On May 12, the U.S. Court of Appeals for the Second Circuit will hear oral arguments in the case of Li & Cen v. Novak. This case involves the “automatic conversion” clause of the Child Status Protection Act (CSPA). There is a similar case pending before the Court of Appeals in the Fifth Circuit, and we are awaiting oral arguments for our nationwide class action lawsuit on this same issue in the 9th Circuit.
The facts in Li & Cen are as follows: In 1994, Ms. Li’s father, a lawful permanent resident of the United States, submitted a visa petition (form I-130) to classify his unmarried daughter and his 14-year-old grandson, both PRC nationals, under the family-based 2B category. The visa petition was quickly approved, but by the time that the priority date became current in 2005, the grandson was 25-years-old and was forced to remain behind in China when his mother immigrated to the U.S.
Ms. Li filed a 2B visa petition for her son in 2008 and cited the “automatic conversion” clause of the Child Status Protection Act (CSPA), 8 U.S.C. 1153(c)(3). This section of law allows aged-out children like Mr. Cen to retain the priority date of the original petition and immigrate under the “appropriate category”. However, the USCIS refused to allow Mr. Cen to retain his 1994 priority date, and instead, assigned him a 2008 priority date. The current waiting time in the 2B category is approximately eight years, meaning that Mr. Cen, despite having waited in line since 1994 to become a permanent resident, would have to wait until 2016 in order to immigrate to the U.S., a total of 22 years. In addition, he would be prohibited from getting married prior to immigrating to the U.S. If he did so, his mother’s visa petition for him would be automatically terminated.
Although CSPA was enacted into law in 2002, the INS/USCIS has never issued regulations regarding the implementation of the law. By the time that the agency denied Ms. Li’s request that her son be allowed to retain his 1994 priority date, the agency had issued a number of memoranda explaining how they interpreted the law. It is worth noting that none of these memos refer to the automatic conversion clause. However, the Board of Immigration Appeals (BIA) had, issued two non-precedent decisions neither of which was appealed by the government, both of which would have allowed Mr. Cen to retain his 1994 priority date under the family-based 2B category.
Finallly, in 2009, after being sued in Federal Court, the BIA issued a precedent decision regarding the automatic conversion clause entitled Matter of Wang. This decision disregarded the Board’s two previous decisions and held, with minimal analysis, that the wording of the automatic conversion clause was “ambiguous” and that the legislative history indicated that CSPA was intended only to cure the affects of “administrative delays”, and did not apply when the delay was caused by backlogs in a person’s priority date.
I have previously written about the “four fallacies” of Matter of Wang, pointing out that the Board did not take the time to analyze the wording of the statute, mischaracterized CSPA’s legislative history, cited only those regulations which it believed supported its decision and disregarded numerous immigration laws and regulations which would have required it to reach a contrary conclusion.
The issue in Li & Cen is whether the U.S. District Court erred in finding that it was required to defer to the Board’s decision in Matter of Wang.
This past week, I read the briefs of the the petitioners and the government very carefully. The Assistant U.S. Attorneys were skillful and inventive in coming up with additional reasons to support the decision in Matter of Wang. However, it is clear that their analysis is almost totally absent from the reasoning of the Board in the Wang decision. For example, the Board concluded that CSPA was only meant to cure “administrative delays” in processing visa petitions, completely ignoring Senator Feinstein’s comments when she introduced CSPA in the Senate in 2001. The government’s brief, silently recognizes this obvious flaw, and makes a valiant, if flawed, attempt to argue that the Senator’s statement does not really mean what it says. However, the Court need not address arguments not raised by the Board. The issue before the Court is whether it must defer to Matter of Wang, a clearly erroneous decision.
As my colleague Scott Bratton, the attorney for Ms. Li and Mr. Cen states in his reply brief:
“Defendants argue throughout their brief that deference should be given to the Board’s decision in Wang, which Plaintiffs’ dispute. However, even if such deference should be given, this Court would be restricted to considering only the reasoning provided by the Agency in its decision and not alternate reasons in support of the Agency’s decision proposed by Defendants.”
We are eager to see what questions are asked by the Judges during the Oral Arguments on May 12. We are confident that this will be the beginning of the end for Matter of Wang. We trust that the Court will allow the long-dormant automatic conversion clause to become operational. If this happens, families long-separated because of the government’s overly-restrictive interpretation of the law will, at last, begin to reunite.
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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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