While the Supreme Court historically has afforded considerable deference to the immigration bureaucracy in the interpretation and application of the U.S. immigration laws, it has not blindly deferred to the executive branch.  In Judulang v. Holder (2011),  for example, the Court unanimously rejected the conclusion of the Board of Immigration Appeals (BIA) that a lawful permanent resident was statutorily ineligible for relief from removal, finding that it “flunked” minimal judicial review.  Next week, in Mayorkas v. Cuellar de Osorio, the Court will return to the question of the appropriate deference to be afforded the BIA’s interpretation of the immigration laws.

The case

Limits on the number of visas that can be issued each year means that many non-citizens must wait years in their home countries after applying for a visa before one is in fact issued.  Natives of El Salvador, Rosalina Cuellar de Osorio and her family applied and waited seven years for visas that would allow them to join Rosalina’s mother – a U.S. citizen — in the United States.  Notified that they were next in line, the family also learned that the applicant’s son, who had turned twenty-one while the application was pending and thus was no longer a “child” as defined by the immigration laws, would not be issued a visa.  That result was consistent with the BIA’s interpretation of the statute.

As amended by the Child Status Protection Act, the Immigration and Nationality Act has rules for determining whether children who “age out” can obtain immigrant visas as derivative beneficiaries of eligible family members.  The question before the Court in this case is whether the statutory provisions allowing the issuance of visas to “aged out” children apply to all family immigrant visa categories or, as the BIA ruled, only some of them.

The Court of Appeals

Sitting en banc, the U.S. Court of Appeals of the Ninth Circuit, in an opinion by Judge Mary Murgia that was joined by five judges, concluded that the BIA’s interpretation conflicts with the plain language of the statute and was not entitled to deference.  Judge Milan D. Smith, Jr., with Chief Judge Kozinski and three other judges, disagreed.  They reasoned that, because the statute “is ambiguous . . . and . . . the BIA’s conclusion . . . is reasonable,” it is entitled to deference.  Like the judges on the en banc court, the circuits were split on the question.  The Supreme Court granted certiorari, briefing is complete, and oral argument is set for December 10.

The arguments

The United States contends that, because the statute is ambiguous and the BIA’s interpretation is reasonable, that interpretation is entitled to deference under Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc. (1984). The government further argues that the Ninth Circuit’s interpretation would substantially disrupt the immigrant visa system by allowing certain “aged out” children to secure visas that, due to annual numerical limits, would delay the issuance of visas to other visa applicants.

Agreeing with the Ninth Circuit, the families contend that the statute unambiguously allows all “aged out” beneficiaries for family visas to secure visas when the primary applicant does, so that the BIA’s interpretation is unreasonable and undeserving of deference.  A bipartisan group of current and former senators who voted for the Child Status Protection Act, including Orrin Hatch (R-Utah), John McCain (R-Arizona), and Charles Schumer (D-NY), filed an amicus brief in support of the families.

After more than a decade after the law was passed and after the families’ brief was filed, the federal government issued “policy guidance” on the implementation of the exact statutory provision before the Court. The federal government’s reply brief urged the Court to defer to the positions taken in the November 2013 policy guidance, which not coincidentally are consistent with its advocacy position adopted by the government in the Court.

Possible impact of a decision and a prediction

If the Court accepts the government’s interpretation of the immigration laws, certain non-citizen children who wait for a visa will face the following scenario:  the longer they wait, the more likely it is that they will be kicked out of line through the mere passage of time and “age out” of the process, resulting in the division of families and undermining the immigration laws’ fundamental goal of family reunification.  The U.S. government’s wooden interpretation of the statute sounds strikingly similar to the government’s interpretation of the immigration laws that the Supreme Court unanimously rejected in Judulang.

Posted in Scialabba v. Cuellar de Osorio, Featured, Merits Cases

Recommended Citation: Kevin Johnson, Argument preview: Deference to agency interpretations of the immigration laws, SCOTUSblog (Dec. 5, 2013, 4:39 PM), http://www.scotusblog.com/2013/12/argument-preview-deference-to-agency-interpretations-of-the-immigration-laws/