On March 7, 2002, children of lawful permanent U.S. residents filed a lawsuit under 28 U.S.C. Section 2201 in the United States District Court for the Central District of California. The Plaintiffs sought declaratory and injunctive relief, challenging the validity of an "age-out" provision in regulations governing nonimmigrant "V" visas. V visas were established as part of the Legal Immigration Family Equity Act of 2000 (LIFE Act) and granted temporary lawful status to spouses and children of lawful permanent residents while they were waiting for immigrant visas. The regulation at issue, 8 CFR § 214.15(g), included an "age-out" restriction which limited the period of admission, or extension, for a child under a V visa, such that it would expire on the day prior to the child's 21st birthday.

The government moved to dismiss the case, or to transfer venue. That motion was denied. The parties then filed cross-motions for summary judgment. The District Court (Judge David O. Carter) denied plaintiff's motion and granted summary judgment for the government. Akhtar v. Burzynski, 2002 U.S. Dist. LEXIS 27282 (C.D.Cal. Oct. 21 2002). The plaintiff children appealed.

The Ninth Circuit Court of Appeals (Senior Circuit Judge Browning) reversed and remanded, holding that the INS' interpretation of the age-out provisions of 8 C.F.R. § 214.15(g) was contrary to Congress' intent and frustrated congressional policy. Akhtar v. Burzynski, 384 F.3d 1193 (9th Cir. 2004),

While the Akhtar v. Burzynski decision only invalidated the "age-out" provisions in the Ninth Circuit, the U.S. Citizenship and Immigration Services, successor to the INS, subsequently decided to apply Akhtar on a nation-wide basis.

Dan Dalton - 11/29/2007


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