Child Status Protection Act
The Child Status Protection Act (CSPA), Pub. L. No. 107-208 (Aug. 6, 2002), provides relief to children who “age-out” as a result of delays by the U.S. Citizenship and Immigration Services (USCIS) in processing visa petitions and asylum and refugee applications. A child “ages-out” when he or she turns 21 and loses the preferential immigration treatment provided to children. The primary benefit of the CSPA is an age preservation formula for calculating the age of a beneficiary of preference visa petition. This formula allows some beneficiaries to preserve their age as under 21 even if, chronologically, they are over 21. In this way, a child can remain a beneficiary on a pending visa petition despite having aged-out. In its CSPA litigation, the Council has argued for a broad interpretation of the act, consistent with its ameliorative purpose.
Meaning of INA § 203(h)(1)
One requirement of the age-preservation formula of the CSPA is that the beneficiary must have “sought to acquire” lawful permanent resident status within one year of the visa becoming available. The Council argues for a broad interpretation of “sought to acquire,” and that the term should not be limited to filing adjustment of status or consular processing forms.
- In re Jose Jesus Murillo, No. A099-252-007 (BIA amicus brief filed Feb. 18, 2010). The BIA adopted the Council’s arguments and found, in an unpublished decision, that “sought to acquire” encompasses other “substantial steps” taken towards becoming a permanent resident. Subsequent to this, In Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), the BIA published a precedent decision that backtracked from this unpublishedd decision, holding that filing an application for lawful permanent residence was the general rule with very limited exceptions.
- Velasquez v. Holder, No. 13-2610 (7th Cir. amicus brief filed Oct. 3, 2013). The Council’s amicus brief argued for a more expansive interpretation of “sought to acquire” than the BIA’s interpretation. On July 23, 2014, the court issued a decision upholding the Board’s interpretation but remanding case after finding that, under the facts presented, the retroactive application of Matter of O. Vasquez to the petitioner would work a manifest injustice.
Meaning of INA § 203(h)(3)
INA § 203(h)(3) provides alternate benefits - specifically, retention of the original priority date and automatic conversion of the petition - for beneficiaries who are found to have "aged out" under the age preservation formula of the CSPA. In amicus curiae briefs filed first in cases within the Third, Fifth and Ninth Circuits, and subsequently before the U.S. Supreme Court, the American Immigration Council argues that INA § 203(h)(3) must be interpreted to allow a derivative beneficiary of any family-based, employment-based, or diversity visa petition to retain the priority date of that petition when he or she is found to have “aged-out” under the CSPA’s age-preservation formula. We and our colleague organizations argue that the BIA, in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), was mistaken in limiting INA § 203(h)(3) to only beneficiaries of family second preference visa petitions. On June 9, 2014, a divided Supreme Court upheld Matter of Wang.
- De Osorio v. Mayorkas, No. 12-930 (S.Ct. amicus brief filed Nov.4, 2013). The Supreme Court accepted certiorari on June 24, 2013 in response to the government’s petition (Mayorkas v. De Osorio, No. 12-930) from a favorable en banc decision of the Ninth Circuit Court of Appeals. 677 F.3d 921 (9th Cir. 2012) (amicus briefs filed October 24, 2011 and May 11, 2012).
- On June 9, 2014, a plurality of five Justices of the Supreme Court agreed that § 203(h)(3) was ambiguous and that the Board’s interpretation of it in Matter of Wang was reasonable. Thus, the Court upheld this interpretation. Four Justices dissented and would have found that the statute should be interpreted as amici and the plaintiffs argued. Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014).
Effective Date of the CSPA
The CSPA contains an effective date provision that allows the statute to be applied to certain cases that began prior to the law’s enactment. The Council argues that, under this provision, the CSPA applies to an applicant for adjustment of status where the application was denied prior to the CSPA’s effective date but where it is renewed in removal proceedings subsequent to the effective date.
Sandoval-Garcia v. U.S. Attorney General, No. 07-14747-DD (11th Cir. amicus brief filed Jan. 30. 2008). The court granted the government’s motion to vacate the BIA decision and remand for a new decision.
Marital Status of the CSPA Beneficiary
In addition to being under 21, a beneficiary must be unmarried to meet the statutory definition of a “child.” The Council argues that a derivative beneficiary of an asylum application is covered by the CSPA when the beneficiary is unmarried at the time that asylum is granted, notwithstanding a prior, brief marriage that ended in divorce.
Maximov v. Gonzales, Nos. 03-40124, 04-0033 (2d Cir. amicus brief filed June 15, 2005). The government agreed to a remand of this case prior to the court issuing a decision
- Council Practice Advisory: The Child Status Protection Act (February 5, 2015). This advisory provides a comprehensive overview of the CSPA.
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