CSPA argument before Supreme Court - Dec 10

This is a few weeks late, but on December 10th the Supreme Court heard the oral arguments regarding Child Status Protection Act (CSPA; aging out of petition after turning 21). It concerns who benefits from the “Retention of Priority Date” clause of CSPA.

The entire oral argument transcript can be found here. Or you can read a summary of argument by attorney Carl Shusterman here.

Below is Shusterman's conclusion about oral arguments. Hopefully we have positive outcome in a few months!

Quote:

Conclusion While it is impossible to predict the final outcome of a case based solely on the oral arguments, I remain cautiously optimistic that the Supreme Court will ultimately agree with both the 5th and the 9th Circuit Courts of Appeals that the statute is unambiguous and that there is no need to defer to the flawed BIA decision in Matter of Wang. A decision may be forthcoming as early as February or March. As recognized by many of the Justices, the government is arguing for a very restrictive reading of CSPA. Yes, the DOJ instead portrays itself as the defender of those in the F2B line and categorizes our clients as “line-jumpers”. What the DOJ conveniently overlooks is that CSPA created (h)(1) to allow all qualifying derivative beneficiaries who would, in the past, have “aged-out” and lost their place in line to immigrate together with their parents in a particular preference category. Under the government’s reasoning, why are they are not “line-jumpers”? Congress simply made a policy decision to give sons and daughters who have waited for years in line for permanent residence together with their parents credit for their wait, and not send them to the back of the line. If is clear that (h)(3) extends this same credit to unmarried sons and daughters of permanent residents. Could it be that the DOJ simply disagrees with these policy decisions? If so, they should lobby Congress, not the Supreme Court, to change the law.

can someone make a tm:dr on this and maybe explain more? I read about 10 pages of the transcript but I am not sure what exactly they are speaking about

^ Are you familiar with CSPA and lawsuit at all? The transcript is difficult to read, but I actually did read through it and understand it for most part. I don't have time tonight to write out an explanation, but this blog post has a more helpful explanation than links in my original post.

Thanks, yeah this blog made more sense.... dunno how many dreamers would qualify for that though, as most either stayed in their home countries when their parents were emigrating to the US.

I just wish they unlock the the 245(i) :/

You are right that only a small percentage of DREAMers will be helped by this. As someone who would have had my green card two years ago if I hadn't aged-out, I have been keeping up with this lawsuit for past few years, so I am very interested in what the Supreme Court will decide.

Good Luck and Happy New Year

Just a quick clarification:
If Supreme Court does rule in favor of the priority date retention that means that your parents will be able to sponsor you in F2B or F1 or F3 categories with the original priority date if you aged out after CSPA passed.
Problem being that in each of these categories you still will likely need 245(i) in order to be able to adjust status.


Example of this being:
Your mother had an F4 petition filed on her behalf on April 30th 2001 which gives you all coverage under 245(i). The petition itself was pending for lets say 180 days. You were 13 at the time. The petition became current in 2011. Your mother and father and siblings under 21 were able to adjust status, you weren't since at that point you were 23 years old (and after subtracting the 180 days the application was pending you're still over 21).
Now if supreme court rules in favor of retaining the priority date your mother will be able to file I-130 on your behalf in F2B category retaining the original priority date of April 30th 2001. Effectively you'll jump to the very front of the line for green card.

Another example being (where unfortunately it does nothing to benefit) (numbers here are completely made up and won't necessarily match the bulletin):
Your father had an EB-3 application filed on his behalf in 2006 at point of which you were 18. The I-140 was pending for 180 days. The priority date became current in 2010 when you were 22, after subtracting the 180 days your CSPA age is still over 21. Your parents can file F2B petition on your behalf and have you retain the old priority date in 2006, however without 245(i) you will not be able to adjust status.

In the latter it could be possible to seek adjustment via court if you'd be able to adjust back then should USCIS not misinterpret the law. Effectively claim that you fell out of status because of USCIS error. However that will likely require taking USCIS to court.


Now you might ask yourselves why USCIS wants to interpret CSPA very very narrowly (currently they only interpret it in a sense that F2A petitions automatically convert into F2B). The answer is rather simple - they do not want a mess with the bulletin. There's an unknown amount of people able to benefit from this ruling (in US and abroad) so the DOS will have a hard time adjusting the bulletin when you'll have several thousand people with old priority dates popping out of nowhere. Understandable, but not acceptable.