Backlogged Country Child Status Protection Act Lawsuit

CURRENT STATUS OF LITIGATION: The Ninth Circuit dismissed the case due to lack of jurisdiction under Supreme Court precedent on August 6, 2024. Previously, on February 14, 2023, USCIS changed its policy with regard to the challenged Final Action Date / Dates for Filing issue in the lawsuit, in line with Plaintiff’s claims, which represents a partial victory. READ OUR BLOG POST.

court filings:

12-27-2019 - Class Action Complaint - NAKKA et al., v. USCIS, et al.

03-19-2020 First Amended Complaint

05-01-2020 Government’s Motion to Dismiss

05-14-2020 Plaintiff’s Response in Opposition to Motion to Dismiss

05-28-2020 Government’s Reply

08-19-2020 - Update: Oral Argument was presented by telephone to the Honorable Magistrate Judge You. Judge You explained that she understands the importance of the case to all parties, and that her Findings and Recommendations (F&R) will take some time to be issued. Once the F&R is issued, the parties can accept them or file objections, and then the final decision goes to a U.S. District Judge. This process could take a number of months, but there is no specific timeline that I can provide. If we prevail, we will be allowed to move the case forward to the next steps of Class Certification and Summary Judgement.

11-02-2020 Findings and Recommendations. The Magistrate Judge recommends the case be dismissed. The parties are permitted to file “objections” to the F&R are due Monday, November 16, 2020. After objections are filed the case is then reviewed by the District Judge and a final order is issued. After final order by the District Court, either side (or both) may appeal the decision to the U.S. Ninth Circuit Court of Appeals.

11-13-2020 Objections to Findings and Recommendations filed by plaintiffs. Plaintiffs submitted their objections to the Magistrate Judge’s Findings and Recommendations, arguing that the government’s request to have the lawsuit dismissed should be denied and the lawsuit allowed to proceed. The government will be allowed an opportunity to file their own objections within 14 days, and then after that the case will be considered by U.S. District Judge Michael H. Simon for his review and consideration. Judge Simon will make the final decision whether the case will be dismissed or allowed to proceed. Any judgment can be appealed by either the government or the plaintiffs to the U.S. Ninth Circuit Court of Appeals.

11-16-2020 Government Objections to F&R filed by USCIS and U.S. Department of State. The case will now be considered by U.S. District Judge Michael H. Simon for his review and consideration. Judge Simon will make the final decision whether the case will be dismissed or allowed to proceed. Any judgment can be appealed by either the government or the plaintiffs to the U.S. Ninth Circuit Court of Appeals.'

05-12-2021 ORDER DENYING Government Motion to Dismiss. Judge Simon denied the government’s request to have the lawsuit thrown out, and ordered Plaintiffs to file a Second Amended Complaint (SAC) to clarify the claims being made. The SAC must be filed within 14 days and then within 14 days of the SAC being filed the government must answer or respond to the SAC. The government has the option of answering the complaint or trying again to have the case thrown out through another motion to dismiss.

05-20-2021 SECOND AMENDED COMPLAINT filed by Plaintiffs.

06-10-2021 Government Second Motion to Dismiss. The government has responded to the Second Amended Complaint by filing a Second Motion to Dismiss. Plaintiffs will respond in opposition, and Defendants will have the opportunity to file a Reply after which time it will go once again before the Court for decision.

06-21-2021 Plaintiffs’ Response in Opposition to Defendants’ Second Motion to Dismiss. Plaintiffs have responded to the Government’s Second Motion to Dismiss the lawsuit. The Government is allowed a reply brief after which time it will be reviewed by the Court.

07-02-2021 Government’s Reply in Support of their Second Motion to Dismiss. The government has replied to the Plaintiff’s Response, and there are no further briefs allowed without court permission. What does this mean now? The Court can do a number of things next: 1) schedule the motion for oral argument if the Court needs to clarify any issues before making a decision, or 2) the U.S. Magistrate can issue a Findings and Recommendations which then goes to the U.S. District judge after the parties are allowed to file objections (like the first time around), and the U.S. District Judge issues a final decision after that, or 3) the U.S. District Judge can issue a final decision. Now we must wait to hear from the Court.

11-03-2021 The Hon. Magistrate Judge You has scheduled Oral Argument on the Government’s Second Motion to Dismiss for November 10, 2021. After Oral Argument is completed, another update will be provided.

11-10-2021 Oral argument rescheduled to November 16, 2021.

11-30-2021 The Hon. Magistrate Judge You issued her FINDINGS AND RECOMMENDATIONS and has recommended to Hon. Judge Simon that the case be DISMISSED due to failure to state a claim upon which relief can be granted. Judge You found that the plaintiffs had standing to sue and that their claims were ripe for decision. She found that plaintiffs could not claim a violation of equal protection under the U.S. constitution for unequal treatment. She also found that plaintiffs claims that the USCIS Policy Manual and Foreign Affairs Manual dictating the use of Final Action Date to calculate CSPA age instead of Dates for Filing was not “final agency action” and thus could not be reviewed under the Administrative Procedure Act. Objections to the F&R must be filed by December 14, 2021. After objections are filed, the Hon. Judge Simon can make a final ruling on the Government’s Second Motion to Dismiss. After Judge Simon’s ruling, either party can file an appeal to the U.S. Ninth Circuit Court of Appeals. Plaintiffs counsel Brent W. Renison is evaluating options for proceeding with plaintiffs.

12-14-2021 Plaintiffs file Objections to Findings and Recommendations. Defendants also filed their own Government Objections to the F&R.

1-11-2022 Plaintiffs file Response to Government Objections and Defendants file Response to Plaintiffs’ Objections. The case is now before the Hon. Judge Simon for decision. Judge Simon may issue a decision accepting or rejecting the F&R in whole or in part, or issue a new decision, which is then binding (as opposed to the Magistrate Judge’s authority to issue a recommendation only). Judge Simon may hold oral argument, or may issue a decision based only upon the written submissions and review of the transcript of the previous two oral arguments held before Magistrate Judge You.

1-27-2022 The Hon. Michael H. Simon, U.S. District Judge, Ordered Dismissal, but gave permission to Plaintiffs to file a Motion to Amend in order to cure deficiencies identified in the Order. Plaintiffs are working on preparing a Motion to Amend and intend to do so.

2-9-2022 Plaintiffs will not file a Motion to Amend complaint after further analysis of claims, and intend to file appeal to Ninth Circuit Court of Appeals. The USCIS and DOS communicated today that they will not change any of the policies to benefit Plaintiffs, and the only option now is to appeal.

3-4-2022 Notice of Appeal Filed

6-10-2022 Opening Brief Filed

8-11-2022 Government Brief Filed

9-1-2022 Reply Brief Filed

2-7-2023 Oral Argument held before the Ninth Circuit. Archived VIDEO of the oral argument.

2-14-2023 USCIS changed its policy following the oral argument, and has determined immediately to use Dates for Filing as published by USCIS to determine CSPA age instead of the Final Action Date Chart. The USCIS Policy Manual on CSPA calculation has been updated effective immediately. Those who have pending or denied cases due to the Dates for Filing / Final Action Date issue may now seek approval instead of denial. More details on this website are forthcoming as the new guidance is analyzed.

8-6-2024 Ninth Circuit Decision Issued. The circuit court has dismissed the lawsuit without reaching any of the merits of the case. The Ninth Circuit has extended the Supreme Court’s interpretation of § 1252(a)(2)(B) in Patel v. Garland, 596 U.S. 328 (2022) to constitutional and collateral APA claims to rule that purely legal challenges to adjustment of status practices and procedures require the plaintiff to apply for adjustment of status, be denied, be placed in removal proceedings (which is not a right), go before an immigration judge, be ordered removed, appeal to the Board of Immigration Appeals, and finally make a claim before the circuit court before having their claims of misapplication of law reviewed. In Nakka v. USCIS (9th Cir. August 8, 2024), the Court said, “We recognize that individuals like [plaintiff]—who have not violated any immigration laws—must violate the law to render themselves removable and obtain judicial review. And, ‘[w]e normally do not require plaintiffs to ‘bet the farm’ . . . by taking the violative action before testing the validity of the law, and we do not consider this a meaningful avenue of relief.’ Id. (cleaned up). However, Congress can require review in this manner by expressly limiting and channeling judicial review. See id. at 489–90. And, in CSS, the Court considered an almost identical situation. There, to obtain judicial review, the plaintiffs had to “either surrender to the INS for deportation or wait for the INS to catch [them] and commence a deportation proceeding, and then suffer a final adverse decision in that proceeding, before having an opportunity to challenge the INS’s denial of [the] application in court.” 509 U.S. at 55.” Brent Renison, counsel for plaintiffs, was “disheartened” by the opinion, after waiting nearly 5 years to have a decision on the merits. He commented, “A mockery of justice is made when law abiding immigrants must break the law before asking a federal judge to review whether the government has broken the law.”

CSPA Lawsuit for Children Aging Out Due to Nationality

Our firm is pursuing a class action lawsuit to seek equal treatment in the way a child’s age is calculated with respect to derivative immigrant status under the Child Status Protection Act (CSPA). Currently, some children have no hope of ever immigrating together with their parents because of the decades long wait for an immigrant visa, and because CSPA only fixes a child’s age as under 21 years of age when the priority date becomes current. Due to per country limits in the law, some children will not ever remain under 21 years of age because priority dates take longer than 21 years to become current. Unfortunately, USCIS does not allow children to keep their place in line either, even if the parents file for the children after becoming lawful permanent residents. They have to step all the way back in line and start over. This narrow view has been upheld by the Supreme Court, even though the agency could have taken the broader view and also had that interpretation upheld. See Scialabba v. Cuellar de Osorio, 573 US 41 (2014). What is more, USCIS has adopted a narrow view of which of the two charts may be used for the CSPA calculation, choosing to use the less advantageous “final action date” chart instead of the “dates for filing chart” for purposes of calculating a child’s age under CSPA (see Cyrus Mehta’s blog on this). All this narrow interpretation works a serious inequity upon children who are born in certain countries affected by the backlog. We believe this unfair treatment is a denial of equal protection under the U.S. Constitution.

The Supreme Court has said that Congress regularly makes rules that would be unacceptable if applied to citizens. One can debate the wisdom of that holding but it is established precedent in America’s highest court. This will undoubtedly be an uphill battle. When challenging an immigration law on Equal Protection (EP) grounds, the courts usually use the rational basis test, which allows the unfair law to remain in operation as long as the government can prove that the law is rationally related to a legitimate government purpose. The application of per-country caps to limit the number of individuals being admitted based on country of birth would probably survive this kind of test (meaning, it would be upheld) because the government arguably has a legitimate interest in ensuring that nationals of any one country do not take all of the visa numbers available. Whether or not this is good policy is another issue, and we believe it is not. But it is an entirely different matter to foreclose all possibility of immigration for the children of immigrants from certain countries (at present, India), while protecting the children of immigrants from other countries. This does not serve a legitimate government purpose. We believe that this unfair treatment can be struck down.

What happens if we succeed in the litigation? We will ask the courts to allow children from all countries, regardless of nationality, to use the “other countries” worldwide visa bulletin dates for purposes of calculating age under CSPA. This would be “equal treatment” under law, and would result in most children remaining eligible to immigrate together with their parents, even those born in India, as opposed to the present situation in which almost all Indian born children will not ever become eligible. We will also ask the courts to allow CSPA eligible children to be eligible for H-4 extensions as long as they remain CSPA eligible. This places them in an equal position to other children. The only thing that this lawsuit cannot seek to do is eliminate the per country caps, or the long waits for immigrant visas for some countries, which can only be fixed through legislation passed by Congress.

Seeking Plaintiffs

If you are a derivative beneficiary whether under 21 and facing losing your derivative eligibility, or you have lost your eligibility already because you are now over 21 years of age, please consider completing the questionnaire below with the relevant details for potential consideration as a plaintiff in the lawsuit to represent the class of people who are being harmed by this discriminatory set of laws and practices.

What is a class action and do I need to participate to get relief from the lawsuit?

This lawsuit will be filed as a “class action.” What this means is that a limited number of plaintiffs will include the facts of their cases in the lawsuit, and will seek to represent all the other affected individuals, who are called “class members.” Class members may provide affidavits or declarations explaining their circumstances, and request the court to have the plaintiffs represent them, but most class members do not participate in the lawsuit at all. Rather, this type of class action does not require any participation to be included in the relief that the lawsuit is seeking. Without plaintiffs, however, we can’t seek justice for anyone.

What does it mean to participate as a plaintiff?

Those who were selected to be plaintiffs wish to represent others through this lawsuit to obtain justice and equal treatment for themselves and also for others. Plaintiffs were required to provide information to our law firm and documentation of their claim. Plaintiffs will probably not need to appear in court, because it is unlikely that the government will contest any of the facts. This will be a legal challenge and not a factual one. It is prohibited for any government agency to retaliate against someone seeking justice through the courts, and plaintiffs should not fear their cases will be put in jeopardy by participating in the lawsuit.

Costs to participate

Our firm will be taking this on a pro bono basis, which means we will not collect legal fees from any plaintiffs or class members. You will not be required to pay money to participate in this lawsuit. If any of the plaintiffs are required to travel for any court appearances (which is very unlikely), we will seek to raise funds for the purpose of covering these costs.

NOTE: Completing this form does not obligate you to participate. Completing this form does not obligate our firm to represent you in this lawsuit. Completion of the form helps us track all the cases. No attorney-client relationship is created merely by completing this form. Before we agree to represent you there must be a written agreement to do so.