Ninth Circuit CSPA Victory- The Time to File For Green Cards is Now

By Reeves & Associates
On September 26, 2012, the U.S. Court of Appeals for the Ninth Circuit issued an en banc decision in the class action Child Status Protection Act (CSPA) case brought by the law firm of Reeves & Associates.  In the decision, De Osorio v. Mayorkas, the Ninth Circuit held that the CSPA does provide for retention of priority dates, even if a child turns 21 years old while waiting for a visa to become available.  This means that for many immigrant applicants, after years of delay, a visa may already be available.
The Ninth Circuit decision in De Osorio in an en banc decision, meaning that there are no further appeals in this circuit.  The government can request an appeal of this decision to the U.S. Supreme Court by filing for a writ of certiorari, which the Supreme Court can accept or reject.  This “writ of cert” must be filed within 90 days (or, on or before December 26, 2012). 

If the government declines to file a writ of cert, or if the Supreme Court declines to accept the case, the decision in the Ninth Circuit becomes final.  Unless and until the Supreme Court rules otherwise, the decision in De Osorio is the law of the land.
For a potential immigrant who falls within the holding of De Osorio, the time to file an application for adjustment of status (“green card” application) is now. 

If the applicant is physically in the United States, the applicant can file an adjustment of status application and can request to retain or recapture the older priority date from the petition filed on behalf of the applicant’s parent.  When the application is accepted and initially processed, the U.S. Citizenship & Immigration Services will issue a work authorization document, allowing the applicant to work lawfully, apply for a Social Security number, and apply for a driver’s license. 

If the government does file a “writ of cert” to appeal the case to the Supreme Court, the application will be held in abeyance (that is, put on pause), but the work authorization will remain valid.  For this reason, a potential applicant is well-advised to immediately consult with an immigration attorney, and should strongly consider filing an application before the period for appealing the case to the Supreme Court lapses.

This CSPA issue arises when a child is included as a “derivative beneficiary” of a petition filed on behalf of the child’s parents, but the child turns 21 years old (or, “ages out”) while waiting for the priority date of that petition to become current.  For example, a U.S. citizen could file a petition for her sister, and her sister’s husband and children (under 21 years old) would be included in the petition. 

This petition would be given a priority date based on the date of filing, and would be subject to a visa backlog based on availability and demand.  The visa backlog often results in decades-long waits for a priority date to become current.  When the priority date does become current, the child’s parents could immigrate to the United States as permanent residents, but if the child has already turned 21, the child would be left behind. 

The child’s parents could then file a petition to classify the child as the adult (over 21-year-old) child of a permanent resident.Before the CSPA was enacted in 2002, that child would be given a new priority date based on the filing of the petition from the parent, and would have to wait in the visa backlog for that new date to become current.  The CSPA, among other things, remedied this problem by providing for retention of the old priority date from the petition that was filed on behalf of the child’s parents, thereby avoiding the problem of sending this child back to the end of the visa backlog line after waiting years for the original visa to become available. 

The child could immigrate using the petition filed by his or her parent, but could use the priority date from the older petition (for example, the petition filed by the U.S. citizen aunt for the child’s mother). The problem, however, is that when the CSPA first took effect, the immigration services did not consistently provide for this retention of priority dates.  Reeves & Associates filed a federal class action lawsuit, challenging the immigration services to apply this rule. 

While the case was pending at the District Court, the Board of Immigration Appeals published Matter of Wang, an unfavorable decision that held that CSPA retention of priority dates only applied to a very narrow subset of petitions.  The District Court deferred to the Board, applied the rule in Wang, and dismissed the lawsuit. 

Reeves & Associates took the case up on appeal to the Ninth Circuit, and the Ninth Circuit initially agreed with the District Court and dismissed the appeal.  The appellants then requested a rehearing en banc before a full 11-judge panel.  The court granted an en banc rehearing, and on further review, granted the appeal.  In De Osorio, the Ninth Circuit held that it need not defer to Matter of Wang because the CSPA is clear and unambiguous: children are entitled to retention of the old priority dates. 

The Ninth Circuit decision is a significant victory for aged-out child beneficiaries.  As a certified class action, this decision has the potential to help applicants throughout the United States and abroad.  The time to move forward with an application for benefits is now.  If you believe you are qualified under De Osorio, you should immediately consult with an immigration attorney to discuss your options.