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Supreme Court Will Hear Case About Aged-Out Children

On Monday, June 24, 2013, the Supreme Court announced that they will hear the case of Mayorkas v. Cuellar De Osorio.

This case involves the question of what happens to children who are included in their parent’s immigration petition when it is filed, but as time goes on, they turn 21 years old, under Section 203(h)(3) of the Immigration and Nationality Act, 8 USC 1153(h)(3).

We will anxiously await the Supreme Court’s answer to that question. Please continue to follow our blog for updates as they are available.

BACKGROUND

Our immigration laws allow certain categories of people to immigrate to the U.S. For some of those people, such as spouses of U.S. Citizens, there is no limit as to how many of them can immigrate each year. For many other categories, however, there are strict limits, and there are always more people in the waiting line than there are available spots or “visas”.

The categories with waiting lines include: adult, single sons and daughters of U.S. Citizens (1st Preference); spouses and unmarried, under 21 children of Legal Permanent Residents (2nd Preference A); unmarried, over 21 sons and daughters of Legal Permanent Residents (2nd Preference B); married sons and daughters of U.S. Citizens (3rd Preference); and siblings of U.S. Citizens (4th Preference). For countries with high rates of immigration to the U.S., such as China, India, Mexico and the Philippines, there are country-specific waiting lines.

A person’s number in line is their “priority date”, which is the date that the visa petition was received by Immigration.

In these “Preference Categories”, the person immigrating, or the “beneficiary”, is also able to include in the case his or her “derivative beneficiaries”, including his unmarried children who are under 21 years old.

The problem is that the waiting lines for most of these categories are very long. For example, those Filipinos who are eligible today to immigrate through their U.S. Citizen brother or sister have been waiting for over 23 years.

THE PROBLEM OF CHILDREN AGING OUT

So what happens to those children who were originally riding along in the case with their parent when the petition was first filed, but by the time the case becomes “current”, they have aged out?

In 2002, Congress passed the Child Status Protection Act (CSPA), which provided some measure of protection for children who turn 21 years old and “age out” of their immigration cases.

One provision of this law was the “Automatic Conversion” provision, or Section 203(h)(3) of the INA, 8 USC 1153(h)(3). This stated that if a child is included as a “derivative beneficiary” in his/her parent’s case when the petition is filed, then the child later ages out, the case will “automatically be converted to the appropriate category and the [child] shall retain the original priority date”.

What does this mean?

One possible way to understand the “Automatic Conversion” provision would be the following:

Maria is a little girl when her U.S. Citizen aunt files a petition for her father. Many years later, the priority date becomes current, and Maria is still single, but she is now an adult. Her father successfully immigrates based on the petition, but Maria is left out in the cold. After Maria’s father immigrates, he files a petition directly for Maria, as his daughter. Maria’s case is “automatically converted” to this second petition, and she is able to retain the same priority date as her father’s petition, thus preserving her original place in line.

Unfortunately, the Executive Office of Immigration Review, Board of Immigration Appeals (BIA), disagreed with this interpretation. See Matter of Wang, 25 I&N Dec. 28 (2009).

On September 26, 2012, the Ninth Circuit in De Osorio v. Mayorkas (en banc) disagreed, and held that automatic conversion and the priority date retention were available in this situation.

The 9th circuit joins the 5th circuit, Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011), in this understanding of the “Automatic Conversion” provision of the CSPA.

Again, more updates will be provided as they become available.  Please stay tuned!


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