Seguritan US Immigration Articles

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conversion clause has been interpreted by immigration lawyers and by the Board of Immigration Appeals (BIA) in an unpublished decision to mean that the LPR parent of the child (now-adult but unmarried) can file a second preference I-130 petition and the child will retain the priority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.

Undocumented Children Have the Right to Attend Public Schools

Under federal law, state and local educational agencies may not deny free public primary and secondary education to undocumented students.

And yet, there have been school enrollment practices that indicated discrimination against immigrant students. Requiring a birth certificate or social security number before enrollment tends to “chill” or discourage parents from sending their children to public elementary or high schools.

These practices have prompted officials of the U.S. Department of Justice and Department of Education to circulate a letter to key agencies to address these school procedures.

Guidelines in the letter dated May 6, 2011, emphasize that students may not be barred from enrolling in a public elementary or secondary school on the basis of perceived or actual citizenship or immigration status whether their own or that of their parents/guardian.

School districts may require proof of residency within district limits and proof of age to determine whether the student may attend a public school. On the other hand, as the U.S. Supreme Court has held back in 1982 in the Plyler v. Doe case, the undocumented or non-U.S. citizen status of the student (or a parent/ guardian) is irrelevant to his/her entitlement to an elementary and secondary public education.

To establish residence, the district may not require proof of U.S. citizenship or immigration status, but it can require telephone or utility bills and mortgages or lease documents.

To prove age, the district may require a copy of the child’s birth certificate, but it may not prevent the child from enrolling because he/she has a foreign birth certificate.

Students are not required by law to have a Social Security Numbers (SSN) to enroll in school. Since an undocumented child is not eligible for an SSN, asking for it may reveal the child’s immigration status which may in turn discourage him/her from attending school. In any case, an SSN is not relevant to residence and age which are both required.

Some school districts request an SSN to be used as a student identification number. However, the letter instructs that when so requesting the school must inform the student and the parent that providing the number is voluntary, and explain for what purpose the number will be used. If the student or parent does not have an SSN or chooses not to provide it for whatever reason, the school district may not deny the child enrollment.

In the letter, the department officials recognized that different states and districts may require different types of documentation, but cautioned them to apply rules uniformly and not based on the student’s race, color, national origin, immigration or citizenship status. In other words, all students must be treated equally and the school district may not select which students it will request certain documents from.

The guidelines recommend that when it comes to information other than residency, age and immunization history, which are generally required prior to enrollment, the school may choose to wait before asking for such information in order to create a more welcoming atmosphere. An example would be student demographic data (e.g., race, home language, country of origin, etc.) which are reported by schools pursuant to state and federal data collection laws.

In New York, according to an August 30, 2010 guidance issued by the Senior Deputy Commissioner for P-12 Education, residence is based on two factors: physical presence as an inhabitant and intent to reside in the district. As long as a student meets this two-part test, he/she is entitled to attend school in the district regardless of immigration status. School districts in New York may not require the student to provide an SSN for any purpose.

The letter underscored the federal government’s obligation to provide equal educational opportunities to children living within each district. It is hoped that with this reminder, school districts will be in compliance with federal civil rights laws and regulations and Supreme Court rulings prohibiting unlawful discrimination.

The Civil Rights Act of 1964 prohibits public schools and recipients of federal financial assistance from discriminating students on the basis of their race, color, or national origin.

The letter also quoted from the landmark case of Brown v. Board of Education (1954), noting that “it is doubtful that any child may be reasonably expected to succeed in life if he/she is denied the opportunity of an education.”

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