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Carl Shusterman's Immigration Update

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  1. Supreme Court Rules Against Immigrant Families

    http://www.bluffton.edu/~sullivanm/washdc/supremecrt/front2.jpg 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 10:56 PM by CShusterman

  2. Supreme Court Decision on CSPA Coming Soon

    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 01:39 PM by CShusterman

  3. CSPA Oral Arguments Before the Supreme Court

    http://shusterman.com/images/CSPA-Oral-Arguments-Supreme-Court.jpg
    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.


    Government’s Argument

    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.


    Chevron Test

    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).


    Respondent’s Argument

    http://www.wilmerhale.com/uploadedImages/Shared_Content/Images/People/Attorney/Fleming_Mark_lo.jpgWhen 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.


    Government’s Reply

    “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.”


    Conclusion

    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 01:45 PM by CShusterman

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  4. Senators Weigh in on CSPA Lawsuit


    http://law2.umkc.edu/faculty/projects/ftrials/conlaw/supremebuilding.jpg When Congress passed the 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.”

    and

    “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.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 11-20-2013 at 11:10 AM by CShusterman

  5. Supreme Court Agrees to Review CSPA Victory in the Court of Appeals

    http://wiki.lexisnexis.com/academic/images/7/76/Us_supreme_court_seal.png On June 24, the Supreme Court of the United States granted the Department of Justice's Petition for a Writ of Certiori, agreeing to review the decision of the U.S. Court of Appeals for the 9th Circuit in the CSPA case of DeOsorio v. Mayorkas.

    In that ruling, an en banc Court rejected the government's restrictive interpretation of the "automatic conversion" clause of the Child Status Protection Act (CSPA). That clause created section 203(h)(3) of the Immigration and Nationality Act, which states as follows:

    "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."

    Paragraph (1) allows sons and daughters of persons coming to the U.S. as employment-based and family-based immigrants to subtract the length of time that the visa petition (I-130, I-140, etc.) filed on their behalf was pending from their ages as of the date that their priority dates became current. If the resulting age is less than 21 years old, they are permitted to immigrate, or adjust their status, together with their parents. If the resulting age is 21 years or over, paragraph (3), the automatic conversion clause, must be applied.

    Although the language of CSPA makes it perfectly clear that paragraph (3) applies only if the child has "aged-out" despite the mathematical formula in paragraph (1), the Board of Immigration Appeals in Matter of Wang, 25 I&N Dec. 28 (BIA 2009) held that paragraph (3) applies only to a tiny subset of children who age-out under paragraph (1). Not only is this interpretation unsupported by the language of the statute and by the legislative history of CSPA, but failing to apply both paragraphs to the same set of beneficiaries would lead to absurd results.

    Consider the case of Rosalina DeOsorio, the lead plantiff in the lawsuit. In 1998, her mother, a U.S. citizen, sponsored Rosalina and her 13-year-old son for green cards. However, by the time that their priority date became current, Rosalina's son had recently turned 21-years-old. Because her mother's visa petition was quickly approved by the government, the formula in paragraph (1) did not reduce her son's age below 21 which would have permitted him to immigrate to the U.S. together with his mother. Instead, they have remained separated for 8 years because the government which readily concedes that paragraph (1) applies to him, contends that paragraph (3) does not.

    Such a restrictive interpretation results in some rather bizarre outcomes.

    Imagine for a moment that Rosalina had a sister. Let's call her Suerte. Suerte also has a son, born 3 years before Rosalina's son. In 1998, their U.S. citizen mother sponsored both Rosalina and Suerte and their sons. Clearly, if Rosalina's son aged-out in 2005, Suerte's son being 3 years older, would have aged-out in 2002 and would not have been able to accompany his mother to the U.S., right? Not so fast. Remember that the operation of paragraph (1) depends on how long the visa petition was pending. Let's suppose that in the case of the petition for Suerte, her mother forgot to attach some required paperwork. The government issued a request for evidence. Although the mother mailed it to the government, the petition got lost in the shuffle, and was not approved until 2002. When their priority date became current in 2005, Suerte's son was already 24-years-old. However, because the petition was pending for 4 years, his CSPA age under paragraph (1) was only 20-years-old, thus allowing him to immigrate to the U.S. with his mother.

    In this not-so-far-fetched scenario, Suerte's 24-year-old son is able to immigrate together with his mother while his 21-year-old cousin remains separated from his mother for almost a decade with no end in sight. Clearly, whether one qualifies as a child under paragraph (1) depends totally upon luck. The longer the government takes to approve your petition, the luckier you are. It is no surprise then that Congress provided benefits under paragraph (3) for those who did not qualify under paragraph (1). However, if the government's argument is correct, and 99% of the children who age-out are ineligible for benefits under paragraph (3), thousands of families will be forced to remain separated due to circumstances beyond their control.

    The government's interpretation, which would force Rosalina's son, but not Suerte's son, to go to the back of the line, clearly leads to a ridiculous result. Allowing Rosalina's son credit for the years that he stood in line together with his mother, as provided for in paragraph (3), both comports with existing laws and regulations regarding the retention of priority dates when a person moves from one preference category to another and insures that the system is just and reasonable.

    Our immigration system was created to insure family unity. In drafting CSPA, Congress intended to design a rational system rather one which is arbitrary. Refusing to read paragraph (1) and paragraph (3) as applying to the same set of sons and daughters would turn our immigration system into something akin to a Las Vegas craps game.

    P.S. - If Rosalina and her son were born in Mexico (which they were not), the wait for him to be able to join her in the U.S. would be 115 1/2 years under the per-country quota system! This is because there are over 200,000 unmarried sons and daughters of permanent residents from Mexico waiting in line in the 2B preference category, but only 1,841 are permitted to immigrate in a single year. So, for Mexicans, adopting the government's argument is not simply ordering a child to go to the back of the line. It is more like forcing him to walk the plank.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 01:04 PM by CShusterman

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