Recent Ninth Circuit Court Decision Helps Immigrant Families Stay Together.
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On February 18th, 2018, the Ninth Circuit Court of Appeals issued a decision regarding the aging out provision of the Child Status Protection Act (“CSPA”). The case is Rodriguez Tovar v. Sessions and can be found here.
Rodriguez Tovar was born in Mexico in 1983. In 2001 his father, who was a legal permanent resident at the time, filed a petition for him under the F2A category for minor children of LPRs. The petition received a priority date of April 30, 2001, but was not approved until over four years later, in 2005.
On July 3, 2006, Rodriguez Tovar’s father became a naturalized U.S. citizen. At that time Rodriguez Tovar was 23 years old. Under one of the CSPA’s provisions, an F2A beneficiary’s statutory age for visa purposes is calculated by subtracting, from his actual age, the number of days during which his F2A petition was pending. It meant that Rodriguez Tovar’s age at the time of his father’s naturalization for statutory purposes was only 19 (subtracting the four years during which his visa petition had been pending from his actual age.)
If his father remained an LPR, Rodriguez Tovar could have received his visa under the F2A category on June 1, 2007, when his statutory age was 20. Similarly, if he was considered 20 years old at the time of his father’s naturalization, he would have a visa available to him immediately as an immediate relative of a U.S. citizen.
In 2008 Rodriguez Tovar filed an application for adjustment of status which was denied, and he was put in removal proceedings. The reason for the denial was that Rodriguez Tovar was over 21 years old in biological age on the date of his father’s naturalization, so his F2A visa petition (for a minor child of a lawful permanent resident) immediately converted to an F1 visa petition (for an adult child of a U.S. citizen), and not to an immediate relative petition (unmarried child under 21 of a U.S. citizen).
Under the BIA decision, Rodriguez Tovar had to be deported and wait for a visa number to become available under the F1 category which would take years. The line for the F1 category is so long that, as of January 2018, he still did not reach the front of the line. In fact, he was not even close.
The BIA’s decision created an absurd situation where had his father remained an LPR, Rodriguez Tovar would have been eligible for a green card in 2007. Now, since his father chose to become a citizen, Rodriguez Tovar would have to wait in line abroad until approximately 2027 or even longer. In effect, such interpretation of the law penalizes people for choosing to naturalize.
Of course, to avoid such a harsh result, the Ninth Circuit court reversed the BIA’s decision and concluded that when Rodriguez Tovar’s father naturalized, his petition converted to an immediate relative petition because his statutory age was 20, according to the calculation provisions of the CSPA.
This decision is a positive step in keeping immigrant families together and will avoid unfair results in the future.
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