Update on the CSPA Lawsuit

Last April, we submitted our opening brief to the 9th Circuit Court of Appeals challenging the government's restrictive interpretation of the "automatic conversation" clause of the Child Status Protection Act (CSPA).

Recently, the government asked for additional time to submit their reply brief, and also requested that our lawsuit be combined with a nationwide class action lawsuit involving the same matter.  We agreed to both of these requests.  The Court granted the motion, and gave the government until August 16th to submit their reply brief.

If our appeal is successful, the decision would prevent the separation of many thousands of immigrant families.

What is the issue that we are litigating in Court?

Prior to 2002, only children (unmarried and under 21 years of age) were permitted to immigrate together with their parents.  If a child turned 21 years of age before obtaining a green card, the permanent resident parent had to petition for the adult son or daughter under the family-based 2B category, and wait a number of years for the family to be reunited.  If the son or daughter married before immigrating to the U.S., the family separation often became permanent.

Because the waiting times in the State Department's Visa Bulletin can range up to 22 years, many immigrants have had to choose between coming to the U.S. and keeping their families intact.

CSPA, which was enacted into law in 2002, was meant to prevent the lengthy separation of immigrant parents from their sons and daughters. It provides that derivative beneficiaries of employment and family-based visa petitions may have their ages reduced by the number of months or years that the petition was pending.  Thus, a daughter who is 22 years of age when her parents applied for adjustment of status would benefit if the I-130 or I-140 visa petition was pending for 2 years.  Subtracting 2 from 22 reduces her age to 20, thereby allowing her to adjust status together with her parents.

What happens though, if the petition was only pending 2 months instead of 2 years?  In this case, the daughter's age would be 21 years and 10 months.  She would have "aged-out" under the traditional rules.  However, CSPA amended the Immigration and Nationality Act (INA) in order to prevent the separation of the daughter from her parents in such cases.

Subsection 203(h)(3) of the INA (the "automatic conversion" clause) provides as follows:

“Retention of Priority Date – 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.”

Therefore, in the case mentioned above, the daughter would be entitled to retain the priority date of the original visa petition and to immigrate under the family-based 2B category since she is now the unmarried adult daughter of parents who are permanent residents.

Seems simple enough.  Yet, in 2009, the Board of Immigration Appeals (BIA), in Matter of Wang, found that the question of who this subsection of CSPA applies to was "ambiguous". The Board embarked on a lengthy examination of USCIS/INS regulations and the legislative history of CSPA.  The BIA concluded that there was no evidence that Congress meant subsection 203(h)(3) to apply to derivative beneficiaries of visa petitions.  We had sued in District Court to protect the statutory rights of our clients in 2008.  The government persuaded the Federal Judge to defer to the Board's decision in Matter of Wang.  We appealed, and this matter is now before the U.S. Court of Appeals for the Ninth Circuit.

The issue to be decided is whether subsection 203(h)(3) is clear or ambiguous as to whom it applies to.  As stated above, this subsection applies  "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)..." 

It is clear that "paragraph (1)" refers to subsection 203(h)(1) and that both are subsections of section 203(h) which is entitled "Rules for determining whether certain aliens are children".  Subsection 203(h)(1), which establishes the formula which allows certain sons and daughters over the age of 21 years old to immigrate together with their parents, applies to all derivative beneficiaries of employment and family-based petitions.  We and the government both agree on this fact.  The language is clear.  In explaining the class of persons who section 203(h)(1) applies to, statute says "for the purposes of subsection (a)(2)(A) and (d)."

Which persons are covered under these two sections of law?

Section 203 (a)(2)(A) applies to children of lawful permanent residents under the family-based 2A category.  Section 203 (d) applies to derivative beneficiaries of employment, lottery and family-based visa petitions.  

Is it clear who subsection 203(h)(1) applies to?  The answer is yes.  The USCIS and the State Department have released numerous memoranda since the enactment of CSPA in 2002, and it is clear from reading these memos that the agencies responsible for applying the law agree that subsection 203(h)(1) applies to all derivative beneficiaries.   

Subsection 203(h)(3), in explaining who it applies to, uses the identical language as subsection 203(h)(1).  It applies to persons who are 21 years of age or older "for the purposes of subsections (a)(2)(A) and (d)." 

It is an elementary rule of statutory construction that if the same language is used in different sections of the same statute, the language has the same meaning.  Here, the same language is not only used in the same statute, but in the same section of the statute.  And subsection (3) even references subsection (1).  What could be more clear?

However, the government maintains that the identical language in subsections (1) and (3) has different meanings.  Subsection (1) applies to beneficiaries of family-based 2A visa petitions and to all derivative beneficiaries while subsection (3) applies only to beneficiaries of family-based 2A visa petitions and not to other derivative beneficiaries.

The government reasons that children described in section 203(a)(2)(A) may be derivative beneficiaries under section 203(d). Therefore, the words "for the purposes of subsections (a)(2)(A) and (d)" in subsection 203(h)(3) can be read to apply only to derivative beneficiaries who aged-out of the 2A visa category, and to exclude all other derivative beneficiaries.

But why then did Congress include the language "and (d)" in subsection 203(h)(3)?  The government's argument would render the phrase "and (d)" as surplusage, in violation of another rule of statutory construction.

And how does the government explain why the identical language in subsection 203(h)(1) applies to all derivative beneficiaries while the same words in subsection 203(h)(3) apply only to a narrow subset of derivative beneficiaries?

We look forward to reading and replying to the government's brief, and to the decision of the Court of Appeals in this matter.

For those readers who will be attending the Annual Conference of the American Immigration Lawyers Association (AILA), I will be the discussion leader of a panel discussing CSPA ("Why Matter of Wang Got It Wrong") on Saturday, July 3 at 10:20am.  We welcome your questions and your comments.

Comments

[Lloyd]

any update on the ruling?

[ane]

hi sir,may i ask when is the result of the lawsuit? thanks..

[ane]

good day mr.carlshusterman, may i ask when will be the possible result of the lawsuit? thanks sir..

[DST]

I petitioned my brother's family in 1990 when his kids are just 8 and 1 1/2 years old. Now their visa is current but because the kids had age out, they are no longer derivatives of my brother even they remained unmarried thinking that they could immigrate with him. This is really ironic, the kids shld be able to join the parents as long as they are unmarried and were minor when the petition was approved.

Thank you.

[PL]

I am simply tired of how long this has dragged.
Aged out from third preference category. Entire family has paperwork. They are all frustrated. I am doing my fourth degree -- a JD -- at a top U.S. law school and still undocumented. . Where can I find some pure potassium cyanide?!

[ellen]

I am currently in LA right now with my family, we were petitioned by my aunt and our priority date was December 1988, we found out that by next month the fourth preference family based petition was moved to one year. My question now, I am already 27yo and I came here since 2004, I was actly waiting for employment and right now there are no hiring for nurses, Is there any hope that I will be able to get my greencard together with my family soon?

thank you