On Monday, June 9, 2014, the Supreme Court of the United States issued its decision in Scialabba v. Cuellar de Osorio, the class action Child Status Protection Act (CSPA) lawsuit. The Supreme Court reversed the Court of Appeals for the Ninth Circuit, and found it appropriate instead to defer to the agency interpretation as set forth by the Board of Immigration Appeals (BIA) in 2009 in Matter of Wang. In Wang, the BIA found that the CSPA does not protect most children who turn 21 while waiting years for the visa that was sought on behalf of their parents. In light of this decision, those children will need to restart the visa process with a new priority date, and cannot retain the priority date from the petition filed for their parents.
In a 5-4 split decision, a majority of the Court found that the CSPA was ambiguous with regard to its application to most derivative beneficiaries. At issue in the case was whether the CSPA provided “automatic conversion and priority date retention” to derivative beneficiary children of petitions filed by relatives of their parents (usually, their parents’ parents or siblings). Writing for the plurality (and joined by Justices Kennedy and Ginsburg), Justice Elena Kagan found that part of the law to be “through and through perplexing,” and could not reconcile that provision with her understanding of the family-preference immigration system. Chief Justice Roberts and Justice Scalia both concurred with the decision, but wrote separately with a different understanding of what made this part of the CSPA ambiguous.
The plurality decision rejected various methods and interpretations offered by the class action litigants (and the dissenting justices) that would have given full purpose and effect to the “automatic conversion” and “priority date retention” language. Instead, the majority deferred to the administrative agency, the BIA. Justice Kagan found the BIA decision to be reasonable, noting that “the Board could reasonably conclude [that the child] should not receive credit for his parent’s wait when he has become old enough to live independently.”
Justices Alito, Sotomayor, Breyer, and Thomas dissented, arguing that the BIA’s interpretation of the CSPA in Matter of Wang was not permissible, and that the language of the CSPA mandates a broader reading than that offered by the BIA or the majority of the Court. Justice Sotomayor stated that the majority (and the BIA) “ignore obvious ways in which [the CSPA] can operate as a coherent whole.” The dissent found that Congress unambiguously designed this part of the CSPA to be available to any aged-out child, regardless of the initial category of the petition filed on behalf of the child’s parent. Because (according to the dissent) Congress’s intent to extend relief to all aged-out beneficiaries was clear, the BIA was not entitled to deference, and the decision of the Ninth Circuit should have been affirmed. Justice Sotomayor argued that even when a petition cannot “automatically convert” easily to a new category, the aged-out child should still be able to retain the earlier priority date for use with a new petition.
Although the Court’s decision deals a significant setback to aged-out children seeking to immigrate to the United States, hope remains both in the decision itself, and in the stated intentions of the members of Congress who drafted the law. In the plurality opinion, Justice Kagan stressed that the CSPA’s ambiguous language merely “permits—not that it requires” the BIA to narrowly interpret it. The Court left the door open for the BIA to reconsider its interpretation. The BIA is a sub-agency of the Department of Justice, part of the executive branch ultimately controlled (to the extent constitutionally permitted) by the President. This decision does not prevent the head of the Department, Attorney General Eric Holder, from issuing a precedent decision overruling Wang and expanding the coverage of the CSPA to all derivative beneficiaries.
In addition, Congress has the power to reform the laws to give clear intent to the CSPA. In support of the class action, a group of bipartisan U.S. senators, including Democratic Sen. Dianne Feinstein and Republican Sens. John McCain and Orrin Hatch, submitted an amicus (“friend-of-the-court”) brief, arguing that Congress had indeed intended this law to apply to all aged-out children.
Although the Supreme Court decision has dealt a blow to those children hoping to immigrate based on the priority date from the prior petition, hope remains that the policy choice favoring family reunification and fairness will compel President Obama and Attorney General Holder to broaden the law by administrative decision, and Congress to pass comprehensive reform. Congress has made this intent clear, and President Obama has effected many positive changes to immigration practice through executive fiat. They can act—and should—to restore hope to aged-out children.