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. However, under the CSPA’s formula, a child’s age can be preserved as under 21 even if, chronologically, he or she is over 21. In its CSPA litigation, the LAC 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 have “sought to acquire” lawful permanent resident status within one year of the visa becoming available. The LAC 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 filed Feb. 18, 2010). The BIA adopted the LAC’s arguments and found, in an unpublished decision, that “sought to acquire” encompasses other “substantial steps” taken towards becoming a permanent resident.
Meaning of INA § 203(h)(3)
INA § 203(h)(30 provides an alternate benefit for beneficiaries who are found to have aged out under the age preservation formula of the CSPA. In amicus briefs filed in cases within the Third, Fifth and Ninth Circuits, the LAC 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. The LAC argues 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.
Li v. Renaud, No. 10-2560 (2d Cir. amicus brief filed Oct. 28, 2010). The court upheld the BIA’s interpretation. Li v. Renaud, 654 F.3d 375 (2d Cir. 2011).
De Osorio v. Mayorkas, No. 09-56786 (9th Cir. amicus brief filed April 28, 2010) and Costelo v. Chertoff, No. 09-56846 (9th Cir. amicus brief filed May 25, 2010) (nationwide class action). While the court initially upheld the BIA’s interpretation in these consolidated cases, De Osorio v. Mayorkas, 656 F.3d 954 (9th Cir. 2011), that decision was vacated when rehearing en banc was granted. 677 F.3d 921 (9th Cir. 2012) (amicus briefs filed October 24, 2011 and May 11, 2012). In an en banc decision, the court overturned Matter of Wang, instead adopting the arguments of amici, including the LAC. 695 F.3d 1003 (9th Cir. 2012). Read our statement.
Wu v. Holder, No. 10-60093 (5th Cir. amicus brief filed June 17, 2010). This case was remanded on other grounds. The Fifth Circuit subsequently overturned Matter of Wang in an unrelated case, Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011).
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 LAC 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 LAC 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
LAC Practice Advisory: The Child Status Protection Act (November 4, 2009). This advisory provides a comprehensive overview of the CSPA.