Tag Archives: CSPA

Lifted Lamp’s Top Ten Blog Posts for 2013 & Poll for Topics for 2014

27 Dec

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Looking back on what turned out to be a disappointing 2013 for the lack of progress on meaningful immigration reform and on the continuing pace of removals, we have tried to figure out what articles and stories most appealed to our readers.  Turns out that our readers were not as interested in the minute-by-minute accounts of progress, but rather came to Lifted Lamp for information about developments in the law that had a real impact upon their lives.  The provisional waiver, DACA, the de Osorio litigation were topics that continually received interest from our readers.  We hope to use this information to make this blog more useful and interesting to our readers.

We have compiled our 2013 Top Ten Blogposts and provide some thoughts on them after they have been written, published and we have received feedback.

10.  Leave it to controversy to be popular.  Our tenth most popular blog of 2013 is just over a month.  On November 25, we wrote about the young man who challenged the President to halt removals while waiting for immigration reform.  In “Does the President Have the Power to Stop All/Most Removals?“, we discussed whether the President can use his executive power to halt all deportations.  We decided that the President probably could not halt all deportations, but he could definitely stop a whole lot more.

9.   The provisional waiver, which has allowed the spouses of U.S. citizens to seek the required waiver of the ten year bar before traveling abroad, has been a continually popular topic on this blog.  In February 2013, we asked “Should I Apply for a Provisional Waiver or Wait for Immigration Reform?”  We answered that the provisional waiver was likely the better bet.  Turns out we were right.  Hundreds of people have received their residence through the provisional waiver, whereas immigration reform remains stuck in the quagmire of today’s politics.  While there is lots of talk about the prospects for reform in 2014, we continue to place our bet on the provisional waiver.

8.  The de Osorio litgation regarding the interpretation of the Child Status Protection Act has generated a lot of interest on this site.  We have chronicled the litigation from our submission of an amicus brief on behalf of undocumented youth at the 9th circuit and celebrated the victory in the 9th Circuit decision.  We implored the administration not seek review of the 9th Circuit’s decision in the Supreme Court and  shared our disappointment in the government’s decision to seek certiorari review in “Opportunity Lost: Administration Seeks Supreme Court Review of de Osorio.”  The Court heard arguments on December 12, 2103 and a decision is expected by June 2014.

7.  Also, in January 2013, we sought to explain some basics of immigration law as the popularity of the “go to the back of the line” school of thought dominated discussion of immigration reform.  In “What’s The Deal with the Immigration Line?“, we discussed how the visa numbers and quotas work and, more often, don’t work.  We had a lot of fun with this post and are glad that it was so well received.

6.  In February 2013, we highlighted a piece of legislation proposed by Senator Orrin Hatch (R-UT) called the I-Squared Act.  In “Immigration Reform 2013: Understanding the I-Squared Act,” we described Senator Hatch’s proposals to modernize and improve the visa process for high tech workers.  Much of Senator Hatch’s bill was folded into the Senate bill which passed the Senate in June 2013 and remains languishing in the House of Representatives.

5.  A surprise for number 5!  In March, we wrote about Congress’ belated re-authorization of the Violence Against Women Act.  In “Congress Reauthorizes VAWA But Falls Short on Immigration Provisions,” we discussed the history of the VAWA, improvements made in the 2013 reauthorization, and disappointments in the bill.  One of the bigger disappointments was Congress’ failure to raise the cap on U visas, a failure that has proven to be significant as the U visa cap for 2013 was reached in December.

4.  In January 2013, we discussed the development and roll-out of the provisional waiver process.  The provisional waiver has been one of the most popular topics on our blog.  And for good reason, the provisional waiver is one change to the immigration laws that has directly benefited immigrants in 2013.  While immigration reform has stalled, the provisional waiver has proven to be a way out of the catch-22 of ineligibility for adjustment in the U.S. and the ten year bar triggered by traveling abroad.  In “Q&A on I-601A Provisional Waivers,” we reported on the procedures that CIS would use in executing the provisional waiver process.

3.  The provisional waiver dominates the top three spots.  In “The Provisional Waiver and Removal Proceedings,” we discussed the process of seeking a provisional waiver for individuals in removal proceedings.  This topic still draws interest as I took a call yesterday from a lawyer who wanted our thoughts on a government motion to terminate removal proceedings so that the client could seek the provisional waiver.

2. Again, the provisional waiver draws a lot of interest.  In this post, “What is Extreme Hardship?“, we used our years of experience preparing applications for waivers to help illuminate this very subjective and squishy standard.  One of our most popular posts, this post is very similar to many of the consultations we do where we help people identify relevant hardship factors before applying for waivers.

numero uno1.  Our most popular post is “10 Facts About the Provisional Waiver Process.”  This is, by far, our most popular post.  It was our first post of 2013.  We are a bit curious as to its popularity given how many developments there have been in the provisional waiver process, but this post remains an informative introduction to the provisional waiver, what it means to accomplish, and the mechanics of seeking a waiver.

Thanks to all of our readers.  We have studied these results and will use this information to make this blog more interesting and useful to you.  Happy new year to all!

Mayorkas v. Cuellar de Osorio: CSPA at the Supreme Court

9 Dec

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Tomorrow, December 10, 2013, the Supreme Court will hear oral arguments in Mayorkas v. Cuellar de Osorio, reviewing the 9th circuit decision that reversed the Board of Immigration Appeals’ decision in Matter of Wang that rejected the applicability of the Child Status Protection Act (CSPA) to a large number of immigrants.  If the Supreme Court upholds the decision of the 9th Circuit, many aged-out young adults will be immediately eligible to apply for residence.  If the Supreme Court reverses the 9th Circuit, the BIA’s interpretation will stand and young adults who aged-out while their families’ petitions were stuck in the immigration backlogs will continue to wait for alternative paths to residence.

At the heart of the dispute is a common question in U.S. immigration law- how much deference does a court owe to an agency’s interpretation of matters within its expertise.  In a seminal 1984 case, Chevron v. Natural Resources Defense Council, the Supreme Court held that the answer to that question requires a two part analysis.  First, the court must determine whether Congress spoke clearly in the statute.  If Congress spoke clearly, the court must look to whether the agency faithfully implemented the statute’s directive.  The second part of the analysis comes into play if the court determine that Congress did not speak clearly and left the details of the matter to the expertise of the agency.  Where Congress spoke ambiguously, courts should defer to the agency’s special expertise so long as their interpretation was reasonable.  As a practical matter, if a court finds that Congress’ directive in a piece of legislation was ambiguous, it will likely uphold the agency’s interpretation.  Thus, in this case, the Court must decide whether the Child Status Protection Act was clear in how these aged-out young people should be treated.  If the court decides that Congress was pellucid in the language of the statute, it is likely that the court will reject the BIA’s interpretation and uphold the 9th Circuit’s decision.  In addition to the 9th Circuit, one other court, the 5th Circuit, has also rejected the BIA’s formulation.

Cuellar de Osorio’s lawyers will be arguing that Congress spoke with particular clarity when it passed the Child Status Protection Act and intended for all aged-out derivative beneficiaries of their parent’s immigrant petitions to be able to reclaim their original filing date rather than going back to the “end of the line” after turning 21.  They are supported by a brief filed by several Senators who explain to the Court that their intention in passing the legislation was to help as many aged-out children as possible.  The government seeks to muddy the waters and state that Congress was not clear and that the court should defer to the government.  The government warns of major disruption to the way visas are distributed if the Court rejects its interpretation.

Tomorrow, lawyers for the government and for the immigrants affected will get their chance to argue the case before the Supreme Court.  A decision will likely come in the spring of 2014.

Prerna Lal on CSPA and de Osorio Update

5 Jun

Despite being on leave from Benach Ragland to study for the California bar, Prerna Lal continues to provide valuable insight on the status of the de Osorio case.  De Osorio is the 9th Circuit case in which the court held that the Board of Immigration Appeals and the U.S. Citizenship & Immigration Service had interpreted the Child Status Protection Act wrongly in a way that excluded thousands of young people from the opportunity to obtain status with their families.  The government has sought review of the de Osorio decision before the United States Supreme Court, which will decide by the end of June, whether it will hear the case.  From Prerna’s blog:

Attorneys for de Osorio filed an excellent reply brief to the DOJ’s petition seeking certiorari on May 24. Usually, the petitioners can file a reply brief within 10 days but it appears that the Department of Justice did not file a reply brief in de Osorio yesterday. They are not obligated to do so. As of now, the government’s petition for review of the Ninth Circuit’s decision has been distributed for conference on June 20. I believe SCOTUS will probably vote to hear this, but I’d love to be wrong.

Empirical analysis suggests that it is rare for the Supreme Court to deny hearing a case when the Solicitor General requests review. While I think that the appeal is without merit, and almost frivolous, it only takes a law clerk to place the certiorari petition in the pool for review and four Supreme Court justices to agree to grant review.

If the Supreme Court grants certioriari, as in, agrees to hear the case, which we will know by June 24, 2013, then the stay of mandate continues, and no one can seek adjustment of status (or a green card) under de Osorio until the Supreme Court hears the case. Persons under the jurisdiction of Fifth Circuit (Texas, Louisiana and Mississippi), who are in removal proceedings, continue to be eligible for relief under Khalid v. Holder. New briefs would be filed, oral arguments held, and the Supreme Court would have until the end of June 2014 to issue a decision.

If the Supreme Court denies review, then the stay on mandate is lifted, and de Osorio becomes law nationwide because it was certified as nationwide class action lawsuit (and hence, there are no circuit split issues).

I hope everyone separated from their parents or adult children, get to see their family members soon.

Much love.

Thanks for keeping this on the front burner, Prerna.  We will continue to keep you informed as the Supreme Court considers the case.

Opportunity Lost- Administration Seeks Supreme Court Review of De Osorio

26 Jan

On the same day that the immigration world was abuzz with news that the President would unveil his immigration reform plan next week, the administration filed a brief to preserve the unnecessary family separation caused by its cramped  understanding of the Child Status Protection Act reflected in the Board of Immigration Appeals decision in Matter of Wang.  The juxtaposition of the prospect of common sense immigration reform with the wholly unnecessary appeal of the U.S. Court of Appeals for the Ninth Circuit’s decision in Cuellar de Osorio v. Mayorkas provides significant doubt that the administration really understands the pain caused to American families by the immigration laws and the decisions that the administration takes on a daily basis that make those immigration laws worse than perhaps Congress even intended.  When the administration is more restrictive then Congress, that is a sorry state of affairs.

Enough editorializing.  We can write more about what a disastrous decision this was for the administration once emotions are less raw.  For now, we will focus on what happens.

The administration has filed a petition for a writ of certiorari to the Supreme Court to review the decision of the 9th Circuit.  A writ of certiorari is a statement from the Supreme Court that they will review a case.  “I will review” is the basic Latin translation of certiorari.  By petitioning for the writ, the government is asking the court to review a case.  Review at the Supreme Court is discretionary, meaning that the Supreme Court does not review all cases in which certiorari is sought.  In fact, the Supreme Court rejects the overwhelming majority of cert petitions filed each year.  The Supreme Court grants only about 2% of all petitions for certiorari. That might be comforting, but the odds are improved when the petitioner is the Department of Justice, as it is here.  In addition, other factors, such as the split between circuit courts to have reviewed the CSPA, and the national implications of the decision are factors that indicate that the government’s petition for a writ of certiorari in de Osorio are better than the 2% average.

The Supreme Court will vote on whether to hear the case.  Four justices must vote in the affirmative to hear the case. It is difficult to say when the Supreme Court will rule on whether to grant certiorari.  A good discussion of Supreme Court procedure can be found here. If the Supreme Court denies the petition for certiorari, the decision of the Ninth Circuit will stand.  If the Supreme Court grants the petition, it will receive briefs from the parties and all sorts of other interested people and organizations.  It will hold oral argument.  It is unlikely that the Supreme Court will hold oral argument before October as the Court recesses from June to October.  A decision would likely come about a year from now.

So, there remain two more opportunities to end this struggle.  The first chance is whether the Supreme Court grants cert.  The second is when, if it grants cert, it decides on the case.

There remains substantial hope.  The lawyers handling this are some of the best in the business.  Many other interested parties will weigh in.  Benach Ragland will continue to be a part of this litigation and continue to advocate for sane immigration laws.  Also, cert is rarely granted.  The government still has an uphill road to follow.  This is a setback and not a defeat.

Time to Decide in de Osorio

24 Jan

The Obama administration has until tomorrow January 25, 2013 to file a petition for a writ of certiorari with the U.S. Supreme Court to seek review of the U.S. Court of Appeals for the 9th Circuit decision in Cuellar de Osorio v. Mayorkas, which provided a humane and reasonable interpretation of the Child Status Protection Act.  If the government does not seek review in the Supreme Court, the decision of the 9th Circuit becomes law nationwide and thousands of people will be eligible to apply for adjustment of status using their old priority dates.

If the government does seek review, the case will remain on hold.  However, a petition for a writ of certiorari does not mean that the Supreme Court will take the case.  The Supreme Court does not take every case that comes before it and must agree to hear the case.  If the Supreme Court declines to hear the case, then the 9th Circuit decision becomes law.  If the Supreme Court takes the case, we will need to wait for a ruling from the Court before knowing the fate of the de Osorio class of potential applicants.

We have explained in multiple posts the reasons why the government should let the de Osorio decision stand and how this single act could improve the immigration system for thousands of American families.  In the week of the President’s inauguration with its soaring hopes and promises, the President has an immediate opportunity to translate those words into policy and law.  Let’s hope he takes it.

Ninth Circuit Provides Hope to Young Immigrants

26 Sep

Great news out of the U.S. Court of Appeals for the 9th Circuit, which ruled today that a Board of Immigration Appeals interpretation of the Child Status Protection Act (CSPA), improperly excluded a large class of immigrants from being eligible for immediate residence.  Rosalina Cuellar de Osorio challeged the BIA’s interpretation of the CSPA in Matter of Wang before the 9th Circuit.  She initially lost before a three judge panel, but the court sitting en banc agreed to rehear the case.  A number of organizations submitted briefs in support of Cuellar de Osorio’s case, including DreamActivist, a nationwide action committee for undocumented youth.  DreamActvist was represented by Benach Ragland.

Today, September 26, 2012, the Ninth Circuit overturned Matter of Wang in Cuellar de Osorio v. Mayorkas:

“We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.”

With a 6-5 en banc split, the Ninth Circuit now joins the Fifth Circuit in rejecting the position of the BIA. It will allow many young people who were the derivative beneficiaries of previous petitions to apply for a green card, if they were aged-out of the process when they turned 21. This is great news for many young people, including many Dreamers, who would no longer have to face lengthy separation from their families and deportation from their homes.

Congress passed the Child Status Protection Act (CSPA), Pub L. No. 107-208, 116 Stat. 927 (2002) to address the complex problem of aging out of family and employment based petitions. In short, due to massive visa backlogs and administrative delays, adult children were aging out of approved visa petitions upon turning 21. In many cases, these petitions were filed on behalf of their parents by employers or other family members when they were much younger. CSPA was supposed to fix this problem in a myriad of ways, first by a complex mathematical formula, which deducted the time it took to adjudicate the petition away from the age of the adult child and second, by allowing those who aged-out even after the application of the formula, to retain the original priority date from the original petition that was filed on behalf of them, and apply it to a new category. This is spelled out quite unambiguously in Section 203 (h)(3):

“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.”

USCIS did not issue regulations on this matter at first, and issued a number of contrary decisions. In some cases, aged out adult children were approved. In other cases, they were denied a green card. The Board of Immigration Appeals also did not know what to make of the statute and issued a number of contrary rulings. Compare Matter of Maria T. Garcia in 2006 with Matter of Wang in 2009, where the BIA restricted the application of Section 203 (h)(3) to applicants in the F-2A category, finding no evidence 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.” This decision automatically doubles the number of years a derivative beneficiary has to wait in line for a green card, and in some cases, a derivative may never be able to get a green card.

On May 11, 2012, Benach Ragland filed an amicus curiae (“friend of the court”) brief on behalf of DreamActivist with the U.S. Courts of Appeals for the Ninth Circuit in Cuellar de Osorio v. Mayorkas asking the Court to reject the Board of Immigration Appeals decision in Matter of Wang, which unnecessarily limited the class of individuals who could gain the benefits of the Child Status Protection Act (CSPA).  This represented the first time that a Court heard directly from Dreamers on a question of statutory interpretation and public policy.

The impact of this case is felt personally in the Benach Ragland family.  Our law clerk, Prerna Lal, is one individual who suffered under the BIA’s intepretation under Matter of Wang.  In 2001, Prerna’s grandmother filed an immigrant petition on behalf of her daughter, Prerna’s mother.  As a child, Prerna was covered under this petition.  However, due to lengthy backlogs in this category, by the time Prerna’s mother was able to seek residence in 2009, Prerna had already turned 21 and had “aged-out” of eligibility as she was no longer a “child” under the immigration laws.  Prerna’s mother filed a petition for Prerna, but the CIS, pursuant to Matter of Wang, refused to acknowledge the 2001 filing date.  Thus, under her mother’s petition, Prerna would not be able to seek her residence until approximately 2017, despite the CSPA and the fact that Prerna was originally covered in 2001.  As Prerna’s case is in San Francisco, CA, the heart of the 9th Circuit, this decision makes her eligible to apply for residence using her 2001 date assuming that the decision stands.

It is unclear whether the Government will ask for cert. from the Supreme Court. It has 90 days to request cert. If asked for cert, the Supreme Court may or may not deny it. If it denies cert, the decision will still be law in the 9th and 5th circuit. Young people who have been aged out and thrust into removal proceedings may be able to adjust their status before an Immigration Judge under the jurisdiction of the Ninth and Fifth Circuits. In due time, the USCIS may also issue new regulations allowing every derivative beneficiary of a family-based or employment based to retain their original priority date and adjust their status to lawful permanent residents without much wait.