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Despite Child Status Protection Act, Supreme Court Affirms Immigrants Age Out Of Green Card Lines


In my day-to-day Riverside immigration law practice, I’ve seen many instances where rules and regulations create undue burdens on immigrant families,

The path to a green card is full of such potholes.

Imagine this scenario.

You’re the child of an immigrant, who is being sponsored by a new U.S. citizen spouse to become a permanent resident.

As the child of an undocumented immigrant, under immigration law, you’re considered a derivative beneficiary.

The family petitions for you and your mother are quickly approved.

However, the required wait to file your application for a green card takes several years. During that time, you turn 21.

Because you are no longer a minor child, you are placed in a new immigration category. You’re now an adult.

Under the new category, another 10 years, maybe longer, is added to your waiting time.

Does this sound fair?

The Supreme Court thinks so.

In Scialabba v. Vuellar de Osario, the Supreme Court issued a long-awaited decision regarding how the Child Status Protection Act (CSPA) should be applied in such situations.

The Court decided not to freeze the derivative beneficiary’s age as a child under 21.

In other words, just because you were a minor child when your immigration documents were initially filed does not mean you are entitled to retain the status of a child for the entire duration of the permanent residency process.

Even when the delay is a consequence of an outdated legal process created nearly 50 years ago.

When critics lambast immigration reform, they fail to consider that getting in line may mean a wait over two decades long.

Opinion: On Legal Immigration, Supreme Court Gets It Wrong
Raúl A. Reyes, Fox News Latino, June 10, 2014

“It is profoundly unfair to break up families simply because the U.S. has such long wait times for visas. Not only are such delays the government’s fault, they are unfortunately quite common.

According to the Department of State’s June 2014 visa bulletin, right now the government is processing some visas from China from 2001, from Mexico from 1993, and from the Philippines from 1990.

People like de Osorio’s son should not lose their spot in line simply because our immigration system is so slow.”

In short, the Supreme Court decision means family separation for many immigrants and possible deportation for others.

Because the affected immigrants, upon turning 21, “age out” of their original family-based petition category, they could be deemed to be out of legal immigrant status.

Without a path to legalization in the near future, the court’s decision opens a vast potential for removal.

That’s not good.

Immigration News Curation By Carlos Batara