The 9th Circuit Holds The Child Status Protection Act Applies To LPR Children Who May Take Advantage of Age Calculation Formula in INA §203(h)(1).
Reading the statue as a whole, the panel concluded that Congress intended “age of the alien on the date of the parent’s naturalization,” 8 U.S.C. § 1151(f)(2), to refer to statutory age-that is, age calculated according to 8 U.S.C. § 1153(h)(1)… In other words, “age” in 8 U.S.C. § 1151(f)(2) refers unambiguously to age as calculated under 8 U.S.C. § 1153(h)(1). We reject the BIA’s [Board of Immigration Appeals] contrary holding in Matter of Zamora-Molina, 25 I. & N. Dec. 606, as well as the district court’s parallel reasoning in Alcaraz v. Tillerson, No. 2:17-cv-457-ODW (C.D. Cal. July 26, 2017). The petition for review is granted and the case is remanded to the BIA with instructions to find that Rodriguez Tovar has an immediately available visa as the immediate relative of a U.S. citizen [child under 21] and to conduct further proceedings regarding the other requirements for adjustment of status [to issue him a green card].
The BIA in Matter of Daniel Edgar ZAMORA-MOLINA, had wrongly ruled the beneficiary actual age pursuant to section 201(f)(2) of the Act and not the adjusted age [under INA 203(h)(1)] on the date of his or her parent’s naturalization determines whether he or she is an immediate relative as advocated by USCIS.
Cite as 25 I&N Dec. 606 (BIA 2011), Interim Decision #3729