Supreme Court Tells Many 'Aged Out' Immigrants Waiting for Visas to Start Over

A divided Supreme Court sided with the Obama administration on Monday in a ruling that will effectively mean many "aged out" immigrants will have to wait several more years to obtain a visa. 

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A divided Supreme Court sided with the Obama administration on Monday in a ruling that will effectively mean many "aged out" immigrants will have to wait several more years to obtain a visa. In other words, if a parent applies for a visa for their family, but one of their children turns 21 before they reach the front of the line (the wait can take years), that "aged out" child will probably have to start his or her wait all over again as an adult.

As the Associated Press explains, the case centered around the story of Rosalina Cuellar de Osorio, who applied for a visa with her then-13-year-old kid. When de Osorio finally got an available visa, her son had already turned 21, meaning that he could no longer go along for the ride on his mother's application. He was put at the back of the visa waiting list, and waited years before he was finally granted one. The Supreme Court decision reverses one from the 9th U.S. Circuit Court of Appeals in de Osorio's favor.

In her opinion for the court, Justice Elena Kagan determined that the court had to defer to the interpretation of the law by the Board of Immigration Appeals. That board only grants an exception for an "aged-out" child on a family visa application if, in Kagan's words, "those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent." That only applies to a small portion of "aged out" applicants.

This case is a bit confusing (and Kagan's decision appropriately complex) but here are the basics: there is, in fact, a law designed to protect immigrants from aging out of their own visa eligibility — the  Child Status Protection Act — but Kagan's opinion finds that the law plausibly "halts the flow of time" for only some categories of visa applications. Under the formula used for those the BIA excludes from that protection, Kagan writes that time spent waiting for a visa to become available counts against the growing applicant: "Every day the alien stands in that line is a day he grows older, under the immigration laws no less than in life." There's a provision in the law that could require the government to "automatically convert" those petitions into ones that are more age appropriate, but the BIA has decided that this is not necessarily the case for most "aged out" applicants. Although the Obama administration admits that the law's application is ambiguous, it argued before the court that the BIA's interpretation was reasonable. Kagan agreed:

We might call the provision Janus-faced. Its first half looks in one direction, toward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family preference petition. But as the BIA recognized, and we will further explain, the section’s second half looks another way, to- ward a remedy that can apply to only a subset of those beneficiaries—and one not including the respondents’ offspring. The two faces of the statute do not easily cohere with each other: Read either most naturally, and the other appears to mean not what it says. That internal tension makes possible alternative reasonable constructions, bringing into correspondence in one way or another the section’s different parts. And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme. 

The 5-to-4 split on this case had kind of an unusual breakdown: Justices Kennedy and Ginsburg concurred with Kagan's opinion, and Chief Justice Roberts wrote a separate opinion agreeing that the 9th Circuit's decision should be reversed, but with a different reasoning. Scalia agreed with Roberts, making a majority. Justice Sotomayor wrote the dissent, joined by Justices Breyer and Thomas. Justice Alito wrote a separate dissent. 

This article is from the archive of our partner The Wire.