A fractured U.S. Supreme Court ruled last week that children who “age out” of certain immigration categories must move to the back of the line and reapply in a new visa category, despite a federal law intended to protect such children. The ruling flies in the face of real life―U.S. immigration system’s delays are so long that families can wait decades to finally get to their chance to receive a visa.
Individuals who are over 21 are not considered “children” for immigration purposes and cannot be included on a parent’s immigration application. However, the Child Status Protection Act (CSPA) allows children who turn 21 while an immigration petition is pending to continue to be considered “children.” But, the Board of Immigration Appeals (BIA) has said that children included on a parent’s visa petition do not benefit from the CSPA and must restart the immigration process from the beginning if they turn 21 before their parent’s petition is granted. Only children applying in their own right may preserve their place in line despite turning 21.
The case, Scialabba v. Cuellar de Osario (formerly known as Mayorkas v. Cuellar de Osorio), turned on a question of statutory interpretation. A U.S. Supreme Court majority ruled that in the absence of clarity in the law, it must defer to the BIA’s restrictive interpretation. Though the question at issue seems arcane, the impact on immigrant families will be very real.
The U.S. immigration system is plagued by long wait times and delays. In some cases, people who applied in 1990 are only just now receiving visas. Families applying together, even with very young children, can easily end up waiting for visas until after their children turn 21. Through no fault of their own, the adult children are now not eligible to immigrate on the original petition. As a result of this Supreme Court decision, the adult children must reapply in a new category, separating the family and adding years or even decades to be reunited with family.
“The BIA has read the statute to include some but not all aged-out children,” said Deepinder Mayell, director of The Advocates for Human Rights’ Refugee and Immigrant Program. “This results in the unwarranted separation of families who have waited for many years to lawfully immigrate to the United States. Although the Circuit Court disagreed with the BIA’s application of the law, the Supreme Court deferred to the executive branch and the BIA to interpret immigration law.”
In The Advocates for Human Rights new groundbreaking report, Moving from Exclusion to Belonging: Immigrant Rights in Minnesota Today, immigrants identified the slow pace of the immigration system as a serious problem. “Legal immigration takes too long because of all the bureaucracy,” noted one citizen in the report.
A permanent resident said he was looking forward to becoming a citizen. But “to get there, we had to go through an asylum case and it took thirteen years to get there,” the person said. “The reason is because, every time we would win a case, the government immigration attorney would appeal and fight more, we would have to re-file our case, which meant spending more money.” This individual summed up his experience by saying, “it is kind of a reminder to those involved about the mistakes in the immigration system.”
Because of lengthy delays, one asylee whose case processed for 11 years said he had the “worst opinion that could exist of the immigration system and the people that work there that anyone could ever have. Because we were almost deported because of an error that immigration made and they never acknowledged their fault.”
Long wait times and the resulting family separation are consequences of immigration laws stretched to their breaking point. The Mayorkas case shows the limits of a piecemeal approach to reform. Single statutes cannot correct all the flaws of the system, inevitably leaving families and communities to languish.
By: Madeline Lohman, program associate with The Advocates for Human Rights’ Research, Education and Advocacy Program and a major contributor to Moving from Exclusion to Belonging: Immigrant Rights in Minnesota Today.