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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.

Under CSPA Child Must File Adjustment Within 1 Year

For ten years now, the Child Status Protection Act (CSPA) has given relief to many thousands of children of U.S. citizens and lawful permanent residents who would have otherwise “aged out” or lost the privilege of getting a green card simply for turning 21 years old. Their long wait was in most cases due to government delay in processing the immigrant petitions.

The CSPA allows a child who has turned 21 to still be considered a “child” for immigration benefits purposes. Under Section 3 of the INA, to qualify as a “child” the length of time the petition was adjudicated is deducted from the beneficiary’s age on the date a visa number became available. If using this formula the child’s age falls below 21, the child can benefit from the CSPA if he “sought to acquire” lawful permanent resident status within one year of visa availability.

Previously, the “sought to acquire” portion of eligibility for CSPA age-out protection was interpreted broadly to include “substantial steps” in pursuing lawful permanent resident status. However, the Board of Immigration Appeals recently rendered a restrictive interpretation of this provision.

In a recent case, Matter of Vazquez, a derivative beneficiary of an I-130 petition filed an adjustment of status application more than one year from the date that his visa number became available. The USCIS denied it on the ground that he had “aged out” of his derivative beneficiary status.

The USCIS reasoned that he had not “sought to acquire” permanent resident status within a year of visa availability because he did not file his adjustment application within 1 year of the visa number becoming available. Since he did not meet the “sought to acquire” requirement, he was denied the benefit of the CSPA.

He was then placed under removal proceedings. He argued before the immigration judge that he met the “sought to acquire” requirement because, within the 1 year period after a visa became available, his parents consulted with a notario about filing an application. The judge disagreed with this interpretation and ordered the respondent’s deportation.

He appealed to the Board of Immigration Appeals (BIA) and argued that since the law uses “sought to acquire” instead of “filed”, Congress intended to allow a range of actions aside from the “filing” of the adjustment of status application.

The Department of Homeland Security (DHS), on the other hand, persuaded the BIA that Congress had to use language that would cover the different processes used by the Department of State (DOS) and the DHS, both of which adjudicate requests for immigrant status. The DOS does not ordinarily use the term “filed” to refer to the initiation of the visa application process. Instead, it uses the word “submit” when referring to the Form DS-230 or the Application for Immigrant Visa and Alien Registration.

The BIA agreed with the DHS and said that it was reasonable for Congress to avoid using the word “filed” because of the difference in language between DOS and DHS.

To the BIA, the 1 year period given to the alien to take advantage of CSPA’s age-out protection was more than enough to enable the alien to seek legal assistance, gather documentation and execute the forms. When it comes to DHS (USCIS) cases, therefore, the proper filing of an adjustment of status application will unquestionably satisfy the “sought to acquire” requirement.

The alien may also meet the requirement through other actions that fall short of filing, such as when an alien submits the application to the DHS but it is rejected for a procedural or technical reason.

Extraordinary circumstances may also satisfy the requirement, as in cases where the failure to file timely was because of circumstances beyond the alien’s control. For example, the alien may have paid an attorney to file the adjustment application but the attorney failed to do so in time.

Contacting an attorney about initiating the process of obtaining a visa is not enough to meet the requirement, according to the BIA.

Unfortunately, since Vazquez is a precedent ruling it has to be followed even if one may argue that it is not faithful to the intent behind the remedial legislation. Congress passed the CSPA to bring families together and give relief to children who lose the opportunity to become permanent residents when the government takes too long to process their adjustment of status applications. A court has even ruled that the CSPA should be interpreted in a way that provides expansive relief to children of U.S. citizens and permanent residents.

The ruling in Vazquez limited itself to DHS cases. For DOS cases or consular-processed immigrant visa applications, the broader reading of the “sought to acquire” provision should still apply.

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.

Determining Age of Child Under CSPA

For many years, families with children who were beneficiaries of immigrant visa petitions often worried that the children would “age out” or turn 21 years old before the immigration processing could be completed.

This changed in 2002 when Congress enacted the Child Status Protection Act (CSPA). This law was intended to mitigate the harsh impact that reaching the age of 21 had on the children’s eligibility for an immigrant visa. Under the CSPA, a child’s age can be fixed or locked according to certain rules. It is the CSPA age, and not the chronological age, that is used to determine whether the person remains a “child” for immigration purposes.

In a recent public teleconference the USCIS Ombudsman explained the different formulas on how the age is calculated depending on whether the person is the child of a U.S. citizen, the child of a green card holder, a derivative in the family- or employment-based categories, an asylee/refugee derivative, or a derivative based on the Violence Against Women Act (VAWA).

If the parent is a U.S. citizen, the child who is unmarried and under 21, as of the date of the filing of a Form I-130 relative petition by the parent, is considered an immediate relative and his/her age is “frozen”. As a result, the child does not age out and remains eligible for the immigration benefit applied for. Before the CSPA, the child would have lost immediate relative status and automatically moved to the first family preference category (F2A).

If the child under 21 is married at the time of the filing of the I-130 by the U.S. citizen parent, a subsequent divorce before turning 21 converts this child to immediate relative status which is preserved when he/she reaches 21.

On the other hand, if the parent is a legal permanent resident (LPR) who files an I-130 for an unmarried child under 21, but who subsequently naturalizes before the child turns 21, the child is converted to immediate relative status and this status is preserved when he/she turns 21.

In other cases of LPR parents, the child’s CSPA age is his/her “adjusted age” which is the biological age minus the number of days that the I-130 petition filed on the child’s behalf was pending before being approved by the USCIS.

If on the date the visa becomes available for his/her priority date the child is under 21 using the formula for “adjusted age”, the child’s family 2A status is preserved. The child has one year from the date of visa availability to seek to acquire permanent resident status.

The computation for children of LPRs is especially useful because children who reach 21 fall into the family 2B category, where the backlog is greater than in the 2A category where they would remain had they not aged out. The difference in waiting times between 2A and 2B currently varies from 4 years to 15 years, depending on the country of chargeability.

Using the CSPA formula, derivative children in the family-based categories will retain their derivative status upon reaching 21 if their adjusted age is less than 21 on the date of availability of the principal beneficiary’s visa.

Derivative children in employment-based categories will likewise retain their derivative status upon turning 21 if their adjusted age is below 21 on the date of the principal beneficiary’s visa availability. The time during which the I-140 petition was pending is subtracted from the children’s biological age to arrive at their adjusted age.

As in children of LPR parents who do not otherwise naturalize, family- and employment-based derivative children must seek to acquire permanent resident status within one year from the date that their priority dates become current.

This requirement of seeking to acquire LPR status has been interpreted to mean the filing of an I-485 adjustment application, DS-230 Part I, or I-824 application.

Recent CSPA Decision Favors Aged-Out Children

A child who has turned 21 may still be considered younger than 21 years old under the Child Status Protection Act (CSPA). Being considered younger than 21 for immigration purposes significantly reduces the wait time to become a lawful permanent resident.

Locking a child’s age at younger than 21 occurs when a United States citizen parent petitions an unmarried child before he or she turns 21 but the child’s adjustment of status or admission as an immigrant takes place after reaching 21.

Another situation when a child’s age is frozen under CSPA is when a lawful permanent resident parent is the beneficiary of a visa petition or files a visa petition for his or her child under 21. The number of days between the filing of the petition and the approval is subtracted from the child’s age on the date that the priority date of the child or parent becomes current. If the difference is less than 21, the child benefits from the CSPA.

An additional requirement for CSPA purposes is that the child must have “sought to acquire” lawful permanent resident status within one year of the visa number availability. This is the date when the visa petition is approved and the priority date is current as indicated in the Department of State Visa Bulletin.

The phrase “sought to acquire” has been interpreted by the Department of Homeland Security (DHS) and the Department of State (DOS) narrowly. The DHS has stated that the phrase refers to the filing of an adjustment of status application.

The DOS has said that for purposes of consular processing it means the submission to the National Visa Center of the Form DS-230 Part I by the child or by the child’s parent or Form I-824 by the parent in cases where the child is following to join.

Many CSPA applications have been rejected or denied because of such strict interpretation.

In a recent unpublished decision by the Board of Immigration Appeals, the term “sought to acquire” was given a broad meaning.

In this case, Matter of Murillo, the visa petition of his father had a priority date of October 16, 1995 and was approved on August 8, 1996 when Murillo was 12 years old. A visa number became available on June 1, 2003 when he was 19 years old. However his attorney whom he retained to file his adjustment of status filed his application more than 20 months from the date when a visa number became available.

The DHS concluded that Murillo was not eligible for CSPA benefits because he did not file his adjustment application within a year from June 1, 2003. But the Immigration Judge ruled that he was eligible because the requirement of “sought to acquire” could be satisfied by circumstances short of filing the application. The hiring of the attorney to prepare the application satisfied this requirement.

The Board of Immigration Appeals agreed with the Immigration Judge. The Board said that the term “sought to acquire” was broad enough to include substantial steps (such as hiring an attorney who completed the form and obtaining a money order for the filing fee) toward the filing of the adjustment application within the required one-year period. To hold otherwise, the Board said, “would undermine the very purpose and intent of the statute which was to protect an alien ‘child’ from ‘aging out’ due to ‘no fault of her own’.”

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