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Argument recap: Another immigration case? Another argument about statutory interpretation and agency deference

Yesterday, the Court heard oral arguments in Mayorkas v. Cuellar de Osorio, a case raising a technical issue of statutory construction of the complex U.S. immigration laws.

The specific question presented by the case is whether a provision of the Immigration & Nationality Act, as amended by the Child Status Protection Act (2002), allows children of all family immigrant visa applicants (or only for some family immigrant visas) who turn twenty-one (“age out”) while waiting for a visa, to be issued a visa with their parent when the visas are issued.  8 U.S.C. § 1153(h)(3) provides that, for an “aged out” child, “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.”  The Board of Immigration Appeals has interpreted the statute to cover only certain, rather than all, family immigrant visas.

Assistant to the Solicitor General Elaine Goldenberg argued the case for the United States.  Mark Fleming of WilmerHale argued the case on behalf of the respondents,

Much of the Justices’ questioning of both advocates focused on the precise meaning of the statutory language, especially the phrase “automatically . . . converted.”  There also was some back and forth about the propriety of deference to the relevant Board of Immigration Appeals ruling, Matter of Wang (2009).

Taking the podium first, Goldenberg was quickly interrupted with a question from Justice Ginsburg about the harsh impact on the “aged out” child under the government’s interpretation.  Justice Alito also seemed to have similar concerns.  Later in the argument, Goldenberg admitted that “Congress’s overarching concern” was with “administrative delays” but failed to fully articulate how the respondents’ broader interpretation failed to fulfill that purpose better than the government’s rather wooden one.

Testing the government’s claim that the respondents’ interpretation would substantially disrupt the statutory visa scheme, Justice Breyer pressed for an estimate of the number of aged out children who may benefit from that interpretation.  Goldenberg ultimately was forced to admit that the government “can’t quantify exactly how many [people], but we have reason to think that the number is quite large.”  As a last resort, Goldenberg stated that the Court had recognized that “deference is particularly appropriate in immigration contexts.”

Fleming began his argument by dismissing the government’s claim that the statute is ambiguous.  He further emphasized that the Court should exercise “a modicum of common sense” in deciding whether Congress would have delegated the question before the Court to the agency.

To better understand the operation of the statute, Justice (and former law professor) Breyer offered a hypothetical using his name (but Steven with a “v”), his brother’s (Charles), and his nephew.  This moment added a bit of levity to the proceedings.

In questioning Fleming, Justice Kagan suggested that the statute was ambiguous and that deference to a reasonable interpretation of the government might be justified.  Fleming argued that, in that circumstance, the government’s position was not rational.

The government’s rebuttal returned to the same ground generally covered in the arguments.  Interestingly, Chief Justice John Roberts, who intervened little in the argument, during rebuttal appeared to be dubious of the government’s interpretation of the statute.

As the oral arguments in the Affordable Care Act case made clear, it is at best hazardous to predict how the Supreme Court will rule from oral arguments alone.  While the government seems to be facing an uphill battle in this case, one never knows for sure.  Nonetheless, it does seem clear that the Court, in deciding the case, will apply traditional tools of statutory construction and agency deference.  This would be entirely consistent with the rather unexceptional nature of the Court’s immigration jurisprudence in recent years.

Recommended Citation: Kevin Johnson, Argument recap: Another immigration case? Another argument about statutory interpretation and agency deference, SCOTUSblog (Dec. 11, 2013, 3:17 PM),