Following on the heels of the “gag order” that Obama issued on the “stop the deportations campaign” is a notice telling me that I’m officially in removal proceedings.
No, this is not an April Fools’ joke.
The Notice to Appear for a Master Hearing is for November 10, 2011, just four days short of my 12 year anniversary in this country.
(So much for Barack Obama not deporting DREAM-eligible youth or am I just too old and educated to qualify now?)
I’m the grandchild of a U.S. citizen and the daughter of legal permanent residents of the United States. The fact that I’m in removal proceedings is incomprehensible as a matter of fact and law.
Legally, my hope rests on a fair and positive resolution of Costelo v. Chertoff in the Ninth Circuit. My mother is part of the class action for the Child Status Protection Act certified by Judge Selna in 2009:
“Aliens who became lawful permanent residents as primary beneficiaries of third- and fourth-preference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second-preference petitions on behalf of their aged-out unmarried sons and daughters, for whom Defendants have not granted automatic conversion or the retention of priority dates pursuant to § 203(h)(3).”
My mother became a lawful permanent resident as a primary beneficiary of a third-preference visa through her U.S. citizen mother, where I was a derivative beneficiary. Since the petition was approved with a priority date of January 2001 and I was present here in December 2000, I’ve 245-I eligibility, which waives unauthorized stay and employment. After my mom became a green card holder, she also subsequently filed a second-preference petition on behalf of me (her aged-out unmarried daughter) that USCIS did not grant automatic conversion or retention of priority date for pursuant to § 203(h)(3). The result of this decision is that I am ineligible to claim a green card based on the petition filed on behalf of my mother because I am over 21. Instead of using the original date of filing, USCIS issued a new priority date for the second-category petition filed by my mom, which could take up to a decade. It means “waiting in line” all over again.
Congress passed the Child Status Protection Act (CSPA), Pub L. No. 107-208, 116 Stat. 927 (2002) to address this precise problem in immigration law. However, due to gaps left by Congress in the making of public policy, agencies like the United Citizenship and Immigration Services (USCIS) have the authority to interpret the law through their own regulations. Under the two-part test set forward in Chevron, if the intent of Congress is clear, that is the end of the matter, but if the statute is silent or ambiguous with respect to issue at hand, a reviewing court must defer to the agency decision so long as agency’s interpretation is not arbitrary, capricious, or manifestly contrary to the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844 (1984). Deference to the USCIS on immigration and refugee law has created a disaster for legal permanent resident parents who are often separated from their only children, contrary to the spirit and purpose of the CSPA.
In Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the BIA narrowed the scope of CSPA to children of lawful permanent residents who were previously eligible as derivative beneficiaries under a second-preference spousal petition filed by the same lawful permanent resident. This recent USCIS interpretation of the Child Status Protection Act prolongs family separation by not enabling an aged-out derivative beneficiary to retain their original priority date as per Section 203(h)(3) of the Immigration Nationality Act, which states that:
If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.
The decision automatically doubles the number of years a child of a legal permanent resident has to wait in line for a green card. It is arbitrary and capricious, and manifestly contrary to the statute.
Section 203(h)(3) of the Child Status Protection Act is arguably not ambiguous. Legislative history shows that the House of Representatives originally limited the applicability of CSPA to the immediate relative of a U.S. citizen. However, Senator Dianne Feinstein revised and expanded the Senate version of the CSPA, noting that:
“[T]he legislation I have introduced today would provide a child, whose timely filed application for a family-based, employment-based, or diversity visa was submitted before the child reached his or her 21st birthday, the opportunity to remain eligible for that visa until the visa becomes available . . . “
In discussing the need for the legislation, Senator Feinstein explained:
INS backlogs have carried a heavy price: children who are the beneficiaries of petitions and applications are “aging out” of eligibility for their visas, even though they were fully eligible at the time their applications were filed. This has occurred because some immigration benefits are only available to the “child” of a United States citizen or lawful permanent resident, and the Immigration and Nationality Act defines a “child” as an unmarried person under the age of 21. As a consequence, a family whose child’s application for admission to the United States has been pending for years may be forced to leave that child behind either because the INS was unable to adjudicate the application before the child’s 21st birthday, or because growing immigration backlogs in the immigration visa category caused the visa to be unavailable before the child reached his 21st birthday. As a result, the child loses the right to admission to the United States. This what is (sic) commonly known as “aging-out.”
Thus, Senator Feinstein made clear that CSPA applied not only to administrative delays but to children who aged out due to backlogs. The Senate passed this version of the Child Status Protection Act, along with the House, and the bill was signed into law by President Bush. However, USCIS and the Board of Immigration Appeals have worked to narrow the scope of CSPA over the years and their arbitrary and capricious re-interpretation of the statute now regularly receives deference in courts.
While the American Immigration Law Association has filed a supportive amicus curie brief, none of the lawyers I’ve seen in the past two years appear confident about this case besides the lead counsels fighting it. The oral arguments are yet to be scheduled. So I need backup arguments.
In the meantime, I’ll take the Notice to Appear as a compliment. It looks like I’m an important enough threat to be the target of ICE enforcement efforts. I thought DHS Secretary Napolitano was prioritizing removing so-called “criminal aliens” from the country and students like me were not the target of ICE enforcement efforts. I was wrong. Funnily, I’ve never received a speeding ticket or citation, let alone seen the inside of a police station. My only “crime” is that I turned 21 before my mother became a legal permanent resident of the United States. Unfortunately, I can’t stop aging. I’d love to know how to reverse the process. I’m sure everyone would.
But you know what’s a bigger crime? Separating a mother from her child. Separating a child from her mother based on an arbitrary age. I don’t know how my parents are supposed to survive this, considering all their hopes and dreams for the future are pinned on me, considering they came to this country only to give me a better life.
It’s also unfortunate that no court of law would hear my claim of the years of pain, anguish and trauma that I’ve faced by the simple fact that according to immigration law, my only parents are not my immediate relatives.
They are legal permanent residents now. They will be U.S. citizens soon. And they still won’t have the right to keep their youngest daughter in this country.
God Bless America.