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Ninth Circuit Upholds Retention of Priority Date for Aged-Out Derivatives

The Ninth Circuit recently weighed in on one of most ambiguous and hotly contested provisions in the Child Status Protection Act (CSPA): whether a derivative child who has aged out and is the beneficiary of a new petition filed by the LPR parent can retain the priority date of the petition originally filed for the parent.  The answer lies on how the court interprets a section of the CSPA that is codified in INA § 203(h)(3).  It reads as follows:

RETENTION OF PRIORITY DATE—If the age of an alien is determined under [INA §203(h)(1)] to be 21 years of age or older for the purposes of [INA §§203(a)(2)(A) and (d)], 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.

In the preceding sections, 203(h)(1) sets forth the CSPA formula (subtract the time the petition was pending) for determining whether an alien has aged out. Section 203(h)(2) defines the petitions covered by 203(h)(1) and includes F-2A beneficiaries and derivative beneficiaries in all family- and employment-based petitions, as well as diversity immigrants.

The government has taken the position that Congress couldn’t have meant to include aged-out derivatives within the coverage of 203(h)(3).  First, there is no “appropriate category” for them to convert to when they age out of derivative status.  For example, the aged-out child of a principal beneficiary in the third or fourth preference loses all status at that point and does not fall into some state of “limbo.”  Second, there can be no “automatic” conversion, since that would eliminate the need for a second petition being filed after the principal beneficiary immigrates and petitions for the aged-out derivative child.  Even advocates concede that the LPR parent needs to start over and file a new petition on behalf of the child in the F-2B category.  Finally, the government interprets the section as merely codifying a regulation, 8 CFR § 204.2(a)(4), that allows derivative children in the F-2A category to retain the original priority date after they age out and the LPR petitioner files a new petition in their behalf.

The BIA agreed with the government’s position in a published decision, Matter of Wang, 25 I&N Dec. 28 (2009). It held that when the derivative child in the first, third, or fourth preference category ages out and a new petition is filed in their behalf by the now LPR parent, the child does not retain the original priority date.

Immigration practitioners and other advocates have naturally taken the opposite side of this argument.  They state that the literal language of the statute is not ambiguous.  The statute specifically references all derivatives, not just those in the second preference category. And the statute allows for the retention of the original priority date. It is not clear exactly what Congress intended, but it is clear what it provided.

Three circuit courts have now weighed in.  The first court found that the language in the statutory provision was unambiguous and thus the court was free to ignore agency interpretation.  But it held that the automatic conversion and retention of priority date principle applied only to children in the F-2A category and not to all other beneficiaries. Li v. Renaud, 654 F.3d 376 (2nd Cir. 2011).  It therefore found for the government.

The second court, like the first one, found the language to be unambiguous, only it came to the opposite conclusion – the provision applied to all derivatives, not just those in the F-2A category. Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011).

When the Ninth Circuit Court of Appeals first ruled on this issue, it examined the statutory language and found it to be ambiguous. It found the agency’s interpretation and the decision in Matter of Wang to be reasonable, and thus held for the government. Cuellar de Osorio v. Mayorkas, 2011 U.S. App. LEXIS 18289 (9th Cir. Cal. Sept. 2, 2011).  The plaintiffs then filed a motion for re-hearing en banc, which was accepted. The most recent decision from the Ninth Circuit was made by 11 judges, who decided in a 6-5 vote that the statutory language was unambiguous.  The court held that the aged-out derivatives could retain the original priority date of the petition that was filed for their parents when that parent immigrates and files a new petition in their behalf. The court essentially followed the reasoning of the Second Circuit and applied a literal reading to the statutory language.  Since the case had been certified as a nationwide class action, its reach could encompass petitioners and their children residing throughout the country, with the exception of those residing in the second circuit.

It is presumed that the government will be seeking further review of this decision through a writ of certiorari to the U.S. Supreme Court.  In the meantime, the agency is holding these petitions in abeyance with respect to changing the priority date that had previously been assigned.  Should the Supreme Court accept cert, it will ultimately determine the fate of this group of children.