Child Enjoys CSPA Benefit until Final Determination
Posted Mar 12, 2004

The U.S. Court of Appeals for the Ninth Circuit issued a decision on February 19, 2004, that would help children enjoy the benefit of continuing to be considered a "child" under the Child Status Protection Act (CSPA). The CSPA was favorable legislation to expand the definition of child and allow specified children who are over 21 years of age still to be counted as children and enjoy certain immigration benefits. The Ninth Circuit Court of Appeals provided a liberal definition for the term "final determination," as used in the CSPA. The Court held that a final decision for CSPA purposes means a result that cannot be appealed.

As explained in our October 25, 2002 MurthyBulletin article, CSPA: Who Can Really Reap its Benefits, the concept of final determination is quite important in deciding whether a case is eligible under the CSPA. The CSPA became law on August 6, 2002 and applies to cases that were being processed on that date. It is important with respect to older children reaching the age of 21, who are derivative beneficiaries of their parent's family- or employment-based cases. The CSPA also applies to family- and employment-based cases approved before August 6, 2002, but only if the application filed by the now-21-year-old child has not received a final determination. Under the Ninth Circuit interpretation, denied cases with appeals that were pending on or after August 6, 2002, may be considered to qualify for CSPA protection. Without the CSPA, a child is no longer eligible as a derivative beneficiary of a parent's case after reaching age 21. This disqualification based on age is referred to as "aging out."

In this Ninth Circuit case, an Indian nonimmigrant had sought his derivative lawful permanent resident status in 1996 as the son of a family-based fourth preference applicant. Though he properly filed for derivative adjustment of status as a child before his 21st birthday, he turned 21 before the case was decided. Accordingly, in 1996, he was denied lawful permanent resident status because he had "aged out." He appealed this decision to the Board of Immigration Appeals, who upheld the holding, and then appealed the case to the Ninth Circuit. This appeal was pending on August 6, 2002.

The Court decided that a final determination is not made for CSPA purposes until all appeal processes have been exhausted. In the Court's analysis of this case, it decided that the petitioner qualified for the CSPA because the appeal was pending on the date that the CSPA was enacted, and because he met all other requirements of the CSPA. His case has been returned to the BIA for processing consistent with this opinion.

It is important to understand that the states are divided into federal circuits, and this ruling only applies in those states that are in the Ninth Circuit. Other circuits may make different findings. The Ninth Circuit case could also be appealed, and the U.S. Supreme Court could overturn the decision. Further, appeals always must be filed within strict deadlines. Therefore, it is highly unlikely that a pre-August 6, 2002 denied case could be revived now by appeal in an attempt to qualify under the CSPA. Those who had appeals filed before August 6, 2002, however, should consider whether their over-21-year-old children may still qualify under the CSPA based on this decision.