Tag Archive for: Hardship

CSPA Disharmony is More Beautiful Than Monotony Notwithstanding a Discrepancy between USCIS and DOS Policy in Protecting the Age of the Child

By Cyrus D. Mehta and Kaitlyn Box*

In early 2023, USCIS reversed its longstanding policy of recognizing only the Final Action Dates (FAD) in the State Department Visa bulletin as protecting a child’s age under the Child Status Protection Act (CSPA), and agreed to use the Dates for Filing (DFF) to protect the age of the child. This shift in policy allowed the age of many more children to be protected under the CSPA.  USCIS acknowledged that:

“After the publication of the May 2018 guidance, the same applicant for adjustment of status could have a visa “immediately available” for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation. Applicants who filed based on the Dates for Filing chart would have to pay the fee and file the application for adjustment of status without knowing whether the CSPA would benefit them. To address this issue, USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application. This update resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available.”

Cyrus Mehta had long advocated for the use of the DFF for CSPA calculation purposes, and discussed the implications of this policy change at length in a prior blog entitled “CSPA Disharmony: USCIS Allows Child’s Age to be Protected under the Date for Filing While DOS Allows Child’s Age to Be Protected under the Final Action Date”. 

Now, USCIS without advance notice has again reverted to its prior policy, stating in an August 8, 2025 Policy Alert that: 

… “a visa becomes available for the purposes of Child Status Protection Act age calculation based on the Final Action Dates chart of the Department of State Visa Bulletin. The new guidance applies to requests filed on or after August 15, 2025. We will apply the Feb. 14, 2023, policy of CSPA age calculation to adjustment of status applications pending with USCIS before August 15, 2025, as these aliens may have relied on that policy when they filed.    

This policy update ensures both USCIS and the Department of State use the Final Action Dates chart in the Visa Bulletin to determine when a visa becomes available for the purposes of CSPA age calculation. This establishes a consistent CSPA age calculation for aliens who apply for adjustment of status and immigrant visas. The Feb. 14, 2023, policy resulted in inconsistent treatment of aliens who applied for adjustment of status in the United States versus aliens outside the United States who applied for an immigrant visa with the Department of State.”

This change will become effective for applications filed on or after August 15, 2025. 

USCIS’ February 14, 2023 policy that used the DFF to protect the age of the child was salutary, and should have been left in place. This policy protected many more children from aging out, and had a clear legal basis since the DFF allowed one to apply for adjustment of status based on visa availability under INA 245(a)(3) while the child’s age was also frozen based on visa availability under INA 203(h)(1)(A).

The August 2025 policy reversal is ostensibly aimed at ensuring that both the USCIS and the Department of State (DOS) use the FAD chart to determine when a visa becomes available for purposes of the CSPA calculation. A discrepancy indeed existed between the USCIS and State Department policy, as DOS did not issue guidance that corresponded to USCIS’ February 14, 2023 guidance, nor did it update Foreign Affairs Manual (FAM) accordingly. However, both the USCIS and State Department could have instead used the DFF rather than the FAD to determine visa availability.

Notwithstanding the discrepancy between USCIS and State Department policy, using the DFF for CSPA calculation purposes benefited children in the U.S. in a nonimmigrant status whose age got protected under the DFF, and who sought to acquire permanent residence within one year of visa availability, even though their parents obtained an immigrant visa, and permanent residence, under the Final Action Dates some years later.  It also benefitted the entire family if they were here in the US and all filed I-485 adjustment applications together as it kept them united and they were able to derive benefits from the I-485 such as work authorization and travel permission. 

USCIS’ policy reversal will have significant implications for children whose age will no longer get protected under the CSPA. Children of parents who were born in backlogged countries such as India and China are likely to suffer the most severe hardship, as it may be many years before the FAD becomes available, resulting in the children aging out before their age can be protected under the CSPA. Children who may age out before their age can get protected under the CSPA may be reluctant to even file an adjustment of status application in the current climate, as denials if the children age out could result in them being placed into removal proceedings.  

It bears considering whether the cruel policy reversal can potentially be challenged under the Administrative Procedure Act, arguing that the reversal was arbitrary and capricious as the USCIS did not provide a reasoned explanation for its action under DHS v. Regents of the University of California. In Regents, which was discussed in detail in a prior blog, the Court struck down the rescission of the DACA program on the ground that DHS failed to provide a reasoned explanation for taking this action. The Court also focused on the agency’s failure to factor in the reliance interests of DACA recipients, many of whom had enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance on the DACA program.

The anomaly between the USCIS and DOS policy existed when the new policy was announced on February 23, 2023, and so to necessitate a  reconciliation  is a poor justification for reversing the policy. Nothing has changed since 2023. Moreover, even if USICS has provided an August 15, 2025 cutoff date, the reversal would still impact reliance interests as enunciated by the Supreme Court majority in Regents. The DFF will still allow applicants and their children to file I-485 applications after August 15, but once their children age out, their I-485 will get denied. Children are likely to be deterred from filing I-485 applications if there is a risk that they will age out before the FAD becomes current. Despite the weighty impact on reliance interests,  USCIS has failed to provide a reasoned explanation for the reversal.

As the USCIS will continue to use the DFF to protect the age of the child until August 15, 2025, applicants who are eligible to file I-485 adjustment of status applications should do so immediately. After August 15, 2025, while a child may be able to file an I-485 under the DFF it will not protect the age of the child. If the FAD does not become current before the child becomes 21, or if the child turns 21 and cannot utilize the age protection formula under the CSPA, the child’s I-485 application will get denied. This could potentially jeopardize the child’s chances of changing to another nonimmigrant status such as F-1. Although  the Board of Immigration Appeals (BIA)  in Matter of Hosseinpour, 15 I&N Dec. 191 (B.I.A. 1975) recognized an inherent dual intent in all nonimmigrant visas, it may be not be recognized by this Administration under the circumstances of an I-485 that was filed and denied. If children  proceed abroad for an F-1 visa they too risk refusal of the visa under INA 214(b) as they may not be able to rebut the presumption that they are intending immigrants. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Should Trump’s Lawyers Implementing Policies That Hurt Immigrants be Concerned About Violating Their Ethical Obligations? 

By Cyrus D. Mehta and Kaitlyn Box*

On January 23, 2025, Acting Secretary of the Department of Homeland Security, Benjamine C. Huffman issued a memorandum entitled “Guidance Regarding How to Exercise Enforcement Discretion”, which directs ICE to take the following action: 

(1) For any alien DHS is aware of who is amenable to expedited removal but to whom expedited removal has not been applied:

     a. Take all steps necessary to review the alien’s case and consider, in exercising your enforcement discretion, whether to apply expedited removal. This may include steps to terminate any ongoing removal proceeding and/or any active parole status.

(2) For any alien DHS is aware of who does not meet the conditions described in (1) but has been granted parole under a policy that may be paused, modified, or terminated immediately under the January 20 memorandum:

a. Take all steps necessary to review the alien’s case and consider, in exercising your enforcement discretion, whether any such alien should be placed in removal proceedings; and

b. Review the alien’s parole status to determine, in exercising your enforcement discretion, whether parole remains appropriate in light of any changed legal or factual circumstances.

On January 6, 2023, the Biden Administration instituted a humanitarian parole program allowing certain nationals from Cuba, Haiti, Nicaragua, and Venezuela (CHNV) to apply for entry to  the U.S. for a temporary stay of up to two years. All individuals admitted through the CHNV program must have a U.S.-based supporter, pass security vetting, and meet other criteria. Parole is not an immigration status. During the two-year parole period, individuals may seek humanitarian relief or other immigration benefits, if they are eligible, and work during that time. See our blog for further details on the CHNV program. 

The Biden Administration committed to accepting 30,000 beneficiaries a month from across the four countries. Within the first six months of launching the program, over 35,000 Cubans, 50,000 Haitians, 21,500 Nicaraguans, and 48,500 Venezuelans came to the U.S. through the program. As of August 2024, almost 530,000 people have been granted parole through the CHNV program, according to U.S. Customs and Border Protection (CBP). 

On January 20, 2025, President Trump issued an executive order terminating the CHNV program. The Huffman memorandum now allows  recipients of the CHNV program  who had been paroled into the United States to be expeditiously removed. It also includes nationals of Ukraine, Afghanistan  and Colombia who have been paroled under separate programs.  These individuals followed the rules established under the Biden administration in order to be paroled into the US in a safe, orderly and legitimate manner. They have now been blindsided and betrayed by the Trump administration. 

The devastating impact that this policy stands to have calls into question the conduct of the Trump administration lawyers involved in its development. We credit our colleague Michele Carney in providing input on ethical issues on the part of government lawyers in the Trump administration. ABA Model Rule 8.4 (c)-(d), (g) prohibits lawyers from engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation”, that is “prejudicial to the administration of justice”, or that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law”. By directing DHS officials to expeditiously remove some parolees, the memorandum could run afoul of ABA Model Rule 8.4(d) by depriving these individuals of due process. Termination of parole for some individuals could also be viewed as discrimination on the basis of national origin in violation of ABA Model Rule 8.4(g). If DHS’ implementation of the program results in a misrepresentation, a violation of ABA Model Rule 8.4(c) could also occur. The memorandum in itself may not be indicative of unethical conduct, but its implementation carries significant risk of violation of ethical rules by government lawyers in the Trump administration. 

In a previous blog, we discussed Trump’s executive order restricting birthright citizenship to only a child born in the US has one parent who is either a US citizen or a permanent resident. The granting of automatic citizenship to a child born in the US is rooted in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” In United States. V Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court extended the Fourteenth Amendment to an individual who was born to  parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owning direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciles here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States. 

 On January 23, 2025 Judge Coughenhour in the US District Court Western District of Washington at Seattle issued a temporary injunction blocking the implementation of the executive order. During the hearing, Judge Coughenhour called the order “blatantly unconstitutional”, stating “There are other times in world history where we look back and people of goodwill can say, ‘Where were the judges? Where were the lawyers?’”. Judge Coughenour’s comments call into question ABA Model Rule 3.1, which states that a lawyer “shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law”. The  Trump administration’s restriction of birthright citizenship  could be viewed as a violation of Rule 3.1 if found to be unconstitutional. Rule 3.1 allows for good faith arguments for the “extension, modification, or reversal of existing law”, however, and it is likely that Trump administration lawyers would argue that the policy laid out in the new executive order falls within this exception. 

Experts will disagree and take the position that Trump’s lawyers may be committing ethical violations in supporting policies that may be cruel and harmful to immigrants. Supporting blatantly unconstitutional actions may be cause for concern according to our colleague, Craig Dobson. Independent of the specific rules governing lawyer conduct, Trump’s lawyers should ensure that their actions align with the ideals of the profession, which prioritize fairness, justice, and upholding the rights of individuals. While Trump holds the office of President of the United States, he is not a lawyer, and is not beholden to the same ethical standards. Lawyers, by contrast, are called to uphold the laws of the United States and avoid perpetuating harm and injustice. 

 *Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.