Adventures of a Forced Migrant Contact Me
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.
I’ve been buried in emails for the past 24 hours, trying to answer questions and ascertain whether someone would qualify for adjustment of status if not for BIA’s interpretation of the Child Status Protection Act under Matter of Wang. Since the Ninth Circuit has miraculously agreed to re-hear the Cuellar De Osorio v. Holder nationwide class action suit, there is a tiny window of opportunity to influence the judges through stories of young people who’ve been adversely impacted. I sent out an email to over 102K people on Friday morning to see how many DREAM Act eligible youth or just undocumented youth would be impacted by the litigation.
I’ve received a tremendous response that is overwhelming. Since the matter in front of the court deals with the part of CSPA that provides for retention of priority dates, I’ve heard from people who have fallen through the cracks due to the natural process of aging. These include cases of young adults who have aged-out of the EB-3 process; young people on dependent H-4 visas who’ve aged out of the H-1B process; cases where the principal petitioner and the principal beneficiary have died tragically; people who are left out of the loop because their parents adjusted their status through a U.S. citizen sibling or through marriage to a US citizen; cases where young people were left out of the 1986 amnesty even though their parents gained legal residency and filed for them; cases where young adults age out of VAWA and U-2 visas. That is just the gist of it.
Save for family preference and employment based visas, these cases are not covered by CSPA. Some of them may qualify for humanitarian reinstatement so I referred them to a lawyer. But most of these cases are a result of an ill-conceived and outdated immigration process that is a complete bureaucratic nightmare for anyone unfortunate enough to get caught up in ut. There should be no doubt that we have a huge problem on our hands — a broken legal immigration system that makes people fall out of status, even when they do everything right. It is not going to get fixed anytime soon, absent a comprehensive overhaul of the system.
But the cynical part of my brain does not believe the system is broken. It works precisely how it is supposed to work — dysfunctionally. We are all agents of that dysfunction, losing and gaining from a convoluted process and we can’t expect a human-created system to be perfect when we are not. Maybe there is a critique of debilitating bodies and systems here.
Thus far, I’ve received 5-8 good candidate stories for the amicus brief, not including myself. If you think you qualify or know anyone else that qualifies for adjustment of status if not for the fact that they aged-out, please send them my way.
Doing this work entails quite a bit of emotional stress and responsibility towards our community. But it also comes with the knowledge that I am in a better place and doing everything I can to make sure that everyone in a similar situation gets the chance to live better lives.
Briefs are due May 11. Arguments will be heard the week of June 18. I go back to immigration court on October 11, and hopefully, the judge would have a long-awaited green-card for me.