Child Status Protection Act litigation heads to the Supreme Court

Saturday, January 26th, 2013
By: Jonathan MontagJ.D.

A perennial problem in immigration law is the problem of “aging out.” Aging out is when a child on a waiting list for a benefit stops being a child by virtue of the inevitable – he or she grows up. In immigration law relating to visas, one ceases to be a child at age 21 for most purposes. With wait lists for some benefits decades long, aging out is an inevitability. On August 6, 2002, Congress did something about it by passing the Child Status Protection Act (CSPA).

Regrettably, like almost every time  in immigration law, the fix makes everything more complicated. Like the human anatomy transparent pages in the Encyclopedia Britannica some remember from ancient times, it adds another page of complicated overlay to the immigration law story.

One particularly nettlesome section of the CSPA is found at INA § 203(h)(3), regarding retaining a priority date. The section is meant to protect children who age out by allowing them to keep their old priority date when they turn 21. The statute states:

If the age of an alien is determined … to be 21 years of age or older … the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon the receipt of the original petition.

What seems easy enough, is not easy at all. Many questions arise:

1. Under pre-CSPA law, petitions for children kept their same priority dates when the children turned 21, so what is the change here?

2. Does the law only apply when the same petitioner files for the adult son or daughter (no longer a child) or if a different petitioner does?

This issue is being intensly litigated. The scenario in the cases interpreting these cases is the same. A U.S. citizen sibling (the petitioner) petitions for his or her sibling (the beneficiary). The beneficiary’s children are also on the petition. Because the wait list for sibling to sibling petitions (the 4th Preference)  is so long  the “children” often age out. The beneficiary sibling immigrates to the United States and then petitions for the aged out offspring (in the 2B preference), now an adult son or daughter and wants the old priority date that brought the son or daughter’s parent to the United States. For all countries except Mexico, the 2B preference is ahead of the 4th preference. Consequently, if the old priority date is assigned to the new petition, the adult son and daughter will go to the head of the wait list and will be eligible to immigrate immediately. The dynamics of the problem are discussed in the cases about it, if you want to delve more deeply into the fact patterns.

The first  published case on the priority date retention statute was the Board of Immigration Appeals decision in Matter of Wang, decided in June 16, 2009. It that case, the BIA decided that only if the same petitioner files for the beneficiary does the same priority date apply. Thus, in the case of the siblings, above, because the first petitioner was the uncle of the child and the second petitioner was the parent, the child does not retain the old priority date. In MAtter of Wang, the BIA reversed itself as miraculously exactly three years earlier in Maria T. Garcia, the BIA held that a new petition by a different petitioner would keep the old priority date.  On June 30, 2011, the Second Circuit agreed with the BIA’s Matter of Wang decision in Li v. Renaud.

On September 8, 2011, the Fifth Circuit, in Khalid v. Holder, reversed the BIA and held that the new petitioner’s petition would acquire the old priority date. Then, on September 26, 2012, the Ninth Circuit joined the Fifth Circuit in De Osorio v. Mayorkas.

Yesterday, January 25, 2013, the U.S. Department of Justice filed an appeal, a petition for writ of certiorari with the Supreme Court.

Thus, for now the issue remains unsettled. We should get a final answer by this summer. Posted January 26, 2013.


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