Aging out

[JustWaiting]

JAY2 I sent you a personal message

[cloud9]

Newbie here. From philippines. We are under f4 category. My aunt petition my mom


details:

DOB: Nov. 1986
Petition Filed: March 15, 1990
Petition approved: May 14, 1991
Case Current: Aug 2010 (phil)

Based on the cspa I already aged out. Is there anything else that we can do? We called NVC regarding our issue but she told me that we will go with my mom during the interview because the consulate officer has the final say for the aged out derivative. Help me guys!! The NVC already sent the letter for choice of agent and affidavit of support. Were still waiting for that mail.

[jw44]

Have you guys noticed the quick processing of priority dates the past months?

[dan83]

Governments Brief: Defendants-Appellees' Brief in Costelo (August 16, 2010)
https://docs.google.com/viewer?url=http://www.shusterman.com/pdf/costeloreplybrief81610.pdf

[Munish]

Have you guys noticed the quick processing of priority dates the past months?

Yes, I have. So much so that I have started a new thread (http://expatsvoice.org/forum/showthread.php?p=79886) on the subject.

[JustWaiting]

Jay2 your check messages

[tex8]

An Immigration Update ( September 2010) by Carl Shusterman. See Item 2 for CSPA and Item 1 for Priority dates acceleration. Check it out on this link:
http://shusterman.com/newsletterusimmigrationseptember2010.html#1

[jayd_lowrider]

With VB going fast on F2B. Its Sep. 2002 for Oct. 2010, You are now eligible to immigrate with your family.

Congratulations!
:cool:


Tearfully eyed, I remember going g to the mall with brother as shopped for a pair of sandals, after which my brother and I shared a meal at the local Kenny Rogers Roaster’s at the local mall. It was the last meal I remember that my brother and I sat together and ate out, it. I remember filing for a leave of absence so I can accompany my family, my mom, my dad, my brother to the airport. Sadly I could not board that plane and I was left alone. This was the last time we were together as a family.

Seven years…. It has been almost seven years … Since then my brother, studied, graduated, earned a license as a nurse and had a son. Since then my mother has done what she could to visit me ever other year and my father had visited me six years ago.

Do I still know them… as in know them as FAMILY? The years of separation has caused me and my family incalculable suffering. Can a cold and heartless bureaucrat answer my question? Who grieves more, the mother longing for her son or the son longing for his family?

To mothers who yearn to be with their off-springs, to all sons and daughters yearning to be with their families my heart goes with you. For the longest time I have tried to distance my self from the seemingly empty abyss of sadness and hopelessness. Reading your post made me realize that I do not suffer alone.

It was in 1977 when my father was petitioned, it was in 1997 when a priority date was released. I should have immigrated with my family as a derivative beneficiary of my father‘s petition in 1999 but I aged out as the documents were processed. My father filed a petition in my behalf on 2000 as a son twenty one years old and above. In 2006 my family naturalized and became citizens.

Why must red tape interfere with the very spirit of the law?

Please keep me posted on the status of your cases, my mother is on her way to meet a lawyer and discuss the merits of my case.

[JustWaiting]

The Final Reply Brief for the Child Status Protection Act is due today, but does anybody have any idea when the oral argument is scheduled?

[lvin]

Finally it looks like we are getting some where with these decisions in regards to our well deserved C.S.P.A. benefit.

check this out
http://shusterman.com/pdf/murillo.pdf

[JustWaiting]

I also saw the new post on the shusterman website under BIA decisions. This further bolsters our argument in the Child Status Protection Act class action lawsuit a little more. (It's like a tiny win) :)

[jw44]

Any significant developments about CSPA case lately? Any news about the speed of priority dates for the following months?

JustWaiting, I replied to your PM.

[JustWaiting]

I replied, hopefully that helps!

[tirth]

Hi All -
I am also in the same situation. My legal counsel says that the next step is scheduling of oral argument, if at all. Lets see what happens.. it has been a long wait

[jw44]

F2B (Philippines) - from Sept. 2002 to March 2000!
http://travel.state.gov/visa/bulletin/bulletin_1360.html

:mad:

[dan83]

Hi Guys,
Do anyone of u know when the oral argument on the 9th circuit case is going to be held on, anyone dealing with the lawyers...do you guys have any news.
Thank you

[fahad308]

Hi Guys,
Do anyone of u know when the oral argument on the 9th circuit case is going to be held on, anyone dealing with the lawyers...do you guys have any news.
Thank you

They are trying to get the date early next year before April.

[JustWaiting]

It's the courts that set the date of the oral argument, not the lawyers.:)

[fahad308]

It's the courts that set the date of the oral argument, not the lawyers.:)

Well it looks like the paralegal has been giving me incorrect information all the time now.
One more thing i wanna ask u, just wanna make sure i am not missing anything here......the lawsuit is for aged out children regardless of if they "sought to acquire" status within one year of visa availability coz my mom filed DS-230 for my sister within one year of the priority date became current but they still didnt give her the visa. Anyone in the same situation?
Thanks

[fahad308]

Well it looks like the paralegal has been giving me incorrect information all the time now.
One more thing i wanna ask u, just wanna make sure i am not missing anything here......the lawsuit is for aged out children regardless of if they "sought to acquire" status within one year of visa availability coz my mom filed DS-230 for my sister within one year of the priority date became current but they still didnt give her the visa. Anyone in the same situation?
Thanks

And she also filed I-130 within one year.

[tirth]

Hi All -

Any updates to this lawsuit? Seems like things are not moving forward. Many of us might be waiting to get married once there is definitive ruling on this ...:)

[dan83]

Hi guys,
This thread has no posts for while. did anyone have any updates...
I talked to my lawyer and he said they have no news about the court hearing yet...Is this true?
Thank you

[tirth]

dan83 - I am also curious to know what is going on. No one has mentioned anything about this very important lawsuit in last few months. I thought they were suppose to have oral argument sometime in April but no news yet.

Thanks for keeping this thread alive.

[tex8]

where are all the aged-out gone?

[tirth]

I guess everyone is loosing hope.. I mean you cant keep on waiting forever.. we need to move on with our lives.. I talked to my lawyer and he told me that if I get married, my petition will automatically cancel. I knew this but with no progress in this lawsuit, I want to move on with my life as well. I don't want to make it an infinite waiting game..

[dan83]

Hi Guys,
Here is the update on one of the cases recently on CSPA Cases on Employment based adjustment.
https://docs.google.com/a/cenizo.com/viewer?a=v&pid=explorer&chrome=true&srcid=0BwcAwi9NiXU3YTZlMzQ0ZDgtODlmMy00MjI2LWI3MWY tNzZhODFiNDkxYzgx&hl=en

[Susie]

where are all the aged-out gone?

My son is an aged out, although he should not have been

My son was under 21 years old and I 824 to follow to join was submitted before his 21st birthday.

The USCIS made errors, but then very suddenly my husband (The petitioner) passed away before son got his green card.


If the USCIS make errors they are supposed to correct them.

However. I went to Tampa mid district court and all the judge and USCIS kept saying the case is dead because of husband, they would not even look to see if my son was protected under cspa but had my husband not passed then son would have got green card

Also when to the Atlanta court of appeals, the same thing happened, got thrown out

I thought I could assume the case and carry on??

Anyway was advised to file I 130 but as son is over 21 it could take 10 more years to be re united.

I have asked my congressmen and senators to write a private bill for my son, this is something that can be done, but am told they do not have the resourses

Anyone got any suggestions?

[Susie]

I guess everyone is loosing hope.. I mean you cant keep on waiting forever.. we need to move on with our lives.. I talked to my lawyer and he told me that if I get married, my petition will automatically cancel. I knew this but with no progress in this lawsuit, I want to move on with my life as well. I don't want to make it an infinite waiting game..

I know exactly how you feel as my son has put is life on hold waiting to get his green card

What about writing a letter from expatsvoice, to as many congressmen, senator's, judiciary committee, president and others as we can?? I am not too good at writing these sorts of letters so if anyone could post here their thoughts on the matter. There MUST be family reunification, common sense and compassion on a case by case basis

As I said my so has already been in the waiting queue for 10 years and now it will be another 10 years !! family based petitions are so backlogged

[fahad308]

Hi Guys,
Here is the update on one of the cases recently on CSPA Cases on Employment based adjustment.
https://docs.google.com/a/cenizo.com/viewer?a=v&pid=explorer&chrome=true&srcid=0BwcAwi9NiXU3YTZlMzQ0ZDgtODlmMy00MjI2LWI3MWY tNzZhODFiNDkxYzgx&hl=en

so this judge granted AOS to this guy and our judge declined....what the heck.....but this gives some hope at least.

[fahad308]

I know exactly how you feel as my son has put is life on hold waiting to get his green card

What about writing a letter from expatsvoice, to as many congressmen, senator's, judiciary committee, president and others as we can?? I am not too good at writing these sorts of letters so if anyone could post here their thoughts on the matter. There MUST be family reunification, common sense and compassion on a case by case basis

As I said my so has already been in the waiting queue for 10 years and now it will be another 10 years !! family based petitions are so backlogged

I wish that could help....i tried it but never got a response from our senator

[Susie]

I wish that could help....i tried it but never got a response from our senator

I was thinking of a joint letter direct to Obama, explaining the hardship legal immigrants go through and that family reunification must become a top priority


Blood is thicker than water so should have preference over the illegal situation

[Susie]

Just noticed this thread has had 128,433 views. Maybe we should send a copy of the entire thread to Obama

All is needed is a CV (compassionate visa) on a case by case basis and sure this could be simple to arrange, go to local service center all we need is for Obama to understand what is going on despite the CSPA law..

[Munish]

A difficult situation for many here, but may be the best option is to wait it out patiently and get on with your life in the meantime? My application became current anyway a few months ago (it was a five and a half year wait since my application was with the NVC before it became current so for some of you who have been waiting for years your number may be near current (keep looking at the visa bulletin - my application became current before the date stated in the bulletin by about five months)).

My parents live out there but I am not convinced the USA is for me now that things have moved forward in my personal life and career. As a result I am slowing things down (e.g. taking my time with the DS-230 etc to prolong the time to getting a visa and then will probably wait till near the end of the visa valid date before entering the USA and getting my green card, and then probably will apply for permission to stay outside the USA for a couple of years, and the may be the USA may be a viable option). I would say for those that are "waiting" focus on your life now if you can create or find opportunities for yourself (which may not be an easy thing to do or possible), but probably the least worst of a number of bad options (or may be if you're more positive minded, a great option).

I think a lot of people move to the USA and don't look back. Others have a different view (my Parents may in future come back to the UK as I think they prefer it here in any case). For me, I've lived in the USA so it's partly a case of been there done that, so it's quite easy for me to take this more pragmatic approach.

Good luck to you all in any case!

[tex8]

CARL SHUSTERMAN'S UPDATE MAY 2011

1. Oral Arguments Scheduled Regarding CSPA’s Automatic Conversion Clause
On May 12, the U.S. Court of Appeals for the Second Circuit will hear oral arguments in the case of Li & Cen v. Novak. This case involves the “automatic conversion” clause of the Child Status Protection Act (CSPA). There is a similar case pending before the Court of Appeals in the Fifth Circuit, and we are awaiting oral arguments for our lawsuit on this same issue in the 9th Circuit.
The facts in Li & Cen are as follows: In 1994, Ms. Li’s father, a lawful permanent resident of the United States, submitted a visa petition (form I-130) to classify his unmarried daughter and his 14-year-old grandson, both PRC nationals, under the family-based 2B category. The visa petition was quickly approved, but by the time that the priority date became current in 2005, the grandson was 25-years-old and was forced to remain behind in China when his mother immigrated to the U.S.
Ms. Li filed a 2B visa petition for her son in 2008 and cited the “automatic conversion” clause of the Child Status Protection Act (CSPA), 8 U.S.C. 1153(c)(3). This section of law allows aged-out children like Mr. Cen to retain the priority date of the original petition and immigrate under the “appropriate category”. However, the USCIS refused to allow Mr. Cen to retain his 1994 priority date, and instead, assigned him a 2008 priority date. The current waiting time in the 2B category is approximately eight years, meaning that Mr. Cen, despite having waited in line since 1994 to become a permanent resident, would have to wait until 2016 in order to immigrate to the U.S., a total of 22 years. In addition, he would be prohibited from getting married prior to immigrating to the U.S. If he did so, his mother’s visa petition for him would be automatically terminated.
Although CSPA was enacted into law in 2002, the INS/USCIS has never issued regulations regarding the implementation of the law. By the time that the agency denied Ms. Li’s request that her son be allowed to retain his 1994 priority date, the agency had issued a number of memoranda explaining how they interpreted the law. It is worth noting that none of these memos refer to the automatic conversion clause. However, the Board of Immigration Appeals (BIA) had, issued two non-precedent decisions neither of which was appealed by the government, both of which would have allowed Mr. Cen to retain his 1994 priority date under the family-based 2B category.
Finally, in 2009, after being sued in Federal Court, the BIA issued a precedent decision regarding the automatic conversion clause entitled Matter of Wang. This decision disregarded the Board’s two previous decisions and held, with minimal analysis, that the wording of the automatic conversion clause was “ambiguous” and that the legislative history indicated that CSPA was intended only to cure the affects of “administrative delays”, and did not apply when the delay was caused by backlogs in a person’s priority date.
I have previously written about the “four fallacies” of Matter of Wang, pointing out that the Board did not take the time to analyze the wording of the statute, mischaracterized CSPA’s legislative history, cited only those regulations which it believed supported its decision and disregarded numerous immigration laws and regulations which would have required it to reach a contrary conclusion.
The issue in Li & Cen is whether the U.S. District Court erred in finding that it was required to defer to the Board’s decision in Matter of Wang.
This past week, I read the briefs of the petitioners and the government very carefully. The Assistant U.S. Attorneys were skillful and inventive in coming up with additional reasons to support the decision in Matter of Wang. However, it is clear that their analysis is almost totally absent from the reasoning of the Board in the Wang decision. For example, the Board concluded that CSPA was only meant to cure “administrative delays” in processing visa petitions, completely ignoring Senator Feinstein’s comments when she introduced CSPA in the Senate in 2001. The government’s brief, silently recognizes this obvious flaw, and makes a valiant, if flawed, attempt to argue that the Senator’s statement does not really mean what it says. However, the Court need not address arguments not raised by the Board. The issue before the Court is whether it must defer to Matter of Wang, a clearly erroneous decision.
As my colleague Scott Bratton, the attorney for Ms. Li and Mr. Cen states in his reply brief:
“Defendants argue throughout their brief that deference should be given to the Board’s decision in Wang, which Plaintiffs’ dispute. However, even if such deference should be given, this Court would be restricted to considering only the reasoning provided by the Agency in its decision and not alternate reasons in support of the Agency’s decision proposed by Defendants.”
We are eager to see what questions are asked by the Judges during the Oral Arguments on May 12. We are confident that this will be the beginning of the end for Matter of Wang. We trust that the Court will allow the long-dormant automatic conversion clause to become operational. If this happens, families long-separated because of the government’s overly-restrictive interpretation of the law will, at last, begin to reunite.

9. CSPA: Immigration Judge Distinguishes Matter of Wang
While waiting for the 9th Circuit Court of Appeals to schedule oral arguments in the class action lawsuit seeking to overturn the decision of the Board of Immigration Appeals in Matter of Wang, I recently came across a decision of an Immigration Judge which distinguishes Matter of Wang and allows an “aged-out” son of permanent residents to adjust his status in the U.S.
This decision may be of assistance to certain families who are facing separation because of Matter of Wang.
The case is Matter of Azam decided by U.S. Immigration Judge Gabriel C. Videla on February 16, 2011.
Mr. Azam was born in Bangladesh on May 26, 1984. He was admitted to the U.S. as a B-2 visitor on September 9, 1993. He and his parents overstayed their visitor status.
On April 30, 2001, an application for labor certification was filed on behalf of Mr. Azam’s father, thereby rendering Mr. Azam eligible to adjust his status to permanent resident under section 245(i). However, the application languished at the Labor Department until July 19, 2006, by which time Mr. Azam had turned 21 years of age.
In the meantime, Mr. Azam applied, as required, for Special Registration and was placed under removal proceedings. For the next few years, his case bounced back and forth between the Immigration Judge and the BIA.
Mr. Azam’s parents were able to adjust their status in 2008, based on the approved labor certificate and I-140, to permanent residents. The next year, his father submitted an immigration visa petition (form I-130) on his behalf under the family-based 2B category.
Section 203(h)(3) of the Immigration and Nationality Act provides that “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.”
Matter of Wang attempts to limit the scope of this section of law to cases where there are “administrative processing delays” on the part of the government, and not to consider delays which result from the State Department Visa Bulletin.
In Mr. Azam’s case, the length of time that the I-140 visa petition was pending was less than one year. However, the Immigration Judge distinguished Matter of Wang which involved a family-based visa petition as follows:
“However, the instant case should be easily distinguished from Wang, not only because it pertains to the allocation of visas in the employment-based rather than the family-based context, but also because it is arguably an emblematic case in which ’administrative processing delays’ directly resulted in Respondent losing his eligibility as a derivative beneficiary.”
The Immigration Judge points out that when the application for labor certification was filed with the Labor Department, Mr. Azam was only 16 years old, but by the time it was approved, he was over 21 years of age. He states that:
“…lengthy processing time makes eminently clear the extraordinary administrative delays that occurred in this case (were) the exact sort of delays the CSPA was designed to remedy.”
Therefore, the Immigration Judge approved Mr. Azam’s application for adjustment of status under the 2B family preference category using the original priority date of April 30, 2001.
No doubt the government will appeal the Judge’s ruling. Hopefully, the BIA will not quickly act upon this appeal since the Board has refrained from ruling on an employment-based CSPA case, Matter of Patel, for some years now.
We are confident that if the BIA holds off ruling on Mr. Azam’s case for a year or more, the Federal Courts will rule that Matter of Wang is no longer entitled to deference.

[tex8]

Latest on CSPA from Carl S. Shusterman.

4. CSPA: Oral Arguments in the 2nd Circuit



On May 12, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit in New York heard oral arguments regarding a case challenging the government’s restrictive interpretation of the CSPA‘s “automatic conversion” clause.

Both Attorney Scott Bratton and the Assistant U.S. Attorney were given ten minutes each to present their arguments.

Scott was kind enough to send me e-mail messages regarding the arguments. He enumerated some of the questions asked by the judges.

Since the District Court below had deferred to the BIA’s decision in Matter of Wang, the primary question before the Court of Appeals is whether the lower court was correct in doing so.

The Appeals Court uses the following Chevron two-step analysis in deciding whether to defer to the agency’s decision:

(1) “First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A. v. NRDC, 467 U.S. 837, 842-843 (1984).

“If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute . . . Rather,

(2) [I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Regarding Chevron Step One, Scott reported the following:

“The panel seemed concerned that the statute was ambiguous. Their point was based on only one thing: there was no category for Cen to convert to at the time of the age-out. The issue was how could the ‘automatic conversion’ work if there is no category to convert to because there is no category for grandchildren of LPRs. The judges asked about how conversion could work if there is a new petitioner. One judge indicated that our interpretation was plausible but not the only one.”

However, because of the limited time, the judges did not have time to ask questions about Chevron Step Two. Is Matter of Wang based on a permissible construction of the statute? Scott argued that it is not, and we agree.

The automatic conversion clause, section 203(h)(3), states as follows:

“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), 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.”

Like section 203(h)(1) which states the mathematical formula for CSPA petitions, subsection 3 uses the identical language regarding which petitions it applies to: “for purposes of subsections (a)(2)(A) and (d).”

Section 203(d) relates to derivative beneficiaries of the family-based, employment-based and lottery-based immigrant visa categories. Both the USCIS and the BIA are in agreement that section 203(h)(1) applies to all derivative beneficiaries, yet Matter of Wang concludes that “the language of section 203(h)(3) does not expressly state which petitions qualify for automatic conversion and retention of priority dates.”

We beg to differ. It is crystal clear that both subsections apply to exactly the same set of petitions.

Wang then examines the legislative history of CSPA in attempting to discern the intent of Congress in enacting section 203(h)(3). After quoting various members of the House of Representatives, but not a single member of the Senate, the Board concludes that “we find that while the legislative record demonstrates a clear concern on the part of Congress to ameliorate the delays associated with the processing of visa petitions, there is no indication in the statutory language or legislative history of the CSPA that Congress intended to create a mechanism to avoid the natural consequence of a child aging out of a visa category because of the length of the visa line.”

The problem with this is that section 203(h)(3) was not part of the original House bill, but was added to the bill by the Senate. Therefore, the Board erred by failing to consider the statement of Senator Feinstein when she introduced the Senate bill:

“The legislation I have introduced today would provide a child, whose timely filed application for a family-based, employment-based, or diversity visa was submitted before the child reached his or her 21st birthday, the opportunity to remain eligible for that visa until the visa becomes available…

“…a family whose child’s application for admission to the United States has been pending for years may be forced to leave that child behind either because the INS was unable to adjudicate the application before the child’s 21st birthday, or because growing immigration backlogs in the immigration visa category caused the visa to be unavailable before the child reached his 21st birthday. As a result, the child loses the right to admission to the United States. This is what is commonly known as ‘aging out.’ (Emphasis added)

Scott Bratton brought these all-important considerations to the Court’s attention both in his written briefs and in his oral arguments. Therefore, we are confident that under Chevron Step Two, the Court will refuse to defer to the Board’s decision in Matter of Wang.

We eagerly await the scheduling of Oral Arguments in the nationwide class action lawsuit currently pending before the U.S. Court of Appeals for the 9th Circuit.

For those attorneys interested in CSPA and the pending lawsuits, I will be the discussion leader on the CSPA panel at the Annual Conference of the American Immigration Lawyers Association in San Diego, California (June 15-18). Also on the panel will be Mary Kenney, who wrote the excellent amicus curiae briefs for AILA and AIC before the 2nd and the 9th Circuits and Charles Wheeler, the author of the definitive book concerning the CSPA law.

[chericka]

what is the meaning of?????
Section 203(h)(3) of the Child Status Protection Act


If I am Age out.. 21 and above

what are the dates that i need to know to be retained as below 21????????

is approval notice Age enough?

[JustWaiting]

The 9th Circuit Court of Appeals has scheduled Oral Arguments in the nationwide class action lawsuit for July 15.

This case should resolve the question as to the proper interpretation of CSPA's "automatic conversion" clause for persons who have "aged-out".

[JustWaiting]

The 9th Circuit Court of Appeals has scheduled Oral Arguments in the nationwide class action lawsuit for July 15.

This case should resolve the question as to the proper interpretation of CSPA's "automatic conversion" clause for persons who have "aged-out".


http://www.ca9.uscourts.gov/datastore/calendaring/2011/06/02/npa07_11.pdf

[jay2]

http://www.ca2.uscourts.gov/decisions/isysquery/9612d305-f3a3-41dc-bb82-dd7632b34a6f/1/doc/10-2560_opn.pdf

CSPA in the 2nd Circuit
July 5

The second circuit court of appeals has published a decision regarding the CSPA.

The decision published on June 30, 2011, the Second Circuit held that the Child Status Protection Act (INA §203(h)(3)) does not entitle an alien to retain the priority date of an aged-out family preference petition if the petition cannot be “converted to [an] appropriate category.” Li v. Renaud, 6/30/11

[jw44]

another setback!?! :mad:

hopefully, 9th circuit will be in our favor come july 15. :)

[tex8]

another setback!?! :mad:

hopefully, 9th circuit will be in our favor come july 15. :)

for those who wanted to read the contents, go to this link:
http://www.rreeves.com/pdf/CSPA-May-2010-Brief.pdf :)

[wisewitch]

Does anyone know what happens after oral arguments? Will we know (one way or another) after today? I am not familiar with the appeals process and I am just soooo tired of waiting. It's been 12 years now. :(

[Susie]

Does anyone know what happens after oral arguments? Will we know (one way or another) after today? I am not familiar with the appeals process and I am just soooo tired of waiting. It's been 12 years now. :(

Hi

Sorry but there is no telling, when I went to the circuit court of appeals I was told the same day. Lets hope it will not be too much longer and you win

Sadly my husband passed whilst the cspa was in process so they denied the case as petitioner had passed even though we could prove the USCIS make mistakes and the reason son did not get his green card the same time as the rest of my family. This system really does suck especially when I think about the millions of illegals working, not paying taxes yet able to somehow get by

[wisewitch]

Really sorry to hear about your husband Susie. Such an awful thing to happen. :(
It really is not fair. We played by the rules and what do we get for it? Everyone keeps talking about the illegal aliens but no one talks about how screwed up the system is for those trying to do the right thing!
My parents and my little brother are all citizens now but I still have to wait at least 3-4 years before numbers become available. I was 16 when we immigrated (with my mom's H1B). We applied in 2000 and with the Labor Certification back logs, the case wasn't approved until 2006! I finished high school, college and completed my Masters in the U.S. All my friends are in the U.S. My family is in the U.S. My life is in the U.S.
And to add insult to injury, I can't even visit them because they won't grant me a visitor visa since I previously applied for residency. So very frustrating!

[wisewitch]

I am not sure what occurred in the 2nd circuit and the 9th circuit court of appeals, but the 5th circuit seem to understand the CSPA very well

check this link out

http://www.ca5.uscourts.gov/OralArgRecordings/10/10-60373_4-28-2011.wma

I wasn't even aware there was a case in the 5th circuit. I like the lawyer in this much better. I listened to the audio link of Nancy Miller's argument for the 9th circuit and I found it weak. She faltered when the judges questioned her about the ambiguities in the law. The woman that argued for the government was much clearer. Still I have to have hope or I will go crazy.

When did this hearing in the 5th circuit take place? I am guessing it is not a class action case though or we would have heard about it?

[jay2]

I wasn't even aware there was a case in the 5th circuit. I like the lawyer in this much better. I listened to the audio link of Nancy Miller's argument for the 9th circuit and I found it weak. She faltered when the judges questioned her about the ambiguities in the law. The woman that argued for the government was much clearer. Still I have to have hope or I will go crazy.

When did this hearing in the 5th circuit take place? I am guessing it is not a class action case though or we would have heard about it?

Yes, this case counsel was Atty. Rushton, the lawyer who represented Maria Garcia in the unprecedented case against USCIS decided by the Board of Immigration where she was allowed to convert and retain the visa petition priority date filed on her behalf as a derivative of her mother by her US citizen aunt. vis-a-vis

I think this argument took place on April 2011.

Do you have the audio link at 9th Circuit Court of Appeals argued by R&A?

[tex8]

another setback!?! :mad:

hopefully, 9th circuit will be in our favor come july 15. :)

apparently not in our favor. It may go up to Supreme Court. Read on this link:
http://shusterman.com/2011/07/cspas-automatic-conversion-clause-headed-for-the-supreme-court.html

[tex8]

apparently not in our favor. It may go up to Supreme Court. Read on this link:
http://shusterman.com/2011/07/cspas-automatic-conversion-clause-headed-for-the-supreme-court.html

Here is the audio link: http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000007823

[dan83]

Here is the audio link: http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000007823

What happens to the aged out children whose retention of priority date application was denied and then parents naturalize, can we apply for the retention of the priority date for F1 category or is it the same as the other, because in the hearing or in any drafts they never mentioned anything about the F1 category people.

[Susie]

What happens to the aged out children whose retention of priority date application was denied and then parents naturalize, can we apply for the retention of the priority date for F1 category or is it the same as the other, because in the hearing or in any drafts they never mentioned anything about the F1 category people.

I am only guessing here but I think they would need to file I 130 and if they do get citizenship they wait is about 3 years less.

When my husband died, as I said the case was denied/closed so I had to file I 130 with a wait time of about 6 or more years

Think I am going to book an info pass to beg or whatever it takes for them to retain my sons original priority date. and ask they write my story to the director of the service center and Obama, For a compassionate green card

[tex8]

Check this latest decision:
http://shusterman.com/pdf/9thcircuitdecisionCSPA.pdf

[jay2]

US Court of Appeals for the Fifth Circuit
Favorable CSPA Retention Case
September 8, 2011
http://www.ca5.uscourts.gov/opinions/pub/10/10-60373-CV0.wpd.pdf

[GKG]

Wow!!!!!
This is really good news - I hope BIA decides to implement this decision and applies it to all cases

Thanks for the update!!


US Court of Appeals for the Fifth Circuit
Favorable CSPA Retention Case
September 8, 2011
http://www.ca5.uscourts.gov/opinions/pub/10/10-60373-CV0.wpd.pdf

[Munish]

Very interesting. Presumably the BIA will have to reconsider their decision in this particular case in light of the court's analysis.

But I do wonder if there will be an appeal to the US Supreme Court in light of the fact that there are now conflicting Federal Circuit decisions on the issue or whether the USCIS will amend its procedures in favour of such aged out derivative beneficiaries without appealing.

I also wonder if the beneficiary who lost in the Li case in the Second Circuit will themselves appeal to the Supreme Court in light of this Fifth Circuit judgment, or whether the USCIS will also change their mind on that as well.

[JustWaiting]

@Munish

You are absolutely right, I think the 5th Circuit Court of Appeals wrote a great opinion that it repudiated every single argument that the 2nd Circuit Court of Appeals panel of judges presented. :clap:

I honestly think that it would not be long before this ridiculous, nonsensical and restrictive interpretation of the CSPA is of no more.

[JustWaiting]

On August 15, a Motion for a Rehearing was filed with the U.S. Court of Appeals for the 2nd Circuit.

[dan83]

I my case, I moved to the state which comes under the Fifth Circuit Jurisidiction, can I file motion to reopen for the case which is already denied by the USCIS based on the Matter of Wang.
Any suggestions or any ideas....

[USluva]

I my case, I moved to the state which comes under the Fifth Circuit Jurisidiction, can I file motion to reopen for the case which is already denied by the USCIS based on the Matter of Wang.
Any suggestions or any ideas....

You can, however it would be advisable to live in the state for at least three months before filing, so that you can acquire sufficient evidence that you are residing in the state.

[dan83]

Hi Usluva,
Its been 6 months we moved to that state and I also filed Ar-11 for both my mom and myself when we moved here.
What are the chances and how would you think USCIS wil take this....
Thank you

[USluva]

As long as you have satisfied their requirement that you are residing in the state, I think that you have a good chance. I will suggest using a lawyer though.

[tex8]

On August 15, a Motion for a Rehearing was filed with the U.S. Court of Appeals for the 2nd Circuit.
The National Immigrant Justice Center (NIJC) has moved to appear as amicus curiae in this case. See link: http://shusterman.com/pdf/cspa-amicus811.pdf

[dan83]

As long as you have satisfied their requirement that you are residing in the state, I think that you have a good chance. I will suggest using a lawyer though.

Hi Usluva,
Is there a chance for the persons living in other jurisdictions which do not come under any of the three: 5th, 2nd and 9th
Can they apply for MTR's
Thank you

[JustWaiting]

Dan83

Maybe this link will help answer your question

http://www.cyrusmehta.com/Print_Prev.aspx?SubIdx=ocyrus201192651715

[dan83]

Dan83

Maybe this link will help answer your question

http://www.cyrusmehta.com/Print_Prev.aspx?SubIdx=ocyrus201192651715

HI Justwaiting,
I understand from the blog that the beneficiaries of I-140 can benefit if they stay in the states listed in the blog, but what if we are the beneficiaries of I-130 F4 category.
Please let me know.
Thank you

[Susie]

We can create a petition to the white house and if we get 30,000 signatures in a month they we look at respond

https://wwws.whitehouse.gov/petitions#!/petition/create

If someone can word it to include death of the petitioner that would be great, I will sign and ask all of you to get everyone you know to sign, it only takes a few minutes to join and sign

[JustWaiting]

A petition to the 9th Circuit Court of Appeals requesting a Rehearing En Banc (before 9 judges) in the nationwide CSPA class action lawsuit.

http://www.shusterman.com/pdf/petitionforrehearingEnBanc9th.pdf

[JustWaiting]

Dan83 I sent you a private message

[tex8]

My daughter aged out when a visa number became available in October 2004 for the petition (Category F4) filed in March 22, 1982 by my sister. An approved petition filed by her mother (F2B) last March 2005 was automatically converted to 1st Preference when we naturalized last October 2010 and the petition is pending at the National Visa Center for visa availability. She was inspected and admitted legally to enter the United States last July 2010 as she was granted a visitor's visa (10 year, multiple entry). She came back last December 2010 to the Philippines before the expiration of her allowed 6 months stay. By the second week of November this year (2011) she will visit us again in Houston, Texas where we reside. Question: Will she be granted a permanent resident status if she files an Adjustment of status while she is around and invoking the provision of CSPA for retention of priority date, and the latest United States Court of Appeals in the 5th District decision of the Khalid v. Holder case?

[tex8]

On August 15, a Motion for a Rehearing was filed with the U.S. Court of Appeals for the 2nd Circuit.

2nd Circuit (New York) rejects Petition for Rehearing on CSPA case. Next step: Supreme Court according to Atty. Carl Shusterman recently in Twitter.

[JustWaiting]

We now wait on the 9th circuit court of appeals if they will rehear the case enbanc.

[JustWaiting]

I think this is a good thing. But has anyone realize how the government didn't appeal the decision in the 5th circuit court of appeal. This Monday was gone by here was the last and final day for the government to submit an appeal in the Khalid v. Holder case.

[cocorico]

I don't think the government would appeal for 5th court decision even if there are 2 other courts who denied CSPA. They lost and why would they put more effort in pursuing this case? Nonetheless, glad the day for them to appeal is done. Now i know 2nd court got denied rehearing but i noticed a huge difference in argument for en banc for the 2nd court and 9th court. I feel as though 2nd court is not as persuasive as 9th court so sadly to say but i see why it was. As for 9th court they quoted and cited 5th court and 2nd court rulings leading to a point that it's a nation wide issue..there were more points in the document that give you a rather newer perspective rather than just stating they were wrong in their decision and more importantly why the case should be reheard. I must say the points they pointed out can almost certainly fit the requirements for writ of cert. for supreme court. I hope it does not get to that point and just be granted this en banc but odds for granting an en banc are almost impossible. i know it's again a waiting game and won't know exactly till then but i think the petition was written well. I'm not sure if any of you heard but one of the judges who ruled on this case died about a week or 2 after the decision came out. I'm wondering if that will have some effect since only 2 of the judges who heard the case are active.

[JustWaiting]

Usluva

Hi just sent you a personal message

[JustWaiting]

This is good, the court has ordered the government to file a reply brief in the en banc hearing for the 9th circuit court of appeals

[jay2]

Khalid v. Holder
Government's Petition for Rehearing En Banc
5th Circuit Court of Appeals

http://shusterman.com/pdf/khalidrehearingenbancpetition.pdf

[JustWaiting]

Has anyone living in the 5th Circuit Court of Appeals District been able to adjust their status under the CSPA ruling lately?

If you have, please don't be afraid to post the outcome and what was your experience, thank you.

[Susie]

Good luck to you all, I have had to file new I 130 for son, this will take many years. My son did not age out but his father died before son got his green card, case thrown out at court of appeals, no compassion

[tex8]

check this out:
http://shusterman.com/childstatusprotectionact.html#5B

[dan83]

check this out:
http://shusterman.com/childstatusprotectionact.html#5B

Good News Guys...The U.S. Court of Appeals for the 5th Circuit in New Orleans denied the government's motion to rehear a favorable ruling on CSPA's "automatic conversion" clause. This is great news!

http://shusterman.com/pdf/Khalid-CSPA-order.pdf

[JustWaiting]

Is the government going to appeal to the Supreme Court of The United States of America since the 5th circuit court of appeals have denied their request for a rehearing?

[JustWaiting]

Has anybody adjusted their status in the state of Texas under the Child Status Protection Act and approved, if so please feel state your experience and whether you were approved or denied?

[GKG]

What does this men - in simple words - in the CSPA going to be implimented to include F4 category age-out children?
I am very confused with all this legal language :(





QUOTE=dan83;102908]Good News Guys...The U.S. Court of Appeals for the 5th Circuit in New Orleans denied the government's motion to rehear a favorable ruling on CSPA's "automatic conversion" clause. This is great news!

http://shusterman.com/pdf/Khalid-CSPA-order.pdf[/QUOTE]

[JustWaiting]

Has anyone residing in the States of Texas, Mississippi and Tennessee been approved for a green card under Child Status Protection Act?

[tex8]

Would like to know also.
Has anyone residing in the States of Texas, Mississippi and Tennessee been approved for a green card under Child Status Protection Act?

[JustWaiting]

Suze! is it possible that you can make a facebook page devoted to Child Status Protection Act?

[tex8]

Check out this video for info: http://www.youtube.com/watch?v=Q8anDCCiGpg

[JustWaiting]

Has anyone residing in the States of Texas, Mississippi and Tennessee been approved for a green card under Child Status Protection Act?

[JustWaiting]

Good News you guys

http://shusterman.com/pdf/CSPAcaseoverturned-ninthcircuit2012.pdf

[JustWaiting]

This Tuesday was the last day for government to appeal to the Supreme Court in the 5th Circuit Court of Appeals, CSPA lawsuit.

[JustWaiting]

Call for Stories: Are You An Aged-Out Son/Daughter of a Legal Permanent Resident?

Given the Ninth Circuit has agreed to re-hear the Child Status Protection Act issue, I’m looking for actual cases of where children have aged out of a petition filed by their grandparents (F-3) or uncles/aunts (F-4), and the parents immigrated or adjusted their status to that of legal permanent residents. The adult unmarried son/daughter either got left behind in their country of origin or could not adjust status with their parents and has to wait in a long line again.

The best kind of cases would be ones where the legal immigrant parents subsequently filed a new petition on behalf of the aged-out unmarried adult son/daughter, attempting to retain the original priority date and USCIS refused, placing the adult unmarried son/daughter in deportation proceedings. But it doesn’t have to be limited to that fact-pattern. If you have a case where the parents got their green cards through their parents or siblings but their own children got left out of the process because they were over 21, please shoot me an email at prerna@dreamactivist.org ASAP.

This request is for an amicus curiae brief to be filed with the Ninth Circuit. Your name can be redacted or providing an alias is alright.

If you need more information about the Child Status Protection Act (CSPA) or need clarification of the request, feel free to shoot me an email as well so I can clarify.

[JustWaiting]

http://shusterman.com/2012/05/115-years-of-solitude-for-mexican-moms.html

http://www.expatsvoice.org/forum/showthread.php?t=23&page=80

[Susie]

Suze! is it possible that you can make a facebook page devoted to Child Status Protection Act?

I would love to but I would also ask everyone keep updating here too, let you know once it is done and think we need to transfer some posts from here

I am still fighting for my son even though the court of appeals turned the case down as my husband passed.