Court Reinterprets CSPA and the Effect of a Parent’s Naturalization

Last Updated

February 26, 2018

What happens to a child’s immigration classification when the petitioning parent naturalizes? The Ninth Circuit recently upended a long-held interpretation of the Child Status Protection Act, or CSPA, when it determined that children in that situation who were over 21 using their biological age could still convert to the immediate relative category if they were under 21 using their “adjusted age.” Tovar v. Sessions, No. 14-73376 (9th Cir. February 14, 2018).

Here were the facts: A Lawful Permanent Resident father filed a petition for his 18-year-old child in the F-2A category. The petition was pending for four years. The father naturalized after the child had turned 21. The child, however, was still under 21 on the date of the father’s naturalization if using the child’s adjusted age. That is determined by subtracting from the child’s age the time the petition was pending before it was approved. The priority date in the F-2A category became current one year later when the child would still have been under 21 using his adjusted age.

U.S. Citizenship and Immigration Services position was that the child converted from the F-2A category to the F-1 category when the father naturalized. It based that on the Board of Immigration Appeals decision, Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011), which contained facts similar to those before the Ninth Circuit. The BIA had held that children in those situations could not convert to the immediate relative category, even if they were under 21 using their CSPA age. The controlling section of the law, CSPA § 2, INA § 201(f)(2), only allows conversion to the immediate relative category if the child was under 21 using his or her biological age.  

The question before the BIA in the Zamora-Molina was not whether children in that situation could convert to the immediate relative category when the petitioner naturalizes. It was whether they would be able to opt out of automatic conversion to the F-1 category and remain in the F-2A category, given that the F-2 category is preferable to the F-1 for all nationalities. For nationals of Mexico, where the child in Tovar was from, the backlog is considerably longer (20 years, according to the March 2018 Visa Bulletin). The BIA held that while CSPA § 6 allows children in the F-2B category to opt out of conversion to the F-1 category, this same protection is not extended to children over 21 but still in the F-2A category. 

In reaching that decision, the BIA applied standard statutory construction principles. Section 6 of the CSPA refers specifically to beneficiaries in the F-2B category who wish to opt out of conversion and remain in the F-2B category. The BIA also looked at Congressional intent, which it found was attempting to “fix…a troubling anomaly in our immigration laws” when some children were “in effect…penalized for becoming citizens.” But it determined that the anomaly that Congress was trying to fix did not extend to the one presented in this case. It held that “[n]either [CSPA § 6] nor the USCIS memorandum allows an alien to elect to remain in the 2A-preference category upon the petitioner’s naturalization where the alien is biologically over the age of 21 but would remain legally a “child” by applying the formula in section 203(h)(1) of the Act.”

The Ninth Circuit rejected the BIA’s reasoning and found it illustrative of “the dangers of reading statutory provisions in isolation.” It found that the respondent had been “deemed by statute to be a minor child until the very day his father naturalized,” by applying the CSPA formula and using the child’s adjusted age. Therefore, when his father naturalized, the child converted to the immediate relative category, even though he was over 21 using his biological age.

The case turned on the interpretation of INA § 201(f)(2), which states that the child’s eligibility for immediate relative status is determined by “the age of the alien on the date of the parent’s naturalization.” The Ninth Circuit applied the same traditional rules of statutory construction that the BIA had used, but reached an opposite conclusion. Instead of finding that “age” means biological age, as the BIA did, the Ninth Circuit found it to mean “statutory age,” which is the adjusted age after applying the CSPA formula for those in the F-2A category. “Accordingly, anyone who qualified as a minor child for purposes of an F-2A visa on the date of his parent’s naturalization also qualifies as a minor child for purposes of obtaining an immediate relative visa based on that naturalization.” The fact that Congress did not allow for opt out of the F-1 category for those in the F-2A category like those in the F-2B only reinforced the court’s reasoning: that failure “makes sense only if the F-2A petitions always convert to immediate relative petitions upon the parent’s naturalization.”

It is important to note that the Ninth Circuit’s decision only applies to those residing in that judicial circuit. Practitioners had been wary of filing for naturalization if the applicant had petitioned for children who were approaching or had already turned 21. Now it will be the child’s adjusted age on the date of naturalization – as opposed to the date that the priority date becomes current in the F-2A category – that will determine if he or she converts to immediate relative or F-1.

Example. Jose, an LPR from Mexico, filed an I-130 for his daughter, Yolisma. At the time, she was 19 years old. The I-130 was pending for two years before it was approved. Yolisma is now 21, but according to her adjusted age, she is only 19. The F-2A priority date is not yet current, but Jose just naturalized. If Yolisma is residing in the Ninth Circuit, she converted to the immediate relative category. If she resided anywhere else, she converted to the F-1 category and will be unable to opt out of this conversion to stay in the F-2A.