Immigration Newsletter – January 2012
Update on Khalid v. Holder…
Quite a few of our clients have asked us about the Fifth Circuit’s decision in Khalid v. Holder that was issued on September 8, 2011 and the implementation of this decision with U.S. Citizenship and Immigration Service (USCIS). As previously mentioned in the September 2011 newsletter, Khalid decision overturned the Board of Immigration Appeal’s (BIA) precedent decision in the Matter of Wang, 25 I&N Dec. 28 (2009). Section 203(h)(3) of the Immigration and Nationality Act (INA), enacted through the Child Status Protection Act (CSPA), provided the retention of the parents’ original priority date when the child is not protected by CSPA and was not able to accompany the parents. The BIA construed this provision in Wang to mean that the subsequent petition is a new and separate petition and would not be accorded the parents’ original priority date. Therefore, the child will have to wait for at least 8 years for the new visa petition to become current. The BIA based its interpretation because it found Section 203(h)(3) of the INA to be ambiguous; therefore, the BIA looks to the legislative history of CSPA and the petitioning process of the family petition to reach its decision. The 9th Circuit (California) in De Osorio v. Mayorkas (September 2, 2011) and the 2nd Circuit in Li v. Renaud, No. 10-2560-cv (June 20, 2011) agreed with the BIA’s interpretation in Wang. However, the 3 panel appellate judges unanimously in the 5th Circuit disagreed with BIA and opted not to follow Matter of Wang. The decision is effectively immediately and is only controlling in the states of Texas, Louisiana and Mississippi.
Khalid is a huge unexpected decision coming from a very conservative court of appeal. The significant of this decision will reduce a tremendous amount of time that the left-behind child will have to wait for a visa, especially now, the priority date is almost at a stand-still due to an outdated immigration system. On November 14, 2011, USCIS has requested an en banc hearing before the presence of all appellate judges for Khalid. It is still pending for a re-hearing, and there is no stay of this decision. Should the outcome be unfavorable or denied, there is a possibility that an appeal would be taken to the U.S. Supreme Court. Attorneys for the De Osorio and Li have also asked their perspective appellate courts for a rehearing in light of Khalid. The odd of Khalid being overturned is slim. The decision was well written, and they found that there was no ambiguity in the language and the plain language of the statute only lead to the conclusion for the retention of the priority date. There is a good likelihood that other circuits will now follow the 5th Circuit as well. The decision is effective immediately, and the office has requested USCIS to adjust the priority date based on the Khalid decision.
