13 June 2009 ~ 0 Comments

Revisiting CSPA and 'Aging Out'

This August, it would be 7 years since President Bush signed the Child Status Protection Act (CSPA) into law. What is CSPA? It allows a child who has turned 21 and ‘aged out’ under an immigration petition to automatically be put in another category and retain her/his original priority date.

For example, if my citizen grandmother filed an application for us in January 2000 when I was 15 but it only got approved 8 years later when I was 23,  I would ‘age out’ and never have the ability to adjust status until my parents would re-file for me and wait another 8 years by the time I was 31 to reunite with them under the color of law. CSPA was supposed to change that to ensure that when the child (now an adult) ages out, s/he would retain the original filing date (January 2000) and be put in the appropriate category (from 2C to 2B-unmarried son and daughter of U.S. citizen).

USCIS refuses to budge and continues to deny family reunification.

Several lawsuits have been filed by parents who have been separated from their children. One of the top immigration lawyers in this country, Carl Shusterman discusses the lawsuit he has filed:

On June 23, 2008, we brought a lawsuit in Federal Court on behalf of Melvin’s mother and five other mothers who are separated from their sons and daughters despite the clear language of CSPA. The USCIS believes that to allow children like Melvin to use their original priority date would be tantamount to permitting them to cut in line.  To the agency, CSPA does nothing to lessen Melvin’s 19 year wait to become a permanent resident.

In September, the Government submitted a motion to dismiss our complaint. Since then, the government has requested that the Judge postpone deciding our case until the Board of Immigration Appeals (BIA) rules on similar cases which are pending before the Board.  The BIA has already decided two cases which interpret the words “appropriate category” and “original priority date” exactly as we do.  However, these cases are not binding precedents.

One of these cases is the Matter of Garcia (2003) that parents should use to SUE the USCIS.

Section 3 of the CSPA includes a new provision at INA § 203(h)(3) that states that if the age of a beneficiary is determined to be 21 years or older for purposes of INA §§ 203(a)(2) (petitions filed by LPRs) or 203(d) (derivative beneficiaries of family, employment and diversity visa petitions), “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.” 8 U.S.C. § 1153(h)(3)

It’s completely unacceptable that the USCIS interpretation of the Child Status Protection Act does nothing to keep families together and separates children from their parents.

More hearings are on the horizon. By the end of this year, ‘age-outs’ might be able to file for permanent residency using their original priority dates.

In the meantime, FUCK YOU DHS.

You know you are going to lose this one. It’s only a matter of time.

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