Khalid v. Holder
2011 U.S. App. LEXIS 18622
| 5th Cir. | 2011Background
- Khalid, a Pakistani citizen, entered the U.S. on a visitor visa in 1996; his aunt, a U.S. citizen, filed a fourth-preference petition for Khalid's mother with a January 12, 1996 priority date.
- The mother's 1996 priority did not become current until February 2007, by which time Khalid was 22, so he aged out and could not be a derivative on the aunt's petition.
- Khalid's mother later became an LPR and filed a second-preference petition on Khalid's behalf with a 2007 priority date, delaying visa availability for Khalid until around 2015.
- DHS denied Khalid's request to adjust status using the 1996 priority date from the aunt's petition, on the ground he was no longer a child under the law.
- Khalid argued under the Child Status Protection Act (CSPA) that he could retain the earlier priority date via §1153(h) via automatic conversion and priority date retention when aged out.
- The BIA applied Matter of Wang (2009) to deny Khalid's retention/conversion rights, and Khalid petitioned for review in the Fifth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1153(h)(3) applies to derivative beneficiaries of fourth-preference petitions. | Khalid contends all petitions described in §1153(h)(2) are eligible for §1153(h)(3) benefits. | HOLDER argues the BIA correctly limited §1153(h)(3) to certain petitions and did not apply to Khalid's fourth-preference derivative status. | §1153(h)(3) unambiguously applies to all petitions described in §1153(h)(2), including fourth-preference. |
| Is the BIA's interpretation in Matter of Wang consistent with the plain text of the CSPA? | Khalid asserts Wang misreads the interrelated subsections and violates the statute's plain language. | HOLDER argues Wang reflects the proper interpretation given legislative intent and historical practice. | Wang is incorrect; the statute's text requires applying §1153(h)(3) to the universe described in §1153(h)(2). |
| Are automatic conversion and priority date retention available when a derivative beneficiary's petition changes petitioner? | Khalid argues the benefits can apply even if the petitioning party changes due to conversion. | HOLDER contends retention/conversion hinges on unchanged petitioner or narrow constructions of conversion. | The benefits apply to the described universe, regardless of petitioner change, avoiding redundancy and honoring the statute. |
Key Cases Cited
- Li v. Renaud, 654 F.3d 376 (2d Cir. 2011) (confirms ambiguity and circuit split on §1153(h)(3) applicability)
- Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) (BIA interpretation of §1153(h)(3) limiting to certain petitions)
- Matter of Garcia, 2006 WL 2183654 (BIA 2006) (recognizes appropriate category for aged-out derivative beneficiaries)
- Dole v. United Steelworkers, 494 U.S. 26 (1990) (statutory analysis: ambiguity is contextual; whole statute governs)
- Brown v. Gardner, 513 U.S. 115 (1994) (statutory-context reading cautions against isolating provisions)
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (read statute as a whole; no isolated provision understanding)
- Sierra Club v. Sandy Creek Energy Assocs., 627 F.3d 134 (5th Cir. 2010) (agency action not allowed to override clear Congressional text)
- New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) (statutory interpretation: respect plain text over agency tinkering)