Board of Immigration Appeals

Mayorkas v. Cuellar de Osorio

Issues: 

Does the Child Status Protection Act grant relief to an alien who qualifies as a child derivative beneficiary at the time a visa petition is initially filed, but who reaches age 21 (“ages out”) when the visa becomes available to the principal beneficiary? 

The Immigration and Nationality Act (INA) allows aliens to immigrate to the United States through a family-sponsored process. This process allows a U.S. citizen or lawful permanent resident to petition for certain family members, known as primary beneficiaries, to obtain visas to immigrate. If a qualifying relationship exists between the family members, then the primary beneficiary can legally immigrate once the priority date becomes current. Furthermore, the primary beneficiary’s “child”—an unmarried person under the age of twenty-one—receives the same priority date as the parent. However, if, while waiting for a visa, the child reaches the age of twenty-one, that child does not get the same priority date as the parent, and the child “ages out.” Petitioner Mayorkas argues that the Child Status Protection Act does not give aged-out children the same priority date as their parents.  Respondent Cuellar de Osorio counters that the Act seeks to keep families together, and therefore a child should retain the parent’s priority date.  The Supreme Court will decide whether the CSPA grants an original visa priority date to an alien who formerly qualified as a child beneficiary but now has aged out of this benefit. This case will have a significant impact on families and individuals seeking to immigrate to the U.S. through the INA’s family-sponsored immigration framework.The Immigration and Nationality Act (INA) permits United States citizens and lawful permanent resident aliens to petition for certain family members to obtain visas to immigrate to the United States or to adjust their status in the United States to that of a lawful permanent resident alien. The family member sponsored by the petitioner is known as the primary beneficiary. The primary beneficiary's "spouse or child" may be a derivative beneficiary of the petition, "entitled to the same status[] and the same order of consideration" as the primary beneficiary. 8 U.S.C. 1153(d). Section 203(h)(3) of the INA, 8 U.S.C. 1153(h)(3), grants relief to certain persons who reach age 21 ("age out"), and therefore lose "child" status, after the filing of visa petitions as to which they are beneficiaries.

The questions presented are: 

  1. Whether Section 1153(h)(3) unambiguously grants relief to all aliens who qualify as "child" derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary. 
  2. Whether the Board of Immigration Appeals reasonably interpreted Section 1153(h)(3).

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Questions as Framed for the Court by the Parties: 

The Immigration and Nationality Act (INA) permits United States citizens and lawful permanent resident aliens to petition for certain family members to obtain visas to immigrate to the United States or to adjust their status in the United States to that of a lawful permanent resident alien. The family member sponsored by the petitioner is known as the primary beneficiary. The primary beneficiary's "spouse or child" may be a derivative beneficiary of the petition, "entitled to the same status[] and the same order of consideration" as the primary beneficiary. 8 U.S.C. 1153(d). Section 203(h)(3) of the INA, 8 U.S.C. 1153(h)(3), grants relief to certain persons who reach age 21 ("age out"), and therefore lose "child" status, after the filing of visa petitions as to which they are beneficiaries.

The questions presented are: 

  1. Whether Section 1153(h)(3) unambiguously grants relief to all aliens who qualify as "child" derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary. 
  2. Whether the Board of Immigration Appeals reasonably interpreted Section 1153(h)(3).

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Facts

The family-sponsored immigration process is one path a foreign national can take to obtain lawful residence in the United States.  See Cuellar de Osorio v. Mayorkas, 656 F.3d 954, 956 (9th Cir. 2011), rev’d en banc, 695 F.3d 1003 (9th Cir. 2012).

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