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Rosalina Cuellar De v. Alejandro Mayorkas

September 26, 2012

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.



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

The opinion of the court was delivered by: Judge Murguia

FOR PUBLICATION

OPINION

Argued and Submitted June 19, 2012-Pasadena, California

Before: Alex Kozinski, Chief Judge, Harry Pregerson, M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Raymond C. Fisher, Ronald M. Gould, Richard A. Paez, Johnnie B. Rawlinson, Milan D. Smith, Jr., and Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia; Dissent by Judge M. Smith

OPINION

MURGUIA, Circuit Judge, with whom PREGERSON, WARDLAW, FISHER, GOULD and PAEZ, Circuit Judges, join in full:

Appellants became lawful permanent residents and immigrated to the United States. However, due to visa quotas and a serious backlog, by the time Appellants received their family-sponsored visas, their children were no longer eligible to accompany them as recipients of derivative visas, which are available only to children under the age of twenty-one. Their children had "aged out" of eligibility.

The question before us is whether these children are entitled to relief under the Child Status Protection Act ("CSPA"), 8 U.S.C. § 1153(h). The CSPA provides, among other things, that when certain aged-out aliens apply for visas under a new category for adults, they may retain the filing date of the visa petition for which they were listed as derivative beneficiaries when they were children. This ensures that visas are available quickly, rather than requiring the now-adult aliens to wait many more years in a new visa line.

The United States Citizen and Immigration Services ("USCIS") denied Appellants' requests for priority date retention under the CSPA. USCIS relied on the Board of Immigration Appeals' ("BIA") decision in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) that the CSPA does not apply to all derivative beneficiaries. The district court, deferring to the BIA's interpretation, granted summary judgment to USCIS in two separate cases. We reverse.

We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA's interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.

I. Family-based immigration overview

We begin with an overview of family-based immigration. Family-sponsored immigration allows U.S. citizens and lawful permanent residents ("LPRs") to file visa petitions on behalf of certain qualifying alien relatives. The Immigration and Nationality Act ("INA") limits the total number of family-sponsored immigrant visas issued each year to 480,000, and directs that natives of any single foreign state may not receive more than seven percent of these visas. 8 U.S.C. §§ 1151(c), 1152(a)(2). The INA also establishes preference categories based on the relationship between citizens or LPRs and their alien relatives, and limits the number of family-sponsored immigrant visas that can be granted to members of each preference category. Id. § 1153(a). Unlike other types of family-sponsored visa applicants, children, spouses, and parents (i.e. "immediate relatives") of U.S. citizens are not subject to the annual visa limits. Id. § 1151(b)(2)(A)(i).

For non-immediate relatives of citizens, the INA establishes the following family visa preference categories:

F1: Unmarried sons and daughters of U.S. citizens

F2A: Spouses and children of LPRs

F2B: Unmarried sons and daughters of LPRs

F3: Married sons and married daughters of U.S. citizens

F4: Brothers and sisters of U.S. citizens

Id. § 1153(a).

After a U.S. citizen or LPR files a visa petition on behalf of a relative, USCIS determines if a qualifying relationship exists between the citizen or LPR petitioner and the alien relative who is the primary beneficiary. If so, USCIS puts the beneficiary "in line" in the appropriate visa category. The beneficiary's place in line is determined by the date the petition is filed, which is known as the "priority date." Due to statutory limits for each visa category and a substantial backlog, it may be many years before a petition's priority date becomes "current," meaning that a visa is available for the beneficiary named in the petition. See, e.g., U.S. Dep't of State, Visa Bulletin, August 2012, available at http:// www.travel.state.gov/visa/bulletin/bulletin_5749.html (showing delays for members of all visa categories, including waits of over 10 years for nationals of several countries in certain categories).

A petition can also include the spouse or children of the primary beneficiary. The primary beneficiary's spouse or children may then receive derivative visas at the same time that the primary beneficiary receives a visa. 8 U.S.C. § 1153(d) ("A spouse or child . . . shall . . . be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent."). The INA defines a "child" as an unmarried person under the age of twenty-one. 8 U.S.C. § 1101(b)(1). The primary beneficiary's son or daughter can only receive a derivative visa if he or she is under twenty-one when the parent's priority date becomes current. Often children who qualify for derivative visas at the time a petition is filed on their parent's behalf are over the age of twenty-one by the time their parent receives the visa, and therefore may not immigrate to the United States with their parent. This is referred to as "aging out" of visa eligibility. Aging out also affects children who are the primary beneficiaries of F2A petitions, as they are no longer eligible for an F2A visa (for spouses and children of LPRs) once they turn twenty-one. Because some delays are many years long, children may age out even if they were very young when a petition was filed on their parent's behalf.

II. The Child Status Protection Act

In 2002, Congress passed the Child Status Protection Act ("CSPA"). Pub. L. No. 107-208, 116 Stat. 927 (2002). This appeal concerns a provision of the CSPA entitled "Rules for determining whether certain aliens are children," codified at 8 U.S.C. § 1153(h).*fn1 Subsection (h) addresses two sources of delay that can cause a beneficiary to age out of child status:

(1) USCIS processing delays and (2) the wait times between USCIS's approval of a visa petition and when a visa becomes available. Three parts of subsection (h) are relevant to our discussion.

The first paragraph of subsection (h) addresses the more minor delay that occurs while USCIS processes a visa application. 8 U.S.C. § 1153(h)(1). Subsection (h)(1) establishes the method to determine an alien's age "[f]or purposes of subsections (a)(2)(A) and (d) [of § 1153]," which respectively address F2A visas (for the children of LPRs), id. § 1153(a)(2)(A), and derivative visas (for the children of primary beneficiaries), id. § 1153(d). Subsection (h)(1) provides that for purposes of determining if a visa applicant qualifies as a child, the alien's "age" is his age on the date the visa becomes available minus "the number of days in the period during which the applicable petition" was pending after ...


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