The Child Status Protection Act The Child Status Protection Act and Child Citizenship Actand Child Citizenship Act

Ari Sauer, Carl Shusterman, & Cyrus MehtaAri Sauer, Carl Shusterman, & Cyrus Mehta

2013 Federal Bar Association 2013 Federal Bar Association Immigration Law SeminarImmigration Law Seminar

Memphis, TNMemphis, TN

Frozen Immediate Relatives

• If person is under 21 when Visa Petition is filed

• If 2A beneficiary is under 21 on date of petitioning Parent’s 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.

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

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

“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.

CSPA and Asylees/Refugees

• Child is under 21 when application is filed and parent adds child’s 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.

Automatic Conversion for“Age-Outs”

• What is the Original Priority Date?• What is the “Appropriate Category”?• BIA’s Decision in Matter of Wang• Pending Litigation

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)

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

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

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 I&N Dec. 28 (BIA 2009)

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 Feinstein’s Statement Upon Introducing CSPA in the Senate, April 2, 2001

 • 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)"

Section 203(h) - RULES FOR DETERMINING WHETHER CERTAIN

ALIENS ARE CHILDREN

• 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???

CSPA’s 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

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

0THER CSPA NUDGETS• If child’s 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?

Child Citizenship Act• Effective February 27, 2001• INA §320• Permits certain foreign-born children

to automatically acquire citizenship

• 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

• 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

• 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.

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

Questions & Answers