The US Department of Justice Asks the Supreme Court to Review the 9th Circuit Court’s Ruling that Benefits CSPA Cases

On September 26, 2012, the U.S. Court of Appeals for the 9th Circuit ruled, in DeOsorio v. Napolitano, that the “automatic conversion” clause of the Child Status Protection Act (CSPA) gives credit to sons and daughters of permanent residents who have “aged-out” for the time that they stood in line with their parents under the family-based third and fourth preference categories. Therefore, as long as they remain unmarried, they are permitted to retain their original priority dates and automatically convert to the family-based 2B category. In most cases, the original priority dates would mean that the F2B waiting time is entirely eliminated.

In Washington on 25 January, it is clear that the left hand did not know what the right hand was doing. In the morning, the White House announced that President Barack Obama would begin efforts to overhaul the nation's immigration system and create legal status for millions of illegal aliens. In the afternoon, the Department of Justice (DOJ), which is also part of Mr. Obama’s administration, submitted a Writ of Certiori to the Supreme Court. This was a request to have the US Supreme Court review the 9th Circuit Court ruling for CSPA cases. It is very difficult to understand how the DOJ could act in a way that conflicts with the President’s intention to improve the immigration system.

The President’s immigration "blueprint" calls for a pathway to citizenship for illegal immigrants, increased border security, penalties for businesses that employ illegal aliens, giving green cards to high-skilled workers and lifting caps on legal immigration for the immediate family members of U.S. citizens.

While this is good news for the immigrant community in the US, the news about the DOJ challenge of the CSPA decision resulted in surprise, disappointment and shock. People are now asking if the Obama Administration really understands the pain caused to American familiesby the immigration laws and the decisions that the administration takes

The Supreme Court is free to accept or decline the review of cases, so there are two possibilities for the 9th Circuit ruling. If the Supreme Court agrees to hear the case, the matter may take a year or more to be settled. BUT, if the Supreme Court refuses to hear the case, the 9th Circuit ruling will go into effect in every state.

The Supreme Court does not review all cases that are appealed. In fact, the Supreme Court accepts only about 2% of the cases that are submitted to it. However, in this case, the petitioner is the Department of Justice. In addition, the 9th Circuit ruling was not unanimous, and the matter of the CSPA is of national interest. So, unless Mr. Obama uses his influence, it is possible that the case will reach the Supreme Court.

The Supreme Court will vote on whether to hear the case. At least four justices of the court must agree. If the Supreme Court accepts the case for review, it will receive briefs and will hold oral argument. It is unlikely that the Supreme Court will hold oral argument before October because the Court recesses from June to October. A decision would likely come about a year from now.

So, there are two more opportunities to end this struggle about the CSPA matter. The first chance is whether or not the Supreme Court accepts the case. The second chance is when it decides on the case.

Although it is very disappointing that the DOJ decided to challenge the 9th Circuit ruling, there is good reason to be hopeful. The lawyers handling this case are some of the best in the business and there is a great deal of public support for the 9th Circuit ruling. Even Mr. Obama will see that eventually. The DOJ still has an uphill road to follow. This is a setback and not a defeat.

We will be checking the Supreme Court calendar and will report immediately when there are further developments.

Q.1. Once again there is the question: should parents file the F2B petition nnow or wait until we see what the Supreme Court decides?
A.1. It is recommended that the parents submit the F2B as soon as possible so that the petitions will be on file and can be ungraded later at CIS.

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Q.2. How long is the current F2B waiting time?
A.2. For Vietnamese citizens, the F2B waiting time is at least seven years, but this is nothing compared to some other countries. According to the present eligibility rules, F2B applicants in Mexico must wait 115 years and in the Philippines, the wait is 28 years. The 9th Circuit Court ruling is crucial to enable these sons and daughters to be reunited with their parents in the U.S.