Scialabba v. Cuellar De Osorio

PETITIONER:Lori Scialabba, Acting Director, United States Citizenship and Immigration Services, et al.
RESPONDENT:Rosalina Cuellar de Osorio, et al.
LOCATION: Ronald Reagan Federal Building and U.S. Courthouse

DOCKET NO.: 12-930
DECIDED BY: Roberts Court (2010-2016)

CITATION: 573 US (2014)
GRANTED: Jun 24, 2013
ARGUED: Dec 10, 2013
DECIDED: Jun 09, 2014

Elaine J. Goldenberg – Assistant to the Solicitor General, Department of Justice, for the United States
Mark C. Fleming – for the respondents

Facts of the case

The respondents are all immigrants to the United States and are considered lawful permanent residents. At various times each of the respondents applied for family-sponsored visas. However, because of the delays caused by visa quotas and serious backlogs in the U.S. immigration system meant that all of their children had turned twenty-one and, based on the Immigration and Nationality Act (INA), had “aged out” of eligibility for any derivative child-visas. As a result, their visa applications converted from child-applications to adult-applications and were moved to the bottom of the adult-application list, which potentially added years to their wait to receive a visas.

In 2009, after the Board of Immigration Appeals converted several child visa petitions to adult petitions, the respondents filed two cases in federal district court in the U.S. District Court for the Southern District of California asking hat the court order the Board to retain use of their children’s original visa filing dates. That court denied the request. The respondents then appealed to the U.S. Court of Appeals for the Ninth Circuit. There, the petitioners argued that certain provisions in the Child Status Protection Act (CSPA) should allow the use of the children’s original application dates for certain visa applications. The Ninth Circuit agreed, holding that the language of both CSPA and the INA allow the child-status petition to convert to an adult petition while still retaining the original date when the visa petition was filed.


(1) Does the INA allow aliens who qualify as “children” at the time a visa application is filed but subsequently “age out” by turning twenty-one to retain their original application date?

(2) Did the Board of Immigration Appeals reasonably interpret the INA when denying the respondents’ request?

Media for Scialabba v. Cuellar De Osorio

Audio Transcription for Oral Argument – December 10, 2013 in Scialabba v. Cuellar De Osorio

Audio Transcription for Opinion Announcement – June 09, 2014 in Scialabba v. Cuellar De Osorio

Justice Kagan has our opinion this morning in case 12-930, Scialabba v. De Osorio.

This case concerns a naughty problem in the immigrant visa system.

Immigration law allows U.S. citizens and lawful permanent residents to sponsor certain family members to immigrate to the United States, and if the alien who is sponsored has children under the age of 21, they benefit too.

They stand on line for a visa with their parents and when a visa becomes available for the parent, visas also become available for her minor children.

But what if during the time they have all waited on line, the children have turned 21 or in immigration lingo, they’ve aged out.

People wait on line for visas for years and years so this kind of ageing out is a perennial feature of the immigration system.

Should those aged out aliens get to keep their place on line?

That question involves interpreting a statute Congress enacted about a decade ago.

The relevant part of that law provides that if a child turns 21 before visa becomes available to her parent, then “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” whatever that means, and that’s the question this case present.

What does that mean?

Now, the Board of Immigration Appeals construe the provision as allowing some but not most sponsored alien’s children to retain their place on line after they turn 21.

The Board distinguished between those aged out aliens who were themselves, children of the original sponsor and those whose relationships were more attenuated, who were the original sponsor’s nephews, nieces and grandchildren.

The nephews, nieces and grandchildren didn’t get to keep their place on line according to the Board of Immigration Appeals.

This suit challenges the Board’s interpretation.

You can probably guess that it was brought on behalf of nephews, nieces and grandchildren, and key to our resolution of the suit is something called Chevron Deference.

What that mean is that when a statute is ambiguous, courts defer to an expert agency in interpreting it.

And here, that would mean deferring to the board.

Five members of the Court think deference is called for in this case because the statute is ambiguous.

But those five are split into two different groups because we find the ambiguity in two different places.

My opinion speaks for three justices so the plurality.

And what that opinion says is the deference is appropriate because there’s a real tension within the statutory provision.

Part of it indicates that all aged out aliens should get relief, that they should get to keep their place on line but part of it indicates that only some should.

Or to be slightly more specific, there’s a clause stating a single condition if the child has turned 21, and there’s a clause stating a remedy, then the alien’s petition shall automatically be converted to another appropriate category and the alien will get to keep his place on line.

Everyone can satisfy the Conditional Clause and there’s reason to think based on the statutes, if then construction that everyone should therefore get relief from the ageing out problem.

But because of lots of technical features of the immigration system, only some can actually obtain the remedy automatic conversion that Congress designated, and in particular, the nephews, nieces and grandchildren can’t.

The lack of correspondence between the two parts of the statute, the Conditional Clause and the Remedial Clause creates an ambiguity, and the Board of Immigration Appeals as the expert agency gets to resolve that ambiguity as long as it does so reasonably, which it did.

Or at any rate, so say three justices.

When combined with two other justices who would describe the ambiguity differently, that is enough to uphold the Board’s interpretation and to reverse the Court of Appeals for the Ninth Circuit which declined to give the Board deference.

The Chief Justice has filed an opinion concurring in the judgment in which Justice Scalia joins.

Justice Alito has filed a dissenting opinion, Justice Sotomayor has also filed a dissenting opinion in which Justice Breyer joins, and in which Justice Thomas joins except as to footnote three.