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.

As you probably know, President Obama announced that he has postponed executive action on immigration reform until after the November 2014 election. Thus, the webcast on executive action on immigration reform has been postponed until a later date.

In the meantime, we are planning other educational events for members, including a phone session with local USCIS officials in the fall (which as you may recall was very successful last year) and ERO officials speaking to our members in separate sessions in Chattanooga, Nashville and Memphis in the winter of 2015.  We will be getting back to you with exact date and times of these events.  Finally, we have set the morning of April 16, 2015 for our annual forum so be sure to put that on your calendar.

I would like to thank the authors for the articles in this issue: Shelley Starzyk, Dawn Garcia, and Steve Wilson (congrats to Steve on his win in the Torres case). If you would like to write an article, please e-mail me at bbuchanan@visalaw.com or call me at 615-345-0266.

Bruce Buchanan

University of Tennessee General Resources for Business Lawyers

University of Tennessee Transactions:  The Tennessee Journal of Business Law

M&A Model Agreements

• Buying Assets in Tennessee:  An Annotated Model Tennessee Asset Purchase Agreement
• Buying Stock in Tennessee:  An Annotated Model Tennessee Stock Purchase Agreement
• Bank Mergers in Tennessee:  An Annotated Model Tennessee Bank Merger Agreement
• Acquisition Escrows in Tennessee:  An Annotated Model Tennessee Acquisition Escrow Agreement
• Acquisition Licenses in Tennessee:  An Annotated Model Tennessee Acquisition License Agreement
• Bills of Sale in Tennessee:  An Annotated Model Tennessee Bill of Sale
• Executive Employment Agreements in Tennessee: An Annotated Model Tennessee Executive Employment Agreement

Uniform Law Commission:  The National Conference of Commissioners on Uniform State Laws

Tennessee Secretary of State – Business Information Search

Tennessee Secretary of State - UCC Database Search (Unofficial)

The Tennessee Bar Assocation understands starting your own practice can be challenging.  The following programs and resources are supplied as a way of assisting lawyers in this endeavor. 

TBA Mentoring Program
The TBA Mentoring Program is designed to foster mutually beneficial relationships between the participating attorneys, reduce the isolation experienced by some beginning attorneys, improve the quality of legal services received by clients, place renewed emphasis on the importance of professionalism, and generally benefit the legal profession as a whole. If you would like to take part as a mentor or mentee, you can learn more or apply by clicking here.

TBA Solo Practice Toolkit
With each passing year, more and more Tennessee attorneys decide to “hang their own shingle” and begin a solo or small firm practice.  We live in age where nearly infinite amounts of information are available – if you can find it. Too often, the most necessary piece of information is the proverbial needle amongst a trillion bytes of digital haystack.  The information contained in the Toolkit was gathered from numerous existing TBA resources, as well as from successful solo/small firm attorneys across the state.  For more information, please click here. 

Martha Nell discusses the American Bar Association's collaboration with Hazelden Betty Ford Foundation to research depression among lawyers.  To learn more about this joint effort, please click here for more information. 

In an effort to continue educating the legal community on well-being, the TBA Attorney Well Being Committee has posted the following resources on mindfulness:

Articles

Just Breathe: How Mindfulness & Meditation Can Ease Stress in Your Life and Law Practice by Suzanne Robertson, Editor of Tennessee Bar Journal

But I Don’t Have Time to Practice Mindfulness! by Suzanne Robertson, Editor of Tennessee Bar Journal

Recommended Reading, Links and Apps by Suzanne Robertson, Editor of Tennessee Bar Journal

Focusing on the Present by Patrick A. Palace, WSBA President, Washington State Bar Association NWLawyer:  Mindfulness and the Law

Making the Case for Mindfulness and the Law by Rhonda V. Magee, University of San Francisco Professor, Washington State Bar Association NWLawyer:  Mindfulness and the Law

Effects of Mindfulness-Based Stress Reduction on Medical and Premedical Students by Shauna L. Shapiro, Gary E. Schwartz, and Ginny Bonner, Journal of Behavioral Medicine, Vol. 21, No. 6, 1998

The Mindful Revolution:  The science of finding focus in a stressed-out, multitasking culture by Kate Pickert, Time, February 3, 2014

Mindful Lawyering by Sara Tollefson

Stress May be Killing Law Students' Brain Cells, Law Prof Says by Debra Cassens Weiss, ABA Journal, June 18, 2014

Killing Them Softly:  Neuroscience Reveals How Brain Cells Die from Law School Stress and How Neural Self-Hacking Can Optimize Cognitive Performance by Professor Debra S. Austin, Loyola Law Review, Vol. 59

Websites

Greater Good:  The Science of a Meaningful Life

The Anxious Lawyer

UCLA Mindful Awareness Research Center

*By Sherri Okamoto (Legal Reporter)

The Tennessee Court of Appeals last week ruled that an injured worker has standing to bring a claim for retaliatory discharge even if he was not legally authorized to work in the United States.

Since it was undisputed that Ricardo Torres was not eligible to hold a job in the United States at the time he was terminated, defense attorney James L. Holt of Jackson, Shields, Yeiser & Holt argued that both case law and "common sense" directed that Torres could not pursue a claim that he had been wrongfully fired from his position with Precision Industries.

A trial judge had agreed, but the Court of Appeals did not and overturned the decision in a ruling on Tuesday.

Holt, speaking with WorkCompCentral on Friday, said Torres shouldn't be able to "sue over something he wasn't legally entitled to do."

Case law is on his side, Holt added, since the law in Tennessee for the past three decades has been that "you have to be capable of working in order to sue for retaliatory discharge." So if a worker isn't authorized to work, he's not capable of working, and therefore, he lacks standing to pursue a common-law wrongful discharge claim pursuant to the Tennessee Supreme Court's 1985 decision in Leatherwood v. United Parcel Service.

"To me that's common sense," Holt said. "But sometimes in the law common sense isn't the controlling thing."

Holt said he intends to seek review of the decision by the Tennessee Supreme Court. He has 60 days from the date of its ruling to do so.

Memphis attorney Steve Wilson – counsel for Torres – said he thought it was a "good idea" for the Supreme Court to weigh in on the matter and get the issue of standing settled.

He said Friday he was surprised that this issue of standing was a matter of first impression for the state, as there have been undocumented workers in Tennessee for as long as there have been work-authorization requirements.

However, he contended that "there isn't a case anywhere that says someone who is undocumented doesn't have the right to stand in court," and that's what the trial judge in this case had ruled.

The existing case law, in Tennessee and nationally, addresses the remedies that an undocumented worker can seek, Wilson said. "I'm prepared to concede that there may be some remedies that my client isn't entitled to get," but he still has standing.

Wilson also emphasized that the dispute wasn't about whether Torres had a right to hold the job from which he had been fired, but over his right to get workers' compensation benefits for his industrial injury without being punished for it.

Tennessee case law has already recognized that undocumented immigrants have a right to workers' compensation benefits, as have courts in nearly every other state.

Wilson said that makes sense, because the "social policy" behind the comp system is to allow workers a recovery if they are hurt on the job. In light of this, he insisted, it "doesn't make any sense to let an employer who knowingly or unknowingly hired an undocumented worker just discard them when they get hurt."

Torres had worked for Precision Industries, a Nevada-based corporation owned and operated by Terry and Vicki Hedrick that manufactures parts for the automotive industry. He took a job as a converter builder at the Precision plant in Whiteville, Tennessee, three years ago.

At the time, Torres was not a U.S. citizen and not legally eligible to work in the United States.

After five months on the job, Torres claimed he injured his back. He informed Precision of the injury and sought medical treatment from a health care provider Precision selected. However, Precision disputed the compensability of Torres' back condition, which prompted Torres to hire attorney John Feild.

Feild called Precision on Sept. 7, 2012, to ask for the company's fax number. After receiving his call, Precision's safety manager and general manager confronted Torres and allegedly launched into a profanity-laced tirade about him hiring an attorney. Later the same day, Precision fired Torres.

Torres then filed a complaint in the Hardeman County Circuit Court alleging wrongful termination in retaliation for asserting a workers' compensation claim and using an attorney to represent him.

Precision countered that it had fired Torres for legitimate and non-retaliatory reasons.

During discovery, Wilson said Precision pushed for information about Torres' immigration status "from the get-go," although Wilson alleged that Precision knew Torres was an unauthorized worker. In fact, he was one of several who worked for the company, Wilson said.

Wilson attempted to have Torres avoid answering questions about his status by asserting the right against self-incrimination provided by the 5th Amendment.

Last month the Pennsylvania Supreme Court ruled that a worker can invoke the 5th Amendment to avoid answering questions about his immigration status and that his doing so, standing alone, will not furnish sufficient evidence for a judge to deem him an unlawful alien and order a suspension of his benefits.

However, Hardeman County Circuit Court Judge J. Weber McCraw said Torres had to give an answer. Torres then admitted that he lacked work authorization.

Precision filed a motion for summary judgment, asserting that Torres' inability to legally hold a job in the United States was fatal to his claim for retaliatory discharge as a matter of law.

McCraw agreed, although he indicated that he was "troubled" by this conclusion since there was a material dispute as to why Precision had fired Torres, and he thought Precision likely had known of Torres' lack of work authorization before he got hurt.

Torres appealed, and a unanimous panel of the Court of Appeals reversed McCraw on Tuesday.

Holt, the defense attorney, said he was somewhat surprised by this because Tennessee tends to be a "very conservative" state. Holt said he knew he wasn't going to get a unanimous decision in his favor because Justice Steven Stafford had, during oral argument, expressed disagreement with his position, but he had thought the other two justices would vote to affirm.

Instead, Stafford joined Justice Alan Highers in signing on to the opinion Justice Paul Summers wrote for the panel.

Summers said Tennessee Supreme Court precedent acknowledges that an implicit cause of action must exist to prevent an employer from using retaliatory discharge as a device to defeat the rights awarded to employees under the Tennessee Workers' Compensation Act.

"Based on the clear policy goals espoused by the Tennessee Supreme Court, a retaliatory discharge cause of action was created, not to protect the right to work, but rather to prevent a chilling effect on employees asserting their rights under the Tennessee Workers' Compensation Act," Summers reasoned.

Because retaliatory discharge is intended to protect an employee's right to file a workers' compensation action, and Torres had a right to file a workers' compensation claim, Summers concluded that Torres had standing to bring his retaliatory discharge claim.

Summers also specifically said that he did not read the 1985 Leatherwood decision as linking an employee's ability to perform a job with his standing to bring a retaliation discharge claim.

The plaintiff in the Leatherwood case had sought to sue his employer for retaliating against him for bringing a comp claim based on an injury which he asserted had been totally disabling, and the Supreme Court ruled that he could not complain about his employer's failure to provide him with alternative employment when he averred he was unable to work at all.

"We recognize that physical inabilities or legal ineligibility could possibly serve as legitimate non-discriminatory reasons for termination, potentially rendering a retaliatory discharge claim unsuccessful; however, this is not the same as depriving a litigant of standing to bring the claim in the first place," Summers said.

Bruce Buchanan, the chairman of the Tennessee State Bar Immigration Law Section, said Friday that this was "an interesting decision," although he had to wonder how broad an impact it might have.

While the decision "will give an undocumented worker more rights to pursue legal actions against their employer, I'm not sure how many cases you'll see," he said.

"As a whole, undocumented workers do not like to deal with government agencies, because they are very concerned about their undocumented status."

Buchanan also observed that the court's decision doesn't touch on the question of whether Torres would be entitled to damages or back pay. He predicted that Torres would probably have a hard time recovering back pay for the time before he had work authorization.

Torres became legally eligible to work in the United States last February.

Buchanan said the case could also be part of a larger national trend toward recognizing the rights of undocumented workers, noting a California Supreme Court case from June called Salas v. Sierra Chemical.

In the Salas case, the California Supreme Court ruled that an employer's claim that an injured worker was not legally eligible to hold a job in the United States was not a complete defense to the worker's claims under the state's Fair Employment and Housing Act.

The court's decision is available here.

*Originally reported in Work Comp Central on August 11, 2014. 

LINDA LASETER, Individually and on behalf of her deceased mother, ALICE H. CORR v. J. MARTIN REGAN, JR., in his capacity as Personal Representative of the ESTATE OF FERNANDO HERRERA, M.D.
Court: TN Court of Appeals

Attorneys:

Al H. Thomas, Aaron L. Thomas, Memphis, Tennessee, for the appellant, Linda Laseter, Individually and on behalf of her deceased mother, Alice H. Corr

Katherine M. Anderson, Hugh Francis, David M. Cook, Albert G. McLean, Memphis, Tennessee, for the appellee, J. Martin Regan, Jr., in his capacity as Personal Representative of the Estate of Fernando Herrera, M.D.

Judge: HIGHERS

This appeal involves a defendant’s attempts to discover certain financial information from the plaintiff’s medical expert in order to facilitate an inquiry into potential bias. The trial court entered several orders requiring the expert witness to provide the requested financial information, which related to his income and compensation, but the expert witness repeatedly failed to comply with the trial court’s orders. The trial court also ruled that the defendant would be permitted to question the expert witness about certain financial information during cross-examination at trial, and the expert witness communicated to the trial judge that he would refuse to answer any such questions. The trial court eventually excluded the medical expert as a witness and allowed the plaintiff time to find a replacement expert. When the plaintiff failed to identify another expert witness within the time allowed, the trial court dismissed the complaint. The plaintiff appeals. We affirm.

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JOHNNY L. MILLER, ET AL. v. MIRANDA MORETZ, ET AL.
Court: TN Court of Appeals

Attorneys:

R. Deno Cole, Knoxville, Tennessee, for the appellants, Johnny L. Miller and Margie L. Miller.

John T. Johnson and Brandon L. Morrow, Knoxville, Tennessee, for the appellees, Miranda Moretz and Travis K. Moretz.

Judge: MCCLARTY

This appeal results from an automobile accident. The plaintiffs filed a negligence action against the owner and driver of the vehicle that collided with them. The jury that heard the matter concluded that the defendant driver was only 10 percent at fault, with the rest of the fault assessed to the plaintiff driver. The trial court entered judgment on the jury verdict for the defendants. After a motion for a new trial was denied, the plaintiffs filed this appeal. We affirm the judgment of the trial court.

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