Asked ... Answered: N. Peter Antone on Scialabba v. de Osorio Decision

By Steve Thorpe
Legal News
 
The U.S. Supreme Court ruled recently in Scialabba v. de Osorio that children waiting with their parents for immigration visas must go to the back of the line at the age of 21. The court voted 5-4 that only in limited circumstances does federal immigration law allow for children to retain their place in line after they become adults. N. Peter Antone is principal of Antone, Casagrande & Adwers, P.C. in Farmington Hills. He practices in all areas immigration law and has represented major international corporations as well as families and individuals, both in the U.S. and abroad. He is also a frequent speaker on immigration issues.
Thorpe: As an attorney practicing immigration law for more than 25 years, what’s your gut reaction to the ruling?
Antone: Frustration that a broken immigration law has just become even more broken. To provide some context and background: Our laws allow U.S. citizens and permanent residents to petition for family members living overseas. The spouses, minor children, and parents of U.S. citizens who immigrate to the U.S. are not subject to any numerical limitations, but five other family-based categories are subject to annual quotas imposed by Congress: unmarried sons and daughters of U.S. citizens; spouses, children, and sons and daughters of green card holders; married sons and daughters of U.S. citizens; and siblings of U.S. citizens. Immigrants in one of these five categories are allowed to bring along their spouse and minor children (under 21 years of age). When this provision was enacted in 1965, most immigrants waited no more than a few months to get a visa. Now, because the annual quotas remain the same despite increased demand, some immigrants must wait in line for over a decade. In this case, a U.S. citizen filed for her sister, Norma, back in 1981. The petition included Norma’s daughter, Ruth, who was two years old at the time. Because Norma had to wait 21 years for a visa to become available, Ruth could not accompany her mother to the U.S. because she was over 21 and therefore no longer a child. Rather, Norma had to submit her own petition for her daughter upon arriving in the U.S., and Ruth will have to wait another 27 years before her visa becomes available. The question in this case is whether Ruth should be given credit for the 21 years she had already been waiting with her mother.
In 2002, Congress recognized the problem whereby kids reach the age of 21 before a visa becomes available (called aging-out). Therefore, it enacted the Child Status Protection Act which, along with other relief, provides that if the child (subject to certain adjustments) reaches age 21 or older by the time a visa became available, then the child’s petition shall automatically be converted to the appropriate category, and the child shall retain the original priority date. The Supreme Court dispute centered on the interpretation of this provision, specifically the two words, “automatically” and “and.”
Thorpe: The justices were not only split on the ruling, but also on their interpretations of what legal rationales were in play. Even the majority couldn’t agree. Tell us about that.
Antone: A plurality written by Justice Kagan and joined by Justices Kennedy and Ginsburg viewed the above provision as containing a built-in conflict. They ruled that the phrase in the first part of the provision, “if the age of an alien is determined … to be 21 years of age or older,” created potential relief for children in all five categories. They then viewed the phrase “the alien’s petition shall automatically be converted to the appropriate category” as a limiting provision where only children whose petitions are automatically converted would benefit. The plurality interpreted the word “automatic” in a very technical manner to require that the child must at all times have a continuous relationship, valid for immigration purposes, with the original petitioner. In practice, this limits relief to only one category, where a petitioner for the child is a green card holder. In such cases, if the child reaches the age of 21, the parent can continue with the petition because it automatically converts from a child petition to a petition for an unmarried son or daughter of a green card holder. It excludes children in other categories, such as in this case where the original petitioner was the aunt of the child. Because our immigration law does not allow an aunt to petition for her niece or nephew, and the parent who immigrated to the U.S. must now file a new petition for the child, the justices decided that this conversion is not automatic. The plurality viewed the statute as having a built-in conflict and therefore ambiguity, so it gave Chevron deference to the interpretation of the administrative agency, the Board of Immigration Appeals. 
Justice Roberts, with whom Justice Scalia concurred, did not see any conflict in the statute. Rather, they viewed the first phrase of the provision as encompassing all children in the five categories, but without granting any relief. They thought that only the second phrase granted a benefit and therefore reached the same conclusion as the plurality, but without the need to rely on Chevron. All five justices in the majority decided that the part of the provision after the word “and,” which states that “and the alien shall retain the original priority date issued upon receipt of the original petition,” does not grant any relief independent from the part before the word “and.”
On the other hand, Justice Sotomayor, writing for the dissent, found multiple grounds to grant relief for children in all of the five family categories. She ruled that Congress intended to benefit all children threatened with aging out and did not find the word “automatic” to be so limiting. Rather, her version of “automatic” could refer to when the mother arrived in the U.S. and filed for her daughter. That does not mean that the daughter would then be able to immigrate immediately; rather, the daughter would simply be able to take credit for the time she had already been waiting. Justice Sotomayor also thought that the word “and” confirms that Congress intended this result and that the retention of the original priority date should apply to all five family preferences. In other words, the dissenting opinion thought that the relief after the word “and” provides an additional independent relief, such that any child covered in the first part of the provision is entitled to retain the original priority date.
Thorpe: The 9th U.S. Circuit Court of Appeals had ruled in 2012 that a broader category of visa applicants was eligible than had been argued by the Obama administration. How did that play out in the Supreme Court’s ruling?
Antone: The Ninth Circuit decided that the first phrase of the provision is not ambiguous, and that it grants relief to all aged-out children and that the rest of the provision explains the mechanics of how to achieve that. The dissenting opinion agreed with the Ninth Circuit.
Thorpe: Justice Roberts called the rule “ambiguous.” Justice Kagan, writing for the majority, said parts of the complex immigration rules were “through and through perplexing.” How big a part has confusion played in this long story?
Antone: Confusion is the story of the day here. In addition to two opinions by the plurality majority, there were two dissenting opinions. Four justices dissented: Sotomayor’s dissent was joined by Breyer, Thomas, and Alito. Alito also wrote his own dissent. Obviously, this is the result of a statute that was drafted decades ago and then was partially amended by Congress. Thereafter, it was interpreted by a political administrative agency, then interpreted again by a Supreme Court torn between applying rules of statutory construction and applying a common sense approach. The “Chevron” concept of deferring to the administration immigration agency seems to have provided the convenient (albeit controversial) way out for the plurality.
Thorpe: Justice Sotomayor, in her dissent, said that the case should have been decided with a “common sense” approach. What do you think she meant?
Antone: In the Child Status Protection Act, Congress attempted to relieve families from excessive delays, as reflected in this case where a child who was included in a family petition when she was two years old will be able to benefit from the petition and immigrate to the U.S. only when she is over the age of 50. Congress tried to do that by giving credit for time already spent waiting as a child as opposed to starting all over again. It is unlikely that Congress intended only one of the five categories of family petitions to benefit from the act. Rather than looking at the likely intent of Congress, it appears to me that the majority was consumed in technicalities regarding the definitions of the words “and” and “automatic.”
Thorpe: Is this the legal end of the road? Would it require legislation now to change the rule?

Antone: This is unfortunately the likely legal end for how this provision is interpreted unless the Supreme Court, with possibly different makeup, reconsiders the decision. Congress should now clarify the rule, although this is extremely unlikely in the current political environment. 

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