How the Senate Immigration Bill Overturns Matter of Wang, Clarifies the Child Status Protection Act and Should Put an End to the Government’s Appeal In De Osorio

One of the good parts of the Senate immigration bill, dissected here, is that it should put an end to the litigation concerning aging out of children under immigration laws.

If you are new to this, Congress passed the Child Status Protection Act (CSPA) in 2001 to remedy the problem of children, who upon turning 21, were being “aged-out” of benefiting from family, employer or diversity visa petitions filed on their behalf or on behalf of their parents. “Aging out” basically meant that the parents had to immigrate to the U.S. without their 20-something adult children and face family separation for at least a decade, or if they were already in the country, the adult children faced detention and deportation while the parents received their green cards. I was aged out similarly, and placed into removal proceedings that continue to this day (Next Court date: October 10, 2013), so this is a particularly sore point for me, given it is contrary to established laws already on the books.

The CSPA, codified in 8 U.S.C. 1153(h), states that after doing a complex mathematical formulation to determine the age of the child:

If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, 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.

Basically, this means that if the adult child has already turned 21, she or he can retain the original date of filing from the original petition, and apply it to a subsequent petition filed by the parent. In effect, this would reduce the wait time for the aged-out child in the new category, and allow for family unification. The Citizenship and Immigration Services (USCIS) has basically limited the interpretation of this section to apply to a child only if the subsequent petition is filed by the same petitioner i.e. a parent filing for a child in one category, and then refiling for the child in another category after gaining naturalization. This restrictive interpretation is in stark contrast to the plain language of the statute and also contrary to the purpose of CSPA: family reunification. While the Board of Immigration Appeals, in Matter of Wang, upheld the restrictive interpretation, the Ninth Circuit found the statute clear and unambiguous in de Osorio v. Mayokas, as did the Second and Fifth Circuits, the only other appellate courts to consider the issue.

The DOJ and OIL are having none of it. They have appealed their loss in the Ninth Circuit to the U.S. Supreme Court, hoping some of the right-wing zealots on the Court may agree to hear their fears about the “glut of Mexicans”* over-running the country, and overrule the Ninth Circuit. The reply brief for the Supreme Court case, Mayorkas v. de Osorio, No. 12-930, is due next week. The Justices will likely determine whether to review the case at the end of May or before recessing for the summer at the end of June. If the Justices deny hearing of the case, the Ninth Circuit shall issue the mandate, and everyone who is eligible for a green-card as an age-out should be able to benefit from the decision. Yet, since the Government is appealing and there appears to be a circuit split, the chances of a Supreme Court hearing are higher than usual.

However, the recently introduced Senate immigration bill can potentially benefit the litigants in de Osorio. In it, a bipartisan group of Senators clarify 8 U.S.C 1153(h)(3), by re-writing it such that the Child Status Protection Act provisions are crystal clear:

For a petition originally filed to classify a child under subsection (d), if the age of the alien is determined under paragraph (1) to be 21 years of age or older on the date that a visa number becomes available to the alien’s parent who was the principal beneficiary of the petition, then, upon the parent’s admission to lawful permanent residence in the United States, the petition shall automatically be converted to a petition filed by the parent for classification of the alien under subsection (a)(2)** and the petition shall retain the priority date established by the original petition.

Bam! What this provision says, in effect, is that if a child ages out of a petition filed on behalf of the parent, the aged-out child gets to keep the original priority date and apply it to a subsequent petition filed by the parent on her or his behalf, which gives the child credit for waiting in line, and ensures family reunification. The Senate bill clarifies the original intent of CSPA, and effectively overturns the erroneous Matter of Wang re-interpretation. There is no alternate interpretation of this section. In fact, the Senate immigration bill provides for the retention of priority dates for all petitions

Given the language of the Senate immigration bill, the DOJ/OIL need to withdraw their frivolous writ of certioriari in good faith, as they no longer have any legal or policy basis for appeal. Congress is relentlessly trying to reform immigration laws, such that family immigrant visa categories would undergo dramatic revision, with or without de Osorio. The Senate bill — a bipartisan effort — clarifies the original intent of Congress in drafting 8 U.S.C. 1153(h)(3), placing a deep dent into any other interpretation of the law. If the Supreme Court takes the case, it will be a grand waste of time for all parties, as Congress would simply re-write whatever the Court has to say. By continuing to seek review before the Supreme Court, the appellants are establishing, beyond all doubt, that the litigation has always been about their ego and laziness, rather than the rule of law. However, don’t expect them to do the right thing!

By law, I should have received my green card in January 2011. What I received in the mail, instead, was a notice to appear in immigration court for removal proceedings. The consequences range from mild to severe — no financing for school, no right to travel outside the U.S. without being banned from the country for 10 years, no right to get married as I could potentially lose my place in the new line, no means-tested benefits such as healthcare or unemployment, running the risk of immigrant detention, facing removal proceedings and attending endless court hearings, imminent family separation, constant dehumanization and denigration as an “illegal alien” and so on.

While nothing can begin to remedy what I have been through, thousands of families are still separated–mothers and fathers from their children–contrary to the law–and they need to be reunited without further ado.

For all of us, justice delayed is justice denied.

*”Glut of Mexicans” is how OIL attorney, Elizabeth Westwater, described the immigration visa category for “unmarried adult children of lawful permanent residents” in her oral arguments to the Ninth Circuit).

**Subsection (a)(2) refers to “Spouses and unmarried sons and unmarried daughters of permanent resident aliens).