On May 12, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit in New York heard CSPA oral arguments regarding a case challenging the government’s restrictive interpretation of the Child Status Protection Act’s’s “automatic conversion” clause.
Both Attorney Scott Bratton and the Assistant U.S. Attorney were given ten minutes each to present their arguments.
Scott was kind enough to send me e-mail messages regarding the arguments. He enumerated some of the questions asked by the judges.
Since the District Court below had deferred to the BIA’s decision in Matter of Wang, the primary question before the Court of Appeals is whether the lower court was correct in doing so.
The Appeals Court uses the following Chevron two-step analysis in deciding whether to defer to the agency’s decision:
(1) “First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).
“If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute . . . Rather,
(2) [I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency’s answer is based on a permissible construction of the statute.”
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Regarding Chevron Step One, Scott reported the following:
“The panel seemed concerned that the statute was ambiguous. Their point was based on only one thing: there was no category for Cen to convert to at the time of the age-out. The issue was how could the ‘automatic conversion’ work if there is no category to convert to because there is no category for grandchildren of LPRs. The judges asked about how conversion could work if there is a new petitioner. One judge indicated that our interpretation was plausible but not the only one.”
However, because of the limited time, the judges did not have time to ask questions about Chevron Step Two. Is Matter of Wang based on a permissible construction of the statute? Scott argued that it is not, and we agree.
The automatic conversion clause, section 203(h)(3), states as follows:
“RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), 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.”
Like section 203(h)(1) which states the mathematical formula for CSPA petitions, subsection 3 uses the identical language regarding which petitions it applies to: “for purposes of subsections (a)(2)(A) and (d).”
Section 203(d) relates to derivative beneficiaries of the family-based, employment-based and lottery-based immigrant visa categories. Both the BIA are in agreement that section 203(h)(1) applies to all derivative beneficiaries, yet Matter of Wang concludes that “the language of section 203(h)(3) does not expressly state which petitions qualify for automatic conversion and retention of priority dates.”
We beg to differ. It is clear that both subsections apply to the same petitions.
Wang then purports to examine the legislative history of CSPA in attempting to discern the intent of Congress is enacting section 203(h)(3). After quoting various members of the House of Representatives, but not a single member of the Senate, the Board concludes that “we find that while the legislative record demonstrates a clear concern on the part of Congress to ameliorate the delays associated with the processing of visa petitions, there is no indication in the statutory language or legislative history of the CSPA that Congress intended to create a mechanism to avoid the natural consequence of a child aging out of a visa category because of the length of the visa line.”
The problem with this is that the section 203(h)(3) was not part of the original House bill, but was added to the bill by the Senate. Therefore, the Board erred by failing to consider the statement of Senator Feinstein when she introduced the Senate bill:
“The legislation I have introduced today would provide a child, whose timely filed application for a family-based, employment-based, or diversity visa was submitted before the child reached his or her 21st birthday, the opportunity to remain eligible for that visa until the visa becomes available…
“…a family whose child’s application for admission to the United States has been pending for years may be forced to leave that child behind either because the INS was unable to adjudicate the application before the child’s 21st birthday, or because growing immigration backlogs in the immigration visa category caused the visa to be unavailable before the child reached his 21st birthday. As a result, the child loses the right to admission to the United States. This is what is commonly known as ‘aging out.’ (Emphasis added)
Scott Bratton brought these all-important considerations to the Court’s attention both in his written briefs and in his oral arguments. Therefore, we are confident that under Chevron Step Two, the Court will refuse to defer to the Board’s decision in Matter of Wang.
We eagerly await the scheduling of Oral Arguments in the nationwide class action lawsuit currently pending before U.S. of Appeals for the 9th Circuit.
For those attorneys interested in CSPA and the pending lawsuits, I will be the discussion leader on the CSPA panel at the Annual Conference of the American Immigration Lawyers Association in San Diego, California (June 15-18). Also on the panel will be Mary Kenney, who wrote the excellent amicus curiae briefs for AILA and AIC before the 2nd and the 9th Circuits and Charles Wheeler, the author of the definitive book concerning the CSPA law.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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