Ninth Circuit Hearing For CSPA Lawsuit Sparks Optimism

by Prerna Lal

category: Immigration Law

Published November 02, 2009 @ 12:12PM PT

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The U.S. Court of Appeals for the Ninth Circuit is getting set to hear an appeal from immigrant families regarding the Child Status Protection Act. Last month, Judge Selena from a federal district court in Los Angeles ruled against the petitioning families and upheld a strict USCIS re-interpretation of the law, but several sources are confident of winning this appeal.

Attorney Carl Shusterman justifies his optimism by discussing a prior INS regulation that restricted waivers for eligible physicians under the National Interest Waiver (NIW). Congress enacted the law to provide that "all physicians" working in medically-underserved areas were eligible for NIWs, but INS regulations limited this immigration benefit to only primary care physicians. A federal district judge upheld this re-interpretation but upon going to the Ninth Circuit, the judges were incredulous at the arguments put forth by the government. The Appeals Court judges overturned the decision of the district judge and ruled in favor of the plaintiff physicians.

Since the CSPA lawsuit is equally straightforward, Shusterman is confident that "the Judges on the Court of Appeals will not let an administrative agency unlawfully restrict who benefits from a law passed by Congress and signed by the President." Additionally, the Ninth Circuit has a good record on immigration cases, most recently ruling against the widow penalty, which spark a nationwide revoke of the law. The CSPA case has the backing of legal statutes enacted by Congress and it would not require mental gymnastics to overturn the USCIS re-interpretation.

The new interpretation of the Child Status Protection Act separates families by not enabling an aged-out (over 21) derivative beneficiary to retain their original priority date. It doubles the number of years a derivative beneficiary has to wait in line. While the derivative beneficiary waits in line all over again, s/he cannot get married for that slows the process. Effectively, this creates mixed-status families where parents are legal permanent residents and even U.S. citizens, while their young adult children are undocumented or even worse, unable to join them in the United States.

Over the years, the USCIS has made uneven rulings on this issue, the worst one being the case of Costello, where USCIS granted legal residency to one aged-out sibling but not the other. This uneven and probably illegal USCIS teetering of the law also encourages 'illegal immigration' and thousands of dollars lost in fighting lawsuits to separate families on your taxpayer dollars.

It is a matter of time before this obviously flawed regulation gets thrown out in a court of law.

(Photo Credit: Pima)