immigration

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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Chaidez v. United States (11-820)

In 2003, Roselva Chaidez pleaded guilty to an “aggravated felony” under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), but her lawyer failed to inform her that her plea made her eligible for deportation. Subsequently, the Supreme Court held in Padilla v. Kentucky that the right to effective assistance of counsel includes a duty to inform defendants of deportation consequences of a plea deal if the consequences are clear. Nevertheless, the Seventh Circuit Court of Appeals held that Padilla did not apply retroactively to Chaidez’s conviction. Chaidez argues that the Supreme Court should hold that Padilla was dictated by precedent (and therefore not a new rule) and is retroactively applicable to her case. The United States counters that Padilla was not dictated by precedent (and therefore was a new rule) and is not retroactively applicable to Chaidez’s conviction. Chaidez argues that Padilla should be retroactively applied because to hold otherwise would undermine the obligation of prosecutors to “seek justice,” which requires using their knowledge of immigration consequences when considering to alter convictions. In response, the United States counters that retroactively applying Padilla would allow defendants to avoid the consequences of their convictions based on a minor error by a lawyer. 

Questions as Framed for the Court by the Parties: 

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation.

The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

Issue

Does the recent Supreme Court decision Padilla v. Kentucky, which allows an individual to contest a conviction based on a lawyer’s failure to provide information of the deportation consequences to pleading guilty, apply to individuals with convictions made final before the Court decided Padilla

Edited by: 
Additional Resources: 

·         Agence France-Presse, Supreme Court will rule on if deportation ruling is retroactive, The Raw Story.

·         The New York Times, Court Requires Warning about Deportation Risk, Adam Liptak.

·         Wex: Immigration Law.

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Moncrieffe v. Holder (11-702)

In 2009, Adrian Moncrieffe, a Jamaican permanent resident of the United States, was arrested while in possession of 1.3 grams of marijuana. Moncrieffe pleaded guilty in a Georgia court to possession of marijuana with intent to distribute under Ga. Code § 16-13-30(j)(1) and was sentenced to five years of probation. In 2010, the Department of Homeland Security successfully brought removal proceedings against Moncrieffe arguing that his conviction in state court corresponds with an aggravated felony, which made him removable under the Immigration and Nationality Act. Moncrieffe appealed to the Board of Immigration Appeals, which upheld the lower court’s decision. After the United States Court of Appeals for the Fifth Circuit denied review, Moncrieffe filed a petition for a writ of certiorari with the United States Supreme Court.

Moncrieffe argues that his conviction does not correspond with an aggravated felony because the conduct leading to his conviction instead corresponds with a federal misdemeanor. Holder argues that a state conviction for possession of marijuana with the intent to distribute constitutes an aggravated felony. This decision could impact how immigration deportation cases are decided and place stricter limits on the Attorney General’s discretion to seek removal. This decision could also impact how criminal cases are conducted (e.g. whether to go to trial, to plead guilty, to admit evidence) and how courts construct state law in accordance with federal law, specifically in immigration matters.

Questions as Framed for the Court by the Parties: 

Whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal felony.

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Temporary Protected Status (TPS)

Temporary Protected Status (TPS) is a temporary immigration status granted to nationals of certain countries who are already in the United States. During the designated period, these individuals may obtain travel and employment authorization, are not removable from the United States and cannot be detained by the Department of Homeland Security. TPS does not lead to permanent resident status (a green card), but a TPS beneficiary may immigrate permanently under another provision of law if qualified.

USICS, www.uscis.gov

 

preference relative

Preference relatives are certain family members of a U.S. citizen who are seeking to immigrate to the United States based on their relationship to the U.S. citizen. There are yearly limitations on family preference immigrants and the relatives in this category must often wait several years before an immigrant visa becomes available. The available visas are issued in the order in which the petitions were filed (the priority date).

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