The Ninth Circuit Rules on Retention of Priority Dates and the Child Status Protection Act (CSPA)

Important NoteDe Osorio vs. Mayorkas has been reversed by The United States Supreme Court.  In a 5-4 decision issued on June 9, 2014, the Court ruled in Scialabba v. DeOsorio that derivative beneficiaries (save those in F2A) are not entitled to retain the priority date originally assigned to their parents' cases.  See our blog for more information about this decision.

Late last month (September 2012), the Ninth Circuit Court of Appeals issued a momentous precedential decision concerning the applicability of the Child Status Protection Act (CSPA), which could have far reaching implications. In De Osorio vs. Mayorkas, the Court reversed the lower District Court's decision and ruled that the plain language of the CSPA, in particular subsection (h)(3) of 8 USC 1153, is plain and unambiguous. Accordingly, derivative beneficiaries of family-based immigrant petitions who "age out" are entitled to automatic conversion and retention of priority dates assigned to the original cases they "aged out" of. Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009)-the BIA decision which held that automatic conversion and retention of priority dates only applied to family-based F2A petition beneficiaries--is hereby overruled, at least in the Ninth Circuit. The Ninth Circuit is the third circuit to rule on this issue: the Fifth also declined to give deference to Matter of Wang and ruled last year in Khalid v. Holder, 655 F.3d 363, that automatic conversion is available for derivative beneficiaries; the Second Circuit, in contrast, held in Li v. Renaud, 654 F.3d 376 (2011), that an F2B petition filed by a mother for her son who had aged out of her petition as a beneficiary was not entitled to the earlier priority date (of his mother's case) because the petitioners had changed (in the first instance, someone had filed for the mother; in the second, the mother was filing). The practical import of De Osorio is that at least in the Ninth Circuit, many children who could not immigrate with their parents due to an "aging out" issue can potentially come to the United States much earlier than anticipated if their parents file petitions for them requesting retention of the earlier priority date under subsection (h)(3) of the CSPA. The logic and lucidity of the decision may also encourage other circuits confronted with the issue to rule similarly, providing hope to thousands of families longing to be reunited who are undergoing substantial waiting times due to Matter of Wang's interpretation of the CSPA.