Supreme Court Narrowly Interprets CSPA26 Jun 2014
The United States Supreme Court issued a long-awaited decision on June 9, 2014, interpreting the “automatic conversion” provision of the Child Status Protection Act (CSPA). Unfortunately, the Court sided with the restrictive CSPA interpretation of the U.S. Department of Homeland Security (DHS), and overruled a more liberal interpretation that had been adopted by the Ninth Circuit Court of Appeals in California. This decision means that a child who has “aged out” as a dependent of a parent’s permanent resident (commonly, “green card”) case will typically continue to experience lengthy delays before obtaining a green card.
Conversion and Date Retention
The most well-known portion of the CSPA – which was not under review by the Supreme Court in this case – provides a formula for determining the “CSPA age” of a dependent (child) beneficiary. Under the formula, the beneficiary can deduct the number of days that a petition is pending (being processed) at the USCIS from their calendar age. This allows a beneficiary to be considered under the age of 21 for immigration purposes, even after his/her 21st birthday. This formula and its application are explained in Part 1 of the MurthyDotCom NewsBrief, Child Status Protection Act Basics (28.Jun.2013).
CSPA Provision in Question
The part of the CSPA that the Supreme Court addressed in this case deals with situations in which, even after applying the CSPA formula, the individual is still considered to be 21 years of age or older. Under these conditions, a provision in the CSPA still potentially could provide a remedy by converting the case to a different category and allowing the beneficiary “child” to retain the original priority date. It states, as follows:
RETENTION OF PRIORITY DATE- If the age of an alien is determined … to be 21 years of age or older … the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.
Differing Interpretations of Provision
For many years, immigration advocates have argued in favor of a broad interpretation of this portion of the CSPA. As it relates to this case, a broad interpretation would mean having it apply to a variety of different family-based green card categories. The DHS, however, has adopted a very narrow interpretation of this section, limiting it exclusively to situations in which a family-based, second preference A (FB2A) petition, which is for a minor child of a green card holder, can be converted to a family-based, second preference B (FB2B) case, which covers the adult child of a green card holder. Here, the Supreme Court was charged with determining whether the DHS interpretation was appropriate, or if a broader interpretation was required under the law. A preview of this Supreme Court case, including a more detailed discussion of the issues being addressed by the Court, is available in the MurthyDotCom NewsBrief, U.S. Supreme Court on the Child Status Protection Act (12.Dec.2013).
Supreme Court Sides with Gov’t, Leaves Door Open for Broader Interpretation
Unfortunately, the Supreme Court concluded that the language in this portion of the CSPA is sufficiently vague that the restrictive interpretation by the DHS is a “textually reasonable construction,” and therefore permissible. In short, this holding maintains the status quo. Still, one positive aspect of the decision is that, in finding the provision to be ambiguous, the Court ruled that the current DHS interpretation is not a required CSPA interpretation. In other words, the Supreme Court noted that the DHS could choose to reconsider this provision of the CSPA in the future and perhaps come to a broader understanding of what types of cases are covered by it. However, as of the time of this writing, there has been no indication that the DHS plans to alter how this provision is being interpreted.
Status Quo Maintained
Since the Court sided with the DHS, there is no change in the interpretation of CSPA. This decision does not impact those who have been deemed eligible for benefits under the CSPA, but it does means that people who hoped to preserve family unity via a more liberal reading of this law are not going to find any relief under the CSPA. The Murthy Law Firm is available to assist foreign nationals who have questions about whether the CSPA may apply to a particular situation, and/or what other options may be available.
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