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? 

Oral argument: 
December 10, 2013

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). The process requires that a citizen or lawful permanent resident (“LPR”) file a Form I-130 on behalf of an alien family member to demonstrate that a qualifying relationship exists. See id. Once filed, the United States Citizenship and Immigration Services (“CIS”) reviews the information and determines whether a qualifying relationship exists between the applicant and the intended beneficiary. See id. 

Although the Immigration and Nationality Act (“INA”) does not cap the number of permanent resident visas available to the immediate relatives of U.S. citizens, it does impose a cap on all other qualifying relatives. See id. Moreover, each year the statutory cap well exceeds the demand for family preference visas, resulting in long waits for intended beneficiaries. See id. at 957. However, an applicant’s filing date, or priority date, determines a beneficiary’s place in line. See id.Each month, the State Department sets a “cut-off date”; if the priority date is earlier than the cut-off, the beneficiary is considered current and can obtain a visa. See id. 

Under the INA, a primary beneficiary’s spouse and child can get the same priority date as the primary beneficiary. See id.To get the parent’s priority date, the INA requires that the child be unmarried and under the age of twenty-one. See id.However, the visa backlog is so long that a child often reaches the age of twenty-one before reaching current status, and thereby “ages out.” See id.In 2002, Congress passed the Child Status Protection Act (“CSPA”), which allows an aged-out child to retain child status longer, or to qualify for a valid adult category and retain the initial priority date. See id.

This case involves several consolidated cases. See id.In one case, Petitioner Cuellar de Osorio was the beneficiary of a petition that her mother, a U.S. citizen, filed on May 5, 1998. See id.at 957–58.Cuellar de Osorio’s son was thirteen at the time, but by November 1, 2005, when her priority date became current, her son had turned twenty-one. See id.In 2006, Cuellar de Osorio had LPR status and, under the CSPA, submitted her son’s petition with her priority date. See id.

On June 23, 2008, Cuellar de Osorio and other families seeking for their aged-out children to keep their parents’ priority dates filed a lawsuit in the United States District Court for the Central District of California. See id.They sought declaratory and mandamus relief, claiming that CIS violated CSPA provisions codified at 8 U.S.C. § 1153(h)(3) by denying their requested priority dates. See id.On October 9, 2009, the district court granted summary judgment in favor of CIS, holding that the Board of Immigration Appeals’ (“BIA”) interpretation of § 1153(h)—that the automatic conversion and priority date provisions of the CSPA did not apply to the aged-out children—merited deference. See id.Cuellar de Osorio and a certified class of LPRs whose children were denied derivative status because of the “age out” provision, timely appealed to the United States Court of Appeals for the Ninth Circuit. See id.

Initially, the Ninth Circuit affirmed the district court’s ruling. See id. at 966.However, rehearing the case en banc, the court reversed, holding that the CSPA unambiguously grants automatic conversion and priority date retention to aged-out children. See De Osorio v. Mayorkas, 695 F.3d 1003, 1006 (9th Cir. 2012). The Supreme Court granted certiorari to determine whether § 1153(h)(3) unambiguously grants derivative beneficiary status to children who age out while waiting for a parent to obtain a resident visa. 

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Discussion

The Supreme Court will determine whether the Child Status Protection Act (“CSPA”) automatically gives aged-out children the same priority date as their parents in applications for permanent resident visas. Mayorkas argues that the CSPA should not confer an earlier priority date on an adult over twenty-one simply because, as a child, he or she had a qualifying relationship to a person who filed the petition. See Brief for Petitioners, Alejandro Mayorkas et al. at 21–22. Furthermore, Mayorkas argues that giving priority to those who have “aged out” will increase the wait times for others seeking to immigrate. See id. at 48–49. Cuellar de Osorio counters that the BIA’s interpretation undermines Congress’s goal of keeping families together, and is counter to the meaning of the CSPA. See Brief for Respondents, Rosalina Cuellar De Osorio et al. at 19, 47–48. 

PURPOSE OF THE CHILD STATUS PROTECTION ACT

Mayorkas argues that Congress enacted the CSPA to erase the delays that resulted from adjusting the status of residency visa applications. See Brief for Petitioners at 48. Mayorkas claims that these adjustments took several years to complete, used up valuable administrative resources, and further delayed the processing of other applications. See id. Thus, Mayorkas argues, interpreting the CPSA as conferring automatic derivative status on aged-out children would create a huge injustice in the immigration system. See id. at 48–49. Mayorkas claims that doing so would effectively allow aged-out children to cut in front people already waiting in the visa application process. See id. at 48–49. This, Mayorkas argues, would harm many families by increasing their wait times. See id. at 43–44. Furthermore, Mayorkas argues that while the CSPA is meant to protect family unity, it is not meant to advantage those who can live independently over others who have been waiting in line. See id. at 51.

A group of current and former members of Congress (“Members”) argue that the purpose of the CSPA was to cure an injustice in the immigration system.  See Brief of Amici Curiae Current and Former Members of Congress in Support of Respondents at 6. According to the Members, Congress recognized that before the CSPA, families contemplating immigrating to the U.S. faced the tough choice of either staying in their country or leaving behind a child who had aged out during the application process. See id.According to the Members, this broke the family unit apart, and was unfair because it sent the child to the back of the waiting line and gave the aged-out child no credit for the years spent waiting. See id.Furthermore, the Catholic Legal Immigration Network (“CLINIC”) argues that maintaining the family unit is what drives immigration decisions in this country. See Brief of Amicus Curiae Catholic Legal Immigration Network in Support of Respondents at 7–9.  CLINIC contends that the government has overstated the effect that preserving aged-out childrens’ priority date will have on the wait time for other aliens. See id. at 19–23. According to CLINIC’s calculations, putting an aged-out child at the end of the line would increase his or her wait time by over nine years, while preserving the priority dates would increase others’ wait times by only a few months. See id. at 22–23. 

WHO DECIDES IMMIGRATION POLICY?

Mayorkas argues that the BIA’s interpretation of the INA is entitled to deference from the Court. See Brief for Petitioners at 19. Mayorkas reasons that decisions about whether aliens should be afforded the right to immigrate to this country implicate sensitive political questions that deal with foreign relations. See id.Accordingly, Mayorkas claims, it is particularly important in the immigration context that the executive branch make these decisions. See id. 

Cuellar de Osorio counters that while the BIA may fill in CSPA’s gaps and ambiguities, no such gaps are present here because the law unambiguously grants aged-out beneficiaries automatic conversion to another qualifying relationship using the same priority date. See Brief for Respondents at 18–19, 24.  Furthermore, Cuellar de Osorio argues, despite Mayorkas’s claim that automatic conversion keeps some families apart by reordering the wait times of others, the BIA’s interpretation has a more negative impact on families, and thus does not deserve deference. See id.at 46. Cuellar de Osorio contends that the CSPA’s goal was to allow all derivative beneficiaries to immigrate close in time to their families, not just those under twenty-one as the BIA’s interpretation suggests. See id.at 48.  

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Analysis

The Supreme Court will decide whether 8 U.S.C. § 1153(h)(3) grants an original visa priority date to an alien who used to qualify as a child beneficiary through their parent but has aged out of the benefit. Deciding this issue requires analysis of two sub-issues: (1) whether the language of § 1153(h)(3) is ambiguous and thus open to the BIA’s narrower statutory interpretation; and (2) whether the BIA reasonably interpreted § 1153(h)(3)’s grant of special priority status to aged-out child beneficiaries. 

Mayorkas claims that the statutory language is ambiguous and thus the BIA can interpret the statute as not granting special priority status to Cuellar de Osorio’s children and others similarly situated. See Brief for Petitioners at 19–20. Mayorkas also claims that the BIA’s interpretation of the statute is reasonable and merits deference. See id. at 50.

Cuellar de Osorio claims that the language of the statute is unambiguous because Congress already interpreted the statute in a way that grants priority status to Cuellar de Osorio’s children and others similarly situated. See Brief for Respondents at 19.  Cuellar de Osorio also claims that, even if the language of the statute is ambiguous, the BIA’s interpretation of the statute is unreasonable. See id. at 46.

AMBIGUOUS LANGUAGE IN § 1153(h)(3)

Mayorkas claims that, because the language of § 1153(h)(3) is ambiguous, the Court should adopt the BIA’s interpretation of the statute, which would not grant special priority status to children who are too old to be derivative beneficiaries. See Brief for Petitioners at 19–20. In Mayorkas’s view, this ambiguity comes from the statute’s requirement that such a petition be “converted.” See id. at 21. Mayorkas argues that the statute only grants special priority status to a specific category of aliens that meet certain requirements, including the requirement that their petition be filed in a particular family-preference category. See id. at 23–24.  Mayorkas argues that the petitions in this case do not meet these requirements and that there is no appropriate category in which to convert their petitions. See id. at 25. Mayorkas argues that the statutory language should not be interpreted to grant special priority status to every class of alien that is mentioned in § 1153(h). See id. at 33. To the contrary, Mayorkas points out that the statute does not allow an alien to separately retain the original priority date of a petition even if automatic conversion of an existing petition is not possible. See id. at 34–35.

Cuellar de Osorio claims that § 1153(h)(3) unambiguously extends the original visa priority date to all aged-out derivative child beneficiaries, and thus, the Court does not need to adopt the BIA’s statutory interpretation. See Brief for Respondent at 19. First, Cuellar de Osorio argues that Congress did not leave a gap in the statutory language for the BIA to fill because Congress specified that all children of a lawful permanent resident qualify for special priority status. See id. at 26. Second, Cuellar de Osorio argues that aged-out child beneficiaries can automatically convert their petitions into the necessary family-preference category because the statute does not require conversion to occur only at the moment when a derivative beneficiary turns twenty-one. See id. at 29.  Instead, in Cuellar de Osorio’s view, automatic conversion should be analyzed when the principal beneficiary becomes a legal permanent resident. See id. at 31.

Cuellar de Osorio also argues that automatic conversion can be applied to her children and others similarly situated because Mayorkas’s additional requirements for automatic conversion are unsupported. See id. at 32. Finally, Cuellar de Osorio argues that § 1153(h)(3) does state that an alien can separately retain the original priority date of a new petition even if automatic conversion of an existing petition is not possible because the wording of the statute establishes that these are distinct benefits. See id. at 40–42.

REASONABLENESS OF THE BIA’S INTERPRETATION

Mayorkas claims that the BIA’s interpretation of § 1153(h)(3) is reasonable and merits deference under the framework articulated in Chevron, U.S.A., Inc. v. NRDC. See Brief for Petitioner at 50. According to Mayorkas, a court should defer to the BIA’s reasonable interpretation of a statute regardless of whether the court agrees that it is the best interpretation. See id. at 20. Mayorkas argues that the BIA’s interpretation of the statute is reasonable because the BIA applied its expertise to the whole statutory and regulatory scheme at issue, and chose a close and careful reading of the statute that works seamlessly with other parts of the CSPA. See id. at 18–19, 50. Also, Mayorkas points out, the BIA made a reasonable policy choice to not interpret the statute to grant special priority status to aged-out beneficiaries at the expense of others patiently waiting for a visa. See id. at 51. 

Mayorkas argues that granting priority to aged-out children would disrupt the statutory scheme for immigrant visas because these aliens will unfairly vault ahead of others waiting in the visa line. See id. at 40. Mayorkas points out that this broad interpretation will go against the purpose of the CSPA by adversely impacting the lives of other immigrant families, who will fall further back in line. See id. at 44. Mayorkas argues that the Ninth Circuit’s interpretation of § 1153(h)(3) is not supported by the legislative history of the CSPA because there is no indication that Congress considered the possibility of radically changing the visa waiting line system to increase the wait times for thousands of immigrants. See id. at 48–49

Cuellar de Osorio claims that, even if the language of § 1153(h)(3) is ambiguous, the BIA’s interpretation of the statute is unreasonable and not worthy of deference. See Brief for Respondent at 46. Cuellar de Osorio argues that the BIA’s interpretation is erroneous because it favors spouses and children of two U.S. citizens or LPRs while disfavoring derivative beneficiaries who are related to only one U.S. citizen or LPR. See id. at 47–49. Further, Cuellar de Osorio argues that a ruling in her favor will not actually result in her children receiving visas before anyone whose petition was filed earlier than her children.  See id. at 50. Rather, she argues that her children just receive credit for their family’s long wait. See id. Finally, Cuellar de Osorio argues that each aged-out beneficiary would only delay those with later priority dates by a tiny fraction of a day.  See id. at 52.

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Conclusion

In this case, the Supreme Court will address a fundamental question about the proper interpretation of the Child Status Protection Act and decide whether the statute grants an original visa priority date to an alien who formerly qualified as a child beneficiary but now has aged out of this benefit. Mayorkas claims that the language of the statute is ambiguous and thus the Court should defer to the BIA’s reasonable interpretation that does not grant this priority status.Cuellar de Osorio claims that the language of the statute is unambiguous because Congress already interpreted the statute to grant this special priority status in this situation, and that the BIA’s interpretation is, in any case, unreasonable. 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.

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