From its passage in 2002 until now, the USCIS has never issued so much as a memo explaining how to interpret the "automatic conversion" clause of the Child Status Protection Act (CSPA). They left it to the Board of Immigation Appeals (BIA) to explain this in Matter of Wang in 2009. The USCIS argued that the clause be interpreted in the most restrictive way possible, and surprisingly, the Board bought their argument.
However, Matter of Wang may have a short shelf life, and here's why:
1) The “Administrative Delays” Fallacy
In Matter of Wang, the Board states that “we find that while the legislative record demonstrates a clear concern on the part of Congress to ameliorate the delays associated with the processing of visa petitions, there is no indication in the statutory language or legislative history of the CSPA that Congress intended to create a mechanism to avoid the natural consequence of a child aging out of a visa category because of the length of the visa line.”
Not in the statutory language, really?
The Board needed to look no further than Section 6 of CSPA which allows beneficiaries of family-based 1st preference visa petitions to “opt-out” and become permanent residents under the 2B category if the visa line is shorter, no administrative delays required.
The same holds true for Section 2 of CSPA which freezes the age of certain children as “immediate relatives”. If a permanent resident parent petitions her daughter under the 2A category and then naturalizes one day before the daughter’s 21st birthday, CSPA designates the daughter as an immediate relative. This designation lasts forever, as long as the daughter does not marry (in which case the petition automatically converts to the 3rd category). Again, no administrative delays required.
So, if Congress provides relief to beneficiaries “because of the length of the visa line” in Section 2 and 6 of CSPA, why can’t they do the same in Section 3?
Also, the Board could not find anything in the legislative history to support the proposition that CSPA was introduced in part to unite families separated because of the “natural consequences of a child aging out of a visa category because of the length of the visa line”. However, the Board ignored the statement of Senator Dianne Feinstein when she introduced CSPA in the Senate on April 2, 2001:
“The legislation I have introduced today would provide a child, whose timely filed application for a family-based, employment-based, or diversity visa was submitted before the child reached his or her 21st birthday, the opportunity to remain eligible for that visa until the visa becomes available…
“…a family whose child's application for admission to the United States has been pending for years may be forced to leave that child behind either because the INS was unable to adjudicate the application before the child's 21st birthday, or because growing immigration backlogs in the immigration visa category caused the visa to be unavailable before the child reached his 21st birthday. As a result, the child loses the right to admission to the United States. This is what is commonly known as ‘aging out.' (Emphasis added)
“Situations like these leave both the family and the child in a difficult dilemma. Under current law, lawful permanent residents who are outside of the United States face a difficult choice when their child ‘ages-out’ of eligibility for a first preference visa. Emigrating parents must decide to either come to the United States and leave their child behind, or remain in their country of origin and lose out on their American dream in the United States. In the end, we as a country stand to lose when we are deprived of their cultural gifts, talents and many contributions.”
What could be more clear?
2) The “Cutting in Line” Fallacy
In explaining to Mr. Wang why his daughter is not allowed to join her family in the U.S., the Board’s decision is filled with references like “cutting in line ahead of others”, “displacement of other aliens” and “’jump’ to the front of the line”.
No doubt, the Board sees itself as the upholder of fairness and the American Way.
However, what the Board is really doing is displacing Mr. Wang’s daughter from her rightful place in line. The visa petition was filed in 1992 when she was ten, but her priority date became current in 2005, after she had “aged-out”.
The Board’s decision boils down to “Tough break kid, but we are not going to give you credit for all of the years that you waited in line for your green card. Go to the back of the bus!”
Ironically, the Board’s decision is based, to a significant extent, upon a 1987 INS regulation, 8 C.F.R. 204.2(i), which allows beneficiaries of family-based petitions to convert from one category to another, whatever their age. Say that your father petitions for you as a married son, and many years later, you get divorced. Bingo! The petition is automatically converted to the appropriate category. And one would suppose, given the Board’s decision in Wang that the beneficiary would have to go to the end of the line, right? Anything else would be "cutting in line", "displacing" others and "jumping" to the front of the line. Well, guess what, the regulation does not make beneficiaries go to the end of the line. They get full credit for the time that they have already waited in line. And we have never heard anyone suggest that this is unfair, certainly not the government agency (INS/USCIS) which wrote the regulation.
So why then is the Board ordering Ms. Wang to go to the back of the line?
3) The Statutory/Regulatory Context Fallacy
The Board states: “We begin with an examination of the regulatory and statutory contexts in which Congress enacted the automatic conversion and priority date retention provisions of section 203(h)(3).”
The Board begins by examining the regulations found at 8 C.F.R. 204.2(i) (referred to above) and 8 C.F.R. 204.2(a)(4) which allows derivative beneficiaries of 2A family petitions to retain their priority dates (without going to the back of the line) as long as their parent submits a 2B visa petition on their behalf.
They also consider section 201(f), INA which was added to the law by Section 6 of CSPA (referred to above).
How comprehensive is the Board’s review of the regulatory and statutory scheme?
The Board does not discuss any pre-CSPA statutory authorities, even though there are numerous laws dating back to at least 1976 which allow beneficiaries to convert approved petitions from one category to another, sometimes even between family and employment categories, and to retain old priority dates obtained under different categories.
In our briefs, we discuss the Western Hemisphere Saving Clause, the Immigration Nurse Relief Act, the Patriot Act, the Violence Against Women Act and many others. Without explaining our arguments here (If you are interested, you can read our briefs online.), we find it a bit puzzling why the Board did not even mention any of these laws in examining the “regulatory and statutory contexts in which Congress enacted the automatic conversion and priority date retention provisions of section 203(h)(3).”
Could it be, as Paul Simon wrote in the song “The Boxer”, that “a man hears what he wants to hear and disregards the rest”?
4) The "Ambiguity" Fallacy
The principal question in Wang is who subsection 203(h)(3) applies to.
Once the Board answered this question, the next step would be to discuss how the “automatic conversion” and “retention” clauses operate.
However, Mr. Wang lost at step one. The Board held that subsection 203(h)(3) only applies to derivative beneficiaries if they were originally included in the 2A category.
A bit bizarre?
A primary rule of statutory interpretation is if the language of the statute is clear, this is the end of the matter. Only if the language is “ambiguous” does the Board need to go outside the statute to interpret what the words mean. In Wang, the Board determined in the space of a single paragraph (cited below) that the language of the law was ambiguous:
“If the beneficiary is determined to be 21 years of age or older pursuant to section 203(h)(1) of the Act, then section 203(h)(3) provides that '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.' Unlike sections 203(h)(1) and (2), which when read in tandem clearly define the universe of petitions that qualify for the 'delayed processing formula,' the language of section 203(h)(3) does not expressly state which petitions qualify for automatic conversion and retention of priority dates. Given this ambiguity, we must look to the legislative intent behind section 203(h)(3).”
Not so fast!
Both sections 203(h)(1) and 203(h)(3) use identical language in describing to whom they apply. Under the rules of statutory construction, if the same language is used in the same statute, it is presumed to have the same meaning.
Both sections, in describing who they apply to use the words “for purposes of subsections (a)(2)(A) and (d)”.
Subsection (a)(2)(A) refers to beneficiaries of family 2A petitions while subsection (d) is much more expansive. It refers to derivative beneficiaries of all family-based, employment-based and lottery-based categories.
This seems crystal clear. So where is the ambiguity?
Consider the paragraph from Matter of Wang which is quoted above. Subsection (1) refers to subsection (2) which defines the words “for purposes of subsections (a)(2)(A) and (d)” exactly as we did above. So far, so good.
However, although the Board reads subsections (1) and (2) “in tandem”, for some inexplicable reason, it elects to treat subsection (3) in isolation despite its reference to subsection (1) and its use of the identical language as to whom it applies.
The Board adopts the Government’s curious argument that subsection 203(h)(3), unlike subsection 203(h)(1), applies only to derivative beneficiaries of 2A petitions, and not to any other derivative beneficiaries.
What the Board never even attempts to explain is why Congress uses the phrase “for purposes of (a)(2)(A) and (d)” if the clause only applies to 2A petitions. What then does the phrase “and (d)” mean?
And if section 203(h)(3) applies only to derivative beneficiaries of 2A petitions aging-out and becoming part of the 2B category, why does the subsection say that they automatically convert to the "appropriate category" as if there were more than one category to which they are able to convert to? The Board neglects to explain this.
It is counterintuitive that Congress would be more concerned about preserving family unity in 2A cases which involve families of permanent residents than in cases involving families of U.S. citizens.
Cases challenging the reasoning in Matter of Wang are currently pending in the U.S. Courts of Appeals for the 2nd, 5th and 9th Circuits. On August 16th, the government submitted an 88-page reply brief in the class action lawsuit pending in the 9th Circuit. In conjunction with the Law Office of Robert Reeves, we are working on a final reply brief which we will post online as soon as it is submitted to the Court. Our brief is due on October 5th.
Does anybody know when the oral argument is scheduled for the Child Status Protection Act class lawsuit?
Posted by: t | 10/05/2010 at 01:58 PM
It has not been scheduled yet!
Posted by: DS | 10/06/2010 at 12:24 PM
Carl may i ask you when do you think the final desicion on the ninth cirquit will be ready? There is something i dont fully understand just after the main beneficiary gets their approval they receive a letter that says among other things..
3. Children who pass 21 years of age after the petition was originally approved by the USCIS become
ineligible to accompany or join the applicant(s) immigrating to the United States under the original
petition. In some situations, the Child Status Protection Act (CSPA) may allow children to remain
eligible beyond 21 years of age. If you believe that the CSPA applies to this case, please send a
detailed explanation to the NVC. We will forward it to the U.S. Embassy/Consulate General for a
decision.
now this letter / email is signed by the director of NVC which means that this is what uscis thinks about cspa right? then now how come it states that you are no longer eligible after you turn 21 At the TIME THE ORIGINA APPLICATION WAS APROVED? this means that the age that matters is the age the child has at the time their main beneficiary parent gets him o her approval and not the age the child has at the time the visa becomes available? if this is true then why they calculate the age for cspa taking into consideration the age the child has when the visa becomes available instead of the age the child had at the time the I 130 of his parent was approved? because since the aproval less time to reach than what it takes to reach the priority date on the visa bulletin may be the child will be still eligible sorry for making my post too long but i wanted to be as clear as possible on my concern.
for example if the child was 16 when the petition of his father was filled (under fourth category) and it took 4 years to be approved from what the letter says the child will be 20 at the time THE ORIGINAL petition was approved and he will be considered a minor child but if after that the parent had to wait another 6 years to rech his priority date at that time the child will be 26 and if you substract 4 (years the main petition was pending) the child will be 22 and therefore he wont be able to apply for CSPA so are they contradicting themselves or what? why do they post everywhere that in order to apply for cspa the child has to be under 21 after the calculation they make using the age the child has when the pd is reached on visa bulletin and in the other hand they send an email to his parent telling them that if at the time the original petition was approved his child was younger than 21 he is considered a minor child? can you please explain to me this thank you very much for your time reading my looonnngg post
Posted by: Jorge Gabriel Mussacchio | 10/20/2010 at 08:20 PM
Dear Sir,
My sister recently received an instruction to process her F2A visa, when all of a sudden her category was changed to F2B. Based on the CSPA calcultion, section 2 she is under the critical threshold of under 21 years old. When she went to the consulate, she was told , the form I-797 that she received has different dates compared to what was written on their system at the consulate abroad. Thus, my sister's F2A visa application has been denied. Do you think my sister F2A visa can ever be returned? She tried submitting her prepared documents but the consulate abroad refused to take them. Any comments are greatly appreciated.
Posted by: jen | 09/28/2011 at 01:39 AM