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 The BIA adopted the Council’s arguments and found, in an unpublished decision, that “sought to acquire” encompasses other “substantial steps” taken towards becoming a permanent resident.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.
Hold CBP Accountable
actions taken across the country in an ongoing effort to establish accountability and transparency of one of the fastest growing agencies in the United States.
Administrative Relief Resource Center
Learn how individuals can prepare for administrative relief, find legal assistance and community education resource, and ways that you can help immigrants and immigrant-serving organizations.
- District Court Rules Grant of TPS Is an Admission for Adjustment of Status Purposes
- First Circuit Joins Other Courts in Holding That Immigrants Can Pursue Cases From Outside the United States
- Seventh Circuit Decision Expands Availability of Hardship Waivers to Lawful Permanent Residents
- ICE Agrees to Release Thousands of Previously-Withheld Records
- Court Says ICE Failed to Satisfy FOIA Requirements in Council’s Suit to Compel Disclosure of Records on Access to Counsel
- Eleventh Circuit Holds That Filing Limitations on Motions to Reopen Are Subject to Equitable Tolling
- Letter to DHS Outlines Problematic Practices That Undermine Due Process Protections for Asylum Seekers
- Transfers of Detained Families Traumatizes Mothers and Children and Interferes with Access to Lawyers
- Unrepresented, Unaccompanied Children Ordered Deported After Just One Hearing
- Can State Agencies License The Detention of Immigrant Families?
- Temporary Restraining Order Against Texas Family Detention Centers Issued
- Supreme Court Considering Whether Misdemeanor Results in Automatic Deportation
- Obama Administration Goes to the Supreme Court in DACA and DAPA Lawsuit
- Visa Bulletin Change Fails to Deliver
- Visa Bulletin “Do-Over” Undercuts Visa Modernization
- First Step in Visa Modernization: Making the Wait More Palatable
- Five Families Released After Prolonged Detention
- Restrictionists Continue to Attack H-4 Work Authorization
- Government Ordered to Promptly Release Children From Family Detention
- Court Issues Decision in Washtech, Case Challenging Training for U.S.-Educated Noncitizens
- Annual Review of State-Level Immigration Policy Still Trending Pro-Immigrant
- The Government Doubles Down on Locking Up Immigrant Mothers and Children
- Insider Speaks Out Alongside Formerly Detained Mothers Seeking Protection in the U.S.
- Court Finds Federal Officers Can be Sued for Mistreatment of Immigrants in Detention
- Judge’s Order in Flores Should Signal the End of Family Detention
- White House Report on Improving Our Legal Immigration System: Too Little Too Late?
- Some 3-Year Work Permits Being Recalled by USCIS
- Appellate Court Hears Oral Argument in Texas v. United States
- U.S. Settles With 4-Year-Old U.S. Citizen They Wrongfully Deported
- Members of Congress Report on Texas Family Detention Center Visits
- Supreme Court Finds Conviction for Possession of a Sock Was Not a Deportable Offense
- Court Rejects Restrictionists’ Attempts to Derail Work Authorization for H-4 Spouses
- Immigration Appeals Court Reverses Position on Deportation Waivers
- Why DAPA Applications Were Not Accepted by USCIS on May 19, 2015
- Reports: Detention Doesn’t Deter Migrants and Refugees From Coming to United States
- Arpaio Faces Skeptical Judges In Lawsuit Challenging Obama’s Immigration Action
- Supreme Court to Decide Whether It’s Okay to Deprive a Person of His Day In Immigration Court
- No Justice For Family of Mexican Child Killed By U.S. Border Patrol Agent
- The Court Decision on Deferred Action Everyone Should Be Talking About
- Faith Leaders Visit Immigrant Detention Center as Mothers Begin Hunger Strike
- Immigration Agency Issues Long-Awaited Guidance on L-1B Visa Petitions
- Government Claims Children in Family Detention Centers Are Not Entitled to Protections
- Documenting Ongoing Border Patrol Abuses
- Immigration Action Provides Certain H-4 Spouses Work Authorization
- New Immigration Enforcement Policy Remains In Effect Despite Texas Lawsuit
- Supreme Court Hears Argument on Whether Government Must Justify Its Visa Denial
- The Detention of Children and Their Families is Still Unjust and Still Against the Law
- Unrepresented Children Still Being Fast-Tracked Through Immigration Hearings
- When is Possession of a Sock a Deportable Offense?
- U.S. Education of Foreign Students is Under Attack
- Do the President’s New Immigration Policies Really Mark the End of Secure Communities?
- How New Guidance Improves a Waiver Program to Limit Family Separations
- Five Things to Know About Deportation Relief for Some Immigrant Parents
- How Many Immigrants Could Be Eligible for Relief and Not Know It?
- Civil Rights Complaint Documents Government’s Failure to Properly Screen Asylum Seekers
- Third Federal Court Rejects Government Interpretation of ‘Admission’ into U.S.
- How USCIS Tried to Keep Out a Skilled Brazilian Steakhouse Worker
- How Can a Three Year Old Represent Himself in Court?
- Report Discloses Deportation of Central American Asylum Seekers
- Federal Court Refuses to Dismiss Case of U.S. Citizen Girl Who Was Deported
- Inspector General Falls Short in Documenting Border Detention Conditions
- Why Groups Are Suing the Government over Rushed Deportation Process for Mothers and Children
- Courts Continue to Reject Arizona Style Laws, Even as House Embraces SAFE Act
- Here Are Some of the Stories of Women Held at Artesia
- Why We are Suing the Government on Behalf of All Children Facing Deportation
- District Court Decides Some TPS Beneficiaries May Finally Become Lawful Permanent Residents
- SCOTUS Decides Immigrants Can “Age-Out” of Visa Petitions
- The DACA Renewal Process: Everything You Need to Know
- CBP Releases Report Critical of Agency, Issues Updated Use of Force Policy
- Summary Removal Procedures and Their Role in Rising Deportations
- New Data Show More Than Half a Million Immigrants Granted DACA
- Drop in Court-Ordered Deportations Means Little to Overall Deportation Numbers
- USCIS Releases Information About DACA Renewal Process
- Circuit Court Ruling Affirms Detainers Not Mandatory
- New Directive Clarifies Existing Use of Force Policy at CBP
- Customs and Border Protection Conceals Scathing Audit of Border Patrol’s Use of Force Policy
- What the DACA Renewal Process Should Look Like
- Petition Challenges DHS on Enforcement Priorities
- The Washington Post Exposes Sorry State of Immigration Courts
- Miranda-like Warning for Immigrants Argued in Ninth Circuit
- Why Is There a Disparity in DACA Application Rates Among Different Nationalities?
- Supreme Court Considers Restrictive Interpretation of Child Status Protection Act
- The Punishment Should Fit the Crime for Immigrants, Too
- Keeping CBP In Line With Proposed Reforms
- Understanding DACA's Education Requirement
- Supreme Court to Interpret Child Status Protection Act
- New York City Pilots Free Legal Representation in Immigration Court