Today, in De Osorio v. Mayorkas, the Ninth Circuit joined with the Fifth Circuit in Khalid, and held that the plain language of the Child Status Protection Act (CSPA) provides automatic conversion and priority date retention to aged-out beneficiaries of all family-based preference categories.
The Court’s decision is an important victory in a battle that began with two lawsuits filed in 2008. For those who have not been following this litigation, a bit of background:
Traditionally, when a child turned 21 years of age, she was no longer eligible to immigrate to the U.S. together with her parents. Once the parents become permanent residents, they have the option of sponsoring their aged-out unmarried sons and daughters under the family-based 2B preference category. However, this entails years, or even decades, of separation. Congress passed the Child Status Protection Act (CSPA) in 2002, in part, to solve this problem and to prevent the separation of parents from their sons and daughters.
The CSPA contains two provisions to carry out this important purpose. Under section 203(h)(1), the length of time that the visa petition was pending with the USCIS is subtracted from the child’s age on the date that the priority date becomes current. If the resulting age is under 21, the son or daughter can immigrate together with her parents. This provision makes sure that children are not penalized for the USCIS processing times.
If the child’s CSPA age is 21 or over after this calculation, under section 203(h)(3) she automatically converts to the appropriate category and retains the priority date of the original petition. This provision provides some relief from the harsh impact of extensive visa backlogs, by crediting the child with the years she spent waiting in line with her parents.
Here is an example of how the automatic conversion and priority date retention clause should work:
Mr. and Mrs. Santos, both citizens of the Philippines, were sponsored by Mrs. Santos sister, a U.S. citizen, on January 27, 1989. Their fourth-preference priority date became current on July 1, 2012. They have 3 children, born in 1988, 1992 and 1996. The sister’s visa petition was approved in one month. Therefore, their children the oldest of whom was 1 year old, and other two, not even born when the petition was submitted, are now aged 24, 20 and 16. The younger two children can immigrate together with their parents. The oldest child, who is still unmarried, would benefit by the automatic conversion clause. She would be given credit for the 23 years that she stood in line together with her parents waiting for her green card. As soon as her parents become lawful permanent residents, her category would automatically convert to the family-based 2B category, and she would be permitted to immigrate to the U.S. and rejoin her family.
Unfortunately, the government took a restrictive view of the CSPA’s automatic conversion and priority date retention clause. In Matter of Wang, the Board of Immigration Appeals found an ambiguity with regard to what petitions are covered by the 203(h)(3). The result? Under Wang, only children who were derivatives of an F2A petition would benefit from the automatic conversion and priority date retention clause.
Thus, in the example above, the daughter of Mr. and Mrs. Santos could not benefit from the CSPA. Because she was originally included as a derivative of a fourth-preference petition, she was not eligible for the CSPA’s automatic conversion and priority date retention provisions.
In today’s long-awaited decision, the Court found that Matter of Wang conflicts with the plain language of the CSPA and is owed no deference.
The Court rejected the BIA’s finding of ambiguity and found that CSPA’s automatic conversion and priority date retention clause clearly applies to beneficiaries of all family-sponsored petitions. The Court emphasized that the agency cannot impose its own interpretation when Congress has clearly spoken.
The Court also rejected the government’s contentions that the statute is ambiguous because it cannot practicably be applied to aged out derivatives of F3 and F4 petitions. The government argued that automatic conversion and priority date retention always requires the same petitioner, and the same petition.
However, the Ninth Circuit reasoned that unresolved procedural questions regarding how the law will be implemented do not create an ambiguity in the statute. According to the majority, any “change in policy announced by the statute’s plain language cannot be impracticable just because it is a change or because it does not specify how exactly that change is to be implemented.”
In its decision, the Court expressed confidence that the agency can develop a process to implement the plain terms of the CSPA. We hope the USCIS will begin that process now so that our clients, and the many others like them, may finally be reunited with their children.
One caveat - As we’ve cautioned in prior blog posts, today’s decision may not be the end of the story. Now we wait to see whether the government will ask the United States Supreme Court to review the Ninth Circuit’s decision. If that happens, it could be quite some time before the CSPA issue is decided once and for all.
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.