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When our Founding Fathers wrote the Constitution and the Bill of Rights and established the doctrine of separation of powers, they did not carve out an exception for consular nonreviewability. This came about much later as a result of ignominious laws and rulings which excluded Chinese immigrants from the United States.
Today, if I, a US born citizen, were sponsoring my wife for a green card, and the USCIS denied her application without explaining why, I could sue the USCIS in Federal Court to challenge the decision.
However, if a consular officer abroad did the same, I would not have access to the Federal Courts because of the doctrine of consular nonreviewability.
Why should the Federal Courts lack jurisdiction over the decision of a State Department consular officer to deny a green card to the spouse of a US citizen when they clearly have jurisdiction to review an identical decision by a USCIS examiner? This makes no sense whatsoever.
The Supreme Court’s recent decision to grant certiorari in Kerry v. Din, 718 F.3d 856 (9 Cir. 2013), a Circuit Court decision which relies on a tiny crack in this seemingly absurd doctrine, allows the Court to reexamine consular nonreviewability for the first time in over 40 years.
Here is the story behind Kerry v. Din:
In September 2006, Fauzia Din, a US citizen, married a man born in Afghanistan. The next month, she submitted an I-130 visa petition on his behalf. In 2008, the USCIS notified her that the petition was approved and, in September of that year, Ms. Din’s husband had his green card interview.
He answered all the questions truthfully, including the ones regarding his employment as a payroll clerk for the Afghan Ministry of Social Welfare during the Taliban regime and his job as a clerk for the Afghan Ministry of Education for the new government which came to power after the US invasion. The interviewing officer informed him that he would receive his immigrant visa in the next few weeks.
However, after many months of inquiries from him and his wife, in June 2009, he was informed that his visa had been denied and that he was ineligible for a waiver.
After an inquiry as to why he was inadmissible, in July 2009, the US Embassy e-mailed him that his visa had been denied under 8 U.S.C. 1182(a)(3)(B). This section of law lists a wide variety of grounds of inadmissibility due to terrorist activities.
Did the Embassy believe that he was a terrorist, or merely that he is inadmissible for having worked as a payroll clerk for the Taliban-controlled government? The State Department refused (and continues to refuse) to answer this all-important question.
Ms. Din sued the State Department in Federal Court in an effort to get an answer. However, the District Court Judge dismissed her complaint citing the doctrine of consular nonreviewability.
She appealed to this ruling to the US Court of Appeals for the 9th Circuit. On May 23, 2013, the Court ruled, in a split decision, that there is a limited exception to this doctrine which is applicable to her. They ordered the State Department to provide Ms. Din with a “facially legitimate and bona fide” reason for denying her husband’s immigrant visa citing the Supreme Court’s decision in Kleindienst v. Mandel, 408 U.S. 753 (1972).
The Court stated that while generally, federal courts are without power to review the actions of consular officers:
“...we have recognized a limited exception to the doctrine of consular nonreviewability. When the denial of a visa implicates the constitutional rights of an American citizen, we exercise ‘a highly constrained review solely to determine whether the consular official acted on the basis of a legitimate and bona fide reason.’”
Why is the State Department challenging this extremely limited exception when their own Customer Service Statement to Visa Applicants states, “We promise to you, the visa applicant, that...we will explain the reason for any visa denial to you.”?
Hopefully, the Supreme Court will rule that a US citizen who has been fighting to bring her husband to the US for over 8 years, is entitled to more than a citation to a code section as the reason why a consular officer denied her husband’s application to live together with her in the US.
More importantly, the entire rationale behind the doctrine of consular nonreviewability is contrary to the concept of a free society in which citizens are guaranteed certain rights.
The Supreme Court, in considering Kerry v. Din, should reexamine consular nonreviewability since this doctrine undermines the right of due process of law guaranteed in the Bill of Rights.
The Supreme Court could uphold individual rights as intended by the framers of the Constitution and protect US citizens from the unchecked power of big government by following the logic of the dissent in US ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) in which Justice Jackson, joined by Justices Black and Frankfurter, explains:
“Now this American citizen is told he cannot bring his wife to the United States, but he will not be told why. He must abandon his bride to live in his own country or forsake his country to live with his bride...”
“Security is like liberty in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl’s admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security this police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings. The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected...”
Updated 10-13-2014 at 05:23 PM by CShusterman
On June 9, 2014, the Supreme Court of the United States in Scialabba v. DeOsorio, in a 5-4 decision, reversed the decision of the U.S. Court of Appeals for the 9th Circuit, and ruled that the “automatic conversion” clause of the Child Status Protection Act (CSPA) does not provide benefits to most immigrant families.
As a result, tens of thousands of immigrant families will continue to be separated as parents and underaged children immigrate to the U.S. while sons and daughters who turned 21 years of age during the waiting process are forced to remain abroad, separated from their families.
The Court ruled that the automatic conversion clause was ambiguous and deferred to the highly-restrictive 2009 decision of the Board of Immigration Appeals (BIA) in Matter of Wang.
We have explained in previous posts why we believe that the Board’s decision in Matter of Wang is unreasonable and should not be accorded deference. However, the decision of the Supreme Court cannot be appealed.
The Court held that
“The first clause of §1153(h)(3) states a condition that encompasses every aged-out beneficiary of a family preference petition. The second clause, however, does not easily cohere with the first. It prescribes a remedy that can apply to only a subset of the beneficiaries described in the first clause.”
It deferred to Matter of Wang which restricts the persons who may benefit from CSPA’s automatic conversion clause to aged-out beneficiaries of 2A family-based petitions.
The sons and daughters of our plaintiffs who are beneficiaries of family-based 3rd and 4th preference visa petitions do not qualify for automatic conversion or even for retention of their priority dates.
As the dissent points out, when the U.S. citizen sister of Norma Uy sponsored her and her family for green cards in 1981, Norma’s daughter Ruth was 2-years-old. However, after waiting in line with her parents for a green card for over 20 years, by the time that the family reached the front of the line, Ruth was over 21 years of age, too old to immigrate together with her family under Matter of Wang.
Going to the back of the 2B line isn’t much of an option.
Because of the numerical restrictions in this category, the length of the 2B line is 28.7 years for persons born in the Philippines and 115.5 years for persons born in Mexico. So, as a practical matter, not receiving credit for the time that they spent waiting in line together with their parents, prevents sons and daughters of immigrants from reuniting with their families in the United States.
Is this really what Congress intended when they passed the Child Status Protection Act in 2002? Not according to the bipartisan group of Senators who submitted an amicus brief to the Supreme Court disputing the government’s interpretation of the law.
Furthermore, what sense does it mean to subtract the time the visa petition was pending from all children of green card applicants, but apply the automatic conversion clause to only a small subset of children?
The petition for Norma Uy was approved the same day that it was filed. The reason that her daughter Ruth was over 21 years old when the priority date was reached is the 23 year waiting time for a sibling born in the Philippines.
What if Norma had a sister who was sponsored on the same day, and the sister had a son born on the same day as Ruth? Suppose the government took 10 years to approve the petition. Under the Supreme Court’s decision, Ruth’s cousin would be able to subtract 10 years from his age when the priority date was reached, and unlike Ruth, he could immigrate with this family.
If the automatic conversion clause, unlike the subtraction clause, only protects a small subset of sons and daughters of immigrants, whether children are able to immigrate together with their families is akin to playing roulette in Las Vegas. Purely a matter of luck!
Now that the Supreme Court has ruled against immigrant families, Congressional action is necessary to restate in the most clear and unambiguous language possible the intent of CSPA’s automatic conversion clause.
Our country should have an immigration system that unites families, not one which needlessly separates them.
Updated 06-09-2014 at 11:56 PM by CShusterman
We expect the Supreme Court to issue a decision on the nationwide class action lawsuit regarding CSPA, Mayorkas v. DeOsorio, very soon, possibly on May 19.
While we lawyers argue over the meaning of terms like "retention", "automatic conversion" and "appropriate category", the issue in this case can be summarized as follows: Are children who have stood in line for years, or ever decades, beside their parents waiting for their priority date to be current, entitled to get credit for this time, or, if they have "aged-out" during this time, must they go to the back of the line and restart the immigration process?
Bear in mind that the line is almost 30 years for unmarried sons and daughters from the Philippines and over 115 years for children born in Mexico. And that if they are forced to go to the back of the line, they cannot get married without losing their priority dates. So, as a practical matter, these sons and daughters will never be able to rejoin the parents under the government's argument.
Could Congress, in passing legislation whose purpose was to keep families together, have intended such a harsh result? Not according to the Senators who submitted a Friend of the Court Brief agreeing with our position in this case.
After all, for many years, the government has adhered to a regulation which provides that as a person converts from one preference category to another, they are never forced to go to the back of the line. Instead, they always receive credit for the time that they spent in line.
Let's say that a son's LPR mother sponsors him for a green card in the 2B category on July 4, 2000, and before his priority date becomes current, his mother naturalizes. Now he moves from the 2B line to the 1st preference line. He is not forced to restart the immigration process. Instead, he is given full credit for the time that he spend waiting in the 2B line. Later, if he marries before his priority date becomes current, both he and his wife as well as their children, all go to the 3rd preference line. The one thing that never changes is they are all entitled to the July 4, 2000 priority date.
The government has no problem with this concept. It has never maintained that the regulation enables the beneficiary or his wife and children are "line jumpers" who are displacing others. After all, it was the government which wrote this regulation and has enforced it for decades.
Why then does Justice Department argue in Mayorkas v. DeOsorio that children who stood in line together with their parents for many years and have been separated from them since before we sued the government in 2008, and the 6 years that have elapsed since then, are line jumpers?
Could it be that this line of argument is being used to mask the government's attempt to restrict the operation of CSPA so severely that the very families that the law was written to protect will now be separated forever?
I know that the Supreme Court Justices are way smarter than Yours Truly and I believe that they will order the government to finally implement CSPA as Congress intended.
Updated 05-05-2014 at 02:39 PM by CShusterman
On December 10, 2013, the Supreme Court of the United States heard oral arguments concerning who benefits from the “Retention of Priority Date” clause of the Child Status Protection Act (CSPA).
Hopefully, in the next few months, this matter will be settled once and for all, and sons and daughters of parents who immigrated years ago will, at last, be permitted to rejoin their families in the U.S.
The government, having lost in the Court of Appeals, first addressed the Court:
“The Board of Immigration Appeals reasonably interpreted Section 1153(h)(3) when it ruled that creation of a new petition by a new petitioner did not qualify as automatic conversion of an existing petition to an appropriate family-sponsored category…”
However, various Justices let the government know that they were not persuaded:
Justice Ginsburg: “What about all the time this one child has been waiting? It gets no credit for that?”
Justice Alito: “…your reading of this statute gives (h)(3) a very, very narrow scope.”
Justice Breyer: “…it's just unlikely that Congress meant (3) to apply to a…little molecule when there's the whole ocean.”
Justice Sotomayor: “It would have been much, much simpler to say this is limited to F2A beneficiaries than to write it the way they did and say this is to everybody who ages out.”
Justice Kagan: “…it seems as though you shouldn't be entitled to Chevron deference on that question, given what Wang said about it.”
The government attempted to counter each of the above statements. It argued that the Court recognized that “deference is particularly appropriate in immigration contexts.”
The government expressed concern about delays to persons waiting in the F2B line, but when questioned by Justice Breyer, it revealed that it was impossible to calculate how much of a delay that these persons would experience if the respondent’s prevailed in this lawsuit.
The issue in this case is whether the Court must give “Chevron deference” to an administrative decision interpreting a law, in this case, the Board of Immigration Appeals (BIA) decision in Matter of Wang. Here, the Court uses the following two-step test:
Step 1 – "First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress."
Step 2 – [I]“f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).
When it was his turn to address the Court, Mark Fleming, the attorney arguing the matter on behalf of the immigrant families, stated:
“The government began at Step 2 of Chevron, but I would submit that this case can and should be resolved at Step 1. The government is asking this Court to read the statute in a highly disfavored way such that it is not harmonious but at war with itself, and nothing in the language requires that...”
“…provision (h)(3) consists of one sentence, and that sentence consists of two parts separated by a comma. Before the comma, the language sets forth one and only one eligibility criterion. After the comma, the language sets forth two things that shall be done if the eligibility criterion is satisfied. Now, importantly, the government does not contend that there is any ambiguity in the language before the comma. Everyone agrees that it contemplates and includes all derivative beneficiaries. There's no dispute about that. And a bedrock rule at the Step 1 inquiry is that the Court reads the statute as a harmonious whole. That goes double when we're talking about a single sentence. So if there is a possible reading of this sentence that is harmonious with the clear opening clause that applies to all derivative beneficiaries under Step 1 of Chevron, that is the reading the Court gives to the statute.”
Section 203(h)(3) - RETENTION OF PRIORITY DATE - If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), 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.
Justices Kennedy and Scalia questioned how “automatic conversion” would operate. Justice Scalia was concerned that respondent’s interpretation of the clause would permit an adult son or daughter to immigrate to the U.S. over his or her parent’s objections.
Mr. Fleming explained that in the highly unlikely event that the parent did not want his son or daughter to join him in the U.S., he could refuse to sign an affidavit of support and they would not be able to immigrate.
Justice Kagan: “Based on -- another understanding of Chevron is sometimes Congress writes confusing statutes that point in two different directions at once, and then there's a choice. Does the Court make the best of it or does the agency make the best of it? And the agency knows a lot about the subject matter, and especially this agency, and so irrespective of whether Congress meant to delegate something in some very self-conscious way, this is a confusing statute, it's a kind of the muddle. The agency gets to do it.”
Mr. Fleming responded that it was clear that (h)(3) applies to all derivative beneficiaries, and that it was very possible for the agency to interpret the words “retention” and “automatic conversion” in a matter which would implement the intent of Congress. Furthermore, “retention” and “automatic conversion” are deemed separate and distinct benefits by the statute. Even if the agency decided that automatic conversion was not possible in selected cases, the son or daughter would still be able to “retain” the priority date of the original F3 or F4 petition.
Justice Scalia: “Well, this is all upside down. I thought it's the agency that we deferred to. If it can be read in the way the agency wants, we affirm the agency's position.”
In response to a comment by Justice Scalia that the two benefits, retention and automatic conversion, were conjunctive, not disjunctive, Mr. Fleming revealed that the government had, despite its arguments, been denying automatic conversion, but not retention, to F2A derivative beneficiaries from the date that CSPA was enacted (August 6, 2002) until 6 days before the government submitted its reply brief. This, he said, demonstrated that retention and automatic conversion can, and have been, implemented as separate benefits.
Justice Scalia remained unpersuaded.
Mr. Fleming ended his argument by declaring that even under Step 2 of Chevron, the BIA decision failed to draw a rational line between 2B beneficiaries, treating those with familial relationships with permanent residents more favorably than those with relationships with both U.S. citizens and permanent residents.
“The Respondents were trying to put far too heavy a burden on the government in the Chevron deference case. So long as the agency has arrived at a reasonable reading of this very complicated statute, the agency is entitled to deference here.”
“The government also expresses its concern with the possibility that a derivative beneficiary could “have a priority date somehow in their pocket that they could walk around with and use 20 years later when somebody filed a different petition on their behalf, an employment petition…”
Chief Justice Roberts: “Well, it's not so odd to say they've got a priority date in their pocket when the statute says the original priority date - they'll retain the original priority date.”
While it is impossible to predict the final outcome of a case based solely on the oral arguments, I remain cautiously optimistic that the Supreme Court will ultimately agree with both the 5th and the 9th Circuit Courts of Appeals that the statute is unambiguous and that there is no need to defer to the flawed BIA decision in Matter of Wang. A decision may be forthcoming as early as February or March.
As recognized by many of the Justices, the government is arguing for a very restrictive reading of CSPA. Yes, the DOJ instead portrays itself as the defender of those in the F2B line and categorizes our clients as “line-jumpers”.
What the DOJ conveniently overlooks is that CSPA created (h)(1) to allow all qualifying derivative beneficiaries who would, in the past, have “aged-out” and lost their place in line to immigrate together with their parents in a particular preference category. Under the government’s reasoning, why are they are not “line-jumpers”? Congress simply made a policy decision to give sons and daughters who have waited for years in line for permanent residence together with their parents credit for their wait, and not send them to the back of the line. If is clear that (h)(3) extends this same credit to unmarried sons and daughters of permanent residents.
Could it be that the DOJ simply disagrees with these policy decisions?
If so, they should lobby Congress, not the Supreme Court, to change the law.
Updated 12-20-2013 at 02:45 PM by CShusterman
Child Status Protection Act (CSPA) in 2002, there was wide bipartisan support concerning the need to change the immigration law to prevent the separation of families during the waiting process.
Both the Senate and the House of Representatives passed the legislation unanimously, and it was signed into law by President Bush. One of the flaws in the immigration law that CSPA was designed to remedy was that when children turned 21 years old while waiting with their families for their green cards to be issued, they were no longer able to immigrate to the U.S. with their parents despite that the fact that they had waited in line for many years, even decades.
Congress established a two-step solution to this problem. First, in order to avoid family separation due to administrative delays, the number of days that a visa petition was pending would be subtracted from the child’s age. If the resulting age was less that 21, the child could immigrate together with his parents. Second, if after this calculation the child’s age was over 21, the child would retain the priority date of the original petition. That is, he would be given credit for the years spent waiting in line. Also, the petition would automatically convert to the appropriate category. In most cases, this would be the family-based 2B category, since the child was now the unmarried adult son or daughter of a permanent resident.
Seems simple enough, but nevertheless, we have been litigating this issue in the federal courts since 2008. The government maintains that the relevant provision is ambiguous and that courts should defer to a very restrictive interpretation of the law promulgated by the Board of Immigration Appeals (BIA) in Matter of Wang in 2009. The BIA held that while the first step of the formula applies to derivative beneficiaries of all family-based and employment-based preference categories, the second step applies only to a tiny subset of family-based beneficiaries. This is a curious interpretation since both subsections of the law clearly apply to the same people. The only difference is that the first step applies to persons whose age, after performing the formula, is under 21 while the second step applies to those whose age is over 21.
The three U.S. Courts of Appeals which have issued precedential decisions regarding this issue all agree the language of the statute is unambiguous and, hence, there is no need to defer the BIA’s decision. However, two courts (the Fifth Circuit in Texas and the Ninth Circuit in California) ruled that the statute unambiguously foreclosed the BIA’s approach, whereas the other (the Second Circuit in New York) held that the statute unambiguously required it. The Solicitor General sought Supreme Court review, arguing that the law’s language is ambiguous and that courts should defer to the BIA.
The language in dispute was first drafted by the Senate. The BIA, in Matter of Wang, curiously omitted any quotes from Senators when discussing the meaning of the disputed sentence. Wouldn’t it be helpful if Senators from both parties could speak directly to the Justices of the Supreme Court as to the meaning of the statute that they authored?
On November 4, exactly that occurred. A bipartisan coalition of current and former U.S. Senators — former Senator (now Governor) Brownback (R-KS), and Senators Feinstein (D-CA), Hatch (R-UT), McCain (R-AZ), Menendez (D-NJ) and Schumer (D-NY) submitted a legal brief to the Supreme Court. What does the brief say?
The Senators carefully explain Congress’ reasons for passing the CSPA, and clearly demonstrate the disputed subsection requires that the agency extend its benefits to all derivative beneficiary children.
The following quotes from the brief are helpful in understanding the purpose of the law.
On page 9, the Senators explain that
“Only through the broad coverage of all derivative beneficiaries could the CSPA effectively protect family unity and award credit for the years that families had already waited.”
“The Solicitor General’s argument that the CSPA covers only beneficiaries of F2A petitions directly conflicts with the primary purpose for which the law was enacted. In enacting this legislation, Congress meant to correct the inequities of the pre-CSPA regime in full.”
On page 16, the Senators dismiss the Solicitor General’s ambiguity argument in the strongest terms:
“The Solicitor General’s Attempt To Manufacture Ambiguity Erodes Congress’s Ability To Effect Its Will Through Clear, Unambiguous Draftsmanship.”
On page 18, the Senators condemn the executive branch’s attempt to rewrite the CSPA:
“The Solicitor General’s continuing insistence that the CSPA is ambiguous raises serious institutional concerns. While Congress can and often does rely on agency expertise to fill intentionally placed gaps in statutory language, it does not typically give an agency carte blanche to rewrite statutory language that is clear simply because the agency declares that the statute contains ‘tension.’ The Solicitor General’s attempt to read ambiguity into a statute simply because the requirements of the statute diverge from preexisting agency procedures undermines the authority of Congress. This Court should reject that attempt and reaffirm the agency’s duty to carry out the mandates of a congressional statute.”
Finally, on page 19, the Senators conclude that
“In the face of such an unambiguous congressional mandate, the existence of alleged ‘tension’ between the statute and preferred agency procedure is not sufficient to generate ambiguity where none exists. Congress has enacted a law that is clear on its face; the agency must act to faithfully carry it out.”
The Senators’ brief is both forceful and convincing. Families which are impacted by this section of CSPA may wish to read the full brief of the Senators as well as the amicus briefs submitted by the Catholic Legal Immigration Network and by Immigration Advocacy Organizations.
The Solicitor General has until November 27 to submit a reply brief.
Our firm is co-counsel in the case, and the case will be argued in the Supreme Court by Mark Fleming, who specializes in appellate litigation at WilmerHale. The Supreme Court will hear oral argument on December 10, and a decision is expected in early 2014.
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Updated 11-20-2013 at 12:10 PM by CShusterman