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.