September 26, 2012
Another battle has just been won in the fight for immigrant’s rights for preservation of family unity and justice. The case greatly expands those who are able to benefit from the Child Status Protection Act (CSPA) and immediately qualifies a vast number of individuals for permanent residency to the United States.
The case, entitled De Osorio v. Mayorkas, No. 09-56786 (9th Cir. Sept. 26, 2012), involves several parties with similar facts seeking benefits under one of the provisions of the CSPA, namely INA §203(h)(3). The particular CSPA provision involves the ability of a child who has aged-out of a petition to retain the priority date of the original petition on a newly filed petition. By allowing an aged-out child to retain the priority date of an earlier petition, it places the aged-out child at or near the top of the waiting list, rather than the bottom. Therefore, the aged-out child would be immediately able to seek permanent residency and not be separated from their families for an extended period of time.
For example, Ms. De Osorio’s case involves the filing of an I-130 Petition for Alien Relative on her behalf by her US citizen mother under the F3 family-based category. At the time the I-130 Petition was filed, Ms. De Osorio’s son was thirteen years old. By the time her priority date became available, Ms. De Osorio’s son was already over twenty-one and therefore no longer eligible to obtain an immigrant visa as Ms. De Osorio’s dependent child.
In another party to the lawsuit, Ms. Costelo was also petitioned by her US citizen mother under the F3 family-based category. Ms. Costelo’s two daughters were ten and thirteen at that time. However, her daughters were already over age twenty-one when her priority date became current, thereby preventing her daughters from obtaining green cards at the same time as Ms. Costelo.
For Mr. Ong, another party to the lawsuit, his US citizen sister filed a relative petition on his behalf under the F4 family-based category. Mr. Ong’s two daughters were ages two and four at the time the petition was filed. Since his two daughters were already over age twenty-one when Mr. Ong became eligible for a visa, his daughters were not eligible to obtain visas as his dependents.
In all three of these situations, the parents filed new I-130 Relative Petitions for their aged-out children after having acquired permanent residency. Each sought to apply the CSPA provision of INA §203(h)(3) to the new petitions so that their children would be able to obtain the earlier priority dates. If allowed, the aged-out children would have been able to immediately obtain green cards. However, the Department of Homeland Security (DHS) interpreted the CSPA provision as not being applicable. The DHS instead assigned new priority dates, which placed each of the aged-out children at the bottom of very long waiting lists.
Unfortunately, the Board of Immigration Appeals, as well as the US District Court for the Central District of California, agreed with the DHS and also declined to allow retention of the priority date to the new petitions by their parents.
In a bold decision, the Ninth Circuit Court of Appeals has now reversed the lower courts’ decisions and has ruled that the CSPA does apply in these situations. As such, the Ninth Circuit Court has ruled that children who have aged-out as derivative beneficiaries on a family or employment-based petition may retain the priority date of the petition in which they aged-out when a new petition is filed on their behalf by their parent. This ability to retain the priority date will therefore allow the aged-out children to be placed at the top of the waiting list so that they may immediately move forward with seeking a green card for permanent residency.
This court battle over the Child Status Protection Act is a good illustration of the ongoing saga of changes that is common in the immigration laws. Although the CSPA was enacted ten years ago in 2002, constant interpretation and re-interpretation of the CSPA have altered whether an individual is eligible for benefits and relief. This new Ninth Circuit case is a tremendous advantage to those who have been separated from their families and wish for nothing more but to be together again. Individuals should ensure that they are represented by competent legal counsel that will assist them in navigating the constant tide of changes in the immigration laws.