Wednesday, July 22, 2009

CSPA Update

A Federal Judge has certified a nationwide class in a challenge to the USCIS's restrictive interpretation of the "automatic conversion" clause in the Child Status Protection Act (CSPA) of 2002. This opens the way for children who have "aged-out" to be reunited with their parents.

The USCIS has resisted implementing this important section of law for the past seven years. Just a few weeks ago, the Board of Immigration Appeals (BIA), in Matter of Wang, adopted the government's restrictive interpretation of the automatic conversion clause.

On July 16, Federal Judge James Selna (Central District, California), over government objections, made his ruling in the case of Costelo v. Chertoff. The lawsuit, which challenges the government's restrictive reading of the automatic conversion clause, had been put on hold for over one year because the government had argued that the issue would soon be decided by the BIA. Our law firm joined in submitting a amicus brief written by Mary Kenney, Esq. on behalf of AILA and AILF supporting the class certification in which we argued that the Court should not give deference to Matter of Wang since the law is clear on its face.

What is the automatic conversion clause?

It consists of a single sentence in CSPA which provides as follows (references to the statute omitted):

"RETENTION OF PRIORITY DATE- If the age of an alien is determined...to be 21 years of age or older..., 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."

What does this mean in practice?

For example, a U.S. citizen petitions his brother and his family including their 10-year-old son in the summer of 1998. By the time that the priority date becomes "current" in 2009, the son has reached his 21st birthday. Even after subtracting the time that the visa petition was pending, he has aged-out.

The government's position is that the father has to re-petition the son under the 2B category (unmarried, adult sons and daughters of lawful permanent residents). This means that despite the family having waited in line for 11 years to get their green cards, the parents would be forced to endure eight years of separation from their son. If the son marries during this eight-year period, the petition would automatically be terminated.

Under CSPA's automatic conversion clause, the son is entitled to the "original priority date" which was in 1998. His 4th preference petition would be "converted to the appropriate category" which, since he is the unmarried son of a permanent resident, is the 2B category. Most persons with a 1998 priority date in the 2B category would be able to immediately immigrate to the U.S.

In terms of complexity, this is far from rocket science.

I wrote an article about the automatic conversion clause shortly after CSPA was signed into law in 2002. Other immigration lawyers subsequently reached the same conclusion. The BIA, in Matter of Garcia (2006), reached the same conclusion. Unfortunately, the Board did not designate Matter of Garcia as a precedent. In terms of statutory analysis, it is very clear that the automatic conversion clause applies to derivative beneficiaries in the family-based, employment-based and diversity lottery categories.

However, despite the clear language of the law, the government stubbornly clings to the view that the automatic conversion clause simply codifies a regulation which applies only to derivative beneficiaries of 2A visa petitions. Surprisingly, a three-judge panel of the BIA was persuaded by this argument in Matter of Wang. The petitioner in Matter of Wang has recently filed a Motion for Reconsideration and Request for En Banc Hearing before the BIA and filed a lawsuit challenging the decision in a Federal Court in Ohio.

In the Costelo class action lawsuit, the petitioners are preparing a motion for summary judgment which will soon be filed with the Court. They will also request a preliminary injunction prohibiting the government from deporting persons who qualify for benefits under the automatic conversion clause.

We are confident that the Federal Courts will allow for this much maligned section of the law to take effect in the near future, thereby benefitting ten of thousands of immigrant families.

Given the irreparable harm suffered by immigrant families over the past seven years, we are very pleased that the matter will be decided by a Federal Judge in the near future. However, we are mindful of the fact that the Costelo class action will not resolve the matter of how the automatic conversion clause applies to derivative beneficiaries in employment-based cases.

This issue is pending before the Board in Matter of Patel. Unless the BIA backs away from its holding in Matter of Wang, another lawsuit may be necessary to resolve this matter.

We link to the class certification and briefs in Costelo from our "CSPA" page at

http://shusterman.com/cspa.html#4


We link to the Motion for Reconsideration and Request for En Banc Hearing in Matter of Wang from

http://shusterman.com/cspa.html#5

16 comments:

  1. This comment has been removed by the author.

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  2. '....the matter will be decided by a Federal Judge in the near future.'

    Near future? How near? Any guess? How long is this CSPA matter go on? This whole legal tit for tat thing is looking so hopeless to me. *Sigh* I have waited for too long. I miss my parents and all my family. Even if the the Judge rule out in favour of broader applicability of 'automatic conversion', the processing time for I-130 approval takes minimum three years and I know people where it took six years for them. US immigration system is so sadistic. Maybe the best way is to go to Mexico and f*&$ing jump off the fence and re-unite with ones family in US ;) Sincerity and decency has left no value these days.

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  3. Well, I've been waiting for 10 years now. I'm wondering if I will even be covered by this CSPA. I was a derivative beneficiary and aged out prior to CSPA. It's been painful for me and my parents that we have been in line for this long and not even sure if I will be covered by this CSPA since my parents got their visas prior to CSPA. The system is broken. No wonder a lot of people try every kind of schemes to enter illegally just to be reunited with their loved ones.

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  4. same here, eleonor,more than 10 years waiting. i was petitioned in the year 1999 under f2a category and age-out at 2001.

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  5. Me Too, i was petitioned for along witgh my parents since 1997, when i was 12 now they are saying that i age out, we should all get together and fight to regain our old priority date

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  6. We have to keep praying and trusting God to help us in this situation,because is only Him can help us because He has the last say, and He is able to do all things.

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  7. What does the law say? How long before BIA is forced to give a reply

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  8. Camelanikki>...because He has the last say..

    ROLMAO :D

    I think the court will have the last say! Oh! I am sorry, Did you meant Obama, the second coming of the Christ? Also, what does that tell you? Christ was Black and he is back! :D LMAO

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  9. john! you can continue to ROALYAO, But i will continue to pray and trust God not Obama, but God, Obama is not my God and he do not have the last say, and Oh! while you are ROALYAO, i will BPAKTF.

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  10. Whatever they decide, nothing will change the hell that we had to go through and still going trough.

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  11. What the hell happened to all those CSPA cases? It's been months nothing have been heard about them.

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  12. Nothing will ever happen here... Some were petitioned 1997 some 1999 others were waiting for 10yrs? Well we were petitioned 1987 F4 category i was only 3yrs old back then and now we were all aged - out coz it took 22yrs can you imagine it even if we were not born yet we will still aged - out... Our petition just got current january 2010 petition filed 1987 hahahaha what a joke!!! Okay so our parents will go to US, and for us to follow they need to file another petition for us and if we get married the petition is cancelled and another petition should be filed then it will took another jurasic age again for the petition to get current and our children will age out too and the process will continue over and over again... CSPA? It's just a law to give all of us false hopes... They cant even follow the law that they created... Retention of priority date in court? And in the near future? Is this another false hope to cling on too?

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  13. ya!even me her we have a F4 petition with my uncle,brother of my mom.weve been waiting for so long till now our petition not yet current.and im 29 yrs old.they file the petition 1988.
    im still single and my 2 brothers got married already bec. its been long time..now that we have hope for the new CSPA.but they still dont know how to handle things right.and if you try to pay 400$ just to know if your applicable or not! then its a waste of time ang money.

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  14. yep same here mine was way back 1986.CSPA-I.A.B! Damn those lawmakers,they are just lousy and freaking imbecile wasting people's money.

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