News Update - September 10, 2011

CSPA Circuit Court Split on Whether Aged-out Children Entitled to Parents’ Earlier Priority Dates

There is now a split between federal courts of appeal on the question of whether an aged out child is entitled to the priority date of the parent under the Child Status Protection Act (CSPA).  Thus far, three circuit courts have decided on the question, with both the Second and Ninth Circuits in the negative, and the Fifth Circuit in the positive.  With a circuit split, this overwhelmingly important question may be headed to the Supreme Court for final resolution.  At stake is whether aged out children have to wait in one line or two for their final immigration.  Where a child has aged out during the processing of the parent's case, he/she has usually waited in line many years with the parent.  Without the CSPA, he/she would have to wait in another line for years while the parent who just received the green card petitions under the F-2B category for unmarried sons and daughters of U.S. permanent residents, a category which is currently backed up eight years.  The CSPA has a clause, Section 1153(h)(3) that if an alien is determined to be 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.  The Board of Immigration Appeals in Matter of Wang, a 2009 case, and the Second and Ninth Circuits in the 2011 decisions, Fei Mei Li v. Renaud and Osorio v. Mayorkas respectively, held that the aged out children could not benefit under the CSPA provision to only stand in one line.  The Fifth Circuit in its September 8, 2011 decision, Khalid v. Holder, decided otherwise holding that the plain language of the CSPA was unambiguous and that the BIA's interpretation of the statute in Matter of Wang contravened the plain language of the CSPA.  The Fifth Circuit's jurisdiction covers the states of Louisiana, Mississippi, and Texas, and residents of those states may be the beneficiaries of the court's ruling.  The government of course reserves the rights to request a rehearing before the same panel of judges or before the entire court and/or to ask for review before the Supreme Court. 


The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article © 2011 Alan Lee, Esq.

 

Copyright © 2003-2012 Alan Lee, Esq.
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