McKAY, Circuit Judge.
Petitioner Bo Hae Lee seeks judicial review to determine whether an agency's statutory construction of one of its operating statutes is legally permissible. Ms. Lee is a citizen of South Korea. She came to the United States as a twelve-year-old in 1999 with her parents on a B-2 nonimmigrant visitor visa. She subsequently applied for and received a change in visa status to the F-1 nonimmigrant student category, allowing her to attend a private school approved by the Attorney General of the United States.
The last approved private school Ms. Lee attended was Riverview Christian Academy in Colorado. After her sophomore year, when Ms. Lee was sixteen, the school ceased operations. The school's closure required Ms. Lee to seek an alternative for schooling. Riverview Christian Academy attempted to assist Ms. Lee in applying to another private school, but the other private schools were too far from her residence, and Ms. Lee understood it would be difficult for her to achieve admittance. Therefore, Ms. Lee attended a local public high school, graduating in May 2005.
In September of 2003, a few months after Ms. Lee's private school closed, she filed for a status adjustment, which was denied. The following year, on July 14, 2004, the Immigration and Naturalization Service issued a Notice to Appear charging Ms. Lee with being subject to removal because of her remaining in the United States longer than permitted and being in violation of her nonimmigrant status. Ms. Lee again asked for a status adjustment, but the government attorney argued against the adjustment. He explained Ms. Lee could not obtain a status adjustment because she could not meet her burden of showing admissibility due to her no longer attending the private school for which she had been approved and attending a public school without reimbursing it for her education.
To obtain a status adjustment, Ms. Lee had to: (1) apply for an adjustment, (2) prove she was "eligible to receive an immigrant visa and [was] admissible to the United States for permanent residence," and (3) have "an immigrant visa immediately available to [her] at the time [her] application [was] filed." 8 U.S.C. § 1255(a). The Government argued Ms. Lee failed under the second step of proving admissibility.
Even though the Immigration Judge stated that "[m]aybe [Ms. Lee] was not at fault for terminating her studies at the school, and I do think she ended her studies there because she had to," he ultimately refused to adjust Ms. Lee's status from nonimmigrant to permanent resident because he found Ms. Lee had not met her burden of proving she was admissible. (R. at 35-36.) His findings and legal conclusions included determining Ms. Lee was a student visa abuser under 8 U.S.C. § 1184(m) for terminating her course of study at her private school and undertaking a course of study at a public school. In a cursory decision, the Board of Immigration Appeals affirmed the IJ's findings on the merits, without reviewing an untimely brief filed by Ms. Lee's attorney on her behalf.
Although 8 U.S.C. § 1182(a)(6)(G) refers to 8 U.S.C. § 1184( l) as the section under which an alien may violate her status, the parties agree there is a typographical error in the referring statute and that the correct section is § 1184(m).
We review de novo questions of law raised upon petition for review, and we review the agency's findings of fact under the substantial evidence standard. See Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004); Rubio-Rubio v. INS, 23 F.3d 273, 276 (10th Cir. 1994); see also 8 U.S.C. § 1252(a)(2)(D).
The crux of this appeal is a question of law: whether the IJ's statutory construction of 8 U.S.C. § 1184(m)(2) is correct in concluding Ms. Lee's actions constituted a termination of her course of study. Ms. Lee argues that the IJ's statutory construction of § 1184(m)(2) and the BIA's upholding of that construction are impermissible under the plain language of the statute. We agree.
Section 8 U.S.C. § 1252(a)(2)(B)(I) precludes judicial review of agency decisions under § 1255(a), the section in which a nonimmigrant may obtain a status adjustment. See 8 U.S.C. § 1252(a)(2)(B)(I). However, 8 U.S.C. § 1252(a)(2)(D) states:
Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. Even though the agency made a decision under § 1255(a), that decision is reviewable for a question of law.
See Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007). Petitioner presents a question of law: whether the IJ's statutory construction of § 1184(m)(2) is permissible. Therefore, this court has jurisdiction under § 1252(a)(2)(D).
According to § 1255(a), an alien may receive an status adjustment from nonimmigrant to permanent resident if the alien meets the three requirements listed therein. To meet the second requirement, an alien must prove she is admissible. In Ms. Lee's case, the IJ found she had not met that burden because she was inadmissible under § 1182(a)(6)(G) as a student visa abuser. The IJ determined Ms. Lee abused her student visa status because she violated a term or condition of her status under § 1184(m)(2) by terminating her attendance at Riverview Christian Academy, even though he acknowledged that termination may not have been her fault.
This section provides:
An alien who obtains the status of a nonimmigrant under section 1101 (a)(15)(F)(i) of this title and who violates a term or condition of such status under section 1184(
l) of this title is inadmissible until the alien has been outside the United States for a continuous period of 5 years after the date of the violation.
§ 1182(a)(6)(G).
Section 1184(m)(2) provides:
An alien who obtains the status of a nonimmigrant under clause (i) or (hi) of section 1101(a)(15)(F) of this title in order to pursue a course of study at a private elementary or secondary school or in a language training program that is not publicly funded shall be considered to have violated such status, and
the alien's visa under section 1101(a)(15)(F) of this title shall be void, if the alien
terminates or abandons such course of study at such a school and undertakes a course of study at a public elementary school, in a publicly funded adult education program, in a publicly funded adult education language training program, or at a public secondary school (unless the requirements of paragraph (1)(B) are met).
§ 1184(m)(2) (emphasis added). Thus, in order to violate her status, Ms. Lee had to "terminate or abandon" her studies at "such a school."
"The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We begin by analyzing the plain language employed by Congress, and we "must give words their ordinary or natural meaning." Leocal v. Ashcroft, 543 U.S. 1, 8-9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (internal quotation marks omitted); Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). Importantly, "we assume that the legislative purpose is expressed by the ordinary meaning of the words used." Am. Tobacco Co., 456 U.S. at 68, 102 S.Ct. 1534 (internal quotation marks omitted).
"When a court reviews an agency's construction of the statute which it administers," it must first answer "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If congressional intent is clear from the statutory language, the inquiry is over, and both the court and the agency "must give effect to the unambiguously expressed intent of Congress." See id. at 842-43, 104 S.Ct. 2778. However,
[i]n making the threshold determination under
Chevron, "a reviewing court should not confine itself to examining a particular statutory provision in isolation."
FDA v. Brown Williamson Tobacco Corp., 529 U.S. 120, 132,
120 S.Ct. 1291,
146 L.Ed.2d 121 (2000). Rather, "[t]he meaning — or ambiguity — of certain words or phrases may only become evident when placed in context. . . . 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.'"
Id. at 132-33,
120 S.Ct. 1291.
Nat'l Ass'n of Home Builders v. Defenders of Wildlife,
___ U.S. ___,
127 S.Ct. 2518, 2534, 168 L.Ed.2d 467 (2007) (second alteration in original) (explaining the Court would not construe the statute in that case to "implicitly abrogate or repeal" the operation of many mandatory agency directives and thereby create differing mandates).
We discuss first the school to which the statute refers. In the plain language of the statute, the antecedent of the term "such a school" is "a private . . . secondary school," § 1184(m)(2), specifically described in the reference statute, 8 U.S.C. § 1101(a)(15)(F), as "an established . . . academic high school . . . particularly designated by the immigrant and approved by the Attorney General after consultation with the Secretary of Education." The relevant regulation describing the duration of an alien's nonimmigrant status on an F-1 visa links the status duration specifically to "an educational institution approved by the Service for attendance by foreign students." 8 C.F.R. § 214.2(f)(5)(i); see also United States v. Atandi, 376 F.3d 1186, 1187 n. 1 (10th Cir. 2004).
Because § 1184(m)(2) refers specifically to "such" a school rather than to "a" or "any" private school, and because its internal statutory references and the regulations regarding F-1 student visa duration point only to a school specifically selected by the immigrant and approved by the government, we hold that the school to which the statute refers in this case is Riverview Christian Academy, the school selected specifically by Ms. Lee and approved by the government. Having established that the school in question is Riverview Christian Academy, we now scrutinize whether Ms. Lee terminated or abandoned her course of study at this school.
Beginning with the plain language of the statute, we note that "terminate" is defined as: "1. To put an end to; to bring to an end. 2. To end; to conclude." Black's Law Dictionary 1511 (8th ed. 2004). To abandon means:
To desert, surrender, forsake, or cede. To relinquish or give up with intent of never again resuming one's right or interest. To give up or to cease to use. To give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to desert. It includes the intention, and also the external act by which it is carried into effect.
Black's Law Dictionary 2 (6th ed. 1990) (internal citations omitted) (providing the last included definition of the word "abandon," which was omitted in subsequent editions). Thus the ordinary meaning of both these words requires the alien to act, not to be acted upon.
Because we must first assume congressional intent is indicated by the ordinary meaning of the words used, we hold that Congress intended to penalize only an alien who acts affirmatively to terminate or to abandon such course of study at such a school. This statutory construction does not create a conflict with the root of the statutory scheme. It merely clarifies Congress's intent that an alien must affirmatively act to become a student visa abuser under § 1184(m)(2). That status may not be thrust upon her.
Because the reason Ms. Lee no longer attended Riverview Christian Academy was that it ceased operating, Ms. Lee took no affirmative action to terminate or to abandon her course of study at the school. Instead, the school acted, and Ms. Lee reacted. It is obvious the IJ did not take into account the affirmative action required of Ms. Lee by the statute when he found she "ended her studies there because she had to, but that would be a termination of her studies at that particular school." (R. at 35-36 (emphasis added).) In reviewing the IJ's statutory interpretation, we hold that he erred in concluding Ms. Lee terminated or abandoned her course of study at Riverview Christian Academy, was therefore a student visa abuser, and thus could not meet her burden of proving she was admissible for a status adjustment under § 1255(a).
Even though the government argues that Ms. Lee's actions make her a student visa abuser and that she falls within the scope of Congress's overall intent to prevent aliens from educating themselves at the taxpayers' expense, we conclude we cannot interpret the plain language in § 1184(m)(2) to mean that a private school's closing constitutes an alien's affirmative action to terminate or to abandon her course of study at that school.
Finally, Ms. Lee's termination or abandonment of her course of studies is explicitly listed in the conjunctive with the second part of the statute proscribing her attendance at a publicly funded school. Therefore, because Ms. Lee did not terminate or abandon her course of studies under the plain language of § 1184(m)(2), we need not reach the second prong of the statute to determine if her attendance at a public high school placed her in violation of her student visa status.
We REVERSE and REMAND this case for further proceedings consistent with this opinion.