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Priority Date Retention Denied in CSPA Lawsuit

The Child Status Protection Act, enacted in 2002, was intended to address the adverse impact of a child’s reaching the age of 21 on his/her eligibility for an immigrant visa. It prevents the lengthy separation of families that results when the child “ages out”.

The CSPA fixes the child’s age according to certain rules, and this CSPA age and not the chronological age is used to determine if the child remains a “child” for immigration purposes.

A child’s age is calculated according to a formula depending on whether the person is the child of a U.S. citizen or green card holder, or a derivative in a family- or employment based category, asylum application, or under the Violence Against Women Act.

What if, even after using the CSPA formula, the child is still 21 years old or over? The CSPA has the automatic conversion clause which states that “If the age of the alien is determined …to be 21 years 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 receipt of the original petition.”

The automatic conversion clause has been interpreted by immigration lawyers and by the Board of Immigration Appeals (BIA) in an unpublished decision to mean that the LPR parent of the child (now-adult but unmarried) can file a second preference I-130 petition and the child will retain the priority date issued in the petition for the parent. Retention of the original priority date means that the family can avoid the long waiting lines in the F2B category where the backlog is currently 8 to 19 years.

However, on September 2, 2011, the Court of Appeals for the 9th Circuit ruled that the automatic conversion clause did not apply to derivative beneficiaries of F3 and F4 petitions. The court upheld the restrictive interpretation given by the BIA in another case.

The appeals case, De Osorio v. Mayorkas, was the consolidation of two lawsuits both challenging the BIA’s reading of the law. The first case was brought by Rosalina De Osorio involving a derivative beneficiary in an F3 petition. De Osorio obtained her green card through an F3 petition filed by her U.S. citizen mother. Her son was 13 at the time the F3 petition was filed but he aged out when her priority date became current. She later filed an F2B petition for her son and requested retention of the original F3 petition priority date.

The second case, Costelo v. Chertoff, was a class-action lawsuit brought by Teresita Costelo, involving a derivative in an F3 petition, and Lorenzo Ong, involving derivative beneficiaries of an F4 petition. Costelo got her green card through her U.S. citizen mother while Ong got his through his U.S. citizen sister. Their children were also under 21 when the F3 and F4 petitions respectively were filed but they aged out when the priority dates became current. Each of the plaintiffs had filed F2B petitions for the aged-out derivative beneficiaries and requested retention of the priority date of the original petition.

In both cases in this consolidated lawsuit, the requests for priority date retention were denied.

The BIA had said that the CSPA was intended to alleviate the consequences of administrative delays and not delays in visa number availability. It also said that priority date retention would allow the beneficiary to “jump” in front of the line and cause further delay to everyone else in queue.

One wonders how the government’s interpretation serves the purpose of the CSPA in keeping families intact, because the De Osorio decision effectively ensures that some families are kept apart for much longer.

Although this legal battle looks far from over, the court’s decision was a disheartening end to a nationwide class action lawsuit that disputed the government’s reading of the CSPA. A favorable decision would have paved the way for the reunification of thousands of families with their children who had aged out while waiting in line for an immigrant visa.

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