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.

You Cannot Live Here — Restrictive Housing Ordinances as the New Jim Crow

jimcrow_1918_10_04My latest paper is now available for download on SSRN.

“You Cannot Live Here — Restrictive Housing Ordinances as the New Jim Crow” is a cursory review of the hundreds of restrictive housing ordinances enacted in suburbs across the country after the failure of comprehensive immigration reform legislation in 2006 and 2007. The paper is timely because Farmers Branch, a Dallas, Texas suburb, lost an en-banc appeal of the their restrictive housing ordinance at the Fifth Circuit Court of Appeals last month. The restrictive housing ordinance in Farmer’s Branch requires all renters to verify their legal status with the city and authorizes the city’s building inspector to verify with the federal government whether occupants are lawfully present in the United States. After losing at the Fifth Circuit for a second time, the City Council of Farmers Branch voted 3-2, to pursue an appeal to the Supreme Court of the United States.

The thesis of this paper is simple. In a time when people do not like talking about race and racism, I contend that the proliferation of local anti-immigrant restrictive housing ordinances in predominantly white residential areas is motivated by racial animus towards Latinos, and parallels Jim Crow era racial zoning laws and sundown towns. Combing urban studies and immigration, I also contend that a great influx of Latino immigration has transformed how place and race is lived in America because Latino immigrants challenge the black/white binary that has long shaped U.S. race relations, and their continued migration to suburbs will likely play a transformative role in changing the urban/suburban landscape.

Lal, Prerna, You Cannot Live Here — Restrictive Housing Ordinances as the New Jim Crow (June 1, 2013). Available at SSRN:

Cert. Granted: Mayorkas v. de Osorio

Well, as predicted, the “Justice” Department have succeeded in whining their way up to the Supreme Court regarding the Ninth Circuit’s decision in de Osorio v. Mayorkas.

The Supreme Court granted certioriari in Mayorkas v. de Osorio this morning.  The stay of mandate continues until the court disposes the case, which could be as late as next June, and definitely not before the end of this year.

FYI, just because four justices on the Supreme Court agree to hear a case does not mean a win for the government. It does mean that families have to wait longer to reunite, persons have to continue fighting removal proceedings, and continue waiting for a green card.

I have worked on this issue and written about it for the past six years. It is completely hypocritical how the Obama Administration is paying lip service to immigration reform while trying to gut the last immigration bill passed by Congress.

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 fighting 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.

These past articles provide good reference:

And I have used them to sum up a new post for today, over at DreamActivist.
Back to bar review.

Obama’s “Justice Department” Appeals Landmark Ninth Circuit Victory to the Supreme Court

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.