Child Status Protection Act - Immigration

Harvard Law Review, November 2014 | Go to article overview

Child Status Protection Act - Immigration


It is settled doctrine that agencies receive Chevron deference (1) when resolving statutory ambiguities. But what happens when a statute contains an apparent conflict between two otherwise clear provisions? Should the agency still receive Chevron deference when it chooses to follow one statutory directive and not the other? Last Term, in Scialabba v. Cuellar de Osorio, (2) a plurality of the Supreme Court held that it is permissible for an agency to choose between two contradictory statutory directives in the Child Status Protection Act (3) (CSPA). The Court's opinions give insight into fundamental questions of judicial deference to agency interpretations: when a statute completely contradicts itself, as CSPA arguably does, any rationale for agency deference rooted in congressional intent begins to erode.

The Immigration and Nationality Act (4) allows U.S. citizens and lawful permanent residents (LPRs) to petition for family members--including spouses, siblings, and children--to obtain visas to enter and reside in the United States. (5) These family members are referred to as "principal beneficiaries," (6) and their visa petitions fall into one of five "family preference" categories (7): F1, the unmarried adult children of U.S. citizens; F2A, the spouses and unmarried minor children of LPRs; F2B, the unmarried adult children of LPRs; F3, the married children of U.S. citizens; and F4, the siblings of U.S. citizens. (8) The number of visas within each family preference category is capped by law, (9) and visas are doled out on a first-come, first-served basis. (10) Principal beneficiaries' close family members -namely, spouses and children under the age of twenty-one--are afforded the "same status, and the same order of consideration." (11) This provision is of critical importance: between bureaucratic delays and the time spent waiting for visas to become available, the immigration process can take decades. As a result, children who were under twenty-one at the time the visa petition was approved by the United States Citizenship and Immigration Services (USCIS) may be substantially older by the time visas become available. Before 2002, families with children who had aged out were forced either to stay in their home countries or to leave those children behind. (12) In an effort to remedy this issue, Congress passed the CSPA in 2002. (13) Section 3 of the CSPA states:

   If the age of an alien is determined under paragraph (1) to be 21
   years of age or older for the purposes of subsections (a)(2)(A) and
   (d) of this section, 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. (14)

This provision is far from limpid. The first half appears to propose broad-based relief by granting relief to all who have been determined to be twenty-one years or older under the statute; the second half, though, arguably appears to provide a remedy that works only for a small subset of the eligible individuals identified in the first half. The crux of the tension is the requirement of automatic conversion: Does the automaticity contemplate a situation in which a new petition could be created with a different principal beneficiary? Or must automatic mean immediate, and without any bureaucratic wrangling?

This was precisely the question confronted by Rosalina Cuellar de Osorio and her son, Melvin. In 1998 Ms. Cuellar de Osorio, a native of El Salvador, became the principal beneficiary of a visa petition filed by her mother, a U.S. citizen. (15) Ms. Cuellar de Osorio hoped to enter the United States and become an LPR; she also hoped to bring Melvin with her as a derivative beneficiary of the visa petition. (16) By the time they reached the front of the visa line in November 2005, Melvin was no longer under the age of twenty-one. (17) The United States consulate told them that, because Melvin had "aged out" of minor derivative beneficiary status, he had to begin the visa application process anew. …

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