CSPA Heads to the Supreme Court

UNDERSTANDING THE CHILD

STATUS

PROTECTION ACT (CSPA)

Immigration Attorney Carl Shusterman

Pincus Professional EducationNovember 14, 2013

Frozen Immediate

Relatives

If person is under 21 when Visa Petition is filed

If 2A beneficiary is under 21 on date of petitioning Parent’s Naturalization

If 3rd preference beneficiary is under 21 when marriage terminates

DOS allows IR child to opt out into F1 if person has his/her own derivative kids

Rules for Derivative

Beneficiaries

Start with Date Visa Number

becomes Current or Visa Petition

is Approved, whichever is later

Subtract Time that the Visa

Petition was Pending

Person must Seek to Acquire

Green Card within One Year

What Happens if your Client

Ages-Out despite this Formula?

Automatic Conversion for “Age-

Outs”

What is “Retention” of the “Original Priority Date”?

What is the “Appropriate Category”?

What is “Automatic Conversion”?

Matter of Garcia (BIA 2006)

Lawsuits in Federal District Court

In June 2008, two lawsuits were filed challenging the government for its failure to implement CSPA’s “automatic conversion” clause

OIL informs Judge that BIA decision on clause is “imminent”. Cases delayed.

Board of Immigration Appeals

In Matter of Wang (June 16, 2009), the BIA found that CSPA does not specify which petitions that the automatic conversion clause applies to.

Board held that CSPA only deals with administrative delays, not delays caused by the Visa Bulletin

Held that “automatic conversion” and “retention” have recognized meanings under the law.

Why Wang Got It Wrong

“…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.'”

-Senator Dianne Feinstein’s Statement Upon Introducing CSPA in the Senate, April 2, 2001

Courts of Appeals

2nd Circuit, Li v. Holder, ruled for the

government

5th Circuit, Khalid V. Holder ruled for the

immigrant

And the 9th Circuit…

9th Circuit Re-Hearing

Petition for Rehearing En Banc granted

Oral Arguments in June 2012

On September 26, the 9th Circuit ruled in favor

of the immigrants by a vote of 6 to 5

CSPA Heads to the

Supreme Court

On January 25, 2013, the Department of

Justice submitted a Petition for a Writ of

Certiorari to the Supreme Court, which the

Supreme Court granted

Oral arguments will take place in December

The Supreme Court should make a decision

on the case by next spring

What Should You Do Now?

Not a wise idea to file for benefits now

The Supreme Court could reverse

(Let’s hope not!) the 9th Circuit’s

decision

Your client’s application could be

denied and they could be placed in

removal proceedings

However, if your client is already in

removal proceedings, or is abroad,

you can file for benefits now

How to Stay Current

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