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NIJC, with the American Immigration Council (AIC), filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in support of Cuellar de Osorio et. al.’s en banc rehearing.  Briefing for the case is connected to a class action that takes up the same issue – interpretation of INA § 203(h)(3), 8 U.S.C. §  1153(h)(3), aka the Child Status Protection Act (“CSPA”).  Petitioners are Lawful Permanent Residents who have immigrated to the United States on family-based petitions, and whose derivative beneficiary children cannot immigrate to the United States on the same petition because their real and CSPA-adjusted ages are not under 21. 

NIJC and AIC argue that the plain language of INA § 203(h)(3) indicates that section applies to all visa petitions, including non-F2A petitions.  This means that derivative beneficiaries could take advantage of the original priority date assigned to the petition upon which they were derivatives when new petitions are filed that make them principal beneficiaries.  Because the language is “plain,” it is therefore controlling, rebuttable only in rare and exceptional circumstances.  U.S. v. One Sentinel Arms Striker-12 Shotgun Serial No. 001725, 416 F.3d 977, 979 (9th Cir. 2005) (emphasis added); Royal Foods Co., Inc. v. RJR Holdings, Inc., 252 F.3d 1102, 1108 (9th Cir. 2001).  Since the plain language can be practicably applied to Non-F2A petitions, this circumstance is not a rare and exceptional circumstance warranting Chevron deference to the BIA. 

NIJC and AIC argue that while not necessary, if the court does reach Chevron Step-Two, the BIA is not entitled to deference because the agency’s reading of INA § 203(h)(3) is unreasonable and arbitrary.  Akhatar v. Burzynski, 384 F.3d 1193, 1198 (9th Cir. 2004) (agency interpretations must be “based on a permissible construction of the statute”).  The BIA unreasonably precludes Non-F2A derivative beneficiaries from receiving any benefit, and arbitrarily requires the same petitioner to file a new petition for the derivative beneficiary to retain their original date.  Matter of Wang,25 I&N Dec. 28 at 35 (2009).

Lastly, NIJC and AIC argue that the BIA’s review of the congressional intent behind the CSPA is severely flawed.  The BIA relied on an earlier version of the CSPA that did not include § 203(h)(3); published Wang, which is inconsistent with the actual text and legislative history; and has interpreted § 203(h)(3) in a manner that is clearly contrary to the legislative purpose.

NIJC and AIC are represented by pro bono attorney Nickolas Kacprowski of Kirkland & Ellis LLP.  

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