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BIA Rules In Favor Of Children Who Aged-Out Despite CSPA

by Carl Shusterman

Child Status Protection Law: Does it Favor Everyone? - On August 6, 2002, President Bush signed the Child Status Protection Act (CSPA) into law. Since then, the CSPA law has benefited the children of thousands of immigrants whose children would have otherwise "aged-out" when they turned 21 because of the USCIS visa petition backlog.

But what about the children who aged-out despite CSPA? - CSPA provides a remedy for these children, but the CIS has failed to explain the meaning of an important provision of the law for the past four years. Now, in an unprecedented decision, the Board of Immigration Appeals (BIA) has interpreted the law in a way that will benefit many thousands of aged-out children whose parents have waited in line many years to obtain permanent residence.

Amended INA section 203(h)(3) states:

"Rention of Priority Date- If the age of an alien is determined... to be 21 years of age or older..., the alien'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."

On June 16, the BIA, in the case of Maria Garcia, provided guidance as to what this statute means - Maria and her family are citizens of Mexico. Maria's aunt (her mother's sister) was a U.S. citizen who submitted a 4th preference petition for her mother and the rest of their family back in 1983 when Maria was just 9 years old. Due to the long waiting times in this category, Maria's priority date for a green card did not become "current" until June 1996 at which time Maria was 22 years old, and therefore too old to obtain a green card along with the rest of her family. Her mother, upon becoming a lawful permanent resident, submitted a petition for Maria under the 2B category (unmarried adult sons and daughters of lawful permanent residents). The 2B category also has a backlog of many years.

When the Immigration Service attempted to deport Maria back to Mexico, her attorney, Lawrence Rushton, argued that Maria should be allowed to adjust her status under CSPA. The Immigration Judge disagreed and held that she was removable.

The Judge's decision was reversed by the BIA. - The BIA looked at the language of section 203(h)(3) of the law, and held that the "appropriate category" mentioned in the law refers to the 2B family-based preference category since Maria, now 32, is still the unmarried daughter of a lawful permanent resident. It also held that the law permits Maria to retain the 1983 priority date when her U.S. citizen aunt petitioned for her mother and the rest of her family. Because this makes her eligible to adjust status under section 245(i), the BIA remanded the case to the Immigration Judge to consider Maria's application for adjustment of status under CSPA.

We hope that the BIA will designate this important decision as a precedent, and that the CIS will issue a memorandum agreeing that the BIA's interpretation of this section of the statute is correct.

This article was originally published on

About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California Former U.S. Immigration & Naturalization Service Attorney (1976-82) Board of Governors, American Immigration Lawyers Association (1988-97).
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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