Supreme Court Rules Against Family in Child Age Out Case On June 9, 2014

Thứ Tư, 11 Tháng Sáu 201400:00(Xem: 14698)
Supreme Court Rules Against Family in Child Age Out Case On June 9, 2014

The Supreme Court has issued a 5 to 4 decision in the matter of CSPA-F2B cases. DHS and the Obama Administration were able to convince the Court that a child who turns 21 while waiting for a parent’s green card petition will have to have a green card petition re-filed by their parents after the parents eventually get green cards. They will not retain their earlier priority dates in these cases.

The Supreme Court decision is a major disappointment because Congress probably did not intend such a narrow interpretation of the law. The government argued that because when a child aged out, there was no “appropriate category” for them to switch to. CIS said that immigration law did not provide a remedy because the law only applied in cases where “automatic” conversion is possible. In other words, a child who ages out can only be an F2B without any connection to the parents' priority date.

Justice Sotomayor said that Congress clearly wanted to provide a remedy to aging out when it passed the Child Status Protect Act and that the Board of Immigration Appeals and the Supreme Court are acting against the original intention of Congress.

Justice Sotomayor believes that if the child ages out, the child automatically converts AND the original priority date is to be retained. But five of the nine Supreme Court judges said there was no category for age outs and so there was no way for the original priority date to be retained.

Justice Sotomayor argues that Congress intended the priority date to be retained even if a new petition needs to be filed. Unfortunately, in this 5-4 decision, Justice Sotomayor was in the minority and her interpretation of the law was not accepted by the majority of the judges.

Sadly, the matter is now closed and Congress will need to reconsider this question to clarify that a priority date should be retained.

The question remains: Why did the Obama Administration take such an anti-immigrant, anti-family position in this case?

Q1: It is shameful to say that the Supreme Court's Judges who voted against the CSPA-F2B PD retention and against the US congress' intention, have no concern to humanity while prolonging family being divided. What makes the US congress to act in favor for this matter again?
A.1. Members of Congress will have to revise the law so that the PD retention can be clearly stated in the law. This means that people will have to urge their representatives to take action on the CSPA-F2B matter.

Q2: What does this mean for the ruling of the fifth and nineth circuit court? Will the residents in these jurisdictions still have a chance for F2B's PD retention?
A.2. The Supreme Court Decision put an end to any hopes in the fifth and ninth circuits. The Supreme Court decision applies to all circuit court districts, so the CSPA-F2B cases that were pending in these two districts now have no hope of approval until the F2B's become current.

Q3: Is this ruling by the Supreme Court final? Or will it be appealable?
A.3. The ruling is final and it cannot be appealed.

Q4: What happens to cases that have been given PD retention which are currently being processed for visa interview? Will CG continue to interview and give the applicants a chance to re-unite with their family in the US?
A.4. The Supreme Court decision was just announced on 09 June so the Consulate has not yet made a decision about these cases. Unfortunately, the Consulate will probably be required to follow the decision of the Supreme Court and stop processing such cases until the F2B petitions become current.

Q5: If the beneficiaries of these F2B petitions manage to enter the US with inspection, can they adjust their status while remain legally in the US when the F2B petition is current?
A.5. Yes, they can adjust status when the petition becomes current if they enter the US legally and maintain legal status while in the US.

Q6: What does the petitioner of F2B cases expect in the next 12 months? Would the visa cut off dates for this category continue to surpass those of F1-1?

A.6. It is not possible to predict cut-off dates. The dates are determined by demand for visas world-wide and also by the number of adjustment of status cases in the US. Those are not known in advance.

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