Supreme Court Grants Cert in Mayorkas v. Cuellar de Osorio (Child Status Protection Act)

Dont_Grow_UpThe Supreme Court has granted the Government’s Petition for a Writ of Certiorari, agreeing to review the U.S. Court of Appeals for the Ninth Circuit’s decision in Mayorkas v. Cuellar de Osorio.

Update: USCIS Service Center Operations told the American Immigration Lawyers Association on August 14, 2013 that I-130s requesting assignment of an earlier priority date per Mayorkas v. Cuellar de Osorio have been placed on hold pending a Supreme Court decision.

In that case, the Ninth Circuit interpreted the Child Status Protection Act. The Act provides certain benefits to children who would otherwise have “aged out,” meaning disqualified from immigration as “children” by turning 21 years old while they were waiting to immigrate.

The Ninth Circuit held that under the Act a son or daughter who was the derivative beneficiary of a family-sponsored immigrant petition but “aged out” may nonetheless apply the old petition’s priority date to a new petition.  For background, including an explanation of who is covered, see here.

On January 25, the U.S. Department of Justice filed a Petition for a Writ of Certiorari with the Supreme Court. Most recently, on June 24, the Supreme Court has voted to grant the Petition, so the case will be heard on appeal.

Pending the Supreme Court’s ruling, the Ninth Circuit’s decision is stayed–it’s implementation will be postponed.

With the President’s push for comprehensive immigration reform to put undocumented immigrants on a path to citizenship, it seems incongruous for the administration to be taking such a restrictive view of the Child Status Protection Act in this case.

3 responses to “Supreme Court Grants Cert in Mayorkas v. Cuellar de Osorio (Child Status Protection Act)”

  1. SA Avatar
    SA

    Now that Supreme Court granted Cert, what will happen if the current Comprehensive Immigration Reform legislation (S.744) gets passed by congress and signed into law together with the clarification regarding aged out children. Would that cancel the entire de osorio v. mayorkas supreme court process?

    Thanks for your time

  2. vijay Avatar
    vijay

    The Act is very clear in fevour of the aged out children and the ruling of 9th Circuit Court is very much consistent with the Act. Hon’ble Supreme Court could have declined the matter unfit for anykind of intervention. I am of the firm view that the 9th Circuit ruling shall be upheld. The Court ought to consider matter not only under immigration laws but also on the laws of family unity as well as rights of minors.

  3. Linton Kettle Avatar
    Linton Kettle

    ok I need to understand something about this whole CSPA idea. in June 1996 my sister filed for me and that i130 was approved in july1996. the situation is such that when the petition was filed my son was 11yrs old. the visa did not become available for me and my dependents until the year 2006. my son ended up being aged out and a visa was never offered to him and we were told that there is no way for him to remain with us to the united states. they explained that the CSPA on benefits a aged out child who aged out because of uscis Administrative delays and not visa availability. in may 2011 I correctly file for my son and that gave him a priority date of may 31 2011. my query is: can my son retain my old priority date or does he just have to wait and if the immigration reform bill is passed would that cut down my son’s wait time? my son is currently under the f2b category. Also is there any suggestion as to who we could request in “Good faith” that my son be obliged a retention of my previous priority date of june 21, 1996. the only persons who benefit from the original petition filed for me was my wife and younger son. my oldest son’s DOB is april 22, 1985

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