The U.S. Supreme Court ruled on June 9 that the automatic conversion provision under the Child Status Protection Act (CSPA) does not benefit most derivative beneficiaries of family based preference petitions. For thousands of immigrant families especially Filipinos hoping to be reunited with their aged-out children, this would mean more years, even decades, of waiting.
The case involved Rosalina Cuellar de Osorio who was a beneficiary of an F3 petition filed by her U.S. citizen mother. When the petition was filed in May 1998, her son was thirteen years old.
A visa became available to her in November 2005. During that time, her son had already aged out and could no longer apply for an immigrant visa with his mother as a derivative beneficiary. In 2006, de Osorio filed an F2B petition for her son and requested that her son retain his 1998 priority date.
Under the CSPA, the government delay in processing a visa petition is taken into account in calculating a child’s age for immigration purposes. If the adjusted age of the child is 21 years or older, the automatic conversion clause of the CSPA allows the petition to “automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”
De Osorio contended that her son was entitled to benefit from the automatic conversion clause and retain his initial 1998 priority date since he was a derivative beneficiary of an F3 petition who aged out. The USCIS denied the request.
De Osorio appealed to the Ninth U.S. Circuit Court of Appeals which decided in her favor. The court ruled that the CSPA provides for the automatic conversion of the petition and priority date retention of derivative beneficiaries of all family based preference petitions. The Government appealed the decision to the U.S. Supreme Court.
The Government contended that the language of the CSPA law is ambiguous and the decision of the Board of Immigration Appeals (BIA) in the 2009 case of Matter of Wang should be given deference. In that case, the BIA ruled that the automatic conversion provision only applied to derivative beneficiaries of F2A petitions.
The U.S. Supreme Court, in a 5-4 vote, sided with the Government and reversed the decision of the Ninth U.S. Circuit Court of Appeals. There was no single majority opinion as the five justices who accepted the BIA’s narrow interpretation were split as to the legal rationale for the decision.
However, the majority agreed that there is an ambiguity in the law. Justice Kagan who wrote the plurality opinion explained that where the statute is unclear, the court must defer to the interpretation of the agency. She further stated that, “Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role. We decline that path, and defer to the Board.”
The ruling is a disheartening to immigrant advocates who contend that our immigration system should unite families, not separate them. Without doubt, this will have a harsh impact on countries with long waiting period caused by the problem on visa backlog. The waiting period differs depending on the category and the country of chargeability; it can be decades for some countries such as Mexico and the Philippines.
The F4 category for the Philippines, for example, has a cut-off date of November 15, 1990 as shown in the June 2014 visa bulletin. The Court’s ruling would mean that a derivative beneficiary from the Philippines who is waiting with his parents under the F4 category would not be credited for the more than two decades of waiting for a visa number. When a visa finally becomes available to his parents, he would have to go at the back of the visa line and start from the beginning under a new family-based preference category.
A bipartisan coalition of current and former U.S. Senators filed a legal brief with the Supreme Court explaining that the language of the CSPA is clear; the automatic conversion and priority date retention provision benefits all derivative beneficiaries of family based preference petitions. With the Supreme Court’s ruling that the CSPA law is ambiguous, it is now up to Congress to pass a law in a language that clearly and unambiguously expresses its intent.