Beneficiaries of a Visa Petition

De Osorio: Status of “aged-out” Child Aliens Who Are Derivative Beneficiaries of a Visa Petition in 2013

United States views on international law [1] in relation to De Osorio: Status of “aged-out” Child Aliens Who Are Derivative Beneficiaries of a Visa Petition: On January 25, 2013, the United States filed a petition for writ of certiorari in the United States Supreme Court in a case decided by the U.S. Court of Appeals for the Ninth Circuit, Mayorkas v. De Osorio, No. 12-930. In De Osorio, a majority of the en banc court of appeals held that the Board of Immigration Appeals (“BIA” or “Board”) had misinterpreted a provision of the Immigration and Nationality Act (“INA”) which the court deemed unambiguous, 8 U.S.C. § 1153(h)(3). Section 1153(h)(3) addresses how to treat an alien who reaches age 21 (“ages out”), and therefore loses “child” status under the INA. The BIA determined that, if a new petition and petitioner were required, the alien's priority date for a visa would be determined by the date of a subsequently-filed visa petition, and not the date of the original petition as to which the alien was a derivative beneficiary. Under the INA, U.S. citizens and lawful permanent resident aliens may petition for certain family members to obtain visas to immigrate to the United States or to adjust their status in the United States to that of a lawful permanent resident. The INA limits the total number issued annually for each of the family-preference categories, including F3, the category for married sons and daughters of U.S. citizens, and F4, the category for brothers and sisters of U.S. citizens. The citizen or lawful permanent resident files a petition for a family member, who is known as the principal beneficiary. Approval of the petition places the principal beneficiary in line to wait for one of the limited number of visas allotted each year, based on the priority date, which is typically the date the petition was filed.

Some Aspects of De Osorio: Status of “aged-out” Child Aliens Who Are Derivative Beneficiaries of a Visa Petition

A principal beneficiary can also add certain “derivative” beneficiaries, the principal beneficiary's spouse and unmarried children under age 21. By the time the principal beneficiary reaches the front of the line for a visa, however, the “child” derivative beneficiary may have “aged out,” or reached his or her twenty-first birthday. In that event, the aged-out alien cannot claim derivative-beneficiary status. The Child Status Protection Act (“CSPA”), enacted in 2002, addresses the treatment of children under the immigration laws, permitting certain beneficiaries who have reached or passed the age of 21 to nevertheless retain “child” status for purposes of the priority date for visa availability, essentially if the aging out was caused by administrative delay. Section 1153(h)(3), the subject of De Osorio, pertains to aged-out aliens who do not qualify as a “child” even after application of the CSPA's age-reduction formula. It provides that “[i]f 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.”

Developments

The De Osorio case arose out of suits filed by groups of plaintiffs in federal district court claiming that their aged-out derivative beneficiaries had incorrectly been denied relief under Section 1153(h)(3) when the priority dates of the principal beneficiaries' petitions were not used in determining the aged-out aliens' eligibility for visas. The district court granted summary judgment for the U.S. government, finding that the BIA's interpretation of Section 1153(h)(3) was reasonable and entitled to deference. A panel of the Ninth Circuit Court of Appeals affirmed. The panel explained that Section 1153(h) could be read to apply to all derivative beneficiaries, but also could be read to exclude some beneficiaries from its reach: those who aged out of derivative-beneficiary status with respect to petitions that cannot “automatically be converted” to a familypreference category that covers a person age 21 or older because in order to obtain such a preference it would be necessary for a different petitioner to file a new petition. The panel concluded that deference to the BIA's interpretation was appropriate. The court of appeals granted rehearing en banc, vacated the panel opinion, and reversed and remanded in a 6-5 decision. On June 24, 2013, the Supreme Court granted certiorari. The United States filed its brief on September 3, 2013, arguing that the en banc court erred in concluding that Section 1153(h)(3) was unambiguous in covering aged-out former derivative beneficiaries of F3 and F4 petitions and that the BIA's interpretation of the provision should be accorded deference. Excerpts below are from the Summary of Argument section of the brief. The brief in its entirety, as well as the petition for writ of certiorari, are available at (Secretary of State website) state.gov/s/l/c8183.htm. The Supreme Court heard oral arguments in the case on December 10, 2013.

Details

The Ninth Circuit erred in ruling that Section 1153(h)(3) unambiguously extends a special priority status to aged-out former derivative beneficiaries of F3 and F4 immigrant-visa petitions and definitively forecloses the Board's narrower interpretation. Rather, as the Board recognized, Section 1153(h)(3) is sensibly read to grant a special priority only to aliens whose petitions can “automatically be converted” from one “appropriate” family-preference “category” to a different one without the need for a new petitioner and a new petition, 8 U.S.C. 1153(h)(3)—a group that does not include respondents' children (and others like them). The Board's reasonable construction of the provision merits Chevron deference, which is “especially appropriate in the immigration context.” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). First, the Ninth Circuit's conclusion that Section 1153(h)(3) has an unambiguously broad scope cannot be reconciled with the provision's statement that “the alien's petition shall automatically be converted to the appropriate category.” 8 U.S.C. 1153(h)(3). That statement contains a number of discrete requirements: that the petition as to which the alien was a beneficiary prior to aging out is the only petition eligible for conversion; that the transformation of the petition is of a limited nature, consisting only of movement from one valid and appropriate category to another; and that the conversion must take place automatically, without gaps in time or external events like the intervention of a new petitioner.

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All of those requirements are readily satisfied with respect to certain aliens covered by the statutory subsections to which Section 1153(h)(3) refers. But the requirements cannot be met with respect to the kind of petitions at issue in this case—F3 and F4 petitions as to which an aged-out alien was formerly entitled to derivative status as a child. No “appropriate category” exists under which the original F3 or F4 petitioner could petition for an aged-out former derivative beneficiary—that is, the petitioner's grandchild, niece, or nephew. And while the aged-out person's own parent might at some point qualify as a lawful permanent resident who could file an F2B petition for his or her adult son or daughter, the shift from an F3 or F4 petition to a new F2B petition that might possibly be filed at some later point by a different person, depending on how various contingencies are resolved, cannot reasonably be characterized as an “automatic[] *** conver[sion]” of “the alien's petition.” That interpretation of the conversion language of Section 1153(h)(3) is bolstered by the limited way in which Congress used the term “converted” (or its variants) elsewhere in the CSPA itself, as well as by the way that the term “conversion” is used in regulations in place when the CSPA was enacted. In particular, the provision at issue in this case was sandwiched at enactment between other CSPA provisions that use “converted” to describe recategorization of an existing petition based on changed circumstances, not the filing of a new petition or the replacement of the original petitioner with a different one.

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Second, no other aspect of the text of Section 1153(h)(3) supports the Ninth Circuit's ruling. While the first half of that provision refers to Section 1153(h)(1), that reference does not indicate that all petitions covered by Section 1153(h)(1) are necessarily subject to automatic conversion under Section 1153(h)(3). Indeed, it is precisely the tension between the two halves of Section 1153(h)(3)'s single sentence that makes the provision ambiguous, and the Ninth Circuit erred by focusing on the first half and effectively ignoring the succeeding text. In addition, Section 1153(h)(3) cannot reasonably be read to make automatic conversion and priority-date retention separate and independent benefits. The provision applies only if automatic conversion is available, while also clarifying that a converted petition should be given its original priority date rather than a new priority date corresponding to the date of the conversion. Third, the broad interpretation of Section 1153(h)(3) adopted by the Ninth Circuit is inconsistent with the overall statutory scheme because it would substantially disrupt the immigrant-visa system. That interpretation would “not permit more aliens to enter the country or keep more families together,” Pet. App. 35a (dissenting opinion), but would negatively affect many aliens who have been waiting for a visa for a long time by pushing aliens such as respondents' sons and daughters—likely tens of thousands of people—to the front of the line. Because changing priority dates is a “zero-sum game,” ibid., such reshuffling would substantially increase the wait times of others currently in line, with many resulting unfairnesses. The Board's narrower interpretation of Section 1153(h)(3), in contrast, does not create such difficulties. If Congress had intended the kind of far-reaching change that the Ninth Circuit's reading dictates, it would undoubtedly have said so far more clearly.

Resources

Notes

1. De Osorio: Status of “aged-out” Child Aliens Who Are Derivative Beneficiaries of a Visa Petition in Digest of United States Practice in International Law