De Osorio v. Mayorkas

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 09-26-2012
  • Case #: 09-56786; 09-56846
  • Judge(s)/Court Below: En Banc; Circuit Judge Murguia for the Court; Dissent by Circuit Judge M. Smith
  • Full Text Opinion

The Child Status Protection Act grants automatic conversion and priority date retention to all “aged-out” derivative beneficiaries, regardless of whether a change in petitioner occurs.

In 1998, Rosalina Cuellar de Osorio’s citizen mother filed a petition for an F3 visa for Cuellar de Osorio and her son as a derivative beneficiary, who was thirteen at the time. Cuellar de Osorio’s visa was approved that same year but the priority date did not come current until November 2005, at which point her son was twenty-one and thus ineligible for derivative status. Cuellar de Osorio became a lawful permanent resident and immigrated in August 2006. In July 2007, Cuellar de Osorio filed an F2B petition for her son and requested the original 1998 priority date. United States Citizen and Immigration Services (“USCIS”) did not grant the priority date retention, requiring the son to wait another several years for a visa. Cuellar de Osorio and several other similar petitioners sued USCIS. The district court granted summary judgment based on the Board of Immigration Appeals’ decision in Matter of Wang, which held that under the Child Status Protection Act (“CSPA”), “only subsequent visa petitions that do not require a change of petitioner may convert automatically to a new category and retain the original petition’s priority date.” The CSPA allows “aged-out” aliens who apply for a new category as adults to maintain the original filing date of the visa from which they were listed as derivative beneficiaries when they were children. The Court concluded that the Board of Immigration Appeals erred in interpreting the CSPA and held that the statute unambiguously grants automatic conversion and priority date retention to all aged-out derivative beneficiaries, regardless of whether a change in petitioner occurs.

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