New Case Law Expands Interpretation Of CSPA
In June 2006 the Board of Immigration Appeals (BIA) issued two unpublished decisions interpreting different provisions of the Child Status Protection Act (CSPA). Just prior to that a U.S. district court in California issued an important decision relating to a separate CSPA provision. These administrative and judicial decisions add to the growing body of case law stemming from some of the more controversial and ambiguous portions of this statute. These latest decisions are welcome news to practitioners who have been struggling with certain sections of the CSPA. This article will summarize these four recent decisions and comment on their significance.
No Final Determination by August 6, 2002. Section 8 of the CSPA states that the law applies to I-130/I-140 petitions, adjustment of status applications, and immigrant visa applications pending before the U.S. Citizenship and Immigration Services (USCIS) or Department of State (DOS) on August 6, 2002, the date the law took effect. According to the agencies' interpretation, the CSPA also applies to I-130/I-140 petitions approved before August 6, 2002, if the beneficiary aged out on or after that date.
For those whose I-130/I-140 petition was approved before August 6, 2002, but who filed an immigrant visa or adjustment of status application before that date, the CSPA will apply provided there has been no final determination on the immigrant visa or adjustment of status application before August 6, 2002. According to the USCIS and DOS, a final determination for purposes of an adjustment of status application means approval or denial by USCIS or the Executive Office for Immigration Review (EOIR).  The Ninth Circuit Court of Appeals, in Padash v. INS, subsequently gave that term a more expansive meaning by including cases decided by an Article III court, such as the federal court of appeals.  At least in that circuit, applications that were initially denied by the agency before August 6, 2002 but were on judicial appeal on that date have not received a final determination.
Left unanswered was whether the term would also include an application for adjustment of status that was initially denied by the Immigration and Naturalization Service (INS) before August 6, 2002, renewed before an immigration judge in removal proceedings, and pending before that court on or after that date.  The BIA found that it did.
In that case the respondent was a derivative child who had been denied adjustment of status by the INS on April 19, 2002 because she had turned 21 two and a half months earlier. She was subsequently placed into removal proceedings. The DHS contended that she had received a final determination on her adjustment application prior to the effective date of the CSPA, while the respondent argued that the renewal of her application in proceedings after August 6, 2002 qualified her for protection under section 8 of the statute. Relying on the language and reasoning in Padash, the BIA agreed with the respondent's argument and made a further determination that she had not aged out. It remanded the case to the immigration court for re-adjudication of the applicant's application for adjustment of status. In re Ki Na Kim, No. A-78-706-954 (6/7/06).
Retention of Priority Date for Age-Outs. When a lawful permanent resident's (LPR's) child ages out of the second preference 2A category, after taking into account the CSPA's age-out protections, the child automatically converts to the 2B category. When the LPR's derivative child ages out and is no longer considered a derivative, after taking into account the CSPA's age-out protections, the LPR parent must file a separate I-130 on the child's behalf. The child automatically converts from the second preference 2A category to the 2B category and is able to retain the original priority date that was obtained for the first I-130. 
But derivative children who age out in the first, third, or fourth preference categories, after applying the CSPA principles, will have to wait until their parent becomes an LPR and that parent files a new I-130 petition on their behalf. This would be a second preference 2B category petition. The same is true if the principal beneficiary is a child/son/daughter of an LPR who has a derivative child and the derivative child ages out. One of the biggest unanswered questions is whether the CSPA allows the aged-out child to retain the original priority date of the I-130 petition that was filed on behalf of their parent. If so, most of these aged-out children would be current in the 2B category and would be eligible to adjust status or proceed with consular processing. If not, they would be facing another multi-year backlog.
Although the USCIS has not issued any definitive memo addressing this issue, the agency has taken the position that these aged-out children may not retain the original priority date. According to the USCIS, the CSPA did not change the existing law in this situation; it simply formalized the policy concerning when a beneficiary converts automatically from the second preference 2A into the 2B category. The statute now states that the child's "petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition."  All parties would agree that when the 2A child of an LPR ages out, the LPR parent petitioner does not need to file a separate I-130 petition. The child automatically converts to the 2B category beneficiary and retains the original priority date.
But the USCIS does not apply that principle to derivatives in the first, third, or fourth preference categories, or to the derivatives of a child/son/daughter of an LPR in the second preference category. According to the agency, these derivatives do not automatically convert to any family-based category when they age out of derivative status. Therefore, when their parent immigrates or adjusts to LPR status and files a subsequent I-130 petition on their behalf, they acquire a new priority date.
The argument in favor of priority date retention also rests on the plain language of section 3 of the CSPA. The provision setting forth automatic conversion and retention of priority date makes reference to applications filed under both INA § 203(a)(2)(A) and INA § 203(d).  The first statutory provision - INA § 203(a)(2)(A) - relates to second preference 2A children aging out and moving into the 2B category. But the second statutory provision - INA § 203(d) - refers to derivatives in all the family-based preference categories. Therefore, it appears that Congress intended to include other derivatives in this paragraph.
In another unpublished decision the BIA recently held that the CSPA allows for priority date retention when the LPR parent files a new I-130 for the once-derivative and now aged-out child. The respondent in this case was a derivative child in the fourth preference category who aged out. When the child's mother immigrated, she filed a new I-130 for the 22-year-old daughter in the second preference 2B category. The BIA held that "where an alien was classified as a derivative beneficiary of the original petition, the 'appropriate category' for purposes of section 203(h) is that which applies to the 'aged-out' derivative vis-a-vis the principal beneficiary of the original petition." In this case the BIA held that the aged-out child automatically converted to the second preference 2B category, since she was still the unmarried child of the LPR parent (the principal beneficiary). She was able to retain the priority date of the original fourth preference petition, making her current in the 2B category and eligible to file for adjustment of status. In re: Maria T. Garcia, No. A-79-001-587 (6/16/06).
One-Year Filing Requirement. The CSPA requires applicants who are retaining "child" status in the second preference 2A category or as derivatives to seek permanent resident status within one year of the visa becoming available.  The USCIS has defined the term "sought to acquire" as filing for adjustment of status.  The DOS has also defined what that means for those who are consular processing. Submitting a completed DS-230 Part 1, application for immigrant visa, within one year of the visa becoming available satisfies that requirement. For older cases that pre-date the DS-230 Part 1, filing one of the predecessor forms (OF-230 Part 1 or OF-179) will also suffice. The DOS has stated that filing the Form I-824, Application for Action on an Approved Application or Petition, will also satisfy the requirement to seek LPR status. 
The BIA, in an unpublished decision dated December 20, 2004, has interpreted the phrase "sought to acquire" LPR status to include actions other than simply filing the above-referenced applications. In that case, the BIA found that seeking the assistance of an attorney within that one-year window to prepare the application for adjustment of status satisfied the requirement.  The BIA found that the statutory language "sought to acquire" is broader than "filed," and includes acts that "try to acquire or gain" or "make an attempt to get or obtain."
But despite all of this analysis and interpretive memos, one fundamental question remained: Who is affected by the one-year filing requirement? Does it apply to all persons seeking protection under section 3 of the CSPA or only to those who aged-out prior to filing for adjustment of status? In other words, if the child's visa became current prior to turning 21 and he or she filed for adjustment of status prior to turning 21 but more than one year after the visa became current, can he or she still be covered by CSPA's age-out protections?
A U.S. district court in California appears to interpret the one-year filing requirement as applying only to applicants who need to use the age-reduction principles added to INA § 203(h)(1)(A) by the CSPA because they are over 21 at the time of filing for adjustment of status.  In the case before the court, the derivative child of an employment-based petition filed for adjustment of status prior to turning 21 but more than one year after the visa became current. The court found that she "expressly" satisfied the definition of child under INA § 101(b)(1)(A) at the time of filing for adjustment of status, and thus did not need to meet the one-year filing requirement of INA § 203(h)(1)(A). It is unfortunate that the significant finding in this case is buried in a footnote, but the court's reasoning is at least clearly stated.
CSPA's Retroactive Application
The starting point in measuring whether a child has aged out for immigration purposes is determining whether the CSPA applies in his or her case. As written, the CSPA potentially affected thousands of cases pending before USCIS and DOS on the date of enactment. Section 8 of the CSPA states that the new law applies to I-130/I-140 petitions, adjustment of status applications, and immigrant visa applications pending before the agencies on August 6, 2002, the date the law took effect. But section 8 also states that the law applies to I-130/I-140 petitions approved before August 6, 2002, provided no final determination had been made on "the beneficiary's application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition."
When the law was first enacted practitioners pointed to that provision of section 8 and argued for retroactive application to all petitions approved before August 6, 2002 where the beneficiary had aged out prior to that date. Only cases where the beneficiary had applied for adjustment of status or an immigrant visa and received a final decision before that date would be excluded from coverage.
The DOS and former INS, each concerned with the administrative burden of having to reclassify and adjudicate all of these old or pending cases, struggled with a way to narrowly construe the statute's effective date. The agencies decided to apply full retroactive effect only to CSPA section 6, which relates to Filipinos opting out of conversion to first preference when the petitioner has naturalized. For the other provisions, the former INS stated that the CSPA is not retroactive (emphasis in original). The agencies interpreted the above language of section 8 as applying only to beneficiaries who had applied for adjustment of status or an immigrant visa before aging out and before August 6, 2002, and who had not received a final decision by that date. This, of course, would be a far smaller number of cases than the statute seemed to cover. Beneficiaries who turned 21 while their I-130 petitions were pending could not have then applied for adjustment of status or an immigrant visa because they would no longer have been current. As a conciliatory gesture, but without any apparent statutory basis, the agencies decided to extend CSPA coverage to cases where the beneficiary aged out after the effective date of the law, even though the petition had been approved before that date. This was true regardless of whether the beneficiary had applied for an immigrant visa or adjustment of status before August 6, 2002.
In a detailed 34-page decision, a district court judge in California rejected the government's interpretation of CSPA's section 8, finding it arbitrary and illogical. The court agreed with the plaintiff and found that section 8 requires retroactive application to petitions approved before August 6, 2002 where the petitioner turned 21 before that date. The court did not interpret section 8 as requiring the filing of an application for adjustment of status or an immigrant visa before that date. The court agreed with the plaintiff that only in cases where the beneficiary had filed such an application and received a final decision before August 6, 2006 would the person not be covered.
The plaintiff in this case was a U.S. citizen who had filed an I-130 petition for her unmarried child as an immediate relative. The child turned 21 while the I-130 was pending and thus automatically converted to the first preference category. All of this took place before August 6, 2002. Since the first preference category is still not current, the beneficiary has never filed for an immigrant visa. He was outside the country and thus ineligible to apply for adjustment of status at the time the I-130 was filed, and thus had to wait until the petition was approved before consular processing. When the CSPA was enacted he requested the State Department to reclassify him an immediate relative and start the immigrant visa application process. The agency found that the CSPA did not apply in his case, since he did not have an application pending on August 6, 2002, and he then sought judicial relief.
The court held that:
A broad reading of the of the statute is consistent with its plain language and furthers the congressional objective of providing expansive relief and promoting family reunification. Though the increased burden on the INS is likely to be substantial, it is unlikely that many of the cases to be re-examined would be as old as Defendants suggest. Furthermore, Defendants' interpretation seems unsupported by the text of the statute and could produce anomalous results. Although Defendants raise legitimate concerns about administrative burdens and displacement of other beneficiaries, the Court finds that these are insufficient to overcome the considerations favoring Plaintiff's position.
This court decision opens the door for most first preference beneficiaries to request reclassification if they were immediate relatives at the time the I-130 was filed. Given the current backlog in that category, this could be a substantial group of persons. Most are in line to consular process, for had they been eligible to file for adjustment of status, they likely would have done so at the time the I-130 was filed. If they had an adjustment application pending on August 6, 2002, they would have been covered by the CSPA under the agency's current interpretation; if the application had been denied before that date due to age-out, they would not be covered by the CSPA under any interpretation.
The court decision also opens up potential relief to the children of permanent resident aliens who turned 21 before August 6, 2002, but who did not have a application for adjustment of status or an immigrant visa pending on that date. The court has held that the statute does not require the child in that situation to have filed such an application prior to August 6, 2002. If their adjusted age was under 21 on the date the visa became available and they took action to seek permanent resident status within one year of that date, they should also be entitled to CSPA coverage. This would allow many second preference 2B beneficiaries who were originally in the 2A category to reclaim that 2A status. It would also help many derivatives in the other family preference categories who aged out of derivative status.
The difficulty for the preference category beneficiaries is that based on the agencies' narrow interpretation of the CSPA, few of them believed they qualified for relief and thus filed for an immigrant visa or adjustment of status within one year of the visa becoming current. But if they at least requested assistance from an immigration attorney or representative within that one-year window, that might be enough to qualify them under the BIA's broad interpretation of the term "sought to acquire" LPR status.
As expected, administrative and judicial courts are slowly moving to interpret some of the CSPA's most ambiguous provisions and resolve the major controversies surrounding the law's implementation. These four cases all found the agencies' reasoning to be flawed and their interpretations overly narrow. While none of these court decisions bind the agencies beyond the facts in those individual cases, they do encourage further litigation or administrative challenges. They also point out the need for the USCIS and DOS to reexamine several of their current positions. Hopefully, they herald the issuance of a definitive memo that will not only incorporate these case holdings but also clarify the CSPA's other ambiguities.
1 "The Child Status Protection Act - Memorandum 2," Johnny N. Williams, Exec. Assoc. Comm'r, Field Operations, USCIS (February 14, 2003); "Child Status Protection Act of 2002: ALDAC #4 - What Constitutes a "Final Determination" on an Application Adjudicated prior to the Effective Date of CSPA?," State #131625 (May 17, 2003).
2 358 F.3d 1161 (9th Cir. 2004).
3 See 8 CFR § 245.2(a)(5)(ii).
4 8 CFR § 204.2(a)(4).
5 INA § 203(h)(3), 8 USC § 1153(h)(3).
6 CSPA § 3, amending and adding INA § 203(h)(3), 8 USC § 1153(h)(3).
7 CSPA § 3, amending and adding INA § 203(h)(1)(A), 8 USC § 1153(h)(1)(A).
8 "Child Status Protection Act," Johnny N. Williams, Exec. Assoc. Comm'r, Field Operations, USCIS (September 20, 2002); "The Child Status Protection Act - Memorandum Number 2," Johnny N. Williams, Exec. Assoc. Comm'r, Field Operations, USCIS (February 14, 2003), FN.3.
10 In re Ji Young Kim, No. A-77-828-503 (12/20/04)
11 Gomes v. USCIS, No. CV-05-3767 (C.D. Cal., Mar. 23, 2006).
12 The Child Status Protection Act - Memorandum 2," Johnny N. Williams, Exec. Assoc. Comm'r, Field Operations, USCIS (February 14, 2003), attached here.
13 Rodriguez v. Gonzales, No. CV 04-8671 DSF (AJWx) (C.D. Cal, May 31, 2006).
14 Slip opinion at 32.
15 In re Ji Young Kim, No. A-77-828-503 (12/20/04).
About The Author
Charles Wheeler, Esq. is the Director of Training and Technical Support at the Catholic Legal Immigration Network (CLINIC). He is also the editor of "Child Status Protection Act: A Practitioner's Guide, New 2006-2007 Edition" and "Family-based Immigration: A Practitioner's Guide, New 2006-2007 Edition".
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.