First Circuit finds Doctrine of Consular Nonreviewability does not Bar Review of Visa Category Reclassification

The First Circuit has determined that a consular post’s determination that a visa applicant was in the F-1 category, rather than an immediate relative, because he was over age 21 when his petitioning father naturalized, is reviewable by a federal court. The Court determined that the petition reclassification does not constitute a visa denial, and thus, does not implicate the doctrine of consular nonreviewability. The First Circuit also agreed with the Ninth Circuit that a beneficiary’s age at the time of a parent’s naturalization refers not to their biological age, but their CSPA-adjusted age. Thus, because the applicant’s CSPA-adjusted age was 20 at the time of his father’s naturalization, he was properly categorized as an immediate relative.

The full text of Teles de Menezes v. Rubio can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1253P-01A.pdf

Second Circuit Applies CSPA Age Reduction Formula to F2A Category

The Second Circuit has applied the CSPA’s age reduction formula to minor child of lawful permanent resident whose petitioning parent naturalized. The court determined that in this situation, the number of days the petition was pending should be subtracted from the beneficiary’s biological age to determine if the beneficiary is still under 21, and therefore, became an immediate relative when the parent naturalized.

The full text of Cuthill v. Blinken can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/3b5d5ef5-41d1-46ae-adab-dc59deb7d0e1/7/doc/19-3138_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/3b5d5ef5-41d1-46ae-adab-dc59deb7d0e1/7/hilite/

Second Circuit Applies Equitable Estoppel Doctrine in CSPA Case

The Second Circuit has applied the equitable estoppel doctrine to a case involving the Child Status Protection Act (CSPA). The petitioner had filed and adjustment of status application when she was 17 years old, as a derivative of her mother’s adjustment. The application arrived at USCIS a few days before the new visa bulletin went into effect, and thus, was premature. Instead of following agency policy, which was to reject such a filing, USCIS did not issue a rejection or a receipt notice, and failed to respond to service requests for three years. By the time the petitioner became aware that USCIS had no record of her adjustment application, she had aged out of her derivative status.

“USCIS's silence and inaction for the three years following the submission of Schwebel's 2007 application would reasonably suggest that the application was indeed being processed. For these reasons, we conclude that Schwebel reasonably relied on USCIS's inaction in believing that her 2007 application was being processed. In light of the ‘extraordinary circumstances’ here, where Schwebel's application was received by the agency just four days too early, and a visa remained available for another month and a half, the agency should have provided -- and indeed was required by its own procedures to provide -- reasonably prompt notice of the purported defect. If it had done so, Schwebel would likely have been able to resubmit her application within the application period. Because of USCIS's failure to provide reasonably prompt notice, Schwebel suffered great prejudice as she ‘aged out’ of the CSPA by the time another visa period opened. Her parents are now lawful permanent residents, and if the government's failures here are not rectified, there is a possibility that Schwebel will be separated from her family and removed from the country in which she has lived since she was eight years old.”

The full text of Schwebel v. Crandall can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/6/doc/18-3391_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/6/hilite/