09 June 2014 ~ 8 Comments

Long Awaited CSPA Decision Is Out — And Unfortunate

It is a 5-4 decision for the government in Scialabba v. de Osorio, and 65 pages long, which is why it took so long to release.

Read the entire opinion here.

This decision means imminent family separation. It means that (adult) children who age out of petitions filed on behalf of their parents cannot keep their original priority dates–and therefore, cannot immigrate with their parents, and may be subject to deportation, if they are in the country without legal status.

First thoughts: The court is deeply divided, mostly along racial lines, which makes the decision somewhat of a clusterfuck. Justice E. Kagan writes for the plurality (not majority), joined by Justice Kennedy and Justice Ginsburg.

Because §1153(h)(3) does not speak unambiguously to the issue here, a court must defer to the BIA’s reasonable interpretation [under the Chevron doctrine]…Thus, the only aliens who may benefit from §1153(h)(3)’s back half are those for whom automatic conversion is possible

Chief Justice Roberts issued a separate opinion, joined by Justice Scalia, agreeing with the plurality that the BIA reasonably interpreted §1153(h)(3), but disagreeing as to what makes the provision ambiguous under the Chevron doctrine.

Justice Sotomayor writes the dissent, joined by the staunchly conservative Justice Thomas! When do you get such a racialized line-up? In an immigration case, of course. Justice Alito and Breyer also joined with the dissent.

I only worked on the case at the Ninth Circuit level, where we won the case. Unfortunately, the Obama Administration decided to throw some immigrant children under the bus at the hands of the Supreme Court.

Whether this decision applies to the entire world of petitions–employment, and asylum–is a separate matter, and not touched upon by the plurality with any sort of clarity. There may be some wiggle room here, so if anyone has specific questions, shoot me an email.

  • Shawn

    so what’s next? Can supreme court decision be appealed or its the final word?

    • Moderator

      The Obama Admin, specifically, the Attorney General can reverse course. Congress can also legislate to make the law clearer. In the meanwhile, there is not much to do for family-based preference categories.

  • Shawn

    so what’s next? Can supreme court decision be appealed or its the final word?

  • Olga Zakharova

    As the Supreme Court decision cannot be appealed the only way to get a fair resolution in this case is to request the Cogress to revise the CSPA and to clarify its legal languageit. As it was decided by the Court (5 against 4, still not overwhelming majority) that the language of the CSPA is ambigous, why not to clarify it once again? Will the immigartion attorneys try to lobby the Congress to do this? The CSPA was enacted almost 12 years ago during the presidency of G.W. Bush. The issue of the CSPA is about legal immigarnts and their problems provided by unperfect immigaration system, it is not about “amnesty”. Legislators of both parties can agree to do something to make this law clear and really helpful for the families.

    • Jayesh Patel

      The CSPA original enacted to unite the family is soul aim. A selective category is clearly ambiguity in the act and 5-4 justice accepted it is ambiguity. It is up to congress to clear ambiguity and give a benefit to all category to fulfill the aim of CSPA law.

  • Olga Zakharova

    As the Supreme Court decision cannot be appealed the only way to get a fair resolution in this case is to request the Cogress to revise the CSPA and to clarify its legal languageit. As it was decided by the Court (5 against 4, still not overwhelming majority) that the language of the CSPA is ambigous, why not to clarify it once again? Will the immigartion attorneys try to lobby the Congress to do this? The CSPA was enacted almost 12 years ago during the presidency of G.W. Bush. The issue of the CSPA is about legal immigarnts and their problems provided by unperfect immigaration system, it is not about “amnesty”. Legislators of both parties can agree to do something to make this law clear and really helpful for the families.

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