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Carl Shusterman's Immigration Update


  1. CSPA: Rodriguez Tovar Decision Could Help Keep Families Together

    On February 14, 2018, the US Court of Appeals for the 9th Circuit, in Margarito Rodriguez Tovar v. Jefferson Sessions reinterpreted a section of the Child Status Protection Act (CSPA) in a way which could help keep many immigrant families intact.


    The Court overturned a decision by the Board of Immigration Appeals (BIA) that the son of a US citizen father who had waited in line for a green card for many years be forced to leave the US for a decade or more.

    Margarito Rodriguez Tovar was born in Mexico in 1983.

    In 2000, at the age of 17, he entered the US. On April 30, 2001, his father, who was a lawful permanent resident, sponsored him for a green card. In 2005, the USCIS approved the family-based 2A visa petition.

    In 2006, his father became a naturalized US citizen. The child’s 2A priority date (minor, unmarried sons/daughters of lawful permanent residents) became current and, in 2008, he filed for adjustment of status under section 245i.

    The USCIS denied his application on the ground that he had aged-out and that since the family-based 1st preference (adult unmarried sons/daughters of US citizens) priority dates were backlogged to 1992, his priority date would not become current for more than a decade.

    He was placed under removal proceedings where he renewed his application for adjustment of status.

    However, both the Immigration Judge and the BIA denied his application and ordered him to leave the US.

    The IJ and the Board cited the BIA’s published opinion in Matter of Zamora-Molina, 25 I. & N. Dec. 606 (BIA 2011). Zamora-Molina involved a similar fact pattern. The respondent’s LPR mother had originally sponsored her child under the family 2A category, and became naturalized after the child’s 21st birthday. The respondent argued that had the mother not naturalized, he could have utilized CSPA’s “opt-out” provision and used the CSPA age formula to adjust his status under the 2A category. The BIA disagreed and held that since the mother had naturalized, the issue was whether the CSPA age formula applies to “immediate relatives” of US citizens. The section of law in question states that only if the parent naturalizes prior to the child’s turning 21 can the child be considered an immediate relative of a US citizen. The BIA ruled that this referred to the child’s biological age.

    In Rodriguez Tovar, the 3-judge panel disagreed with the holding in Zamora-Molina andunanimously held that it would make no sense for Congress to punish a child simply because his sponsoring parent became a US citizen. They determined that the section of CSPA that refers to immediate relatives should be read to refer to a person’s statutory (CSPA) age rather than to his/her biological age.

    Applying the CSPA formula, Rodriguez Tovar’s age would be under 21 (24 years when his priority date became current on June 1, 2007 minus the 4 years that the I-130 was pending before the USCIS), and he would be eligible to adjust his status to permanent resident as an immediate relative of a US citizen parent.

    The opinion in Rodriguez Tovar succinctly states the rationale for the decision as follows:

    "In sum, the government’s position is that because
    Rodriguez Tovar’s father became a citizen, Rodriguez Tovar
    must now wait decades longer for a visa than if his father had
    remained an LPR. In the meantime the government seeks to
    deport him to Mexico, with any future return subject to
    unforeseeable modifications to the current immigration laws.
    As we explain in the remainder of this opinion, the correct
    interpretation of the statute does not lead to this absurd result,
    but rather to his entitlement to an immediately available visa.

    It remains to be seen whether the government will ask the Supreme Court to review this decision.

    Updated 03-09-2018 at 05:23 PM by CShusterman

  2. USCIS Fee Increases: Dollars and Sense? With USCIS filing fees spewing higher than the BP oil spill, you'd think the President and Congress would be holding press conferences to propose a legislative fix.

    But, alas, immigrants cannot vote, so who cares?

    Perhaps their U.S. citizen spouses, parents, sons and daughters, siblings and employers who have sponsored them for green cards and temporary working visas. Also, the Immigration Examiners who may lose their jobs as ever-higher filing fees deter immigrants from applying for naturalization and other immigration benefits.

    Back when I worked as an INS Citizenship Attorney, the cost of applying for U.S. citizenship was a mere $15. Over the years, the costs doubled and tripled until the filing fees were several hundred dollars. When the USCIS raised the filing fee for naturalization to $675 in 2007, the number of new applications dropped from 1.4 million to just over 525,000 in a single year.

    Yesterday, I accompanied a client to her naturalization interview in San Francisco. The waiting room was practically empty. What a depressing change from a few years ago when so many immigrants were applying for U.S. citizenship that the waiting rooms were all SRO.

    Under the proposed USCIS rule which will appear in the Federal Register tomorrow, the cost of applying for a green card will increase from $930 to $985. The application fee for a family petition (I-130) will be $420, up from $355. The cost of an I-140 employment-based petition will rise over $100 and premium processing fees will increase by 22.5%.

    But don't blame the USCIS.

    Faced with a $200 million budget shortfall, the agency has no choice but to raise user fees. Congress, which pays billions of dollars each year to fund the largely-ineffective immigration enforcement system, won't spend a penny to help encourage green card holders to become U.S. citizens.

    So, what is the answer?

    We propose expanding the system of fines placed on those who commit minor infractions of our immigration laws. Congress needs to extend and expand the section 245i program which has brought in hundreds of millions of dollars to fund the USCIS in the past.

    It is obvious to almost everyone who follows immigration laws that the so-called "entitlement bars" are simply not working. They separate families and*discourage persons from applying for immigration benefits. A more practical solution would be to impose fines on persons who would otherwise qualify for green cards except for a period of "unlawful presence" in the U.S. Why should those who play by the rules have to pay higher and higher application fees? Shouldn't those with minor immigration infractions be forced to pay fines to help subsidize the system?

    Write to your Senators and Members of Congress.

    Tell them that instead of increased application fees, you would like a policy that makes both dollars and sense.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 05-04-2018 at 10:39 PM by CShusterman

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