BIA Rules In Favor of Children Who Aged-Out Despite CSPA

Swim19 · 08-18-2006, 09:28 PM

from: http://www.shusterman.com/cgi-bin/ex...idsagedout.htm

Quote:

Child Status Protection Law: Does it Favor Everyone?
On August 6, 2002, President Bush signed the Child Status Protection Act (CSPA) into law. Since then, the law has benefited the children of thousands of immigrants whose children would have otherwise “aged-out” when they turned 21 because the Immigration Service acted slowly on their visa petitions.

But what about the children who aged-out despite CSPA?

CSPA provides a remedy for these children, but the CIS has failed to explain the meaning of an important provision of the law for the past four years. Now, in an unprecedented decision, the Board of Immigration Appeals (BIA) has interpreted the law in a way that will benefit many thousands of aged-out children whose parents have waited in line many years to obtain permanent residence.

The law amended section 203(h)(3) of the Immigration and Nationality Act to provide as follows:

“RETENTION OF PRIORITY DATE- If the age of an alien is determined…to be 21 years of age or older…, the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

On June 16, the BIA, in the case of Maria Garcia, provided guidance as to what this statute means.
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Maria and her family are citizens of Mexico. Maria’s aunt (her mother’s sister) was a U.S. citizen who submitted a 4th preference petition for her mother and the rest of their family back in 1983 when Maria was just 9 years old. Due to the long waiting times in this category, Maria’s priority date for a green card did not become “current” until June 1996 at which time Maria was 22 years old, and therefore too old to obtain a green card along with the rest of her family. Her mother, upon becoming a lawful permanent resident, submitted a petition for Maria under the 2B category (unmarried adult sons and daughters of lawful permanent residents). The 2B category also has a backlog of many years.

When the Immigration Service attempted to deport Maria back to Mexico, her attorney, Lawrence Rushton, argued that Maria should be allowed to adjust her status under CSPA. The Immigration Judge disagreed and held that she was removable.

The Judge’s decision was reversed by the BIA.

The BIA looked at the language of section 203(h)(3) of the law, and held that the “appropriate category” mentioned in the law refers to the 2B family-based preference category since Maria, now 32, is still the unmarried daughter of a lawful permanent resident. It also held that the law permits Maria to retain the 1983 priority date when her U.S. citizen aunt petitioned for her mother and the rest of her family. Because this makes her eligible to adjust status under section 245(i), the BIA remanded the case to the Immigration Judge to consider Maria’s application for adjustment of status under CSPA.

We hope that the BIA will designate this important decision as a precedent, and that the CIS will issue a memorandum agreeing that the BIA’s interpretation of this section of the statute is correct.

At Shusterman.com, we link to the full text of the BIA’s decision in this case from our “Green Card” page at: http://shusterman.com/toc-gc.html#2C

Maybe this will help some of us who have age-out or will age-out in family petitions

Abaddon · 08-18-2006, 09:58 PM

If this is true... then I think... I could be... saved?

*feeling... weird... hopeful?*

Romeo · 08-19-2006, 12:41 AM

Hey im not sure what u mean but i was wondering if u can tell me wether i would qualify or not, first of my mom got petitioned in jan 97, and her petitioned got accepted in april of 97, which was only 3 months, i am curently 18 turning 19 in nov, the way it looks now it seems like i will be 21 or 22 by the time our priority date becomes available which is jan 1 of 98, i tried to calculate the CSPA way to find out wether i would fall under it, and till no dice, i would still be considered 21, but its so close and it really pisses me off that we have been waiting so long, plus a lawyer that we have spoken 2 told us that it doesnt matter if im under 21 when the priority date becomes current, but that i should be under 21 when the residency card comes , which is obviously after the interview and paperwork etc... so if u can let me know if i could be saved lol i would appreciate it thanks

Swim19 · 08-19-2006, 02:20 PM

Hey Romeo,

I just saw the article on the lawyer's website and thought it might be of interest for some people who have aged-out. From what I understand from the article they are still waiting to see if this will set a "precedent" so that other children who have aged out can now file for it. I think you would be under it, but I can't tell you for sure. I suggest talking to a lawyer if possible or doing some research about it.

bktf · 08-24-2006, 02:46 PM

Thanks for posting this! I was very interested to hear about new changes in CSPA's retroactive application. Unfortunately, I couldn't find a way this new precedent would apply to my own case. The most recent response from the Board of Immigration Appeals still says:

"CSPA expressly provides that the amendments made therein apply to any alien who is a beneficiary of a petition approved before August 6, 2002, but only if a final determination has not been made on the beneficiary's application."

In other words, CSPA will only apply retroactively if your case was still awaiting word from the INS/CIS on the date of CSPA's enactment: August 6, 2002. Maria Garcia was able to win her appeal and adjust her status because she had no final determination as of CSPA's enactment date. If, however, you're like me and received a final determination (denial for aging-out) anytime before this date, no honest lawyer will take on your case.

I really find this open case / no final determination requirement to be unfair and arbitrary, and I've tried to write senators to ask for a change in CSPA's retroactive application as part of comprehensive immigration reform. I doubt it's even on their radar anymore, but the law just doesn't make sense as it's written. A lot of kids are left out of their family's petitions, and have no way of regaining their status once they lose it.

Abaddon · 08-25-2006, 08:38 AM

I stillam waiting as my mom is for her visa... would this apply under me?

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BIA Rules In Favor of Children Who Aged-Out Despite CSPA