On September 26, 2012, an en banc panel of the U.S. Court of Appeals for the 9th Circuit ruled, in DeOsorio v. Napolitano, that the “automatic conversion” clause of the Child Status Protection Act (CSPA) gives credit to sons and daughters of permanent residents who have “aged-out” for the time that they stood in line with their parents under the family-based third and fourth preference categories. Consequently, as long as they remain unmarried, they are permitted to retain their original priority dates and automatically convert to the family-based 2B category.

Since this is a nationwide class action lawsuit, we have received hundreds of messages from people around the country asking when parents can take action to reunite with their sons and daughters under this decision.

The government had 90 days from the date of the decision to seek review from the Supreme Court. In this case, the government asked and received a 30 day extension, until January 25, 2013, to seek Supreme Court review. If the government files a Petition for a Writ of Certiori with the Supreme Court, we will oppose it. If the government declines to do so, we will answer questions in our next newsletter about what immigrant families who have been divided by the government’s restrictive interpretation of the CSPA need to do to reunite with their loved ones.

Procedurally, a Petition for a Writ of Certiori needs to be printed in booklet format and 40 copies must be filed with the Supreme Court. If four of the nine Justices on the Supreme Court vote to grant the petition, the Court schedules dates for the filing of briefs and oral arguments. If not, the decision of the lower court becomes final.

I have been reading books about and by the Justices of the Supreme Court, listening to oral arguments online and reading related law review articles.

I find it interesting, even astonishing, that the government continues to argue that Congress, in drafting the CSPA, intended that sons and daughters of permanent residents be given no credit for the years that they stood in line with their parents waiting for their priority dates to become current. Instead, the government insists that, no matter how long they already waited in line, these sons and daughters must go to the back of the 2B line, even though this means a 115-year wait for Mexicans and a 28-year wait for Filipinos.
 

Thus, as a practical matter, the great majority of these sons and daughters will never be reunited with their parents in the U.S.Is this really what Congress meant when it passed the CSPA?If existing immigration laws and regulations are relevant, the answer is a resounding no.

When one examines the pre-existing regulatory scheme cited by the Board of Immigration Appeals in Matter of Wang, it becomes clear that beneficiaries of visa petitions have always been given credit for the time that they stood in line, even when the line in which they spent years waiting was not the same line in which they ultimately received their green cards.

Consider the regulation at 8 C.F.R. 204.2(i) which allows persons to change from one family-based category to another. Let’s say that a permanent resident parent submits a visa petition for an unmarried adult daughter under the 2B preference category. Later, when the parent naturalizes, the daughter automatically converts to the 1st preference category. She does not have to go to the back of the line. She retains her original 2B priority date under the 1st preference category. If she later marries, she converts to the 3rd preference category, and she retains her original priority date as do her husband and any children that they may have together. Under the government’s logic, isn’t she jumping ahead of others? And certainly, her husband and children who never waited a single day in the 2B or 1st preference line are cutting in ahead of others in the 3rd preference line. However, under this regulation, the unity of her family trumps the interests of others who may have been waiting far longer in the 3rd preference line.

The same is true under another regulation cited by the Board of Immigration Appeals in Wang: 8 C.F.R. 204.2(a)(4). This regulation allows a permanent resident to petition her spouse and children under the 2A category. If a child ages-out, he converts to the 2B category. Must he go to the end of the line in order not to displace others who have been waiting in the 2B line far longer than he has? The answer is no. The regulation allows him full credit for the time that he spent waiting in the 2A line together with his parent.

And it’s not just the regulations cited in Matter of Wang which give credit to persons who have waited for green cards in lines different from the one in which they ultimately obtain permanent residence. The same rule applies in the INS/USCIS employment-based regulations, and in statutes as old as the Western Hemisphere Savings Clause which was enacted in 1976. Categories may change, but the oldest priority date is always retained.

Furthermore, it is instructive to look at another section of the CSPA to see what Congress intended regarding the retention of priority dates. In Section 6, the “opt-out” provision, persons who have converted from the 2B to the 1st preference category are allowed to return to the 2B category even though their petitioning parent has already naturalized. Are they required to go to the back of the line in order not to displace others in the 2B category? Not at all. They are given full credit for the time that they have waited in line, even if it was in another line.

Given this overwhelming evidence based on both CSPA as well as other immigration statutes and regulations, why does the government ignore all of this and insist that only in the case of section 203(h)(3) are sons and daughters compelled to go to the back of the line? Certainly, if the government believes that their view is the correct one, one has to wonder why they failed to seek Supreme Court review when the U.S. Court of Appeals for the 5th Circuit, in interpreting section 203(h)(3), rejected their arguments in Khalid v. Holder over a year before DeOsorio.

Clearly, DeOsorio v. Napolitano does not merit Supreme Court review.