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Immigration case questions status of ‘aged-out’ child applicants

At oral arguments Tuesday, the U.S. Supreme Court scrutinized the language of federal immigration statutes to determine whether a visa applicant’s child who ages out of automatic eligibility while waiting in the queue for available visas must go to the back of the line.

The case of Mayorkas v. Cuellar de Osorio, No. 12-930, involves the visa application of Rosalina Cuellar de Osorio, an El Salvadorian woman who qualified for an F3 visa as the daughter of a U.S. citizen. At the time, her son Melvin was 13 years old and was listed on the petition as a derivative beneficiary because he was the minor child of a petitioner.

The Immigration and Nationality Act caps the number of family-sponsored visas each year at 480,000 and limits each country to no more than 7 percent of the total visas. This creates a backlog of approved applicants awaiting available visas.

Rosalina’s petition was approved in 1998, but a visa did not become available until 2005. By then, Melvin had turned 21 and aged out of qualification for a derivative visa.

After Rosalina became a lawful permanent resident, she petitioned for a F2B visa for Melvin, as an unmarried child of a permanent resident, and asked that he retain the May 1998 priority date he had in the original F3 application. But the U.S. Citizenship and Immigration Services denied her request, sending him to the back of the of the visa line, which means he would have to wait years before a visa was available.

A group of applicants that included Rosalina sued, arguing that the Child Status Protection Act enacted in 2002 compelled the government to restore their aged-out children to their original places in the visa line.

A federal district court dismissed the case, but the 9th U.S. Circuit Court of Appeals reversed, holding that plain language of the CSPA unambiguously granted automatic conversion and priority date retention to aged-out derivative beneficiaries.

The Supreme Court granted the USCIS petition for certiorari.

‘Delicate lines’

Elaine Goldenberg, assistant to the U.S., solicitor general, argued that Immigration and Custom Enforcement’s interpretation of the statute should be granted deference by the court. Allowing derivative beneficiaries who no longer qualify to keep a priority position in the line for available visas would “destabilize the scheme” by pushing applicants who qualify further back, delaying their permanent resident status, she said.

“Very delicate lines have to be drawn here,” Goldenberg said. “If someone is helped, someone else is hurt.”

“Isn’t the effect on the no-longer child much more severe?” asked Justice Ruth Bader Ginsburg. “I mean, if everybody has to get bumped down a little way it’ll make a difference of months until they qualify for a hearing.”

Goldenberg disagreed.

“It could be years,” she said. “And these people in line have already been waiting for years to get up to the front of that line.”

Goldenberg said that the provision of the CSPA that the plaintiffs are relying on only grants automatic priority date retention to individuals who sought to qualify as minor children of a lawful permanent resident and aged out while awaiting visas. It does not cover derivative beneficiaries of another applicant who has not yet received permanent resident status, she argued.

Justice Stephen G. Breyer wondered why Congress would create a provision that applies to so few potential applicants.

“This is a minuscule component of a set,” he said. “Therefore, it’s just unlikely that Congress meant [it] to apply to a little molecule when there’s the whole ocean” of other applicants.

Goldenberg said the provision was simple codifying an already-existing regulation.

“What Congress was reasonably interpreted to be doing here is picking up on an existing regulation that was targeted specifically at this very group that we’re talking about,” she said.

Mark Fleming, a partner in the Boston office of WilmerHale, argued on Cuellar de Osorio’s behalf that deference is not owed to ICE when the interpretation is inconsistent with the plain language of the statute.

“The government is asking this court to read the statute in a highly disfavored way such that it is not harmonious but at war with itself,” Fleming said.

Justice Elena Kagan asked whether, in cases like this where interpretations are so at odds, deference is more warranted.

“The agency knows a lot about the subject matter, and especially this agency. … This is a confusing statute, it’s a kind of muddle,” Kagan said.

“I would certainly agree … as a general matter that the immigration law is confusing,” Fleming said. “But I don’t think it’s any more confusing than other statutes where this court worked through and found the ultimate provision at issue to be clear on the question at issue.”

Fleming said the CSPA provision was passed to close a loophole that separated families solely due to the existence of a visa backlog.

“In this case, Rosalina Cuellar de Osorio had been waiting a long time to emigrate with her husband and her family, and then when the time came she was told, ‘You can all go except Melvin, because he happened to turn 21 just months before the visa became available,’” Fleming said. “Congress recognized that was a problem and tried to fix it. And they did fix it.”

A decision is expected later this term.

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