By Attorneys Robert L. Reeves and Elsie H. Arias

In a recently published decision, the Board of Immigration Appeals (BIA) held that an Immigration Judge erred in narrowly restricting the application of the Child Status Protection Act (CSPA) to a foreign national who was in removal (deportation) proceedings. The Court found that the respondent in the case of In re Rodolfo Avila-Perez, 24 I&N Dec. 78 (BIA 2007), was still classifiable as a “child” of a U.S. citizen under CSPA, the BIA determined that Mr. Avila-Perez could adjust status as an immediate relative of his U.S. citizen mother, even though he had turned 21 years old almost ten years prior.

As we have noted in previous articles, Congress enacted the Child Status Protection Act (CSPA) on August 6, 2002 to provide relief to children who “age out” as a result of delays by the U.S. Citizenship and Immigration Services (USCIS) in processing visa petitions. The Immigration and Nationality Act (INA) defines a “child” as an unmarried individual under 21 years old. Prior to the CSPA, an application for permanent residency as a principal or derivative beneficiary child would be approved only if adjudicated prior to the child turning 21 years old. Upon turning 21, a child would “age out” and lose the preferential status of a child. As the result of agency backlogs and delays, many children aged out before their cases were completed. Children who meet certain requirements in the CSPA are permitted to obtain permanent status even if they turn 21 years old.

The court found that the respondent in the case of In re Rodolfo Avila-Perez was a beneficiary of an I-130 immigrant visa petition filed by his U.S. citizen mother in August 1996 when he was 20 years old. The former Immigration and Naturalization Service (INS) approved this visa petition in November 1996. However, Mr. Avila-Perez did not file for adjustment of status based on this approved visa petition until October 2003, when he was 27 years old. He was placed in removal proceedings for overstaying his nonimmigrant visa, and the immigration judge determined that he could not adjust his status an as “immediate relative” under section 2 of the CSPA because the respondent did not have an adjustment application filed “on or before” August 6, 2002, the effective date of the CSPA. While Mr. Avila-Perez was eligible to immigrate in the first-preference category (unmarried son over 21 years old), an immigrant visa was not yet available to him for immediate adjustment of status.

The BIA studied the statute and examined legislative history to ascertain whether Congress intended the requirement that all children adjusting status under section 8(1) of the CSPA have a pending adjustment application as of August 6, 2002. Noting that child beneficiaries of non-immediate relative petitions (such as derivatives of employment-based visas) were required to utilize a mathematical formula to determine eligibility, among other issues, the BIA concluded that section 8(1) of the CSPA does not require an individual whose visa petition was approved before August 6, 2002, to have an adjustment application pending as of that date. The BIA remanded the case to the immigration judge to adjust the respondent’s status.

In sustaining the respondent’s appeal, the BIA’s decision also reflects that the USCIS’s policy memorandum issued February 14, 2003, is erroneous. In that memorandum, the USCIS construed section 8(1) of the CSPA to require that the adjustment application must have been field on or before August 6, 2002. While the BIA will adopt an agency’s policy where appropriate, in the case of In re Rodolfo Avila-Perez the BIA determined that the USCIS erred in its interpretation of the CSPA’s requirements.

The BIA’s decision in the case of In re Rodolfo Avila-Perez follows other positive jurisprudence concerning the application of the CSPA, including In re Garcia, in which the BIA confirmed that a derivative beneficiary of an approved immigrant visa petition before August 6, 2002, could retain the priority date for a parent’s subsequent petition in the second-preference immigrant visa category. In Rodriguez v. Gonzales, a 2006 U.S. District Court case in Los Angeles, a federal district judge extended the CSPA to a beneficiary of an immigrant visa petition approved before August 6, 2002, who had failed to apply for lawful permanent resident status before Congress passed CSPA because no immigrant visas were available to him.

The CSPA is complex legislation that will almost certainly continue to be litigated in order to ensure that children will not be separated from their U.S. citizen or immigrant parents. Individuals seeking legal representation in this matter should consult a knowledgeable and experienced immigration attorney.