The Ninth Circuit Court of Appeals on Sept 2, 2011, has upheld the BIA on their interpretation of the Child Status Protection Act (CSPA) as applied to derivatives of F3 and F4 I-130 petitions.
Costello v. Napolitano [also being called] DE OSORIO v. MAYORKAS
SEE: http://www.ca9.uscourts.gov/datastore/opinions/2011/09/02/09-56846.pdf
A small excerpt from the 23 page decision in this case:
In 2002, Congress enacted the CSPA to provide relief to
“aged out” alien children by allowing them either to maintain
“child” status longer, see 8 U.S.C. § 1153(h)(1), or to automatically
convert to a valid adult visa category while retaining
the priority date associated with their original petition, see
id. § 1153(h)(3). The issue before us is whether an aged-out
derivative beneficiary of an F3 petition (for married sons or
daughters of U.S. citizens) or F4 petition (for siblings of U.S.
citizens)—i.e., a grandchild or niece or nephew of a U.S.
citizen—is entitled to automatic conversion and priority date
retention, or either of them separately, under the CSPA.
**********
As the BIA recognized, protection from administrative
delays was highly significant to Congress. See Matter of
Wang, 25 I. & N. Dec. at 36-37 (noting that “the drive for the
legislation was the then-extensive administrative delays in the
processing of visa petitions”). While the Senate bill’s sponsor
expressed an intent to address oversubscription delays as well,
she focused only on children of LPRs, who could fall into the
F2A category. See 147 Cong. Rec. S3275-76 (daily ed. Apr.
2, 2001) (statement of Sen. Feinstein). Given that
§ 1153(h)(1) entitles all derivative children to relief from
administrative delays, we cannot say that the BIA’s interpretation
of § 1153(h)(3) is contrary to congressional intent sim-
ply because it affords additional relief only to children in the
F2A category.
[8] Finally, we point out that limiting § 1153(h)(3)’s applicability
to F2A petitions is “a reasonable policy choice for the
agency to make.” Chevron, 467 U.S. at 845. Applying
§ 1153(h)(3) to all derivative beneficiaries would result in a
fundamental change to the family preference scheme, because
it would effectively treat an aged-out derivative beneficiary of
an F3 or F4 petition as if he or she had been independently
entitled to his or her own priority date based on his or her status
as the grandchild, niece, or nephew of a citizen. However,
those relationships have never been recognized as qualifying
ones under U.S. immigration law. This same problem does
not arise for a derivative of an F2A petition because he or she
can be independently eligible for a priority date as the primary
beneficiary of an F2A petition. It is therefore not arbitrary or
otherwise unreasonable for the BIA’s interpretation of
§ 1153(h)(3) to draw the line where it does. This interpretation
warrants our deference under Chevron.
V
[9] We hold that § 1153(h)(3) is ambiguous as to whether
derivative beneficiaries of F3 and F4 family preference petitions
are entitled to automatic conversion or priority date
retention. Because we also hold that the BIA’s interpretation
of § 1153(h)(3) is reasonable, we defer to it under Chevron.
Under that interpretation, automatic conversion and priority
date retention do not apply to F3 and F4 petitions. Therefore,
Appellants are not entitled to relief. The judgment of the district
court is AFFIRMED.
Costello v. Napolitano [also being called] DE OSORIO v. MAYORKAS
SEE: http://www.ca9.uscourts.gov/datastore/opinions/2011/09/02/09-56846.pdf
A small excerpt from the 23 page decision in this case:
In 2002, Congress enacted the CSPA to provide relief to
“aged out” alien children by allowing them either to maintain
“child” status longer, see 8 U.S.C. § 1153(h)(1), or to automatically
convert to a valid adult visa category while retaining
the priority date associated with their original petition, see
id. § 1153(h)(3). The issue before us is whether an aged-out
derivative beneficiary of an F3 petition (for married sons or
daughters of U.S. citizens) or F4 petition (for siblings of U.S.
citizens)—i.e., a grandchild or niece or nephew of a U.S.
citizen—is entitled to automatic conversion and priority date
retention, or either of them separately, under the CSPA.
**********
As the BIA recognized, protection from administrative
delays was highly significant to Congress. See Matter of
Wang, 25 I. & N. Dec. at 36-37 (noting that “the drive for the
legislation was the then-extensive administrative delays in the
processing of visa petitions”). While the Senate bill’s sponsor
expressed an intent to address oversubscription delays as well,
she focused only on children of LPRs, who could fall into the
F2A category. See 147 Cong. Rec. S3275-76 (daily ed. Apr.
2, 2001) (statement of Sen. Feinstein). Given that
§ 1153(h)(1) entitles all derivative children to relief from
administrative delays, we cannot say that the BIA’s interpretation
of § 1153(h)(3) is contrary to congressional intent sim-
ply because it affords additional relief only to children in the
F2A category.
[8] Finally, we point out that limiting § 1153(h)(3)’s applicability
to F2A petitions is “a reasonable policy choice for the
agency to make.” Chevron, 467 U.S. at 845. Applying
§ 1153(h)(3) to all derivative beneficiaries would result in a
fundamental change to the family preference scheme, because
it would effectively treat an aged-out derivative beneficiary of
an F3 or F4 petition as if he or she had been independently
entitled to his or her own priority date based on his or her status
as the grandchild, niece, or nephew of a citizen. However,
those relationships have never been recognized as qualifying
ones under U.S. immigration law. This same problem does
not arise for a derivative of an F2A petition because he or she
can be independently eligible for a priority date as the primary
beneficiary of an F2A petition. It is therefore not arbitrary or
otherwise unreasonable for the BIA’s interpretation of
§ 1153(h)(3) to draw the line where it does. This interpretation
warrants our deference under Chevron.
V
[9] We hold that § 1153(h)(3) is ambiguous as to whether
derivative beneficiaries of F3 and F4 family preference petitions
are entitled to automatic conversion or priority date
retention. Because we also hold that the BIA’s interpretation
of § 1153(h)(3) is reasonable, we defer to it under Chevron.
Under that interpretation, automatic conversion and priority
date retention do not apply to F3 and F4 petitions. Therefore,
Appellants are not entitled to relief. The judgment of the district
court is AFFIRMED.
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