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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.
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.
“There’s really no such thing as the ‘voiceless’. There are only the deliberately silenced, or the preferably unheard.”
Ju Hong’s “yelling” to issue an executive order to stop deportations echoed across the country, and has sparked a series of actions mostly calling on the President to use his executive authority to stop deportations. Over 500 national organizations (and growing), including the Mexican American Legal and Education Defense Fund, United We DREAM, the National Day Labor Organizing Network and AFL-CIO, have signed on to a letter asking the President to exercise discretion in stopping his deportations. Even House Democrats joined the chorus yesterday, with 29 House Democrats signing a letter to the President to suspend deportations and expand DACA:
If your child has received DACA, you should not be deported. If you qualify for legalization under the Senate bill — a bill the President and the rest of the country supports — you should not be deported. We cannot continue to witness potential citizens in our districts go through the anguish of deportation when legalization could be just around the corner for them. We look to you to firmly contribute to advancing inclusion for immigrants by suspending deportations and expanding DACA.
President Barack Obama said during a trip to New Orleans, “We should be fighting to make sure everybody who works hard in America, and hard right here in New Orleans, that they have a chance to get ahead.” However, instead of trying to reduce deportations, the Obama Administration is piloting a new, unprecedented and extraordinarily harsh effort to hunt down and deport thousands of hardworking undocumented immigrants in New Orleans.
The Obama Administration’s hypocrisy on immigration knows no limits. Instead of taking action, the President would rather hide behind the “rule of law” discourse, and pretend that he doesn’t have power to do anything. Invoking the “rule of law” is not only disingenuous but dangerous because it is used to quell the demands of the lesser privileged for real, tangible, social change. President Obama says he can’t stop deportations because it isn’t within his powers. Yet, he finds it within his power to carry out mass surveillance, drone attacks, topple regimes, and order extra-judicial killings.
However, short of placing a moratorium on deportations, there are many things the Administration can do to relief the pressure on immigrant families across the country that are well within executive powers. These include:
- Detention: Redefine “in custody” as inclusive of ankle-monitoring programs, in order to let people–62 percent of whom have no criminal records–out of detention;
- Enforce existing memos that allow for parole of asylum seekers who have passed their credible fear interviews;
- Stop the Department of Justice (DOJ) assault against undocumented law school graduates such as Sergio Garcia, Caesar Vargas, and so on;
- Issue “Notice to Appear in Removal Proceedings” only in the most severe criminal cases, which would reduce the immigration court docket over time by more than 60 percent;
- Work on crafting a narrower definition of “aggravated felon” — a catch-all phrase that now includes both serial rapists and lawful permanent residents who have committed non-violent crimes in the past;
- Put an end to Secure Communities (S-COMM), an administrative deportation program that targets persons with minor criminal records, and has led to the ICE detention of over 3000 U.S. citizens;
- Roll back new harsh effort “Criminal Alien Removal Initiative”;
- Pardon prior re-entry;
- Expand Deferred Action for Childhood Arrivals (DACA) to cover all childhood arrivals rather than place an arbitrary age cap;
- Stop assault on lawful permanent resident parents by giving full meaning to the Child Status Protection Act so that thousands of young people, including many Dreamers, can finally reunite with their parents.
And the list goes on. This week, a judge ruled that the President’s uncle, Omar Obama, could stay in the U.S.
But justice is nowhere in sight for those of us with no ties to the President, our deporter-in-chief.
I was honored to be on Episode 2 of The Good Fight with Ben Wickler, a progressive show about people changing the world.
Friend of this blog, Professor Allegra McLeod at Georgetown Law, had her research on immigrant and criminal convictions covered extensively in an article by The Atlantic on Why Are Immigrants Being Deported for Minor Crimes?
Allegra McLeod, an associate Professor of Law at Georgetown, examined cases like Sylvain’s in a position paper last year for the American Criminal Law Review. She writes that between 1990 and 2010, immigration offenses became the most common federally prosecuted crimes in the U.S. After 1996, when the new laws took affect, approximately one million immigrants were been deported as a result of criminal convictions. Moreover, McLeod estimates that 20 percent of those removed were longtime legal residents, and the majority of their crimes were minor, non-violent offenses.
What’s more, McLeod writes, “a criminal conviction is not necessarily a reliable indicator of undesirability or dangerousness.” For that reason, the heightened attention on immigrants like Sylvain and Khoy would not seem to be in the public’s best interest. McLeod cites Harvard sociologist Robert J. Sampson, who found that increases in immigration normally are “associated with reduced crime rates,” and that “the diversion of resources to criminally prosecuting undocumented immigrants may be particularly misguided from a public safety standpoint.”
The Atlantic delves into why the U.S. is deporting long-time legal permanent residents:
Sylvain is one of thousands of immigrants who have been charged with “aggravated felonies” by the U.S. Immigrations and Customs Enforcement (ICE). The term, first introduced in the 1988 Anti-Drug Abuse Act, applies specifically to immigrants and asylum-seekers: If they’re convicted of any of the crimes in this category, they can be deported and prohibited from reentering the U.S. for 20 years. In 1988, the list of aggravated felonies was limited to serious crimes such as murder and drug trafficking. But Congress expanded the definition over the years, most extensively in 1996.
The two 1996 laws—the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA—came in the wake of the 1993 World Trade Center bombing, when Congress felt pressured to streamline new immigration reform. The measures made more than 20 new crimes into aggravated felonies, including counterfeit, perjury, and obstruction of justice. They also reduced threshold requirements from five years to one, meaning that any immigrant issued a one-year prison sentence could be instantly deportable.
Immigrant rights organizers continued to partake in shutdown ICE actions by trying to stop deportation buses even as Congress tip-toed around the question of immigration reform. In Illinois, undocumented organizers and supporters formed human chains to stop their third deportation bus. In Atlanta, more than a dozen persons locked themselves to the gates of the downtown Atlanta ICE office to protest deportations. After partaking in the action, Caitlin Breedlove, Co-director of Southerners on New Ground (SONG), wrote an excellent piece on Queer, Immigrants, All of Us: Not 1 More.
This is not a surprise for most of us but a recently released GAO report on sexual abuse in detention found that Immigration and Customs Enforcement (ICE) under-reported sexual abuse and assault in detention. A staggering 20 percent of detainees who reported sexual assault or abuse are transgender, showcasing the need for direct services for this population.
The Nation carried an excellent article on the ever-expanding U.S.-surveillance and border regime:
In many cases, the US is also training border forces in the use of sophisticated surveillance systems, drones, and the construction of fences and barriers of various kinds, largely in attempts to clamp down on the movement of people between poorer and richer countries. More than 15,000 foreign participants in more than 100 countries have taken part in CBP training sessions since October 2002. It is little wonder, then, that an L-3 Communications sales rep would shrug off the constraints of a shrinking domestic national security budget.
Meanwhile, US borders are functionally being stretched in all sorts of complex ways, even across the waters. As Michael Schmidt wrote in the New York Times in 2012, for example, “An ocean away from the United States, travelers flying out of the international airport here on the west coast of Ireland are confronting one of the newest lines of defense in the war on terrorism: the United States border.” There, at Shannon International Airport, Department of Homeland Security officials set up the equivalent of a prescreening border checkpoint for air travelers.
Whether it is in your airports or, as in Haiti’s case, in the international waters around your country, the US border is on its way to scrutinize you, to make sure that you are not a threat to the “homeland.” If you don’t meet Washington’s criteria for whatever reason, you will be stopped, forcibly if necessary, from entering the United States, or even in many cases from traveling anywhere at all.
With this in mind, the experimental border control technologies being tested along the US-Mexican boundary line and the border-industrial complex that has grown up around it are heading abroad in a major way. If Congress finally passes a new multi-billion dollar border-policing package, its effects will be felt not only along US borders, but also at the edges of its empire.
The frontier isn’t coming down anytime soon. The USCIS released a policy memo re-stating that it would continue to deny priority date retention to age-outs until the Child Status Protection Act (CSPA) issue is resolved by the Supreme Court. It also added that any applications filed for adjustment of status from now on, seeking retention of priority date, would be rejected as improperly filed, and not even held in abeyance. This memo is suspiciously well-timed for the litigation at the Supreme Court, and a post-ad hoc justification for not giving full meaning to the CSPA.
For those of us who watched the Hunger Games today, here is some food for thought on the revolution that the U.S. refuses to start.
I’m Team Haymitch. I think we are just about appropriately jaded, no?
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.