Los Angeles – Getting a green card should be a happy time. For thousands of people, however, the joy of coming to America is diluted by the nightmare of separation from their children who have turned twenty-one and are no longer eligible to accompany their parents. The children are referred to as having “aged-out”. In 2002, Congress passed the Child Status Protection Act (CSPA) to call a halt to this on-going tragedy. Reeves & Associates, a leading national immigration law firm, filed a class action lawsuit, Costelo v. Chertoff, because of the government’s refusal to follow the plain language of this law.
On July 16, 2009, U.S. District Court Judge James V. Selna issued a 21 page decision granting Reeves & Associates’ motion to certify the lawsuit as a class-action and appointing Reeves & Associates as class counsel. “This case affects tens of thousands of families who have been waiting decades to lawfully immigrate,” said Robert L. Reeves, founder and Managing Attorney of Reeves & Associates. “Before CSPA, children who turned 21 faced many years of separation before they could follow their parents to this country. Under CSPA, the aged-out child is permitted to keep the original processing date (known as a priority date). By allowing the child to keep his place in line, families can be reunited all that much sooner” explained Attorney Nancy E. Miller, head of the firm’s Federal Litigation and Deportation Defense departments.
The Court defined the class as “aliens who became lawful permanent residents as primary beneficiaries of third- and fourth preference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second-preference petitions on behalf of their aged-out unmarried sons and daughters, for whom USCIS have not granted automatic conversion or the retention of priority dates pursuant to § 203(h)(3)” said Jeremiah Johnson, managing attorney of the San Francisco office of the firm.
The government’s response to CSPA has been inconsistent at best. The Board of Immigration Appeals has issued one case permitting the retention of the original priority date and another denying the retention. United States Citizenship & Immigration Services (USCIS) has recognized the retention in some cases and refused to recognize it in others. In some cases, these inconsistencies affected children in the same family, as is the case with Teresita Costello. One of her daughters was allowed to keep the original priority date and her other daughter was not. In other cases, USCIS has simply ignored the request to retain the original priority date. Before the Court, USCIS took the position that these children should give up their place in line, go to the back of the line and wait another ten years to be reunited with their families.
The class action lawsuit seeks to compel USCIS to comply with the requirements of CSPA or INA 203(h)(3) and process subsequent petitions filed by the parent using the parent’s original priority date. “It is incomprehensible why USCIS would deny these requests given the plain language of the statute and the Congressional history of CSPA.” said Mr. Reeves.