Honor, my friend on the other side noted that this court would have to imply that there is croft reference and connect the dots and that there is some sort of connective tissue that the court would have to assume.

[00:27:57] Speaker 03:
There is no language that the plaintiffs can point to that actually connects the two together.

[00:28:03] Speaker 01:
So if we

[00:28:08] Speaker 01:
If we're writing this decision in favor of the government in the face of several circuit courts that have grappled with this difficult question and reached a different conclusion than the one you advocate, what is it that you would urge us to say about those decisions and why they are incorrect?

[00:28:27] Speaker 03:
Similar to what the district court said, Your Honor, that the plain language is what controls and that the statute is not ambiguous.

[00:28:34] Speaker 03:
And even looking at the context

[00:28:38] Speaker 03:
it still favors the government's interpretation.

[00:28:41] Speaker 01:
Well, context does not need an antecedent ambiguity conclusion, right?

[00:28:44] Speaker 01:
We're looking at the full context.

[00:28:46] Speaker 01:
We don't have to find anything ambiguous to look at the context, right?

[00:28:50] Speaker 03:
Yes, Your Honor.

[00:28:51] Speaker 03:
And so here, I would urge this Court to first hold that the plain language is controlling, that Congress understood.

[00:28:58] Speaker 03:
Because the CSPA, I'll also note, all of these provisions that we're talking about were enacted together.

[00:29:05] Speaker 03:
They weren't enacted in piecemeal fashion.

[00:29:07] Speaker 03:
So Congress did have the opportunity to have all of this language in front of it.

[00:29:12] Speaker 03:
And so I would urge this court to tinker through the language and look at the different situations that will arise and still chose to not impart that age reduction.

[00:29:20] Speaker 03:
And so I would urge this court to disagree with the first, second, and ninth in the sense that the plain language here does control.

[00:29:28] Speaker 03:
1151 F2 makes no mention of

[00:29:35] Speaker 03:
The age reduction formula, 1153 H1, explicitly limits itself to only sons and daughters of lawful permanent residents.

[00:29:45] Speaker 03:
And Congress chose to make, this case is ultimately about congressional choices, and Congress chose to make these distinctions.

[00:29:57] Speaker 03:
Unless the court has any further questions.

[00:30:01] Speaker 04:
Judge McHugh?

[00:30:02] Speaker 03:
No.

[00:30:04] Speaker 04:
Thank you, counsel.

[00:30:05] Speaker 04:
Thank you, Dan.

[00:30:06] Speaker 04:
The case will be submitted and counsel are excused.