No 'Leapfrogging' for Visa Applicants Who Aged Out

     WASHINGTON (CN) - Children who "aged out" of their eligibility for family visas because of processing delays failed to persuade the Supreme Court on Monday that they deserve priority for adult visas.
     The case at hand stems from F3 and F4 petitions filed for the married children of U.S. citizens, or those citizens' siblings, respectively.
     Each of those beneficiaries also had a son or daughter who, on the date of filing the petition, was under 21 and thus qualified as a deriva­tive beneficiary.
     Those sons and daughters each turned 21 by the time visas became available, however, even after accounting for age adjustments available under Section 1153(h)(1) of the Immigration and Nationality Act.
     When the new legal permanent residents (LPRs) filed F2B petitions - the ones for unmarried, adult sons or daughters - they argued that Section 1153(h)(3) gave their petitions the same priority date as the original F3 and F4 petitions once had.
     The office of U.S. Citizenship and Immigration Services instead gave the new F2B petitions current priority dates, meaning that the sons and daugh­ters could not leapfrog over others in the F2B line.
     Their challenge eventually went to the Board of Immigration Appeals, which found that the Child Status Protection Act (CSPA) does not grant a remedy to all aliens who have out­paced the immigration process.
     A federal judge in California upheld that determination, and two consolidated cases led by Rosalina Cuellar de Osorio in turn went before the 9th Circuit.
     Though a three-judge panel initially affirmed, the en banc court reversed, 6-5, in 2012.
     It said "the CSPA unambiguously grants automatic conversion and priority date retention to [all] aged-out derivative benefi­ciaries."
     After taking up the case last year, a plurality of the Supreme Court found otherwise Monday, deeming the statutory construction by the immigration appeals board "permissible."
     At issue is the lack of a requirement under §1153(h)(3) to distinguish among aged-out beneficiaries.
     "That is because, as we explained earlier, the two halves of §1153(h)(3) face indifferent directions," according to the lead opinion by Justice Elena Kagan. "Section 1153(h)(3)'s first part - its conditional phrase - encompasses every aged-out beneficiary of a family preference petition, and thus points toward broad-based relief. But as just shown, §1153(h)(3)'s second part - its remedial prescription - applies only to a narrower class of beneficiaries: those aliens who naturally qualify for (and so can be 'automati­cally converted' to) a new preference classification when they age out. Were there an interpretation that gave each clause full effect, the board would have been required to adopt it. But the ambiguity those ill-fitting clauses create instead left the board with a choice - essentially of how to reconcile the statute's different commands. The board, recognizing the need to make that call, opted to abide by the inherent limits of §1153(h)(3)'s remedial clause, rather than go beyond those limits so as to match the sweep of the section's initial condition. On the board's reasoned view, the only beneficiaries entitled to statutory relief are those capable of obtaining the remedy designated. When an agency thus resolves statutory tension, ordinary prin­ciples of administrative deference require us to defer." (Parentheses in original.)
     Justice Anthony Kennedy and Ruth Bader Ginsburg joined Kagan in full, but Chief Justice John Roberts, joined by Justice Antonin Scalia, concurred only in judgment.
     They stressed the error in holding "that deference is warranted because of a direct conflict between these clauses.''
     "Direct conflict is not ambiguity, and the reso­lution of such a conflict is not statutory construction but legislative choice," Roberts wrote. "Chevron is not a license for an agency to repair a statute that does not make sense."
     The 1984 decision Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. is the cornerstone in Supreme Court precedent for agency deference.
     Justice Samuel Alito wrote the first of two dissents, which emphasizes briefly that there was an "appropriate category" for the conversion of petitions by the children of the beneficiaries.
     Though "Section 1153(h)(3) is brief and cryptic," Alito deemed it "clear on at least one point: 'If the age of an alien is determined under [§1153(h)(1)] to be 21 years of age or older ... , the alien's petition shall automatically be con­verted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition." (Emphasis added by judge).
     "The board was not free to disregard this clear statutory command," Alito wrote.
     Justices Stephen Breyer and Clarence Thomas joined the second dissent written by Justice Sonia Sotomayor.
     They said the plurality ignores "obvious ways in which §1153(h)(3) can operate as a coherent whole and instead construe the statute as a self-contradiction that was broken from the moment Congress wrote it.'
     "In rushing to find a conflict within the statute, the plurality neglects a fundamental tenet of statutory inter­pretation: We do not lightly presume that Congress has legislated in self-contradicting terms," Sotomayor wrote. "That is especially true where, as here, the conflict that Congress supposedly created is not be­tween two different statutes or even two separate provi­sions within a single statute, but between two clauses in the same sentence."
     "The plurality contends that deference is appropriate here because, in its view, 8 U.S.C. §1153(h)(3)'s two clauses are 'self-contradictory,'" the 22-page dissent states later. "But far from it being unworkable (or even difficult) for the agency to obey both clauses, traditional tools of statutory construc­tion reveal that §1153(h)'s clauses are entirely compatible."
     A straightforward reading would let the statute function coherently, but the court here has advanced a contravening construction, the dissent continued.
     "Given the 'zero-sum world of allocating a limited number of visas,' Congress could have required aged-out children like Ruth Uy to lose their place in line and wait many additional years (or even decades) before being reunited with their parents, or it could have enabled such immigrants to retain their place in line - albeit at the cost of extending the wait for other immi­grants by some shorter amount," Sotomayor concluded. 'Whatever one might think of the policy arguments on each side, however, this much is clear: Congress made a choice. The plurality's contrary view - that Congress actually delegated the choice to the BIA in a statute that unambiguously encompasses aged-out children in all five preference categories and commands that they 'shall retain the[ir] original priority date[s],' - is untenable."