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Carl Shusterman's Immigration Update

Why Matter of Wang Got It Wrong - Four Fallacies

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From its passage in 2002 until now, the USCIS has never issued so much as a memo explaining how it interprets the "automatic conversion" clause of the Child Status Protection Act (CSPA). They left it to the Board of Immigation Appeals (BIA) to explain this in Matter of Wang in 2009. The USCIS argued that the clause be interpreted in the most restrictive way possible, and surprisingly, the Board bought their argument.

However, Matter of Wang may have a short shelf life, and here's why:

1)The "Administrative Delays" Fallacy

In Matter of Wang, the Board states that "we find that while the legislative record demonstrates a clear concern on the part of Congress to ameliorate the delays associated with the processing of visa petitions, there is no indication in the statutory language or legislative history of the CSPA 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."

Not in the statutory language, really?

The Board needed to look no further than Section 6 of CSPA which allows beneficiaries of family-based 1st preference visa petitions to "opt-out" and become permanent residents under the 2B category if the visa line is shorter, no administrative delays required.

The same holds true for Section 2 of CSPA which freezes the age of certain children as "immediate relatives". If a permanent resident parent petitions her daughter under the 2A category and then naturalizes one day before the daughter's 21st birthday, CSPA designates the daughter as an immediate relative. This designation lasts forever, as long as the daughter does not marry (in which case the petition automatically converts to the 3rd category). Again, no administrative delays required.

So, if Congress provides relief to beneficiaries "because of the length of the visa line" in Section 2 and 6 of CSPA, why can't they do the same in Section 3?

Also, the Board could not find anything in the legislative history to support the proposition that CSPA was introduced in part to unite families separated because of the "natural consequences of a child aging out of a visa category because of the length of the visa line". However, the Board ignored the statement of Senator Dianne Feinstein when she introduced CSPA in the Senate on April 2, 2001:

"The legislation I have introduced today would provide a child, whose timely filed application for a family-based, employment-based, or diversity visa was submitted before the child reached his or her 21st birthday, the opportunity to remain eligible for that visa until the visa becomes available...

"...a family whose child's application for admission to the United States has been pending for years may be forced to leave that child behind either because the INS was unable to adjudicate the application before the child's 21st birthday, or because growing immigration backlogs in the immigration visa category caused the visa to be unavailable before the child reached his 21st birthday. As a result, the child loses the right to admission to the United States. This is what is commonly known as 'aging out.' (Emphasis added)

"Situations like these leave both the family and the child in a difficult dilemma. Under current law, lawful permanent residents who are outside of the United States face a difficult choice when their child 'ages-out' of eligibility for a first preference visa. Emigrating parents must decide to either come to the United States and leave their child behind, or remain in their country of origin and lose out on their American dream in the United States. In the end, we as a country stand to lose when we are deprived of their cultural gifts, talents and many contributions."

What could be more clear?

2)The "Cutting in Line" Fallacy

In explaining to Mr. Wang why his daughter is not allowed to join her family in the U.S., the Board's decision is filled with references like "cutting in line ahead of others", "displacement of other aliens" and "'jump' to the front of the line".

No doubt, the Board sees itself as the upholder of fairness and the American Way.
However, what the Board is really doing is displacing Mr. Wang's daughter from her rightful place in line. The visa petition was filed in 1992 when she was ten, but her priority date became current in 2005, after she had "aged-out".

The Board's decision boils down to "Tough break kid, but we are not going to give you credit for all of the years that you waited in line for your green card. Go to the back of the bus!"

Ironically, the Board's decision is based, to a significant extent, upon a 1987 INS regulation, 8 C.F.R. 204.2(i), which allows beneficiaries of family-based petitions to convert from one category to another, whatever their age. Say that your father petitions for you as a married son, and many years later, you get divorced. Bingo! The petition is automatically converted to the appropriate category. And one would suppose, given the Board's decision in Wang that the beneficiary would have to go to the end of the line, right? Anything else would be "cutting in line", "displacing" others and "jumping" to the front of the line. Well, guess what, the regulation does not make beneficiaries go to the end of the line. They get full credit for the time that they have already waited in line. And we have never heard anyone suggest that this is unfair, certainly not the government agency (INS/USCIS) which wrote the regulation.

So why then is the Board ordering Ms. Wang to go to the back of the line?

3)The Statutory/Regulatory Context Fallacy

The Board states: "We begin with an examination of the regulatory and statutory contexts in which Congress enacted the automatic conversion and priority date retention provisions of section 203(h)(3)."

The Board begins by examining the regulations found at 8 C.F.R. 204.2(i) (referred to above) and 8 C.F.R. 204.2(a)(4) which allows derivative beneficiaries of 2A family petitions to retain their priority dates (without going to the back of the line) as long as their parent submits a 2B visa petition on their behalf.

They also consider section 201(f), INA which was added to the law by Section 6 of CSPA (referred to above).

How comprehensive is the Board's review of the regulatory and statutory scheme?

The Board does not discuss any pre-CSPA statutory authorities, even though there are numerous laws dating back to at least 1976 which allow beneficiaries to convert approved petitions from one category to another, sometimes even between family and employment categories, and to retain old priority dates obtained under different categories.

In our briefs, we discuss the Western Hemisphere Saving Clause, the Immigration Nurse Relief Act, the Patriot Act, the Violence Against Women Act and many others. Without explaining our arguments here(If you are interested, you can read our briefs online.), we find it a bit puzzling why the Board did not even mention any of these laws in examining the "regulatory and statutory contexts in which Congress enacted the automatic conversion and priority date retention provisions of section 203(h)(3)." Could it be, as Paul Simon wrote in the song "The Boxer", that "a man hears what he wants to hear and disregards the rest"?

4)The "Ambiguity" Fallacy

The principal question in Wang is who subsection 203(h)(3) applies to.

Once the Board answered this question, the next step would be to discuss how the "automatic conversion" and "retention" clauses operate.

However, Mr. Wang lost at step one. The Board held that subsection 203(h)(3) only applies to derivative beneficiaries if they were originally included in the 2A category.

A bit bizarre?

A primary rule of statutory interpretation is if the language of the statute is clear, this is the end of the matter. Only if the language is "ambiguous" does the Board need to go outside the statute to interpret what the words mean. In Wang, the Board determined in the space of a single paragraph(cited below) that the language of the law was ambiguous:

"If the beneficiary is determined to be 21 years of age or older pursuant to section 203(h)(1) of the Act, then section 203(h)(3) provides that '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.' Unlike sections 203(h)(1) and (2), which when read in tandem clearly define the universe of petitions that qualify for the 'delayed processing formula,' the language of section 203(h)(3) does not expressly state which petitions qualify for automatic conversion and retention of priority dates. Given this ambiguity, we must look to the legislative intent behind section 203(h)(3)."

Not so fast!

Both sections 203(h)(1) and 203(h)(3) use identical language in describing to whom they apply. Under the rules of statutory construction, if the same language is used in the same statute, it is presumed to have the same meaning.

Both sections, in describing who they apply to use the words "for purposes of subsections (a)(2)(A) and (d)".

Subsection (a)(2)(A) refers to beneficiaries of family 2A petitions while subsection (d) is much more expansive. It refers to all derivative beneficiaries of all family-based, employment-based and lottery-based categories.

This seems crystal clear. So where is the ambiguity?

Consider the paragraph from Matter of Wang which is quoted above. Subsection (1) refers to subsection (2) which defines the words "for purposes of subsections (a)(2)(A) and (d)" exactly as we did above. So far, so good.

However, although the Board reads subsections (1) and (2) "in tandem", for some inexplicable reason, it elects to treat subsection (3) in isolation despite its reference to subsection (1) and its use of the identical language as to whom it applies.

The Board adopts the Government's curious argument that subsection 203(h)(3), unlike subsection 203(h)(1), applies only to derivative beneficiaries of 2A petitions, and not to any other derivative beneficiaries.

What the Board never even attempts to explain is why Congress uses the phrase "for purposes of (a)(2)(A) and (d)" if the clause only applies to 2A petitions. What then does the phrase "and (d)" mean?

And if section 203(h)(3) applies only to derivative beneficiaries of 2A petitions aging-out and becoming part of the 2B category, why does the subsection say that they automatically convert to the "appropriate category" as if there were more than one category to which they are able to convert to? The Board neglects to explain this.

It is counterintuitive that Congress would be more concerned about preserving family unity in 2A cases which involve families of permanent residents than in cases involving families of U.S. citizens.

Cases challenging the reasoning in Matter of Wang are currently pending in the U.S. Courts of Appeals for the 2nd, 5th and 9th Circuits. On August 16th, the government submitted an 88-page reply brief in the class action lawsuit pending in the 9th Circuit. In conjunction with the Law Office of Robert Reeves, we are working on a final reply brief which we will post online as soon as it is submitted to the Court. Our brief is due on October 5th.

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Updated 12-02-2013 at 04:29 PM by CShusterman


  1. Moncler jakke Salg's Avatar
    Very, very nicely done!
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