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Ninth Circuit’s CSPA decision brings new hope to some separated families

Posted on Wednesday, October 24, 2012

The Child Status Protection Act (CSPA) of 2002 CSPA specifies that once an aged-out child’s family enters the U.S. and gains permanent residence, she will be automatically converted to a new preference class and allowed to retain her original priority date. immigration attorney lawyer chicago child status protection act cspa f-2a priority date permanent residence bia supreme court connecticut new york vermont louisiana mississippi texas preference class california However, there was confusion from the outset about how this conversion would work.

After a series of contradictory decisions by USCIS, the Board of Immigration Appeals (BIA) decided in 2009 that the CSPA’s automatic conversion and priority date retention provision applied only when the child was the derivative beneficiary of a parent waiting in the F-2A preference class. This very narrow interpretation was immediately challenged in a series of cases around the country.

In 2011, the Second Circuit Court of Appeals (covering Connecticut, New York and Vermont) chose to uphold the BIA’s decision. A few weeks later, the Fifth Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) rejected the BIA’s precedent, ruling that automatic conversion and priority date retention was applicable to all family-based preference classes.

This September, the Ninth Circuit Court of Appeals (covering California and eight other western states) joined the Fifth Circuit in rejecting the BIA’s restrictive interpretation of the CSPA. The Ninth Circuit justices concluded 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.”

The USCIS has until late December 2012 to ask the Supreme Court to resolve the differences among the Second, Fifth and Ninth Circuits. If the Supreme Court accepts the case, its ruling – a year or two down the road – will be final. If the Supreme Court does not hear the case, the Second, Fifth and Ninth Circuit decisions will continue to be law within their specific areas of jurisdiction.

The Ninth Circuit’s decision is already a victory for the families to which it directly applies. It also raises hopes for a final resolution of this longstanding controversy in favor of all the families who have been forced to leave aged-out children behind.

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