The 9th Circuit Ruling and the Supreme Court of the United States

Last September, the U.S. Court of Appeals for the Ninth Circuit ruled that a son or daughter who was the derivative beneficiary of a family-sponsored immigrant petition but “aged out” (didn’t qualify because he or she turned age 21) may apply the old petition’s priority date to a new petition. This would help these aged out children to come to the US in about a year instead of waiting more than five years.

The 9th Circuit ruling gave a lot of hope and happiness to permanent resident parents whose aged out children had been left behind in Vietnam. However, this hope was soon followed by disappointment. At the end of December, CIS announced it wanted more time to review the matter. The 9th Circuit gave CIS until 25 January to decide if it would challenge the Court’s decision.

On 25 January, CIS announced that it would ask the Supreme Court to review the case of DeOsario V. Mayorkas with regard to the CSPA (Child Status Protection Act).

Right now we are waiting to see if the justices of the Supreme Court will vote to accept the case. If the Supreme Court refuses to accept the case, then the 9th Circuit ruling will take effect immediate and nation-wide. If the Supreme Court does accept the case, then a decision will probably be handed down some time next year.

While waiting for the decision by the Supreme Court, the Ninth Circuit’s decision cannot be put into effect.

If your child’s case is covered by De Osorio, you should seek advice from an immigration professional now. If you haven’t filed an I-130 for your aged out child, it might be wise to do that now instead of waiting, since we cannot predict when decisions will be made by the Supreme Court.

Children who couldn't get a visa because they aged out are covered by the 9th Circuit ruling if their parent immigrated as the direct beneficiary on a family-sponsored preference petition in any of the following categories:

F1: Unmarried son or daughter (21 or older) of U.S. citizens
F2A: Spouse or child (under 21) of lawful permanent resident
F2B: Unmarried sons and daughters (21 or older) of lawful permanent resident
F3: Married sons and married daughters of U.S. citizens
F4: Brothers and sisters of U.S. citizens

----------------------------------------------------------------------------------------------------------------------
Q.1. When will we know if the Supreme Court is going to agree to review the 9th Circuit decision?
A.1. The Supreme Court will vote between now and June recess, or after summer recess, on whether to review the matter.

-----------------------------------------------------------------------------------------------------------------------
Q.2. Would it help to write to congressmen to ask them to support the ruling of the 9th Circuit?
A.2. The matter is now in the hands of the Supreme Court and Congress can not have any influence over their decisions. This problem could have been avoided if Mr. Obama had used his influence to stop CIS before they challenged the 9th Circuit’s ruling. But it’s too late for that now. We must wait for the Court’s decision.

 
ROBERT MULLINS INTERNATIONAL www.rmiodp.com 
Immigration Support Services - Tham Van Di Tru

9070 Bolsa Ave., Westminster CA 92683 (714) 890-9933
779 Story Road, Ste. 70, San Jose, CA 95122 (408) 294-3888
6930 65th St. Ste. #105, Sacramento CA 95823 (916) 393-3388
47 Phung Khac Khoan, P. Da Kao, Q1, HCMC (848) 3914-7638