Santa delivered some good news over Christmas–my Immigration Judge denied the DHS motion to dismiss removal proceedings for lack of good cause and because we gave good reasons to oppose such a move. She did caution us that February 15, 2013 would be a status conference instead of an adjustment of status hearing if the mandate is still stayed in the Ninth Circuit, and that the case would be re-calendered for the final outcome of the CSPA litigation and the non-LPR cancellation claim.
At this point, I’m almost certain that adjustment of status is not happening on February 15, 2013, because the Government will appeal de Osorio, and the Supreme Court is almost certain to grant cert. if that happens due to the circuit split and the high-stakes. All signs point to that. In many ways, de Osorio at the Supreme Court promises to be a firecracker involving amicus briefs from all sorts of parties, including several members of Congress, for the petitioners and against the government. You can bet on that.
I imagine that the white supremacist network of FAIR, NumbersUSA, and the Center for Immigration Studies, along with the architect of SB 1070, Kris Kobach, would file briefs in support of the government, as they have been adamant that the benefits of CSPA are limited to a narrow class of people. It amuses me to think about the Obama Administration and the white supremacists finally revealing that they do work together in tandem to “secure” America from the threat of immigrants, unlike the facade of U.S. v. Arizona. But this is what happens when you let the Office of Immigration Litigation run amok.
During the Ninth Circuit litigation, when Dreamers were about to file an amicus on behalf of the petitioners, the government unsuccessfully tried to convince us that it was not in our best interest to do so. The American Immigration Lawyers Association also filed an amicus for the petitioners. What does it say about the government that only the white supremacist network may be on their side, and that members of their own party will certainly file for the petitioners? Of course, there is strength in numbers, but overwhelming support for the petitioners does not equal a win at the Supreme Court. One can only learn the lesson of Nijhawan and Kawashima, and stick with statutory construction. No Circuit, not even the Second Circuit which ruled for the government in Li v. Holder, has agreed with the government that 203(h)(3) is ambiguous, and therefore warrants Chevron deference. The statute in unambiguous with respect to the fact that it applies to all aged-out derivative beneficiaries therefore, plain meaning controls. This is ours to lose.
All of this most likely means no end to the CSPA litigation until 2015. I’d love to be wrong though because thousands of families need to be reunited and we are tired of waiting for the law to recognize reality — that we are families who deserve to live together, whether anyone likes it or not.