Immigration

Supreme Court Rules Against Immigrant Children Who 'Age Out' During Visa Process

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U.S. immigration law grants preferential treatment to the foreign relatives of U.S. citizens who are seeking visas. That preferential treatment extends to the children of those relatives. But what happens if the children reach adulthood (turn 21) before the visa process is completed? In a divided ruling issued on Monday, the U.S. Supreme Court said federal officials may send those adult children back to the end of the line.

Credit: White House / Flickr.com

Writing for a plurality in Scialabba v. Cuellar de Osorio, Justice Elena Kagan, joined by Justices Anthony Kennedy and Ruth Bader Ginsburg, held that federal immigration officials were entitled to deference from the Court in their decision to interpret federal law in such a way that it prevented "aged out" children from "piggy-backing on a parent" in the visa process. Writing separately, Chief Justice John Roberts, joined by Justice Antonin Scalia, concurred with that judgment.

In dissent, the unusual alliance of Justices Sonia Sotomayor, Clarence Thomas, and Stephen Breyer took the opposite view. "As judicious as it can be to defer to administrative agencies, our foremost duty is, and always has been, to give effect to the law as drafted by Congress," Justice Sotomayor wrote for those dissenters. And in her view, Congress plainly intended for "aged out" children to retain their "original priority date" in the visa process.

The decision in Scialabba v. Cuellar de Osorio is available here.

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  1. I propose a new Constitutional amendment stating that any judge who uses the term “judicial deference” will be summarily executed.

  2. . But what happens if the children reach adulthood (turn 21) before the visa process is completed?

    They are no longer a child and therefore the compelling reason to give them preference is gone. Why should someone who is no longer a child be entitled to the same preferences as those who are?

    Reason thinks everyone should get in. Good for Reason. But Reason’s preferences say nothing about what the law actually says and in no way mean that the Courts should ignore the law to get the result Reason wants.

    1. Without knowing the specifics of this specific dispute, it seems that this is part of a whole bad trend of deferring to administrators – who are not judges and don’t have judges’ protections against executive pressure – concerning the interpretation of the law.

      It’s U.S. courts which have “judicial power,” not pencil-necked, pencil-pushing bureaucrats. Let judges interpret the law.

      1. Yes, but an almost maniacal devotion to Chevron prevents the current court from doing its duty.

        1. ^?
          My sarc meter’s been redlined too often.

    2. I might argue that, given a years long bureaucratic mess, it makes sense to base it on when they *start* the process. Otherwise you wind up with the situation of “apply before you turn 16, or you’ll never get it. If you came here after you turned 16, sorry, no chance”

      (actual wait time right now is probably in the 12 – 18 months range, although it could be longer. I’m not sure how much of that depends on where they’re coming from at the moment.)

      1. This. Now they can screw people by dragging out the process. Although maybe no the IRS can increase penalty revenue by penalizing people whose tax returns aren’t processed by April 15.

    3. Why should someone who is no longer a child be entitled to the same preferences as those who are?

      What you have in this case is fucking scum bureaucrats negating the law through incompetence.

      It isn’t a question of how old these people are now. It is a question of if they received due process or not. Pushing someone out of a line because they have been in it for years is utter bullshit.

    4. Because it lets the immigration authorities just drag out the process and then leave the immigrant holding the bag. In the SCOTUS case, the visa application was submitted when the child was 2 years old and they didn’t get around to her visa until she was 23.

      1. Unless you can show me a clause in the statute that entitles you to relief for them taking too long, too bad. Change the law. The court is under no obligation, nor should it be to rule on the basis of “that is not fair”. They should rule by what the law says.

        Again, you give preference to children because they can’t live on their own and thus need to be with their parents. Once that is no longer true, there is no reason to give preference anymore.

        You guys don’t like the result. But that doesn’t make it a bad decision. It just means you don’t like the law.

        1. Well that was the point of the case. The plaintiffs were arguing the statute did have such a clause, and the government was arguing it didn’t. The court deferred to the government interpretation under Chevron.

          1. So we aren’t saying “we don’t like the law,” we’re saying we don’t like the court reflexively agreeing with the government’s interpretation rather than giving the statute a fair read without tipping the scales in favor one party.

    5. John, I’d agree with you if it didn’t take 5-10 years.

      If these dimwits could actually execute the tasks they were charged with, then sure, whatever.

      If it takes *you* a fucking decade to do a job for me, then you send me to the back of the line because it took you too long, that’s *your* fault.

  3. our foremost duty is, and always has been, to give effect to the law as drafted by Congress,”

    I thought it was to ensure the law was constitutional.

    1. Constitution, schmonstitution! That old thing? It’s, like, over 100 years old, or something.

    2. All laws passed by Congress are constitutional, or Congress wouldn’t have passed them. Duh.

      1. Judicial deference, bitches!

  4. Ooh, look! Another law where adults between 18 and the day before their 21st birthday are treated differently than all other adults in America.

    The other, of course, is the fedgov infringing on the right of those people to keep and bear arms.

    1. Ooh, look! Another law where adults between 18 and the day before their 21st birthday are treated differently than all other adults in America.

      I saw posted on here once where someone said that “adult” should be the lowest age which someone was tried as an adult for a crime. I like that.

    2. Another law where adults between 18 and the day before their 21st birthday

      Few Americans are adults even when past their 21st birthday. Indeed, if you can’t be expected to provide for your own health care until you are 26 I would suggest very few are adults.

      The problem isn’t denying “adults” their rights. The problem is acting as if being a certain age makes you an “adult” in anything but the most technical sense.

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