Rosalina Cuellar De Osorio v. Alejandro Mayorkas

Opinion by Judge MURGUIA; Dissent by Judge MILAN D. SMITH, JR.

OPINION

with whom PREGERSON, WARDLAW, FISHER, GOULD and PAEZ, Circuit Judges, join in full:

Appellants became lawful permanent residents and immigrated to the United States. However, due to visa quotas and a serious backlog, by the time Appellants received their family-sponsored visas, their children were no longer eligible to accompany them as recipients of derivative visas, which are available only to children under the age of twenty-one. Their children had “aged out” of eligibility.

The question before us is whether these children are entitled to relief under the Child Status Protection Act (“CSPA”), 8 U.S.C. § 1153 (h). The CSPA provides, among other things, that when certain aged-out aliens apply for visas under a new category for adults, they may retain the filing date of the visa petition for which they were listed as derivative beneficiaries when they were children. This ensures that visas are available quickly, rather than requiring the now-adult aliens to wait many more years in a new visa line.

The United States Citizen and Immigration Services (“USCIS”) denied Appellants’ requests for priority date…

with whom KOZINSKI, Chief Judge, and McKEOWN, W. FLETCHER and RAWLINSON, Circuit Judges, join, dissenting:

The statutory provision at issue in this case, 8 U.S.C. § 1153 (h), “is far from a model of clarity.” Robles-Tenorio v. Holder, 444 Fed.Appx. 646, 649 (4th Cir.2011). The Second Circuit recently held that § 1153(h)(3) means the exact opposite of what the majority holds. See Li v. Renaud, 654 F.3d 376, 382-83 (2d Cir.2011). Other courts, including the original three-judge panel in this case, concluded that § 1153(h)(3) is ambiguous, and that the Board of Immigration Appeals’s (BIA) decision is entitled to deference under Chevron U.S.A Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984). See, e.g., Cuellar de Osorio v. Mayorkas, 656 F.3d 954, 965-66 (9th Cir.2011), vacated, 677 F.3d 921 (9th Cir.2012); Zhong v. Novak, No. 08-4597, 2010 WL 3302962 , at *7-9 (D.N.J. Aug. 18, 2010); Co v. U.S. Citizenship & Immigration Serv., No. CV 09-776-MO, 2010 WL 1742538 , at *4 (D.Or. Apr. 23, 2010); cf. Robles-Tenorio, 444 Fed.Appx. at 649 (“It is unclear whether the text and structure of (h)(1) and (h)(3) can be reconciled in any coherent…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSALINA CUELLAR DE OSORIO; 

ELIZABETH MAGPANTAY; EVELYN Y.

SANTOS; MARIA ELOISA LIWAG;

NORMA UY; RUTH UY,

Plaintiffs-Appellants, v. No. 09-56786 ALEJANDRO MAYORKAS, Director,  D.C. No. 5:08-cv-00840- United States Citzenship and Immigration Services; JANET JVS-SH NAPOLITANO, Secretary of the Department of Homeland Security,

HILLARY RODHAM CLINTON,

Secretary of State, Defendants-Appellees. 

11811 11812 DE OSORIO v. MAYORKAS

TERESITA G. COSTELO; LORENZO P. 

ONG, Individually and on Behalf of all Others Similarly Situated, Plaintiffs-Appellants, v. JANET NAPOLITANO, Secretary of the Department of Homeland Security; UNITED STATES No. 09-56846 CITIZENSHIP AND IMMIGRATION D.C. No. SERVICES; ALEJANDRO MAYORKAS,  8:08-cv-00688- Director, United States Citizenship JVS-SH and Immigration Services; LYNNE

OPINION

SKEIRIK, Director, National Visa Center; CHRISTINA POULOS, Acting Director, California Service Center, United States Citizenship and Immigration…