LAST month, the US Court of Appeals for the 9th Circuit last week joined the US Court of Appeals for the 5th Circuit and reversed its previous decision in De Osorio et. al v. Holder (De Osorio I), which had held that an “aged out” derivative beneficiary of a family or employment-based petition for immigrant status cannot benefit from the original priority date assigned to his or her parent, contrary to what many argued had been Congress’ intent in passing the “Child Status Protection Act” (CSPA) in 2002. In De Osorio II, the 9th Circuit Court of Appeals sitting en banc held 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.” The 9th Circuit has now joined the 5th Circuit, opposite the 2d Circuit, to extend CSPA benefits to aged-out derivative beneficiaries.
Previously, the US Courts of Appeals for the 9th Circuit and 5th Circuit had issued published opinions addressing the same issue within one week of each other and came down on polar opposite sides. The 5th Circuit, in Khalid v. Holder, and the 9th Circuit in De Osorio I, were called upon to answer whether the Board of Immigration Appeals’ (BIA) interpretation of Immigration & Nationality Act (“INA”) section 203(h) in Matter of Wang, which disallowed the retention of visa priority dates for most derivative beneficiary’s of family-based petitions who had “aged out,” was correct. Surprisingly, the 9th Circuit, which is generally known for taking a somewhat liberal stance in interpreting immigration legislation, ruled that the BIA’s restrictive reading did not run afoul of the statute, while the 5th Circuit shot down Matter of Wang, ruling that the interpretation contravened the “plain meaning” of the statute.
At issue in both cases is the treatment of derivative beneficiary sons and daughters of immigrant visa petitions who have “aged out” from green card eligibility, even applying the CSPA. Under the CSPA, the age of these beneficiaries is deemed to be their biological age on the date a visa becomes available to them, less the length of time that the I-130 or I-140 visa petition was pending between filing and approval with the USCIS. The critical provision at issue in these cases is Section 203(h)(3), which, assuming a son or daughter is deemed to be over the age of 21 at the time their parents adjustment of status per the CPSA formula, states that “[t]he 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 position.”
Prior to Matter of Wang, the BIA had issued an unpublished decision, In re: Garcia, which held that an aged-out derivative Beneficiary on a family based third preference petition became the beneficiary of a family-second preference visa petition vis a vis her parent who had adjusted status, but retained the original priority date on the third preference petition that had been filed on behalf of her parent. Under this interpretation, the “aged out child” avoids being placed at the back of the line for second-preference petitions and can immigrate or adjust status fairly quickly, relying on the original priority date on his parent’s petition. In Matter of Wang, the BIA reversed itself and held that the “priority date retention” provision of INA §203(h) only applies to derivative beneficiaries of Second preference petitions, which is limited to the son or daughter of a single son or daughter of a green card holding parent.
The priority date retention for the situation described above existed for years in the USCIS’ regulations, however, such that the Court in De Osorio II believed the statute was intended to address the entire universe of petitions under which a child could “age out.” The 9th Circuit has joined the 5th Circuit, holding that the language of Section 203(h) is not ambiguous and that under its “plain meaning” the CSPA priority date retention provision applies to all petitions where derivative Beneficiaries may “age out,” not solely second-preference petitions. While a “split” still remains between the Circuit Courts of Appeal on this issue, it appears unlikely that the Government will seek Supreme Court review. Rather, the more rational approach would be for the USCIS to adopt a National approach embracing the 9th and 5th Circuits’ interpretation of the CSPA.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
