Yesterday, the Justice Department placed the brakes on the dreams of thousands of intending young immigrants, including many DREAM Act eligible youth. It appealed the landmark Ninth Circuit Child Status Protection Act victory to the Supreme Court. The cert petition is available here.
On September 26, 2012, the U.S. Court of Appeals for the 9th Circuit, ruled that a Board of Immigration Appeals interpretation of the Child Status Protection Act (CSPA), improperly excluded a large class of young immigrants, including a lot of Dreamers, from being eligible for immediate lawful permanent residence, as in a green-card.In doing so, it joined the Fifth Circuit in rejecting the position of the BIA. The decision would have allowed many young people who were the derivative beneficiaries of previous petitions filed for them to apply for a green card, even if they were aged-out of the process after they turned 21. This was great news for many young people, including many Dreamers, who would no longer have to face lengthy separation from their families.
However, as a result of the appeal, that the Ninth Circuit decision is stayed and the stay continues until the Supreme Court denies hearing the case by the end of this term, or delivers a final disposition in the case. The entire process can take anywhere from 6 months to a couple more years, if not longer.
Put simply, everyone who applies for lawful permanent residency is assigned a priority date, which is akin to a number that places them in a long queue. However, as the long queue progresses towards the visa ticketing window, children turn over 21. As such, when they reach the visa window, they are told to go back to the end of another line, while their parents get granted lawful permanent residency. This separation is brutal, especially for people from Mexico, China, Philippines and India. Experts have estimated previously that it would take a Mexican son/daughter of U.S. permanent residents 115 years to immigrate under the USCIS interpretation of the law.
Under the lesser-known Section 3 of CSPA, codified at INA § 203(h)(3), the derivative beneficiary of a family, employment or diversity visa petition is entitled to keep their original priority date if they age out of the line, and apply it to a subsequent petition filed on their behalf. The USCIS has refused to follow the law and maintained that anyone who turns 21 while waiting for their priority date to become current has to go back to the end of the line and wait in another long line for permanent residency, effectively separating an adult child from her/his legal resident and U.S. citizen parents, sometimes forever.
As a result, contrary to the plain language of the Child Status Protection Act, lawful permanent resident and U.S. citizen parents will have to continue living without their adult children who are stuck abroad. Those adult children already here, many of whom are Dreamers, have to continue living in limbo, continue facing removal, and settle for second-class treatment.
Anyone who dares to believe in the myth of immigration reform is left to answer some hard questions–if the Obama Administration is so concerned about immigration reform, why does it continue its assault on immigrant families? If “family unity” is a critical principle for this Administration, why does it let the Office of Immigration Litigation continue to gut the Child Status Protection Act, which was the last good immigration bill to pass Congress?
As President Obama gets ready to launch an immigration push, it is his Justice Department, making the real moves behind the scenes. After all, actions matter more than words. And the Obama’s actions have said little about his commitment to true immigration reform — spread of the unlawful Secure Communities nationwide, presiding over the greatest growth in private immigrant detention, deporting record numbers of people, and now, continue separating legal permanent resident parents and U.S. citizens from their children, against the letter of the law.
That’s not really “comprehensive immigration reform.” Or is it?
(On May 11, 2012, DreamActivist filed an amicus brief with the U.S. Courts of Appeals for 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). This represented the first time that a Court heard directly from Dreamers on a question of statutory interpretation and public policy).