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Aged-Out Beneficiaries Win in Latest CSPA Ruling

Thousands of aged-out children will no longer have to wait at the back of the line for a green card. That is, if the government relents and concedes that it had been wrongly and unfairly interpreting the law for a long time.

In a recent ruling that will have far-reaching consequences, the Ninth Circuit Court of Appeals held that derivative beneficiaries of all types of family petitions could retain the priority date of the original petition filed on behalf of their parents.

This is the latest in a legal saga that revolves around a key provision of the Child Status Protection Act.

The CSPA calculates a child’s age using a formula which takes into account the government’s delays in processing a visa petition. If even after the age-reducing computation, a child’s age is still 21 or over, Section 1153(h)(3) still preserves the aged-out child’s chances for a green card by allowing the petition to be automatically converted to the appropriate category. It also allows the child to retain the original priority date.

This way, aged-out children get credit for the years or even decades that they and their parents waited to reach the front of the line for an immigrant visa.

But the USCIS has interpreted this provision narrowly and said that automatic conversion and priority date retention did not apply to derivative beneficiaries of F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens) petitions.

The plaintiffs in the case De Osorio v. Mayorkas were derivative beneficiaries of F3 and F4 visa petitions. One of the plaintiffs, Cuellar de Osorio, was the primary beneficiary of an F3 petition filed by her U.S. citizen mother with a priority date of May 1998. Her son at the time was 13 years old. When a visa became available in November 2005, her son had aged out and became ineligible for an immigrant visa. After she immigrated to the U.S., she filed an F2B (unmarried son or daughter of permanent resident) petition for her son in August 2006 and requested that he retain the 1998 priority date. The USCIS denied her request.

Plaintiff Costelo was also the beneficiary of an F3 petition filed by her U.S. citizen mother in 1990. Her daughters had aged out when the priority date became current in 2004. She filed F2B petitions for her daughters and requested retention of the 1990 priority date.

Plaintiff Ong was the beneficiary of an F4 petition by his U.S. citizen sister in 1981. His daughters, who were 2 and 4 years old at the time of the petition, had aged out when a visa became available in 2002. In 2005, Ong filed F2B petitions for them and requested retention of the 1981 priority date. The USCIS did not respond to Ong’s and Costelo’s requests.

While this case was pending with a district court in California several years ago, the Board of Immigration Appeals issued a restrictive interpretation of Section 1153(h). It said that only subsequent visa petitions that do not require a new petitioner may convert automatically to a new category and retain the original petition’s priority date. This meant that automatic conversion and priority date retention were available only to derivatives of F2A (spouse and children of permanent resident) petitions.

The district court thus ruled against the aged-out children, prompting them to file an appeal with the Ninth Circuit Court of Appeals. A three-judge panel of the appeals court deferred to the strict interpretation of the BIA.

But on rehearing, the Ninth Circuit en banc handed victory to the aged-out children. It found that based on the plain language of the law, automatic conversion and priority date retention applied to all family-sponsored derivative beneficiaries. It therefore rejected the unfair reading given by the government.

The story, however, may still be far from over as the government can file an appeal with the U.S. Supreme Court. If the government persists despite this most recent refutation of its interpretation, thousands of families will continue to be separated for many years during the wait for an immigrant visa.

Appeals Court Rules in Favor of Aged-Out Alien

An appeals court recently ruled that all derivative beneficiaries who have aged-out may be able to have their petitions automatically converted to the appropriate category and retain the priority date issued in the original petition.

The decision by the 5th Circuit Court of Appeals in Khalid v. Holder came less than one week after another court, the 9th Circuit, held that automatic conversion under the Child Status Protection Act did not apply to F3 and F4 derivatives. F3 refers to married sons and daughters of U.S. citizens while F4 refers to brothers and sisters of adult U.S. citizens. This disagreement between different federal courts, also called a circuit split, will likely reach the U.S. Supreme Court for resolution.

Khalid v. Holder was about a child from Pakistan who entered the U.S. as a visitor. Khalid’s U.S. citizen aunt filed an F4 petition for her sister, Khalid’s mother. Khalid was 11 years old when the petition was filed. By the time his mother’s priority date became current, he was already 22 years old. Thus, when he applied for adjustment of status, Khalid was no longer a “child” so his application was denied.

After becoming a lawful permanent resident, Khalid’s mother filed a second preference petition for him. Pursuant to the automatic conversion clause of the CSPA, she asked that the petition be given the June 1996 priority date. However, the USCIS assigned the petition a priority date of November 2007, which was expected to be current by 2015. Khalid also filed for adjustment under Section 245(i) on the basis of his aunt’s petition but the USCIS also denied this application.

The government then placed Khalid under removal proceedings. Khalid argued that he could retain the June 2006 priority date. If that date were used, he would be eligible for a visa and need not leave the United States. Both the immigration judge and Board of Immigration Appeals disagreed with Khalid, prompting him to appeal to the 5th Circuit.

The provision at issue is Section 1153(h)(3), which says that if an alien’s age is 21 years or older the petition is automatically converted to the appropriate category and the alien retains the original priority date issued upon receipt of the original petition.

If the interpretation in Khalid is ultimately upheld, thousands of families, especially those coming from oversubscribed countries such as the Philippines, would be reunited faster.

Allowing priority date retention to F3 and F4 derivatives would significantly cut down visa waiting time. For example, say Mr. A, a national of the Philippines, was issued an immigrant visa on the basis of an F3 petition filed in 1992 by his U.S. citizen mother. Mr. A’s daughter, the derivative beneficiary in the original petition, was unable to immigrate because at the time that a visa number became available to her father, she was already 25 years old. Even after applying the proper CSPA formula, she was still over 21 years of age.
Mr. A then files an F2B petition for his daughter, which is the appropriate category for a petition filed by an LPR parent for an unmarried child 21 years of age or older.

If an F2B petition is filed today, it will take about 10 years before a visa becomes available to the beneficiary. Following the court’s interpretation in Khalid, the petition for the daughter can be given the priority date of the petition filed by her grandmother. With a 1992 priority date, the daughter will be able to adjust her status immediately.

This was the understanding of many immigration lawyers and even the BIA in an unpublished case. That was until 2009 when the BIA came out with a restrictive interpretation of the automatic conversion clause and denied F3 and F4 derivative beneficiaries the benefit of the provision.

The BIA reasoned that the CSPA was not meant to address delays in waiting for a visa and that the Congress could not have intended beneficiaries in new F2B petitions to cut in front of the waiting line.

The 5th Circuit criticized the BIA’s reading as contrary to the plain language of the law. The court found that the statute, read as a whole, clearly intended the automatic conversion clause to benefit all derivative beneficiaries.

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