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CSPA Heads to the Supreme Court

http://www.shusterman.com This presentation explains the CSPA national class action lawsuit which was decided by the US Supreme Court in 2014. Schedule a legal consultation (by Skype, telephone or in person) at http://shusterman.com/schedule-immigration-consultation.html Even though Attorney Carl Shusterman won the case during an 11-judge panel of the US Court of Appeals, 9th Circuit, the Supreme Court reversed the decision of the lower court by a 5-4 margin. The Court ruled that the language that Congress used in writing the statute was not clear, and choose to defer to a restrictive decision, Matter of Wang, by the Board of Immigration Appeals (BIA). The case concerned the ability of "aged-out" children to immigrate to the US together with their parents under CSPA's "automatic conversion" and "priority date retention" clause. Attorney Shusterman is now working with members of Congress to clarify the language in CSPA in order to keep immigrant families intact. For more information please see our Child Status Protection Act Page: https://shusterman.com/childstatusprotectionact.html

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CSPA Heads to the Supreme Court

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  1. Understanding The Child Status Protection Act (CSPA) Immigration Attorney CarlShusterman Pincus Professional Education November 14, 2013

  2. Frozen Immediate Relatives • If person is under 21 when Visa Petition is filed • If 2A beneficiary is under 21 on date of petitioning Parent’s Naturalization • If 3rd preference beneficiary is under 21 when marriage terminates • DOS allows IR child to opt out into F1 if person has his/her own derivative kids

  3. Rules for Derivative Beneficiaries • Start with Date Visa Number becomes Current or Visa Petition is Approved, whichever is later • Subtract Time that the Visa Petition was Pending • Person must Seek to Acquire Green Card within One Year • What Happens if your Client Ages-Out despite this Formula?

  4. Automatic Conversion for “Age-Outs” • What is “Retention” of the “Original Priority Date”? • What is the “Appropriate Category”? • What is “Automatic Conversion”? • Matter of Garcia (BIA 2006)

  5. Lawsuits in Federal District Court • In June 2008, two lawsuits were filed challenging the government for its failure to implement CSPA’s “automatic conversion” clause • OIL informs Judge that BIA decision on clause is “imminent”. Cases delayed.

  6. Board of Immigration Appeals • In Matter of Wang (June 16, 2009), the BIA found that CSPA does not specify which petitions that the automatic conversion clause applies to. • Board held that CSPA only deals with administrative delays, not delays caused by the Visa Bulletin • Held that “automatic conversion” and “retention” have recognized meanings under the law.

  7. Why Wang Got It Wrong “…a family whose child's application for admission to the United States has been pending for years may be forced to leave that child behind either because the INS was unable to adjudicate the application before the child's 21st birthday, or because growing immigration backlogs in the immigration visa category caused the visa to be unavailable before the child reached his 21st birthday. As a result, the child loses the right to admission to the United States. This is what is commonly known as ‘aging out.'” -Senator Dianne Feinstein’s Statement Upon Introducing CSPA in the Senate, April 2, 2001

  8. Courts of Appeals • 2nd Circuit, Li v. Holder, ruled for the government • 5th Circuit, Khalid V. Holder ruled for the immigrant • And the 9th Circuit…

  9. 9th Circuit Re-Hearing • Petition for Rehearing En Banc granted • Oral Arguments in June 2012 • On September 26, the 9th Circuit ruled in favor of the immigrants by a vote of 6 to 5

  10. CSPA Heads to the Supreme Court • On January 25, 2013, the Department of Justice submitted a Petition for a Writ of Certiorari to the Supreme Court, which the Supreme Court granted • Oral arguments will take place in December • The Supreme Court should make a decision on the case by next spring

  11. What Should You Do Now? • Not a wise idea to file for benefits now • The Supreme Court could reverse (Let’s hope not!) the 9th Circuit’s decision • Your client’s application could be denied and they could be placed in removal proceedings • However, if your client is already in removal proceedings, or is abroad, you can file for benefits now

  12. How to Stay Current • Visit our website, www.shusterman.com • Follow us on Facebook and Twitter • Read updates and ask questions on our Google+ Immigration Forum • Subscribe to our free monthly e-mail newsletter

  13. Questions & Answers

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