Ninth Circuit Court of Appeals Overturns Board of Immigration Appeals Matter of Wang Decision

Ninth Circuit Court of Appeals Overturns Board of Immigration Appeals Matter of Wang Decision

Ninth Circuit Court of Appeals Overturns Board of Immigration Appeals Matter of Wang Decision

The Ninth Circuit Court of Appeals recently held in its decision of De Osorio v. Mayorkas that children who are listed as a “derivative” on a permanent residence application and who are under the age of 21 when listed as a “derivative,” should retain their space in line even if an immigration visa is issued after they turn 21.

The decision is significant as it allows those adult children listed as derivatives to receive a permanent resident card as per the original filing date as opposed to beginning a new immigration visa process subsequent to turning 21. This makes the process for the adult children much shorter and much more predictable.

The issue in De Osorio was whether children whose names are listed on visa petitions filed on behalf of their parents, or “derivatives,” can remain eligible to apply for a visa after turning 21 before the visa becomes available. Presently, there is a 480,000 annual cap for family immigrant petitions. Those subject to the cap are unmarried adult children of United States citizens, spouses and children under the age of 21 of green card holders, etc; however, immediate relatives, i.e. spouses, children, parents of US citizens, are exempt. The filing date of a petition is known as the “priority date,” or the wait time measured by the agency when determining when a petition will reach the front of the line of quota. In many instances, during this wait period, which is subject to numerous factors including processing delays by the agency, children “age out,” or turn 21 before the priority date becomes “current.” As children who turn 21 are no longer considered dependents of their parents on an immigration visa petition, they need an independent visa petition to immigrate to the US.

The Ninth Circuit illustrated the problem as follows:

For, example, U.S. citizen Adele files a [visa] petition on behalf of her adult son Aron, and includes Aron’s daughter Naira as a derivative beneficiary. By the time Aron receives a visa, Naira is over twenty-one. Adele can no longer petition on Naira’s behalf, as there is no qualifying relation- ship between a grandmother and her adult granddaughter. Once Aron becomes an LPR, Aron may file a [new visa] petition [in a different visa category] for his daughter Naira.

Similarly, U.S. citizen Adele files a [visa] petition for her sister Kristen, and includes Kristen’s daughter Sandy as a derivative beneficiary. If Sandy is over twenty-one when Kristen receives her visa, Adele cannot petition for Sandy, because Adele cannot petition for her adult niece. Kristen may file a [new visa] petition [in a different visa category] for her daughter Sandy.

The question here is whether the original [visa] petition[s] should be automatically converted to [the new visa petitions], and if the [new visa] petition[s] retain the priority date of the [original] petitions.

In 2001, Congress enacted the Child Status Protection Act (CSPA) to address the problem of those adult children who would “age out” after being listed as “derivatives” on visa petitions filed by family members on behalf of their parents. The CSPA states:

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) of this section, 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. 8 U.S.C. 1153(h)(3).

Thus, the CSPA enables cetain noncitizens’ children listed as “derivatives” on their parents’ visa petitions to retain a priority date even after turning 21 before the visa becomes available.

Contrary to the plain language of the CSPA, the Board of Immigration Appeals had held in Matter of Wang that the CSPA does not apply to a now-adult noncitizen who was previously listed as a derivative on a visa petition filed on behalf of the child’s parent. Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) Following Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), the Ninth Circuit rejected the Board’s decision, and applied the language of the CSPA to hold that now-adult noncitizens who were previously listed as a derivative on a visa petition filed on behalf of the child’s parent retain their priority date when a new visa petition is filed for them