CSPA Heads to the Supreme Court

1
Understanding The Child Status Protection Act
(CSPA)
Immigration Attorney Carl Shusterman
Pincus Professional Education November 14, 2013
2
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

3
Rules for Derivative Beneficiaries

• Start with Date Visa Number becomes Current or
  Visa Petition is Approved, whichever is later
• Subtract Time that the Visa
• Petition was Pending
• Person must Seek to Acquire
• Green Card within One Year
• What Happens if your Client
• Ages-Out despite this Formula?

4
Automatic Conversion for Age-Outs

• What is Retention of the Original Priority
  Date?
• What is the Appropriate Category?
• What is Automatic Conversion?
• Matter of Garcia (BIA 2006)

5
Lawsuits in Federal District Court

• In June 2008, two lawsuits were filed challenging
  the government for its failure to implement
  CSPAs automatic conversion clause
• OIL informs Judge that BIA decision on clause is
  imminent. Cases delayed.

6
Board of Immigration Appeals

• In Matter of Wang (June 16, 2009), the BIA found
  that CSPA does not specify which petitions that
  the automatic conversion clause applies to.
• Board held that CSPA only deals with
  administrative delays, not delays caused by the
  Visa Bulletin
• Held that automatic conversion and retention
  have recognized meanings under the law.

7
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

8
Courts of Appeals

• 2nd Circuit, Li v. Holder, ruled for the
  government
• 5th Circuit, Khalid V. Holder ruled for the
  immigrant
• And the 9th Circuit

9
9th Circuit Re-Hearing

• 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

10
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, which the Supreme Court
  granted
• Oral arguments will take place in December
• The Supreme Court should make a decision on the
  case by next spring

11
What Should You Do Now?

• Not a wise idea to file for benefits now
• The Supreme Court could reverse (Lets hope not!)
  the 9th Circuits decision
• Your clients application could be denied and
  they could be placed in removal proceedings
• However, if your client is already in removal
  proceedings, or is abroad, you can file for
  benefits now

12
How to Stay Current

• Visit our website, www.shusterman.com
• Follow us on Facebook and Twitter
• Read updates and ask questions on our Google
  Immigration Forum
• Subscribe to our free monthly e-mail newsletter

13
Questions Answers