10 December 2013 ~ 61 Comments

Mayorkas v. Cuellar De Osorio: From the Frontlines of the Supreme Court

Prerna Lal at the Supreme Court for Mayorkas v. Cuellar de Osorio, CSPA

Admission ticket to the U.S. Supreme Court

A major storm was supposed to take over the District of Columbia today. While the federal and District government closed down in anticipation of bad weather, I trudged along to the U.S. Supreme Court to hear oral arguments in Mayorkas v. de Osorio, an issue that has defined most of my existence in the United States.

Due to the storm, I was able to obtain really good cushy seats near the front of the courtroom, under the nose of nine Supreme Court Justices, whose one decision on this matter can change thousands of lives, including those of many so-called Dreamers currently living in the United States.

The issue is rather simple, though it appears convoluted. Due to immigration backlogs, people intending to immigrate to the United States through their parents or siblings currently spend many years waiting in line for a visa after their petitions are approved. However, by the time they can get a visa through the approved petitions, the intending immigrants are forced to leave their children behind or see their children face removal proceedings because their young sons and daughters are now over the age of 21. This is often referred to as “aging out” of the process. At the heart of Mayorkas v. de Osorio is whether the children who “age-out” can retain their original place in line and immigrate with their parents, rather than facing lengthy separation or worse, detention and deportation.  

In 2001, the Congress passed a law called the Child Status Protection Act (CSPA), which speaks directly to the matter. Section 203(h)(3) of the Immigration and Nationality Act, as amended by the CSPA, states:

If the age of an alien is determined … to be 21 years of age or older … the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

That sounds clear and unambiguous enough. The plain meaning of the text is that all derivative beneficiaries or minor children who happen to age out by the time they can obtain an immigrant visa, can use their earlier assigned date to retain their place in line. This prevents them from waiting in line for many years, sometimes decades, in order to reunite with their families.

However, since the passage of the law, the U.S. Citizenship and Immigration Services (USCIS) has construed this section of the CSPA very narrowly, and limited it to a particular class–only those children who were sponsored by their lawful permanent resident parents and turned 21 before they could complete the process are covered. This narrow limitation is not prescribed in any law or regulation besides a questionable BIA decision (Matter of Wang), and hence, has gutted a substantial benefit under the CSPA. Indeed, a bipartisan group of lawmakers wrote in an amicus brief to the U.S. Supreme Court: “The Solicitor General’s continuing insistence that that the [law] is ambiguous raises serious institutional concerns…[Congress] does not typically give an agency carte blanche to rewrite statutory language that is clear.”

Separated from her adult children due to the agency’s narrow interpretation of the law, Respondent Cuellar de Osorio, a lawful permanent resident, filed a lawsuit to compel the agency to interpret the law as passed by Congress. The case was consolidated due to many similar cases, and certified as a nationwide class action by a California district court. Cuellar de Osorio and her class of litigants lost in District Court, but won at the Ninth Circuit. Their victory was also boosted by a win in the Fifth Circuit case, Khalid v. Holder. However, the Department of Justice appealed the Ninth Circuit decision to the U.S. Supreme Court, which granted certiorari.

I decided to make it to the Supreme Court this morning because the issue has personally impacted my life for more than a decade. When my grandmother sponsored my mother for a green card, I was a child and expected to immigrate with my mother. However, by the time, my mother became eligible for a green card, I was over the age of 21. Instead of getting a green card with the rest of my family, I was placed in removal proceedings under the auspices of the Obama Administration. While I eventually married my U.S. citizen partner, many of my counterparts are still separated from their family members, with no hope of family reunification in the near future, except for winning retention of their original priority dates under the CSPA.

Elaine J. Goldenberg, Assistant to the Solicitor General, began the oral arguments, pleading for a deference to the government’s interpretation of Section 203(h)(3), and resorted to characterizing the aged-out children of lawful permanent residents as line-cutters. Justice Ginsburg interrupted her, suggesting that the impact on the aged-out child is much more severe, and that the aged-child has indeed, waited in line. Justice Breyer honed in on the fact that the government’s interpretation of the CSPA made the impact of the statute minuscule, and seemed to be against the spirit of the statute. Ms. Goldenberg continued to insist that the minor children who had aged out were cutting in line for a visa, and tried to paint the statute as ambiguous, and thus, asked the Supreme Court to defer to the agency’s narrow interpretation of the law.

Under the Chevron doctrine, a court is only supposed to defer to an agency’s interpretation of a law if the statute in question is ambiguous, and the agency interpretation of the ambiguous statute is reasonably construed. Litigating for the lawful permanent resident parents such as Cuellar de Osorio, Mark Fleming effectively countered the government, contending that there was no need to decide whether the government’s interpretation of the legislation was reasonable, because the statute in question was unambiguous. Besides, even if the Justices found the statute to be ambiguous, the agency’s narrow interpretation of the CSPA is incompatible with the ameliorative aspect of the statute, which is family reunification. After all, one of the principles of statutory construction is that a remedial statute such as the CSPA, should be applied liberally. Fleming also described to the Justices how “automatic” conversion under Section 203(h)(3) could happen in two ways. First, the derivative beneficiary can be granted a green card at the same time as the parent. Second, the lawful permanent resident parent can file a petition for the derivative beneficiary and request retention of the older priority date.

The entire transcript for the oral argument is available here. I think Mr. Fleming won this one.

However, predicting how the Justices may vote is an exercise in futility. We just have to wait and see. In my opinion, Justice Breyer, Justice Ginsburg, Justice Alito, and Justice Sotomayor seemed to be on the side of the Respondents, with the rest of the Justices being toss-ups except for Justice Scalia, who seemed to be the only one fervently in favor of the government. However, most of the Justices appeared confused, which is probably the only thing going for the government right about now.

Still, if MotherJones can slice through the complex legal language and get the gist of the case–which is about putting a stop to family separation and deportation–I am sure that at least five Justices on the U.S. Supreme Court can do the same.

The storm did not last long. I walked out of the court with the sun shining down brightly at me. Lets hope for the same for all our families soon.

  • Lory Diana Rosenberg

    An excellent summary of the issues in the case, which gave me a good idea of what went on in court today!

    • Thank you, Lory. Hope to see you in court for next big case 🙂

  • Lory Diana Rosenberg

    An excellent summary of the issues in the case, which gave me a good idea of what went on in court today!

    • Thank you, Lory. Hope to see you in court for next big case 🙂

  • Mark Shmueli

    Thanks, good summary

    • Thank you for stopping by and reading Mr. Shmueli.

    • Thank you for stopping by and reading Mr. Shmueli.

  • Mark Shmueli

    Thanks, good summary

  • Guest

    Can people do anything at this point to push it from the government side?

  • Guest

    Can people do anything at this point to push it from the government side?

  • Hexi

    Can people do anything in children’s favor at this point?

    • I don’t know. We’ve tried to pressure Obama admin to not appeal this case and to issue a memo on how to apply this Section, alas, they are sold on the idea that they can interpret the law the way they want to and deny retention benefits to a large class of people. We’ll know more in a few months.

  • Hexi

    Can people do anything in children’s favor at this point?

    • I don’t know. We’ve tried to pressure Obama admin to not appeal this case and to issue a memo on how to apply this Section, alas, they are sold on the idea that they can interpret the law the way they want to and deny retention benefits to a large class of people. We’ll know more in a few months.

  • Pingback: Prerna Lal Reports from the Supreme Court on Mayorkas v. Cuellar de Osorio()

  • Jack

    Thank you for your summary. My cousin is in the case now. Do you know when the final decision would make? And childrens who have the benefit (if the good news come) would need to have parents living in Fifth and Nine circuit or just apply to anycase in America?

    • prernalal

      The decision would apply to anyone in the U.S. and all future green card holders. It should be out by early spring.

    • SCOTUS should be out with a decision by early Spring – March. The decision would be U.S. law and apply to everyone in the U.S., and anyone immigrating to the U.S.

  • Jack

    Thank you for your summary. My cousin is in the case now. Do you know when the final decision would make? And childrens who have the benefit (if the good news come) would need to have parents living in Fifth and Nine circuit or just apply to anycase in America?

    • SCOTUS should be out with a decision by early Spring – March. The decision would be U.S. law and apply to everyone in the U.S., and anyone immigrating to the U.S.

      • new_adult

        Hi, Prena!

        It is already mid March. Do you know when the Supreme Court is most likely to issue an opinion on this? Thank you! I have been waiting for the opinion since December.

        • It can come in the next few weeks up till end of June.

          • new_adult

            That is one excruciating waiting…

          • waing aged-out child

            Hi, Prerna:

            Just wondering if there any updates in the court’s opinion writing? It seems that it is taking longer than expected… The USCIS guidance also indicates that the court is going to issue a ruling in the spring of 2014. As far as I know, the court made its decision on the date of oral argument.

  • AnonymousCSPA

    My parents have 2 kids, me and my brother. I was able to get in , but my brother got denied as he turned 21 just a couple of months back. For past 7 years my parents have been bouncing between me in US and my brother in India.Thanks you for the brief , i read the whole transcript and waiting for the audio transcript. I hope we win and my family gets together.

    • All the best. I hope you get to reunite with your brother soon.

    • Chubb

      We are doing the same as your parents. My husband just returned from India, while I am getting ready to join my son in India sometime in Jan 2014. This has been going on for the past 6 years.

    • Chubb

      We are doing the same as your parents. My husband just returned from India, while I am getting ready to join my son in India sometime in Jan 2014. This has been going on for the past 6 years.

  • richard

    Thanks prerna.. Im richard, from philppines guess what all my grandparents, 1st cousins all of them, my sister my mom and my dad are ALL citizen and LPR.. and I’m the ONLY ONE who left here in Philippines.. because im age-out..

    • I’m sorry, Richard. I’ve an idea of how it feels to be left out of your own family. I grew up undocumented in the U.S., while my entire family had papers. I hope you get to join your family soon.

      • richard

        Yes! Its very hard for us, but i red the oral argument transcript. I see spark of hope when Justice Ginsburg, Sotomayor, Alito & Breyer grilled the petitioners atty Goldenberg that they interpret the CSPA narrowly. Do you have any idea how many DREAMER’s are also hoping for the supreme court decision?

        • We really have no way of knowing numbers. Experts estimated that 1.8 million undocumented young people qualify for DREAM Act, but only about 500,000 have been granted DACA, allowing them to live and work legally in the U.S. Of 500,000, I’d think those impacted by CSPA, and able to adjust status because they are grandfathered under 245(i), are a small subset. Now, there may be adults who came here who were older, who may also qualify.

          • richard

            I see. Im gonna cry a lot when this case win, and if this case win, I imagined what its gonna be my reaction when I come to the US see my family when they they pick me up at LAX and hug them all..

          • richard

            Hi prerna just a follow up question .. did justice thomas participate on the oral argument? coz i think he’s the only one who didnt ask any question when i red the argument transcript. and who is Mr. mitchelle on the argument?

          • Justice Thomas almost never partakes in oral arguments. I believe during his 20+ years on the court, he has only spoken once.

          • The Mr. Mitchelle is probably a typo.

      • richard

        Yes! Its very hard for us, but i red the oral argument transcript. I see spark of hope when Justice Ginsburg, Sotomayor, Alito & Breyer grilled the petitioners atty Goldenberg that they interpret the CSPA narrowly. Do you have any idea how many DREAMER’s are also hoping for the supreme court decision?

        • We really have no way of knowing numbers. Experts estimated that 1.8 million undocumented young people qualify for DREAM Act, but only about 500,000 have been granted DACA, allowing them to live and work legally in the U.S. Of 500,000, I’d think those impacted by CSPA, and able to adjust status because they are grandfathered under 245(i), are a small subset. Now, there may be adults who came here who were older, who may also qualify.

          • richard

            I see. Im gonna cry a lot when this case win, and if this case win, I imagined what its gonna be my reaction when I come to the US see my family when they they pick me up at LAX and hug them all..

          • richard

            Hi prerna just a follow up question .. did justice thomas participate on the oral argument? coz i think he’s the only one who didnt ask any question when i red the argument transcript. and who is Mr. mitchelle on the argument?

          • Justice Thomas almost never partakes in oral arguments. I believe during his 20+ years on the court, he has only spoken once.

          • The Mr. Mitchelle is probably a typo.

  • Greg

    Thank you Prerna. I really hope we win this one.

  • Greg

    Thank you Prerna. I really hope we win this one.

  • Daniel Thuan Kwok

    Thanks for sharing. Have they ever mentioned when the decision going to be made?

    • They have until the end of June to issue a decision

  • Leila

    If we do win this, would someone who has already aged-out but hasn’t filed a new petition still benefit from this ruling? Or should they file new petition asap?

    • Fleming advanced two arguments for retention of PD. One was automatic conversion in the same category and same time as the principal beneficiary, and other was automatic conversion through the filing of a new petition by the beneficiary, now petitioner. The procedures would need to be worked out by USCIS. Note that it doesn’t hurt to file a new petition (a standalone I-130), but USCIS isn’t accepting applications for adjustment of status (I-485) at this time.

    • Fleming advanced two arguments for retention of PD. One was automatic conversion in the same category and same time as the principal beneficiary, and other was automatic conversion through the filing of a new petition by the beneficiary, now petitioner. The procedures would need to be worked out by USCIS. Note that it doesn’t hurt to file a new petition (a standalone I-130), but USCIS isn’t accepting applications for adjustment of status (I-485) at this time.

      • bert

        We already filed for a standalone I-130. I know this is highly hypothetical at this point but should de osorio win this case, does that mean i just need to apply for an AOS since im already in the US under an H1b visa?

        My parents original petition date filed by my aunt is 1989 and since im now an F2b (which they are just processing year 2003 applications) with a priority date of 2013, and if i get to retain the original petition date, does that mean i can get an adjustment of status right away? Or does the uscis readjusts its priority date and we have to wait for 1989 to become current again?

  • Aman

    Thank you for this. It was really informative. I know it’s not the right place to be asking for technical assistance but I was hoping you could provide some. My father is scientist. He applied for employment based immigration in categories EB1 and EB2 in 2009 (when I was <21 years old). The EB1 application had to be withdrawn because it got stumbled upon an officer who just wouldn't grant immigration. My dad had to re-apply for EB1 in 2011 and I my age was 21 years and 2 months by the time he applied. Now he actually got his EB1 approved but I obviously don't qualify as a dependent in that application.

    His EB2 case is expected to be approved soon as well. So I was just hoping the new CSPA laws could benefit me for that particular application. Or would the EB2 application would be void now that he already has his EB1 approved?

  • Aman

    Thank you for this. It was really informative. I know it’s not the right place to be asking for technical assistance but I was hoping you could provide some. My father is scientist. He applied for employment based immigration in categories EB1 and EB2 in 2009 (when I was <21 years old). The EB1 application had to be withdrawn because it got stumbled upon an officer who just wouldn't grant immigration. My dad had to re-apply for EB1 in 2011 and I my age was 21 years and 2 months by the time he applied. Now he actually got his EB1 approved but I obviously don't qualify as a dependent in that application.

    His EB2 case is expected to be approved soon as well. So I was just hoping the new CSPA laws could benefit me for that particular application. Or would the EB2 application would be void now that he already has his EB1 approved?

  • Wenchao

    Thank you very much for this detailed account of the law suit.

    Something is not clear to me at all. I understand how prospective immigrants, i.e. those who are intending to immigrate might benefit from a favorable ruling in this case but how would undocumented immigrants who came here as children benefit?

    You seemed to imply that they would benefit as well but I do not see how. Suppose a person was brought here as a kid and grew up here undocumented. For whatever reason their parent sponsors them before they turn 21 but the visa only becomes available years after.

    Assuming the supreme court upholds then Ninth District’s ruling, they would still be eligible for a visa but since they are here they would have to leave the country to get their visa at the US consulate in their country of birth, thereby triggering the 10 year ban on reentry for having lived as an documented immigrant.

    Could you please explain to me how such a person would stand to benefit?

    Thanks

    • prernalal

      That’s easy. Many such children, like myself, are grandfathered under 245-i and can adjust status without leaving the U.S.

  • Wenchao

    Thank you very much for this detailed account of the law suit.

    Something is not clear to me at all. I understand how prospective immigrants, i.e. those who are intending to immigrate might benefit from a favorable ruling in this case but how would undocumented immigrants who came here as children benefit?

    You seemed to imply that they would benefit as well but I do not see how. Suppose a person was brought here as a kid and grew up here undocumented. For whatever reason their parent sponsors them before they turn 21 but the visa only becomes available years after.

    Assuming the supreme court upholds then Ninth District’s ruling, they would still be eligible for a visa but since they are here they would have to leave the country to get their visa at the US consulate in their country of birth, thereby triggering the 10 year ban on reentry for having lived as an documented immigrant.

    Could you please explain to me how such a person would stand to benefit?

    Thanks

  • cloud9

    Hi prerna, Im also following this case as I am also an aged out derivative. My mom just filed a new petition for me this year. I tried to contact USCIS thru email If I could recapture my parents old priority date. They replied to me saying they are not extending the retention of priority date for f3 & f4 derivative. I replied back to them stating all what was written in the law, explaining some briefs, and telling them regarding the case won in 9th and 5th circuit. I am awaiting for their response on that matter. For now I am asking your support to sign the petition I made online to the white house to allow the obama administration to retain the old priority date for aged out f3 and f4 derivatives. heres the link

    https://petitions.whitehouse.gov/petition/allow-aged-out-derivative-beneficiary-f3-f4-family-based-petition-retain-their-parents-old-priority/cXYLMSNG

    • Harshid Bhavsar

      Hi Cloud9, I have signed the petition, and i posted your link on immihelp.com website too, but seems its not going to reach 100K signature required by the due date. Anyhow, I am in exactly similar situation as you and would appreciate if you can provide me the template/sample letter for the reply you did to USCIS ” stating all what was written in the law, explaining some briefs, and telling them regarding the case won in 9th and 5th circuit ” I will try to request in similar fashion and see the outcome, but I need that language please as I am not very good at drafting official request.
      please if possible email me at harshid.bhavsar@gmail.com
      many thanks in advance and best of luck with petition.

  • Amy

    I really hope this case to be successful ASAP as I´m a derivative aged-out who was a child when the petition was submitted in 2006 (19) but due to the visa availability delay I got aged-out and CSPA only substracts 3 years to my age when visa got available in 2013 (26). I cant think about wating 7-8 years separated from my whole family.

  • Harshid Bhavsar

    My grandparent petitioned in March 1998 for my mother in the F–3 category, while I
    was still under 21 (I was born in 1980). Petition was approved by Legacy USCIS
    in March 1999. I as child was considered a “derivative beneficiary”
    and therefore included under the Grand Parents petition. After the petition is
    approved in March 1999, my mum and family has to sit back and wait many years
    until the priority date on that petition becomes current (approx. august 2003).
    Unfortunately, by the time the priority date became current, I was 23 years
    old.

    However it took another three years before my mother arrived in
    May 2006. (Due to NVC and local US consulate requirements in India).

    Once she arrived she filed a fresh petition for me under F2B in
    June 2007. However the original priority date of Feb 1998 from my Grandparent
    petition was NOT retained and new petition was given priority date of June
    2007.

    Unknown about the effects on beneficiary status, I got married in 2008
    and thus lost it.

    Subsequently my mother became US Citizen in 2011 and filed for a fresh new F3 petition for me, which has a priority date of October 2011.

    Currently, I am working in US on L-1 Visa.

    Can anything be done to retain priority date based on my Grandparents original F3 petition approved in 1999 for my mum( when I was still under 21), whereby I was considered a derivative beneficiary.
    Please advise if possible at harshid.bhavsar@gmail.com

  • oscar

    My father is claiming me through i-130. I was left out of the process when I aged out. Is there anything that needs to be added in writing when the application is submitted like requesting to keep the priority date or do I do that when I submit i-485?

  • Woosub Shim

    Hi.Everyone. I am also age-out person under my parent’s petition of EB-3 skilled worker. During the I-140 petition for my mom, I was 19 years 2 month old, and the petition approved on my age of 20 years and 3 month old. However, during the wait time, I’ve been age-out because I turned 21 years old so I had to separated from the parent’s petition. on Sept. 2013, my mom received the PR Card and petitioned as F2B. This petition has to wait likely 7 years. I contacted the immigration attorney for detail about the age-out issue and stated that if my parents filed as F2B, and if the Cuellar De Osorio wins the case, I could use the my parent’s priority date. Do I able to file I-485 when the F2B visa bulletin opens after February 2008(Parent’s PD) if respondent(MR. Fleming) wins this case?

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