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Supreme Court Rules that Children who ‘Aged Out’ of Immigration System Won’t Get Special Priority

In the case of  Scialabba v. Cuellar de Osorio the Supreme Court ruled Monday that the vast majority of immigrant children who turn 21 while awaiting approval of their families’ visa applications must restart a process which usually takes years.

The divided court deferred to the Obama administration’s reading of a law passed in 2002 that attempted to bring order to the immigration process, in which there are far more applications than available spots.

The federal agency has said that certain classes of applicants lose their favored status as children when they turn 21 — even if the process started years earlier.

The agency’s interpretation of the law was challenged by Rosalina Cuellar de Osorio, a Salvadoran immigrant who was the principal beneficiary of a petition filed by her mother, a U.S. citizen. Her 13-year-old son, Melvin, was what was called a derivative beneficiary.

The application was approved in 1998, but only a certain number of visas are available each year, and Cuellar de Osorio’s did not come until 2005 — four months after Melvin turned 21. The parents immigrated, but government officials said Melvin no longer qualified as an eligible child, and he was placed at the back of the line, resulting in a wait of several more years.

The U.S. Court of Appeals for the 9th Circuit ruled for the family, but other courts have deferred to the agency, setting up Monday’s decision.

The case required a look into a complex immigration law and divided the court in several ways. Kagan’s opinion was joined by Justices Anthony Kennedy and Ruth Bader Ginsburg. Chief Justice John Roberts and Justice Antonin Scalia agreed with the agency’s interpretation of the law but did not go along with Kagan’s description of the law as having “conflicting” directives.

Justice Sonia Sotomayor, who like Kagan was nominated to the court by President Barack Obama, led the dissent. She said that the law was clearly intended to keep families together and that children who “aged out” during the process should not have to start the process to get their own visas.

Kagan said it was the court’s precedent to defer to agencies when the law is ambiguous and said the government had reasons for its rules. In the “unavoidably zero-sum world of allocating a limited number of visas,” Kagan wrote, admitting some means that others will be left out.

Sotomayor said it was clear that the law’s intent was to treat all those who become 21 during the wait for visas the same and that the court was wrong to “construe the statute as a self-contradiction that was broken from the moment Congress wrote it.”

The decision could affect untold numbers of young immigrants across the country,



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