Tag Archives: Ninth Circuit

Prerna Lal on CSPA and de Osorio Update

5 Jun

Despite being on leave from Benach Ragland to study for the California bar, Prerna Lal continues to provide valuable insight on the status of the de Osorio case.  De Osorio is the 9th Circuit case in which the court held that the Board of Immigration Appeals and the U.S. Citizenship & Immigration Service had interpreted the Child Status Protection Act wrongly in a way that excluded thousands of 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 blog:

Attorneys for de Osorio filed an excellent reply brief to the DOJ’s petition seeking certiorari on May 24. Usually, the petitioners can file a reply brief within 10 days but it appears that the Department of Justice did not file a reply brief in de Osorio yesterday. They are not obligated to do so. As of now, the government’s petition for review of the Ninth Circuit’s decision has been distributed for conference on June 20. I believe SCOTUS will probably vote to hear this, but I’d love to be wrong.

Empirical analysis suggests that it is rare for the Supreme Court to deny hearing a case when the Solicitor General requests review. While I think that the appeal is without merit, and almost frivolous, it only takes a law clerk to place the certiorari petition in the pool for review and four Supreme Court justices to agree to grant review.

If the Supreme Court grants certioriari, as in, agrees to hear the case, which we will know by June 24, 2013, then the stay of mandate continues, and no one can seek adjustment of status (or a green card) under de Osorio until the Supreme Court hears the case. Persons under the jurisdiction of Fifth Circuit (Texas, Louisiana and Mississippi), who are in removal proceedings, continue to be eligible for relief under Khalid v. Holder. New briefs would be filed, oral arguments held, and the Supreme Court would have until the end of June 2014 to issue a decision.

If the Supreme Court denies review, then the stay on mandate is lifted, and de Osorio becomes law nationwide because it was certified as nationwide class action lawsuit (and hence, there are no circuit split issues).

I hope everyone separated from their parents or adult children, get to see their family members soon.

Much love.

Thanks for keeping this on the front burner, Prerna.  We will continue to keep you informed as the Supreme Court considers the case.

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.

Time to Decide in de Osorio

24 Jan

The Obama administration has until tomorrow January 25, 2013 to file a petition for a writ of certiorari with the U.S. Supreme Court to seek review of the U.S. Court of Appeals for the 9th Circuit decision in Cuellar de Osorio v. Mayorkas, which provided a humane and reasonable interpretation of the Child Status Protection Act.  If the government does not seek review in the Supreme Court, the decision of the 9th Circuit becomes law nationwide and thousands of people will be eligible to apply for adjustment of status using their old priority dates.

If the government does seek review, the case will remain on hold.  However, a petition for a writ of certiorari does not mean that the Supreme Court will take the case.  The Supreme Court does not take every case that comes before it and must agree to hear the case.  If the Supreme Court declines to hear the case, then the 9th Circuit decision becomes law.  If the Supreme Court takes the case, we will need to wait for a ruling from the Court before knowing the fate of the de Osorio class of potential applicants.

We have explained in multiple posts the reasons why the government should let the de Osorio decision stand and how this single act could improve the immigration system for thousands of American families.  In the week of the President’s inauguration with its soaring hopes and promises, the President has an immediate opportunity to translate those words into policy and law.  Let’s hope he takes it.

Mr. President, Let de Osorio Stand!

19 Dec

As ideas for immigration reform take shape, there is one thing that the administration could do without lifting a finger that would help thousands of immigrants.  This benefit would actually require the government to refrain from doing something.  If the government decides not to appeal the decision of the U.S. Court of Appeals  for the 9th Circuit in Cuellar de Osorio v. Mayorkas, the Court’s decision would stand and thousands of young immigrants would be able to apply to adjust their status after waiting years for that opportunity.

As we discussed before, in September 2012, the U.S. Court of Appeals for the 9th Circuit held that the Board of Immigration Appeals had misinterpreted the Child Status Protection Act (CSPA) in a way that excluded thousands of young immigrants from eligibility for immediate residence.  The issue arose in cases where a child was included as a derivative of an immigrant petition filed on behalf of their parent.  Due to backlogs, that child often aged-out of eligibility by turning 21 before the parent received her green card.  In that case, many parents, subsequent to receiving their residence, filed I-130 immigrant petitions on behalf of their children.  However, those children were sent to the back of the line of the unmarried sons and daughters of permanent residents, despite having already waited for years with their parents.  The CSPA attempted to remedy this by allowing these derivative children to recapture their old priority dates when their parents or an employer later sponsored them.  In Matter of Wang, the Board unnecessarily limited the class of derivative beneficiaries who could recapture their priority dates, basically undermining the congressional fix in the CSPA.  Now the 9th Circuit has joined the 5th Circuit in rejecting Matter of Wang and the government must decide how it will react to these rulings.

So far, their reaction is not encouraging.  The government filed and the 9th Circuit granted an unopposed motion to stay the mandate, which holds up the effectiveness of the de Osorio ruling.  The mandate has been stayed until December 26, 2012.  At the same time, the government filed a request to extend its time to file a Petition for a Writ of Certiorari to the Supreme Court, which is a request that the Supreme Court hear the case.  Their petition to the Supreme Court would also be due on December 26, 2012.  However, yesterday, the government filed another request to stay the mandate until January 25, 2013 to give the government more time to consider whether to file a cert. petition to the Supreme Court.  We expect that the court will grant this motion as well.  So, by January 25, 2013, we will know whether the case is over or whether it will go on.

The administration does not need to seek review.  It is hard to see what the compelling government interest is in demanding that these aged-out beneficiaries continue to wait.  An analysis of the backlogs revealed that certain Mexican nationals might need to wait over 100 years for a visa under the Matter of Wang interpretation.  By deciding to let the de Osorio decision stand, the government will demonstrate that it is firmly on the side of keeping families together, rational  immigration policy and that it is abandoning its practice of fighting to win for winning’s sake, regardless of the social costs.  As the administration begins the process of reviewing our immigration laws, it must look closely at the litigation positions it takes and ask whether those positions are consistent with humane and compassionate immigration policy.  Appealing de Osorio is not and the administration should leave the decision alone.

Many of the same factors that drive support for DREAMers can equally be said about those who would benefit from de Osorio.  de Osorio beneficiaries applied for residence, but due to processing delays and backlogs, did nothing more than grow up.  They did what they were supposed to do.  Their families have now received residence and they have been left behind.  Despite Congressional intent to help these beneficiaries, an interpretation by the BIA left them out in the cold.   The Obama administration now has a chance to fix this and give effect to the original intent of Congress to help these immigrants and to help keep families together.

The government has just over a month to decide whether to appeal de Osorio to the Supreme Court.  What it chooses to do will say a lot about the truth behind the rhetoric.

Ninth Circuit Provides Hope to Young Immigrants

26 Sep

Great news out of the U.S. Court of Appeals for the 9th Circuit, which ruled today that a Board of Immigration Appeals interpretation of the Child Status Protection Act (CSPA), improperly excluded a large class of immigrants from being eligible for immediate residence.  Rosalina Cuellar de Osorio challeged the BIA’s interpretation of the CSPA in Matter of Wang before the 9th Circuit.  She initially lost before a three judge panel, but the court sitting en banc agreed to rehear the case.  A number of organizations submitted briefs in support of Cuellar de Osorio’s case, including DreamActivist, a nationwide action committee for undocumented youth.  DreamActvist was represented by Benach Ragland.

Today, September 26, 2012, the Ninth Circuit overturned Matter of Wang in Cuellar de Osorio v. Mayorkas:

“We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.”

With a 6-5 en banc split, the Ninth Circuit now joins the Fifth Circuit in rejecting the position of the BIA. It will allow many young people who were the derivative beneficiaries of previous petitions to apply for a green card, if they were aged-out of the process when they turned 21. This is great news for many young people, including many Dreamers, who would no longer have to face lengthy separation from their families and deportation from their homes.

Congress passed the Child Status Protection Act (CSPA), Pub L. No. 107-208, 116 Stat. 927 (2002) to address the complex problem of aging out of family and employment based petitions. In short, due to massive visa backlogs and administrative delays, adult children were aging out of approved visa petitions upon turning 21. In many cases, these petitions were filed on behalf of their parents by employers or other family members when they were much younger. CSPA was supposed to fix this problem in a myriad of ways, first by a complex mathematical formula, which deducted the time it took to adjudicate the petition away from the age of the adult child and second, by allowing those who aged-out even after the application of the formula, to retain the original priority date from the original petition that was filed on behalf of them, and apply it to a new category. This is spelled out quite unambiguously in Section 203 (h)(3):

“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), 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.”

USCIS did not issue regulations on this matter at first, and issued a number of contrary decisions. In some cases, aged out adult children were approved. In other cases, they were denied a green card. The Board of Immigration Appeals also did not know what to make of the statute and issued a number of contrary rulings. Compare Matter of Maria T. Garcia in 2006 with Matter of Wang in 2009, where the BIA restricted the application of Section 203 (h)(3) to applicants in the F-2A category, finding no evidence that “Congress intended to create a mechanism to avoid the natural consequence of a child aging out of a visa category because of the length of the visa line.” This decision automatically doubles the number of years a derivative beneficiary has to wait in line for a green card, and in some cases, a derivative may never be able to get a green card.

On May 11, 2012, Benach Ragland filed an amicus curiae (“friend of the court”) brief on behalf of DreamActivist with the U.S. Courts of Appeals for the Ninth Circuit in Cuellar de Osorio v. Mayorkas asking the Court to reject the Board of Immigration Appeals decision in Matter of Wang, which unnecessarily limited the class of individuals who could gain the benefits of the Child Status Protection Act (CSPA).  This represented the first time that a Court heard directly from Dreamers on a question of statutory interpretation and public policy.

The impact of this case is felt personally in the Benach Ragland family.  Our law clerk, Prerna Lal, is one individual who suffered under the BIA’s intepretation under Matter of Wang.  In 2001, Prerna’s grandmother filed an immigrant petition on behalf of her daughter, Prerna’s mother.  As a child, Prerna was covered under this petition.  However, due to lengthy backlogs in this category, by the time Prerna’s mother was able to seek residence in 2009, Prerna had already turned 21 and had “aged-out” of eligibility as she was no longer a “child” under the immigration laws.  Prerna’s mother filed a petition for Prerna, but the CIS, pursuant to Matter of Wang, refused to acknowledge the 2001 filing date.  Thus, under her mother’s petition, Prerna would not be able to seek her residence until approximately 2017, despite the CSPA and the fact that Prerna was originally covered in 2001.  As Prerna’s case is in San Francisco, CA, the heart of the 9th Circuit, this decision makes her eligible to apply for residence using her 2001 date assuming that the decision stands.

It is unclear whether the Government will ask for cert. from the Supreme Court. It has 90 days to request cert. If asked for cert, the Supreme Court may or may not deny it. If it denies cert, the decision will still be law in the 9th and 5th circuit. Young people who have been aged out and thrust into removal proceedings may be able to adjust their status before an Immigration Judge under the jurisdiction of the Ninth and Fifth Circuits. In due time, the USCIS may also issue new regulations allowing every derivative beneficiary of a family-based or employment based to retain their original priority date and adjust their status to lawful permanent residents without much wait.