Court Sides With ‘Aged Out’ Visa Applicants

(CN) - A full panel of the 9th Circuit ruled Wednesday that federal immigration law gives priority to children of legal residents that became adults while waiting years for a visa.

The San Francisco-based appeals court revived a class action brought by several visa applicants who have "aged-out" of a program that allowed their parents to sponsor them after the parents became legal permanent residents. Because the United States issues a limited number of such family-sponsored or "derivative" immigrant visas every year, enrolled children sometimes turn 21 while waiting.

That's what happened to Teresita Costelo, Lorenzo Ong and other class members, all of whom waited several years for their visa before age caught up with them and their names went to the back of the line.

Recognizing the severe backlog, in 2002 Congress passed the Child Status Protection Act (CSPA). Section 1153(h)(3) of the law allows some applicants who have aged-out of the process to "retain the original priority date issued upon receipt of the original petition," which effectively puts them back at the front of the line.

However, when the plaintiffs asked to keep their priority date, the U.S. Citizen and Immigration Service refused them, as did the Board of Immigration Appeals. Both agencies interpreted the statute to exclude "all derivative beneficiaries" from priority-date retention. The plaintiffs challenged this interpretation in a class action, but Presiding U.S. District Judge James Selna, in Riverside, deferred to the agencies' reading of what he considered to be an ambiguous paragraph. The issue then went before a three-judge panel of the 9th Circuit, which agreed with the lower court. An 11-judge, en banc panel agreed to review the case and reversed Wednesday in a divided ruling.

"We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries," wrote Judge Mary Murguia for the six-judge majority. "The BIA's interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference."

The panel reversed the district court's grant of summary judgement to the government and remanded the case back to Riverside.

Four judges, including Chief Judge Alex Kozinski, joined Judge Milan Smith's dissent arguing for deference.

"Other courts, including the original three-judge panel in this case, concluded that § 1153(h)(3) is ambiguous, and that the Board of Immigration Appeals's (BIA) decision is entitled to deference under Chevron," Smith wrote, noting that last year the 2nd Circuit "held that § 1153(h)(3) means the exact opposite of what the majority holds.""I would hold that 8 U.S.C. § 1153(h)(3) is ambiguous because it contains language simultaneously including and excluding derivative beneficiaries of F3 and F4 visa petitions from the benefits of the Child Status Protection Act," Smith wrote.

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