Adventures of a Forced Migrant Contact Me
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.