Nino Arobelidze v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2986
NINO AROBELIDZE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A095 592 580
ARGUED MAY 2, 2011—DECIDED JULY 27, 2011
Before POSNER, KANNE, and TINDER, Circuit Judges.
KANNE, Circuit Judge. Nino Arobelidze and her
mother entered the United States on temporary visas in
1998. The two went on to apply for permanent residence.
While their applications were pending, Nino’s mother
violated the terms of her temporary visa by continuing
to work in the United States after the visa had expired.
Both applications for residence were denied in light of
Nino’s mother’s oversight. After Nino’s mother ob-

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2 No. 10-2986
tained a new temporary visa and reapplied for
permanent residence, Nino again applied for residence
as well. The rub was that Nino turned twenty-one
during the bureaucratic process. Based on Nino’s
change in age, the Department of Homeland Security
concluded that Nino was no longer a derivative bene-
ficiary of her mother and thus no longer eligible to apply
for residence under the provision she invoked. When
removal proceedings began, Nino claimed that the Child
Status Protection Act (CSPA) operated to freeze her age
as of the date of her mother’s original visa classifica-
tion petition, meaning that she was still a beneficiary of
her mother as of her second application. Both the im-
migration judge and the Board of Immigration Appeals
were unconvinced, the latter holding that the CSPA
did not even apply to Nino in light of its effective date
section. Nino now petitions for review of the Board’s
determination, claiming that its interpretation of the
effective date section is incorrect. Because we agree with
Nino that the Board’s interpretation is unpersuasive,
we grant the petition, vacate the Board’s opinion, and
remand the case for further proceedings.
I. BACKGROUND
Nino came to the United States in 1998 at the age of
fourteen. She arrived from Georgia with her mother,
Dr. Rusodan Kotaria. Dr. Kotaria, a biomedical researcher,
was granted a temporary visa permitting her to live and
work in the United States for a brief period. As her de-
pendant child, Nino was granted a temporary visa to
accompany her.

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No. 10-2986 3
Over the course of three years, Dr. Kotaria’s star rose
within the scientific community. In 2001, the Chicago
Medical School filed a visa classification petition for
Dr. Kotaria, labeling her an outstanding researcher.
The Department of Homeland Security approved the
petition in June 2002. The newly-approved petition
allowed Dr. Kotaria to do two things: to convert her
status so as to legally work in the United States until
March 8, 2003, and to apply for permanent residence (an
“adjustment of status”). As her dependant, Nino was
permitted to convert her status so as to remain with her
mother and—more importantly—was able to apply for
permanent residence alongside her.
Nino and Dr. Kotaria applied for adjustment of status
in August 2002. Both applications were still pending
with the Department in March 2003, when Dr. Kotaria’s
temporary visa expired. Dr. Kotaria continued working
beyond March 2003, in violation of her visa. In light of
that error, the Department denied Dr. Kotaria’s applica-
tion for adjustment of status in December 2004. Nino’s
application was denied at the same time—as a derivative
beneficiary, Nino could only obtain an adjustment if her
mother’s application succeeded.
Dr. Kotaria’s problem was easily rectified; Nino’s, as it
would turn out, was not. Dr. Kotaria returned to Georgia,
obtained a new temporary visa from the United States
Embassy located there, and returned to the United
States in mid-2005. She then applied for permanent resi-
dence, which was granted in March 2006.
Nino remained in the United States during her mother’s
sojourn to Georgia. Once her mother returned, Nino

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4 No. 10-2986
filed a second application for adjustment of status. The
problem was that, around the time that her first applica-
tion was denied, Nino had turned twenty-one. Given
her change in age, the Department denied her second
application for adjustment of status, reasoning that she
was no longer a derivative beneficiary of her mother as
of her second application and thus could not obtain an
adjustment through her.
Removal proceedings for Nino commenced on Feb-
ruary 10, 2006. At the removal hearing, Nino contested
the denial of her second adjustment-of-status application.
She argued that the substantive part of the CSPA operated
to freeze her age at the date of her mother’s initial classifi-
cation petition, meaning that she was still the derivative
beneficiary of her mother as of her second applica-
tion for adjustment of status. The immigration judge
disagreed, ruling on policy grounds that the CSPA
was meant to protect children who age out during the
processing of their application. It was not, according to
the immigration judge, meant to assist parties whose
applications were denied on other grounds. The Board
affirmed in a non-precedential opinion, agreeing with
the reasoning of the immigration judge.
Nino brought her case to this court on a petition for
review, claiming again that the plain language of the
CSPA dictated that she was still a child for adjustment
purposes. We referred the case to mediation, after which
the parties filed a motion with the Board to reopen the
case. The Board agreed to reopen, but permitted very
limited briefing, foreclosing a reply brief from Nino. The

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No. 10-2986 5
Board then issued another non-precedential opinion, again
denying Nino’s appeal. This time the Board relied on
the effective date section of the CSPA, ruling that Nino
did not qualify for any of the CSPA’s benefits.
Nino again petitions this court for review.
II. ANALYSIS
Nino’s single claim in her petition for review is that the
Board erred in its reading of the CSPA’s effective date
section. The government’s response is two-fold: first, it
claims that Nino did not exhaust her remedies before the
Board; and second, it argues that the CSPA does not
apply to Nino because she does not fall within the
Act’s effective date section.
A. Administrative Exhaustion
We take up the alleged failure to exhaust first. The
government points out that Nino made no argument
regarding the effective date provision and thus did not
exhaust her administrative remedies. Nino concedes as
much. She faults the limited briefing schedule imposed
on the parties by the Board when the case was reopened.
That schedule, Nino complains, impeded her from
replying to the government’s eleventh-hour argument
regarding the effective date provision, an issue that no
one—not the Board, the government, or Nino—raised
prior to the reopening.
As the government correctly observes, an immigration
petitioner must exhaust all available administrative

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6 No. 10-2986
remedies before seeking review in this court. 8 U.S.C.
§ 1252(d)(1). That obligation usually forecloses a peti-
tioner from raising an issue in federal court that was not
raised before the immigration tribunal. Aguilar-Mejia
v. Holder, 616 F.3d 699, 704 (7th Cir. 2010). We say “usu-
ally” because there are a number of exceptions to this
rule. First, and less relevant here, are the exceptions
that flow from the fact that the general exhaustion re-
quirement is not “a jurisdictional rule in the strict sense
that the Supreme Court has emphasized we must fol-
low.” Issaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010).
Because the rule is non-jurisdictional, it is subject to
waiver, forfeiture, and other discretionary considera-
tions. Juarez v. Holder, 599 F.3d 560, 564 n.3 (7th Cir.
2010); Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th
Cir. 2006). Second, and more germane to this case, is the
exception for issues that are not raised by the parties
but instead addressed by the administrative agency
itself. MBH Commodity Advisors, Inc. v. Commodity Futures
Trading Comm’n, 250 F.3d 1052, 1060 n.3 (7th Cir. 2001);
Watson v. Henderson, 222 F.3d 320, 322 (7th Cir. 2000). This
latter exception recognizes that once the Board
addresses an issue on its own, the issue is “exhausted
to the extent it could be,” even if it was not raised by
the parties. See Nazarova v. INS, 171 F.3d 478, 489 (7th
Cir. 1999) (Manion, J., dissenting).
Practical considerations undergird this second excep-
tion. The exhaustion requirement serves a number of
goals: it gives the Board an opportunity to apply its
specialized knowledge and experience to the matter, it
provides the petitioner with the relief requested in the

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No. 10-2986 7
first instance, and it provides us with reasoning to
review. See Padilla v. Gonzales, 470 F.3d 1209, 1213 (7th
Cir. 2006); Gonzalez v. O’Connell, 355 F.3d 1010, 1017-18
(7th Cir. 2004). When the Board addresses an issue on
its own, all of these concerns are satisfied, and it
therefore makes little sense to deem an issue not raised
by the parties unreviewable.
The parties argue needlessly over whether we can set
aside Nino’s failure to bring up the effective date
section, ignoring the fact that the Board exhausted the
matter. In its most recent order, the Board departed
from its prior reason for denying Nino’s appeal. Rather
than continue to rely on the policy of the CSPA, the
Board ruled that Nino did not fall within the effective
date section of the Act. In doing so, the Board applied
its knowledge and expertise to the issue, analyzing the
reach of the effective date section and providing us
with reasoning to review. Exhaustion satisfied, we can
proceed to Nino’s claim.
B. The Effective Date Section of the CSPA
Nino primarily argues that the Board’s reading of the
effective date section is at odds with the text, purpose,
and legislative history of that section. For its part, the
government responds that Nino clearly falls outside of
the plain text of the effective date section. In the alterna-
tive, the government submits that, even if the text of the
effective date section is ambiguous, the Board’s inter-
pretation of it was a reasonable one to which we
should defer.

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8 No. 10-2986
The CSPA’s effective date section provides:
The amendments made by this Act shall take effect
on the date of the enactment of this Act and shall
apply to any alien who is a derivative beneficiary
or any other beneficiary of—
(1) a petition for classification under sec-
tion 204 of the Immigration and Na-
tionality Act (8 U.S.C. 1154) approved
before such date but only if a final
determination has not been made on
the beneficiary’s application for an
immigrant visa or adjustment of
status to lawful permanent residence
pursuant to such approved petition;
(2) a petition for classification under sec-
tion 204 of the Immigration and Na-
tionality Act (8 U.S.C. 1154) pending
on or after such date; or
(3) an application pending before the De-
partment of Justice or the Department
of State on or after such date.
Child Status Protection Act of 2006, Pub. L. No. 107-208,
§ 8, 116 Stat. 930 (2006). The single member of the Board
who heard the case viewed subsection (1) as imposing
two requirements: a visa petition must have been
approved prior to the CSPA’s enactment, and there must
not have been a final determination on a beneficiary’s
application at any time afterwards. Dr. Kotaria’s petition
was approved on June 27, 2002, almost a year before the

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No. 10-2986 9
CSPA was enacted, so Nino cleared the first hurdle.
But because Nino had a final determination on one ap-
plication for adjustment of status, the Board concluded
that she tripped over the second requirement. The
Board determined that neither of the other subsections
applied to Nino, and thus Nino was not covered under
the CSPA.
We review issues of law—including challenges to
the Board’s interpretation of the Immigration and Nation-
ality Act (INA)—de novo. Kiorkis v. Holder, 634 F.3d 924,
928 (7th Cir. 2011). Our analysis begins with the
statute’s language. Barnhart v. Sigmon Coal Co., 534 U.S.
438, 450 (2002). Where Congress’s intent is clear
from that language, it must be given effect—neither the
agency nor this court may deviate from it. See Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-43 (1984). Where the statute is ambiguous, however,
we owe some deference to the interpretation advanced
by the agency assigned to administer the statute. White
v. Scibana, 390 F.3d 997, 1000 (7th Cir. 2004).
Each party begins by arguing that the text of the
effective date section is unambiguous and militates in
its favor. We disagree. The Board has already deter-
mined, in a previous opinion, that the language of sub-
section (1) is unclear, see In re Avila-Perez, 24 I. & N. Dec.
78, 83 (BIA 2007), and we are similarly perplexed by it.
The “before such date” language might be reasonably
understood as applying only to the text preceding it—
a reading the Board adopted and the government
argues for today. Under that reading, subsection (1) would

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10 No. 10-2986
The presence of an ambiguity here should hardly be a surprise 1
to the government. The web site for the United States Citizen-
ship and Immigration Services, the division of the Department
of Homeland Security that oversees lawful immigration to
the United States, provides an explanation for the CSPA’s
eligibility requirements. The site states that a party is covered
under the CSPA if they are “the beneficiary of a pending or
approved visa petition on or after August 6, 2002,” they have
(continued...)
not apply to beneficiaries of petitions approved prior to
the effective date if they had a final decision on an ap-
plication at any time after that point—including any
time after the statute was enacted. That reading is con-
sistent with the text of subsection (1), but it infringes on
the overall structure of the effective date section, whose
other subsections expressly deal with conduct occurring
after the CSPA’s enactment. On the other hand, the
“before such date” language could be rationally read to
apply to the entirety of subsection (1)—a reading ad-
vanced by Nino. Under that reading, subsection (1)
would cover all beneficiaries of petitions approved be-
fore the statute was enacted, removing from the CSPA’s
coverage only those beneficiaries who had a final ad-
judication on an application prior to the CSPA’s enact-
ment. That reading would better serve the overall
structure of the effective date section, but it is not, on
its face, a more natural reading of subsections (1)’s text.
When, as here, “there are two plausible but different
interpretations of statutory language, there is ambiguity.”
Khan v. United States, 548 F.3d 549, 556 (7th Cir. 2008).1

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No. 10-2986 11
(...continued) 1
not “had a final decision on an application for adjustment of
status . . . before August 6, 2002,” and they “ ‘seek to acquire’
permanent residence within 1 year of a visa becoming avail-
able.” United States Citizenship and Immigration Services, Child
Status Protection Act, http://www.uscis.gov/portal/site/uscis/
menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=
1f0c0a5659083210VgnVCM100000082ca60aRCRD&vgnextchan
nel=1f0c0a5659083210VgnVCM100000082ca60aRCRD (last vis-
ited July 20, 2011). The site goes on to remind parties that they
may be eligible if they “had not received a final decision on
an application for permanent residence . . . prior to August 6,
2002.” Id. While statements on the USCIS’s website are not
dispositive, the fact that the USCIS read the statute in a way
that is in tension with the government’s reading suggests that
the section is indeed ambiguous.
Anticipating this ambiguity, the government urges
us to apply Chevron deference to the Board’s non-
precedential interpretation of the effective date section.
If Chevron deference applied, it would require us to
adopt the Board’s interpretation of the statute unless
its construction was unreasonable. See Chevron, 467 U.S.
at 842-43, 845. We note, however, that Chevron deference
is not triggered in all cases. “Even when we are talking
about interpretations of statutes [like the INA], not every-
thing that an agency produces is entitled to the strongest
form of deference.” Joseph v. Holder, 579 F.3d 827, 831 (7th
Cir. 2009).
The Supreme Court clarified Chevron’s reach in United
States v. Mead Corp., 533 U.S. 218 (2001). In Mead, the
Court was tasked with determining the level of deference

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12 No. 10-2986
owed to letters issued by the United States Customs
Service. The letters—which instructed parties on their
tariff classifications—were binding only on the party at
issue, were not subject to notice and comment, and
could be modified largely without notice. Id. at 223. The
Court held that “administrative implementation of a
particular statutory provision qualifies for Chevron defer-
ence when it appears that Congress delegated authority
to the agency generally to make rules carrying the force
of law, and that the agency interpretation claiming defer-
ence was promulgated in the exercise of that authority.”
Id. at 226-27. Because the letters did not have the force
of law, Chevron deference did not apply. Id. at 231-32.
Our task, in light of Mead, is to determine what procla-
mations by the Board carry the force of law, as only
those proclamations are entitled to Chevron deference.
Decisions by a three-member panel of the Board obviously
carry the force of law, as the Board’s regulations make
clear that those decisions have precedential value and
are binding on the Board when it decides future cases.
See 8 C.F.R. § 1003.1(e)(6); Joseph, 579 F.3d at 832.
Similarly, non-precedential Board decisions that them-
selves rely on applicable Board precedent would also
carry the force of law, as the non-precedential disposi-
tion is merely applying reasoning that already carries
precedential weight. See Lagunas-Salgado v. Holder, 584
F.3d 707, 711 (7th Cir. 2009); Ali v. Mukasey, 521 F.3d
737, 739 (7th Cir. 2008).
The question remains whether non-precedential Board
opinions that do not rely on binding Board precedent
are deserving of Chevron deference. Relying on Mead, all

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No. 10-2986 13
of our sister circuits to address the issue have con-
cluded these non-precedential opinions—which by the
Board’s regulations do not carry the force of law—are not
analyzed under Chevron. Rotimi v. Gonzales, 473 F.3d 55, 57-
58 (2d Cir. 2007) (per curiam); Garcia-Quintero v. Gonzales,
455 F.3d 1006, 1013-14 (9th Cir. 2006); Carpio v. Holder,
592 F.3d 1091, 1097 (10th Cir. 2010); Quinchia v. U.S. Att’y
Gen., 552 F.3d 1255, 1258 (11th Cir. 2008). Another
circuit dodged the question but gave us a peek at its
hand, a peek that similarly swings against Chevron defer-
ence for non-precedential opinions. De Leon-Ochoa v.
Att’y Gen. of U.S., 622 F.3d 341, 350-51 (3d Cir. 2010). The
remaining circuits have ducked the question entirely.
Vasquez v. Holder, 635 F.3d 563, 567 n.6 (1st Cir.
2011); Cervantes v. Holder, 597 F.3d 229, 233 n.5 (4th
Cir. 2010); Mushtaq v. Holder, 583 F.3d 875, 877 (5th Cir.
2009); Japarkulova v. Holder, 615 F.3d 696, 700-01 (6th Cir.
2010); Godinez-Arroyo v. Mukasey, 540 F.3d 848, 850-51
(8th Cir. 2008).
Out of all of the circuits to address the question, we are
the only one to go the other way. In Gutnik, we deter-
mined that these streamlined, non-precedential opinions
are given Chevron deference so long as the Board provides
us with some reasoning to review. Gutnik v. Gonzales, 469
F.3d 683, 690 (7th Cir. 2006). In doing so, we relied on the
Supreme Court’s general statement in Aguirre-Aguirre
that “ ‘[j]udicial deference to the Executive Branch is
especially appropriate in the immigration context.’ ” Id.
(quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 416 (1999)).
But Mead came after Aguirre-Aguirre, and it made clear
that the sine qua non of Chevron deference is an agency

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14 No. 10-2986
This opinion has been circulated among all judges of this 2
court in regular active service pursuant to Circuit Rule 40(e).
No judge favored a rehearing en banc on the question of
overruling the relevant part of Gutnik v. Gonzales.
statement carrying the force of law. Mead, 533 U.S. at 226-
27. It is for that reason that we have expressed doubts
about Gutnik’s vitality. See, e.g., Chen v. Holder, 607 F.3d
511, 514 (7th Cir. 2010); Ghani v. Holder, 557 F.3d 836, 840
(7th Cir. 2009); Joseph, 579 F.3d at 833. Today we hold
that non-precedential Board decisions that do not rely
on binding Board precedent are not afforded Chevron
deference. To the extent that Gutnik is inconsistent
with this, it is overruled.2
Just because Chevron deference does not apply does
not mean that we owe no deference to the Board’s inter-
pretation. Skidmore deference still applies to less formal
statements by an agency, see Mead, 533 U.S. at 234-35, and
non-precedential opinions by the Board certainly fall
within that group, see Carpio, 592 F.3d at 1098. Under
Skidmore deference, the Board’s interpretation is “ ‘entitled
to respect’—but only to the extent that [it has the] ‘power
to persuade.’ ” Bailey v. Pregis Innovative Packaging, Inc., 600
F.3d 748, 751 (7th Cir. 2010) (quoting Christensen v. Harris
Cnty., 529 U.S. 576, 587 (2000)). To assess the persuasive
power of the Board’s decision, we examine “the thorough-
ness evident in its consideration, the validity of its rea-
soning, its consistency with earlier and later pronounce-
ments, and all those factors which give it power to per-
suade, if lacking power to control.” Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944).

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No. 10-2986 15
We cannot say that the Board’s interpretation of sub-
section (1), which led it to hold that Nino fell outside of
the CSPA’s coverage, is persuasive. For one, the Board’s
consideration is far from thorough—its effective date
analysis occupied all of a paragraph of thought. The
Board made no effort to consider how its interpretation
of subsection (1) harmonized (or failed to harmonize)
with the other effective date subsections. Moreover, the
Board did not address the legislative history of subsec-
tion (1) or the tension between the Board’s reading and
the fact that the CSPA was meant to be an ameliorative
statute, applying to as many parties as practicable. These
are proper inquiries that the Board ignored.
The Board’s analysis also fails to address reasoning
it employed in a prior, precedential opinion. In Avila-
Perez, the Board was tasked with determining whether
the CSPA applied to a petitioner who had been the deriva-
tive beneficiary of a petition for classification, but had not
filed an application for adjustment of status before the
statute was enacted. In re Avila-Perez, 24 I. & N. Dec. at
80. That question required the Board to explore subsec-
tion (1), a subsection it deemed ambiguous. In analyzing
the effective date section’s legislative history, the Board
determined that subsection (1) was “intended to expand
the coverage of the statute beyond those individuals
whose visa petitions and applications were pending on
the date of the CSPA to also protect those individuals
whose visa petitions were approved before the effective
date, but only if their applications had not already been
finally adjudicated.” Id. at 85 (emphasis added). This obser-
vation clashes with the Board’s conclusion here, and the
Board made no effort to address the inconsistency.

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16 No. 10-2986
The Board’s opinion suffers from another, related
problem: it ignores directly relevant legislative history.
Because subsection (1) is ambiguous, its legislative
history serves as a valid interpretive tool. See Khan, 548
F.3d at 556-57. That history recounts the purpose of what
is now subsection (1), and it cuts against the Board’s
reasoning. Originally, the CSPA was to apply to all benefi-
ciaries of visa petitions, whether the petitions were
filed before or after the CSPA’s enactment. See Padash v.
INS, 358 F.3d 1161, 1171-72 (9th Cir. 2004) (recounting
the history of subsection (1)). The Department of Justice
expressed discomfort with such wide-reaching retro-
activity. It noted that unlimited retroactivity would force
it to reopen cases as old as 1952, imposing records prob-
lems and creating administrative backlog. H.R. Rep.
No. 107-45, 6-7 (2001), reprinted in 2002 U.S.C.C.A.N. 640,
644, 2001 WL 406244. The end result was subsection (1),
which was seemingly designed to solve the Department’s
concerns over reviving cases long disposed of. See Padash,
358 F.3d at 1172; Avila-Perez, 24 I. & N. Dec. at 85. Nino’s
reading of the subsection satisfies the Department’s
concern without removing a large segment of intended
beneficiaries from the Act’s coverage. The Board’s
reading, however, would go too far—there should be no
records headache for matters still pending before the
Department when the CSPA became effective.
It is for all of these reasons that we find the Board’s
reading of subsection (1) unpersuasive. More to the point,
we are convinced that Nino’s reading is correct:
subsection (1) includes all beneficiaries of previously
approved visa petitions except those with applications
adjudicated prior to the CSPA’s enactment. This reading

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No. 10-2986 17
is more consistent with the legislative history of the
CSPA, harmonizes with the “longstanding principle of
construing any lingering ambiguities in deportation
statutes in favor of the alien,” INS v. Cardoza-Fonseca, 480
U.S. 421, 449 (1987), and meshes with the Board’s earlier
interpretation of subsection (1), see Avila-Perez, 24 I. & N.
Dec. at 85. Finally, this reading satisfies the Department
of Justice’s concerns over administrative backlog. (We
are confident that the Department will be thrilled that
it got what it asked of Congress.)
Applying subsection (1), we conclude that the CSPA
applies to Nino: her mother’s classification petition was
approved prior to the CSPA’s enactment, and neither of
Nino’s adjustment applications were decided prior to
the CSPA’s enactment. Whether the CSPA will help
Nino to attain permanent residency is another question,
one that will depend on the actual text of the Act’s sub-
stantive sections. That issue has not yet been fully ad-
dressed, and we accordingly leave it to the proper ad-
ministrative body on remand.
III. CONCLUSION
For the foregoing reasons, we GRANT the petition for
review, VACATE the Board’s decision, and REMAND the
case for further proceedings consistent with this opinion.
7-27-11

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