Supreme Court rules in child immigration case

[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 5-4 Monday in Scialabba v. Cuellar de Osorio [SCOTUSblog backgrounder] that a provision of the Immigration and Nationality Act (INA) [text] does not automatically grant relief to all aliens who qualify as "child" derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary. The INA permits US citizens and lawful permanent resident aliens to petition for certain family members to obtain visas to immigrate to the US or to adjust their status in the US to that of a lawful permanent resident alien. The family member sponsored by the petitioner is known as the primary beneficiary. The primary beneficiary's "spouse or child" may be a derivative beneficiary of the petition, "entitled to the same status[] and the same order of consideration" as the primary beneficiary. Section 1153(h)(3) [text], grants relief to certain persons who reach age 21 and therefore lose "child" status after the filing of visa petitions as to which they are beneficiaries. Here the US Court of Appeals for the Ninth Circuit held [opinion] that "the plain language of § 1153(h)] unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The [Board of Immigration Appeals'] interpretation of the statute conflicts with the plain language of [§ 1153(h)], and it is not entitled to deference." In an opinion by Justice Elena Kagan, the Supreme Court reversed:

[The BIA] interpreted the CSPA as providing relief to only a subset of that group—specifically, those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent. We now uphold the Board's determination as a permissible construction of the statute.
Kagan's opinion was joined by Justices Anthony Kennedy and Ruth Bader Ginsburg. Chief Justice John Roberts filed a concurring opinion, joined by Justice Antonin Scalia. Justice Samuel Alito filed a dissenting opinion. Justice Sonia Sotomayor also filed a dissenting opinion, joined by Justice Stephen Breyer and by Justice Clarence Thomas, except as to footnote 3.

The court heard arguments in this case in December after granting certiorari [JURIST report] last June.

 

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