Thursday, February 9th, 2017

CA9, En Banc (6-5) on CSPA: De Osorio v. Mayorkas (Rejecting Matter of Wang)

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Majority: "The United States Citizen and Immigration Services (“USCIS”) denied Appellants’ requests for priority date retention under the CSPA. USCIS relied on the Board of Immigration Appeals’ (“BIA”) decision in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) that the CSPA does not apply to all derivative beneficiaries.  The district court, deferring to the BIA’s interpretation, granted summary judgment to USCIS in two separate cases.  We reverse.  We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries.  The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference."

Dissent: "I would hold that § 1153(h)(3) is ambiguous about whether aged-out F3