Children ‘Aged Out’ of Immigration System Won’t Get Special Priority, Justices Rule
A divided Supreme Court ruled on Monday that children of immigrants who lost their places in the slow-moving immigration system because they turned 21 before their parents received their immigrant visa could not be given special priority.
The decision could affect untold numbers of young immigrants across the country, including the children of New York City teachers recruited to fill classroom vacancies in the late 1990s and early 2000s who have "aged out" of the immigration system.
The court's decision, some of them said, upheld a policy that could separate immigrant families - the opposite of what Congress had in mind in 2002, when it passed the law at issue in the case, Scialabba v. Cuellar de Osorio et al. That law permits aged-out children to hold on to their child status - or their initial "priority date" for consideration in the immigration system - after they turn 21.
But the plurality opinion by Justice Elena Kagan found that a key section of the 2002 law was ambiguous.
"Whatever Congress might have meant" with the 2002 law, Justice Kagan wrote, "it failed to speak clearly." She called it "Janus-faced," adding, "The two faces of the statute do not easily cohere with each other."
"Read either most naturally," she said, "and the other appears to mean not what it says."
She also said that an administrative immigration tribunal's 2008 interpretation of the 2002 law - an interpretation the family that brought the case had challenged as too narrow - "benefits from administrative simplicity and fits with immigration law's basic first-come, first-served rule."
"By contrast," she continued, the solutions suggested by the immigrants who were respondents in the case "would scramble the priority order Congress established" by permitting aged-out children to be considered ahead of other would-be immigrants on the path to citizenship.
The justices' alignment in the 5-to-4 decision was unusual, with the two appointed by President Obama taking opposite sides. One, Justice Kagan, was joined by Justices Anthony M. Kennedy and Ruth Bader Ginsburg. Chief Justice John G. Roberts Jr. filed a concurring opinion that cited different reasons for concluding that the 2002 law was ambiguous. Justice Antonin Scalia joined Justice Roberts.
Mr. Obama's other appointee, Justice Sonia Sotomayor, dissented. She was joined by Justices Stephen G. Breyer and Clarence Thomas. Justice Samuel A. Alito Jr. filed a separate dissent.
The case involved Rosalina Cuellar de Osorio, who immigrated from El Salvador in 1998 with her 13-year-old son. After years of waiting, her son turned 21. The administrative tribunal ruled that when he turned 21, he lost his place in the line for permanent residence and would have to start over. The family challenged the tribunal's decision in Federal District Court and lost. When the case was heard by the full United States Court of Appeals for the Ninth Circuit, in San Francisco, it reversed the decision, saying the 2002 law provided that children listed on their parents' green card applications would automatically be converted to another category when they turned 21. The Obama administration appealed.
In her 33-page opinion, Justice Kagan balanced her analysis of the complexities of immigration law with seemingly humorous asides. "Those hardy readers who have made it this far will surely agree with the ‘complexity' point," she declared in a parenthetical phrase that spilled over from Page 13 to Page 14. That was a few pages after she quoted the full text of the law in a footnote that she said was "for the masochists among this opinion's readers."
Justice Kagan dismissed the immigrants' arguments in the case as "resourceful (if Rube Goldbergish)" but hobbled by what she called "statutory inconsistency."
"We still see no way to apply the concept of automatic conversion to the respondents' children and others like them," she said, adding that courts had to defer "to the board's expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme."
Alina Das, a co-director of the Immigrant Rights Clinic at New York University, said aged-out children of immigrants would "continue to be in limbo, waiting for leadership from the administration and Congress to make sure that they're back on a path to citizenship."