FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 2, 2010

JOHN LEY

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11349

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D. C. Docket No. 07-00443-CV-T-23-TGW

SUSAN WARD,

GAVIN WARD,

Plaintiffs-Appellants,

versus

U.S. ATTORNEY GENERAL,

SECRETARY, DEPARTMENT OF HOMELAND SECURITY,

EMILIO T. GONZALES, Commissioner of the

U.S. Citizenship & Immigration Services,

EVELYN UPCHURCH, District Director of the

Texas Regional Service Center of the USCIS,

JEFF GORSKY, Advisory Opinion Office, U.S.

Department of the State Visa Office, National

Visa Center,

Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 2, 2010)
Before BIRCH, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

The Immigration and Nationality Act permits children who reside abroad to

derive the same immigrant visa status as a parent who is the primary beneficiary of

an employment-based visa petition. In this case, we must decide whether the death

of a primary-beneficiary parent extinguishes his child’s right to his status. We

hold that it does.

I. Background

Ian Ward, a British citizen, was the primary beneficiary of an employmentbased petition under 8 U.S.C. § 1153(b)(1)(C). After obtaining a visa, Ian

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submitted his Application to Register Permanent Residence or Adjust Status (Form

I-485) in February, 2002. See 8 C.F.R. § 245.2(a)(5)(ii). Because Ian’s son,

Gavin, was under the age of 21, Ian also filed an Application for Action on an

Approved Application or Petition (Form I-824) in February 2002 to begin the

process that would allow Gavin to “follow[] to join” him in the United States. 8

U.S.C. 1153(d) (“A spouse or child . . . shall . . . be entitled to the same status . . . if

accompanying or following to join[] the spouse or parent.”); see also id. §

1101(b)(1) (“The term ‘child’ means an unmarried person under twenty-one years

 Because Ian was classified as a “multinational executive/manager,” an immigrant visa 1

was immediately available to him. See 8 U.S.C. § 1153(b)(1)(C). 

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of age . . . .”). Gavin—a “derivative” beneficiary of his father’s employment-based

petition—remained in the United Kingdom to finish college and turned 21 in April

2002 while Ian’s application to become a legal permanent resident was still

pending.

In August 2002, Congress passed the Child Status Protection Act (CSPA),

Pub. L. No. 107-208, 116 Stat. 927 (2002) (codified at 8 U.S.C. §§ 1151, 1153-54,

1157-58), which provides “age-out” protection for derivative child beneficiaries

adversely affected by administrative delays in the adjudication of immigrant

petitions. Section 3 of the CSPA provides:

(h) Rules for determining whether certain aliens are children

(1) In general

For purposes of [qualified immigrants or children following to

join], a determination of whether an alien satisfies the age

requirement in the matter preceding subparagraph (A) of

section 1101(b)(1) of this title shall be made using—

(A) the date on which an immigrant visa number became

available for the alien’s parent. . . but only if the alien has

sought to acquire the status of an alien lawfully admitted

for permanent residence within one year of such

availability.

8 U.S.C. § 1153(h). Section 8 of the CSPA describes the statute’s retroactive

effect:

The amendments made by this Act shall take effect on the date of the

enactment of this Act and shall apply to any alien who is a derivative

beneficiary or any other beneficiary of—

. . .

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(3) an application pending before the Department of Justice or the

Department of State on or after such date.

116 Stat. at 930.

In October 2002, the Immigration and Naturalization Service (INS) denied

the I-824 Ian had filed for Gavin on the ground that Ian’s I-485 application for

permanent-resident status was still pending. The INS informed Ian, however, that

he could file a new I-824 for Gavin after the I-485 was approved. In April 2004,

the Bureau of U.S. Citizenship and Immigration Services (USCIS), the INS’s

successor agency, notified Ian that his I-485 was approved and that he had become

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a legal permanent resident of the United States.

In May 2004, Ian filed a new I-824 for Gavin. USCIS approved this I-824 in

August and advised the State Department’s National Visa Center that Gavin was

eligible for consular processing of an immigrant visa. Gavin then requested

DS-230 processing, but the State Department refused, concluding that Gavin did

not qualify under the CSPA because he had turned 21 before its passage and

because he had no pending application that would qualify him under the CSPA’s

retroactivity provision. In May 2006, as the Wards were still contesting this

decision, Ian tragically died of cancer.

 In March 2003, Congress replaced the INS with USCIS. Homeland Security Act of 2

2002, Pub. L. No. 107-296, §§ 451, 471, 116 Stat. 2135, 2195, 2205. 

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Gavin and his mother filed this action in 2007, requesting declaratory relief

and a writ of mandamus requiring the defendants to allow Gavin to file his DS-230

application. The court granted the defendants’ summary judgment motion,

concluding that Gavin could not “follow to join” a deceased parent. It did not

decide whether the CSPA protected Gavin from “aging out” when he turned 21.

The Wards appeal.

II. Discussion

We review the district court’s summary judgment order de novo. Shuford v.

Fid. Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007). Summary

judgment is appropriate “if the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c).

The Wards first argue that the district court erred because the CSPA “froze”

Gavin’s status as a child following to join Ian—even after Ian’s death. Whether

the CSPA applied to Gavin, however, is immaterial. Even if it had, Gavin could

not have “follow[ed] to join” a deceased parent under 8 U.S.C. § 1153(d).

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Before the CSPA’s enactment, the “following to join” requirement had been

 Thus, we need not reach the question whether the CSPA prevented Gavin from “aging 3

out” of eligibility to “follow to join” his father.

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interpreted to mean that the derivative beneficiary and the primary beneficiary had

to maintain the child-parent or spousal relationship throughout the entire

application process. See, e.g., Matter of Alarcon, 20 I. & N. Dec. 557, 562 (BIA

1992) (“An application for admission to the United States is a continuing

application, and admissibility is determined on the basis of the facts and the law at

the time the application is finally considered.”). When a derivative beneficiary’s

immigration status depended on a particular familial relationship, the death of the

primary beneficiary prevented the derivative beneficiary from obtaining a visa

through that relationship. See Fidalgo/Velez v. INS, 697 F.2d 1026, 1030 (11th

Cir. 1983) (assuming that the death of a principal immediate relative would lead to

the immediate revocation of a derivative visa petition); Matter of Khan, 14 I. & N.

Dec. 122 (BIA 1972) (“Death terminated the father’s immigrant status and thereby

stripped [the child] of his status.”); 9 U.S. Dep’t of State, Foreign Affairs Manual

40.1 n.7.1. (“[I]f the principal has died or lost status, there is no longer a basis to

following to join.”).

The Wards argue that the CSPA altered this established framework by

allowing a derivative child to retain his or her following-to-join status when a

principal parent dies. The text of the CSPA offers no support for this argument.

Its preamble states that it amends the Immigration and Nationality Act “to

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determine whether an alien is a child . . . based on the age of the alien.” 116 Stat.

927 (emphasis added). The remainder of the statute contains no language allowing

a child to follow to join a deceased principal parent. Furthermore, Congress

enacted the CSPA to address “the predicament of these aliens, who through no

fault of their own, lose the opportunity to obtain an immediate relative visa before

they reach age 21.” H.R. Rep. No. 107-45, at 2 (2002). The CSPA, therefore,

never addressed the issue of children losing their following-to-join status when a

primary-beneficiary parent dies; instead, Congress sought to protect them from

losing this status due to age. Accordingly, the CSPA does not support the Wards’

position. See Gonzalez v. McNary, 980 F.2d 1418, 1421 (11th Cir. 1993) (“Absent

a clearly expressed legislative intent to the contrary, the plain and unambiguous

language of the statute must prevail.”).

The Wards also argue that we should extend a line of cases in which courts

have allowed spouses to file for a visa after the qualifying spouse has died. See

Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006) (concluding that an alien

widow whose U.S.-citizen husband had filed permanent-residency papers for her

was able to continue processing to obtain legal residency); Taing v. Napolitano,

567 F.3d 19 (1st Cir. 2009) (following Freeman in allowing surviving spouse of

deceased U.S. citizen to become a permanent resident); Lockhart v. Napolitano,

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573 F.3d 251 (6th Cir. 2009) (applying Freeman in concluding that an alien whose

U.S.-citizen spouse had died remained a spouse for immigration purposes). This

line of cases, however, is distinguishable. First, none of these cases involve

following-to-join status. Second, spouses and former spouses of U.S. citizens have

long been treated more favorably than derivative beneficiaries of lawful permanent

residents. For instance, widows and widowers who were married to a U.S. citizen

for at least two years may self-petition regardless of whether their spouses ever

filed a petition on their behalf. 8 U.S.C. § 1154(a)(1)(A)(ii). Thus, we decline to

extend this line of precedent to the following-to-join context.

Finally, the Wards argue that the district court erred by failing to order

USCIS to grant Gavin a visa under the humanitarian exception. See 8 C.F.R.

§ 205.1(a)(3)(i)(C)(2) (providing for automatic revocation upon the death of the

petitioner unless USCIS “determines, as a matter of discretion . . . that it is

inappropriate to revoke the approval of the petition”). This argument, however,

fails because the regulation only affords an exception to revocation for approved

petitions. See 8 C.F.R. § 205.1(a) (“[T]he approval of a petition . . . is revoked as

of the date of approval . . . .”). Because Gavin’s immigration petition was never

approved, the humanitarian exception does not apply to him. See Dodig v. I.N.S., 9

F.3d 1418, 1420 (9th Cir. 1993) (concluding that 8 C.F.R. § 205.1(a)(3)(i)(C)(2)

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does not operate unless there has been an approved immigration petition).

Accordingly, the district court’s summary judgment order is

AFFIRMED.

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