De Osorio v. Mayorkas

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 09-02-2011
  • Case #: 09-56786; 09-56846
  • Judge(s)/Court Below: Circuit Judge Tallman for the Court, Circuit Judges Rymer and Ikuta
  • Full Text Opinion

Under Chevron, 8 U.S.C. § 1153(5)(3) “is ambiguous as to whether derivative beneficiaries of F3 and F4 family preference petitions are entitled to automatic conversion or priority date retention,” therefore, “aged-out aliens” of lawful permanent residents are not entitled to automatic conversion or priority date retention.

Appellants immigrated to the United States and became lawful permanent residents through the family sponsored immigration process. Their children were under the age of 21 who, at that age, would have been able to immigrate with them under the Immigration and Nationality Act. Because of the delays in the immigration process, their children turned 21 before the parents became lawful permanent residents and were “no longer eligible to accompany their parents.” The district court, affirming the Board of Immigration Appeal’s (“BIA”) decision, found that the Child Status Protection Act (CSPA), 8 U.S.C. § 1153(h) “which was enacted to help keep families together by expediting the immigration process for certain aged-out aliens,” did not apply to Appellant’s children. Appellants appeal, arguing that “aged-out derivative beneficiaries are entitled to relief under to 8 U.S.C. § 1153(5)(3) which “provides relief to aliens who are 21 or over” when “the alien shall retain the original priority date issued upon receipt of the original petition.” The Ninth Circuit holds that “Appellants’ children are not among the aged-out aliens entitled to relief under § 1153(h). The Ninth Circuit applying a Chevron analysis to § 1153(h)(3), reasoned that that the meaning of paragraph (3) is unclear because the word “petition” can be read to encompass all petitions in paragraph (2), so “automatic conversion does not practicably apply to F3 and F4 petitions. Additionally, the Ninth Circuit reasoned that “Congress did not speak clearly as to whether priority date retention can be applied independently of automatic conversion. Finally, the Ninth Circuit reasoned that the BIA’s interpretation of § 1153(h)(3) is permissible and reasonable because it does not conflict with Congress’ express intent. AFFIRMED

Advanced Search