Tuesday, June 16, 2009

BIA Decision Would Separate Families

Today, the Board of Immigration Appeals (BIA) issued a decision which eliminates one of the principal benefits of the Child Status Protection Act of 2002 (CSPA). We believe that this decision is fundamentally flawed and should be overturned.

In Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the Board essentially voids the "automatic conversion" clause of CSPA. That clause deals with persons who age out despite the protections of CSPA. It states that they are entitled to the "original priority date" and should be placed in the "appropriate category".

Despite a plethora of agency memos interpreting CSPA, the government has remained strangely silent about the "automatic conversion" clause. However, an unpublished Board decision, Matter of Garcia (2006) interpreted the clause to mean that when a derivative beneficiary of a petition ages out, they are able to keep the priority date of the original petition filed on behalf of their parents, and that once their parents become permanent residents, the original petition is "automatically converted" to the family-based 2B category since they are unmarried adult sons and daughters of permanent residents. In many cases, this allows them to immediately immigrate to the United States.

In Matter of Wang, a U.S. citizen submitted an immigrant visa petition for her brother and his wife and daughter in China in 1992. However, by the time that the parents became permanent residents in 2005, the daughter had "aged-out" because she was 22 years old and no longer qualified as a child. In 2006, her father submitted a 2B visa petition on her behalf. Since the 2B category is backlogged 8 years, the daughter would be forced to remain separated from her parents until 2014, a total wait of 22 years since the original 1992 priority date. If she marries before she immigrates, she will lose her priority date altogether.

However, under the "automatic conversion" clause of CSPA as interpreted by the Board in Matter of Garcia, she would be able to retain the original 1992 priority date under the 2B category, meaning that she could reunite with her parents immediately.

Today, the Board gave short shrift to the reasoning in Matter of Garcia. The Board found that the statute was "ambiguous" and looked to the legislative history of CSPA.

However, there is no legislative history of the "automatic conversion" clause and the Board construed the law in a way which we believe directly contradicts the clear language of the statute.

While the original CSPA bill was introduced in the House of Representatives in 2001, the "automatic conversion" clause was added the next year in the Senate. The Board recognizes this, yet all of the language as to the purpose of the bill which is referenced in the Board's decision is taken from the 2001 House Report and from individual members of the House of Representatives. Since the original House bill was much less expansive than the final bill, these selective references to the legislative history are highly misleading.

When the Board's decision talks about the injustice of allowing Ms. Wang to "'jump' to the front of the line by retaining a 1992 priority date", we are puzzled. She waited in line from the age of 10 to her 21st birthday only to be separated from her parents for another 8 years. Wasn't this the reason that CSPA was enacted?

The Board also references various USCIS "automatic conversion" regulations and concludes that when Congress approved CSPA, they were aware that such conversions only operate as long as the petitioner remains the same. This is completely false.

Why did the Board ignore the USCIS’ automatic conversation regulation which allows persons to convert from one employment-based preference category to another, and from one petitioner to another, all the while retaining the original priority date?

Consider 8 C.F.R. 204.5(e) which, in pertinent part, states:

“Retention of section 203(b)(1) , (2) , or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date.”

This regulation permits an employer to petition a person in the EB-3 category. Once the I-140 is approved, if the person changes employment, another employer may sponsor the person in the EB-2 category. Once the second I-140 is approved, the person may immigrate/adjust under the EB-2 category while retaining the “original” EB-3 priority date.

Of course, Matter of Wang, unlike Matter of Patel, the CSPA automatic conversion case which the Board has yet to decide, involved only family-based petitions. Yet, surely Congress was aware of an immigration law which allows for the automatic conversion between family-based and employment-based petitions, between different petitioners and which allows beneficiaries to retain their original priority dates.

Consider the savings clause in the 1976 immigration law which allows persons to retain Western Hemisphere Priority Dates (WHPDs) even though the original petition may have been employment-based while the latter petition is family-based. Someone with an employment-based WHPD of 1971 may be the beneficiary of a Mexican family-based third-preference petition (submitted by a U.S. citizen father for a married daughter) submitted on June 1, 2009. Instead of waiting the usual 18 years for the priority date to become current, the daughter and her family are permitted to use the 1971 original priority date to immigrate immediately.

It is clear that USCIS regulations permit persons to change jobs, preference categories and petitioners, and use the original priority date to become permanent residents. Also, Congress has long permitted persons to change between the employment and family-based categories, use the original priority date, and immediately immigrate to the U.S. Thus, the “automatic conversion” clause in CSPA is neither unique nor novel.

In Matter of Wang, the Board adopts the USCIS' tenuous argument that the "automatic conversion" clause was added to CSPA simply to codify 8 C.F.R. 204.2(a)(4), a decades-old regulation which allows a child whose parent was petitioned by their spouse under the 2A preference category to retain the original priority date when the child turns 21 and the LPR parent submits a new visa petition under the 2B category. Does the legislative history of CSPA support this interpretation? Matter of Wang is silent on this issue.

The reason why Matter of Wang should be overturned is that it contradicts the clear language of CSPA. The "automatic conversion" clause states that it applies to aliens who are "21 years of age or older for purposes of subsections (a)(2)(A) and (d)" of 8 U.S.C. 1153. Subsection (d) refers to spouses and children who are accompanying or following to join spouses or parents under the family-based, employment-based or diversity lottery categories. Any interpretation which attempts to restrict the applicability of the "automatic conversion" clause to a narrow subset of the family-based preference categories, and ignores the other family-based categories, the employment-based categories and the diversity category is clearly at odds with the statute.

Currently, there are at least five lawsuits in Federal Court challenging the government's restrictive interpretation of the "automatic conversion" clause of CSPA. How they will be affected by Matter of Wang remains to be seen.

How much deference should the Federal Courts accord to the Board’s interpretation of CSPA’s “automatic conversion” clause in Matter of Wang?

This would not be the first time that the Federal Courts overturned an overly-restrictive interpretation of CSPA put forward by the government. The Board and the USCIS eventually acceded to the interpretation of another disputed section of CSPA following the holding of Padash v. INS (9th Cir. 2004), 358 F.3d 1161:

“Because the legislative history makes it clear that the Act was intended to address the often harsh and arbitrary effects of the age-out provisions under the previously existing statute, our interpretation of the term “final determination” also adheres to the general canon of construction that a rule intended to extend benefits should be “interpreted and applied in an ameliorative fashion.” Hernandez, 345 F.3d at 840. This rule of construction applies with additional force in the immigration context “where doubts are to be resolved in favor of the alien.”

To read the complete text of Matter of Wang as well as a host of other materials relating to CSPA and the continuing litigation, see

1 comment:

  1. The automatic conversion language of the CSPA would not have been needed “simply to codify 8 C.F.R. 204.2(a)(4)....” as noted by the Board in Wang the Congress recognized the existence of such conversations earlier in the CPSA. Hence the automatic conversion language would be superfluous. No strict construction judge could ever give deference to the Board's decision in light of the clear language of the statute.