Mayorkas v. Cuellar de Osorio

(1) Whether the Child Status Protection Act ("CSPA") grants “automatic conversion and priority date retention” to allow applicants who were derivative recipients of visas but "aged out" before the visas were granted, and now apply as adults, to apply using the original filing date of their parents' visa applications; And (2) whether the Board of Immigration Appeals ("BIA") exceeded its authority when it interpreted CSPA was ambiguous and narrowly limited "automatic conversion."

Petitioner denied Respondent's request to use the original filing dates of Respondent's parents’ applications when Respondent applied as adults under 8 USC §1153(h)(3), the Child Status Protection Act (“CSPA”). The CSPA provides for “automatic conversion and priority date retention” of amended visa applications to account for Respondent “aging out” of their prior status as children of immigrant applicants.

Respondent claims that 8 USC §1153(h)(3) grants “automatic conversion and priority date retention” to adult visa applicants who, as children, would have been derivative recipients when their parents were granted visas. The Board of Immigration Appeals (“BIA”) upheld the action as conforming to BIA’s earlier decision in Matter of Wang (2009) that §1153(h)(3) was ambiguous, and limited "automatic conversion" to F2A visa applicants. Respondent's application did not seek F2A visas, and therefore “automatic conversion” did not apply. The lower court granted summary judgment for Petitioner. On appeal the court affirmed the trial court, but upon rehearing en banc the Ninth Circuit vacated and reversed.

The Ninth Circuit held §1153(h)(3) was unambiguous, BIA interpreted the law erroneously, and acted beyond its discretion. “Automatic conversion” applies to all “aged-out” applicants, and because Congress’s intent was clear and unambiguous BIA exceeded its authority to narrowly interpret CSPA. Petitioner sought a grant of certiorari to clarify if § 1153(h)(3) applies to all “aged-out” applicants, and whether the BIA exceeded its authority by narrowly interpreting §1153(h)(3) because it was “ambiguous.”