By: Reeves & Associates

A very wise person once said “sometimes you get what you want; you just have to wait for it”.  After years of litigation in federal courts, a huge victory was heralded for Reeves & Associates and our clients in the battle to expand coverage of protection under the Child Status Protection Act (CSPA) to “aged-out” derivative beneficiaries.

On September 26, 2012, the U.S. Court of Appeals for the Ninth Circuit published an en banc opinion in the class action CSPA lawsuit originally filed by Reeves & Associates. The Ninth Circuit granted Reeves & Associates’ appeal and held that “the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries.”  This means that for thousands of aged-out children and their parents, immigration relief and family reunification are finally possible.

This precedent decision is a major victory for children who were derivatives of visas filed for their parents, but who were denied green cards in the United States because they turned 21 years old while waiting decades for a visa to become available.  U.S. Citizenship & Immigration Services (USCIS) took the position that when a child of a visa beneficiary turned 21, that child was no longer eligible for the priority date afforded to his or her parents, unless the child qualified under a narrow exception for processing delays.

Although the parents could file a new petition for the child, USCIS refused to allow the child to retain the priority date from the petition filed on behalf of the parents.  The result was that the child had to go to the back of the immigration line and again wait many years before a visa would become available. After encountering numerous clients in this dilemma, Reeves & Associates filed a class action lawsuit in California District Court to challenge USCIS’s interpretation of CSPA and to compel USCIS to allow these children to retain the priority date of the original petition (i.e., the petition filed on behalf of the child’s parents, often filed at a time when the child was very young), as provided by the plain language of CSPA.

While the case was pending in District Court, the Board of Immigration Appeals (BIA) published a decision (Matter of Wang), holding that CSPA did not permit aged-out children to retain the older priority date.  The District Court deferred to the BIA and denied relief to the class. Undeterred, Reeves & Associates took this matter up on appeal to the Ninth Circuit.  A three-judge panel of the court dismissed the appeal and affirmed the decision of the District Court, again deferring to the BIA opinion in Matter of Wang.  Reeves & Associates requested a rehearing before a full 11-judge panel of the court.

The court granted the request for an en banc rehearing, and earlier this year, the parties presented oral arguments before the 11-judge panel.  On September 26, 2012, that panel issued its decision, reversing the District Court decision and remanding the matter for further proceedings. Although the government has the right to appeal this decision to the U.S. Supreme Court, this decision is a significant victory for all CSPA children.

The Ninth Circuit has resoundingly indicated its refusal to defer to the unreasonable and unfair BIA decision in Matter of Wang, and has opened the door to new green card applications for derivative children.  Reeves & Associates never conceded, and although the litigation has been long and grueling, the result is a windfall victory.  Should this matter go up on appeal, Reeves & Associates will be prepared to continue to fight on behalf of the class, with confidence in continued success.

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