Update on the CSPA Lawsuit

Last April, we submitted our opening brief to the 9th Circuit Court of Appeals challenging the government's restrictive interpretation of the "automatic conversation" clause of the Child Status Protection Act (CSPA).

Recently, the government asked for additional time to submit their reply brief, and also requested that our lawsuit be combined with a nationwide class action lawsuit involving the same matter.  We agreed to both of these requests.  The Court granted the motion, and gave the government until August 16th to submit their reply brief.

If our appeal is successful, the decision would prevent the separation of many thousands of immigrant families.

What is the issue that we are litigating in Court?

Prior to 2002, only children (unmarried and under 21 years of age) were permitted to immigrate together with their parents.  If a child turned 21 years of age before obtaining a green card, the permanent resident parent had to petition for the adult son or daughter under the family-based 2B category, and wait a number of years for the family to be reunited.  If the son or daughter married before immigrating to the U.S., the family separation often became permanent.

Because the waiting times in the State Department's Visa Bulletin can range up to 22 years, many immigrants have had to choose between coming to the U.S. and keeping their families intact.

CSPA, which was enacted into law in 2002, was meant to prevent the lengthy separation of immigrant parents from their sons and daughters. It provides that derivative beneficiaries of employment and family-based visa petitions may have their ages reduced by the number of months or years that the petition was pending.  Thus, a daughter who is 22 years of age when her parents applied for adjustment of status would benefit if the I-130 or I-140 visa petition was pending for 2 years.  Subtracting 2 from 22 reduces her age to 20, thereby allowing her to adjust status together with her parents.

What happens though, if the petition was only pending 2 months instead of 2 years?  In this case, the daughter's age would be 21 years and 10 months.  She would have "aged-out" under the traditional rules.  However, CSPA amended the Immigration and Nationality Act (INA) in order to prevent the separation of the daughter from her parents in such cases.

Subsection 203(h)(3) of the INA (the "automatic conversion" clause) provides 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.”

Therefore, in the case mentioned above, the daughter would be entitled to retain the priority date of the original visa petition and to immigrate under the family-based 2B category since she is now the unmarried adult daughter of parents who are permanent residents.

Seems simple enough.  Yet, in 2009, the Board of Immigration Appeals (BIA), in Matter of Wang, found that the question of who this subsection of CSPA applies to was "ambiguous". The Board embarked on a lengthy examination of USCIS/INS regulations and the legislative history of CSPA.  The BIA concluded that there was no evidence that Congress meant subsection 203(h)(3) to apply to derivative beneficiaries of visa petitions.  We had sued in District Court to protect the statutory rights of our clients in 2008.  The government persuaded the Federal Judge to defer to the Board's decision in Matter of Wang.  We appealed, and this matter is now before the U.S. Court of Appeals for the Ninth Circuit.

The issue to be decided is whether subsection 203(h)(3) is clear or ambiguous as to whom it applies to.  As stated above, this subsection applies  "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)..." 

It is clear that "paragraph (1)" refers to subsection 203(h)(1) and that both are subsections of section 203(h) which is entitled "Rules for determining whether certain aliens are children".  Subsection 203(h)(1), which establishes the formula which allows certain sons and daughters over the age of 21 years old to immigrate together with their parents, applies to all derivative beneficiaries of employment and family-based petitions.  We and the government both agree on this fact.  The language is clear.  In explaining the class of persons who section 203(h)(1) applies to, statute says "for the purposes of subsection (a)(2)(A) and (d)."

Which persons are covered under these two sections of law?

Section 203 (a)(2)(A) applies to children of lawful permanent residents under the family-based 2A category.  Section 203 (d) applies to derivative beneficiaries of employment, lottery and family-based visa petitions.  

Is it clear who subsection 203(h)(1) applies to?  The answer is yes.  The USCIS and the State Department have released numerous memoranda since the enactment of CSPA in 2002, and it is clear from reading these memos that the agencies responsible for applying the law agree that subsection 203(h)(1) applies to all derivative beneficiaries.   

Subsection 203(h)(3), in explaining who it applies to, uses the identical language as subsection 203(h)(1).  It applies to persons who are 21 years of age or older "for the purposes of subsections (a)(2)(A) and (d)." 

It is an elementary rule of statutory construction that if the same language is used in different sections of the same statute, the language has the same meaning.  Here, the same language is not only used in the same statute, but in the same section of the statute.  And subsection (3) even references subsection (1).  What could be more clear?

However, the government maintains that the identical language in subsections (1) and (3) has different meanings.  Subsection (1) applies to beneficiaries of family-based 2A visa petitions and to all derivative beneficiaries while subsection (3) applies only to beneficiaries of family-based 2A visa petitions and not to other derivative beneficiaries.

The government reasons that children described in section 203(a)(2)(A) may be derivative beneficiaries under section 203(d). Therefore, the words "for the purposes of subsections (a)(2)(A) and (d)" in subsection 203(h)(3) can be read to apply only to derivative beneficiaries who aged-out of the 2A visa category, and to exclude all other derivative beneficiaries.

But why then did Congress include the language "and (d)" in subsection 203(h)(3)?  The government's argument would render the phrase "and (d)" as surplusage, in violation of another rule of statutory construction.

And how does the government explain why the identical language in subsection 203(h)(1) applies to all derivative beneficiaries while the same words in subsection 203(h)(3) apply only to a narrow subset of derivative beneficiaries?

We look forward to reading and replying to the government's brief, and to the decision of the Court of Appeals in this matter.

For those readers who will be attending the Annual Conference of the American Immigration Lawyers Association (AILA), I will be the discussion leader of a panel discussing CSPA ("Why Matter of Wang Got It Wrong") on Saturday, July 3 at 10:20am.  We welcome your questions and your comments.

 

Comments

[D M]

I was 14 years old when I left my home to attend high school and later college in a far away city. I used to visit home every 6 months in holidays for about two weeks. I had thought once I am done with my education, I would be free to join my parents and siblings again. But little did I knew about my parents visa petitioned by my aunt decades ago and didn't expected they would be planning to migrate to US. The decision to migrate was made only when they became aware that the visa is available for them when the consulate informed them. They had long forgotten about the petition. I never fancied living in US or any where else other than that I wanted to be with my family members. This whole bloody CSPA thing has broken our family and has caused immense pain. I am not the only one there are thousands who are like in my situation. I don't understand how me being with my family in US creates problem to US or its citizens. What kinda rule is this?! And to all immigration attorneys, we are begging you guys to get this thing done as quickly as possible. This is being dragged on for the last EIGHT YEARS!!!!!

[Chuck]

What about derivative beneficiaries under the 2A category, such as children of LPR spouses? Doesn't that make sense of the (d) reference?

[Yasmin]

If the government loses will the decision be honored by immigration courts in other circuits?

[nawab]

Sir,

You will be doing a great service to many families to unite who were affected with 2009 interpretation of BIA.

GOD bless.

What are the chances of success?

Nawab

nawabheer@gmail.com

[margret]

This situation is very serious, so many families are affected by this. Is about time congress interpret this law in the manner that it was intended, and stop all these different interpretation that uscis is giving.

[doris]

i've been waiting to permanently reside in US since i was 11 years old. now i'm 33 years old & still waiting.

[nutan chowhan.]

Wish you all the best. god help all child and parents

[MAE LY]

I REALLY DON'T KNOW WHAT TO DO, I MY PARENTS WILL BE LEAVING SOON BUT ME AND ME SISTER WILL BE LEFT BEHIND. WE HAVE APPLIED THAT CSPA ON OUR AGE BUT STILL THE SAME, NO HOPE OF GOING WITH OUR PARENTS. SO WE ARE TO LEAVE ON OUR OWN, WE ARE BOTH SINGLES, I AM AN ENGR. AND SHE IS A NURSE, WE CAN MIGRATE IN OTHER COUNTRIES, BUT JUST SAID TO KNOW THAT AMERICA IS SO DAMN STRICT ABOUT ALL THIOS IMMIGRATION STUFFS AND THEY DON'T KNOW THAT THEY ARE MAKING PEOPLES' LIFE MISERABLE.

[HUNGKAG]

critical milestone in CSPA:
1. File ds230 or I485 to the consul not later than 1 year after visa availability.
2. the act of submitting a visa application by the derivative beneficiary complies with the provision of "sought to acquire".
3. If the derivative beneficiary failed to submit visa application within the year cspa is not helpful.
4. In matter of wang request for priority date to coincide with original petition rejected because visa application was not filed within one year of visa availability.
5. in matter of garcia request for original priority date was granted because visa application filed within one year bar,
6. both have almost same set of facts.
legal discussions on cspa age, automatic conversion and retention are all legal goobledygook or pure hogwash if timely filing is not done

[dom]

when will be the final decision?

[Ken]

I had applied for my brother in 2000 - along with his children.

Does that preserve CSPA for his daughter who turned 21 Last December, 2009.

US Division approved the Visa some time back (A year ago), but London held it up and have just opened the invitation and processing for my brother - AOS, etc - just filed and paid today by me online.

Where do we stand? The children are listed on my petition.

Thank you kindly.

Ken.

[SR]

When can a final court decision be expected?

[Luda]

im 23 years old, i was part of an F3 visa petition and our priority date was on august of 94. 17 years later our visa became current. feb 2011, the rest of my family benefited from that petition, except me.

CSPA formula tells you to subtract the time it took when the petition was filed then approved, which is not even a year long. only MONTHS!

so im 23 years old, minus the some MONTHS. that leaves me 22 years old and some change.

so is there any hope??

[Vancara Richards]

Can someone tell me if the lawsuit has been concluded and whether or not age out derivative will be allow to retain priority date

[Carl Shusterman]

We're waiting for the Court to schedule Oral Arguments. Case should be over before the end of this year. (I hope!)

[joe]

my son has the same situation. He entered us at age 14. when when filing i-140, he was 20 years and 7 months old. when my visa number available, he was aged out,even use cspa formula.according to bia interpretation on retention priority, my son will follow the same road which is long and zigzag as i did.

[SS]

Please provide an update to this if any? Thank you.

[naushi]

i m 21 yrs of age now and my interview is sheduled now so will they provied visa with my family plz plz
let me knw urgently on my email naushirocks@yahoo.com

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[Shane Motilla]

hi! my mother was petitioned by my grandmother way back 1996. Our priority date became current last September 2011 and at that time I was turning 21 years old. We informed the NVC regarding my status and they sent me and my mother a fee bill invoice.We paid the said fee and asked us to passed DS230. Now last December 3, 2011 my mother received her interview schedule and we were shocked to notice that my name was not written there. We asked the NVC why my name wasn't written there on the travelling applicants list and we just received their response today. They said I'm no longer can be a derivative applicant however, their is this CSPA that we can try and on the of the interview is the only day where in we'll know if I'll be granted a visa too together with my mom. I'm curious enough to ask you now that I'm 22 yrs old turning 23 on october next year. Can I still be granted under the CSPA? My mothers interview is dated on January 19, 2011. You can send your answer regarding my inquiry at the same email I've used now. Your response will be highly appreciated. Thank you.