Susan Ward v. U.S. Attorney General

Citation: Not availableDocket: 09-11349

Court: Court of Appeals for the Eleventh Circuit; June 2, 2010; Federal Appellate Court

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The United States Court of Appeals for the Eleventh Circuit addressed whether the death of a primary-beneficiary parent extinguishes a child's right to derive immigrant visa status under the Immigration and Nationality Act. The court held that it does. 

In this case, Ian Ward, a British citizen, was the primary beneficiary of an employment-based visa petition and filed an application to adjust his status in February 2002. He also filed for his son, Gavin, to follow him to the U.S. as a derivative beneficiary, as Gavin was under 21 at the time. Gavin remained in the U.K. to finish college and turned 21 while Ian's application was pending. 

The Child Status Protection Act (CSPA) was enacted in August 2002 to provide age-out protection for derivative beneficiaries affected by delays in processing immigrant petitions. The CSPA allows the age of a child to be determined based on when an immigrant visa became available to the parent, provided the child seeks to acquire permanent resident status within one year. 

Despite this, the Immigration and Naturalization Service (INS) denied Gavin's application in October 2002, citing Ian's pending application. The INS advised Ian that he could refile for Gavin once his application was approved. Ian's application was ultimately approved in April 2004, granting him legal permanent resident status.

In May 2004, Ian submitted an I-824 application for Gavin, which was approved by USCIS in August, confirming Gavin's eligibility for consular processing for an immigrant visa. However, the State Department denied Gavin's request for DS-230 processing, stating he did not qualify under the Child Status Protection Act (CSPA) since he had turned 21 before its enactment and lacked a pending application eligible for retroactive provisions. Ian passed away in May 2006 while the Wards contested this decision. In 2007, Gavin and his mother sought declaratory relief and a writ of mandamus to permit Gavin to file his DS-230 application. The court ruled in favor of the defendants, stating Gavin could not 'follow to join' a deceased parent and did not resolve whether the CSPA protected Gavin from 'aging out' at 21. 

On appeal, the Wards argued the district court erred by not recognizing that the CSPA 'froze' Gavin’s status as a child eligible to follow Ian despite his death. However, the court found that even assuming the CSPA applied, Gavin could not follow to join a deceased parent under 8 U.S.C. 1153(d). The interpretation of 'following to join' historically required the child-parent relationship to be maintained throughout the application process. The precedent established that the death of the primary beneficiary (Ian) negated the derivative beneficiary’s (Gavin’s) ability to obtain a visa through that relationship. The Wards contended that the CSPA changed this framework, but the statute's text did not support this, focusing on the age of the child rather than the status following a parent's death. Congress aimed to protect children from aging out of eligibility for visas, but did not address the loss of following-to-join status due to a parent's death.

The CSPA does not support the Wards' argument, as established in Gonzalez v. McNary, which emphasizes that the statute's clear language must be upheld unless legislative intent indicates otherwise. The Wards reference cases allowing spouses to continue visa processing post-death of the qualifying spouse—specifically Freeman v. Gonzales, Taing v. Napolitano, and Lockhart v. Napolitano—but these decisions are distinguishable because they do not involve following-to-join status. Additionally, spouses of U.S. citizens receive more favorable treatment than derivative beneficiaries of lawful permanent residents, as evidenced by provisions allowing widows and widowers married for at least two years to self-petition without a prior filing. The Wards' claim that the district court erred in not granting a visa to Gavin under the humanitarian exception is also unavailing, as the regulation cited applies only to approved petitions, and Gavin's petition was never approved. The conclusion reached is that the district court's summary judgment order is affirmed.