I Don’t Even Know What To Call This

Janet Napolitano and the Department of Justice is quite angry at DreamActivist at the moment. They’ve filed a brief in response to the the amici in Cuellar De Osorio and they appear pissy. In fact, at one point in their reply brief, they scoff and ridicule us for saying that some of us face deportation due to their interpretation of CSPA.

The government’s position is posited on the absurdity that a broad definition of a remedial statute is impermissible because a lot more people would qualify from it. I wonder what would happen if the same rationale had been applied to the Equal Protection Clause of the Fourteenth Amendment or the Civil Rights Act of 1965. It’s thoroughly unconvincing, if not asinine. It’s not even a legal argument.

But the Government does more than just argue for a narrow construction of a remedial statute. The Government contends that age-out derivatives of F-3 and F-4 should not be given use of their priority dates because the F-2B category is oversubscribed and it negatively affects those who have been waiting in the F-2B line. The Government suddenly cares about the adult children in the F2B line, while remaining hostile and adversarial towards the adult children that aged out of the F-3 and F-4 lines. They accuse amici, which includes the American Immigration Lawyers Association and the Catholic Charities, of not caring about the rights of the children in the F2B line and create fictional stories of the hypothetical hardships that these fictional characters would suffer as a consequence of following our interpretation of the law.

Essentially, their argument is that since visa numbers are a zero-sum game, we shouldn’t give green cards to people who have waited in line with their parents and appear statutorily eligible for them because it will make the wait for green-cards even longer for others. Of course, every time someone gets eligible for a green-card, someone else has to wait longer, so I’m not sure what the government is trying to say. If what they accuse us of doing is true and their zero-sum world is a reality, they should concede that every time they give a green card to someone, they deprive someone else of a green card, making themselves the biggest offenders in the room. This is the absurd logical endpoint of their line of argumentation.

But, the Government is incorrect that this in fact, is a zero sum game. People in the 2B category can become ineligible through marriage or eligible for F1 if their parents become citizens or not even want to immigrate to the U.S.. It’s not a closed world after all. It’s just a world that the Government would like to construct.

One has to wonder that if the Government cares so much about these fictional people waiting in the F2B category, why they have never ever petitioned Congress to increase the visa numbers allotted to the category. In fact, when politicians have proposed to erase the category altogether through comprehensive immigration reform, top-ranking DHS officials have cheered and waved their flags in support.

Of course, their sudden love for the adult unwanted children of long-time legal permanent residents is all too convenient. Throughout the brief, the Government sets up straw-mans to divert attention from the ludicrous result of their interpretation of the law, namely that age-out derivatives from the F-3/F-4 category have to wait in line twice, be separated from their family units due to an arbitrary age and in some cases, never qualify for a green-card.

There is no justification in the law or statute that we should be treated like second-class. And yet, that is precisely the viewpoint that the Government advances.

Principle Legal Advisor of ICE, Peter Vincent, admitted at the last AILA Conference that he has trouble sleeping at night. I believe it.


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