On June 9, 2014, the Supreme Court of the United States in Scialabba v. DeOsorio, in a 5-4 decision, reversed the decision of the U.S. Court of Appeals for the 9th Circuit, and ruled that the “automatic conversion” clause of the Child Status Protection Act (CSPA) does not provide benefits to most immigrant families.
As a result, tens of thousands of immigrant families will continue to be separated as parents and underaged children immigrate to the U.S., while sons and daughters who turned 21 years of age during the waiting process are forced to remain abroad, separated from their families.
We have explained in previous posts why we believe that the Board’s decision in Matter of Wang is unreasonable and should not be accorded deference. However, the decision of the Supreme Court cannot be appealed.
In its CSPA decision, the Court held that:
“The first clause of §1153(h)(3) states a condition that encompasses every aged-out beneficiary of a family preference petition. The second clause, however, does not easily cohere with the first. It prescribes a remedy that can apply to only a subset of the beneficiaries described in the first clause.”
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It deferred to Matter of Wang, which restricts the persons who may benefit from CSPA’s automatic conversion clause to aged-out beneficiaries of 2A family-based petitions.
The sons and daughters of our plaintiffs, who are beneficiaries of family-based 3rd and 4th preference visa petitions, do not qualify for automatic conversion or even for retention of their priority dates.
As the dissent points out, when the U.S. citizen sister of Norma Uy sponsored her and her family for green cards in 1981, Norma’s daughter Ruth was 2-years-old. However, after waiting in line with her parents for a green card for over 20 years, by the time that the family reached the front of the line, Ruth was over 21 years of age, too old to immigrate together with her family under Matter of Wang.
Going to the back of the 2B line isn’t much of an option.
Because of the numerical restrictions in this category, the length of the 2B line is 28.7 years for persons born in the Philippines and 115.5 years for persons born in Mexico. So, as a practical matter, not receiving credit for the time that they spent waiting in line together with their parents, prevents sons and daughters of immigrants from reuniting with their families in the United States.
Is this really what Congress intended when they passed the Child Status Protection Act in 2002? Not according to the bipartisan group of Senators who submitted an amicus brief to the Supreme Court disputing the government’s interpretation of the law.
Furthermore, what sense does it mean to subtract the time the visa petition was pending from all children of green card applicants, but apply the automatic conversion clause to only a small subset of children?
The petition for Norma Uy was approved the same day that it was filed. The reason that her daughter Ruth was over 21 years old when the priority date was reached is the 23 year waiting time for a sibling born in the Philippines.
What if Norma had a sister who was sponsored on the same day, and the sister had a son born on the same day as Ruth? Suppose the government took 10 years to approve the petition. Under the Supreme Court’s decision, Ruth’s cousin would be able to subtract 10 years from his age when the priority date was reached, and unlike Ruth, he could immigrate with this family.
If the automatic conversion clause, unlike the subtraction clause, only protects a small subset of sons and daughters of immigrants, whether children are able to immigrate together with their families is akin to playing roulette in Las Vegas. Purely a matter of luck!
Now that the Supreme Court has ruled against immigrant families, Congressional action is necessary to restate in the most clear and unambiguous language possible the intent of CSPA’s automatic conversion clause.
Our country should have an immigration system that unites families, not one which needlessly separates them.