02 September 2011 ~ 16 Comments

Ninth Circuit Upholds Matter of Wang

I’m sure this is devastating to a lot of readers. I don’t know how anyone can justify separating families based on an arbitrary age but maybe that is what they call family values in this country.

The Ninth Circuit in De Osorio v. Mayorkas, Sept. 2, 2011:

Because we agree that the BIA’s interpretation of § 1153(h) warrants deference, we affirm the district court’s grant of summary judgment in favor of CIS. We hold that Appellants’ children are not among the aged-out aliens entitled to relief under § 1153(h).”

This is atrocious. Effectively, the Ninth Circuit is saying that the Child Status Protection Act (CSPA), passed by Congress in 2001 to address the aging-out of derivative beneficiaries, only applies to children in the F-2 category, even though Congress placed no such restriction while passing the law. In fact, aged-out derivative beneficiaries of employer based petitions have successfully used CSPA to retain the original priority date and adjust their status in court. We’ve succeeded in creating two different sets of rules for derivative beneficiaries of employment-based petitions versus family-based petitions even though the legislation does not discriminate in this manner.

The plaintiffs are appealing en banc while also hoping for a favorable decision in the Fifth Circuit, but the prospects of victory are bleak.

What’s the implication for thousands of adult children separated from their parents? They may have to spend close to a decade without seeing their parents because it is hard to even get a tourist visa if you display any immigrant intent. In this case, immigrant intent could merely be petitions filed on your behalf. In order to be united with their parents, they have to remain unmarried for 7-10 years. If they do get married, the wait is longer, but eventually they would immigrate to the United States with foreign-born spouses and children, so it doesn’t even make sense from a restrictionist immigration viewpoint to disallow a simple “follow-to-join” parent rule to keep families together.

What’s the implication for thousands of adult children currently living in the United States as undocumented or trying hard to keep legal status? Most of these young people are present, past and future beneficiaries of the federal DREAM Act. The straight ones are likely to get married. The queer ones are out of luck for a while unless they are somehow highly educated and can get work sponsorship. But all of them stand to gain from pushing ahead with a I-485 (adjustment of status to green card) filed in conjunction with a I-765 (work authorization), and requesting the original priority date in a short memo, with a note for exercising discretion per the Morton memo. What will USCIS do? Will they really go against the Obama Administration and place thousands more immigrant youth in proceedings, who are likely to also benefit from non-LPR cancellation, defensive asylum claims and clog the courts for many more years to come?

Bring it on.

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

    Are the plaintiffs in the De Osorio v. Mayorkas going to appeal to en banc?

    And what happens if the plaintiffs win in the 5th circuit court of appeals, is the government going to appeal?

    • To answer your first question, probably, but unlikely to win. For your second question, remember, now there is persuasive authority against the plaintiffs in two circuits so the Fifth ruling for plaintiffs is looking extremely far-fetched. Either side can appeal, but I can tell you that the government is unlikely to give up even if it loses.

  • Justin

    Are the plaintiffs in the De Osorio v. Mayorkas going to appeal to en banc?

    And what happens if the plaintiffs win in the 5th circuit court of appeals, is the government going to appeal?

    • To answer your first question, probably, but unlikely to win. For your second question, remember, now there is persuasive authority against the plaintiffs in two circuits so the Fifth ruling for plaintiffs is looking extremely far-fetched. Either side can appeal, but I can tell you that the government is unlikely to give up even if it loses.

  • Valentina

    So i’m guessing you heard about the 5th circuit being in favor for the appeal. What do you think are the chances of getting a rehearing for both the 2nd and 9th court? If it’s unlikely to win, do you think that it’s better if it goes to the supreme court instead of asking for a rehearing? Also, do you know the time frame for the entire process?  

    • I’d love en-banc hearings and we may get them soon. Maybe another 6 months.
      I don’t know about SCOTUS at this point given the composition. Obviously, we can appeal given the split. And we can ask judges for discretion if our cases are in removal proceedings.

      I’ll also love to work on suing in the D.C. Circuit since I live here now.

      • Valentina

        Also, i was wondering…if we are trying to adjust status here in the US as an over-aged derivative..almost the same capacity that the khalid case goes through, can we use his case to retain the old priority date? 

        • Well, it’s remanded to the BIA now. And only if you are in the same circuit as Khalid. But you can make the argument.

          • Justin

            The BIA being the authoritative institute on immigration, if the 5th circuit instructs the BIA to reconsider how the CSPA is interpreted, is the BIA going to apply it nationwide?

             

          •  They don’t have to considering the split rulings from 2nd and 9th. You can always move to Texas, Mississippi and Louisiana and apply for adjustment there.

  • Valentina

    So i’m guessing you heard about the 5th circuit being in favor for the appeal. What do you think are the chances of getting a rehearing for both the 2nd and 9th court? If it’s unlikely to win, do you think that it’s better if it goes to the supreme court instead of asking for a rehearing? Also, do you know the time frame for the entire process?  

    • I’d love en-banc hearings and we may get them soon. Maybe another 6 months.
      I don’t know about SCOTUS at this point given the composition. Obviously, we can appeal given the split. And we can ask judges for discretion if our cases are in removal proceedings.

      I’ll also love to work on suing in the D.C. Circuit since I live here now.

      • Valentina

        Also, i was wondering…if we are trying to adjust status here in the US as an over-aged derivative..almost the same capacity that the khalid case goes through, can we use his case to retain the old priority date? 

        • Well, it’s remanded to the BIA now. And only if you are in the same circuit as Khalid. But you can make the argument.

          • Justin

            The BIA being the authoritative institute on immigration, if the 5th circuit instructs the BIA to reconsider how the CSPA is interpreted, is the BIA going to apply it nationwide?

             

          •  They don’t have to considering the split rulings from 2nd and 9th. You can always move to Texas, Mississippi and Louisiana and apply for adjustment there.

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