Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-6-2008

Kosak v. Dir BCIS
Precedential or Non-Precedential: Precedential

Docket No. 06-4055




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Kosak v. Dir BCIS" (2008). 2008 Decisions. Paper 1352.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1352


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                    PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                   No. 06-4055
                  ____________

           WAN-SWIN SUSAN KOSAK,

                                   Appellant

                        v.

    EDUARDO AGUIRRE, JR., Director of U.S.
   Citizenship and Immigration Services; MAURA
  HARTY, Assistant Secretary for Consular Affairs;
 ROBERT DEVINE, Acting Deputy Director of U.S.
        Citizenship and Immigration Services;
MICHAEL CHERTOFF, Secretary of the Department of
                 Homeland Security;
    CONDOLEZZA RICE, Secretary of State for
                  the United States;
   THE BOARD OF IMMIGRATION APPEALS,
   Executive Office of Immigration Review, U.S.
                Department of Justice
                       ____________

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
              District Court No.: 05-cv-00045
         District Judge: Honorable Jan E. Dubois
                       ____________

                 Argued December 6, 2007
             Before: McKEE, CHAGARES and
               HARDIMAN, Circuit Judges.

                   (Filed: March 6, 2008)

Joseph C. Hohenstein (Argued)
James J. Orlow
Orlow & Orlow
620 Chestnut Street
Suite 656
Philadelphia, PA 19106
       Attorneys for Appellant

Mary C. Frye (Argued)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Attorney for Appellees




                              2
                 OPINION OF THE COURT
                      ____________

HARDIMAN, Circuit Judge.

       In this case we review the Board of Immigration
Appeals’ construction of Section 203(a)(4) of the Immigration
and Nationality Act, which grants a visa preference to
“[q]ualified immigrants who are the brothers or sisters of
citizens of the United States.” 8 U.S.C. § 1153(a)(4). The
question presented is whether the District Court erred in
according Chevron deference to the BIA’s decision that adopted
children may not invoke this preference in favor of their
biological siblings. We hold that it did not.

                               I.

       Appellant Wan-Swin Kosak, a native of Taiwan, was
adopted by her aunt and uncle, both of whom are United States
citizens. Kosak entered the United States in 1981 as a lawful
permanent resident. In 1990 she filed an I-130 Petition for
Alien Relative pursuant to 8 U.S.C. § 1153(a)(4) on behalf of
her biological sister, Wan-Gin Hwang. The Vermont Service
Center (VSC) of the Immigration and Naturalization Service
(INS) granted the Petition, but when a visa became available for
Hwang in 2002, the U.S. Consulate in Taiwan declined to issue
it. The Consulate returned Kosak’s Petition to the VSC and
recommended revocation because it believed an adopted child
could not confer immigration benefits on her natural sibling. In

                               3
response to the Consulate’s actions, Kosak filed suit in the
United States District Court for the Eastern District of
Pennsylvania. Meanwhile, after the VSC initially issued a
notice of intent to revoke its approval of Kosak’s I-130 Petition,
it later reaffirmed its approval on March 16, 2004. Accordingly,
Kosak voluntarily dismissed her federal lawsuit. Before Wan-
Gin Hwang received her visa, however, the VSC changed
course, and on June 24, 2005, it revoked its re-approval of
Kosak’s I-130 Petition. Kosak appealed the revocation, and the
BIA dismissed her appeal in a per curiam opinion citing Matter
of Li, 20 I&N Dec. 700 (BIA 1993).

       Kosak appealed the BIA’s decision to the District Court
and filed a motion for summary judgment, arguing that the
BIA’s decision was erroneous. The government filed its own
summary judgment motion, which the District Court granted,
holding that the BIA’s interpretation of 8 U.S.C. § 1153(a)(4)
was entitled to Chevron deference. Kosak v. Devine, 439 F.
Supp. 2d 410, 417-18 (E.D. Pa. 2006). Kosak appeals the
District Court’s decision.

                               II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we review the BIA’s interpretation of the INA pursuant to
Chevron USA, Inc. v. Natural Resources Defense Council, 

, 842-43 (1984). INS v. Aguirre-Aguirre, 

,
424-25 (1999). If “Congress has directly spoken to the precise
question at issue,” its intent controls. 

.
Where the statute is “silent or ambiguous with respect to the
specific issue,” however, we will uphold the BIA’s

                                4
interpretation so long as it is “based on a permissible
construction of the statute.” 

        Kosak first claims that the unambiguous language of the
statute entitles her to relief. She argues that Congress intended
the “normal and natural” definitions of “brothers” and “sisters”
to control, namely, persons having at least one parent in
common. Kosak asserts that both she and Hwang are
“child[ren]” of their biological “parent[s]” as those terms are
defined in 8 U.S.C. §§ 1101(b)(1) and (2), and should therefore
be recognized as “sisters” for purposes of § 1153(a)(4). A BIA
District Director adopted a similar position in Matter of Fujii, 12
I&N Dec. 495, 496 (D.D. 1967) (The “relationship of brother
and sister created by the legitimate birth of the petitioner and
beneficiary to the same parents” is not destroyed “by the
subsequent adoption of the latter.”).

       The government counters that because adoption severs
the legal relationship between the natural parent/s and child for
immigration purposes, 8 U.S.C. § 1101(b)(1)(E)(i), it also severs
the relationship between natural siblings. In support of its
position, the government cites two BIA decisions and an opinion
of the Court of Appeals for the Ninth Circuit. Li, 20 I&N Dec.
at 703 (petitioner’s adoption severed relationship with natural
sibling because they no longer shared common parents); In re
Xiu Hong Li, 21 I&N Dec. 13, 17-18 (BIA 1995) (adoption
severed relationship with natural parents); Young v. Reno, 

, 888 (9th Cir. 1997) (finding permissible the INS’s
conclusion that adoption severed the legal relationship between
an adopted child and her natural siblings).


                                5
       Both Kosak and the government have advanced plausible
constructions of the statutory provisions at issue. As the
prolixity of the proceedings below suggests, the meaning of
§ 1153(a)(4) cannot be resolved with reference to Congress’s
“unambiguously expressed intent” in the statutory language.

. Because the statute does not define
“brothers” or “sisters,” Congress has not “directly spoken to the
precise question at issue.” 

Moreover, there is
nothing in the legislative history of § 1153(a)(4) to suggest that
Congress contemplated the effect of adoption on the sibling
relationship. 

. Although Congress
clearly intended adoption to sever the parent-child relationship,
8 U.S.C. § 1101(b)(1)(E)(i), there is no similar provision
regarding the sibling relationship.        In the face of this
Congressional silence and ambiguity, we defer to the BIA’s
construction of § 1153(a)(4) so long as it is a “permissible
interpretation of the statute.” Nat’l Small Shipments Traffic
Conf., Inc. v. United States, 

, 445 (3d Cir. 1989)
(quoting 

) (internal quotation omitted).

                               III.

       To find the BIA’s interpretation of § 1153(a)(4)
“permissible,” we “need not conclude that [its] construction was
the only one it permissibly could have adopted,” nor that we
would have adopted the same interpretation. 

n.11. In fact, we may not substitute our own construction
of § 1153(a)(4) “for a reasonable interpretation” of the BIA. 

So long as the agency’s construction “represents a
reasonable accommodation of conflicting policies that were
committed to the agency’s care by the statute,” we will not

                                6
disturb it. 

(quoting United States v. Shimer, 

, 383 (1961)).

        Kosak argues that the BIA’s interpretation was
impermissible because: (1) “determining an individual’s ‘status’
as a parent” is not within Congress’s or the BIA’s immigration
authority, and (2) denying preferential visa status to the natural
sibling of an adopted child is unnecessary to enforce the
“Congressional bar to natural parents receiving immigration
status from a child they put up for adoption.” We find these
arguments unpersuasive.

        First, as Kosak concedes, Congress and the BIA may
define the parameters of the parent-child relationship for
immigration purposes. In exercising this authority, Congress
specifically provided that “no natural parent of any . . . adopted
child shall thereafter, by virtue of such parentage, be accorded
any right, privilege or status under this chapter.” 8 U.S.C.
§ 1101(b)(1)(E)(i). Kosak argues that the word “status” refers
only to the parent’s “immigration status,” and that nothing in the
INA terminates the parent’s “natural,” “family law” status as
biological parent. Accordingly, Kosak urges us to use biological
status to define the sibling relationship for purposes of
§ 1153(a)(4).

       Contrary to Kosak’s argument, § 1153(a)(4) requires the
BIA to define the relationship between an adopted child and her
natural sibling only to determine the latter’s immigration status.
Because the BIA defines siblings as children of at least one
common parent, Matter of Kong, 17 I&N Dec. 151, 153 (BIA
1979), the BIA reasonably consulted the INA’s definitions of

                                7
“child” and “parent.” 8 U.S.C. §§ 1101(b)(1), (2). Recognizing
that adoption terminates the natural parent-child relationship
pursuant to § 1101(b)(1)(E)(i), the BIA concluded that adoption
also terminates the natural sibling relationship for immigration
purposes. These determinations are well within the BIA’s
purview regarding immigration matters and do not affect the
biological status of siblings.

       Second, Kosak argues that the BIA need not have held
that adoption severs the natural sibling relationship to give full
effect to the prohibition against natural parents receiving
immigration benefits through children they put up for adoption.
See 8 U.S.C. § 1101(b)(1)(E)(i). Instead, Kosak suggests that
the government “track” natural parents to prevent the “scenario
specifically prohibited by Congress whereby adopted children
obtain preferences for natural siblings who then obtain
preferences for natural parents.” 

.

       Initially, we question the feasibility of the tracking
system Kosak proffers because once the natural sibling becomes
a United States citizen, she enjoys the same rights as any
American, including the right to seek visas for her parents. 8
U.S.C. § 1151(b)(2)(A)(i). But even if Kosak’s proposal were
feasible, it is not the only permissible solution; the BIA’s
construction of the statute is equally permissible.

       Indeed, the BIA’s construction represents a “reasonable
accommodation” of the “conflicting policies” of keeping
families together, 

, and preventing
natural parents from obtaining immigration benefits through
children they put up for adoption. 

Chevron, 

at 844. Consistent with its precedent, the BIA concluded that
once an adoption occurs, the family to be unified is the adoptive
family, while the natural family, including siblings, may not
receive immigration benefits by virtue of the adoption. See Xiu
Hong Li, 21 I&N Dec. at 17 (citing Li, 20 I&N Dec. at 703)
(“[A]n alien should be recognized for immigration purposes as
a child of his natural parents or of his adoptive parents, but not
of both.”).

                               IV.

       Kosak also argues that the BIA’s interpretation of
§ 1153(a)(4) has changed too many times to be accorded any
deference. Indeed, the Supreme Court has stated that “[a]n
agency interpretation of a relevant provision which conflicts
with the agency’s earlier interpretation is ‘entitled to
considerably less deference’ than a consistently held agency
view.” INS v. Cardoza-Fonseca, 

, 447 n.30 (1987)
(quoting Watt v. Alaska, 

, 273 (1981)). But this
principle of law applies only to final agency interpretations, not
preliminary or deliberative ones. See 

“the
inconsistency of the positions the BIA has taken through the
years,” not on conflicting preliminary decisions subject to BIA
review) (emphasis added); Exxon Corp. v. Lujan, 

,
762 (10th Cir. 1992) (distinguishing the agency’s “three
different interpretations” of the relevant statute “over a number
of years” in Cardoza-Fonseca from a single prior decision of a
regional office of the Bureau of Land Management that lacked
precedential significance).



                                9
       Here, as Kosak notes, her Petition was transmitted back
and forth between INS agencies and the State Department for
several years before the VSC finally decided to revoke its initial
grant of her Petition. That final resolution alone is before us,
see 5 U.S.C. § 704, and we find it consistent with settled BIA
precedent that pre-dated Kosak’s I-130 petition by over a
decade. See 

(finding consistent the
BIA’s decisions regarding the sibling relationship from the 1979
Kong decision forward). Indeed, the BIA has held that the
sibling relationship is determined by reference to a common
parent, Kong, 17 I&N Dec. at 153; that adoption severs the
relationship between the natural parent and child, Xiu Hong Li,
21 I&N Dec. at 17-18; and that by severing the natural parent-
child relationship, adoption severs the relationship between
natural siblings for immigration purposes. Li, 20 I&N Dec. at
706. The only contrary authority, Fujii, 12 I&N Dec. at 496-97,
is a 1967 non-precedential decision of a BIA District Director
that the BIA has long since abrogated. See 8 C.F.R.
§ 1003.1(g); see also Kong, 17 I&N Dec. at 153; Li, 20 I&N
Dec. at 706. Therefore, we find nothing inconsistent about the
BIA’s jurisprudence on the effect of adoption on the sibling
relationship and we accord it the requisite deference.

                               V.

       In sum, because § 1153(a)(4) is silent with regard to the
meaning of “brother” and “sister,” we hold that the BIA’s
decision that adopted children may not invoke this visa
preference in favor of their biological siblings is a permissible
construction of the statute that is entitled to deference under


                               10
Chevron. Accordingly, we will affirm the judgment of the
District Court.




                          11