Excerpts from the Feb. 15, 2013, Bender's Immigration Bulletin

Justice Department Seeks Supreme Court Review in CSPA Case

                On Jan. 25, the Obama administration filed a petition for a writ of certiorari asking the Supreme Court to resolve a circuit split over the ability of a derivative F3 or F4 beneficiary to retain the original priority date for a subsequent petition if she or she aged out of child status before the original petition was granted.

                By a 6-5 margin, an en banc panel of the Ninth Circuit held that such beneficiaries may retain their original priority dates under the unambiguous language of INA §203(h)(3), as amended by the Child Status Protection Act of 2002, even if the subsequent petition was filed by another petitioner. De Osorio v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012) [enhanced version available to lexis.com subscribers]. The Ninth Circuit declined to defer to the decision in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) [enhanced version], which held that a derivative beneficiary may retain the priority date only for subsequent petitions filed by the same petitioner.

                Prior to the Ninth Circuit's decision, the Fifth Circuit also had held that derivative beneficiaries of F3 and F4 petitions could retain their original priority dates if they aged out. Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011) [enhanced version]. The Second Circuit has reached the opposite conclusion, agreeing with the BIA's decision in Matter of Wang. Li v. Renaud, 654 F.3d 376 (2d Cir. 2011) [enhanced version]. This issue is discussed in greater depth in David Froman's emerging issues analysis on lexis.com, Child Status Protection Act for Over-21 Derivatives: Implementing De Osorio, 2012 Emerging Issues 6736.

                The matter is Mayorkas v. De Osorio, No. 12-930. The Justices will likely determine whether to review the case before recessing for the summer at the end of June.

North Carolina Attorney General Confirms DACA Grantees are Lawfully Present, Eligible for Drivers' Licenses

                On January 17, the office of the North Carolina Attorney General issued a much anticipated opinion concluding that beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program are eligible for drivers' licenses under state law by virtue of being "lawfully present" for purposes of federal immigration law. The opinion is reprinted at Appendix A.

                Under North Carolina law, qualified applicants who can demonstrate "legal presence" in the United States are eligible for drivers' licenses. Before the opinion, the state Division of Motor Vehicles had issued and then revoked drivers' licenses of a handful of DACA recipients, pending the legal opinion. Following the issuance of the opinion, the state DMV said that it would further study the conclusion before determining whether to issue licenses to DACA grantees.

New Forms I-90 and I-601 Available

In mid-December, USCIS issued revised versions of Form I-90, Application to Replace Permanent Resident Card, and Form I-601, Application for Waiver of Grounds of Inadmissibility. USCIS will accept versions of the prior forms until April 16, 2013. After that date, USCIS will accept only the current versions of Forms I-90 and I-601. Both forms are available online and can be downloaded from the USCIS forms website.

Notice of Proposed Settlement in Tsamcho v. Napolitano

USCIS has issued a notice of a proposed settlement in Tsamcho v. Napolitano, No. 10-2029 (E.D. N.Y., filed May 2010), a class action challenging the reopenings and denials of asylee and refugee Form I-730 petitions. The class includes all refugees and asylees whose Form I-730 petitions have been or will be approved but whose beneficiaries did not or will not appear for consular interviews. As part of the settlement, USCIS has agreed to administratively close rather than deny approved Form I-730 petitions when the beneficiary does not appear for a consular interview until such an appearance is possible. Those wanting more information about the proposed settlement may call New York Legal Assistance Group at (212) 946-0353. The proposed settlement notice is reprinted at Appendix B.

New Policy Manual Chapter on Citizenship and Naturalization Available, USCIS Announces

 On January 7, USCIS issued a policy alert advising interested parties of the recently published volume on citizenship and naturalization in the agency's new Policy Manual. The guidance contained in the volume replaces that found in Chapters 71 through 76 of the Adjudicator's Field Manual, the AFM's related appendices, and policy memoranda. The new guidance is reprinted as Appendix C and is online at http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12.html. The AFM in general is available on lexis.com > Immigration > Find Administrative Materials > Immigration Law & Procedure-Policy Manuals and on the USCIS website.

New EIAs on Lexis.com on Unlawful Presence Waiver, Comprehensive Immigration Reform

January saw two new immigration-related emerging issues analyses made available on lexis.com. Nolan Rappaport, former congressional and BIA staffer and adviser to DHS, among other things, wrote What Is IRCA, and What Does It Have to Do with Comprehensive Immigration Reform? That can be found at 2013 Emerging Issues 6911. Jordana L. Mosten of Public Counsel in Los Angeles wrote about the final rule on the provisional unlawful presence waiver at 2013 Emerging Issues 6897.

Bender's Immigration Bulletin

[This is an excerpt from the Feb. 15, 2013, issue of Bender's Immigration Bulletin.] 

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