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Immigration Law

High Court Splits 5-4 on Part of Child Status Protection Act

Scialabba v. Cuellar de Osorio, 2014 U.S. LEXIS 3991 (June 9, 2014): The BIA’s textually reasonable construction of the Child Status Protection Act’s ambiguous language was entitled to deference, meaning that an aged-out “child” cannot retain his or her priority date if a new petitioner is needed [enhanced opinion available to subscribers].

The Supreme Court granted certiorari to resolve a circuit conflict as to the meaning of INA §253(h)(3), 8 U.S.C. §1153(h)(3), part of the Child Status Protection Act. The Court (Kagan, joined by Kennedy and Ginsburg) began with a description of the family-based visa process, an explanation of the CSPA, and the facts of Matter of Wang [enhanced opinion] and the two cases consolidated in the Supreme Court. The cases involved children of beneficiaries of either F3 or F4 beneficiaries. The children aged out while their parents waited for their visas. Their parents then filed petitions to bring in the children, and objected to the children being given priority dates based on the approval dates of the new petitions instead of the petitions of which the children were derivative — not principal — beneficiaries. The key was what Congress meant by “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.”

The court explained that §1153(h)(3) is “Janus-faced,” in that first part covers all aged-out family-based beneficiaries, but the key language “looks another way, toward a remedy that can apply to only a subset of those beneficiaries—and one not including the respondents’ offspring.” The Court ruled that, when the CSPA was passed, “automatic” meant that the conversion must occur “seamlessly,” with the same petitioner and no decisions, contingencies, delays, or even new filing. Likewise, “conversion” involves only a “mechanical” process. The Court added that interpreting the language otherwise would violate the “core premise” of the family-based system: that each beneficiary needs a “qualified” petitioner — that is, someone vetted by the immigration authorities, not swapped in. Furthermore, the Court observed that at the most logical moment for conversion, the putative replacement petitioner is not yet eligible to petition, because he or she is not yet an LPR. The court rejected the applicants’ arguments that every aged-out beneficiary can automatically convert, that the priority date can be retained even without automatic conversion, and that the BIA’s method of resolving any statutory ambiguity was arbitrary and capricious. However, the Court pointed out that it was merely deferring to the BIA’s construction, not saying that it was the only reasonable one. “Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable constructions consonant with its view of the purposes and policies underlying immigration law.”

The Chief Justice (joined by Scalia) concurred in the judgment, agreeing that §1153(h)(3) was ambiguous, but not that the first part pointed the opposite way from the second. Justice Alito dissented, saying that there was an appropriate category to which to convert, and so the applicants’ petitions should have been converted and original priority dates retained. Justice Sotomayor (joined by Breyer and for everything but one footnote by Thomas) also dissented. She wrote that §1153(h)(3) was unambiguous that any aged-out child in any of the family-based categories should be allowed to keep his or her priority date.

NOTE: For more on this subject, see Charles Gordon et al., Immigration Law and Procedure §36.04; David Froman, De Osorio v. Mayorkas, 2012 U.S. App. LEXIS 20177 (9th Cir. Sept. 26, 2012) (en banc) [enhanced opinion]: Suggestions for Implementing Court's Ruling Upholding Child Status Protection Act Coverage for Over-Twenty-One Derivative Beneficiaries: An Emerging Perspective, 2012 Emerging Issues 6736

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