On Friday, May 11, 2012, with the help of the highly-regarded immigration firm of Benach Ragland LLP, we filed an amicus brief (“friend of the court”) with the Ninth Circuit in Cuellar de Osorio v. Mayorkas asking the Court to reject the Board of Immigration Appeals decision in Matter of Wang, which unnecessarily limited the class of individuals who could gain the benefits of the Child Status Protection Act (CSPA).
The lawsuit concerns 8 U.S.C. 1153(h)(3), which allows certain derivative beneficiaries to retain their priority date from a previous petition and apply it to a subsequent petition filed on their behalf. For example, a petition is filed by a U.S. citizen aunt for her sister, who has two children, and a priority date issued for the petition, which determines when the sister can adjust her status. The sister gains legal residency after waiting in line for many years for her priority date to become current, but the children turn 21, and “age out” of that petition, due to the huge backlog of cases. The Child Status Protection Act (CSPA) was devised to ameliorate the impact of “aging out” due to administrative delays and backlogs. The law recognizes that these aged-out derivative beneficiaries have waited in line for many years, and should be entitled to their original priority date. Using the original priority date for a new petition filed by the now legal resident parent for the “unmarried son or daughter” (F2B), would allow the aged out derivative beneficiaries to get their green cards shortly afterwards. However, USCIS has interpreted the CSPA to only apply to the F2A category, severely limiting the benefits of the law.
We recognize that “aging out” of family and employment based petitions is a huge problem, especially for young immigrant adults who have legal/U.S. citizen family members in the United States. Following our request for stories, we received hundreds of emails over the course of a couple days from all over the country. The brief that Benach Regland filed on our behalf recounts the stories of six Dreamers who have “aged-out” of eligibility for residence through the petitions that provided residence for their parents and siblings. The brief describes how the Board’s erroneous interpretation of the CSPA has resulted in a limbo-like state for these six Dreamers who were brought to the United States when they were minors, and who waited in long visa queues to immigrate with their parents only to age-out and “go to the back of the line.” In some cases, the “aged out” Dreamers are in deportation proceedings and can never adjust their status in this country due to the long backlogs in their new category.
The government is trying to argue that allowing these “aged out” Dreamers the right to claim their original date of filing would enable us to “cut in line.” Try telling that to someone like Antonio, who waited in line for 20 years, and aged out. His legal resident parents filed a new petition for him, but his new priority date will become current in 115 years. The idea that Antonio, after waiting in line for 20 years and getting aged out through no fault of his own, is now trying to “cut in line” by using his original priority date is simply ludicrous.
Should the 9th Circuit reject Matter of Wang, it will join the Fifth Circuit in rejecting the Board’s position, and it will allow many young people who were the derivative beneficiaries of previous petitions to apply for residence immediately taking advantage of the years they waited prior to their turning 21. It will also allow them to avoid the possibility of lengthy separation from their families, their country and their dreams for their future.
This case represents an opening of a new front for undocumented youth, who have so far effectively engaged the legislative and executive branches of government. We believe that the compelling personal stories in the brief filed with the court will make a significantly positive impact with judges on the Ninth Circuit. Our participation in this lawsuit marks the first time that “Dreamers” have petitioned a federal appeals court to fight for their right to live in this country. The battle over retention of priority dates tells us that we cannot depend solely on Congress and the President, especially when immigration regulations are dictated by agency enforcement and discretionary powers.
The Ninth Circuit will take up Cuellar de Osorio on June 19 in Pasadena, California. Ms. Amy Prokop is representing Ms. Cuellar de Osorio. In addition to DreamActivist, the American Immigration Lawyers Association & the Catholic Legal Immigration Network filed a brief as amicus curiae, which is also a must-read for anyone who wants to understand the math behind visa number allocations.
We’d like to extend a personal thank you for everyone who sent in their stories and to the law firm of Benach Ragland LLP for always standing by our families.
The DreamActivist brief was written by Prerna Lal, Andres Benach and Thomas Ragland.
