Fifth Circuit Decision Breathes New Life Into the Child Status Protection Act Issues!

By Robert L. Reeves & Nancy E. Miller

On September 2, 2011, the Ninth Circuit Court of Appeals issued a decision in the consolidated cases of De Osorio and Costelo et al in which they found that the language of 203(h)(3) of the Child Status Protection Act (CSPA) was ambiguous and that the interpretation of the statute in the Board of Immigrations Appeals decision entitled Matter of Wang was reasonable. Reeves & Associates represents Costelo which is a national class action case.  The end result of that holding was that a conclusion that the automatic conversion and priority date retention provisions of 203(h)(3) did not apply to F3 and F4 petitions.

This decision followed, in conclusion, although not in rationale, the Second Circuit Court of Appeals decision Li v. Renaud.  In Li, the court held that 203(h)(3) was unambiguous and that no deference was owed to Matter of Wang.  However, they determined that F3 and F4 derivative beneficiaries cannot retain their priority dates because conversion would require a change of petitioner.  They concluded that “such a change would not be a conversion to the appropriate category.”

The end result of these cases was that, in these two circuits, CSPA did not apply to derivative beneficiaries adult single children of parent beneficiaries in either the F3 or F4 categories.  Aged-out children in categories other than F2 (who had already been protected by regulation) were not given any protection under the CSPA. 
While we at Reeves & Associates were not prepared to give up the fight (because we firmly believe that we are right), we did recognize that we faced an uphill battle. 
On September 8, 2011, that battle got a lot more level.  On that day, the Fifth Circuit Court of Appeals issued the decision of Khalid v. Holder.  The Fifth Circuit held that the plain language of CSPA is unambiguous and that the Board’s interpretation of the statute in Matter of Wang contravenes the plain language of the statute. 

Expressing the same arguments that we raised at the Ninth Circuit, the Fifth Circuit found that 203(h)(2) defines the universe of those included in both 203(h)(1) and 203(h)(3).  It found that the statute clearly defined those derivative beneficiaries as the children of family-based, employment-based and diversity-based visa petitions.  It held that where the children aged-out under the 203(h)(1) of the formula, they were entitled to automatic conversion to the appropriate category and the retention of the original priority date.  And, it concluded that the automatic conversion provision is triggered by “the age of the alien on the date on which an immigrant visa number becomes available”.  Thus, when it is triggered, there is a category available for conversion. 
The court relied on both the plain language of the statute and legislative history to support its conclusions.  The court pointed out that the Board had reached the same conclusion as Khalid in its unpublished decision Matter of Garcia before discarding it in Matter of Wang.  

Now, armed with positive precedent decision, we will seek a rehearing and a rehearing en banc in the Ninth Circuit.  Counsel for the Second Circuit case is doing the same.  Should the Circuit Courts refuse to issue decisions that correctly interpret 203(h)(3), we will ask the Supreme Court of the United States to review this issue.  We will continue to fight for the benefits that Congress gave to aged-out children when it passed the Child Status Protection Act.  The families that have been waiting to reunite for years deserve no less.

Just as Reeves & Associates never gave up on aliens denied visas because they experimented with drugs in their youth, we will continue to pursue the rights of aged-out children. We will keep you posted.