Child Status Protection Act for Over-21 Derivatives: Implementing De Osorio v. Mayorkas

By David Froman

Holding a key provision of the CSPA unambiguous, the Ninth Circuit, en banc, approved the two-petition approach for aged-out derivative beneficiaries of family preference petitions. "Vertical" conversion offers a viable alternative under existing statutes and regulations to transform derivative beneficiaries within their "appropriate category" from age-outs to CSPA-protected beneficiaries and meets the objections of the conflicting opinions. David Froman, who has practiced immigration law for 27 years, discusses the ruling in this Emerging Issues Analysis.

Excerpt:

Child Status Protection Act (CSPA) supporters are cheering the recent en banc decision of the Court of Appeals for the Ninth Circuit, De Osorio v. Mayorkas [enhanced version available to lexis.com subscribers]. By declaring that Congress unambiguously created a new regime for aged-out derivatives of family preference petitions, the Ninth Circuit reversed the lower court decisions, upholding the conversion and priority date retention provisions of the CSPA. The court found the statute clear and unambiguous, as did the Second and Fifth Circuits, the only other appellate courts to consider the issue. Therefore, under the two-step analysis of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. [enhanced version], the Ninth Circuit relegated Matter of Wang [enhanced version], the obsessively restrictive BIA interpretation of the statute, to the dustbin. No court of appeals has agreed with Wang's central holding that the statute is ambiguous. Without that central prop, Wang implodes. Acknowledging that questions may remain concerning procedural implementation of the statute's mandate regarding over-twenty-one derivatives, the court properly left development of the policy and procedure to the USCIS.

I will chart the progressive movement away from Wang as seen in the other two circuit court opinions that preceded De Osorio and show how the USCIS can immediately implement the court's holding consistent with the language of all three circuit court opinions, using existing procedures and regulations.

The Ninth Circuit Decision Against Its Backdrop

De Osorio comprises multiple plaintiffs in two actions, one with class designation. All are petitioners for family second preference petitions for adult sons or daughters who "aged out" as former derivative beneficiaries of family third and fourth preference petitions filed by a citizen parent or sibling. All came to the Ninth Circuit on denials of benefits under § 1153(h)(3).

Through a logical, step-by-step approach, the court answered the question whether children over twenty-one years of age were entitled to relief under § 1153(h)(3): "We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries."

Like the Fifth Circuit in Khalid v. Holder [enhanced version], the Ninth Circuit found that a two-petition approach acceptably gave effect to the clear wording of the statute. The court wisely acknowledged that it was not the court's job to specify policy or procedures of implementation. Rather, its role was to declare that the law was clear and that it established a new benefit that the USCIS needs to implement.

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