Child Status Protection Act: The Class Action

Not all issues related to the Child Status Protection Act are settled law. There remain several unanswered questions. An example is the Matter of Xiuyi WANG. Many families in Michigan and throughout the US await some positive news on a class action law suit related to CSPA. In the Matter of Xiuyi WANG, the Board of Immigration Appeals found that certain automatic conversion/retention of priority date provisions of the Child Status Protection Act (CSPA) do not apply under certain circumstances.

Aging Out and Child Status Protection Act

In that case the court ruled that foreign national children who age out of eligibility for an immigrant visa as a derivative beneficiary in the fourth preference category will not retain their priority date under the CSPA when they are the beneficiary of a second preference petition later filed later by a different petitioner. Astonishingly, this decision — which punishes children for aging and only serves to divide families — has been upheld by the U.S. District Court.

Specifically, in the Matter of Wang, the foreign national’s child was only 10 years old when the original petition was filed naming her as a derivative beneficiary. However, an immigrant visa number did not become available until she was 22 years old and no longer eligible for derivative status. The father, upon receiving his green card, filed a second preference category petition on behalf of the daughter, who is now above 21 and is no longer a child, and requested the earlier priority date of the previous petition be assigned to her. The United States Citizenship and Immigration Services (USCIS) refused to apply the earlier priority date.

The decision in the Matter of Wang was appealed to the United States District Court in the Central District of California, Southern Division, but the Court granted the government’s motion for summary judgment. Encouragingly, the Court had certified a class on July 16, 2009 comprised of:

“[a]liens who became lawful permanent residents as primary beneficiaries of third- and fourth-preference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second-preference petitions on behalf of their aged-out unmarried sons and daughters, for whom Defendants have not granted automatic conversion or the retention of priority dates pursuant to § 203(h)(3).”

Nonetheless, on November 10, 2009, the Court held the decision in Matter of Wang was entitled to deference and, therefore, no issues of material fact existed for trial. The case has been appealed to the Ninth Circuit Court of Appeals.

The Purpose of Child Status Protection Act

Allowing decisions such as this to remain “good law” is only to enforce the separation of families and frustrate the entire purpose of the CSPA. Notably, the BIA’s decision in Matter of Wang discussed the legislative history of the CSPA and recognized that “[t]here was repeated discussion in the House, both before and after the Senate amendment, of the intention to allow for retention of child status ‘without displacing others who have been waiting patiently in other visa categories.’”

The child beneficiary in Matter of Wang had done nothing but wait patiently for 12 years for an immigrant visa to become available, only to be sent to the “back of the line” due to no fault of her own. We can only hope that the Ninth Circuit Court of Appeals will uphold the underlying purpose of the CSPA, find in favor of keeping families together, and not punish innocent children for the USCIS’ processing delays and the unavoidable passage of time. Stay tuned.

Shihab Burke, LLC, Attorneys At Law Can Help

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