Today, the Supreme Court issued its five-to-four decision in Scialabba v. Cuellar de Osario (formerly known as Mayorkas v. Cuellar de Osorio).  There was no majority in this much-anticipated immigration case; instead, Justice Kagan announced the Court’s judgment and wrote a plurality opinion that was joined by Justices Kennedy and Ginsburg.  The Chief Justice wrote a separate opinion, joined by Justice Scalia, in which he concurred in the Court’s judgment.  Justice Alito dissented separately, while Justice Sotomayor wrote a dissenting opinion that was joined by Justice Breyer and (for the most part) Justice Thomas.

At issue in the case is the status of a child who “ages out” – that is, turns twenty-one – while her petition for an immigrant visa is pending.  The question is whether the Child Status Protection Act allows the pending visa application to retain its place in the queue for visas only if the “aged-out” applicant would have qualified as the beneficiary of a visa petition in her own right, without needing new sponsors, as opposed to “aged-out” applicants who were merely piggy-backing on their parents’ qualifications for a visa.  The Board of Immigration Appeals had read the statute narrowly, so in many cases the “aged out” applicants lost their place in line and had to begin the visa application process again.  Justice Kagan’s plurality opinion concluded that the key provision of the CSPA “does not speak unambiguously” to the question presented – “or, more precisely, it addresses that issue in divergent ways.”  Even if the provision did not require the BIA to distinguish between the two kinds of “aged-out” beneficiaries, she explained, the BIA’s interpretation was nonetheless reasonable and therefore entitled to deference.

The Chief Justice (joined by Justice Scalia) agreed with Justice Kagan’s result, but not her reasoning; he regarded the key provision of the CSPA as ambiguous for different reasons, but also believed that the BIA’s interpretation was entitled to deference.

In the main dissent, Justice Sotomayor argued that the CSPA provision at issue could have been (and should be) interpreted in a way that would render it unambiguous, with no deference to the BIA then necessary.  Consistent with this interpretation, she contended, all of the categories of aged-out children “are entitled to relief.”

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Posted in Scialabba v. Cuellar de Osorio, Merits Cases

Recommended Citation: Amy Howe, Quick take: Court defers to agency on “aged-out” immigrants, SCOTUSblog (Jun. 9, 2014, 1:23 PM), http://www.scotusblog.com/2014/06/quick-take-court-defers-to-agency-on-aged-out-immigrants/