LOKEN, Circuit Judge.
Irene Birdsong, a citizen of the Philippines, was admitted into the United States in December 2001 under a "K-1" nonimmigrant visa, a visa granted to an alien solely "to conclude a valid marriage with [the alien's U.S. citizen fiancé(e)] within ninety days after admission." 8 U.S.C. § 1101(a)(15)(K)(i). A K-1 visa may only be issued after approval of a petition by the alien's fiancé(e). See 8 U.S.C. § 1184(d). Ms. Birdsong remained in this country but did not marry the U.S. citizen
After receiving briefs from the parties, the Immigration Judge (IJ) entered a final order of removal, concluding that Ms. Birdsong is barred from seeking adjustment of status under 8 U.S.C. § 1255
This appeal raises an issue of statutory construction—determining the proper relationship between 8 U.S.C. § 1255(d) and (i). Section 1255 is a lengthy statute prescribing the terms upon which various classes of aliens may adjust their status to that of lawful permanent residents of this country. To frame the issue before us, we quote the relevant provisions of § 1255:
By its plain text, § 1255(d) appears to bar an alien such as Ms. Birdsong who was admitted under a K-1 nonimmigrant visa from adjusting status under § 1255 because she did not marry her petitioning
Ms. Birdsong argues, however, that § 1255(d) by its terms only bars adjustment under § 1255(a), whereas § 1255(i) creates a freestanding basis by which a K-1 nonimmigrant visa holder may pursue adjustment of status under § 1255. Because failure to marry the petitioning K-1 fiancé put her in a class of aliens described in § 1255(c)(8), the argument continues, Ms. Birdsong is eligible for adjustment of status by the plain language of § 1255(i), and we must remand for a determination of whether the Attorney General will grant this discretionary relief. Because the Fourth Circuit and the Ninth Circuit erred in ignoring the plain language of § 1255(i), Ms. Birdsong would have us reject their reading of § 1255(d).
We are thus confronted with conflicting plain-language interpretations of these two statutes. The Tenth Circuit confronted the same conflict in Zhang v. Holder, 375 Fed.Appx. 879, 884-86 (10th Cir.2010) (unpublished), cert. denied, ___ U.S. ___, 131 S.Ct. 1468, 179 L.Ed.2d 299 (2011). After carefully surveying the decisions in Kalal and Markovski and the contrary interpretation of § 1255(i) urged by Ms. Birdsong in this case, the court was "unable to conclude that the statutory language is clear and unambiguous with respect to whether a K-1 visa holder is restricted from obtaining adjustment of status under § 1255 except as provided in subsection (d)." Id. at 885. Applying the Supreme Court's decision in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the court rejected both plain-language approaches and upheld the denial of adjustment of status under § 1255(i) because the Attorney General's regulations that "permit a K-1 visa holder to apply for adjustment of status only based upon marriage to the petitioning United States citizen fiancé(e)" are reasonable and a permissible construction of the statute. Zhang, 375 Fed.Appx. at 885.
On appeal, ignoring the decision in Zhang altogether, Ms. Birdsong concedes that she is ineligible for adjustment of status under 8 C.F.R. § 1245.1(c)(6) but argues that § 1255(i) is "clear on its face" and a regulation may not contradict the plain language of the statute. We agree with the general proposition but disagree that the plain language of § 1255(i) answers the question before us. In considering whether a statute is clear and unambiguous under Chevron, the question is whether § 1255(i) "speak[s] with the precision necessary to say definitively whether it applies" to Ms. Birdsong's application for adjustment of status. United States v. Eurodif S.A., 555 U.S. 305, 129 S.Ct. 878, 888, 172 L.Ed.2d 679 (2009). "[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778. The Court has also noted "that judicial deference to the Executive Branch is especially appropriate in the immigration context" because of its impact on foreign relations. INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); see 8 U.S.C. §§ 1103(a)(1), 1184(a).
We find it helpful to view the plain-language issue in historical perspective.
Subsection 1255(i), on the other hand, was added to the statute in 1994 as part of an annual Department of State appropriations bill. As explained by the Department of Justice in promulgating a contemporaneous interim regulation:
Adjustment of Status to That of Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility, 59 Fed. Reg. 51091, 51092-93, 1994 WL 543334 (Oct. 7, 1994) (emphasis added). Consistent with this explanation, the interim rule modified 8 C.F.R. § 245.1(c)(6) to provide, as the final regulations now provide:
8 C.F.R. §§ 245.1(c)(6)(i), 1245.1(c)(6)(i).
This chronological perspective, plus the fact that § 1255(a) is the lead and dominant subsection and § 1255(i) was later added for a limited purpose, support the conclusion of the Ninth Circuit and the
Turning therefore to the second part of the Chevron analysis, we agree with the Tenth Circuit that 8 C.F.R. §§ 245.1(c)(6)(i) and 1245.1(c)(6)(i) are a permissible construction of § 1255 that is entitled to Chevron deference. These provisions, which bar Ms. Birdsong as a K-1 visa holder from adjusting her status on any basis other than her marriage to the U.S. citizen who petitioned on her behalf, are consistent with the "carefully crafted scheme that Congress created for the purpose of avoiding marriage fraud." Kalal, 402 F.3d at 952. Of course, Congress could have permitted some K-1 visa holders to avoid its antifraud restrictions by adjusting their status under § 1255(i) after entry, but the Attorney General reasonably concluded that § 1255(i) did not reflect an intent to do so.
Ms. Birdsong further argues that the IJ violated her right to due process by failing to hold a hearing on the merits of her discretionary adjustment-of-status application. This contention is without merit. After giving counsel for Ms. Birdsong ample opportunity to brief this issue of statutory construction, the IJ and the BIA determined, correctly in our view, that she had conceded removability and was ineligible for adjustment of status as a matter of law. No further hearing was needed. Had we reversed the BIA's determination of ineligibility, we would have remanded for whatever hearing on the discretionary adjustment-of-status issues might then have been appropriate.
We deny the petition for review.