PD date confusion over child age out of derivative beneficiary under a principal beneficiary of F4

[Dvdport 0]

I have been looking for  the applicable PD date over child age out of derivative beneficiary under a principal beneficiary of F4,  I have found successful case like " Matter of Garcia" in which she was successful for retaining the earlier priority date of the original petition that enabled the original principal beneficiary (her mother) become a lawful permanent resident.

http://www.ilw.com/articles/2006,1005-patel.shtm

https://www.shusterman.com/pdf/mariagarcia-childstatusprotectionact.pdf

 

i also found denied cases like "MATTER OF WANG" and "MATTER OF PATEL".

 

https://www.shusterman.com/pdf/EOIRWang.pdf

https://www.shusterman.com/pdf/Matterofpatel111.pdf

 

Any one with expertise can explain why  a much earlier successful case " Matter of Garcia" would not apply to these two much later cases and have been denied?

[aaron2020 11,651]

There's no retention of PD for aged out children in the F4 category.  The US Supreme Court has ruled on this.  The US Supreme Court overruled the earlier cases.  The cases you cited are no longer good law.

https://cliniclegal.org/resources/articles-clinic/cspa-ruling-age-out-derivatives-must-start-all-over

 

Retention of PD is only possible if the original petitioner could have filed, and that only applies to an LPR parent filing for a spouse with a child that ages out.  

Edited November 20, 2019 by aaron2020

[Dvdport 0]

Thanks for your update. one more question:

can F2B be converted to F1 once the parents becomes USC?

[aaron2020 11,651]

Just now, davidport said:

Thanks for your update. one more question:

can F2B be converted to F1 once the parents becomes USC?

Yes. 

[Dvdport 0]

Appreciate very much for your quick response.

Edited November 20, 2019 by davidport
change wording

[Dvdport 0]

this is  a long but interesting BLOG, but nothing comes out of it...

http://blog.cyrusmehta.com/2014/06/scialabba-v-cuellar-de-osorio-does-dark.html

It did cried out the unfairness of Aged-out children who have waited patiently for many years for their parent’s priority date to become current are told that they must now go back to the beginning of the line on a new petition filed by their parent under the Family 2B preference.

it is a quite surprise that it seems all forgot about case like " Matter of Garcia" and nobody ever mention it when the Supreme Court  deferred to the agency’s interpretation of this provision.

http://www.ilw.com/articles/2006,1005-patel.shtm

 

The agency’s first interpretation was " Matter of Garcia", not "MATTER OF WANG" and "MATTER OF PATEL"...

[aaron2020 11,651]

41 minutes ago, davidport said:

this is  a long but interesting BLOG, but nothing comes out of it...

http://blog.cyrusmehta.com/2014/06/scialabba-v-cuellar-de-osorio-does-dark.html

It did cried out the unfairness of Aged-out children who have waited patiently for many years for their parent’s priority date to become current are told that they must now go back to the beginning of the line on a new petition filed by their parent under the Family 2B preference.

it is a quite surprise that it seems all forgot about case like " Matter of Garcia" and nobody ever mention it when the Supreme Court  deferred to the agency’s interpretation of this provision.

http://www.ilw.com/articles/2006,1005-patel.shtm

 

The agency’s first interpretation was " Matter of Garcia", not "MATTER OF WANG" and "MATTER OF PATEL"...

You got your facts all wrong.  You don't seem to have a grasp of how the immigration system works or how US courts work. 

Derivative beneficiaries are NEVER guarantee to be able to immigrate with their parents and do not have any rights to anything.  Aging out is well know.  People are free to think this is unfair.  

The US Supreme Court can overrule lower courts.

No one forgot "Matter of Garcia."  The issues in Garcia were at the heart of the case decided by the US Supreme Court.  

Edited November 21, 2019 by aaron2020

[SusieQQQ 11,587]

12 minutes ago, aaron2020 said:

You got your facts all wrong.  You don't seem to have a grasp of how the immigration system works or how US courts work. 

Derivative beneficiaries are NEVER guarantee to be able to immigrate with their parents and do not have any rights to anything.  Aging out is well know.  People are free to think this is unfair.  

The US Supreme Court can overrule lower courts.

No one forgot "Matter of Garcia."  The issues in Garcia were at the heart of the case decided by the US Supreme Court.  

Exactly. One might as well say it’s also unfair that the derivatives who have waited for so long cannot immigrate if the principal is denied, or that none of them can immigrate if the petitioner dies, etc. The mere process of waiting unfortunately confers no rights in immigration law.

[geowrian 22,338]

Not saying I agree with the end impact or not, but I don't see an "unfairness". The person being petitioned is offered the opportunity to immigrate along with their spouse & unmarried children. Nothing was ever guaranteed, implied, or even inferred about their adult sons/daughters. These are not children. The very long wait is purely a function of supply and demand, not any sort of processing delay.