Congress passed the Child Status Protection Act (CSPA) in 2002 to prevent children from becoming separated from their immigrant parents after waiting for many years for their papers to be processed and their priority dates to become current. Prior to CSPA, even if a child was an infant when his family was sponsored for green cards, if he turned 21 before his family could immigrate to the U.S., he and his parents faced the prospect of being separated for many years, sometimes forever. CSPA was enacted in order to promote family unity.
CSPA operates from the following simple premises: (1) When the priority date becomes current, the length of time that the immigrant visa petition (I-130, I-140, etc.) was pending is subtracted from the child's age in order to assure family unity; and (2) If after doing this mathematical formula, the child's age is still over 21, the child is entitled to the priority date of the original petition and the petition is automatically converted to the appropriate category. For example, if a U.S. citizen aunt sponsored the family for green cards 15 years ago, and after applying the mathematical formula, the child would still be over 21 years of age, CSPA gives him credit for the time he stood in line and the petition is automatically converted from the 4th preference to the 2B category on the date that his parents receive their green cards. In most cases, this allows the son or daughter to immigrate together with the rest of the family.
Not exactly rocket science. However, the government tends to resist change and leans on old familiar ways.
Does CSPA's "automatic conversion" clause apply to all derivative beneficiaries, or only to a select few? This would seem to be a "no-brainer". The law is written broadly to cover all derivative beneficiaries. The Board of Immigration Appeals (BIA) in Matter of Garcia states that all derivative beneficiaries benefit from CSPA. This is in keeping with both the intent and the plain language of the law.
However, a few years later, the BIA disregarded their own decision, and issued an unfortunate precedent decision in Matter of Wang which all but abolishes the benefits of the law's "automatic conversion" clause. Wang relies on flawed logic which contradicts both the plain language of the law and the legislative intent of Congress in passing CSPA. Wang turns the respondent in Matter of Garcia into a line-jumper, and relies on an old INS/USCIS regulation to define how automatic conversion is supposed to work. In doing so, it ignores other regulations and various statutes.
A few weeks ago, when we published our June newsletter, the legal challenges to the BIA's restrictive interpretation of the "automatic conversion" clause which were pending in the 2nd, 5th and 9th Circuit Courts of Appeals were unresolved. Now, one Circuit Court has issued a decision on this matter, and two others have held oral arguments which are available online.
The government attorneys are being extremely creative in raising multiple new arguments to justify the restrictive interpretation of CSPA first put forth in Matter of Wang. Unfortunately for the families involved, they are achieving considerable success in their efforts.
On June 30, the 2nd Circuit ruled, in Li & Cen v. Holder that contrary to the BIA's decision in Matter of Wang, the language of the statute is clear and unambiguous. So far, so good. However, despite this, the Court held that the "automatic conversion" clause does not apply to derivative beneficiaries of all family-based petitions, the same conclusion reached by the BIA in Wang. The Plaintiffs will be submitting a Motion for a Rehearing in this matter.
On July 15, the 9th Circuit had oral arguments in De Osorio v. Napolitano. After listening to the oral arguments, I believe that it is likely that the 9th Circuit will join the 2nd Circuit in attempting to restrict the benefits of CSPA.
The one bright spot is in the 5th Circuit. On April 28, the Court had oral arugments in Khalid v. Holder. All three judges agree that the statutory language is clear. However, in marked contrast to the 2nd Circuit, they believe that the automatic conversion clause applies to all derivative beneficiaries. To use our previous example, if a U.S. citizen sponsors her sister and her family for green cards, and the sister's oldest child turns 21 years of age while waiting for the priority date to become current, the statute provides that the child retains the original priority date (the date that the 4th preference petition was filed) and that his preference category automatically converts to the "appropriate category", in this case 2B, since he is an unmarried, adult son of a permanent resident. This satisfies CSPA's aim of insuring the unity of immigrant families.
Listen carefully to the oral arguments in the 5th Circuit. One has to wonder why the 5th Circuit judges all seem to "get it" while the judges in the 2nd and 9th Circuits do not. In my opinion, the government has done a masterful job in diverting the Courts' attention from the statutory language. Since section 203(d) defines "derivative beneficiaries", it seems clear that Congress intended that all family-based, employment-based and lottery-based derivative beneficiaries benefit from the "automatic conversion" clause.
However, in the 2nd and 9th Circuits, the questions posed by the judges during the oral arguments do not focus on why Congress uses the phrase "and (d)" in the statute if it is superfluous. Rather, the judges spend more time quizzing the plaintiffs' attorneys as to how the "automatic conversion" clause would operate with the questionable assumption that the beneficiary must, at all times, be in a particular category. In my opinion, they are transforming the "automatic conversion" clause into an "instantaneous conversion" clause, an almost impossible standard to meet.
In any case, it seems likely that there will be a conflict between Circuits on this issue. If so, the matter will ultimately have to be resolved by the U.S. Supreme Court. In the meantime, thousands of immigrant families will have to remain separated.
Carl Shusterman is the managing attorney of Law Offices of Carl Shusterman based in Los Angeles, CA. He has specialized in immigration law for over 30 years and his six-attorney law firm represents clients in all 50 states. Mr. Shusterman is a 1973 graduate of the UCLA School of Law. He served as an attorney for the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered private practice. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals in a number of different circuits and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's National Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He has served as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He has been named as one of Best Attorneys in America and as a SuperLawyer for many years. He is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee on Immigration in Washington, D.C. His website, www.shusterman.com, receives over 1,000,000 hits each week, and his free, e-mail newsletter has almost 60,000 subscribers in more than 150 countries.