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Feimei Li, Duo Cen v. Daniel M. Renaud

June 30, 2011

FEIMEI LI, DUO CEN, PLAINTIFFS-APPELLANTS,
v.
DANIEL M. RENAUD, DIRECTOR, VERMONT SERVICE CENTER, UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, ALEJANDRO MAYORKAS, DIRECTOR, UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, JANET NAPOLITANO, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Pooler, Circuit Judge:

10-2560-cv

Li v. Renaud

Argued: May 12, 2011

Before: WINTER, POOLER, B.D. PARKER, Circuit Judges.

Plaintiffs-Appellants appeal the judgment of the District Court for the Southern District of New York (Marrero, J.), dismissing their complaint for failure to state a claim. Plaintiffs- Appellants argue that the Child Status Protection Act, and in particular 8 U.S.C. § 1153(h)(3), entitles Duo Cen, an alien who aged out of eligibility for an immigrant visa as a derivative beneficiary to his grandfather's 1994 petition, to retain the 1994 priority date for his mother's 2008 family-sponsored petition for Duo Cen. We disagree. Section 1153(h)(3) does not entitle an alien to retain the priority date of an aged-out family preference petition if the aged-out family preference petition cannot be "converted to [an] appropriate category." Affirmed.

Plaintiffs-Appellants appeal the judgment of the District Court for the Southern District of New York (Marrero, J.), dismissing their complaint for failure to state a claim. Plaintiffs- Appellants argue that the Child Status Protection Act, and in particular 8 U.S.C. § 1153(h)(3), entitles Duo Cen, an alien who aged out of eligibility for an immigrant visa as a derivative beneficiary to his grandfather's 1994 petition, to retain the 1994 priority date for his mother's 2008 family-sponsored petition for Duo Cen. We disagree. Section 1153(h)(3) does not entitle an alien to retain the priority date of an aged-out family preference petition if the aged-out family preference petition cannot be "converted to [an] appropriate category." Because Plaintiffs- Appellants have specified no "appropriate category" to which Duo Cen's grandfather's petition could be converted, Section 1153(h)(3) does not entitle him to retain the 1994 priority date from his grandfather's petition.

I. A. In 1952, Congress enacted the Immigration and Nationality Act ("INA"), establishing the basic structure of today's immigration laws. Pub. L. No. 82-414, 66 Stat. 163 (1952). Three main features are relevant here. The Act (1) set a limit on the total number of immigrant visas available; (2) continued and codified the national origins quota system established by the Immigration Act of 1924, Pub. L. No. 68-139, 43 Stat. 153, which set maximum quotas for immigrant visas based on the nation of the immigrant's birth (or, if the immigrant was part of "the Asia-Pacific triangle," based on the immigrant's race); and (3) established a family preference system that applied to each national origins quota category - 30% of each quota category was set aside for parents of United States citizens and an additional 20% of each quota category was set aside for spouses or children of lawfully admitted permanent residents of the United States ("LPRs"). Pub. L. No. 82-414, §§ 202-03, 66 Stat. 163, 176-79 (1952). Although brothers, sisters, sons, and daughters of United States citizens were not guaranteed quota slots, they did receive a preference for any unused quotas. Id. § 203(a)(4), 66 Stat. at 178-79. In 1965, concerned about discrimination on the basis of "race, sex, nationality, place of birth, or place of residence," Congress repealed the national origins quota system. Act of Oct. 3, 1965, Pub. L. No. 89-236, § 2, 79 Stat. 911, 911-12. Instead, Congress substituted a generally uniform limit of 20,000 immigrants per year from any one country. Id. Today, the INA specifies (1) a worldwide limitation on the total number of family- sponsored immigrant visas issued each year, 8 U.S.C. § 1151(c); (2) preference categories for certain types of family members of citizens and LPRs, id. § 1153(a); (3) numerical limitations on the number of family-sponsored immigrant visas in each family preference category, id.; and (4) a generally uniform limitation that natives of any single foreign state not constitute more than 7% of the visas granted to family-sponsored immigrants, id. § 1152(a)(2). Unlike other types of family-sponsored immigrants, immediate relatives of United States citizens are not subject to either the numerical limitations per country or the worldwide level of total visas granted per year. Id. § 1151(b). Moreover, additional visas are available for immigrants of countries that recently have sent few immigrants to the United States. Id. § 1153(c)(1)(B). At all times relevant to this appeal, the INA provided the following family preference categories:

F1: unmarried son or daughter of U.S. citizen

F2A: spouses or children of LPR, where a child is an unmarried person under 21 (with some exceptions)

F2B: unmarried son or daughter of LPR

F3: married son or daughter of U.S. citizen F4: brother or sister of U.S. citizen See id. § 1153(a).

Under the INA, a citizen or LPR who desires that a family member receive an immigrant visa must file a petition with the United States Citizenship and Immigration Services ("USCIS"). Id. § 1154(a)(1). The citizen or LPR who files the petition is the petitioner and the sponsored immigrant is the primary beneficiary. Generally, an immigrant cannot self-petition but must be sponsored by a family member who is a citizen or LPR. If the sponsored immigrant - the primary beneficiary - has a spouse or child accompanying or following to join, that spouse or child is eligible to receive, as a derivative beneficiary, the same status as the primary beneficiary when the primary beneficiary receives her visa. Id. § 1153(d).

When a citizen or LPR files a petition on behalf of an immigrant, USCIS determines whether the immigrant is qualified to be a beneficiary. Id. § 1154(b). Once the beneficiary is deemed qualified, USCIS approves the petition. See Drax v. Reno, 338 F.3d 98, 114 (2d Cir. 2003); accord Bolvito v. Mukasey, 527 F.3d 428, 430 (5th Cir. 2008).

USCIS's approval of a petition does not automatically cause the agency to issue a visa or grant permanent lawful resident status to the beneficiary; instead, the beneficiary receives a place in line to wait for a visa. Bolvito, 527 F.3d at 431 n.4. Within preference categories, immigrant visas are issued to beneficiaries on a first-come-first-served basis, in order of the date the petition was filed (the petition's priority date). Given the annual limitations on the total number of visas that may be granted for a particular family preference category - and on the number of natives of a single country who may receive visas - the waiting line to receive a visa often is long. The number of family preference petitions each year for visas for Chinese immigrants, for example, far exceeds the numerical limitations for each family preference category. It is not uncommon for such immigrants to wait a decade or more after USCIS granted the petition to receive a visa.

B. This regime, however, could have anomalous results. Eligibility was determined on the date a visa became available, not when a petition was filed or approved. Thus, before August 2002, an immigrant might have waited in line for a visa for years only to lose his or her spot. The reason was that at the time a visa became available, an immigrant sponsored by a family member may no longer have been the spouse, child, or unmarried son or daughter of the petitioner. If so, the immigrant was no longer eligible for a visa.

Child beneficiaries were especially affected by the long delays before a visa became available. Many children "aged-out" of their status as a "child" - that is, after waiting years to receive a visa, they were no longer under 21 years of age, and thus were not eligible to receive a visa as a ...


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