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Supreme Court Decision on CSPA 203(h)(3) Case Expected Soon

We have been expecting a decision from the Supreme Court on the nationwide class action lawsuit regarding Section 203(h)(3) Priority Date Retention for several weeks now, and the wait may soon be over. Mayorkas v. DeOsorio is likely to be the only merits decision in an immigration case by the Court in its 2013 Term and a ruling is expected by the end of June.

The issue to be resolved in Mayorkas v. DeOsorio is whether children who turned 21 (aged out) and were left behind when their parents immigrated to the United States should be entitled to receive “credit” for the time they have stood in line waiting, or whether they must they go to the back of the line and start the process all over again. Starting the process again would be devastating for many families, causing a wait of between 6-21 years, depending on the beneficiary’s country of birth.

The factual scenario involving Rosalina DeOsorio—the lead plantiff in the CSPA lawsuit—is one which is similar to that of many immigrants. In 1998, Rosalina’s U.S. Citizen mother filed an immigration petition on behalf of Rosalina and her 13-year-old son. However, by the time that the applicable priority date became current, Rosalina’s son had “aged out” by turning 21-years-old. Under the plain wording of Section 203(h)(3) of the Immigration and Nationality Act (INA), Rosalina’s son’s category “shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” In other words, Rosalina’s son should get credit for the time spent waiting for the priority date to become current, thus permitting his immigration without further delay.

Allowing Rosalina’s son credit for the years that he stood in line together with his mother, as provided for in Section 203(h)(3), is consistent with existing immigration laws and regulations regarding priority date retention when a person moves from one preference category to another and ensures that the system is fair and just.

In Mayorkas v. DeOsorio the government contends that PD retention is improper as the language of the statute is not clear. However, all three U.S. Courts of Appeals that have ruled on this issue have held that the wording of Section 203(h)(3) is clear and unambiguous. Two of the three circuits, the 5th and the 9th Circuit, ruled for the immigrants, while the 2nd Circuit ruled for the government. Meanwhile, the Board of Immigration Appeals (BIA), in its 2009 Matter of Wang decision, greatly restricted automatic priority date conversion under section 203(h)(3), overruling its previous non-precedent decision in Matter of Garcia in holding that the statutory provisions allowing the issuance of visas to “aged out” children apply to only some family immigrant visa categories, but not all. Now, it is up to The Highest Court in the Land to rule.

Mayorkas v. DeOsorio has been making its way to the nine Justices of the Supreme Court since 2008, and was the last case argued before the Court in December 2013 that has not yet been decided. Tens of thousands of potential beneficiaries look forward to the Court’s ruling as to whether Congress could have, in passing the Child Status Protection Act—whose purpose was family unity—intended that child beneficiaries that waited in line for years lose their place and have to start all over.

According to the Court’s official calendar, the final day of the current term is June 30, 2014—which means that, barring unanticipated circumstances, we should know how the justices intend to resolve the case by then. The Court next releases orders and opinions on Monday, June 9.

 

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