By Attorneys Ben Loveman & Nancy E. Miller
The Child Status Protection Act (CSPA) will benefit even more children (and their parents) as the law’s protections were expanded by the Ninth Circuit Court of Appeals February 14, 2018 decision in Margarito Rodriguez Tovar v. Jefferson Sessions. The decision overruled the Board of Immigration Appeals interpretation of the CSPA and holds that the age adjusting/protecting provisions of the CSPA applies to “immediate relative” children of naturalized U.S. Citizens.
The CSPA was passed by Congress in recognition of long visa processing times and backlogs and was designed to provide some protection against the problem of children “ageing-out” from visa eligibility upon their 21st birthday. A child-beneficiary who reaches the age of 21 will have their visa category converted and thus will face much longer waiting times. The CSPA provides a mechanism which allows certain children to remain children statutorily despite reaching the age of twenty-one.
Two provisions of the law were at issue in the Tovar case. First, the CSPA states that children who are the beneficiary of parental visa petitions whose parents naturalize before the child reaches 21 will have their age locked in as of the date of naturalization thereby forever (barring other issues) preserving eligibility for a visa in the immediate relative visa category where there is no backlog for visas. Second, a separate provision of the CSPA provides that a child beneficiary’s age can be reduced by the amount the amount of time a visa petition was pending to determine their CSPA adjusted age for purposes of visa eligibility. The BIA had long held that the first provision only applied where the child’s biological age on the date of parental naturalization was under 21.
For years the BIA’s interpretation created a disincentive to naturalization for parents who had filed petitions for minor children in the F2A visa category (children of permanent residents) who reached the age of 21 while waiting for a visa to become available or to finish processing their case. Even worse than creating a disincentive is the fact that the BIA’s interpretation created a landmine and severe penalty for unsuspecting persons who naturalized without being advised of the consequences. For these people, they would naturalize only to turn around and find out that the joy of becoming a U.S. citizen would cost them years of separation from their children as the BIA’s interpretation only allowed for the visa to convert from the F2A category to the F1 category (unmarried adult children of U.S. citizens). The F1 category has wait times of ten or more years depending on country of birth and thus the naturalization would lead to years of familial separation.
The Ninth Circuit decision in Tovar removes this landmine by allowing the age-reducing formula of the CSPA to applied to the age of the child-beneficiary on the date the parent naturalizes. If the resulting calculation results in a CSPA adjusted age under 21 then the child will eligible for the visa in the immediate relative visa category and years of familial separation can be avoided. The Ninth Circuit found that the BIA’s interpretation, and the penalty it has long imposed, could not stand as it has led to absurd results and was not in accord with the clear intent of the CSPA.
The Tovar decision, if fully implemented, will serve to protect families from needless unwarranted separation and will serve to allow the intent of the CSPA to be more fully realized. Families who were previously told that they must wait years because of the petitioner’s naturalization may now seek a visa as an immediate relative if eligibility can be established under Tovar. However, questions remain about whether or how the decision will be implemented. The decision could still be appealed by the government to the Supreme Court. Such an appeal would likely result in delayed or uneven implementation of the Tovar holding. Further, even if there is no appeal, it is possible the government would only apply the Tovar holding within the geographical jurisdiction of the Ninth Circuit Court of Appeals. In that case, the BIA’s holding would apply in the rest of the country. In any event, The decision in Tovar is a positive step and those wishing to benefit form that decision should not necessarily wait until all uncertainty is removed from the situation.
If you or a loved one may be impacted by the expanded CSPA protections of the Tovar decision it is recommended that you speak with a reputable and experienced immigration attorney to determine the best options for your situation.
