by Shelley Starzyk*

On June 9, 2014, the U.S. Supreme Court issued a decision on Scialabba v. Cuellar de Osorio, 574 U.S. ___ (2014) (“De Osorio”), a case that solidified the interpretation of INA § 203(h)(3)^[i] of the Child Status Protection Act (“CSPA”). This case addresses family based immigration as prescribed by the Immigration and Nationality Act (“INA”). U.S. citizens and lawful permanent residents (“LPR”) may petition for certain relatives to immigrate to the U.S. These relatives are divided into preference categories subject to strict visa quotas. These categories are: U.S. citizens can petition for their unmarried sons and daughters (F1), married sons and daughters (F3), and their brothers and sisters (F4). LPRs can petition for their spouse and children under 21 years (F2A), or unmarried sons and daughters (F2B). In these categories, the qualifying family member’s children are listed and can derive immigration status from that family member’s petition so long as they remain an eligible child.

Unfortunately, immigration case processing and visa numbers move slowly, and these derivative children often turn 21 while waiting for a visa. This is called “aging out [ii]” and means the child could no longer immigrate as expected. Congress passed the CSPA to amend the INA and help protect immigrant children from “aging out.” In De Osorio, the Court specifically examined one provision of the CSPA, INA § 203(h)(3), that discusses specific protections for immigrant children if they turn 21. It states:

If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsection (2)(A) (children of LPRs) and (d) (derivative beneficiaries) of this section, 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 held in De Osorio that under this provision of the CSPA, derivative children on certain family preference petitions were not eligible to keep the original priority date from that petition or convert their case to another preference category when they “aged out” or lost their status as a child.

INA § 203(h)(3) does not read clearly and is ambiguous when looked at in context with the rest of INA § 203(h) and the immigration process. The problem arises because the statute initially reads as if it covers all aged out children. However, in the second half of the sentence (following the comma) Congress uses the phrase “shall automatically be converted.”[iii] This phrase could indicate that Congress intended limitations. Did Congress mean to indicate the “automatic conversion” term used in other immigration contexts where a case automatically moves from one preference category to another eligible category?^[iv] If that is what Congress meant, then which preference category would this now adult derivative be automatically converted to? Congress did not specify in the CSPA. As Justice Kagan notes in her decision, INA § 203(h)(3), “is through and through perplexing.”^[v]

The Agency’s Previous Interpretation in Matter of Wang

The Board of Immigration Appeals (“Board”) had previously addressed the confusion surrounding the wording of INA § 203(h)(3) in Matter of Wang^[vi] (“Wang”). In Wang, the Court found INA § 203(h)(3) contained statutory ambiguity and examined the legislative intent behind this provision. The Board interpreted this provision as applying only to direct beneficiaries of petitions. The Board held children listed in certain family preference categories^[vii] as derivatives could not take advantage of the original petition’s priority date retention or automatic conversion provision if they aged out. The Board essentially stated these derivative children would no longer be eligible to immigrate under the original petition and would therefore need an entirely new petition and priority date if they aged out.

After the issuance of Wang, courts in the Fifth Circuit[viii] and the Ninth Circuit disagreed with the Board’s interpretation and issued decisions that interpreted INA § 203(h)(3) differently. When the issue reached the Ninth Circuit, the Ninth Circuit held the statutory language of INA § 203(h)(3) to mean that all aged out beneficiaries were entitled to both automatic conversion and priority date retention under INA § 203(h)(3). The Supreme Court took up the Ninth Circuit’s interpretation in Cuellar de Osorio v. Mayorkas[ix] on certiorari to resolve this Circuit split.

Supreme Court’s Majority Decision in Cuellar de Osorio

Justice Elena Kagan delivered the decision for the Supreme Court in De Osorio, in a five to four decision. In her decision, Justice Kagan analyzed the Wang decision, the Ninth Circuit’s interpretation, the term “automatic conversion,” the logistical implications of each interpretation, and legislative history. Justice Kagan conservatively concluded this “is the kind of case Chevron[x] was built for.”[xi] The Court’s majority upheld the Board’s interpretation from Wang, and ruled derivative children who aged out of certain preference category petitions were not entitled to automatic conversion or to priority date retention. It is worth noting that of the majority, two were in concurrence and the Justices did not agree on the proper approach to statutory interpretation. The two dissenting opinions, one written by Justice Alito, the other by Justice Sotomayor, provide some excellent points that challenge the majority’s opinion and also raise issues with the Board’s approach to statutory interpretation.^[xii]

Effects of the De Osorio Decision

The Supreme Court’s decision affects large numbers of immigrants who have aged out of derivative child status on their parents’ family preference petitions. These immigrants must now file a new petition and wait for that new petition’s priority date to become current before receiving an immigrant visa. This decision will impact multiple generations of families waiting for preference petition visa numbers to become current.

For example, the main petitioner in this case, Ms. Cuellar de Osorio, had an F3 petition that was filed for her in May 1998. Her visa number did not become current until November 2005. During this time, Ms. Cuellar de Osorio’s son, aged out. She submitted a new petition for him, but he was not allowed to keep his mother’s original 1998 priority date. This meant that Ms. Cuellar de Osorio’s son would have to wait his turn in another long visa line to be reunited with his mother using his new petition with a post-2005 priority date. What will happen if this son has a child? Will that child have to get back in line as well? Given the long processing times for most adult children, especially those from countries that have long visa wait times (sometimes exceeding 20 years), such as China, India, Philippines and Mexico, it almost guarantees that families will be separated and each new generation will have to wait in line a long time to rejoin their parents.

De Osorio is a prime example of how poor legislative drafting can cause confusion in the logistics and execution of immigration benefits to many otherwise eligible individuals. Use of inconsistent terms, or poor structure across a statute can have serious implications for thousands of well-intentioned immigrants. Should Congress ever decide to enact new immigration legislation, one can hope that they will draft any legislation with more care and clearer definitions than those provided in the CSPA.