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Undocumented Youth Get Credit for “Waiting in Line” Under Federal Appeals Court Ruling

Turning 21 no longer sends undocumented children who have waited for years to have their cases heard to the back of the line in several states.

The Ninth Circuit decision means undocumented children who grew up in the US won’t have to move to the back of the line if they turn 21 while waiting a decade or more for immigration applications to be processed.

Immigration opponents often speak about immigrants “waiting their turn in line.” But what if you waited in line so long that you ended up at the back of it again?

With the wait times for family visas averaging more than seven years, this is the reality for thousands of young immigrants, including many DREAMers.

Under a recent decision by the Ninth Circuit US Court of Appeals in Osorio v. Holder, people whose grandparents’ or parents’ petitions included them when they were minors will get credit for the amount of time they’ve waited in line. Before the ruling, people that would have benefited from their parents immigration application but “aged out” – turned 21 – before the application was processed would have no options to change their status.

Immigration attorneys say it could grant them a green card almost immediately.

“I think it’s a fantastic ruling,” said Prerna Lal, an undocumented immigrant and law clerk at Benach Ragland, LLP. “It guarantees that families will no longer be separated and that people who have grown up in this country will not be subject to removal and deportations.”

In the absence of political will to tackle the immigration question head-on at the Congressional level, most changes to immigration law have come piecemeal. President Obama’s deferred action program, the introduction of parts of SB 1070 and the Ninth Circuit’s ruling all have been puzzle pieces that have impacted the lives of immigrants.

The decision will only benefit immigrants in the Ninth Circuit, which includes California, Oregon, Washington, Alaska, Hawaii, Nevada, Arizona, Idaho, Montana and Guam. In addition, the Fifth Circuit – Mississippi, Louisiana, and Texas – already has a similar ruling in place.

The changing nature of who is considered a “child” also accounts for the high number of families where one member might be a citizen while another struggles with life as an undocumented immigrant. The Pew Center estimates that 9.5 million people live in families where at least one member is undocumented.

The ruling hits close to home for Lal, who is originally from Fiji. Her grandmother, a US citizen, sponsored her parents for their papers in 2001, when Lal was a child:

By the time my parents could benefit from the sponsorship, I was over 21. I applied for a green card under the Child Status Protection Act, however, the USCIS said I had ‘aged-out.’ They said that I did not get to retain my place in line because I was now over 21, never mind the fact that I had waited in line for more than 10 years. They told me to go back to the end of another line, and placed me in deportation proceedings.

The Osorio decision is on an interpretation of the Child Status Protection Act (CSPA). The CSPA is an amendment to the Immigration Nationality Act, which determines who qualifies as a “child” for immigration purposes, but only if the person is being petitioned on behalf of a parent that is a citizen already or being naturalized.

It was originally put into place to keep families intact despite waiting times that could drag on for decades.

In 2009, attorneys challenged the interpretation of the CSPA in Matter of Wang to say that the ruling should also help people whose grandparents or siblings filed on their behalf.

The court ruled against them. When Lal applied for status under the CSPA in 2011, her grandparents’ petition on her parents behalf, which covered her as a child, wasn’t valid after she turned 21.

Lal had her second immigration status hearing in October, and hopes to have one of the first green cards issued under the expanded CSPA.

She hopes this could set a precedent.

“Depending on which state you live in, you will derive a different benefit from this law,” she said. “People in other states can make the argument and argue their way up to the court of appeals in their jurisdiction and actually change the laws.”

Right now, “we are waiting to see if the government is going to get a challenge from the Supreme Court or United States Citizenship and Immigration Services (USCIS).”

The government has until December 26th, 2012, to appeal the Ninth Circuit’s ruling. Some immigration attorneys have advised their clients not to apply for adjustment of their status until the ruling goes through.

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