Rosalina Cuellar De Osorio v. Alejandro Mayorkas
695 F.3d 1003
| 9th Cir. | 2012Background
- Appellants, lawful permanent residents, faced aging-out of derivative visas for their children due to backlogs and quotas.
- CSPA § 1153(h) permits age calculations and potential automatic conversion with priority-date retention for certain aged-out beneficiaries.
- USCIS denied priority-date retention, relying on Matter of Wang (BIA 2009), which limited automatic conversion to certain petitions.
- District court granted summary judgment in favor of USCIS, deferring to the BIA’s interpretation.
- Following appeals, the Ninth Circuit held that the CSPA unambiguously grants automatic conversion and priority-date retention to aged-out derivative beneficiaries across all family visa categories.
- The decision reversed the district court and remanded for proceedings consistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 1153(h)(3) extend automatic conversion to all aged-out derivative beneficiaries? | Cuellar de Osorio argues for broad applicability. | USCIS/BIA argued only limited scope per Wang. | Yes; § 1153(h)(3) applies to all derivative beneficiaries. |
| Is the statute unambiguous or ambiguous regarding scope of automatic conversion? | Statute clearly covers all derivative beneficiaries. | Statute is ambiguous and agency interpretation valid under Chevron. | Statute is unambiguous; court rejects deference to Wang. |
| Should the BIA’s interpretation in Matter of Wang be given Chevron deference? | Wang is not entitled to deference given textual clarity. | BIA interpretation should be given deference if reasonable. | Rejected; court does not defer to Wang; interprets statute plainly. |
| Do eligibility concerns for F3/F4 derivative beneficiaries create impracticability or ambiguity? | There is no practical impediment to automatic conversion for these derivatives. | Changing petition dynamics and new petitioners create impracticability. | Impracticability not premised; plain language controls; conversion possible. |
Key Cases Cited
- Khalid v. Holder, 655 F.3d 363 (5th Cir.2011) (automatic conversion extended to aged-out derivatives of all family petitions)
- Li v. Renaud, 654 F.3d 376 (2d Cir.2011) (derivative beneficiaries of non-F2A petitions not automatically converted)
- Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) (BIA held h(3) does not expressly apply to all petition types)
- Cuellar de Osorio v. Mayorkas, 656 F.3d 954 (9th Cir.2011) (discussed in opinion regarding interpretation of automatic conversion)
- Dole v. United Steelworkers of Am., 494 U.S. 26 (U.S. 1990) (statutory interpretation and congressional intent guidance)