By Attorney Robert L. Reeves

Reeves Miller Zhang & Diza, formerly Reeves & Associates, has been fighting for the rights of children who turned 21 (aged out) and were left behind when their parents immigrated to the United States. Our Firm has pursued a class action challenging the US Citizenship and Immigration Services’ interpretation of Section 203(h)(3) of the Child Status Protection Act (CSPA). The case is currently entitled Mayorkas v. De Osorio and it is about to be argued before the nine justices of the US Supreme Court.

The class action began life in the United States District Court as two cases: De Osorio v. Mayorkas and Costelo v. Napolitano.  Costelo v. Napolitano was certified by US District Court Judge Selna as a nationwide class action.  Nancy E. Miller of Reeves Miller Zhang & Diza was certified as the lead counsel in this class action.  When the District Court granted summary judgment for the government, attorneys for the parents of the aged-out children appealed to the United States Court of Appeals for the Ninth Circuit.  The cases were consolidated (joined together for court processing purposes) at that time.

The Ninth Circuit Court of Appeals agreed with Reeves Miller Zhang & Diza that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries of all family-based and employment-based petitions.

USCIS appealed to the United States Supreme Court to review the decision of the Ninth Circuit.  The Supreme Court agreed to hear the case.  Briefs have been filed on behalf of the parents, the government and various interested parties, including current and former members of Congress who were directly involved in the passage of the CSPA.  Oral argument in the case will be held on Tuesday, December 10, 2013 at the Supreme Court in Washington, D.C.

Section 203(h)(3) of the CSPA allows aged-out derivative beneficiaries to automatically convert to the appropriate category and to retain the priority date of the petition originally filed on behalf of their parents when their parents obtain their green cards.  The issue we have been fighting for is whether the benefit applies to all derivative beneficiaries in the family-based and employment-based categories or whether it only benefits the children of green card holders who age out while waiting for their priority dates to become current.  This is important because which interpretation prevails will directly affect whether families can stay together, or, if they must be separated, for how long.  A reading of the plain language of the statute leads to the conclusion that the benefits apply to all family-based and employment-based aged-out children.  That means that, when the parents (the original beneficiaries of petitions filed by their United States citizen (USC) parents, USC siblings, lawful permanent resident (LPR or “green card holding”) parents or employers) get their green cards, their children who aged-out (turned 21) while waiting for the priority date to become current, convert to the category of adult son or daughter of green card holders with the priority date of the petition filed for their parent.  This is the conclusion reached by the Ninth Circuit Court of Appeals.

No decision will be issued on Tuesday, December 10th. The US Supreme Court could issue their decision at the end of term in June or at any time between now and then.  In the meantime, as Nancy Miller prepares to go to Washington to attend the oral argument, she is acutely aware that she carries the hopes of the parents and children who are waiting to be reunited. May those hopes become reality soon!

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