Scialabba v. De Osorio

• Citation: 573 U.S. 41,134 S.Ct. 2191,189 L.Ed.2d 98
• Decision Date: 09 June 2014
• Docket Number: No. 12–930.,12–930.
• Parties: Lori SCIALABBA, Acting Director, United States Citizenship and Immigration Services, et al., Petitioners v. Rosalina CUELLAR DE OSORIO et al.
• Court: U.S. Supreme Court

573 U.S. 41

134 S.Ct. 2191

189 L.Ed.2d 98

Lori SCIALABBA, Acting Director, United States Citizenship and Immigration Services, et al., Petitioners

v.Rosalina CUELLAR DE OSORIO et al.

No. 12–930.

Supreme Court of the United States

Argued Dec. 10, 2013.

Decided June 9, 2014.

Elaine J. Goldenberg, for Petitioners.

Mark C. Fleming, Boston, MA, for Respondents.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for Petitioners.

Paul R.Q. Wolfson, Megan Barbero, Christina Manfredi McKinley, Ari Holtzblatt, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., Jason D. Hirsch, Wilmer Cutler Pickering, Hale and Dorr LLP, New York, NY, Mark C. Fleming, Counsel of Record, Harriet A. Hoder, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, Carl Shusterman, Amy Prokop, Law Offices of Carl Shusterman, Los Angeles, CA, Nancy E. Miller, Robert L. Reeves, Eric R. Welsh, Reeves & Associates, Pasadena, CA, for Respondents.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Elaine J. Goldenberg, Assistant to the Solicitor General, Elizabeth J. Stevens, Gisela A. Westwater, Attorneys, Department of Justice, Washington, D.C., for Petitioners.

Justice KAGAN announced the judgment of the Court and delivered an opinion, in which Justice KENNEDY and Justice GINSBURG join.

Under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., citizens and lawful permanent residents (LPRs) of the United States may petition for certain family members—spouses, siblings, and children of various ages—to obtain immigrant visas. Such a sponsored individual is known as the petition's principal beneficiary. In turn, any principal beneficiary's minor child—meaning an unmarried child under the age of 21—qualifies as a derivative beneficiary, "entitled to the same [immigration] status" and "order of consideration" as his parent. § 1153(d). Accordingly, when a visa becomes available to the petition's principal beneficiary, one also becomes available to her minor child.

But what happens if, sometime after the relevant petition was filed, a minor child (whether a principal or a derivative beneficiary) has turned 21—or, in immigration lingo, has "aged out"? The immigration process may take years or even decades to complete, due in part to bureaucratic delays associated with reviewing immigration documents and in (still greater) part to long queues for the limited number of visas available each year. So someone who was a youngster at the start of the process may be an adult at the end, and no longer qualify for an immigration status given to minors. The Child Status Protection Act (CSPA), 116 Stat. 927, ensures that the time Government officials have spent processing immigration papers will not count against the beneficiary in assessing his status. See 8 U.S.C. § 1153(h)(1). But even with that provision, the beneficiary may age out solely because of the time he spent waiting in line for a visa to become available.

The question presented in this case is whether the CSPA grants a remedy to all aliens who have thus outpaced the immigration process—that is, all aliens who counted as child beneficiaries when a sponsoring petition was filed, but no longer do so (even after excluding administrative delays) by the time they reach the front of the visa queue. The Board of Immigration Appeals (BIA or Board) said no. It interpreted the CSPA as providing relief to only a subset of that group—specifically, those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent. We now uphold the Board's determination as a permissible construction of the statute.

I

A

An alien needs an immigrant visa to enter and permanently reside in the United States. See § 1181(a).¹ To obtain that highly sought-after document, the alien must fall within one of a limited number of immigration categories. See §§ 1151(a)-(b). The most favored is for the "immediate relatives" of U.S. citizens—their parents, spouses, and unmarried children under the age of 21. See §§ 1151(b)(2)(A)(i), 1101(b)(1). Five other categories—crucial to this case, and often denominated "preference" categories—are for "family-sponsored immigrants," who include more distant or independent relatives of U.S. citizens, and certain close relatives of LPRs.² Specifically, those family preference categories are:

F1: the unmarried, adult (21 or over) sons and daughters of U.S. citizens; F2A: the spouses and unmarried, minor (under 21) children of LPRs;

F2B: the unmarried, adult (21 or over) sons and daughters of LPRs;

F3: the married sons and daughters of U.S. citizens;

F4: the brothers and sisters of U.S. citizens. §§ 1151(a)(1), 1153(a)(1)-(4).³

(A word to the wise: Dog-ear this page for easy reference, because these categories crop up regularly throughout this opinion.)

The road to obtaining any family-based immigrant visa begins when a sponsoring U.S. citizen or LPR files a petition on behalf of a foreign relative, termed the principal beneficiary. See §§ 1154(a)(1)(A)(i), (a)(1)(B)(i)(I), (b); 8 CFR § 204.1(a)(1) (2014). The sponsor (otherwise known as the petitioner—we use the words interchangeably) must provide U.S. Citizenship and Immigration Services (USCIS) with evidence showing, among other things, that she has the necessary familial relationship with the beneficiary, see §§ 204.2(a)(2), (d)(2), (g)(2), and that she has not committed any conduct disqualifying her from sponsoring an alien for a visa, see, e.g., 8 U.S.C. § 1154(a)(1)(B)(i)(II) (barring an LPR from submitting a petition if she has committed certain offenses against minors). USCIS thereafter reviews the petition, and approves it if found to meet all requirements. See § 1154(b).

For a family preference beneficiary, that approval results not in getting a visa then and there, but only in getting a place in line. (The case is different for "immediate relatives" of U.S. citizens, who can apply for and receive a visa as soon as a sponsoring petition is approved.) The law caps the number of visas issued each year in the five family preference categories, see §§ 1151(c)(1), 1152, 1153(a)(1)-(4), and demand regularly exceeds the supply. As a consequence, the principal beneficiary of an approved petition is placed in a queue with others in her category (F1, F2A, or what have you) in order of "priority date"—that is, the date a petition was filed with USCIS. See § 1153(e)(1) ; 8 CFR § 204.1(b) ; 22 CFR 42.53(a) (2013). Every month, the Department of State sets a cut-off date for each family preference category, indicating that visas (sometimes referred to by "visa numbers") are available for beneficiaries with priority dates earlier than the cut-off. See 8 CFR § 245.1(g)(1) ; 22 CFR § 42.51(b). The system is thus first-come, first-served within each preference category, with visas becoming available in order of priority date.

Such a date may benefit not only the principal beneficiary of a family preference petition, but also her spouse and minor children. Those persons, labeled the petition's "derivative beneficiar[ies]," are "entitled to the same status, and the same order of consideration" as the principal. 8 U.S.C. §§ 1153(d), (h). Accordingly, when a visa becomes available for the principal, one becomes available for her spouse and minor children too. And that is so even when (as is usually but not always the case) the spouse and children would not qualify for any family preference category on their own. For example, the child of an F4 petition's principal beneficiary is the niece or nephew of a U.S. citizen, and federal immigration law does not recognize that relationship. Nonetheless, the child can piggy-back on his qualifying parent in seeking an immigrant visa—although, as will be further discussed, he may not immigrate without her. See 22 CFR § 40.1(a)(2) ; infra, at 2198, 2206 – 2207, 2212 – 2213.

Once visas become available, the principal and any derivative beneficiaries must separately file visa applications. See 8 U.S.C. § 1202(a). Such an application requires an alien to demonstrate in various ways her admissibility to the United States. See, e.g., § 1182(a) (1)(A) (alien may not have serious health problems); § 1182(a)(2)(A) (alien may not have been convicted of certain crimes); § 1182(a)(3)(B) (alien may not have engaged in terrorist activity). Notably, one necessary showing involves the U.S. citizen or LPR who filed the initial petition: To mitigate any possibility of becoming a "public charge," the visa applicant (whether a principal or derivative beneficiary) must append an "affidavit of support" executed by that sponsoring individual. §§ 1182(a)(4)(C)(ii), 1183a(a)(1). Such an affidavit legally commits the sponsor to support the alien, usually for at least 10 years, with an annual income "not less than 125% of the federal poverty line." § 1183a(a)(1)(A); see §§ 1183a(a)(2)-(3).

After the beneficiaries have filed their applications, a consular official reviews the documents and, if everything is in order, schedules in-person interviews. See § 1202(h). The interviews for a principal and her children (or spouse) usually occur back-to-back, although those for the children may also come later.⁴ The consular official will determine first whether the principal should receive a visa; if (but only if) the answer is yes, the official will then consider the derivatives' applications. See 22 CFR §§ 40.1(a)(2), 42.62, 42.81(a). Provided all goes well, everyone exits the consulate with visas in hand—but that still does not make them LPRs. See 8 U.S.C. § 1154(e). Each approved alien must then travel to the United States within a set time, undergo inspection, and confirm her admissibility. See §§ 1201(c), 1222, 1225(a)-(b). Once again, a derivative's fate is tied to the principal's: If the principal...