By Attorney Farhad Sethna © 2013

The Child Status Protection Act, enshrined in the Immigration & Nationality Act as § 203(h) originally held out great promise when it was first enacted in 2002. However, the way in which the Board of Immigration Appeals and subsequently the USCIS have interpreted the Child Status Protection Act has severely limited its usefulness.  In Mayorkas v. Rosalina Cuellar De Osorio, this dispute came before the United States Supreme Court (Petition # 12-930).

In order to understand the background of the Child Status Protection Act and the legal issues raised in the Osorio case, some basic information is necessary.

Background:

Under the Immigration Law, a person remains a child upto the age of 21. That means a person below the age of 21 can immigrate to the USA as a derivative beneficiary “child” along with his or her parents.  However, a person ceases to be a “child” when he or she turns 21. That is called “aging out”. The person turning 21 loses his or her derivative beneficiary status for purposes of any immigrant or non-immigrant petitions, and cannot immigrate to the USA with his or her parents.

The Child Status Protection Act was designed to put an end to that cruel practice by artificially reducing the age of a child who had turned 21 by the number of days that an immigrant visa petition had been pending.  By so doing, the Congress intended to preserve family unity, and more importantly, prevent the incredible heartbreak of leaving behind a minor child in the immigrant’s home country.  Unfortunately the CSPA fell victim to rather harsh and restrictive interpretation.  The USCIS and the Board of Appeals [in Matter of Wang, 25 I&N Dec. 28 (BIA 2009)] took the position that the  Child Status Protection Act would apply only to a limited class of children, primarily those who are seeking immigration as unmarried children under the age of 21 of Permanent Residents, and who later turned 21.  It would not apply, the USCIS determined, to any other immigrant visa category including the most commonly used and most backlogged – brothers and sisters of US citizens.

Therefore, as an example, a US citizen who sponsored his or her brother would also be sponsoring as a derivative beneficiary, the brother’s wife, and the couple’s children.  The sponsorship would be under the immigrant visa “F-4” category.  As most readers know, there is a significant priority date backlog for visas in this category.  Therefore, during the time the visa would be pending, a child who was included in the petition could “age-out”.

Under the USCIS and BIA interpretation, that child could never receive the benefit of the CSPA.  The BIA held that in order for a child to continue to be a derivative beneficiary, there had to be another visa classification that the original petitioner could file for the child. In this case, since the child would be a nephew or niece of the original petitioner, there would be no other visa classification available for that child and therefore, a child who had aged-out was simply “out of luck” as well.  A new petition filed by the Permanent Resident parent of the child would not receive the same priority date as the petition filed by the original US citizen relative.  Therefore, in essence, the child’s petition would go “back to square one” or have to be started all over again with a new priority date.

The Osorio litigation:

Osorio challenged this restrictive interpretation of the INA.  The 9th Circuit agreed with the Osorios.  The parties then presented the case to the United States Supreme Court.

An amicus (“friend of the court”) brief was filed in support of the Osorio’s position by several well-respected Representatives and Senators who were in office at the time that the CSPA was passed.  The group included significant important members of the House and Senate – the Honorable Samuel Brownback (Republican), Dianne Feinstein (Democrat), Orrin Hatch (Republican), John McCain (Republican), Robert Menendez (Democrat), and Charles Schumer (Democrat). The amicus brief indicated their support for a more expansive interpretation of the law.  Indeed, they argued that the law, as intended by the Congress at that time was intended to benefit all children who were at risk of aging out, not just those in the category of minor children of Permanent Residents.

A central theme in the brief can be summarized in the paragraph at page three of that document which read as follows:

“To correct this problem [ie, the problem of “aging out”], Congress, with overwhelming bipartisan support and the signature of President George Bush, passed the CSPA, which allows alien children who turn 21 before a visa became available to retain their priority date for purposes of new sponsorship category applicable to adults.  In this way, Congress sought to give credit to immigrant children for the years they had waited for a visa and preserve unity for immigrant families.  Congress enacted the CSPA to comprehensibly serve these goals. As the statute made clear, all derivative beneficiary children received the CSPA’s benefits”.

With the amici [parties to the amicus brief] specifically stating the law’s application to all derivative beneficiary children, it would seem that the Supreme Court will be swayed toward agreeing with the Osorio’s position, and ruling for a more expansive interpretation of the CSPA.

Conclusion:

It remains to be seen whether the Supreme Court will support a more expansive interpretation of the CSPA, or whether it will support the interpretation followed by the BIA in Matter of Wang and by the USCIS.

Supreme Court is expected to render a decision in the Osorio case in early 2014. Stay tuned…

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Copyright, Farhad Sethna, Attorney, 2013

About the author: Attorney Farhad Sethna has practiced law for over 20 years.  Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases.  Our number is: (330)-384-8000.  Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.

This is only general legal information.  Please consult a qualified immigration attorney for advice on your specific case.

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