Ninth Circuit to Re-Hear CSPA Case En-Banc

Here’s some exciting news while I’m in the middle of exams: the Ninth Circuit has agreed to re-hear De Osorio v. Mayorkas, the Child Status Protection Act case, en-banc. The prior district court decision may not be cited as precedent in the Ninth Circuit.

This does not mean that the Ninth would necessarily overturn the district court decision. But getting an en-banc re-hearing is a big deal. Over 1000 petitions for en-banc re-hearings are filed every year and only 15-25 get heard. Most of the time, an attorney writing a brief for an en-banc rehearing has to convince the majority of judges that the lower court decision is not only wrong, but so gravely wrong that it threatens to wreck havoc. There’s no doubt that the Khalid v. Holder decision and the amicus brief filed in support of the plaintiffs by the American Immigration Council played a big part in getting this re-hearing. However, sometimes the Court of Appeals agrees to review a decision in order to address a circuit split. In this case, the Second (Li v. Holder), which ruled for the government, and Fifth (Khalid v. Holder), finding for the plaintiff, have already refused to re-hear their respective cases so the circuit split will exist regardless of how the Ninth comes out on the matter. It is pretty likely that unless the USCIS agrees to promulgate a new rule, this matter is getting appealed all the way to the Supreme Court so that we don’t continue to have different laws for different jurisdictions in a decidedly federal matter.

This USCIS interpretation of the Child Status Protection Act prolongs family separation by not enabling an aged-out derivative beneficiary to retain their original priority date as per Section 203(h)(3) of the Immigration Nationality Act, which states that:

“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), 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.”

The statute is not ambiguous. Even if it is, the interpretation and application of it has been “arbitrary and capricious” with USCIS issuing different results in extremely similar scenarios. I also cannot fathom how interpreting the law in a manner that separates families is not manifestly contrary to the purpose of the statute: preserving family unity. Matter of Wang, the atrocious BIA interim decision which defers to the USCIS interpretation of CSPA, simply needs to be aged-out.

The excitement of the en-banc hearing is tempered with news from practitioners that in spite of the favorable decision in the Fifth Circuit, the USCIS has not issued green-cards to age-out derivatives in the jurisdiction. It may make sense to write memos to the USCIS requesting adjustment of status cases using this prong of the CSPA to be held in abeyance (rather than having applicants end up in removal proceedings like my own case). This is simply a matter of prosecutorial discretion, which would help to increase court efficiency by reducing the number of cases in removal proceedings. Why put people into removal proceedings when the law is unclear? It’s also not difficult to isolate who this would apply to because beneficiaries are quite clear: the age-out derivative beneficiaries of family, employment and diversity visa petitions who are currently residing in the U.S. and eligible for AOS if not for Matter of Wang. Maybe I’ll send Mayorkas a friendly email soon.

If there is anything the attorneys need to do differently, it is to put forward the most compelling cases. If the lawyers marketed this issue as the “deportation of dreamers with legal resident parents,” we’d be getting some results by now. I’m definitely biased but while leaving behind an adult son/daughter to immigrate to the U.S. is certainly heart-breaking, the more compelling cases involve those derivatives who were brought here by their parents, who’ve been brought up in this country and who’ve aged-out of their family/employment petitions due to long wait lines and now face deportation from their homes. Deportation is family separation and the unlawful presence bars means that these sons and daughters would not be able to join their parents and siblings for at least 10 years (without a hardship waiver), which puts them in a far more precarious position than their overseas counterparts, whose lives are not getting disrupted as much.

Here’s to hoping that Santa Claus brings us a favorable decision this year. Also, my own court proceedings have been pushed back from June 7, 2012 to October 11, 2012. We may need to push it back further if no decision is issued by then, which makes for quite a joyous AND possibly dramatic, 3L year.