Immigration Law

9th Circuit Splits 6-5 Over Immigration Provision, Sides with Applicants Who've 'Aged Out'


In an en banc ruling, the 9th U.S. Circuit Court of Appeals has held that children of immigrants who are given derivative visas can immigrate with their parents to the United States, even if they’ve “aged out” by turning 21 before their parents’ visas were processed.

The Recorder reports that while splits in the 9th Circuit usually are along ideological lines, this one in the ruling over interpreting the 2002 Child Status Protection Act appeared to include ethnicity as a factor, with three of the court’s Latino judges joining the majority.

Writing for the majority (PDF), Judge Mary Murguia opined that a Board of Immigration Appeals interpretation of the statute “conflicts with the plain language of the [Child Status Protection Act], and it is not entitled to deference.”

In his dissent, the Recorder reports that Judge Milan Smith Jr. noted differing interpretations of the statute in the 2nd and 5th Circuits and reasoned that the court should have deferred to the BIA.

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