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“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.
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