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Great news out of the U.S. Court of Appeals for the 9th Circuit, which ruled today that a Board of Immigration Appeals interpretation of the Child Status Protection Act (CSPA), improperly excluded a large class of immigrants from being eligible for immediate residence.  Rosalina Cuellar de Osorio challeged the BIA’s interpretation of the CSPA in Matter of Wang before the 9th Circuit.  She initially lost before a three judge panel, but the court sitting en banc agreed to rehear the case.  A number of organizations submitted briefs in support of Cuellar de Osorio’s case, including DreamActivist, a nationwide action committee for undocumented youth.  DreamActvist was represented by Benach Collopy.

Today, September 26, 2012, the Ninth Circuit overturned Matter of Wang in Cuellar de Osorio v. Mayorkas:

“We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.”

With a 6-5 en banc split, the Ninth Circuit now joins the Fifth Circuit in rejecting the position of the BIA. It will allow many young people who were the derivative beneficiaries of previous petitions to apply for a green card, if they were aged-out of the process when they turned 21. This is great news for many young people, including many Dreamers, who would no longer have to face lengthy separation from their families and deportation from their homes.

Congress passed the Child Status Protection Act (CSPA), Pub L. No. 107-208, 116 Stat. 927 (2002) to address the complex problem of aging out of family and employment based petitions. In short, due to massive visa backlogs and administrative delays, adult children were aging out of approved visa petitions upon turning 21. In many cases, these petitions were filed on behalf of their parents by employers or other family members when they were much younger. CSPA was supposed to fix this problem in a myriad of ways, first by a complex mathematical formula, which deducted the time it took to adjudicate the petition away from the age of the adult child and second, by allowing those who aged-out even after the application of the formula, to retain the original priority date from the original petition that was filed on behalf of them, and apply it to a new category. This is spelled out quite unambiguously in Section 203 (h)(3):

“If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), 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.”

USCIS did not issue regulations on this matter at first, and issued a number of contrary decisions. In some cases, aged out adult children were approved. In other cases, they were denied a green card. The Board of Immigration Appeals also did not know what to make of the statute and issued a number of contrary rulings. Compare Matter of Maria T. Garcia in 2006 with Matter of Wang in 2009, where the BIA restricted the application of Section 203 (h)(3) to applicants in the F-2A category, finding no evidence that “Congress intended to create a mechanism to avoid the natural consequence of a child aging out of a visa category because of the length of the visa line.” This decision automatically doubles the number of years a derivative beneficiary has to wait in line for a green card, and in some cases, a derivative may never be able to get a green card.

On May 11, 2012, Benach Collopy filed an amicus curiae (“friend of the court”) brief on behalf of DreamActivist with the U.S. Courts of Appeals for the Ninth Circuit in Cuellar de Osorio v. Mayorkas asking the Court to reject the Board of Immigration Appeals decision in Matter of Wang, which unnecessarily limited the class of individuals who could gain the benefits of the Child Status Protection Act (CSPA).  This represented the first time that a Court heard directly from Dreamers on a question of statutory interpretation and public policy.

The impact of this case is felt personally in the Benach Collopy family.  Our law clerk, Prerna Lal, is one individual who suffered under the BIA’s intepretation under Matter of Wang.  In 2001, Prerna’s grandmother filed an immigrant petition on behalf of her daughter, Prerna’s mother.  As a child, Prerna was covered under this petition.  However, due to lengthy backlogs in this category, by the time Prerna’s mother was able to seek residence in 2009, Prerna had already turned 21 and had “aged-out” of eligibility as she was no longer a “child” under the immigration laws.  Prerna’s mother filed a petition for Prerna, but the CIS, pursuant to Matter of Wang, refused to acknowledge the 2001 filing date.  Thus, under her mother’s petition, Prerna would not be able to seek her residence until approximately 2017, despite the CSPA and the fact that Prerna was originally covered in 2001.  As Prerna’s case is in San Francisco, CA, the heart of the 9th Circuit, this decision makes her eligible to apply for residence using her 2001 date assuming that the decision stands.

It is unclear whether the Government will ask for cert. from the Supreme Court. It has 90 days to request cert. If asked for cert, the Supreme Court may or may not deny it. If it denies cert, the decision will still be law in the 9th and 5th circuit. Young people who have been aged out and thrust into removal proceedings may be able to adjust their status before an Immigration Judge under the jurisdiction of the Ninth and Fifth Circuits. In due time, the USCIS may also issue new regulations allowing every derivative beneficiary of a family-based or employment based to retain their original priority date and adjust their status to lawful permanent residents without much wait.