The Supreme Court issued a 5-4 decision in the case of Scialabba v. Cuellar de Osorio siding with the Obama Administration that a child who turns 21 in the middle of waiting for a parent’s green card petition will have to have a green card petition re-filed by their parents after the parents eventually get green cards. They will not retain their earlier priority dates in these cases. The only category where children will “automatically convert” and retain their priority date is in the Family 2nd category where children will convert from the child to the adult category and will retain their priority date.
The decision is a major disappointment because Congress likely didn’t intend such a narrow interpretation of the law. The government argued that because when a child aged out, there was no “appropriate category” for them to switch to (like the Family 2nd category), then immigration law did not provide a remedy because the statute only applied in cases where “automatic” conversion is possible.
Justice Sotomayor made an eloquent dissent noting that Congress clearly wanted to provide a remedy to aging out for a broad group of individuals when it passed the Child Status Protect Act and that the BIA (and now the Supreme Court) have defied that expressed intention.
At issue is Section 1153(h)(3) of the Title 8 of the US Code:
(3) Retention of priority date
If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, 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.
Sotomayor believes that if the person meets the first part (turning 21), then the statute holds there are two things that should happen – the child automatically converts AND the original priority date is to be retained. The majority held that the two parts must be read together – that there must be a category to which to automatically convert and then the original priority date is retained. Sotomayor argues (persuasively in my view), that Congress intended the priority date to be retained even if a new petition needs to be filed where automatic conversion is not available.
Unfortunately, the matter is now closed and Congress will need to revisit this question to clarify that a priority date is to be retained regardless of whether the applicant automatically converts. And on a side note, what was the Obama Administration thinking taking such an anti-immigrant, anti-family position in this case?