Teles De Menezes v. Rubio

• Court: Court of Appeals for the First Circuit
• Decided: September 18, 2025
• Docket: 24-1253
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1253

EDUARDO TELES DE MENEZES; CARLOS EDUARDO RODRIGUES MENEZES,

Plaintiffs, Appellants,

v.

MARCO RUBIO, in his official capacity as Secretary of State; RYAN ROWLANDS, in his official capacity as Consul General of the U.S. Consulate General in Rio de Janeiro, Brazil,*

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Barron, Chief Judge, Gelpí and Rikelman, Circuit Judges.

Adriana Lafaille, with whom Jessie J. Rossman, Isabel Burlingame, American Civil Liberties Union Foundation of Massachusetts, Inc., Laura Murray-Tjan, and FIAP, PLLC were on brief, for appellants.

Leslie K. Dellon, American Immigration Council, Matthew Lorn Hoppock, and The Hoppock Law Firm, on brief for American Immigration Lawyers Association and American Immigration Council, as amicus curiae supporting appellants.

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary of State Marco Rubio and Consul General Ryan Rowlands are automatically substituted as defendants. Malcolm McDermond, with whom Victor M. Mercado-Santana, Trial Attorney, Office of Immigration Litigation, Yaakov M. Roth, Acting Assistant Attorney General, August E. Flentje, Acting Director, Samuel P. Go, Assistant Director, and Dhruman Y. Sampat, Senior Litigation Counsel, were on brief, for appellees.

September 18, 2025 BARRON, Chief Judge. In this appeal, we confront a

challenge to a judgment of dismissal in a suit against the U.S.

Secretary of State and the Consul General of the U.S. Consulate in

Rio de Janeiro, Brazil. It was brought in the United States

District Court for the District of Massachusetts. The plaintiffs

are a naturalized U.S. citizen and his noncitizen son. They are

challenging the reclassification of the parent's petition for a

visa on behalf of his son. They allege that this reclassification

has unlawfully delayed the visa process in their case.

The merits of the claims hinge on whether the son,

despite turning 21 years old during the visa process, must be

treated as under "21 years of age" and, therefore, a "child" for

purposes of the visa petition classification under the Child Status

Protection Act (CSPA), Pub. L. No. 107-208, 116 Stat. 927 (2002).

If so, then the reclassification of the visa petition would be

unlawful, with the consequence that the son would be entitled to

a much speedier resolution of whether he is entitled to a visa

than if the reclassification were to remain in place.

The District Court did not address whether the

reclassification was lawful because it dismissed the complaint

under the doctrine of consular nonreviewability. We first conclude

that the District Court erred in doing so, at least given the

arguments that the appellees have advanced, both below and to our

Court, for concluding that the doctrine applies. We then address

- 3 - whether, as the plaintiffs allege, the reclassification of the

visa petition is unlawful. We conclude that it is. We thus

reverse the claims' dismissal and remand for further consideration

consistent with this decision.

I.

The plaintiffs are Eduardo Teles de Menezes and his son,

Carlos Eduardo Rodrigues Menezes.1 They filed the operative

complaint in 2023. "'[W]e draw the relevant facts from the

plaintiff[s'] complaint' and 'from documentation incorporated by

reference in the complaint.'" Thornton v. Ipsen Biopharms., Inc.,

126 F.4th 76, 78 (1st Cir. 2025) (quoting Rivera–Díaz v. Humana

Ins. of P.R., Inc., 748 F.3d 387, 388 (1st Cir. 2014)).

A word of warning before we begin. To properly address

the plaintiffs' challenge to the defendants' conduct, we need to

review not only the various steps in the process of seeking a visa

but also the special rules that apply to each of the distinct types

of visas that are in play. So, we need to spend some time up front

working through the relevant statutory provisions, technical

though they are, before then turning back to the case at hand.

A.

As a general matter, the process for obtaining an

immigrant visa proceeds as follows: A sponsoring U.S. citizen or

1 Because the plaintiffs share similar last names, we refer to them by their first names for clarity.

- 4 - lawful permanent resident alien (LPR) files a Form I-130, Petition

for Alien Relative ("the petition") with U.S. Citizenship and

Immigration Services (USCIS) on behalf of their noncitizen

relative, the beneficiary of the petition. Once USCIS determines

that a qualifying relationship exists and approves the petition,

the petition is forwarded to the Visa Processing Center in the

Department of State (DOS).2 See 8 C.F.R. § 204.2(d)(3); 8 U.S.C.

§ 1154(b).

The approval of a visa petition -- and the forwarding of

it to DOS -- is but the first step in the process of obtaining a

visa. The next step involves the beneficiary submitting a visa

application to DOS. See 8 U.S.C. § 1202(a). But a beneficiary

may submit an application for a visa only once a visa in that

category is available. And, in some circumstances, the visa that

the beneficiary seeks may not be available upon approval of their

petition due to the annual numerical caps that have been placed by

statute on visas in the relevant category. See id. § 1153(a).

For a parent -- like Eduardo -- seeking a visa on behalf

of their child, there are four relevant visa categories. They are

This is true so long as the petition indicates that the 2

noncitizen beneficiary will apply for their immigrant visa at a U.S. embassy abroad. A separate process -- not relevant to this case -- is available to certain noncitizens who are eligible for "adjustment of status" and may, therefore, seek adjustment from within the United States on the basis of the approved visa petition. See 8 U.S.C. § 1255(a). In such a case, the petition is instead "retained" by USCIS. 8 C.F.R. § 204.2(d)(3).

- 5 - defined by, among other things, whether the sponsoring parent is

a U.S. citizen or an LPR and whether the child is considered "under

21 years of age" based on the statutory scheme.

The first visa category contains "immediate relatives"

visas. These visas include those for children under 21 years of

age whose sponsoring parent is a U.S. citizen. See id.

§ 1151(b)(2)(A)(i); id. § 1101(b)(1) (defining a "child" as "an

unmarried person under twenty-one years of age"). Because there

is no annual cap on the availability of "immediate relatives"

visas, a noncitizen seeking a visa in this category may submit an

application for such a visa as soon as USCIS approves the parent's

visa petition. See Scialabba v. Cuellar de Osorio, 573 U.S. 41,

47-48 (2014) (plurality opinion).

The second visa category contains "F2A" visas. These

visas are for children under 21 years of age whose sponsoring

parent is an LPR. See 8 U.S.C. § 1153(a)(2)(A); id. § 1101(b)(1).

There is an annual cap on the availability of F2A visas. See id.

§ 1153(a)(2)(A). Thus, a noncitizen seeking a visa in this

category may submit a visa application -- after the parent's visa

petition has been approved -- only once an F2A visa is available.

See Scialabba, 573 U.S. at 47-48 (plurality opinion). It may take

years for that eventuality to come to pass due to the queue of

similarly situated beneficiaries waiting for an F2A visa and the

- 6 - limitation on the supply of such a visa imposed by the annual cap.

Id. at 50.

The third category contains "F1" visas. These visas are

for sons and daughters over 21 years of age whose sponsoring parent

is a U.S. citizen. See 8 U.S.C. § 1153(a)(1). Like the F2A

category, there is an annual cap on the availability of visas in

this category. Id. A noncitizen seeking such a visa, therefore,

may submit an application -- after the parent's visa petition has

been approved -- only once a visa in the F1 category is available.

And, here, too, the waiting period for submitting a visa

application may be lengthy.

There is a fourth visa category that also warrants

mention up front. This category is not directly relevant to

Carlos's and Eduardo's circumstances, but the governing statutory

provisions shed light on the overall statutory scheme that defines

the visa process.

This visa category contains the "F2B" visa, which is

available for sons and daughters over 21 years of age whose

sponsoring parent is an LPR. See id. § 1153(a)(2)(B). Once again,

this category is subject to an annual cap. Id. Thus, like

applicants seeking visas in the F2A and F1 categories, an applicant

seeking an F2B visa may submit an application -- after the parent's

visa petition has been approved -- only once a visa in the F2B

category is available. Again, therefore, long waits can ensue.

- 7 - B.

Given how this system operates and the delays in visa

processing that may occur, there was, for a long time, a risk that

a "child" beneficiary would "age out" of their visa category during

the visa process -- i.e., turn 21 years old before their petition

was approved. When that happened, the visa petition would be

reclassified from a visa category for children (the "immediate

relatives" or F2A category) into a visa category for adult sons

and daughters (the F1 or F2B category), with the consequence that

there could be a years-long wait before an application for the

visa could be submitted to DOS (because it could take that long

for a visa in that new category to become available).

To fix this "aging out" problem, Congress enacted the

CSPA. It functions by requiring, in certain circumstances, that

a beneficiary who turned 21 during the visa process be treated as

if they were under 21 for the purpose of the visa process.

For example, before the CSPA's enactment, an individual

who was under 21 when their parent's visa petition was filed -- and

who, depending on the parent's immigration status, would therefore

have fallen into either the "immediate relatives" or F2A

category -- might, due to processing delays, turn 21 before the

petition was approved. If that were to happen, then that

individual would end up (if the parent was a U.S. citizen) in the

F1 category or (if the parent was an LPR) in the F2B category.

- 8 - To be sure, that beneficiary still would be able to apply

to DOS for a visa in one of those newly applicable categories.

But "aging out" was nonetheless a concern for applicants and their

sponsors. The wait times for F1 and F2B visas -- that is, visas

for the adult sons and daughters of U.S. citizens and LPRs

respectively -- were (and remain) generally significantly longer

than the wait times for "immediate relatives" and F2A visas. See

U.S. Dep't of State, Bureau of Consular Affs., Worldwide Final

Action Dates, https://perma.cc/9RRF-2MTN; H.R. Rep. No. 107-45, at

2-3 (2001) (noting that "some sons and daughters of citizens will

have to stay on a waiting list for from two to 13 years" because

their applications were not processed "in a timely manner").

Indeed, as mentioned above, there is no wait time for "immediate

relatives" visas at all.

The CSPA protects against "aging out" in several ways.

First, with respect to the children of U.S. citizens -- those in

the "immediate relatives" category -- the CSPA provides:

[F]or purposes of [8 U.S.C. § 1151(b)(2)(A)(i), the "immediate relatives" category], a determination of whether an alien satisfies the age requirement [set forth in 8 U.S.C. § 1101(b)(1)] shall be made using the age of the alien on the date on which the petition is filed with [USCIS] . . . to classify the alien as an immediate relative . . . .

8 U.S.C. § 1151(f)(1). Thus, for children of U.S. citizens who

are under 21 on the date their parent's visa petition is filed,

- 9 - their "statutory" age remains frozen throughout the entirety of

the visa process, no matter how much time has passed. As a result,

the "aging out" problem no longer arises for them. If the

beneficiary was under 21 when the petition was filed, then they

will be considered under 21 for purposes of classifying their visa

category.

Second, with respect to the children of LPRs -- those in

the F2A category -- the CSPA provides for more limited protection.

Specifically, the statute instructs:

For purposes of [8 U.S.C. § 1153(a)(2)(A), the F2A category], a determination of whether an alien satisfies the age requirement [set forth in 8 U.S.C. § 1101(b)(1)] shall be made using-- (A) the age of the alien on the date on which an immigrant visa number becomes available for such alien . . . ; reduced by (B) the number of days in the period during which the [petition] was pending.

Id. § 1153(h)(1). Thus, to determine whether the child of an LPR

remains eligible for an F2A visa despite having turned 21 during

the pendency of the visa process, the beneficiary's "statutory"

age is calculated as follows. The time spent waiting for USCIS's

approval of the visa petition is subtracted from the beneficiary's

"biological" age, although the time spent waiting in the queue to

submit the visa application is not. Their "statutory" age is then

frozen at the time a visa becomes available to them. If, based on

that calculation, the beneficiary's "statutory" age is 21 or older,

- 10 - the "petition shall automatically be converted to the appropriate

category" -- generally the F2B category for the adult sons and

daughters of LPRs. Id. § 1153(h)(3).

For example, if an LPR filed a petition for their

18-year-old daughter, the daughter would not age out of the F2A

category even if it took the government three years to approve the

petition and another two years for an F2A visa to become available,

such that she had turned 23 by the time she submitted the

application for the visa to DOS. The daughter's "statutory age"

would be her age when an F2A visa became available (23 years old)

minus the bureaucratic delay in waiting for the petition to be

approved (3 years) -- i.e., 20 years old.

The CSPA also addresses one additional eventuality: the

possibility that the sponsoring parent of a beneficiary in either

the F2A category (for children of LPRs) or the F2B category (for

adult sons or daughters of LPRs) naturalizes during the pendency

of the visa process. The CSPA does so as follows.

When the sponsoring parent of a beneficiary in the F2B

category (for the adult son or daughter of an LPR) naturalizes,

the CSPA gives the beneficiary a choice. The CSPA provides that,

if, after filing the F2B petition, the parent "subsequently becomes

a naturalized citizen of the United States," the "petition shall

be converted to [an F1] petition" (for the adult son or daughter

of a U.S. citizen), id. § 1154(k)(1), unless the beneficiary

- 11 - "elects not to have such conversion occur," id. § 1154(k)(2). In

that case, the eligibility determination "shall be made as if such

naturalization had not taken place." Id.

In this way, the CSPA altered the pre-existing

framework. Under the pre-CSPA framework, F2B beneficiaries did

not have the option to remain in the F2B category upon their

parent's naturalization even if reclassifying into the F1 category

would mean a longer wait to submit a visa application. See 8

C.F.R. § 204.2(i)(3) (2002). Thus, the CSPA removed the risk that

an F2B beneficiary -- by converting automatically to the

potentially longer F1 queue -- would be made worse off by their

parent's naturalization.

When the parent of a beneficiary in the F2A category

(for an LPR's child under 21 years of age) naturalizes, the CSPA

provides as follows:

In the case of [a visa petition] initially filed for an alien child's classification as [an F2A beneficiary], based on the child's parent being lawfully admitted for permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under [8 U.S.C. § 1151(b)(2)(A)(i)], the determination described in [8 U.S.C. § 1151(f)(1), the paragraph governing the age determination for "immediate relatives" petitions,] shall be made using the age of the alien on the date of the parent's naturalization.

8 U.S.C. § 1151(f)(2).

- 12 - Through this provision, the CSPA ensures that an F2A

beneficiary generally benefits from their parent's naturalization.

The CSPA accomplishes this result by converting the visa petition

to the "immediate relatives" category, for which a visa is always

available.

This provision also contains an instruction, however,

that, in the event of the conversion of an F2A petition as a result

of a parent's naturalization, the determination of whether the

beneficiary meets the age requirement to qualify as an immediate

relative "shall be made using the age of the alien on the date of

the parent's naturalization." Id. Thus, there is a

question -- central to this appeal -- whether the "age of the alien

on the date of the parent's naturalization," id., refers to the

beneficiary's statutory or biological age.

So far, we have addressed only the first four steps in

the visa process. Those steps are (1) the filing of a petition

for a visa with USCIS, (2) the approval or denial of the petition

by USCIS, (3) the forwarding of the petition to DOS if it has been

approved, and (4) the filing of a visa application to DOS once the

petition has been approved and a visa in the applicable visa

category is available.

But, of course, the visa process does not end with the

submission of the visa application. There remains the review of

- 13 - the beneficiary's visa application by a consular officer at the

applicable U.S. embassy abroad. See Scialabba 573 U.S. at 48.

The consular officer conducting that review is

responsible for making a final determination of an applicant's

eligibility for an immigrant visa. See 8 U.S.C. § 1201. A

noncitizen beneficiary can be ineligible for an immigrant visa on

a number of grounds, regardless of the applicant's qualifying

relationship to a U.S. citizen or LPR. See id. § 1182(a)

(enumerating various grounds that render a noncitizen generally

"ineligible" for a visa). The review of the application for

eligibility generally includes an in-person interview with a

consular officer. See id. § 1202(h)(1); 22 C.F.R. § 42.62.

C.

We are at last ready to come back to the case at hand.

The operative complaint alleges the following relevant facts about

the beneficiary, Carlos, and his sponsor -- and father -- Eduardo.

Carlos was admitted to the United States on a tourist

visa on January 20, 2013. For several years, he resided with

Eduardo in Massachusetts, where he attended and graduated from

high school. He later studied at Target International Student

Center on a student visa.

On December 9, 2017, Eduardo obtained lawful permanent

resident status. A month later, on January 12, 2018, he filed a

Form I-130, Petition for Alien Relative ("Visa Petition"), on

- 14 - Carlos's behalf with USCIS, the first step in the process of

sponsoring a family member for an immigrant visa.

Thereafter, Carlos, who was 20 years old when Eduardo

filed the Visa Petition, turned 21. And then, on August 12, 2019,

USCIS approved Eduardo's Visa Petition (a total processing time of

a year and seven months). A visa in the F2A category was

immediately available for Carlos at that time.

Carlos subsequently submitted a visa application. He

was then called for an interview with the U.S. Consulate in Rio de

Janeiro, Brazil. The consulate scheduled the interview for October

15, 2021.

On May 27, 2021 -- before Carlos's interview took

place -- Eduardo naturalized. Carlos attended the consular

interview in October 2021. But, some months later, on March

4, 2022, Carlos received an email from the consulate ("March 4

Email"). The email states as follows:

Please note that based in [sic] the Naturalization date of the petitioner the applicant is not eligible for the Child Status Protection [A]ct (CSPA) since he was over 21 years old when the petitioner naturalized. This application is now F1 [the visa category for adult sons and daughters of U.S. citizens] and his visa category is not current. Right now the applicants that are being called for an interview in this visa category are the ones who had their petition filed on or before 01DEC2014 and this applicant had the petition filed on 12Jan2018.

- 15 - D.

In their complaint, Carlos and Eduardo allege that DOS

"incorrectly reclassified" Eduardo's visa petition into the F1

category in violation of the CSPA. The complaint alleges that,

under the CSPA, Carlos remained "under twenty-one years of age" on

the date of Eduardo's naturalization, and, therefore, qualified as

an immediate relative, for whom a visa is always available by law

(because visas in the "immediate relatives" category are not

subject to any annual numerical caps).

The complaint identifies as "final agency action" the

"reclassification . . . as indicated by the March 4 Email," and

asserts that this action violated the Administrative Procedure Act

because it was contrary to law. See 5 U.S.C. §§ 706(2)(A), (D).

The complaint also asserts a claim under the Due Process Clause.

See U.S. Const. amend. V. As relief, the complaint seeks a

declaratory judgment that "Carlos [is] the 'immediate relative' of

his U.S.-citizen father," or, in the alternative, an order that

the defendants "reinstate Eduardo's visa petition to the F2A

category."

On February 13, 2023, the defendants moved to dismiss

the complaint under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). They argued that the District Court was barred by the

doctrine of consular nonreviewability from reviewing the challenge

to the consular officer's "denial of Carlos's visa." They further

- 16 - contended that even if limited judicial review were available under

that doctrine, "such review is limited to determining if the

consular officer provided a facially legitimate and bona fide

reason for denying the visa," which they contended the consular

officer had provided by pointing to the CSPA and correctly applying

its provisions.

The plaintiffs opposed the motion, arguing that

"contrary to [the d]efendants' characterization . . . , this case

is not about the denial of a visa to a noncitizen," but rather

"the erroneous reclassification of a visa petition filed by a U.S.

citizen." They thus argued that their case did "not trigger

consular nonreviewability." The plaintiffs further argued that

the reclassification of the visa petition to the F1 category

violated the requirements of the CSPA.

On January 18, 2024, the District Court granted the

defendants' motion to dismiss, concluding that the doctrine of

consular nonreviewability precluded review. The plaintiffs timely

appealed.

II.

We review de novo the District Court's ruling on a motion

to dismiss. Irizarry v. United States, 427 F.3d 76, 77 (1st Cir.

2005). "In so doing, we accept the well-pleaded facts as true and

draw all inferences in [the plaintiffs'] favor . . . ." Id. The

proper interpretation of a statute is a question of law which is

- 17 - likewise reviewed de novo. Am. Cyanamid Co. v. Capuano, 381 F.3d

6, 12 (1st Cir. 2004).

The defendants moved to dismiss this action both for

lack of subject matter jurisdiction and for failure to state a

claim upon which relief may be granted. See Fed. R. Civ.

P. 12(b)(1), (6). The District Court granted the motion to dismiss

based on the doctrine of consular nonreviewability. It did not

indicate, however, whether it was dismissing the complaint under

Rule 12(b)(1) or 12(b)(6).

We have previously described the doctrine of consular

nonreviewability using the language of jurisdiction. See Chiang

v. Skeirik, 582 F.3d 238, 242 (1st Cir. 2009); Adams v. Baker, 909

F.2d 643, 649 (1st Cir. 1990). However, the Supreme Court of the

United States recently clarified that "the doctrine of consular

nonreviewability is not jurisdictional." Dep't of State v. Muñoz,

602 U.S. 899, 908 n.4 (2024); see also Raouf v. U.S. Dep't of

State, 702 F. Supp. 3d 19, 25 (D.N.H. 2023) (describing the

"growing consensus among the Courts of Appeals that, despite

statements in the caselaw suggesting that the doctrine is

jurisdictional in nature, consular nonreviewability is in reality

a merits issue"). We therefore assess the District Court's

dismissal as a merits question under Rule 12(b)(6).

- 18 - III.

A consular officer's decision "to admit or to exclude an

alien" is generally "final and conclusive." Muñoz, 602 U.S. at

908 (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S.

537, 543 (1950)). The doctrine of consular nonreviewability

prohibits "judicial review of a consular officer's denial of a

visa." Id.

If the appellees are right that the doctrine precludes

review in this case, then our analysis is at an end. The appellants

contend, however, that the doctrine has no application here for

either of two reasons. First, they contend that their claims do

not allege that a consular officer's denial of a visa even

occurred, let alone that any such denial was wrongful. Second,

they contend that, in any event, their claims concern only the

proper interpretation of the CSPA and therefore "do[] not implicate

the independent judgment of [a] consular officer[]." For the

reasons we will explain, we agree with the appellants' first

contention and so do not address the second.

The appellants contend that their case "does not involve

the denial of a[] [visa] application" because it challenges only

the "reclassification of [Eduardo's] visa petition." (Emphasis

added.) For that reason, they contend that the doctrine of

consular nonreviewability has nothing to do with this case.

- 19 - In disagreeing, the appellees appear to be arguing that

the doctrine of consular nonreviewability bars review here because

the appellants are "at bottom" challenging a "consular officer's

decision to refuse a visa." We are not persuaded.

The complaint does not allege that a visa denial has

occurred or that any such denial was unlawful. It instead alleges

that because Carlos was erroneously reclassified into the F1

category, in which his priority date was not current, he continues

to "await[] resolution of his visa application." In that regard,

the complaint asserts that the consulate informed Carlos on

March 4, 2022, that, because of his age, his application "is now

F1" and that "applicants that are being called for an interview in

[the F1] category are the ones who had their petition filed on or

before 01DEC2014 and [that Carlos] had [his] petition filed on

12Jan2018." As the appellants explain, "rather than purport to

deny the visa application, [the email] only conveys that Carlos

was not yet eligible to be considered for a visa" based on his

reclassification into the F1 category. (Emphasis added.)

True, the complaint alleges that the challenged

erroneous reclassification of the visa petition here has had, and

will continue to have, the effect of causing appellants to wait

for Carlos's visa application to be adjudicated despite their claim

that they are entitled to an earlier adjudication. But, as the

appellants point out, a number of courts have concluded that the

- 20 - doctrine of consular nonreviewability does not apply to claims

that "challenge[] the consul's authority to suspend . . . visa

applications." Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997);

see also Nine Iraqi Allies Under Serious Threat Because of Their

Faithful Serv. to the U.S. v. Kerry, 168 F. Supp. 3d 268, 292

(D.D.C. 2016); Al-Gharawy v. U.S. Dep't of Homeland Sec., 617 F.

Supp. 3d 1, 13 (D.D.C. 2022); Raouf, 702 F. Supp. 3d at 30-31.

So, they contend, the alleged practical consequence of the

reclassification does not mean that, in challenging the

reclassification, they are challenging the denial of the visa.

The appellees attempt to distinguish these "delay" cases

by arguing that, in them, "there was no [visa] denial." But the

appellees appear to agree that the reclassification of a visa

petition is, in general, subject to judicial review, as they cite

approvingly to authority for that proposition. See Cuthill v.

Blinken, 990 F.3d 272, 278, 285 (2d Cir. 2021) (reviewing a suit

against the U.S. Secretary of State for reclassifying a visa

petition from the F2A category to the F1 category). Thus, the

only way to understand their argument is to read it as alleging

that the reclassification at issue here is somehow the functional

equivalent of a visa denial, even though they are accepting that

a reclassification, in general, is not necessarily one.3 We fail

3Appellees point this Court to 22 C.F.R. § 42.62(b) and 8 U.S.C. § 1201(a)(1) for the proposition that classification of a

- 21 - to discern from the appellees' arguments -- or the District Court's

ruling -- a basis for concluding that the doctrine of consular

nonreviewability is a barrier to judicial review of the claimed

reclassification in this case.

The appellees do cite Atieh v. Riordan, 797 F.3d 135

(1st Cir. 2015), as if it supports their position. But that

precedent at most reveals that there exists a different avenue to

challenge a visa classification decision, not that the doctrine of

consular nonreviewability precludes such a challenge in a case

like this one. See id. at 138-39 (reviewing Board of Immigration

Appeals's affirmation of USCIS's denial of a petition for the

sponsor's alleged fiancé).

The appellees also invoke Chiang v. Skeirik as support

for their position. That case did apply the doctrine of consular

reviewability to bar a challenge to the denial of a visa petition.

Chiang, 582 F.3d at 242-43. But, in that case, as the appellees

explain, the denial marked the end of the visa process for that

beneficiary's visa application. Indeed, the denial of the petition

there followed the denial of the visa application by a consular

visa applicant is a final determination of the consular officer. However, even taking this as true, it does not contravene our determination that this is not a visa denial. In fact, 22 C.F.R. § 42.62(b) explicitly distinguishes a consul's classification determination, id. § 42.62(b)(i), from the consul's determination regarding an "applicant's eligibility to receive a visa," id. § 42.62(b)(ii).

- 22 - officer. Id. at 240. Here, by contrast, we are dealing with a

challenge only to the reclassification of a visa petition, a

circumstance that Chiang did not address.

We note, too, that below the appellees failed to explain

how, if the doctrine of consular nonreviewability preludes a

challenge to the visa reclassification at issue, it would not bar

challenge to any reclassification. Instead, the appellees argued

that the appellants were wrong to contend that "the consular

nonreviewability doctrine is inapplicable" on the ground that what

appellants are "truly challenging is the consular officer's denial

of his immigrant visa application because no visa is currently

available to Carlos."4 But the appellants allege that there has

been no denial of the visa application by the consular officer

precisely because of the reclassification decision. And the

District Court, in determining that the doctrine nonetheless

barred the challenge to the reclassification decision, did not

address this gap in the appellees' position, insofar as the

appellees do not now dispute that a reclassification decision may

be challenged. And we see no basis for concluding that this

specific reclassification may not be challenged due to the doctrine

4 The cases to which appellants cited below each dealt with a denial of a visa application, not a challenge to the reclassification of one. See Matushkina v. Nielsen, 877 F.3d 289, 294 (7th Cir. 2017); Capistrano v. Dep't of State, 267 F. App'x 593, 594-95 (9th Cir. 2008).

- 23 - of consular reviewability if, in general, that doctrine does not

bar challenge to every reclassification decision.

IV.

There remains to address whether appellants are right

that the reclassification of the visa petition into the F1 category

(adult sons and daughters of U.S. citizens) was unlawful. In their

view, rather than reclassifying the petition into the F1 category,

it should have been reclassified, upon Eduardo's naturalization,

into the "immediate relatives" category (children of U.S.

citizens).5 They contend that is so because Eduardo had become a

U.S citizen and, under the CSPA, Carlos had to be treated as if he

were under 21 years of age, notwithstanding that he had turned 21

during the visa process.

Appellants' contention turns, in the end, on the proper

construction of a single phrase in 8 U.S.C. § 1151(f)(2) -- the

provision of the CSPA that addresses the conversion of an F2A

petition into an "immediate relatives" petition. That phrase

instructs that the determination of whether the noncitizen

beneficiary satisfies the age requirement to be reclassified as an

Appellants argue in the alternative that, "at a minimum," 5

the CSPA "would have kept the petition in the F2A category" because there is "no statutory vehicle [that] authorized the government's conversion of the petition to the . . . F1 category." Because we agree that the CSPA's age-out protections require the conversion of the visa petition to the "immediate relatives" category, we do not address this alternative argument.

- 24 - immediate relative "shall be made using the age of the alien on

the date of the parent's naturalization."

Appellants contend that "age," as used in § 1151(f)(2),

refers not to the beneficiary's "biological age." Instead, they

argue, "age" refers to the "age" of the noncitizen as determined

by a formula that applies to all F2A beneficiaries, as set forth

in § 1153(h)(1). They contend that is so because § 1153(h)(1), in

setting out a formula to calculate the age of an F2A applicant,

must be understood to interact with § 1151(f)(2), which concerns

potentially reclassifying an F2A applicant (based on their age)

into an immediate relative applicant.

The District Court did not address this issue given its

reliance on the doctrine of consular nonreviewability to dismiss

the claims. Nevertheless, the issue presents a question that "is

purely a matter of statutory interpretation, and therefore, a

question of law, which we can review in the first instance."

Gately v. Massachusetts, 2 F.3d 1221, 1228 n.4 (1st Cir. 1993);

see also R.I. Hosp. Ass'n v. City of Providence ex rel. Lombardi,

667 F.3d 17, 37 n.20 (1st Cir. 2011) (same). The parties have

also fully briefed and argued this question. We thus proceed to

address it. As we will explain, we agree with the appellants and

so construe "age" in § 1151(f)(2) just as the only two circuits to

have construed that term in § 1151(f)(2) have. See Tovar v.

Sessions, 882 F.3d 895, 905 (9th Cir. 2018) (holding that the term

- 25 - "age" in § 1151(f)(2) refers to the age calculation in

§ 1153(h)(1)); Cuthill, 990 F.3d at 285 (same).

"A court's lodestar in interpreting a statute is to

effectuate congressional intent." City of Providence v. Barr, 954

F.3d 23, 31 (1st Cir. 2020). "[T]he quest to determine this intent

must start with the text of the statute itself." Id. We generally

accord statutory text "its ordinary meaning," but we also must

take account of the "specific context in which that language is

used, and the broader context of the statute as a whole." United

States v. Roberson, 459 F.3d 39, 51 (1st Cir. 2006) (quoting

Mullane v. Chambers, 333 F.3d 322, 330 (1st Cir. 2003)); see also

City of Providence, 954 F.3d at 31. As such, "[w]hen a word

carries both an ordinary and specialized meaning, we look to

context to choose between them." Med. Marijuana, Inc. v. Horn,

604 U.S. 593, 603 (2025). "Our duty, after all, is 'to construe

statutes, not isolated provisions.'" King v. Burwell, 576 U.S.

473, 486 (2015) (quoting Graham Cnty. Soil & Water Conservation

Dist. v. United States ex rel. Wilson, 559 U.S. 280, 290 (2010)).

The appellees contend that the term "age," as used in

§ 1151(f)(2), must refer to the noncitizen's "actual" -- that is,

"biological" -- age, in accordance with the "common, ordinary

meaning" of that term. Thus, because Carlos's biological age on

the date of Eduardo's naturalization was over 21, they argue,

- 26 - Eduardo's petition cannot have converted to an "immediate

relatives" petition, as Carlos no longer satisfied the age

requirement for so converting it. Consequently, they argue that,

insofar as the appellants contend that the reclassification was

unlawful because it deemed the F1 category applicable rather than

the "immediate relatives" category, the appellants are wrong.

The problem with the appellees' position, as the

appellants point out, is that it fails to account for the context

in which that provision at issue is found. The phrase "the age of

the alien on the date of the parent's naturalization" appears in

a provision of the CSPA, § 1151(f)(2), that applies only to

beneficiaries of F2A petitions. That is significant, they contend,

because § 1153(h)(1) provides modified instructions for how to

determine whether a beneficiary of an F2A petition meets the age

requirement to be a "child." Specifically, that provision

instructs that the determination of whether an F2A beneficiary is

"under twenty-one years of age," 8 U.S.C. § 1101(b)(1), depends

not on the beneficiary's biological age, but rather on a statutory

formula,6 under which -- there is no dispute -- Carlos would be

under 21 years of age.

6The formula is as follows: "the age of the [F2A beneficiary] on the date on which an immigrant visa number becomes available [to them] . . . reduced by . . . the number of days . . . during which the [visa] petition . . . was pending." Id. § 1153(h)(1)(A)-(B).

- 27 - Accordingly, the appellants contend that this statutory

formula, which "freezes the[] [F2A beneficiary's] age at the time

of visa availability, and subtracts the time USCIS took to process

the visa petition," also dictates an F2A beneficiary's "age" for

the purposes of converting the F2A petition to an "immediate

relatives" petition under § 1151(f)(2). In other words, the

appellants contend that the word "age" in § 1151(f)(2) must be

understood in light of § 1153(h)(1), not in isolation from it. We

agree. See Cuthill, 990 F.3d at 279-80 ("Because § 1151(f)(2)

refers solely to F2A beneficiaries, and because Congress

specifically provided for a modified age calculation for F2A

beneficiaries, . . . the best textual reading of 'the age of the

[F2A beneficiary] on the date of the parent's naturalization' is

that it refers to the F2A beneficiary's statutory age on such

date." (second alteration in original)).

To be sure, as the appellees emphasize, "[t]here is no

statutory provision that defines or modifies the term 'age' as

used in 8 U.S.C. § 1151(f)(2)." But, as we have explained,

§ 1153(h)(1) supplies a modified formula for determining the age

of an F2A beneficiary, and § 1151(f)(2) applies, by its own terms,

only to such beneficiaries. Thus, the "age" of every beneficiary

to whom § 1151(f)(2)'s conversion rule applies is already

modified, namely, by § 1153(h)(1).

- 28 - For similar reasons, we are unpersuaded by the

appellees' contention that § 1151(f)(2) cannot be understood to

incorporate § 1153(h)(1)'s age formula because the two provisions

do not expressly cross-reference one another. The two provisions

were enacted together and are both directed at the same

subject: determining whether a petition initially filed as an F2A

petition remains an F2A petition or "convert[s]" into a different

category. Compare 8 U.S.C. § 1151(f)(2) (providing for the

"conver[sion]" of an F2A petition to the "immediate relatives"

category), with id. § 1153(h) (providing for the "conver[sion]" of

an F2A petition to the F2B category if the statutory age is

calculated "to be 21 years of age or older"). Thus, no

cross-reference is necessary to make apparent the obvious overlap

between these two provisions. See Tovar, 882 F.3d at 901 ("An

explicit cross-reference is unnecessary when the three provisions

are so closely related and form a cohesive whole.").

In any event, as we have explained, § 1151(f)(2) applies

specifically and exclusively to "petition[s] . . . initially filed

for an alien child's classification as [an F2A beneficiary] under

[8 U.S.C. §] 1153(a)(2)(A)." Section 1153(h)(1), in turn,

provides the age calculation "[f]or purposes of" that very

subsection. See id. § 1153(h)(1) ("For purposes of subsection[]

(a)(2)(A) . . . ."). Accordingly, the relationship between the

- 29 - two provisions is clear from the text, even in the absence of the

precise cross-reference that the appellees contend is lacking.

The appellees press that § 1153(h)(1)'s "[f]or purposes

of" language cuts against the appellants' reading. They emphasize

that this language references only the F2A category and one other

(inapplicable) visa category but "[n]owhere . . . make[s] any

reference to the immediate relative category." Thus, they contend,

that language must be read to preclude the formula in § 1153(h)(1)

from applying to the term "age" in § 1151(f)(2), as the appellees

argue is the case.

The problem for the appellants is that § 1153(h)(1)

plainly applies only to petitions "initially filed" in the F2A

category. Id. § 1151(f)(2). It does not apply to petitions filed

in the "immediate relatives" category, which are addressed

exclusively by § 1151(f)(1). See id. § 1151(f)(1) (addressing

"petition[s] . . . filed with the Attorney General . . . to

classify [an] alien as an immediate relative"). There is,

therefore, nothing anomalous about § 1153(h)(1)'s failure to

expressly extend its age calculation rule to petitions filed in

the "immediate relatives" category, as even the appellees agree

that § 1153(h)(1) has no application to any such petition. Their

contention is only that it applies to a petition, like theirs,

which was filed in the F2A category.

- 30 - Finally, the appellees assert that § 1151(f)(1), which

neighbors § 1151(f)(2), provides yet another reason to conclude

that "age," as used in § 1151(f)(2), refers to "biological age."

That is so, they contend, because § 1151(f)(1) uses that same term

and because, in that provision, the term "clearly refers" to

"actual, biological age."

For all the reasons set forth above, however,

§ 1153(h)(1) must be understood to provide a contrary instruction

for determining "age" which, by its terms, reaches only petitions

filed in the F2A category and, therefore, does not reach the

category of petitions to which § 1151(f)(1) applies. Indeed,

despite the proximity of § 1151(f)(1) and § 1151(f)(2), the two

provisions are directed at two entirely different sets of visa

petitions. There is no overlap between the petitions to which

§ 1151(f)(1) applies (petitions filed in the "immediate relatives"

category) and petitions to which § 1151(f)(2) applies (petitions

filed in the F2A category). Accordingly, the proximity of the two

provisions alone does not persuade us that their definitions of a

beneficiary's "age" are the same, particularly in the face of a

contrary instruction elsewhere in the same statutory scheme.

All that said, we acknowledge that the grafting of

§ 1151(f)(2) and § 1153(h)(1) is not seamless. Section 1153(h)(1)

does not directly redefine the word "age." In that respect, its

instructions are not a perfect substitute for the word "age" in

- 31 - § 1151(f)(2). Moreover, as a matter of ordinary usage, the word

"age" does generally refer to a person's biological age.

But, as we noted at the outset, "the meaning of statutory

language, plain or not, depends on context." Holloway v. United

States, 526 U.S. 1, 7 (1999) (quoting Brown v. Gardner, 513 U.S.

115, 118 (1994)); see also FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 133 (2000) ("It is a 'fundamental canon of statutory

construction that the words of a statute must be read in their

context and with a view to their place in the overall statutory

scheme.'" (quoting Davis v. Mich. Dep't of Treasury, 489 U.S. 803,

809 (1989))). Accordingly, rather than "cull[] selected words" to

divine their meaning, our task is to "examine the statute as a

whole," before we can say with certainty whether its meaning is

plain and what that meaning is. O'Connell v. Shalala, 79 F.3d

170, 176 (1st Cir. 1996). And 8 U.S.C. § 1153(h)(1) does clearly

and explicitly modify how to "determin[e] . . . whether [an F2A

beneficiary] satisfies the age requirement," id. § 1153(h)(1),

namely whether they are "under twenty-one years of age," id.

§ 1101(b)(1).

Thus, we must "read[] [the relevant provisions] in

concert," Sutton v. United Air Lines, Inc., 527 U.S. 471, 482

(1999), such that the reference to the beneficiary's "age" in

§ 1151(f)(2) incorporates the instruction set forth in

§ 1153(h)(1) for "determining" the beneficiary's age. For, it is

- 32 - that construction that better "fit[s] . . . [the CSPA's] parts

into a[] harmonious whole," Brown & Williamson, 529 U.S. at 133

(quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)),

and, thus, provides a reason for our favoring the term's

"specialized meaning" over its "ordinary" one. Horn, 604 U.S. at

603.

B.

The statutory structure confirms what the text suggests.

See King, 576 U.S. at 492 ("A provision that may seem ambiguous in

isolation is often clarified by the remainder of the statutory

scheme . . . because only one of the permissible meanings produces

a substantive effect that is compatible with the rest of the law."

(alteration in original) (quoting United Sav. Ass'n of Tex. v.

Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)));

Stauffer v. IRS, 939 F.3d 1, 7 n.8 (1st Cir. 2019). Indeed, a

contrary construction of the text would produce three significant

anomalies that the appellees cannot explain.

1.

The first anomaly arises because the family-based visa

scheme affords preferential treatment to the children of U.S.

citizens over the children of LPRs, by exempting "immediate

relatives" of U.S. citizens from the visa cap, see 8 U.S.C.

§ 1151(b)(2)(A)(i), and generally privileging U.S. citizens over

LPRs in the visa process, see, e.g., id. § 1153(a) (allowing U.S.

- 33 - citizens to petition for more categories of relatives than LPRs).

The appellees' reading, though, has the effect of penalizing a

In their view, an F2A beneficiary maintains the CSPA's

age-out protections only so long as their LPR parent does not

naturalize. For, upon naturalization, all the petition's

processing time which, until that point, did not count against the

beneficiary, see 8 U.S.C. § 1153(h)(1)(B), would, as a direct

result of the parent's naturalization, suddenly be counted against

the beneficiary's age. For beneficiaries like Carlos, this can

mean the difference between immediate eligibility for a visa and

an eight-year-long wait. See U.S. Dep't of State, Bureau of

Consular Affs., Visa Bulletin for May 2025 (Apr. 3, 2025),

https://perma.cc/UC9S-JTGA.

The incongruity of this result is underscored by the

CSPA, which signals Congress's intent not to have a parent's

naturalization penalize a beneficiary. Section 1154(k) addresses

the conversion of an F2B petition (for the adult son or daughter

of an LPR) into an F1 petition (for the adult son or daughter of

a citizen), and it provides that, upon a parent's naturalization,

the beneficiary of an F2B petition can choose between staying in

the F2B category or converting into the F1 category. See 8 U.S.C.

§ 1154(k)(1)-(2). In either case, the petition retains its

original priority date. Id. § 1154(k)(3).

- 34 - In other words, regardless of the length of the visa

queues in the two categories, the beneficiary of an F2B petition

whose parent naturalizes will never be penalized. In fact, in the

case where the F1 queue is shorter than the F2B queue, the

beneficiary will be benefited.

The appellees do contend that any "adverse effect" that

their preferred reading of § 1151(f)(2) visits on beneficiaries,

due to a sponsoring LPR parent's naturalization during the visa

process, "is not a result of the CSPA but of the preexisting visa

limits." For example, they assert that the length of the visa

queues in the F1 and F2A categories change and that at certain

times, and for nationals of certain countries, the F1 queue is

actually shorter than the F2A queue. So, they argue, in that case,

naturalization (and, thus, conversion into the F1 category) would

benefit, not harm, the beneficiary.

The appellees attempt to further illustrate their

argument as follows. They assert that "if Appellant's reading of

the CSPA were to be adopted in March 2003, naturalization of the

petitioner would have harmed beneficiary nationals of Mexico and

the Philippines[, for whom the F1 wait times were longer than the

F2A wait times,] but not other beneficiaries, creating an absurd

result where the ability to convert to a more 'favorable' category

would depend on nationality."

- 35 - The argument rests on a faulty premise. Any F2A

beneficiary whose parent naturalizes and who is "under twenty-one

years of age," id. § 1101(b)(1), "on the date of the parent's

naturalization," id. § 1151(f)(2), is eligible to be considered

for an "immediate relatives" visa, for which there is never any

wait. Thus, naturalization categorically benefits F2A

beneficiaries, regardless of their nationality or the relative

length of the F2A and F1 queues for different noncitizen nationals.

And if, on the other hand, the F2A beneficiary's statutory age is

21 or older, then the petition will "automatically . . .

convert[]" to the F2B category. Id. § 1153(h)(3). In that case,

upon the parent's naturalization, the CSPA provides the

beneficiary with the option of converting to the F1 category or

remaining in the F2B category, depending on their preference (and,

presumably, the length of the visa queues). See id. § 1154(k).

Thus, under the appellants' construction of the statute,

no benefit or penalty turns on the beneficiary's nationality. To

the contrary, it is the appellees' proffered interpretation that,

anomalously, would -- when the F1 queue is shorter than the F2A

queue for certain nationalities -- make "the ability to convert to

a more 'favorable' category . . . depend on nationality."

2.

The second anomaly that the appellees' view occasions

arises because it would require the CSPA to be read to protect

- 36 - against aging out as a result of bureaucratic delay for child

beneficiaries in both the "immediate relatives" and the F2A

categories but not for the subset of beneficiaries who move from

one category to the other. So construing the statute would not

only "leave a sizable hole in the CSPA's age-out protections,"

Cuthill, 990 F.3d at 281, but also "defeat one of its most

important purposes," United States v. Gelin, 712 F.3d 612, 619

(1st Cir. 2013). And while we do not dispute that Congress could

choose to create such a hole, we see little reason to find one

when the text comfortably suggests there is none to be found.

The appellees contend that there is nothing anomalous

about construing the CSPA to provide non-exhaustive age-out

protections. They point out that, although the CSPA "mitigate[s]

the 'aging out' problem," it does not eliminate it entirely.

(Alterations in original) (quoting Scialabba, 573 U.S. at 51).

And it is true that the CSPA does not foreclose the possibility

that a child beneficiary will "age out" while waiting for a visa.

F2A beneficiaries, for example, are protected only against delays

in the processing of their petition, not against delays in waiting

for an available visa. See 8 U.S.C. § 1153(h)(1)(B).

But the appellants' contention is not that the CSPA must

be construed to provide exhaustive age-out protections. It is

simply that it would contravene the statutory design to deny F2A

beneficiaries -- to whom the CSPA does extend age-out

- 37 - protections -- the very protections from bureaucratic delay that

the statute does provide.

For that reason, the appellees' characterization of the

appellants' arguments as seeking "extra protection" is mistaken.

Every beneficiary to whom § 1151(f)(2) applies -- namely,

beneficiaries of an F2A petition -- is protected by the CSPA

against aging out as a result of bureaucratic delay. See id.

§ 1153(h)(1). The question, then, is not whether an F2A

beneficiary whose parent naturalizes should receive "extra

protection" beyond that provided for in the statute. It is whether

such a beneficiary should be denied age-out protections that the

statute expressly supplies for F2A beneficiaries whose parents do

not naturalize. The appellees provide no explanation that would

account for this anomalous result.

3.

The third, and final, anomaly that would arise from the

appellees' construction of the statute is that adult sons and

daughters would receive a benefit denied to minor sons and

daughters, notwithstanding that the family-based visa system

generally preferences child beneficiaries. See Fiallo v. Bell,

430 U.S. 787, 788 (1977). This anomaly would arise because, in

the appellees' view, the CSPA provides adult F2B beneficiaries,

but not minor F2A beneficiaries, the ability to opt out of

converting to the F1 category upon a parent's naturalization, see

- 38 - 8 U.S.C. § 1154(k)(2). Accordingly, under the appellees' reading

of the statute, it is the adult sons and daughters who receive

preferential treatment in the form of the ability to opt out of a

longer queue. Yet the appellees provide no explanation that would

account for this departure from the overarching statutory scheme's

generally child-favoring disposition.

The legislative history provides yet more confirmation

that Congress's aim in enacting the CSPA was to "address[] the

predicament" of noncitizens who age out "through no fault of their

own[]" due to bureaucratic delays in the processing of a visa

petition. H.R. Rep. No. 107-45, at 2. As the Second Circuit noted

in Cuthill, 990 F.3d at 284-85 (citing the legislative history),

the measure's bipartisan supporters repeatedly emphasized their

conclusion that the time it takes the government to process a visa

petition should not count against a beneficiary's age. See 147

Cong. Rec. H29002 (2001) (statement of Rep. Sheila Jackson Lee)

("This bill corrects the problem of aging-out under current law.");

id. (statement of Rep. George Gekas) ("What we do here today is

adjust, through the use of common sense, a bad situation."). The

House Report, moreover, indicates the drafters' judgment that this

same assurance should be afforded "when permanent resident parents

petition for immigrant visas for their sons and daughters and later

naturalize." H.R. Rep. No. 107-45, at 3.

- 39 - Under the appellees' interpretation of the statute,

however, bureaucratic delay would count against just that category

of petitioners. Any processing time that passed before the date

of the parent's naturalization would -- as a direct result of

naturalization itself -- count against the beneficiary's age and

could lead, as in this case, to a beneficiary aging out "through

no fault of their own." Id. at 2. Even more surprising, given

the special focus of the statute's drafters on protecting the

children of U.S. citizens, is that the very act of the parent

becoming a U.S. citizen would result in previously uncounted

bureaucratic delay to suddenly count against a beneficiary.

Accordingly, the legislative history "overwhelmingly favor[s]" the

appellants' reading of § 1151(f)(2), Cuthill, 990 F.3d at 284, and

thus solidifies our conclusion that it is the appellants who offer

the more faithful construction of the statutory text.

D.

In sum, we conclude that, "[i]n the case of a

petition . . . initially filed" in the F2A category, and "later

converted, due to the naturalization of the parent, to a[n]

[immediate relatives] petition," the "age of the [beneficiary] on

the date of the parent's naturalization," 8 U.S.C. § 1151(f)(2),

is the beneficiary's "statutory age" as provided in § 1153(h)(1).

Based on the allegations in the complaint, Carlos was a "child" on

the date of Eduardo's naturalization because his statutory age was

- 40 - frozen at twenty. See id. § 1101(b)(1). The reclassification of

Eduardo's visa petition to the F1 category was therefore in error,

as Carlos was not, by statute, an adult. We leave it to the

District Court to determine the proper remedy on remand.7

The judgment of the District Court is reversed, and this

case is remanded for further proceedings consistent with this

opinion.

7 Given that appellants never moved for summary judgment, we reverse and remand for further proceedings.

- 41 -