Why Matter of Wang Got It Wrong - Four Fallacies

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.
 

Comments

[DS]

Any ideas when the actual decision will be made? I am CSPA aged out candidate, my grand parents(US citizen)applied for my mom and my mom nd sis got Permanent residency a in dec, 2008 they were in first preference category before and now I am in 2B...4.5 years of wait..

[Eugene]

I have the same problem.my parents became permanenet resudents in 2007 and i left behind .my grand father as us sitizen aplyed for my parents and me before that my age was 21 and i been refused at the time that my age become 21.but the great thing that they approoved first and after a month the denied...when all this problem going to end...

[Dee]

I hope thing will stay where they are. Too many people will wait even longer if the derivative beneficiaries will start cutting the line based on their parents' eligibility. You know, laws are not perfect, why parents are considered immediate relatives of the U.S. citizen children but adult children are not considered as immediate relatives to parents who are the U.S citizens? There are many things that are just like that we should not favor one group at the cost of the others.

[Dee]

First of all, recaptured or not, a visa number needs to be alloted from the general pull. And I would like to know how these aged out ADULT sons and daughters of US citizens and PRs are better than other adult sons and daughters that have been waiting in line in 1st and 2B preference categories for a long time? I've been waiting for 8 years now. Do they think I want to get my GC or reunite with my family any less than them simply because I was over 21 when my parents filed a petition for me?
No! They have to accept the fact that their eligibility criteria have changed and wait for their turn based on the new eligibility.

[D M]

@ Joel: Lol!

You know this whole immigration mess could be solved if they pass the comprehensive immigration reform.

[D M]

@ Joel: Lol!

You know this whole immigration mess could be solved if they pass the comprehensive immigration reform.

[DS]

Well as said above I was aged out and my mom nd sis got the green card and i m now in 2b category..and for our first category to b current we waited 8 years and then in that 8 years the visa date for one year was stuck..In 2006 I think..did not even move by even a day..Admin Delay..wen we inquired they told us they are upgrading their system..Wat da hell?

oh nd btw...I m aged out by 8 days..so is i fair that I am born 8 days early nd i have to wait 4.5 years more for that and my mom nd sis are willing to give their visa up jus bcoz I dnt have green card..so hows the rules helping anyone..Dee?nd u know what you would have been in favor if you would have been in the same boat..

[Dee]

The rules are not helping and I feel your pain. There are a lot of things that I don't like either, but we don't set the rules. Immigration is a privilege, not a right. Tomorrow they may cancel this whole derivative immigration and that's their right to set the laws as they wish. In your case the original petition was for your mom, not for you. Yes I agree that you were out of luck, but that's not enough to push you to the front of the line because your eligibility criteria has changed. Just like if you miss a plane or a train that means you are out of luck and have to wait for the next one.

[Dee]

There are several big reasons why ADULT overaged sons/daughters of the immigrants should not retain the PD of their parents.

One - they waited for the benefits intended for their parents WITH them, not separated from them for years like other beneficiaries in 1st and 2B categories. Got the difference? Once again, they were NOT separated from their families for all these years. And now they can't demand to cut the line whining about special privileges like they are any better than hundreds of thousands of other adult sons and daughters of the immigrants.

Two - Family based immigration is designed to promote FAMILY UNITY for spouses, children, adult sons and daughters, parents, brothers and sisters. Only those kind of relationship qualify for immigration petition and PD. Family sponsored immigration program in the US is NOT designed to sponsor nephews, cousins, grandchildren, etc. And therefore the Priority Date for such kind of relationship can not be established. In other words you can NOT claim the time you waited to be reunited with your uncle or cousin. And since YOU WERE NOT SEPARATED from your QUALIFYING family members you can NOT claim the time you spent waiting for the immigration benefits intended for your parents and WITH your parents.
So stop whining, go to the back of the line and wait for your turn!

[D M]

Flawed analogy and irrelevant points. The petitioner as a citizen of the US has the RIGHT to fight unfairness and injustice in the court of law. Some of the major immigration policy violates US constitution. USCIS will eventually lose. As to an US citizen systematic separation of his family equals tyranny. This kinda shit happens in North-South Korea, where families are separated for decades and had happened in West-East Germany. US is a nation of immigrants and family unity is a RIGHT not a PRIVILEGE. US citizen has a constitutional right to live together as a family and family unity is an 'intrinsic human right'. Let me remind you that the derivative beneficiaries aren't the one fighting with these CSPA lawsuits but by the US citizens. CSPA was passed for the sole reason of keeping families together. The problem is USCIS applying it unevenly, quite recently they granted a visa based on CSPA law to only one of the derivative beneficiary from mexico and the other sister was left out which is ridiculous and why did they chose to grant 'Retention of PD' to Garcia then reject for others. If you think granting derivative beneficiaries their visas puts few people like you in disadvantage position then ask your petitioner to talk to congressmen to increase the number of visas. Don't come here and complain. We are not your problem. If you still persist, take it to the court.

[Dee]

OK, then using the same arguments request your senator to pass the law to remove quotas from the FB immigration, and see what they will tell you about your rights :)))))

As long as you are trying to claim the old priority date that does not belong to you (as you were not separated from your parents) trying to cut the line in front of me and the other people who has actually been separated and waited for many years to be reunited with their parents - it is my business. So stop whining about some special privileges and go where you belong - to the back of the line!

[t]

is there anyway we can delete the nonsense "Dee" has posted so far.

[Dee]

That's a strong argument in the discussion :)) Based on your type of posts you must be a being of the high intelligence and strong English :)) But with your attitude it will be hard for you to adapt in the U.S.
P.S. I was laughing at your "No need to allot a new visa" above. Learn basics first before posting here.

[Dee]

It would be nice if Carl Shusterman could clarify what is going to happen if he wins in the court? Are these aged out children will be allowed to retain the priority date of their parents and will apply for immigration under 1st and 2b preference quota or the visa number will be alloted from the same category as their parents' (3b or 4th)?

[Carl Shusterman]

In case it is not clear from our briefs to the Federal Courts. The appropriate category under the law is the family-based 2B category.

[Dee]

Thank you for clarification, Carl. So if the child if under 21 - the visa number will be alloted from 3rd or 4th preference, but if the child is over 21 the visa number will be alloted from the 2B preference category AND such a child will retain the PD of his/her parents. I hope I got it right. Well, if that happens it will backlog category 2B by the additional 1-2 years, eventually it will affect 1st category as well.

[lisa mulzac]

I find people must really thing before they write. They must also read before and understand before they comment.If u don't know or understand the CSPA, don't comment on it, because u wll make no sense!

[t]

I am in full agreement with Lisa Mulzac!

[Joel]

Who is 'you' in your statement Lisa?

[lisa mulzac]

@ Joel.I'm an educated woman, who knows what I'm writing about. This issue is not new to me, I've been studying an reading about this issue for quite a while, and I know when I make a comment, it will be very edifying to the readers. Now u know about me, who are u?

[lisa mulzac]

Immigration issues can be very sensitive, so if u are not properly informed u can get carried away.When Mr Bush passed the CSPA it was to help children in all family and employment base category, so if a child was waiting in line with their parents for over fifteen years and age out, it is their rights by law to retain the priority date that they were listed under. There is no line jumping here , so again people read and understand before u comment.

[Joel]

@Lisa: You know you should refer to a person with his name when you are posting a response especially in a public forum or comment on blogs. Although I know that you are responding to 'Dee'.

[lisa mulzac]

@ joel, I can comment however I see fit, if u or anybody else wants to take it up that's on u. My interest at this time is to help people understand the CSPA Law and see how they can benefit from it.Ambiguous interpretation of this law is what causing this problem. Congress need to clarify this and stop playing politics.people lives are at stake, their future are place on hold as a result of this. This is a very serious situation, that need immediate attention.

[ssheplovich]

I can see how confusing and emotional this issue is. The case I am familiar with the US Citizen petitioned for his wife and his stepdaughter. Due to delays in name check the daughter aged out after 10 years here. So she came here with her mother at 11 years old and has no family in her home country. This is very disruptive to her college education and other issues like her ability to support herself. Although I am sympathetic to those waiting in line in family based categories this type of changing the category and forcing people like this young woman back into another line seems very unfair. While its true she has not been separated from her mother all these years its not the same as an adult who has been living in the foreign country as an adult during the waiting period.

[lisa]

I don't understand why congress refuse to fix this problem. So many children are suffering as a result of this fail immigration system. What make a mother and a father immediate relative, and your child that you carried for nine months not, because they turn 21years old. This could never be right. The CSPA bill clearly states that if a child age is determine to be 21 or older in all family and employment base category, must be converted to the appropriate category and maintain their priority date. What so hard about this that congress can't address, so these children can move on with their lives. What happen to the ninth circuit court on this ruling? Why President Obama don't look into this law. These kids are suffering. Their lives are put on hold. Where is the government in all this.