15 September 2011 ~ 10 Comments

Fifth Circuit Dumps Matter of Wang, Tells BIA to Restore Rule of Law Regarding CSPA

“We conclude that the plain language of the Child Status Protection Act (CSPA) is unambiguous and that the BIA’s interpretation of the statute in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009), contravenes the plain language of the CSPA. We decline to follow Matter of Wang in this circuit; we GRANT the petition for review and remand to the BIA for further proceedings consistent with this opinion.” Khalid v. Holder

I don’t need validation at this point. But this is huge. If it is not appealed, it means thousands of age-outs who are eligible to adjust their status with the use of an original priority date that is now current can move to Texas, Louisiana or Mississippi for a green card.

Not allowing derivative beneficiaries the right to use their original priority date to file a new petition in the appropriate category contrary to the plain meaning of Section 203(h)(3) of the Child Status Protection Act has to be one of the worst violations of immigration law by USCIS. I think they should be sanctioned punitively and pay damages for everything from emotional distress to lost wages, but right now, I’m glad we are finally starting to chip away at it, 10 years later.

The cherry on top of the icing is that Khalid is South Asian, from Pakistan, so I have a little pride that a fellow South Asian — in the 4th preference category — is breathing new life into this issue. However, it is thus far, only applicable in Texas, Louisiana and Mississippi. Talk about creating a patchwork of immigration laws. Say what, doesn’t President Obama think that a patchwork of immigration laws is unacceptable? Hypocrite.

The lawyers for the petitioners in the Second and Ninth Circuit are appealing en banc. The circuit split also means that the petitioners can take the matter up to SCOTUS with a really legitimate reason. But it also means that the Service can appeal the decision and keep the matter pending for years to come. Maybe Attorney General Holder can step in, like he has done in DOMA cases, to make sure the USCIS follows the rule of law.

I see no reason for anyone to hold back on filing for adjustment of status if they are currently in the country and grandfathered or don’t need a waiver. We could probably fight successfully to have removal proceedings stayed and our petitions held in abeyance given how long it could take to properly adjudicate a circuit split. But unfortunately, the families who are abroad may have to remain separated for quite some time.

Congratulations to Mohammad Khalid, his lawyer, and everyone who has been illegally and illegitimately castigated from their own family over so many years, contrary to the rule of law.

Nothing on this site creates an attorney-client relationship or replaces advice from a competent attorney. Success in one case does not guarantee success in all cases. 

  • Justin

    The 5th Circuit Court of Appeals (Khalid v. Holder) offered a decision that basically repudiated basically everything that was said in the 2nd Circuit Court of Appeal (Li v. Renaud). Do you think this increases the chances of the 9th Circuit Court of Appeals rehearing the case en banc?

  • Justin

    The 5th Circuit Court of Appeals (Khalid v. Holder) offered a decision that basically repudiated basically everything that was said in the 2nd Circuit Court of Appeal (Li v. Renaud). Do you think this increases the chances of the 9th Circuit Court of Appeals rehearing the case en banc?

  • Valentina

    hmm, so what did you mean by if service appealed, it can remain pending for years? i’m not sure if you found out but government did request for en banc and panel rehearing for the 5th court.

    • The en-banc re-hearing request can be denied.
      And yes, if the split remains, which seems more than likely, than either party would appeal to SCOTUS, and individual cases will still be in limbo.

  • Valentina

    hmm, so what did you mean by if service appealed, it can remain pending for years? i’m not sure if you found out but government did request for en banc and panel rehearing for the 5th court.

    • The en-banc re-hearing request can be denied.
      And yes, if the split remains, which seems more than likely, than either party would appeal to SCOTUS, and individual cases will still be in limbo.

  • TJ

    Based on the reply brief that was submitted by Attorney Rushton and the brief submitted by the government, do you think the 5th circuit will want to rehear the case again?

  • TJ

    Based on the reply brief that was submitted by Attorney Rushton and the brief submitted by the government, do you think the 5th circuit will want to rehear the case again?

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