The Supreme Court has finally ruled on "priority date retention" issue raised by differing interpretations of a provision within the Child Status Protection Act, also known as the CSPA, for short. Unfortunately, the ruling does not favor "aged out" derivative children left behind. In Scialabba v. DeOsorio, decided on June 9, 2014, the Supreme Court, in a 5-4 decision, held that derivative beneficiaries who were not able to immigrate with their principal beneficiary parents because they turned 21 are not entitled to the same priority date accorded to their parents' cases when their parent(s) subsequently file for them. This Supreme Court ruling overturns the previous California Supreme Court ruling that 8 U.S.C. 1153(h)(3) of the CSPA applies to all aged out derivative beneficiaries and automatically converts their cases to the appropriate category with retention of the original filing, or priority date. The relevant meaning of the text litigated concerns the interplay between 8 USC 1153(1), (2), and (3). The statute reads:
(1) In general
For purposes of subsections (a)(2)(A) and (d) of this section, a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 1101 (b)(1) of this title 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) of this section, 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) of this section, a petition filed under section 1154 of this title for classification of an alien child under subsection (a)(2)(A) of this section; or
(B) with respect to an alien child who is a derivative beneficiary under subsection (d) of this section, a petition filed under section 1154 of this title for classification of the alien's parent under subsection (a), (b), or (c) of this section.
(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) of this section, 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.
The Supreme Court essentially deferred to a Board of Immigration Appeals decision called Matter of Wang, which found that only aged-out beneficiaries of preference category F2A (sons and daughters under the age of 21 of lawful permanent residents)-not all derivative beneficiaries-were entitled to automatic conversion. Instead of taking a more progressive tack on an issue which the language seems to allow and which would be more in line with what Congress originally intended, the Court upheld the Board's position as a reasonable interpretation of the statute, given that section (h)(3) "does not speak unambiguously to the issue" and is a "Janus-faced" provision.
What does this mean for aged-out beneficiaries?
The upshot of this is families will continue to be separated through no fault of their own because of immigration's unreasonable delays and processing times. Especially for counties like the Philippines and Mexico, children of principal beneficiaries are very likely to age out by the time the visa becomes current for their parents. The parents, then, will be forced to decide whether to immigrate here without their now "adult" children, who patiently waited with their parents, or stay back and essentially waste all those years waiting for nothing. If they do immigrate, then they must now accept that it might take another seven years for their unmarried children to get here. But who really knows how long it will take? If Category F2B does not move along, it will actually take longer. Moreover, if the derivative beneficiary child left behind chooses to get married, he or she may be unwittingly destroying the immigration petition for him/her, since there is no category for married children of lawful permanent residents. If, on the other hand, the Supreme Court had ruled the opposite way, as did the California Supreme Court, then the parents would be to immigrate here and file a new I-130 petition for their left behind child(ren) with the same filing date from their case. In practical terms, it would mean that the child living abroad would be able to immigrate here almost immediately, as opposed to starting all over with a new place in line-which will now continue to be the reality (except for a small limited group of people who can automatically convert their priority date, namely, aged-out beneficiaries of family based category F2A).
While this is certainly a devastating blow to immigration families and children, it does not mean that the whole CSPA has been dismantled. There are still sections and provisions of the CSPA that remain intact and which can benefit families in tremendous ways. For a detailed evaluation of your case and how the recent ruling by the Supreme Court impacts your matter, please call or contact our office to arrange a consultation.
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