On January 25, the U.S. Department of Justice submitted a 150-page*Petition for a Writ of Certiorari to the Supreme Court*requesting the Court to review our victory in*DeOsorio v. Mayorkas*in the U.S. Court of Appeals for the 9th*Circuit.
Since we originally challenged the government’s failure to implement the “automatic conversation” clause of the*Child Status Protection Act*in 2008, it looks like this litigation may drag on for yet another year.
What follows is an article which explains the “automatic conversion” clause, and summarizes the federal litigation in this matter:
1.*******What is the automatic conversion clause?
It was written into the law by Congress in 2002, but has never been implemented.* In fact, until almost a year after multiple lawsuits were filed in Federal District Court, the government never even attempted to explain what the clause meant and what its benefits were.
It is codified as section 203(h)(3) of the Immigration and Nationality Act, and reads as follows:
“RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”
2.*******What does the automatic clause mean in simple English?
Here one example is worth 1,000 words.
Maria Garcia was born in Mexico.* In 1983, her U.S. citizen aunt submitted I-130 visa petition for her mother under the family-based 4th*preference category. *The petition was approved on the same day that it was filed. *At that time, Maria was 9 years and was entitled to benefit under this petition as a “derivative beneficiary”, that is, as her mother’s child.
However, by the time that a visa number became current in 1996, Maria had “aged-out”.* That is, she was over 21-years-old and under the pre-CSPA law, was no longer eligible to adjust her status to permanent resident along with her mother.* Her mother filed a 2B visa petition for Maria in 1997.
Maria applied for adjustment of status under section 245i in 1997.* The INS/USCIS held on to her application until 2004, two years after the enactment of CSPA, when it denied her application and placed her under removal proceedings.
In 2005, Maria, still unmarried and 32 years of age, renewed her application to adjust status in Court.* The Immigration Judge ruled that she was no longer her mother’s “child” and denied her application.**He held that CSPA did not apply to visa petitions filed prior to the day of the law’s enactment on August 6, 2002.**
Maria appealed the Judge’s decision to the*Board of Immigration Appeals (BIA)*which ruled unanimously in her favor.* The BIA ruled that CSPA, by its very words, applies to applications for adjustment of status which were pending on the date that the law was enacted.
With regard to the automatic conversion clause, the panel held that Maria was entitled to “retain” the original 1983 priority date and as the unmarried, adult daughter of a lawful permanent resident, her mother’s petition for her *was “automatically converted” to 2B category, and she was permitted to adjust her status.
This case was published by the BIA as a nonprecedential case,*Matter of Garcia.
3.*******Why were we forced to sue the USCIS in 2008?*
We had filed a number of I-130 petitions under the 2B category on behalf of children who “aged-out” after waiting for many years in line with their parents under the family-based 3rd*(married sons and daughters of U.S. citizens) and 4th*(brothers and sisters of U.S. citizens) preference categories.
In each case, we requested that the government apply the automatic conversion clause of CSPA, and accord these sons and daughters the priority date of the original 3rd*or 4th*preference petitions.* However, the government refused to do so, and did not promulgate regulations under CSPA or even issue a memo explaining their interpretation of the automatic conversion clause.
Again, an example illustrates the problem: *Elizabeth Magpantay, a Filipina, was petitioned by her father, a U.S. citizen, in 1991.* At that time, she and her husband had 4 small children.* However, by the time her priority date became current in 2005, 3 of her children had aged-out and she was forced to leave them behind when she immigrated to the U.S.** Although, she has petitioned for them to join the rest of their family under the 2B category, the USCIS has refused to follow CSPA and accord her children the 1991 priority date.* Unless the government does so, her children will not be able to join the family in the U.S. for over 20 years.* It would be even worse if the family were from Mexico since the wait for Mexicans exceeds 100 years!
On June 2008, Reeves & Associates filed a class action lawsuit against the USCIS for not granting benefits under the automatic conversion clause.* The same month, our law firm filed a similar lawsuit.* Later, both lawsuits were consolidated.
4.*******What happened in the Federal District Court?
After we both filed our complaints, the government moved to dismiss both lawsuits.* The government also requested, in the alternative, that the Judge hold the cases “in abeyance” because they had knowledge that the BIA was about to issue a precedent decision regarding CSPA’s automatic conversion clause.* The Judge postponed the cases for many months during which the BIA failed to issue a decision.* Finally, just after the Judge placed the cases back on his calendar, the BIA issued its decision in*Matter of Wang*which failed to follow the Board’s earlier non-precedent decision in*Matter of Garcia*and which greatly restricted the operation of the automatic conversion clause.* The Federal Judge deferred to*Matter of Wang, and dismissed both lawsuits as well as several other similar lawsuits.* We appealed the Judge’s decision to the U.S. Court of Appeals for the 9th*Circuit.
5.*******What happened in the Court of Appeals?
Initially, a three-judge panel dismissed the consolidated lawsuit in 2011 and deferred to the Board’s decision in*Matter of Wang.* However, less than a week after this ruling, the U.S. Court of Appeals for the 5th*Circuit in Texas, in*Khalid v. Holder, ruled for the immigrant in an automatic conversion case, creating a circuit split.
We then submitted a Petition for a Rehearing*En Banc to the 9th*Circuit (The government did the same in the 5th*Circuit, but their motion was denied.) which was granted.* We participated in*Oral Arguments*in June 2012 and on September 26th, the Court ruled in our favor.
However, on January 25, 2013, the U.S. Department of Justice submitted a Petition for a Writ of Certiorari with the Supreme Court of the United States.
6.*******What is the government’s argument to the Supreme Court?
The government argues that the language of the statute is unclear despite the fact that all three U.S. Courts of Appeals that have ruled on this issue have held that the language is clear and unambiguous.* Two of the three circuits, the 5th*and the 9th*Circuit, ruled for the immigrants, while the 2nd*Circuit, in*Li v. Renaud, ruled for the government.
It is well-established that the existence of a Circuit split does not necessary render the words of a statute ambiguous.* Per the 9th*Circuit opinion in*DeOsorio v. Mayorkas:
“The existence of a circuit split does not itself establish ambiguity in the text of the CSPA.*See, e.g., Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350 (2012) (holding that § 906(c) of the Longshore and Harbor Workers’ Compensation Act is unambiguous notwithstanding disagreement between the Fifth, Ninth, and Eleventh Circuits about its meaning);*Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012) (holding that the term “individual” as used in the Torture Victim Protection Act unambiguously encompasses only natural persons despite disagreement among several Circuits);*see also Reno v. Koray, 515 U.S. 50, 64-65 (1995) (“A statute is not ‘ambiguous for purposes of lenity merely because’ there is ‘a division of judicial authority’ over its proper construction.” (quoting*Moskal v. United States, 498 U.S. 103, 108 (1990)).”
However, assuming the government were able to convince the Justices that the language of section 203(h)(3) is ambiguous, they would then urge the Court to defer to the BIA’s decision in*Matter of Wang.
This would also be a hard sell since none of the three Courts of Appeals which considered this issue deferred to*Matter of Wang.* The holding in*Wang*is deficient in many respects.* The two-step*Chevron*test which the Federal Courts apply when an administrative agency has ruled on an issue is as follows:
Step #1*– “First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress."
Step #2**– “ [I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency's answer is based on a permissible construction of the statute.”
In my opinion, applying the*Chevron*analysis spells big trouble for the government.* First, because the so-called ambiguity in the statute according to the BIA was that it did not specify what petitions section 203(h)(3) of the INA applies to.* However, the 9th*Circuit and the 5th*Circuit clearly demonstrated that section 203(h), when read as a whole, applies to all family-based and employment-based visa petitions.
Second, even if government persuades the Justices to reach*Chevron, Step #2, there is no reason to expect the Court to defer to a decision as deeply flawed as*Matter of Wang.
Both*Wang, and the Justice Department, misstate the intent of Congress in passing CSPA.** CSPA is not designed merely to rectify “administrative delays”, but also to grant benefits to those who experience delays in waiting for their priority dates to become current.* Both the BIA and the DOJ selectively quote from the legislative history of CSPA.** They neglect to mention that Senator Feinstein, in introducing CSPA in the Senate, specifically referred to “growing immigration backlogs” in addition to administrative delays as the rationale behind CSPA. They also ignore section 6 of CSPA which allows sons and daughters to “opt-out” of the 1st*preference category if the 2B line would be shorter even though their parents have naturalized.* This certainly has nothing to do with “administrative delays”.
Also, both*Wang*and DOJ, despite the obvious anti-immigrant implications of their interpretation of the law, claim that their purpose is rather to protect those persons waiting patiently in the 2B line for their green cards.* This, of course, is a policy argument entrusted to the legislature rather than to the judicial branch of government.
As stated above, the opt-out provision of CSPA allows persons in the 1st*preference line to immigrate under the 2B category.** This undercuts Wang’s conclusion that to apply the automatic conversion to all family-based visa petitions would unlawfully allow certain sons and daughters of permanent residents to cut in line.* Congress has the authority to allow persons to change categories and be given credit for the time that they stood in another line.* In fact, the various regulations cited by BIA in*Wang*and by the DOJ in their petition allow persons to convert from one category to another and be given credit for the time that they already stood in line.* This not only includes 8 C.F.R. 204.2(i) and (a)(4), but is also required by a host of immigration laws citied in our legal briefs:* the Western Hemisphere Savings Clause, the Patriot Act, the Immigration Nursing Relief Act and the Violence Against Women Act.
Finally, we have spent much of the past 4 ½ years arguing with the government over the meaning of “automatic conversion” and “retention”.* We won’t do so here. Suffice to say that the both the BIA in*Wang*and the DOJ would regard both as magic words with fixed and unchanging meanings based on a particular regulation.* Congress, in their view, has no authority to innovate.* We believe no such thing, and using the usual rules of statutory construction, both the 9th*and the 5th*Circuits agree.
One can only wonder why an Administration which recently promulgated the new Provisional Waiver policy in order to minimize the separation of immigrant families would continue to fight for restrictive interpretations of pro-immigrant family laws in the Federal Courts?
This is anyone’s guess, but perhaps the final few pages of the DOJ’s petition provide a clue.* The petition pleads with the Supreme Court to reverse the 9th*Circuit’s ruling.* The ruling would “place a tremendous administrative burden on the responsible agencies”.* Ah, ha!* Unless the Supreme Court intervenes, the immigration agencies will be forced to do their job under the law.
Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California. He was a former U.S. Immigration & Naturalization Service Attorney and worked for the Board of Governors, and the American Immigration Lawyers Association.