IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60273

Summary Calendar

QUINTINA ALVAREZ HUERTA,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A089 643 873

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Quintina Alvarez Huerta, a native and citizen of Mexico, petitions this

court for review of a Board of Immigration Appeals (BIA) decision dismissing her

appeal of an Immigration Judge’s (IJ) decision denying her an adjustment of

status and ordering her removed from the United States. In light of this court’s

decision of Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011), we grant Huerta’s

petition for review and remand to the BIA for further proceedings consistent

with this opinion. 

United States Court of Appeals

Fifth Circuit

F I L E D

June 21, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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On March 30, 2007, Huerta was issued a Notice to Appear (NTA) for

removal proceedings. Huerta admitted the factual allegations in the NTA,

conceded the charge of deportability, and requested voluntary departure. On

August 5, 2008, the Immigration Judge (IJ) granted Huerta a voluntary

departure. In December 2008, however, Huerta filed a motion to withdraw her

request for voluntary departure and a motion to reopen, asserting that she was

eligible to pursue an adjustment of status. After reviewing the matter, the IJ

reopened Huerta’s case. 

Huerta argued that she was entitled to an adjustment of status based on

the following facts. In 1986, Huerta’s maternal grandfather filed a

third-preference visa petition on behalf of Huerta’s mother. On this petition,

Huerta, who was 15 years old at the time, was listed as a derivative beneficiary. 

This petition had an October 22, 1986 priority date – “a date linked to the time

of filing to reserve the petition’s ‘place in line.’” Khalid, 655 F.3d at 365. 

Unfortunately, this 1986 petition did not become current until on or about

January 1, 1995, and, as a result, Huerta was no longer able to benefit as a

derivative beneficiary because she was 24 years old and no longer a “child” under

the immigration law. See 8 U.S.C. § 1101(b).

In 1996, Huerta’s father, who was a lawful permanent resident, filed a

second-preference visa petition on her behalf. See § 1153(a)(2)(B). Before this

1996 petition was approved, Huerta’s father naturalized. This resulted in the

automatic conversion of the second-preference petition to a first-preference

petition with the same 1996 priority date. See 8 C.F.R. § 204.3. With a priority

date of 1996, there was no visa immediately available for Huerta, and she was

not entitled to an adjustment of status. Huerta argued, however, that, pursuant

to the Child Status Protection Act of 2002 (CSPA), she could retain the priority

date of the 1986 visa petition (the third-preference petition filed by her maternal

grandfather on behalf of her mother on which Huerta was listed as a derivative

beneficiary), and, as a result, a visa would be immediately available, and she

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would be eligible for an adjustment of status. See 8 U.S.C. § 1153(h); 8 U.S.C.

§ 1255(a). 

Relying on the BIA decision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009),

the IJ rejected Huerta’s argument that she could retain the 1986 priority date,

denied Huerta’s application for adjustment of status, and ordered Huerta’s

removal. Huerta appealed to the Board of Immigration Appeals (BIA), but the

BIA dismissed Huerta’s appeal, stating, “To the extent the respondent argues on

appeal that Matter of Wang . . . was wrongly decided, we decline to revisit our

decision in Matter of Wang.” Huerta timely petitioned this court to review the

decision of the BIA.

On appeal, Huerta argues that the BIA erred by following Matter of Wang. 

She maintains that, under the CSPA, her first-preference visa petition retains

the 1986 priority date, and, with a 1986 priority date, she is eligible for an

adjustment of status as a visa is currently available. 

While Huerta’s petition for review was pending, we decided Khalid. In

Khalid, we determined “that the plain language of the . . . (CSPA) is

unambiguous and that the BIA’s interpretation of the statute in Matter of Wang

. . . contravenes the plain language of the CSPA. We decline to follow Matter of

Wang in this circuit.” Khalid, 655 F.3d at 365. We then concluded that “that,

contrary to Matter of Wang, the benefits of . . . § 1153(h)(3) unambiguously apply

to all petitions described in § 1153(h)(2).” Id. at 375. 

Because Khalid had not been issued at the time that the BIA decided

Huerta’s appeal, remand is appropriate to allow the BIA to conduct further

proceedings consistent with current circuit case law. See INS v. Ventura, 537

U.S. 12, 16-17 (2002). Accordingly, Huerta’s petition for review is GRANTED,

and this matter is REMANDED to the BIA for further proceedings consistent

with this court’s opinion Khalid.

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