Carl Shusterman's Immigration Update
, 06-22-2012 at 02:54 PM (1481 Views)
On June 19, together with Attorney Nancy Miller, I appeared before an en banc panel (11 judges) of the U.S. Court of Appeals for the 9th Circuit to argue in favor of a provision of the Child Status Protection Act (CSPA) which Congress meant to allow nuclear families to remain together during what can be a long and tedious immigration process. The video of the oral argument is available online.
The case is a nationwide class action lawsuit which will affect tens of thousands of immigrant families from every country in the world, but especially those from countries with long backlogs in the family and employment preference categories like Mexico, the Philippines, India and China.
Before CSPA was enacted, whenever a child of intending immigrants turned 21 years of age, he was said to have "aged-out" and could no longer immigrate to the U.S. together with his parents, this despite the fact that he may have patiently stood in line with his parents for 10 or even 20+ years.
In order to correct this unfair result and avoid separating families, Congress passed CSPA in 2002. One section of CSPA allows the child to subtract the time that the I-130 or I-140 was pending from his age when his priority date became current. Say that the priority became current on his 25th birthday, and the visa petition was pending 5 years. Under this formula, the child's CSPA age is 25 minus 5, or 20 years old. Thus, CSPA allows him to immigrate together with his parents.
Of course, no child has any control over how long the USCIS takes to approve his visa petition. This is simply a matter of luck, the longer the better for purposes of this formula. Using the example above, let's say that the visa petition was pending only 1 year instead of 5. In this example, his CSPA age would be 25 years minus 1, or 24 years old. By virtue of luck, the child whose petition was pending 5 years can immigrate together with his parents while the child whose petition was only pending one year can not. This makes no sense.
Couldn't the parents sponsor the unfortunate son after they obtain permanent residence? They could do so under the family-based 2B category, unmarried adult sons and daughters of lawful permanent residents. But when you do the numbers, and look at how many people are waiting in the 2B line, you quickly learn that it would take a Filipino son over 32 years to join his parents in the U.S., and for Mexico (Are you ready for this?), over 115 years!
Fortunately, Congress recognized this problem when they drafted the law, and added a second part to the formula. When a child's age is determined to be over 21 years old in part one of the formula, his petition automatically converts to the 2B category, and he is allowed to "retain" the priority date of the original petition. Therefore, if the original petition was submitted 20 years ago, the child gets credit for the time that he stood in line side-by-side with his parents, and may be able to immigrate either together with his parents or soon thereafter.
Unfortunately, the government ignores the plain language of CSPA, and insists that given this constitutes "jumping to the front of the line", conveniently ignoring the fact that the child has waited in line for many years. And at the oral arguments, it was apparent that a least one or two of the judges may agree with the government's position. It is curious, however, that the two agency regulations that the government cites in its brief both give immigrants credit for the time that they stood in line in one category although they are immigrating in another category. Apparently, the government believes that consistency is "the hobgoblin of small minds".
It may take a few weeks, or even a few months, for the Court to issue its decision. And the losing side will be able to ask the Supreme Court to review the 9th Circuit's decision.
Meanwhile, thousands of immigrant parents will remain separated from their sons and daughters.
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