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

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.