The Child Status Protection Act and Child Citizenship Act

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The Child Status Protection Act and Child
Citizenship Act

• Ari Sauer, Carl Shusterman, Cyrus Mehta
• 2013 Federal Bar Association
• Immigration Law Seminar
• Memphis, TN

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Frozen Immediate Relatives

• If person is under 21 when Visa Petition is filed
• If 2A beneficiary is under 21 on date of
  petitioning Parents Naturalization
• If 3rd preference beneficiary is under 21 when
  marriage terminates
• DOS allows IR child to opt out into F1 if person
  has his/her own derivative kids.

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Rules for Derivative Beneficiaries

• Start with Date Visa Number becomes Current or
  Visa Petition is Approved, whichever is later
• Subtract Time that USCIS took to Approve Visa
  Petition
• Beneficiary must have sought to acquire
  Permanent Residence within One Year

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Conversion from 2B to F1 Opting Out

• When parent naturalizes, 2B converts to F1
• But beneficiary can elect to remain in 2B as if
  parent never naturalized
• Petition could have been initially filed in 2A
  which is now 2B
• Mexicans and Filipinos primarily benefit

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Sought To Acquire

• Submit I-485, DS-230 Part 1, or DS-260 on behalf
  of child
• If parent adjusts, file I-824 with I-485
• In Matter of O. Vazquez sought to acquire can
  be satisfied by actually filing I-485 or showing
  extraordinary circumstances where failure to file
  was beyond control of alien.

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CSPA and Asylees/Refugees

• Child is under 21 when application is filed and
  parent adds childs name to application before
  adjudication
• If status granted before 8/6/02, I-730 must have
  been pending on effective date
• If child aged out on or after 8/6/02, I-589 or
  I-730 could be filed before or after effective
  date.

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Automatic Conversion for Age-Outs

• What is the Original Priority Date?
• What is the Appropriate Category?
• BIAs Decision in Matter of Wang
• Pending Litigation

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Courts of Appeals

• Federal Judge deferred to BIA in Matter of Wang
• 9th Circuit affirmed the decision of the Federal
  Court
• 2nd Circuit, Li v. Holder, ruled for the
  government
• 5th Circuit, Khalid V. Holder ruled for the
  immigrant
• 9th Circuit, requested re-hearing en banc (11
  Judges)

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9th Circuit Rehearing

• Petition for Rehearing En Banc granted
• Oral Arguments in June 2012
• On September 26, the 9th Circuit ruled in favor
  of the immigrants by a vote of 6 to 5

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CSPA Heads to the Supreme Court

• On January 25, 2013, the Department of Justice
  submitted a Petition for a Writ of Certiorari to
  the Supreme Court
• If the Supreme Court grants the petition, briefs
  will be submitted over the summer
• Oral arguments will probably be scheduled in
  October or November

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Does CSPA Only Cure Administrative Delays?

• We find that while the legislative record
  demonstrates a clear concern on the part of
  Congress to ameliorate the delays associated with
  the processing of visa petitions, there is no
  indication in the statutory language or
  legislative history of the CSPA that Congress
  intended to create a mechanism to avoid the
  natural consequence of a child aging out of a
  visa category because of the length of the visa
  line.
• -Matter of Wang, 25 IN Dec. 28 (BIA 2009)

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Why Wang Got It Wrong

• a family whose child's application for
  admission to the United States has been pending
  for years may be forced to leave that child
  behind either because the INS was unable to
  adjudicate the application before the child's
  21st birthday, or because growing immigration
  backlogs in the immigration visa category caused
  the visa to be unavailable before the child
  reached his 21st birthday. As a result, the child
  loses the right to admission to the United
  States. This is what is commonly known as aging
  out.'
• -Senator Dianne Feinsteins Statement Upon
  Introducing CSPA in the Senate, April 2, 2001

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Section 203(h) - RULES FOR DETERMINING WHETHER
CERTAIN ALIENS ARE CHILDREN

•  
• Subsection (1) is the mathematical formula for
  determining a son or daughters' "CSPA" age
•  
• Subsection (3) applies to sons and daughters who
  have "aged-out" 
• Both subsections (1) and (3) use the same phrase
  in describing who these rules apply to "For
  purposes of subsections (a)(2)(A) and (d)"

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• USCIS agrees that subsection (1) applies to
  derivative beneficiaries of 2A visa petitions who
  age out as well as to derivative beneficiaries of
  each of the family-based categories and
  employment-based categories.
• However, USCIS interprets the exact same wording
  in subsection (3) to apply solely to derivative
  beneficiaries of 2A visa petitions who age out.
•  
• HOW CAN THE SAME PHRASE HAVE TWO DIFFERENT
  MEANINGS???

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CSPAs Three Effective Dates

• Visa Petition Approved, No Final Determination
  on AOS/IV by 8-06-02
• Visa Petition Pending on 8-06-02
• AOS/IV Pending on 8-06-02
• Retroactivity under CSPA

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More on Retroactivity

• In Padash v. INS, 9th Cir. extended final
  determination to appeal of a denial of I-485 in
  federal court
• In Matter of Avila-Perez CSPA applied to I-130
  under Sec. 2 that was approved prior to 8/6/2002
• Neufeld Memo on CSPA (April 30, 2008) - Sec. 3
  cases are retroactive only up to Aug 6, 2001

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0THER CSPA NUDGETS

• If childs age falls short in CSPA calculation,
  try adding 45 or 90 days from Patriot Act
• I-140/I-485 filed during July 2007 visa bulleting
  freezes age of child even if I-140 got approved
  after retrogression
• Can 21 who is 2A CSPA protected, remain in 2A
  even when parent naturalizes?

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Child Citizenship Act

• Effective February 27, 2001
• INA 320
• Permits certain foreign-born children to
  automatically acquire citizenship

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• Children of at least one U.S. citizen become
  citizens when the following conditions are met
• one parent is a citizen
• child under 18
• child is permanent resident
• child is residing in physical legal custody
  of citizen parent

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• INA 322
• children of citizens who are born abroad, and who
  do are not citizens from birth can apply for a
  certificate of citizenship.
• Not automatic acquisition of citizenship like INA
  320

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• One parent is a citizen.
• Citizen parent has been physically present in the
  US for at least five years, two of which are
  after the age of 14. (Can be met through citizen
  grandparent).
• The child under 18.

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• child lives abroad in legal and physical custody
  of citizen parent and has been lawfully admitted
  to US as a nonimmigrant.

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Questions Answers