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.

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.

U.S. Supreme Court Hears CSPA Case On Dec. 10

United States Supreme Court building.

United States Supreme Court building. (Photo credit: Wikipedia)

As reform advocates continue to fast and pray for comprehensive immigration reform by pitching tents on Capitol Hill, perhaps the most under-reported immigration news of this year is how the Obama Administration is denying green-cards to thousands of young immigrants by not giving proper interpretation to the Child Status Protection Act (CSPA).

The CSPA was supposed to protect children who turned 21 while waiting in line for a visa, and thus, fell through the cracks of a highly ineffective system. I described the problem in laypersons terms here:

Imagine having a U.S. citizen family member sponsor your parents for the elusive green card. The petition gets approved, and you get placed in a long line along with your parents. Slowly but steadily, over a decade or longer, you make your way to the front of the line and your parents gain permanent residence after a long wait. While waiting in line with your parents, you do everything right: you comply with the law, receive an education, pay your taxes and, in many cases, wait patiently outside the country. However, by the time you reach the front of the line, you are over 21 years old and have therefore, “aged out.” As a result, you do not get your green card. Instead, you get slapped with a Notice to Appear in immigration court for your removal proceedings. If you are abroad, you get told that you need to wait another decade to join your family and start over again at the back of another line. If you get married during this minimum two decade wait, you may never be able to immigrate.

In order to resolve this problem, more than a decade ago, Congress passed the CSPA to address the lengthy separation endured by children of U.S. citizens and lawful permanent residents who fell through the cracks. The legislation, which was signed into law by former President George W. Bush, allows children who have reached the age of 21 to keep their place in line under another visa category, eliminating the need to wait twice as long as everyone else for an immigrant visa. That seems fundamentally fair. And yet, since 2001, the government has interpreted the law in a manner that undermines its core purpose: family unity.

In particular, the government contends that section 1153(h)(3) of the CSPA applies to only one narrow set of child beneficiaries: those who are listed as beneficiaries of F2A petitions filed by their lawful permanent resident parents. This reinterpretation “denies the CSPA’s ameliorative remedy to the thousands of children who are derivative beneficiaries of any other type of petition, including petitions filed by U.S.-citizen relatives.” In short, Cuellar de Osorio and class action contends that the CSPA should apply to all aged-out derivative beneficiaries.

After we won at the Ninth Circuit, the Department of Justice appealed the case to the U.S. Supreme Court, which agreed to hear the case. The oral arguments are set for December 10, 2013, with a decision expected early next year. Various organizations have filed briefs in support of the affected families, including CLINIC, MALDEF, the NIJC, and Asian Americans Advancing Justice, who contend that the government’s interpretation of CSPA is contrary to current agency practice. At the urging of various advocates, several former and present Senators have also filed an amicus brief in support of the impacted families stating that “the language of the CSPA unambiguously provides priority-date retention and automatic conversion for any derivative-beneficiary child who ages-out.” These briefs are in stark contrast to the position of the Solicitor General, the Department of Justice, and hence the Obama Administration, which has continued to deport migrants at record numbers.

I’ve been working and writing on this issue for several years now. Many persons have reached out to me, some of whom were able to get green cards from the USCIS after the fabulous victory in de Osorio v. Mayorkas at the Ninth Circuit. Of course, these results are not guaranteed in all cases. Applying for a green card based on a Ninth Circuit decision that has been effectively stayed is highly risky, and could mean being placed in removal proceedings for persons who are currently without status in the United States.

The most frequent question from my readers is what I think about the chances of CSPA at the Supreme Court. I don’t have a crystal ball, but I am still betting that in the first quarter of next year, the U.S. Supreme Court will give the provision its full meaning, and thousands of young persons would win the ability to finally reunite with their families. In the least, we should have an answer from the Supreme Court soon, that could reunite thousands of immigrant families.

Keep the faith.

CSPA Update: June 24 is D-Day


Attorneys for de Osorio filed an excellent reply brief to the DOJ’s petition seeking certiorari on May 24. Usually, the petitioners can file a reply brief within 10 days in de Osorio and it appears that they have done so. As of now, the government’s petition for review of the Ninth Circuit’s decision has been distributed for conference on June 20. I believe SCOTUS will probably vote to hear this, but I’d love to be wrong.

Empirical analysis suggests that it is rare for the Supreme Court to deny hearing a case when the Solicitor General requests review. While I think that the appeal is without merit, and almost frivolous, it only takes a law clerk to place the certiorari petition in the pool for review and four Supreme Court justices to agree to grant review.

If the Supreme Court grants certioriari, as in, agrees to hear the case, which we will know by June 24, 2013, then the stay of mandate continues, and no one can seek adjustment of status (or a green card) under de Osorio until the Supreme Court hears the case. Persons under the jurisdiction of Fifth Circuit (Texas, Louisiana and Mississippi), who are in removal proceedings, continue to be eligible for relief under Khalid v. Holder. New briefs would be filed, oral arguments held, and the Supreme Court would have until the end of June 2014 to issue a decision.

If the Supreme Court denies review, then the stay on mandate is lifted, and de Osorio becomes law nationwide because it was certified as nationwide class action lawsuit (and hence, there are no circuit split issues).

I hope everyone separated from their parents or adult children, get to see their family members soon.

Much love.

Update: Here is the DOJ reply brief, with the same old arguments from the government. It appears from the brief that the Obama Administration is opposed to several provisions of the Senate bill. Interesting.

How the Senate Immigration Bill Overturns Matter of Wang, Clarifies the Child Status Protection Act and Should Put an End to the Government’s Appeal In De Osorio

US Supreme Court building, front elevation, st...

US Supreme Court building, front elevation, steps and portico. (Photo credit: Wikipedia)

One of the good parts of the Senate immigration bill, dissected here, is that it should put an end to the litigation concerning aging out of children under immigration laws.

If you are new to this, Congress passed the Child Status Protection Act (CSPA) in 2001 to remedy the problem of children, who upon turning 21, were being “aged-out” of benefiting from family, employer or diversity visa petitions filed on their behalf or on behalf of their parents. “Aging out” basically meant that the parents had to immigrate to the U.S. without their 20-something adult children and face family separation for at least a decade, or if they were already in the country, the adult children faced detention and deportation while the parents received their green cards. I was aged out similarly, and placed into removal proceedings that continue to this day (Next Court date: October 10, 2013), so this is a particularly sore point for me, given it is contrary to established laws already on the books.

The CSPA, codified in 8 U.S.C. 1153(h), states that after doing a complex mathematical formulation to determine the age of the child:

If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, 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.

Basically, this means that if the adult child has already turned 21, she or he can retain the original date of filing from the original petition, and apply it to a subsequent petition filed by the parent. In effect, this would reduce the wait time for the aged-out child in the new category, and allow for family unification. The Citizenship and Immigration Services (USCIS) has basically limited the interpretation of this section to apply to a child only if the subsequent petition is filed by the same petitioner i.e. a parent filing for a child in one category, and then refiling for the child in another category after gaining naturalization. This restrictive interpretation is in stark contrast to the plain language of the statute and also contrary to the purpose of CSPA: family reunification. While the Board of Immigration Appeals, in Matter of Wang, upheld the restrictive interpretation, the Ninth Circuit found the statute clear and unambiguous in de Osorio v. Mayokas, as did the Second and Fifth Circuits, the only other appellate courts to consider the issue.

The DOJ and OIL are having none of it. They have appealed their loss in the Ninth Circuit to the U.S. Supreme Court, hoping some of the right-wing zealots on the Court may agree to hear their fears about the “glut of Mexicans”* over-running the country, and overrule the Ninth Circuit. The reply brief for the Supreme Court case, Mayorkas v. de Osorio, No. 12-930, is due next week. The Justices will likely determine whether to review the case at the end of May or before recessing for the summer at the end of June. If the Justices deny hearing of the case, the Ninth Circuit shall issue the mandate, and everyone who is eligible for a green-card as an age-out should be able to benefit from the decision. Yet, since the Government is appealing and there appears to be a circuit split, the chances of a Supreme Court hearing are higher than usual.

However, the recently introduced Senate immigration bill can potentially benefit the litigants in de Osorio. In it, a bipartisan group of Senators clarify 8 U.S.C 1153(h)(3), by re-writing it such that the Child Status Protection Act provisions are crystal clear:

For a petition originally filed to classify a child under subsection (d), if the age of the alien is determined under paragraph (1) to be 21 years of age or older on the date that a visa number becomes available to the alien’s parent who was the principal beneficiary of the petition, then, upon the parent’s admission to lawful permanent residence in the United States, the petition shall automatically be converted to a petition filed by the parent for classification of the alien under subsection (a)(2)** and the petition shall retain the priority date established by the original petition.

Bam! What this provision says, in effect, is that if a child ages out of a petition filed on behalf of the parent, the aged-out child gets to keep the original priority date and apply it to a subsequent petition filed by the parent on her or his behalf, which gives the child credit for waiting in line, and ensures family reunification. The Senate bill clarifies the original intent of CSPA, and effectively overturns the erroneous Matter of Wang re-interpretation. There is no alternate interpretation of this section. In fact, the Senate immigration bill provides for the retention of priority dates for all petitions

Given the language of the Senate immigration bill, the DOJ/OIL need to withdraw their frivolous writ of certioriari in good faith, as they no longer have any legal or policy basis for appeal. Congress is relentlessly trying to reform immigration laws, such that family immigrant visa categories would undergo dramatic revision, with or without de Osorio. The Senate bill — a bipartisan effort — clarifies the original intent of Congress in drafting 8 U.S.C. 1153(h)(3), placing a deep dent into any other interpretation of the law. If the Supreme Court takes the case, it will be a grand waste of time for all parties, as Congress would simply re-write whatever the Court has to say. By continuing to seek review before the Supreme Court, the appellants are establishing, beyond all doubt, that the litigation has always been about their ego and laziness, rather than the rule of law. However, don’t expect them to do the right thing!

By law, I should have received my green card in January 2011. What I received in the mail, instead, was a notice to appear in immigration court for removal proceedings. The consequences range from mild to severe — no financing for school, no right to travel outside the U.S. without being banned from the country for 10 years, no right to get married as I could potentially lose my place in the new line, no means-tested benefits such as healthcare or unemployment, running the risk of immigrant detention, facing removal proceedings and attending endless court hearings, imminent family separation, constant dehumanization and denigration as an “illegal alien” and so on.

While nothing can begin to remedy what I have been through, thousands of families are still separated–mothers and fathers from their children–contrary to the law–and they need to be reunited without further ado.

For all of us, justice delayed is justice denied.

*”Glut of Mexicans” is how OIL attorney, Elizabeth Westwater, described the immigration visa category for “unmarried adult children of lawful permanent residents” in her oral arguments to the Ninth Circuit).

**Subsection (a)(2) refers to “Spouses and unmarried sons and unmarried daughters of permanent resident aliens).