On June 9, 2014, the Supreme Court issued a decision in the case of Scialabba v. Cuellar de Osorio, that is pivotal to the immigration agency’s adjudication of immigrant visa petitions for children turning 21 while their parents' immigration process is pending. Specifically, the issue was whether a derivative beneficiary of a visa petition who is over twenty-one years old, even when calculating the appropriate Child Status Protection Act (CSPA) age, is able to retain the priority date of the earlier petition filed on behalf of the primary beneficiary (generally his or her parent). While the case involved a somewhat dry and complicated question of statutory interpretation, the impact for law-abiding immigrant families was very real. Had the Supreme Court ruled in favor of the immigrant families in this case, it had the potential to offer relief to families who had already been waiting years for the opportunity to immigrate lawfully to the United States. Unfortunately, the Supreme Court, in a highly divided decision, found that the statute was ambiguous and, therefore, that the very narrow interpretation of the Board of Immigration Appeals was entitled to deference.
The CSPA, which was enacted by Congress in 2002, provides a special sets of rules and formulas by which an individual’s CSPA age is different from their biological age. The portion of the statute at issue in Cuellar de Osorio provides that if the derivative beneficiary’s CSPA age is still over the age of 21 “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 Supreme Court was tasked with resolving a circuit split regarding the meaning of the statutory phrases “automatic conversion” and “priority date retention” provisions; specifically, which derivative beneficiaries can maintain the earlier priority date. Advocates advanced the argument before the Supreme Court that this section of the statute applies to all derivative beneficiaries.
In contrast to the position argued by advocates, the government agencies (namely, U.S. Citizenship and Immigration Services and the Board of Immigration Appeals) have read these provisions narrowly, finding that an aged out derivative beneficiary is permitted to retain the priority date only when the petitioner remains the same. This is therefore, in the government’s view, limited to a small sub-set of cases. A circuit split soon developed around the agency’s interpretation.
Oral arguments were heard before the Supreme Court on December 10, 2013, and the Court’s decision was announced on June 9, 2014. Justice Kagan wrote the plurality opinion, in which Justices Kennedy and Ginsburg joined, finding that the statutory term at issue was ambiguous and thus that the BIA’s decision was entitled to deference. Chief Justice Roberts, joined by Justice Scalia, agreed that the BIA’s interpretation of the statute was reasonable. There were two separate dissents. One was written by Justice Alito, who found that the statutory text was clear on its face. Justice Sotomayor also filed a dissenting opinion, joined by Justices Breyer and Thomas.
Advocates for families long separated by this country’s immigration policy will have to hope that Congress will act to reform this section of the law, as well as many others that keep law-abiding families separated for far too long.