Hermin Dowe, Attorney at Law

Immigration Law

North Bay | Pleasant Hill | San Pablo

AGED OUT: The Curious Case of the 2 year old minor child

July 27th, 2016 Leave a Comment

Under U.S. law, if a foreign national applies for an immigration visa, they can also include their children in their application. However, that child must be under the age of twenty-one when the visa is granted. There is, in theory, a safeguard in place against the child missing out on a new life, should they age out of the process: the Child Status Protection Act. However, a recent case decided by the Supreme Court has thrown the CSPA into limbo. The Dowe Law Firm tries to stay on top of current events, to make sure our clients are well informed.

The Case of N. Uy

In 1981, N.  Uy applied for an immigrant visa, based upon her sister’s U.S. citizenship. She included her daughter on the application, as she was allowed to do. The petition was approved on the very same day it was submitted. But the United States system turns on what are called priority dates. When you apply for a visa, the date it was accepted is your priority date. However, your visa will not be granted until your priority date comes up in the queue, because far more people apply for visas than can be granted in a given year.

Ms. Uy’s priority date did not come up for twenty-one years. During that time, her daughter, who had been two years old at the time of application, turned twenty-three. She was thus denied the ability to immigrate with her mother; the mother made the move while leaving her daughter behind.

The Child Status Protection Act was designed to avoid these situations, to allow children to retain their child status even if they age out. Norma was under the impression her daughter would qualify for its protection. If the petition is filed by a U.S. citizen relative the child’s age “freezes” on the date of filing. In theory, R. Uy should still be listed at two years old, if CSPA were applied in this manner.

 

Norma joined a lawsuit being filed by a group of parents alleging that because of CSPA, her daughter and other ‘aged-out’ children should not be forced to the back of the immigration line. They argued that the intent of Congress was clear in that it was intended to correct the “harsh and unmistakable effects” of allowing children to be separated from their families due to circumstances beyond their control (processing times).

The Supreme Court disagreed. On Monday, June 9, the court upheld a 2008 ruling from the Ninth Circuit that held the language of CSPA to be too ‘murky’ to warrant a reversal. When an agency interpretation of law – in this case, USCIS’s interpretation of CSPA – is in question in the courts, the courts historically give a great deal of weight to it, rather than the interpretation favored by the appellant. This is a major tenet of judicial review – the doctrine upheld by the American government that states that executive and legislative decisions are subject to review by the courts. Because the court ruled that CSPA’s language was ambiguous, it is now up to Congress to clarify it.

If you have a family member in the same situation, the Dowe Law Firm can help. Please do not hesitate to contact us. We serve Contra Costa, Solano  and Alameda Counties

Please share and help others...Share on FacebookShare on Google+Tweet about this on TwitterEmail this to someoneShare on LinkedIn

Leave a Reply

Awards & Reviews

  • avvo
  • kudzu
  • member