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Rosalina Cuellar De Osorio v. Alejandro Mayorkas

September 2, 2011

ROSALINA CUELLAR DE OSORIO; ELIZABETH MAGPANTAY; EVELYN Y. SANTOS; MARIA ELOISA LIWAG; NORMA UY; RUTH UY, PLAINTIFFS-APPELLANTS,
v.
ALEJANDRO MAYORKAS, DIRECTOR, UNITED STATES CITZENSHIP AND IMMIGRATION SERVICES; JANET NAPOLITANO, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, HILLARY RODHAM CLINTON, SECRETARY OF STATE,
DEFENDANTS-APPELLEES. TERESITA G. COSTELO; LORENZO P. ONG, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
JANET NAPOLITANO, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; ALEJANDRO MAYORKAS,
DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; LYNNE SKEIRIK, DIRECTOR, NATIONAL VISA CENTER; CHRISTINA POULOS, ACTING DIRECTOR, CALIFORNIA SERVICE CENTER, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; HILLARY RODHAM CLINTON, SECRETARY OF STATE, DEFENDANTS-APPELLEES.



D.C. No. 8:08-cv-00688- JVS-SH D.C. No.5:08-cv-00840-JVS-SH Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

The opinion of the court was delivered by: Tallman, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted July 15, 2011-Pasadena, California

Before: Pamela Ann Rymer, Richard C. Tallman, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Tallman

OPINION

This case involves parents who face separation from their children due to the way our immigration system operates. Appellants, the parents, have all immigrated to the United States and become lawful permanent residents. Their children, however, have not been able to join them because the children are no longer under the age of 21.

Appellants became lawful permanent residents through the family-sponsored immigration process, which allows certain aliens to immigrate based on their status as relatives of either U.S. citizens or lawful permanent residents. When Appellants began this process, they all had children under the age of 21 who would have been eligible to immigrate with them under the Immigration and Nationality Act (INA). See 8 U.S.C. §§ 1101(b)(1), 1153(d) (entitling a child under the age of 21 to the same immigration status as a parent). However, due to years-long delays associated with the family-sponsored immigration process, these children turned 21 before their parents were able to immigrate or adjust status. Because these children had "aged out" of child status under the INA by the time their parents immigrated or adjusted status, they were no longer eligible to accompany their parents.

The question we are faced with today is whether Appellants' children are entitled to any relief under the Child Status Protection Act (CSPA), 8 U.S.C. § 1153(h), which was enacted to help keep families together by expediting the immigration process for certain aged-out aliens. United States Citizenship and Immigration Services (CIS) denied Appellants' requests for relief under the CSPA, and Appellants challenge the denial as arbitrary and capricious. The district court, deferring to the Board of Immigration Appeals' (BIA) interpretation of § 1153(h), held that the CSPA did not apply to Appellants' children. Because we agree that the BIA's interpretation of § 1153(h) warrants deference, we affirm the district court's grant of summary judgment in favor of CIS. We hold that Appellants' children are not among the aged-out aliens entitled to relief under § 1153(h).

I

Understanding this appeal requires familiarity with the family-sponsored immigration process and, specifically, the complicated family preference system. Family-sponsored immigration is one of the primary avenues by which an alien can obtain lawful permanent residence in the United States, along with employment-based immigration, diversity-based immigration, and asylum. The family-sponsored immigration process allows a U.S. citizen or lawful permanent resident (LPR) to file a form I-130 immigration petition on behalf of an alien relative. 8 U.S.C. § 1153(a). After the petition is filed, CIS determines if it establishes a qualifying relationship between the citizen or LPR petitioner and the alien relative beneficiary. Because there is no annual cap on the number of permanent resident visas (also known as "green cards") available to immediate relatives of U.S. citizens, a citizen's spouse, child under the age of 21, or parent can apply for one immediately.

For other qualifying relatives of citizens and for qualifying relatives of LPRs, the number of visas available annually is capped. Id. § 1151(c). To allocate these visas, the INA establishes the following preference system:

Aliens subject to the worldwide [numerical limitation] for family-sponsored immigrants shall be allotted visas as follows:

(1) Unmarried sons and daughters [age 21 or older] of citizens

Qualified immigrants who are the unmarried sons or daughters of citizens of the United States shall be allocated visas in a number not to exceed [numerical quota formula].

(2) Spouses and unmarried sons and unmarried daughters of permanent resident aliens

Qualified immigrants-

(A) who are the spouses or children [under

21] of an alien lawfully admitted for permanent residence, or

(B) who are the unmarried sons or unmarried daughters (but are not the children) of an alien lawfully admitted for permanent residence,

shall be allocated visas in a number not to exceed [numerical quota formula].

(3) Married sons and married daughters of citizens

Qualified immigrants who are the married sons or married daughters of citizens of the United States shall be allocated visas in a number not to exceed [numerical quota formula].

(4) Brothers and sisters of citizens

Qualified immigrants who are the brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age, shall be allocated visas in a number not to exceed [numerical quota formula].

Id. ยง 1153(a). If an I-130 petition establishes one of these qualifying relationships, CIS approves it and places the alien beneficiary "in line" in the appropriate preference category. These family preference categories are referred to as F1, F2A, F2B, ...


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