Immigration — Child Status Protection Act

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U.S. Court of Appeals for the 7th Circuit

Civil

Immigration — Child Status Protection Act

Retroactive application of the one-year rule in the Child Status Protection Act would be manifestly unjust.

“In light of the state of the law at the critical time, a reasonable person reasonably could have assumed that the Act did not require him or her to file an application within one year. Before the sea change in O. Vasquez in 2012, which occurred too late for Velásquez to comply with it, the ‘substantial test’ steps had been consistently applied to the ‘sought to acquire’ language in the Act since 2004. Cf. Garfias-Rodriguez, 702 F.3d at 522 (applying rule retroactively where prior rule in effect for 21 months, during which time petitioner took no action in reliance); Clark-Cowlitz, 826 F.2d at 1083–84 (applying rule retroactively where previous rule was in place for six months, during which time it was ‘beclouded’ by possibility of being overturned on appeal). The Board’s new one-year filing rule in O. Vasquez did not merely fill a void ‘in the interstices of the [statute],’ Retail, Whole-sale, 466 F.2d at 391 (quoting Chenery, 332 U.S. at 202–03); rather, the new one-year filing rule reflected a shift in position ‘solely as a result of a change in agency policy,’ Clark-Cowlitz, 826 F.2d at 1083. In such a case, retroactive application is disfavored.”

Petition Granted.

13-2610 Velasquez-Garcia v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Wood, J.