By Paul Elias
September 26, 2012
A federal appeals court ruled Wednesday that immigration officials must give priority status to thousands of green card applicants who lost their place in line for U.S. residency when they turned 21.
A narrowly divided 9th U.S. Circuit Court of Appeals said the United States Citizen and Immigration Services wrongly determined the applicants were no longer eligible for special visas as children of green card holders after they turned 21.
The immigration service said those children who "aged out" during the process lost their place in line, even if the parents' application took years to process.
Under U.S. immigration law, children 21 and older cannot immigrate under their parents' applications for green cards.
The court ruled 6-5 court otherwise, saying the applicants may keep their "priority date" established when their parents filed for a derivative visa for their children.
The ruling held that Congress meant to aid these applicants with the 2002 passage of the Child Status Protection Act. The act meant to preserve the original date of application of a minor who turned 21 during the pendency of the parents' application, the court ruled.
"We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries," Judge Mary Murguia wrote for the majority.
The court ruled that immigration officials were wrongly forcing many of these applicants to file new applications for residency, putting their application at the bottom of the pile. The new ruling requires immigration officials to consider the original application date while processing the application for residency.
The opinion reversed a trial court judge, who tossed out a class-action lawsuit filed by legal U.S. residents whose children were removed from residency consideration under their application when they turned 21.
"Tens of thousands of children living in the U.S. or abroad who have `aged out' of the green card process would reclaim their place in line based on this decision," said Carl Shusterman, one of the lawyers representing the applicants.
The federal government could ask the U.S. Supreme Court to review the matter.
A U.S. Department of Justice spokesperson couldn't be reached after hours in Washington D.C.
Judge Milan Smith wrote a dissenting opinion. Smith called the 2002 law ambiguous and said it's unclear what Congress meant with its passage. Further, he said the new class of applicants now eligible for priority consideration will likely bump other, more clear applications of other seeking residency further down the line.