Supreme Court Sends “Aged Out” Children to the Back of the Line (Scialabba v. Cuellar de Osorio)

Don't Grow Up, It's a TrapThe U.S. Supreme Court ruled on Monday that certain children who turn 21 while waiting with their parents for immigrant visas must go to the back of the line, delaying their immigration for years.


This case involves how to treat “derivative beneficiaries,” so let’s explain what that means.

Imagine Cindy is a U.S. citizen. She files an immigrant petition for her brother Mike. The date of filing is the petition’s “priority date,” which determines Mike’s place on the waiting list. Mike is called the “direct beneficiary” of the petition. His daughter, Debbie, is a “derivative beneficiary” because she may be able to immigrate with her father. But because of the waiting list, it takes about 12 years for Mike to get an immigrant visa to come to the U.S. By that time, Debbie is over age 21, so she’s “aged out,” meaning that she can’t immigrate with her father. She’s too old.

In 2002, Congress passed the Child Status Protection Act to keep some children from aging out. The Act has a formula that considers some children’s age to be “frozen” at under 21 so they can still immigrate with their parents. Justice Kagan refers to that as the “Peter Pan” provision. More importantly for purposes of the Supreme Court case, a second provision (8 USC §1153(h)(3)) states that if a derivative beneficiary, like Debbie, ages out then the original petition filed by her U.S. relative

shall automatically be converted to the appropriate category and the alien shall retain the original priority date.

The U.S. Department of Justice’s Board of Immigration Appeals interprets that automatic conversion provision to mean that the priority date is “retained” only if the same petitioner files the new petition. Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009). But the law doesn’t allow for an aunt (Cindy) to file a petition for her niece (Debbie), so the provision doesn’t help them.

In contrast, the Ninth Circuit Court of Appeals reads the automatic conversion provision to allow retention of the priority date by the derivative beneficiary for any subsequent family-based petition. So now that Mike is a permanent resident, he can file a petition for his daughter, Debbie, and the old priority date will apply, meaning that she doesn’t have to go to the back of the line and wait several more years to immigrate. De Osorio v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012).

The government appealed the Ninth Circuit’s decision to the Supreme Court.

The Supreme Court’s Decision

The Justices wrote four separate opinions, none of which attracted a majority vote. But 5 of the 9 justices agreed to reverse the Ninth Circuit’s decision, thereby leaving in place the BIA’s interpretation of the automatic conversion provision.

The first opinion, written by Justice Kagan and joined by Justices Kennedy and Ginsburg, says that the statute is so “through and through perplexing” that only a “masochist” would try to interpret it. Given its ambiguity, Kagan defers to the Board of Immigration Appeals (BIA) to interpret it. She reasoned that since Congress gave the BIA the power to decide cases involving the statute, the Court presumes that Congress intended for the BIA to resolve any ambiguities. Just leave it to the experts at the agency. (This is called the Chevron principle). And under the BIA’s decision, the automatic conversion provision applies only if the new petition is by the same petitioner, which doesn’t apply in cases like Debbie’s.

Chief Justice Roberts, joined by Justice Scalia, agreed to defer to the agency but disagreed with Kagan about which part of the statute was ambiguous.

Justice Sotomayor, joined by Justices Breyer and Thomas, dissented. She sees the statute as “straightforward” and “clear” in allowing retention of the priority date by the derivative beneficiary for any subsequent family-based petition.

And Justice Alito wrote a separate dissent.

In the wake of the Court’s ruling, any relief for these sons and daughters who–unlike Peter Pan–do grow up, may need to come as part of currently stalled comprehensive immigration reform in Congress.

(Read the slip opinion in Scialabba v. Cuellar de Osorio here).