02 July 2013

Law in Plain English: Mayorkas v. Cuellar de Osorio

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogMayorkas v. Cuellar de Osorio

Argument: Dec 10 2013 (Aud.)

Discussion: The Child Status Protection Act (CSPA) provides rules for determining whether particular aliens qualify as “children” so that they can obtain visas or adjustments of their immigration status as derivative beneficiaries of sponsored family member immigrants (also known as “primary beneficiaries”). Cuellar de Osorio's citizen mother filed a petition for a visa (for a married daughter of a citizen) on her behalf in May 1998. Cuellar de Osorio's son, who was then 13, was listed on the petition as a derivative beneficiary. Cuellar de Osorio's visa was approved in June 1998, but her priority date did not become current until November 2005. By then, her son was 21 and as a result was ineligible for a derivative visa. The United States Citizen and Immigration Services (USCIS) denied the request for priority date retention under the CSPA. The District Court ruled in favor of USCIS, but the Ninth Circuit reversed, concluding that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries.

Issue: The questions before the Court are (1) whether Section 1153(h)(3) of the Immigration and Nationality Act–which provides rules for determining whether particular aliens qualify as “children” so that they can obtain visas or adjustments of their immigration status as derivative beneficiaries of sponsored family member immigrants–unambiguously grants relief to all aliens who qualify as “child” derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and (2) whether the Board of Immigration Appeals reasonably interpreted Section 1153(h)(3).

Holding: TBD
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