Supreme Court Brief in Mayorkas v. Cuellar de Osorio (CSPA)

"Respondents are law-abiding noncitizens who sought, through their U.S. citizen relatives, to immigrate to this country with their minor children, as the law permits.  They waited patiently for years, in some cases decades, for visas to become available, and in that time their sons and daughters turned 21, such that they were no longer able to immigrate under the petition filed by their U.S. citizen relatives.  Respondents became lawful permanent residents (LPRs), filed new petitions on behalf of their now-adult sons and daughters, and requested that those children receive credit for the years they had already spent waiting for visas, rather than being required to start again at the back of the queue.  The court of appeals correctly ruled that Congress expressly allowed that credit—known as “retention of priority date”—in the aptly-named Child Status Protection Act (CSPA), Pub. L. No. 107-208, §3, 116 Stat. 927, 928 (2002). 

There are several reasons why the Court need not and should not review this case.  Congress is currently considering a comprehensive immigration reform bill that would moot the question presented entirely.  And while there is a shallow circuit split, it does not produce a risk of different enforcement in different circuits: a final judgment in the nationwide class action in this case would result in national uniformity without this Court’s intervention. 

Furthermore, the court of appeals’ decision is correct.  The government urges this Court to treat the plain statutory language as “ambiguous” and to defer to a reading of the CSPA that withholds the “retention of priority date” benefit from derivative beneficiaries (like Respondents’ children) included on petitions filed by U.S. citizens.  According to the government, Respondents’ children must wait many more years before being allowed to reunite with their immediate family in the United States.  That interpretation is at odds with the plain text, structure, and history of the CSPA, and the court of appeals was right to reject it." - Carl Shusterman, Amy Prokop, Nancy E. Miller, Robert L. Reeves, Eric R. Welsh, May 2013.