Obama gov’t to immigrants’ aged out children: Drop dead

What clearer evidence is there of the Obama administration’s discriminatory treatment of children of legal immigrants versus its coddling of the children of illegal aliens than the USCIS’s denial of the retention of visa priority date for aged-out children of immigrants? Que pobrecito!

On June 9, 2014 (a day of immigration infamy), the U.S. Supreme Court  upheld, 6-3, the Obama administration’s policy of denying the retention of priority date for aged out children of immigrants. It held in effect that aged-out (21 years and over) children of immigrants with approved visa petitions must go back to the end of the visa line instead of retaining their already established priority date. Spearheading the majority (against the kids) were the so-called liberal justices Kagan, Kennedy, and Ginsburg. Spearheading the minority (for the kids) were the so-called conservative justices Alito and Thomas, joined by Sotomayor. Surprisingly or not surprisingly, Chief Justice Roberts and Justice Scalia joined the majority.

What is this age-out children case? The Immigration and Nationality Act (INA) permits qualifying U.S. citizens (USC) and lawful permanent residents (LPRs) to petition for certain family members to obtain immigrant visas. A sponsored individual (principal beneficiary) is placed into a “family preference” category based on his relationship with the petitioner. 8 U. S. C. §§1153(a)(1)–(4). The principal beneficiary’s spouse and minor children in turn qualify as derivative beneficiaries, “entitled to the same status” and “order of consideration” as the principal. §1153(d). The beneficiaries then become eligible to apply for visas in order of “priority date”—that is, the date a petition was filed. §1153(e)(1). Since the immigration process takes years to complete, a child seeking to immigrate may “age out”—i.e., reach adulthood and lose her immigration status—before he reaches the front of the visa queue.

The Child Status Protection Act (CSPA) prescribed a remedy by providing that “[i]f the age of an alien is determined . . . to be 21 years of age or older,” notwithstanding certain allowances for bureaucratic delay, §§1153(h)(1)–(2), “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.” §1153(h)(3).

Certain principal beneficiaries who became LPRs filed petitions for their aged-out children, asserting that the newly filed petitions should receive the same priority date as their original petitions. But USCIS gave the new petitions current priority dates. They sued in District Court but it granted the Government summary judgment, deferring to the Board of Immigration Appeals’ (BIA’s) determination that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion under §1153(h)(3). The Court of Appeals, Ninth Circuit reversed, holding that the provision unambiguously entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention.

The Obama administration appealed to the USSC which reversed the Court of Appeals. The majority held that the interpretation by the Board of Immigration Appeals of the ambiguous language of §1153(h)(3) was entitled to deference (respect). The only aliens who may benefit from §1153(h)(3) are those for whom automatic conversion is possible.

§1153(h)(3)’s second clause provides a remedy to those principal and derivative beneficiaries who had a qualifying relationship with an LPR both before and after they aged out. In contrast, aliens like Osorio’s children—the nieces, nephews, and grandchildren of the initial sponsors—cannot qualify for “automatic conversion”: they lacked a qualifying preference relationship with the initial petitioner, and so cannot fit into a new preference category without obtaining a new sponsor. The ambiguity created by §1153(h)(3)’s ill-fitting clauses left the

BIA to choose how to reconcile the statute’s different commands. It choose to abide by the inherent limits of §1153(h)(3)’s remedial clause. When an agency resolves statutory tension, ordinary principles of administrative deference require the Supreme Court to defer. Scialabba v De Osorio, No. 12-930, 06/09/2014.

OBSERVATION: This is an example of the saying “Hard cases make bad law.” What is wrong with this country’s English speaking (cono) highly paid legislators? They cannot even enact a law in plain English. Administrative agencies and the courts are divided on how to construe and apply what they have enacted. The Court described the CSPA’s provisions as “complex but, with some perseverance, comprehensible,” and that the third provision which is at issue in the case is “through and through perplexing.” According to the court, if you are a “masochist” (not to be confused with “macho” or “machonorin”) you may want to read the provisions of the law which the court proceeded to quote.  “Masochist” is defined as “a person who has masochism, the condition in which sexual or other gratification depends on one's suffering physical pain or humiliation.”  “Sexual gratification” did they say?  Wow!  That was Justice Elena Kagan, a woman, speaking for the Supreme Court majority.

Is there a silver lining for this legislative incompetence? Sure. Ask your legislator (preferably one who did not participate in enacting this “masochistic” CSPA) to file a new Child Status Protection Act that complies with the 4 C’s of legal writing that we have always espoused -- clear, concise, complete, and correct. Perhaps the legislators can ask the children whom the law is intended to benefit to draft it. As the Bible puts it: “. . . and a little child will lead them.” Isaiah 11:6.

Here is my proposed new Child Status Protection Act of 2014. (Full disclosure: This is not from a child nor a person in second childhood.): “The priority date and preference category of a principal or derivative beneficiary of an approved visa petition for a qualified relative shall remain the same even though such beneficiary becomes 21 years of age. A new visa petition or conversion of the category is not required to retain this priority date and category. This law is mandatory. Its provisions may be enforced by an action filed by any affected petitioner (sponsor) or beneficiary in the appropriate district court of the United States where the petitioner (sponsor) or beneficiary resides or in the District Court for the District of Columbia where the petitioner or beneficiary do not reside in the United States.  This law supersedes any law, regulation, order, policy, administrative agency decision, or court decision, to the contrary.”

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)