Section 201(f) (1) of the Immigration and Nationality Act (INA) freezes the age of a child upon the filing of a petition (Form I-130) by the US citizen parent. Therefore, even if the child turns over 21 after the filing of the I-130 petition, the child can still qualify as an immediate relative of a US citizen.

As issue is whether the CSPA protects the status of a child who was the beneficiary of an I-130 petition and who turned 21 before August 6, 2002. Prior agency interpretation suggested that such a child should have had an adjustment of status application pending on August 6, 2002 in order to obtain the protection of the CSPA. Likewise, a Department of State (DOS) cable advised that the child should have filed an immigrant visa application at the US Consulate on the date of enactment in order to claim CSPA protection.

The facts in Rodolfo Avila-Perez did not conform to government agency prescriptions. Although the Respondent was the beneficiary of an approved I-130, he aged out much before August 6, 2002 and did not have an adjustment of status application pending on the date of enactment. Yet, the BIA held that the CSPA protected him as a child.

The Respondent was born on April 4, 1976. On August 30, 1996, his mother filed an I-130 petition to accord him immediate relative status as a child of a US citizen, which got approved on November 1, 1996. It is unclear as to why no adjustment application was not filed before he turned 21 on April 4, 1997. In any event, after his 21st birthday, he ceased to be a "child" and qualified under the Family First Preference (F1), as a son or daughter of a US citizen. Under the F1 preference, the Respondent was no longer eligible to adjust status until his priority date became current. Nevertheless, on October 15, 2003, Respondent filed an adjustment application claiming he was still a child under the CSPA. The DHS, instead, initiated removal proceedings against the Respondent and also moved to pretermit his adjustment application. The DHS stuck to its prior policy arguing that the Respondent would only qualify as a "child" if his adjustment application had been filed prior to August 6, 2002 on which no final determination had been made as of that date.

The BIA disagreed, and took pains to interpret Section 8 of the CSPA, which has not been codified in the INA. Section 8 states that the CSPA only applies to:

1. Immigrant petitions that have been approved but where no final determination has yet been made on the beneficiary's application for an immigrant visa or adjustment of status;

2. Immigrant petitions pending before or after the enactment date; and

3. Applications pending before the Department of Justice or Department of State on or after the enactment date.

According to the BIA, the outcome of the case hinged on 8(1) of the CSPA - whether it required the beneficiary of an approved I-130 petition to have also filed an adjustment application or not. The BIA reasoned that since 8(2) and 8(3) of the CSPA specifically required visa petitions and applications to have been "pending" on the enactment date (and thus requiring a filing), Congress deliberately excluded the term "pending" in 8(1). The BIA stated, "Where Congress includes particular language in one section of a statute but omits it in another section of the same statute, it is generally presumed that Congress acted intentionally with respect to the inclusion or exclusion." INS v Cardoza-Fonseca, 480 US 421, 432 (1987); Russello v United States, 464 US 16, 23 (1983). Also, the BIA opined that statutes should be given their ordinary and natural meaning. INS v Cardoza-Fonseca, supra.