Contributed by Koby Polaski, Senior Attorney
We are all privy to the recent news regarding the horrific
violence in Central America driving floods of women and children across our
borders. In the midst of this tragedy, we in the immigration world can’t help
but think and wonder what can be done to help these families attain legal
status in the United States.
This brings to mind a section of the Immigration and
Nationality Act written specifically to apply to children, which has also been
in the news over the past several months. Congress passed the Child Status
Protection Act (CSPA) into law in 2002, but as a result of recent litigation it
can, in many cases, do very little to “protect” children.
Congress enacted the CSPA to keep intending immigrant
families united despite long waiting times (in some cases up to 23 years!) in
both the employment-based and family-based visa categories. The ultimate goal
behind the CSPA is that sons and daughters can immigrate to the United States
together with their parents.
For the visa preference categories, the CSPA provides a
formula intended to minimize the number of age-outs. The CSPA formula allows
the time that the visa petition was pending to be subtracted from the child’s
age when the priority date becomes current. Absurdly, under this formula, the
longer USCIS takes to approve the visa petition, the better. For example:
assume a beneficiary’s priority date becomes current on his 27th
birthday after the visa petition was pending for 7 years. Under the CSPA
formula, the beneficiary’s “age” is 20 (27 – 7). Because the beneficiary’s CSPA
age is under 21, he can immigrate with his parents. Let’s say now that USCIS
took 1 year, instead of 7, to approve the petition. Applying the formula, the
beneficiary’s age is now 26 (27 – 1). Under the second scenario, the child will
not be permitted to immigrate with his parents simply because USCIS took less
time to adjudicate the pending petition. Age preservation under the CSPA is
often simply a matter of luck.
In addition to the above formula, the CSPA “freezes” the
ages of children in the following 3 circumstances: 1) If a United States
citizen parent submits an I-130 visa petition for a child prior to his or her
21st birthday. The age of the child here will be frozen on the date
that the government receives the I-130; 2) If a parent with lawful permanent
residence submits an I-130 visa petition for a child under the family-based 2A
category and then naturalizes before the child’s 21st birthday, the
child’s age will be frozen on the date of naturalization; 3) if the US citizen
parent files an I-130 visa petition for a son or daughter under the
family-based 3rd preference category, as the US citizen parent of a
married son or daughter, and the child divorces before his or her 21st
birthday, the child’s age freezes on the date of divorce. Before the CSPA, once
a child turned 21 years of age, he or she “aged-out” and was no longer able to
immigrate with his or her parents. The intent of the CSPA is to freeze the age
of children when their petitioning United States citizen parent submits a visa
petition on their behalf; when a petitioning permanent resident parent
naturalizes; or when a married son or daughter who has been petitioned by a
U.S. citizen parent becomes divorced or widowed.
Finally, and most controversially, section 203(h)(3) of the
CSPA, also known as the “Automatic Conversion Clause” has been the subject of
extensive litigation recently. This section provides that “if the age of an
alien is determined to be 21 years of age or older for purposes of (a)(2)(A)
and (d), the alien’s petition shall automatically convert to the appropriate
category and the alien shall retain the original priority date issued upon
receipt of the original petition.” Clearly, this section does not explicitly
limit automatic conversion to a certain preference category.
In the 2009 precedent decision, Matter of Wang, however,
the Board of Immigration Appeals held that the CSPA’s automatic conversion
clause applies only to aged-out beneficiaries in the 2A family-based category.
The Court ruled that beneficiaries of family-based 3rd and 4th
preference visa petitions do not qualify for automatic conversion. The
practical implication of this decision is that children and families who have
been waiting in line for years in the 2A preference category cannot retain
their original priority dates when they age out into the 3rd and 4th-based
preference categories.
The automatic conversion clause, therefore, benefits
only a small subset of children.
Matter of Wang has been hotly litigated in federal
court since its publication, and, last year went before the United States
Supreme Court. In a disappointing plurality decision issued on June 9, 2014,
the Supreme Court in Scialabba v. DeOsorio, ruled that the automatic
conversion clause of the CSPA does not provide benefits to most immigrant
families, agreeing with the BIA’s decision in Matter of Wang.
The bottom line is that hundreds of thousands of immigrant
children in the United States, from those detained in Artesia to those subject
to the CSPA, are essentially stranded without options through no fault of their
own. The Supreme Court’s recent decision in Scialabba v. DeOsorio leaves
children in the even more desperate position of needing Congress to act to
clarify its intent.
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