Think Progress – by Nicole Flatow
In 1981, Norma Uy was deemed eligible for an immigration visa by way of her sister, a U.S. Citizen. At the time, her two-year-old daughter also applied for a visa through a provision of U.S. immigration law that allows the children of visa applicants to also be considered. The petition was approved the very same day it was filed. But it wasn’t until 21 years later that Norma’s name got to the top of the visa waiting list and she was granted legal permanent residence. By that point, her daughter Ruth was 23 years old, and wasn’t permitted to immigrate with her mother, under an agency interpretation of federal law that deemed Ruth no longer a “child.” Norma was forced to choose between leaving her daughter behind and attempting to bring her over later, or not going at all after a 21-year wait.
She chose the former option, and joined several other parents in a similar position who challenged the policy as a misinterpretation of federal law. On Monday, the U.S. Supreme Court upheld an immigration court’s 2008 ruling that facilitated this result, in a splintered opinion that aligned unlikely justices engaged in messy statutory interpretation. The ruling affects an estimated thousands of individuals each year who “age out” of immigration eligibility after years on a waiting list.
In her plurality opinion, Justice Elena Kagan counseled that only “masochists” would want to read the provision the justices sought to interpret, noting the immense web of interlocking rules and murky language involved in the statute. But the take-away of Monday’s ruling is clear: some children who “age out” of the visa application process after years of waiting will be shut out unless the Bureau of Immigration Appeals (BIA) or Congress take action.
Several immigration groups and a bipartisan coalition from Congress argued that whether or not the language was murky, the intent of Congress was not. It passed the Child Status Protection Act (CSPA) for the “unmistakable purpose” of curing the “harsh and unmistakable effects” of allowing immigrants to “age out” while awaiting a visa, and to keep families together rather than tearing them apart.
“Before the CSPA’s passage, an alien child who was the derivative beneficiary of a visa petition filed for his parent, but who turned 21 before his parent received that visa, was required to begin the application process anew, losing all credit for the many years spent waiting in line,” the current and former members of Congress involved in passing the law wrote in an amicus brief. “Because of this rule, families whose children turned 21 before a visa became available faced an impossible choice: either stay with their child and give up the opportunity for a new life in this country, or immigrate to the United States and leave behind any children who had turned 21.
“To correct this problem, Congress, with overwhelming bipartisan support and the signature of President George W. Bush, passed the CSPA, which allows alien children who turned 21 before a visa became available to retain their priority date for purposes of a new sponsorship category applicable to adults. In this way, Congress sought to give credit to immigrant children for the years they had waited for a visa and preserve unity among immigrant families.”
Justice Sonia Sotomayor wrote for three dissenting justices who took a similar position, holding that Congress’ position on “aging out” was unambiguous (a fourth justice, Samuel Alito, wrote a separate dissent). But the plurality held that the law was so unclear that it could be subject to more than one interpretation.
The ruling hinged on a fundamental principle of judicial review: when courts are reviewing an agency’s interpretation of a statute, they grant tremendous deference to the agency. In this case, Kagan held that because the statute was so ambiguous, she could not reasonably dispute that the BIA’s interpretation was plausible.
Now, it is up to Congress to clarify its intent, as comprehensive immigration reform has stalled in the House for almost a year.