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Bloggings On Updates In Immigration Law

by Carl Shusterman

Editor's note: Here are the latest entries from Carl Shusterman's blog.

July 22, 2009

CSPA Update

A Federal Judge has certified a nationwide class in a challenge to the USCIS's restrictive interpretation of the "automatic conversion" clause in the Child Status Protection Act (CSPA) of 2002.  This opens the way for children who have "aged-out" to be reunited with their parents.

The USCIS has resisted implementing this important section of law for the past seven years. Just a few weeks ago, the Board of Immigration Appeals (BIA), in Matter of Wang, adopted the government's restrictive interpretation of the automatic conversion clause.

On July 16, Federal Judge James Selna (Central District, California), over government objections, made his ruling in the case of Costelo v. Chertoff.  The lawsuit, which challenges the government's restrictive reading  of the automatic conversion clause, had been put on hold for over one year because the government had argued that the issue would soon be decided by the BIA. Our law firm joined in submitting a amicus brief written by Mary Kenney, Esq. on behalf of AILA and AILF supporting the class certification in which we argued that the Court should not give deference to Matter of Wang since the law is clear on its face.

What is the automatic conversion clause?

It consists of a single sentence in CSPA which provides as follows (references to the statute omitted):

"RETENTION OF PRIORITY DATE- If the age of an alien is 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."

What does this mean in practice?

For example, a U.S. citizen petitions his brother and his family including their 10-year-old son in the summer of 1998. By the time that the priority date becomes "current" in 2009, the son has reached his 21st birthday. Even after subtracting the time that the visa petition was pending, he has aged-out.

The government's position is that the father has to re-petition the son under the 2B category (unmarried, adult sons and daughters of lawful permanent residents).  This means that despite the family having waited in line for 11 years to get their green cards, the parents would be forced to endure eight years of separation from their son.  If the son marries during this eight-year period, the petition would automatically be terminated.

Under CSPA's automatic conversion clause, the son is entitled to the "original priority date" which was in 1998. His 4th preference petition would be "converted to the appropriate category" which, since he is the unmarried son of a permanent resident, is the 2B category. Most persons with a 1998 priority date in the 2B category would be able to immediately immigrate to the U.S.

In terms of complexity, this is far from rocket science.

I wrote an article about the automatic conversion clause shortly after CSPA was signed into law in 2002.  Other immigration lawyers subsequently reached the same conclusion.  The BIA, in Matter of Garcia (2006), reached the same conclusion.  Unfortunately, the Board did not designate Matter of Garcia as a precedent. In terms of statutory analysis, it is very clear that the automatic conversion clause applies to derivative beneficiaries in the family-based, employment-based and diversity lottery categories.

However, despite the clear language of the law, the government stubbornly clings to the view that the automatic conversion clause simply codifies a regulation which applies only to derivative beneficiaries of 2A visa petitions.  Surprisingly, a three-judge panel of the BIA was persuaded by this argument in Matter of Wang.  The petitioner in Matter of Wang has recently filed a Motion for Reconsideration before the BIA.

In the Costelo class action lawsuit, the petitioners are preparing a motion for summary judgment which will soon be filed with the Court.  They will also request a preliminary injunction prohibiting the government from deporting persons who qualify for benefits under the automatic conversion clause.

We are confident that the Federal Courts will allow for this much maligned section of the law to take effect in the near future, thereby benefitting ten of thousands of immigrant families.

Given the irreparable harm suffered by immigrant families over the past seven years, we are
very pleased that the matter will be decided by a Federal Judge in the near future.  However, we are mindful of the fact that the Costelo class action will not resolve the matter of how the automatic conversion clause applies to derivative beneficiaries in employment-based cases.

The BIA has yet to decide Matter of Patel which concerns this issue. If the Board follows Matter of Wang, another lawsuit may be necessary to resolve this matter.

We link to the class certification and briefs in Costelo from our "CSPA" page at