9TH CIRCUIT ACCEPTS CSPA CLASS ACTION FOR EN BANC REVIEW!

By Nancy E. Miller & Robert L. Reeves

We are ending April and beginning May on a very positive note in our ongoing-efforts to reunite families. On Friday, April 20, 2012, the 9th Circuit Court of Appeals ordered that the Costelo Class-Action lawsuit filed by Reeves & Associates and its consolidated case De Osorio be reheard en banc. En banc literally means “full court”. However, in point of fact, the number of judges who will rehear the case is 11. They are not bound by the decision previously issued in this case. As of today, the decision issued by the three-judge panel is vacated and has no legal effect. The en banc court will rehear whether CSPA section 203(h)(3) means that all family-based derivative beneficiaries are eligible to retain their parent’s original priority date.

The three-judge panel had interpreted the statute very narrowly and held that only Second-Preference family-based beneficiaries were intended to benefit from 203(h)(3). However, one week after they rendered their decision, the 5th Circuit Court of Appeals issued a decision on the same issue in the case of Khalid v. Holder. The panel in that court considered all the terms of the statute and concluded that the plain language of the statute made clear that the benefits of 203(h)(3) applies to all family-based derivative beneficiaries. Thus, under Khalid, all family-based derivative beneficiaries may retain the priority date of the petitions filed for their parents, the original beneficiaries. This dramatically shortens the time that parents and children need to wait before they can be reunited in the United States (as Congress intended).

Although we were planning to file for en banc review, we were very hearted by the decision issued by the 5th Circuit because they considered the plain language of the statute and the intent of Congress in passing the Child Status Protection Act – which is what we had asked the 9th circuit to do. The intent of Congress as evidenced by the plain language of the statute leads to the conclusion that 203(h)(3) applies to “F2A petitions for a child and any family preference petition for which a child is a derivative beneficiary”.

This is what we have been arguing all along and are continuing to argue today. We will now have an opportunity to bring that argument to the full court. The court has informed us that they will set oral argument for some time during the week of June 18, 2012.

It is very possible that this case will wind up at the United States Supreme Court. The government is tenacious in their efforts to ensure that the benefits of the Child Status Protection Act are interpreted as narrowly as possible. However, we at Reeves & Associates are equally, if not more, tenacious in our determination to protect the rights of immigrants and reunite families – as Congress intended in passing CSPA.