Monday, July 27, 2009

BIA's CSPA Decision Not Entitled to Deference

At least six federal lawsuits are pending which challenge the USCIS' interpretation of the "automatic conversion" clause of the Child Status Protection Act (CSPA) of 2002. In one of these lawsuits, Costelo v. Chertoff, a Federal Judge has certified a nationwide class of family-based derivative beneficiaries.

We link to each of the cases referred to in this article from our "CSPA" page at

The question addressed by this article is how much, if any, deference, should the Federal Courts give the BIA's recent decision interpreting CSPA's automatic conversion clause. Matter of Wang, 25 I&N 28 (BIA 2009).

The automatic conversion clause of CSPA is section 203(h)(3) of the Immigration and Nationality Act as amended. In order to understand the meaning of this clause, it is important to read and understand the meaning of section 203(h) of the Act:


(1) IN GENERAL.-- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using--

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

(2) PETITIONS DESCRIBED- The petition described in this paragraph is—

(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien's parent under subsection (a), (b), or (c).

(3) RETENTION OF PRIORITY DATE- 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.

(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

Since section 203(h)(3) refers to "subsections (a)(2)(A) and (d)" of section 203, it is also necesssary to read and understand both of these sections of law.

Section 203(a)(2)(A) provides as follows:

(a) Preference Allocation for Family-Sponsored Immigrants. - Aliens subject to the worldwide level specified in section 201(c) for family-sponsored immigrants shall be allotted visas as follows:

(2) Spouses and unmarried sons and unmarried daughters of permanent resident aliens. - Qualified immigrants -

(A) who are the spouses or children of an alien lawfully admitted for permanent residence.

In simple English, this section of law refers to spouses and children of permanent residents who are petitioned under the family-based 2A category.

Section 203(d) provides as follows:

Treatment of family members

A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

In simple English, section 203(d) states that spouses and children of principal beneficiaries of visa petitions are entitled to permanent residence in the same category as the principal. In other words, if a U.S. citizen brother petitions his sister for a green card, not only does the sister obtain permanent residence in the family-based fourth preference category, but her husband and children also qualify under the same category. Or if a person qualifies for a green card through employment or through the visa lottery, his spouse and children also qualify under the same category as the principal.

Section 101(b)(1) defines "child" for purposes of immigrating to the U.S. In general, a child is defined as a person who is under 21 years of age and who is unmarried.

Spouses and children under section 203(d) who are accompanying or following to join the principal beneficiary of a visa petition or the winner of the visa lottery are commonly referred to as "derivative beneficiaries".

In Matter of Garcia (2006), an unpublished decision of the Board of Immigration Appeals (BIA), the Board considered the case of Maria Garcia, a "derivative beneficiary" who was born in Mexico. On January 13, 1983, Maria's mother was petitioned as the sister of a U.S. citizen. At that time, Maria was only nine years old.

Under section 203(d), Maria was a derivative beneficiary who would have been eligible to become a permanent resident along with her mother as long as she remained a "child", that is, unmarried and under 21 years of age. However, by the time that visa numbers became available to Maria and her mother in 1996, Maria was 22years of age. In common parlance, she had "aged-out". By 1996, the only relief that was available to Maria was for her permanent resident mother to submit a visa petition on Maria's behalf under the 2B category for unmarried adult sons and daughters of lawful permanent residents. Maria's mother did just that in 1997.

However, Maria was placed in deportation proceedings, and by the time her case was decided by the BIA on June 16, 2006, visa numbers were available in the Mexican 2B category only to persons whose lawful permanent resident parent(s) had petitioned for them before October 22, 1991, a 15-year wait.

Under the law as it existed prior to CSPA, Maria would have had to wait in line for a green card twice. First, she waited from 1983 to 1996, a period of 13 years for a family-based 4th preference visa number to be current. However, she was no longer a child under section 101(b)(1) because she had reached the age of 21 before her visa number became current in 1996. Therefore, she lost her place in line for a green card. When her mother petitioned for her in the 2B category in 1997, she would have had to go to the back of a 15-year line and be separated from her mother until 2012. Furthermore, if Maria married prior to immigrating in 2012, the visa petition would automatically terminate. By then, she would be 38-years-old.

The unanimous BIA panel which decided her case in 2006 held that CSPA's automatic conversion clause applied to Maria Garcia. The Board held that Maria was no longer a "child" for purposes of section 203(h)(1) since she was 22 years of age when her visa number under the family-based fourth preference category became current, and since the visa petition was approved the same day that it was submitted, no time could be subtracted from Maria's age under CSPA.

Because she was still a "derivative beneficiary" under section 203(d) except that her age was more than 21 years old, the Board held that she qualified for automatic conversion of her visa petition under section 203(h)(3). They then addressed the question of what was the "appropriate category" that the visa petition should be "converted" to. The Board held as follows:

"The respondent was (and remains) her mother's unmarried daughter, and therefore, the 'appropriate category' to which her petition was converted is the second preference category of family-based immigrants, i.e., the unmarried sons and daughters of lawful permanent residents. Furthermore, the respondent is entitled to retain the January 13, 1983, priority date that applied to the original fourth-preference petition, and therefore a visa number under the second-preference category is immediately available to the respondent.

The Board, in Matter of Garcia, did not find the statutory language of section 203(h)(3) ambiguous. Since this section of law specifically applies to derivative beneficiaries as defined by section 203(d), the Board found that Maria Garcia was entitled to benefit from the automatic conversion clause. They remanded the case to the Immigration Judge to consider her application for adjustment of status.

Three years later, in Matter of Wang, the Board refused to follow the reasoning of Matter of Garcia, held that the language of section 203(h)(3) was ambiguous and ruled that CSPA's automatic conversion clause did not apply to derivative beneficiaries.

This ruling is puzzling to say the least. How can section 203(h)(3) not apply to derivative beneficiaries when it specifically references section 203(d), the section of law which concerns derivative beneficiaries? Matter of Wang essentially deletes this reference to section 203(d) from the statute.

Further, the Board fails to discuss what it finds "ambiguous" in the language of section 203(h)(3). It simply goes on to discuss the legislative history of this section of law when no such legislative history exists.

The starting point of all statutory interpretation is the intent of Congress, and “‘[d]eference to the (agency's) only appropriate if Congress' intent is unclear.’" Padash v. INS, 358 F.3d 1161, 1168 (9th Cir. 2004). Where traditional tools of statutory construction reveal Congress’ intent, “deference is not required at all.”


  1. I believe the court is going to rule out regarding 'Automatic conversion' clause, is there gonna be another legal battle for 'Retention of priority' date?

    Also, when there's going to be the final decision with the 'matter of Wang' case? It appears that she waited more than a year after her priority date became current. Will the Costelo's verdict going to help her get the original priority date and hence visa?

  2. Have the petitioners for the Costelo class action filed for summary judgement in the court yet?

  3. Is there any way we can take this issue to the president, because too many children are suffering as a result of this, and something need to be done, this is not fair to these children,and immigration dont care.

  4. What is so hard to understand about automatic conversion, and why these children have to wait in line agin after waiting for sooo many years with their parents, we need to form a delegation and march to the white house about this, i am ready!

  5. ^

    Are you living in US? If so, then perhaps you could approach Human rights agencies or some kinda activist to deal with this situation and possibly take it to the President. You know, during his election campaign, Obama promised that he would do all he can to help integrate separated immigrant familes due to this broken immigration system. But I wouldn't count too much on people like him. 'All politicians are the same, they promise to build bridges even where there are no rivers'.

  6. Yes, I am in the US, and my family is a part of this harsh punishment, my children was only 10 and 12years when my husband family filed for us and afer going through the whole process and paying all the fees including the 245ifees of 1000.00 for them they told us that our children age out.

  7. I'm on the same boat. I got I-485 rejected 7 days ago merely because I'm over 21 and USCIS failed to follow 203(h)(3).

  8. Does anyone have any idea about how long this would continue before USCIS start implementing CSPA correctly?

  9. john_s : I have read on some other site that the final decision would be made at the end of this year.

  10. Jay we all have to continue to pray and trust God to help us, and He will see us through this

  11. Mr Shusterman please continue to fight for this cause, and god will see you through.

  12. Mr. Shusterman, please continue your left wing, radical agenda so you can bleed more immigrants for money. The more you let in the more you make.

  13. This comment has been removed by the author.

  14. hey jay are you the same jay at expat's voice?

  15. Costelo v. Chertoff was shot down in court an is now under appeal. I wonder when the appeal's gonna be due.

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  18. The whole idea behind CSPA and 'Automatic Retention of Priority Dates' is to alleviate the disintegration of family when immigrating to new country.

    If priority dates are not allowed to be retained in F4 categories, irrespective of the age being over 21 or below, as long the derivative beneficiaries are unmarried, it serves no purpose in terms of having clear immigration policy.

    Why in the first place have provision for US Citizens to sponsor first blood relatives - if the beneficiaries can't immigrate as one unit in one go. Clearly the BIA and USICS has failed to understand and apply a very cogent and logical piece of legislation! Do they have any good brains in there??

    Any thoughts .....?

  19. Dear Mr. Shusterman

    What do you make of the outcome of the amicus curiae briefs being filed in terms of the automatic retention of priority dates for F4 petitioned relatives - allowing their unmarried derivative beneficiaries to immigrate, otherwise why even bother to have this provision for US citizens to sponsor. Is USICS perpetuating the litigation culture? The legislative intent and provisions are crystal clear - any educated mind would make sense of the basics?

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