Ms. Wu came to the U.S. legally as a child with her parents, but because of attorney incompetence they were ordered to depart the country when she was 11. Further ineffective assistance led to a series of missteps as the family filed applications in the wrong place. New counsel eventually sought and obtained reopening in the Immigration Court, and permanent residence status for Ms. Wu’s parents. However, Ms. Wu had turned 21 by that time, which meant that she had “aged out” of her ability to be a derivate beneficiary on a parent’s application. Some years later, Congress fixed that problem by enacting the Child Status Protection Act (CSPA), which may apply to old cases when new motions are made in them.
Although Ms. Wu does not – due to the prior attorney mishaps – count as a child under CSPA, her father filed a new visa petition on her behalf after he became a permanent resident (he is now a U.S. citizen). She argues that she can use the “priority date” from the petition filed for her father, and apply that “place in line” to the currently pending petition filed by her father. This interpretation would have made her eligible to seek permanent residency now. The Board rejected that argument in Matter of Wang, 25 I&N Dec. 28 (BIA 2009). On that basis, the Board denied sua sponte reopening to Ms. Wu; she has now appealed from that denial.
While sua sponte denials are often unappealable, the Fifth Circuit has previously found jurisdiction to review pure questions of law in that context, and it is on that ground that we are now seeking review. A Petition for Review was filed on April 22, 2011, and briefing was completed on September 27, 2011. The court remanded the case on July 13, 2012. Ms. Wu was represented by Tracy Genesen, Adam Gray, and Seth Harp of Kirkland & Ellis, LLP, and NIJC's Chuck Roth.