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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
Visit our website, www.shusterman.com
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Read updates and ask questions on our Google+
Immigration Forum
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Questions & Answers