On September 2, 2011, the 9th Circuit Court of Appeals issued its long-awaited decision regarding the “automatic conversion” clause of the Child Status Protection Act (CSPA) in De Osorio v. Mayorkas.
The Court upheld the decision of the District Court which deferred to the decision of the Board of Immigration Appeals in Matter of Wang which drastically restricted the operation of the “automatic conversion clause” of CSPA.
Consider the case of one of the plaintiffs in the lawsuit, Elizabeth Magpantay, a permanent resident of the United States who was born in the Philippines. Ms. Magpantay and her husband and four young children were sponsored for green cards by her father, a citizen of the United States, in 1991. Fifteen years later, in 2006, Ms. Magpantay, her husband and one of their children were finally able to immigrate to the U.S. Her other 3 children were forced to remain behind in the Philippines because, in the intervening 15 years, they had turned 21 years of age and were no longer considered “children” under the law. Their mother sponsored them for green cards in 2007, but the waiting time in this category is over 10 years. If any of the children marry during this period, they will lose the ability to immigrate through their mother.
In 2002, while their case was pending, Congress passed and the President signed the Child Status Protection Act which is expressly designed to prevent the separation of immigrant families.
One section of CSPA provides that in order to alleviate the problems of administrative delays, the time that a visa petition was pending can be subtracted from the age of the children in calculating their eligibility for green cards. However, in the case of the Magpantays, the visa petition was pending for only six weeks in 1991.
Fortunately, CSPA cures more than just administrative delays. It also helps families remain united by giving children credit for the number of years that they were forced to wait for their priority date to become current. In the case of the Magpantay family, this was 15 years. CSPA’s “automatic conversation” clause provides that the children “shall retain the original priority date issued upon receipt of the original petition”. Secondly, CSPA provides that the children’s petitions “shall automatically be converted to the appropriate category”.
It seems clear that the appropriate category is the family-based 2B category since Ms. Magpantay is a lawful permanent resident and her now-adult sons and daughters are unmarried.
Since the original priority date is January 1991, over 20 years ago, and the current wait under the 2B category is “only” ten years, Ms. Magpantay’s children should be able to join the rest of the family in the United States immediately.
However, the government believes that this is simply wishful thinking and that this would make the Magpantay children “line jumpers”.
After we sued the government in 2008 of behalf of Ms. Magpantay and a number of other families in similar circumstances, the Board of Immigration Appeals (BIA) disregarded two of their previous decisions which fully agreed with our reading of CSPA, and issued a decision in Matter of Wang in 2009 which interpreted the “automatic conversion” clause in a restrictive fashion.
The Board held erroneously that CSPA only applies to administrative delays, not to delays caused by the numerical preference system, and that, therefore, the automatic conversion clause only applied to children moving from the 2A to the 2B category.
In 2010, a Federal District Court Judge found the language of the automatic conversion clause to be “ambiguous” and deferred to the BIA decision in Matter of Wang. We appealed this ruling to the 9th Circuit Court of Appeals which consolidated our case with a class action lawsuit on the same issue filed by another law firm (Reeves & Associates).
The oral arguments in the consolidated case, Osorio v. Mayorkas, took place on July 15, 2011. On that date, both me and Attorney Amy Prokop of our office were not present in Los Angeles. Attorney Nancy Miller of Reeves & Associates represented our side in the oral arguments. I listened to the oral arguments online during a stop-over at JFK Airport in New York. It was obvious to me from the tone of the questions that the 9th Circuit panel would rule for the government. That same morning, I also listened to the oral arguments on a similar case still pending before the 5th Circuit Court of Appeals in Texas, and it seemed equally obvious to me that the this panel of judges would rule against the government. The 5th Circuit has yet to rule.
On September 2, the 9th Circuit panel issued a 22-page decision in De Osorio v. Mayorkas. The panel found that CSPA’s automatic conversion clause was ambiguous, and deferred to the BIA’s decision in Matter of Wang.
In my opinion, the Court’s decision is flawed in a number of respects:
1) On page 16801, the decision states that “in order to obtain the visa and become an LPR, however, the beneficiary must act within one year of notification of visa availability...” This is untrue, and the decision cites no authority to justify this statement.
2) On page 16810, the decision finds that “despite paragraph (3)’s plain language, it does not practicably apply to certain of the petitions described in paragraph (2).” Here, the court relies, as the BIA did in Matter of Wang, on a regulation at 8 C.F.R.. 204.2(i), for the proposition that the word “automatic” requires that “the same petition, filed by the same petitioner for the same beneficiary, converts to a new category.” We explained in our briefs why this is untrue, yet the panel’s decision does not address our arguments regarding this important issue.
3) On page 16811, the decision states that “after the derivative turns 21, there is no qualifying relationship between the petitioner and the derivative, because a U.S. citizen cannot petition on behalf of an adult grandson or granddaughter” and therefore, the no “appropriate category” for the petition to “automatically be converted to”. However, this erroneously assumes that the word “automatic” means that the conversion must also be “instantaneous”. Yet, this latter word is not used in CSPA. In our briefs, we cited many examples of conversions from other preference category to another where for many years, the beneficiary has no preference category at all. However, the panel’s decision makes no attempt to rebut these arguments.
4) Also on page 16811, the decision declares that “Paragraph (3) operates when...the derivative has applied for a visa within one year...” This is incorrect. There is no one year requirement in paragraph (3).
5) On page 16811, the decision declares that “appellants essentially ask us to ignore the word ‘automatically’ in paragraph (3)”. This is untrue. As stated above, we simply request that the Court not rely exclusively on 8 C.F.R. 204.2(i)
in defining the meaning of the word, and that the Court not misinterpret the word “automatically” to mean “instantaneously”. If Congress wanted the conversion to occur instantaneously, they would have used this word in the statute.
6) On page 16813, the Court finds that paragraph (3) is “ambiguous”. Although we disagree, we note that the U.S. Court of Appeals for the 2nd Circuit, in Li & Cen v. Novak, even though they agreed with the government’s restrictive interpretation of the automatic conversion clause, found the statutory language to be “unambiguous”. The panel here makes no attempt to distinguish this holding from a sister court on the same issue.
7) Also, on page 16813, after finding subsection (3) to be ambiguous, the Court moves on to the second step of the analysis: “The step two test ‘is satisfied if the agency’s interpretation reflects a plausible construction of the statute’s plain language and does not otherwise conflict with Congress’ expressed intent”.
In this analysis, the Court, on page 16816, examines whether it is proper to restrict the reach of subsection (3) of section 1153(h) solely to derivative beneficiaries of 2A petitions rather than to all derivative beneficiaries which the Court (and the government) concede are covered under subsection (1). Congress uses the identical language “for purposes of subsections (a)(2)(A) and (d)” to define the reach of both subsections. If the benefits of subsection (1) apply to all derivative beneficiaries, one wonders how the same words used in subsection (3) can be held to benefit only derivative beneficiaries of 2A petitions.
8) On pages 16815 and 16816, the panel attempts to rebut our argument that “the BIA’s interpretation is unreasonable because it effects no significant change from the status quo”. Frankly, I am at a loss to understand this rebuttal.
9) On pages 16816 and 16817, the decision discusses “Congress’ express intent”. Here, it is instructive to quote from Matter of Wang: “While the CSPA was enacted to alleviate the consequences of administrative delays, there is no clear evidence that it was intended to address delays resulting from visa allocation issues, such as the long wait associated with priority dates.”
However, as we pointed out in our briefs to the 9th Circuit, Wang erroneously reached this conclusion because it failed to consider Senator Feinstein’s introductory remarks when she introduced CSPA in the Senate on April 2, 2001:
“The legislation I have introduced today would provide a child, whose timely filed application for a family-based, employment-based, or diversity visa was submitted before the child reached his or her 21st birthday, the opportunity to remain eligible for that visa until the visa becomes available…
“…a family whose child's application for admission to the United States has been pending for years may be forced to leave that child behind either because the INS was unable to adjudicate the application before the child's 21st birthday, or because growing immigration backlogs in the immigration visa category caused the visa to be unavailable before the child reached his 21st birthday. As a result, the child loses the right to admission to the United States. This is what is commonly known as ‘aging out.'
“Situations like these leave both the family and the child in a difficult dilemma. Under current law, lawful permanent residents who are outside of the United States face a difficult choice when their child ‘ages-out’ of eligibility for a first preference visa. Emigrating parents must decide to either come to the United States and leave their child behind, or remain in their country of origin and lose out on their American dream in the United States. In the end, we as a country stand to lose when we are deprived of their cultural gifts, talents and many contributions.” (Emphasis added.)
The panel’s decision cites the Feinstein quote, yet it defers to the obviously erroneous reasoning of Matter of Wang which interprets CSPA contrary to this quote. How is this possible?
The panel holds that since subsection (1) provides relief for derivative beneficiaries of 2A petitions and for other derivative beneficiaries of visa petitions who are subject to administrative delays, Senator Feinstein’s wishes are fulfilled even though subsection (3) only benefits derivative beneficiaries under the 2A category. The Court, on page 16817, declares that “we point out that limiting section 1153(h)(3)’s application to F2A petitions is ‘a reasonable policy choice for the agency to make.” Really?
The Magpantay (“Magpantay” means “to be equal” in Tagalog.) family might beg to differ. Congress passed CSPA to keep families intact, but under this panel’s logic, the law only helps them if they were less than six weeks over 21 years old when their priority dates became current, and they get no credit whatsoever for the 15 years that they waited in their own country to immigrate to the U.S. Reasonable policy choice indeed!
10) And finally, the 9th Circuit has spoken out on CSPA before, but the prior decision, Padash v. INS, which struck down another overly-restrictive interpretation of the statute by the government, was not cited by the panel in this case. Yet, Padash should have a strong bearing on this case.
Padash, in interpreting a section of CSPA, cites Supreme Court, 9th Circuit and BIA decisions in holding that
“Because the legislative history makes it clear that the Act was intended to address the often harsh and arbitrary effects of the age-out provisions under the previously existing statute, our interpretation of the term “final determination” also adheres to the general canon of construction that a rule intended to extend benefits should be “interpreted and applied in an ameliorative fashion.” Hernandez, 345 F.3d at 840. This rule of construction applies with additional force in the immigration context “where doubts are to be resolved in favor of the alien.” Id. (quotations and citations omitted); Alvary-Santos v. INS, 332 F.3d 1245, 1250 (9th Cir. 2003) (same); St. Cyr, 533 U.S. at 320 (quoting Cardoza-Fonseca, 480 U.S. at 449 (emphasizing that there is a “long-standing principle construing any lingering ambiguities in deportation statutes in favor of the alien”); Matter of Vizcaino, 19 I. & N. Dec. 644, 648 (BIA 1988) (noting that the expansion of relief “clearly was intended as a generous provision, and it should therefore be generously interpreted”).
If the panel in this case had followed the Supreme Court and 9th Circuit decisions cited in Padash, it would not have defered to the BIA’s decision in Matter of Wang.
During the next few days and weeks, we will be discussing the options of requesting a rehearing or a rehearing en banc before the 9th Circuit, or submitting a request for a Writ of Certiorari before the Supreme Court of the United States.
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.