Opportunity Lost- Administration Seeks Supreme Court Review of De Osorio

26 Jan

On the same day that the immigration world was abuzz with news that the President would unveil his immigration reform plan next week, the administration filed a brief to preserve the unnecessary family separation caused by its cramped  understanding of the Child Status Protection Act reflected in the Board of Immigration Appeals decision in Matter of Wang.  The juxtaposition of the prospect of common sense immigration reform with the wholly unnecessary appeal of the U.S. Court of Appeals for the Ninth Circuit’s decision in Cuellar de Osorio v. Mayorkas provides significant doubt that the administration really understands the pain caused to American families by the immigration laws and the decisions that the administration takes on a daily basis that make those immigration laws worse than perhaps Congress even intended.  When the administration is more restrictive then Congress, that is a sorry state of affairs.

Enough editorializing.  We can write more about what a disastrous decision this was for the administration once emotions are less raw.  For now, we will focus on what happens.

The administration has filed a petition for a writ of certiorari to the Supreme Court to review the decision of the 9th Circuit.  A writ of certiorari is a statement from the Supreme Court that they will review a case.  “I will review” is the basic Latin translation of certiorari.  By petitioning for the writ, the government is asking the court to review a case.  Review at the Supreme Court is discretionary, meaning that the Supreme Court does not review all cases in which certiorari is sought.  In fact, the Supreme Court rejects the overwhelming majority of cert petitions filed each year.  The Supreme Court grants only about 2% of all petitions for certiorari. That might be comforting, but the odds are improved when the petitioner is the Department of Justice, as it is here.  In addition, other factors, such as the split between circuit courts to have reviewed the CSPA, and the national implications of the decision are factors that indicate that the government’s petition for a writ of certiorari in de Osorio are better than the 2% average.

The Supreme Court will vote on whether to hear the case.  Four justices must vote in the affirmative to hear the case. It is difficult to say when the Supreme Court will rule on whether to grant certiorari.  A good discussion of Supreme Court procedure can be found here. If the Supreme Court denies the petition for certiorari, the decision of the Ninth Circuit will stand.  If the Supreme Court grants the petition, it will receive briefs from the parties and all sorts of other interested people and organizations.  It will hold oral argument.  It is unlikely that the Supreme Court will hold oral argument before October as the Court recesses from June to October.  A decision would likely come about a year from now.

So, there remain two more opportunities to end this struggle.  The first chance is whether the Supreme Court grants cert.  The second is when, if it grants cert, it decides on the case.

There remains substantial hope.  The lawyers handling this are some of the best in the business.  Many other interested parties will weigh in.  Benach Ragland will continue to be a part of this litigation and continue to advocate for sane immigration laws.  Also, cert is rarely granted.  The government still has an uphill road to follow.  This is a setback and not a defeat.

14 Responses to “Opportunity Lost- Administration Seeks Supreme Court Review of De Osorio”

  1. David January 26, 2013 at 3:44 pm #

    No…………….. this is the worst news on new year…. how obama administration could do it? it seems all the hopes gone…………

  2. Prerna Lal (@AQueerDesi) January 27, 2013 at 1:38 pm #

    They have a 98% chance of not getting granted cert. It’s a setback, but we’ve to move ahead with the knowledge that the majority of circuits agree with us, and NO CIRCUIT agrees with them — not even the Second Circuit that found 1153 to be unambiguous. The moment cert gets denied, that is it.

  3. SA January 27, 2013 at 6:33 pm #

    Crossing fingers that Supreme Court denies Cert. This kind of move does not align with any kind of Pro-family policies or attitude. Is it true that SC will decide between 4-8 weeks? Here is another great article that I stumbled across the web:


  4. SA January 27, 2013 at 6:36 pm #

    Wish we could somehow have a bigger media coverage of the De Osorio case and how it nullifies the pro-immigration movements….

  5. fahad al Islam January 28, 2013 at 12:12 am #

    what’s the exact timeline for supreme court to grant or deny cert.pl tell specificly.

    • andresbenach January 28, 2013 at 11:52 am #

      There is no exact timeline. We would expect that they would decide by the recess in June, but they don’t have to.

  6. fahad al Islam January 29, 2013 at 1:19 am #

    then there is no hope for us.

  7. fahad al Islam January 29, 2013 at 1:22 am #

    if this procedure takes so time forbidding us to marry in the f2b category,what can we do.if anything in the latest cir for priority retention

  8. gen May 2, 2013 at 9:29 pm #

    I would like to know when will the supreme court will decide about te writ of certiorari?

    • SA May 2, 2013 at 10:26 pm #

      Its hard to tell as “andresbenach” has mentioned earlier that they could decide by June this year. The appellants are suppose to file an oppose to cert by tomorrow (May 3rd). I am hoping supreme court will decide something this month.

      • SA November 13, 2013 at 2:27 pm #

        The oral argument is scheduled to happen on Dec 10. With all the amici curiae submitted so far, particularly the one(http://shusterman.com/senators-weigh-in-on-cspa-lawsuit.html) from the senators who designed and wrote CSPA in congress, do you think this case became very straight forward and favorable for all the aged outs?

        If argument is on Dec 10, when do you think the court will provide a decision?…..


  9. SA May 21, 2014 at 2:51 pm #


    Any idea why Supreme Court is taking so long to come to a decision? It looks like even some cases argued in February are already decided. Is there a chance that we might lose on this one?


  1. Obama Continues Assault on Young Immigrants As DOJ Appeals Crucial Ninth Circuit Immigration Victory | DreamActivist - January 26, 2013

    […] Opportunity Lost- Administration Seeks Supreme Court Review of De Osorio […]

  2. Prerna Lal on CSPA and de Osorio Update | Lifted Lamp - June 5, 2013

    […] young people from the opportunity to obtain status with their families.  The government has sought review of the de Osorio decision before the United States Supreme Court, which will decide by the end of June, whether it will hear the case.  From Prerna’s […]

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