“Aging Out” of Immigration: Analyzing Family Preference Visa Petitions Under the Child Status Protection Act

April 2, 2012

In the late 1990s, extensive backlogs and delays by U.S. Citizenship and Immigration Services in processing family-based visa petitions caused many children to “age out” of immigration eligibility and face separation from their families. To rectify this problem, on August 6, 2002, Congress enacted the Child Status Protection Act (CSPA), which permits an applicant to retain classification as a “child” for immigration purposes, even if he or she has reached the age of twenty-one. The CSPA “freezes” the age of the applicant through a mathematical formula that allows the time that a visa petition was pending to be subtracted from his or her age.

In Matter of Wang, the Board of Immigration Appeals (BIA) limited the applicability of section 203(h)(3) of the CSPA to certain family-based visa petitions. This Note focuses on the subsequent circuit split between the Second, Fifth, and Ninth Circuits over whether the BIA’s decision in Wang should be given deference under the standard set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Ultimately, this Note endorses the Ninth Circuit’s recent holding in Cuellar de Osorio v. Mayorkas. This Note contends that section 203(h)(3) is ambiguous under the first prong of Chevron analysis. Applying Chevron’s second prong, this Note argues that the BIA’s construction of the statute represents a reasonable policy decision for the agency to make and thus merits deference.

April 2012

No. 5