Adventures of a Forced Migrant Contact Me
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.
Sometimes, reforming the immigration system means fully implementing existing laws on the book.
During his much-awaited immigration speech in Las Vegas, the President spoke, in part, of fixing the legal immigration system such that “if you are a citizen, you shouldn’t have to wait years before your family is able to join you in America.” This sounds simple enough. Current family-based visa categories are incredibly backlogged and prevent legal immigration to the United States, while increasing unlawful presence of people who simply want to be with their families.
However, despite his welcoming rhetoric, the Obama Administration has actively pursued policies diametrically opposed to resolving the crisis of legal immigration. In addition to carrying out a record-high number of deportations, the Obama Administration has carried out an assault on the children of lawful permanent residents and U.S. citizens by depriving them of their place in line, contrary to the rule of law.
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.
This is my reality and the reality of thousands of young immigrants who grew up in this country or are waiting in line in their countries of origin. We are separated from our U.S. citizen and lawful permanent resident parents and family members. Although President Obama has implemented administrative fixes such as deferred action for childhood arrivals and the provisional unlawful waiver program, the Administration continues to pursue policies that make it harder for American families to stay together. In this case, the Administration’s actions are contrary to the rule of law that provides for family reunification.
More than ten years ago, in 2001, Congress passed the Child Status Protection Act (“CSPA”) to address the lengthy separation endured by children of U.S. citizens and lawful permanent residents. 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 fought tooth and nail to avoid following this law.
Through the Department of Justice (“DOJ”), the Obama Administration is fighting CSPA by arguing that it is ambiguous and may only apply to a limited number of children who aged out of line. Yet, not a single federal court of appeals in the country agrees with the Obama Administration concerning the ambiguity of the legislation. Undeterred by this strong opposition, last week, even while many rejoiced the Senate reaching a bipartisan consensus on immigration reform, the DOJ decided to appeal and effectively stay the implementation of a Ninth Circuit Court decision (de Osorio v. Mayorkas), which would have required the Administration to fully implement the CSPA immediately for all children who have aged out of line. The Obama Administration’s position is contrary to the plain meaning of the legislation, which suggests that it applies to all children who age out.
The Administration’s limited vision for our immigration system through their narrow interpretation of CSPA should set off warning bells in the ears of immigration advocates who are pondering the Senate bipartisan blueprint and the President’s blueprint for immigration reform. It clearly means that just because Congress passes a law does not mean an agency will implement it as it is supposed to be implemented.
Nowhere is this warning more relevant than the Senate blueprint for immigration reform. The Senate blueprint includes a trigger mechanism mandating that undocumented immigrants who get in line as “lawful probationary immigrants” may only receive green cards after the border is certifiably secure. Senator Schumer (D-NY) has clarified that whether the border is secure is up to the Secretary for the Department of Homeland Security. However, the decade-long CSPA debacle serves as a lesson to advocates and reformers that leaving things open for agency interpretation, especially the interpretation of the DHS, may not serve to reform the system in the long run.
If the Obama Administration is truly concerned about revamping the legal immigration system, it should urge Congress to increase the allocation of visas such that it never, for instance, takes 22 years to immigrate to the United States legally to join one’s U.S. citizen parents. Congress needs to clear visa backlogs immediately through the allocation of more visas for the unmarried sons and daughters of U.S. citizens and lawful permanent residents. In the meantime, the Justice Department should be compelled to drop its appeal of the Ninth Circuit Court’s decision in de Osorio v. Mayorkas, as it is contrary to the Administration’s pursuit of immigration reform.
It is high-time for the Obama Administration to practice what it preaches, and prevent the lengthy separation of American families. It is not only the right thing to do. It is the legal thing to do.
Today, the Justice Department placed the brakes on the dreams of thousands of intending young immigrants. It appealed the landmark Ninth Circuit Child Status Protection Act victory (de Osorio v. Mayorkas) to the Supreme Court. The cert petition is here.
This means that the Ninth Circuit decision is stayed and the stay continues until the Supreme Court denies hearing the case or delivers a final disposition in the case. The entire process can take anywhere from 6 months to a couple more years, if not longer.
In the meanwhile, the Obama Administration will play lip-service to “immigration reform” while continuing its assault on young undocumented immigrants and intending young immigrants by denying us our original priority dates. Legal permanent resident parents will have to continue living without their adult children who are stuck abroad. Those adult children already here have to continue living in limbo, continue facing removal, and settle for second-class treatment.
Anyone who dares to believe in the myth of immigration reform is left to answer some hard questions–if the Obama Administration is so concerned about immigration reform, why does it continue its assault on immigrant families? If “family unity” is a critical principle for this Administration, why does it let the Office of Immigration Litigation continue to gut the last good immigration bill to pass Congress?
The decision doesn’t change my life. Nor will a green-card, to be frank. I will graduate this May, pass the Bar, get sworn in as an attorney and continue to try to make a difference in the lives of my clients by learning from the best, working with the best and becoming the best immigration lawyer, all while, I am still in removal proceedings, technically.
Yet, I continue to be disappointed in this country, in its deception, and in the wide disparity between its promise and its reality.