Supreme Court directs immigrants’ adult children to back of the line for visas

Share with others:

Print Email Read Later

WASHINGTON — On a 5-4 vote, the Supreme Court ruled Mon­day that the vast ma­jor­ity of im­mi­grant chil­dren who turn 21 while await­ing ap­proval of their fam­i­lies’ visa ap­pli­ca­tions must re­start a pro­cess that takes years.

The di­vided court de­ferred to the Obama ad­min­is­tra­tion’s read­ing of a law passed in 2002 that at­tempted to bring or­der to the im­mi­gra­tion pro­cess, in which there are far more ap­pli­ca­tions than avail­able spots.

The law is so am­big­u­ous — one sec­tion “is through and through per­plex­ing,” wrote Justice Elena Kagan — that it is best to leave in­ter­pre­ta­tion to the Board of Im­mi­gra­tion Ap­peals, she said. The fed­eral agency has said cer­tain classes of ap­pli­cants lose their fa­vored sta­tus as chil­dren when they turn 21, even if the pro­cess started years ear­lier.

Justice Kagan said the de­ci­sion would pri­mar­ily af­fect nieces, neph­ews and grand­chil­dren of U.S. cit­i­zens and le­gal per­ma­nent res­i­dents who are try­ing to re­unite their fam­i­lies. The de­ci­sion does not touch on the re­cent mi­gra­tion of thou­sands of chil­dren trav­el­ing on their own across the Mex­i­can bor­der.

The case re­quired a deep dive into com­plex im­mi­gra­tion law and di­vided the court in sev­eral ways. Justice Kagan’s opin­ion was joined by Justices An­thony Ken­nedy and Ruth Bader Gins­burg. Chief Justice John Rob­erts and Justice An­to­nin Sca­lia agreed with the agency’s in­ter­pre­ta­tion of the law but did not go along with Justice Kagan’s de­scrip­tion of the law as hav­ing “con­flict­ing” di­rec­tives.

Justice So­nia So­to­mayor, who like Justice Kagan was nom­i­nated to the court by Pres­i­dent Barack Obama, led the dis­sent. She said the law was clearly in­tended to keep fam­i­lies to­gether, and that chil­dren who “aged out” dur­ing the pro­cess should not have to start the pro­cess to get their own vi­sas. She was joined by Justices Clar­ence Tho­mas and Ste­phen Breyer. Justice Samuel Alito filed his own dis­sent.

The agency’s in­ter­pre­ta­tion of the law was chal­lenged by Rosalina Cuel­lar de Oso­rio, a Sal­va­doran im­mi­grant who was the prin­ci­pal ben­e­fi­ciary of a pe­ti­tion filed by her mother, a U.S. cit­i­zen. Her 13-year-old son, Melvin, was what was called a de­riv­a­tive ben­e­fi­ciary.

The ap­pli­ca­tion was ap­proved in 1998, but only a cer­tain num­ber of vi­sas are avail­able each year, and Ms. Cuel­lar de Oso­rio’s did not come un­til 2005 — four months af­ter Melvin turned 21. The par­ents im­mi­grated, but gov­ern­ment of­fi­cials said Melvin no lon­ger qual­i­fied as an el­i­gi­ble child, and he was placed at the back of the line, re­sult­ing in a wait of sev­eral more years.

The 9th U.S. Cir­cuit Court of Ap­peals ruled for the fam­ily, but other courts have de­ferred to the agency, set­ting up Mon­day’s de­ci­sion.

Justice Kagan said it was the court’s prece­dent to de­fer to agen­cies when the law is am­big­u­ous, and that the gov­ern­ment had rea­sons for its rules. In the “un­avoid­ably zero-sum world of al­lo­cat­ing a lim­ited num­ber of vi­sas,” Justice Kagan wrote, ad­mit­ting some means that oth­ers will be left out.

Justice So­to­mayor said it was clear that the law’s in­tent was to treat all those who be­come 21 dur­ing the wait for vi­sas the same, and that the court was wrong to “con­strue the stat­ute as a self-con­tra­dic­tion that was bro­ken from the mo­ment Con­gress wrote it.”

A group of law­mak­ers in­clud­ing Sens. John McCain, R-Ariz., and Dianne Fein­stein, D-Calif., sub­mit­ted a brief re­ject­ing the ad­min­is­tra­tion’s view of the law. But any leg­is­la­tive rem­edy to the de­ci­sion would prob­a­bly be com­pli­cated by Con­gress’ im­passe over com­pre­hen­sive im­mi­gra­tion re­form.

In a sep­a­rate case, the court, by a 7-2 vote, said a group of North Car­o­lina land­own­ers had missed a state dead­line for su­ing a com­pany that con­tam­i­nated their drink­ing wa­ter de­cades ago and ruled that a fed­eral law did not pro­tect such suits. The de­ci­sion af­fects a hand­ful of other states that have such time lim­its and is a blow for a suit on the other side of North Car­o­lina, where fam­i­lies of sev­eral thou­sand for­mer Marines are su­ing over con­tam­i­nated drink­ing wa­ter at Camp Le­jeune.

United States - North America - United States government - Barack Obama - United States Congress - Sonia Sotomayor - Antonin Scalia - Stephen Breyer - John McCain - Elena Kagan - Supreme Court of the United States - North Carolina - Dianne Feinstein - Anthony Kennedy - John Roberts - Samuel Alito - Clarence Thomas - Ruth Bader Ginsburg - CTS Corp

Join the conversation:

Commenting policy | How to report abuse
To report inappropriate comments, abuse and/or repeat offenders, please send an email to and include a link to the article and a copy of the comment. Your report will be reviewed in a timely manner. Thank you.
Commenting policy | How to report abuse

Create a free PG account.
Already have an account?

You have 2 remaining free articles this month

Try unlimited digital access

If you are an existing subscriber,
link your account for free access. Start here

You’ve reached the limit of free articles this month.

To continue unlimited reading

If you are an existing subscriber,
link your account for free access. Start here