The John Marshall Law Review Volume 47 | Issue 4

Article 9

Summer 2014

Finding Hope for "Aged Out" Derivative Beneficiaries: Re-Examining the Child Status Protection Act in the Wake of Scialabba v. Cuellar de Osorio, 47 J. Marshall L. Rev. 1319 (2014) Jihan Hassan Hannah Kubica Christina Corbaci

Follow this and additional works at: http://repository.jmls.edu/lawreview Part of the Immigration Law Commons, and the Juvenile Law Commons Recommended Citation Jihan Hassan, Hannah Kubica & Christina Corbaci, Finding Hope for "Aged Out" Derivative Beneficiaries: Re-Examining the Child Status Protection Act in the Wake of Scialabba v. Cuellar de Osorio, 47 J. Marshall L. Rev. 1319 (2014)

http://repository.jmls.edu/lawreview/vol47/iss4/9 This Article is brought to you for free and open access by The John Marshall Institutional Repository. It has been accepted for inclusion in The John Marshall Law Review by an authorized administrator of The John Marshall Institutional Repository.

FINDING HOPE FOR “AGED OUT” DERIVATIVE BENEFICIARIES: RE-EXAMINING THE CHILD STATUS PROTECTION ACT IN THE WAKE OF SCIALABBA V. CUELLAR DE OSORIO JIHAN M. HASSAN, HANNAH B. KUBICA & CHRISTINA A. CORBACI 1 I. Introduction .......................................................................... 1320 1321 1324 II. Background ......................................................................... 1325 1324 A. The Child Status Protection Act .............................. 1325 1325 B. The Problem of Immigration Backlogs ..................... 1327 C. The Problem of “Aging Out” of Visa Eligibility ......... 1329 1328 D. Legislative Concerns over the Effect of Backlogs on 1328 “Aged Out” Children ................................................ 1330 E. How the Child Status Protection Act Works for 1330 Derivative Beneficiaries .......................................... 1331 1. Step #1: CSPA’s Complex Mathematical 1330 Formula ............................................................. 1332 2. Step #2: If the Applicant’s “CSPA age” Is 21 or Above, Automatic Conversion and Priority Date Retention ........................................................... 1333 1332 III. The BIA’s Decision, the ensuing Circuit Split, and the 1333 Supreme Court Battle .................................................... 1334 1333 A. The BIA’s Precedential Ruling in Matter of Wang ... 1334 1335 B. The Circuits Weigh In ............................................. 1337 1. The Second Circuit ............................................. 1338 1336 2. The Fifth Circuit ................................................ 1338 1337 3. The Ninth Circuit............................................... 1340 1339 C. The Supreme Court Resolves the Circuit Split: A Discussion and Critique of Scialabba v. Cuellar de Osorio...................................................................... 1341 1340 1. Discussion .......................................................... 1341 1340 1340 2. Critique.............................................................. 1341 IV. Finding hope for “aged out” derivative Beneficiaries ........... 1343 1342 1342 A. Judicial Rem edy ...................................................... 1343 B. Legislative Remedy ................................................. 1344 1343 C. Administrative Remedy ........................................... 1345 1344 V. Conclusion ........................................................................... 1346 1345 VI. Appendix ............................................................................ 1347 1346

Jihan M. Hassan is an attorney with the Chicago office of Fragomen, Del Rey, Bernsen, & Loewy LLP, a global corporate immigration law firm. Hannah B. Kubica and Christina A. Corbaci are attorneys with Joyce & Associates, Boston, Massachusetts, a firm specializing in immigration law. 1

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different from its predecessors, I. INTRODUCTION particularly since it had the benefit of two years of planning. Like On June the 9, shift 2014, in aconference divided Supreme scheduling, Courtother issued changes its decision have taken in Scialabba place within v. Cuellar the de LatCrit Osorio, entity, resolving including a circuit concerted split over efforts the to statutory continue construction a process ofof institutionalization. our nation’s complex In immigration recent years, laws. there2 The been plurality held that children who areon listed as derivative has a growing focusmost on how to capitalize its critical niche, 3 on their family-based immigrant petitions, beneficiaries continue cultivating theparents’ next generation of critical scholars, and but whothat turnthe twenty-one old and “age out” while waiting for ensure baton of years outsider jurisprudence is passed along. visas to become will has not be able toincluding retain their original Internally, the available, organization shifted, a gradual 4 or adjust 5 along priority dates andguard immigrate changing of the in leadership, so status to speak, as with well their as a parents. Rather, they will needForto example, start thefrom process by downsizing in administration. 2008anew to the having their parents file a new petition once with they present, the Board of Directors wasimmigrant intentionally downsized, become lawful permanent residents. a growing number of Board seats being occupied by junior law 6 The ruling impacts the futures of thousands of “aged out” professors. Another development is LatCrit’s acquisition a children and major threatens the separation of families and ofthe physical space for the who organization. The Campo deportation of children have lived in property, the United StatesSano for 6 These “aged out” children sometimes wait (Spanish for “Camp or more literally, “Camp Sanity”), is most of their lives.Healthy,” Purchased decades forparcel a visaof to become available onlyFlorida. to lose7 their place by in a ten-acre land located in Central LatCrit 2011, the space isyears homeold. to The Living Justice Center line uponinturning twenty-one physical and the LatCrithas Community Congress already Campus. acted 8toThe help avoidfacility the serves harsh as a means “tocaused level the field and give LatCrit activists a consequences by playing government backlogs on “aged out” The space intended fighting chance to beCongress heard.” 9 enacted children. In 2002, theis Child Status Protection Act (“CSPA” or “the Act”), amending the Immigration and to serve as the hub of their educational, research, advocacy and activism to remedy the imbalance and deficiencies of the current legal system. Having an 2 Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). 3 independent physical is base become as A “principal beneficiary” an has individual who critical has a qualifying relationship with a and U.S. law citizen or Lawful Permanent universities schools increasingly are Resident even less(‘LPR’) petitioner, who files a visa petition on behalf of the principal beneficiary. Derivative beneficiaries, defined as the spouse or minor child of the principal beneficiary, may also be named in the principal beneficiary’s visa petition, and Naming andtoLaunching a New Discourse of Critical Scholarship, are entitled the same preference status, and the sameLegal priority date, as the2 HARV . LATINO REV D.EP 1 ’(1997). T OF STATE , FOREIGN AFFAIRS MANUAL, 9 FAM 42.31 principal alien.L.US n. 2.See also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO 4 See L CRITICAL TEGAL HE MERRIAM THEORY-W , EBSTER INC., http://latcrit.org/content/conferences/latcritDICTIONARY (1994) (defining the word immigrate biennial-conferences/ as “to come (lastinto visited a July country 5, 2013) of which (providing one aislist notof athe native previous for permanent conferences,residence”). and providing For direct purposes links of to thisview article, symposia the word articles mayfor be some used interchangeably years (found bywith following the term, the“consular respective processing.” year’s link to its corresponding 5 There are two different processes for obtaining an immigrant visa: webpage). consular processing andhas adjustment status. During processing, Additionally, LatCrit developedofa substantial bodyconsular of scholarship from applicants apply for and process an inter immigrant visa at a U.S. Department of several other stand-alone symposia: alia the South-North Exchange, the State abroad, often in their home country. Adjustment of Study consulate Space Series, themost International and Comparative Colloquia. LatCrit RIT: LAT : LATINA & LATINO CRITICAL EGALhas THEORY Symposia, LATC status is the process byCRIT which a person already in the LU.S. their, INC., http://latcrit.org/content/publications/latcrit-symposium/ visited immigration status adjusted to that of a permanent resident. (last See Consular July 5, 2014).U.S. CITIZENSHIP AND IMMIGRATION SERVICES, available at Processing, 6 These include Professors Marc-Tizoc González, Andrea Freeman, and schools). updated Feb. 12, 2014). 6 Campo 7 See Brief Sano, for L Plaintiffs-Appellants ATCRIT: LATINA ANDbyLATINO American CRITICAL Immigration LEGAL Lawyers THEORY, INC, http://www.latcrit.org/content/campo-sano/ (last visited 5, 2014). Association and Catholic Legal Immigration Network, Inc., July as Amicus Curiae, 8 Id.De Osorio v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012) (No. 09-56786) at 11, 9 Id.Amicus Brief”). (“AILA

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Nationality Act (“INA”)I. toINTRODUCTION protect derivative child beneficiaries and keep families intact despite long visa waiting times. Among On June its 9, 2014, main a protective divided Supreme measures, Courtthe issued Act its creates decision a mathematical in Scialabba v.formula Cuellar that de Osorio, subtracts resolving the amount a circuitofsplit timeover thatthe a visa statutory petition construction was pending of our fromnation’s a child’scomplex age. If the immigration child “ages laws. out”2 The plurality heldformula, that most who are listed as form derivative despite the CSPA thechildren Act provides relief in the of an 3 on their provision, parents’ family-based beneficiariesconversion” “automatic to permit animmigrant “aged out”petitions, child to but who old her andpetition “age out” waiting for keep her turn placetwenty-one in line andyears convert intowhile the appropriate visas category. to become available, will not be able to retain their original adult 4 or recently 5 along adjust status with their priority dates circuit and immigrate However, courts have disagreed over whether parents. Rather, they willapplies need to tostart the process anew by “automatic conversion” “aged out” derivative having their inparents file a newcategories immigrant they beneficiaries all family-based or petition only to once a narrow become of lawful permanent subset F-2A petitions.residents. In particular, courts disagreed over The CSPA’s ruling “automatic impacts the futures ofprovision, thousands of §“aged out” whether conversion” INA 203(h)(3), children and threatens thewas separation families and the was ambiguous. If not, what the properofinterpretation of this deportation Ifofso,children who have lived in the United States and for provision? was the agency’s interpretation reasonable, These “aged out” children sometimes wait most of their lives. therefore entitled to6 deference? This debate resulted in a threedecades for asplit visawhich to become available onlyinto the loseSupreme their place in way circuit was finally settled Court 7 line upon turning years old. case, Scialabba v. twenty-one Cuellar de Osorio. CSPA’s “automatic conversion” § 203(h)(3), is Congress has already acted clause, to help INA avoid the harsh codified as follows: consequences caused by government backlogs on “aged out” children. In 2002, Congress enacted the Child Status Protection the ageorof “the an alien is determined [under the CSPA and Act If(“CSPA” Act”), amending the Immigration formula] to be 21 years of age or older for the purposes of [INA § 203(a)(2)(A) 8 and (d) 9], the alien’s petition shall be automatically converted to the appropriate category 2 Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). 3 and the alien shall original A “principal beneficiary”retain is an the individual whopriority has a date qualifying 10 relationship U.S. citizen or Lawful Permanent Resident (‘LPR’) issued with upon areceipt of the original petition.

petitioner, who files a visa petition on behalf of the principal beneficiary. Derivative beneficiaries, defined as theagency spouse or minor child of the principal To summarize how the and circuit courts have beneficiary, may also be named in the principal beneficiary’s visa petition, and weighed in this issue, the Board of Immigration Appeals (“BIA”) in are entitled to the same preference status, and the same priority date, as the 11 held that automatic conversion and priority date Matter of Wang principal alien. US DEP’T OF STATE , FOREIGN AFFAIRS MANUAL, 9 FAM 42.31 n. 2. retention applied to some family-based visa categories but did not 4 See THE MERRIAM -WEBSTER DICTIONARY (1994) (defining the word apply to individuals who “age out” of eligibility as the derivative immigrate into a country of which one is a native for 12 not Subsequently, beneficiaryasof“toa come fourth-preference family petition. permanent residence”). For purposes of this article, the word may be used interchangeably with the term, “consular processing.” 5 There are two different processes for obtaining an immigrant visa: 7 Cuellar de Osorio, 134adjustment S. Ct. at 2191. consular processing and of status. During consular processing, 8 Immigration andand Nationality Act,immigrant INA § 203(a)(2)(A) (2013)Department (codified asof 8 applicants apply for process an visa at a U.S. U.S.C consulate § 1153(a)(2)(A) (“spouses or home children of an Adjustment alien lawfully State abroad, (2012)) most often in their country. of admittedis for residence”). status thepermanent process by which a person already in the U.S. has their 9 INA § 203(d) spouse or shall, if not resident. otherwise See entitled to an immigration status(“A adjusted to child that [. of . a.] permanent Consular CITIZENSHIP AND issuance IMMIGRATION SERVICES , family-based, available at immigrant status the immediate of a visa under [a Processing, U.S. and (last accompanying or following to join, the spouse or parent.”) 10 INA § 203(h)(3). updated Feb. 12, 2014). 11 Matter 6 See Brief of Xiuyi for Plaintiffs-Appellants Wang, 25 I. & N. Dec.by28American (BIA 2009). Immigration Lawyers 12 As described in a chart page six ofNetwork, this article, establishes Association and Catholic Legal on Immigration Inc.,the as INA Amicus Curiae, the categories: First at 11,following De Osoriofamily-based v. Mayorkas,preference 695 F.3d 1003 (9th Cir.(1) 2012) (No.Preference: 09-56786) unmarried adultBrief”). sons and daughters of U.S. citizens and their children (23,400 (“AILA Amicus

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13 interpreted the Second different from Circuit its predecessors, particularly “automaticsince conversion” it had the narrowly benefit of to two apply years only of planning. to aged-out beneficiaries in one strictly defined preference Like the category shift in and conference not to derivative scheduling,beneficiaries other changes of other have taken family-based place within visa categories. the LatCrit Thus, entity, when including a concerted derivative efforts child to beneficiary continue of a process her parent's of institutionalization. third- or fourth-preference In recent years, familythere visa has petition beenturns a growing twenty-one, focus on shehow is not to capitalize entitled toonretain its critical the priority niche, continue date of that cultivating initial the petition next upon generation the parent’s of critical filing scholars, of a new and ensure second-preference that the baton (F-2B)of petition outsider on jurisprudence behalf of the is passed now “adult” along. the Ninth 15 Fifth 16 including circuits came to the Internally, child. 14 Conversely, the organization hasandshifted, a gradual opposite conclusion, that soCongress changing of the guardreasoning in leadership, to speak, plainly as well made as a automatic conversion and priority retention available all downsizing in administration. Fordate example, from 2008 toto the petitions the described in Directors the CSPA’s conversion” clause, present, Board of was“automatic intentionally downsized, with 17 TheofSupreme Courtbeing resolved the circuit splitlaw on INA § 203(h). a growing number Board seats occupied by junior 6 June 9, 2014, finding the statute ambiguous, and deferring to the professors. 18 thereby development is LatCrit’s acquisition of a BIA’sAnother narrow major interpretation of “automatic conversion,” excluding most for aged-out derivative beneficiaries fromCampo the priority physical space the organization. The property, Sano date retention benefits of the CSPA. (Spanish for “Camp Healthy,” or more literally, “Camp Sanity”), is by The Supreme clearly disappointing for many a ten-acre parcel ofCourt land decision located inis Central Florida. 7 Purchased LatCritout” in 2011, the space is home to had The Living Center “aged immigrant children who hoped Justice to retain the The physical serves and the dates LatCrit Community priority of their earlier Campus. petitions.8 However, therefacility may still be as a means LatCritrule activists a some kernels“toof level hopethe forplaying reversalfield of and this give restrictive in the 9 The space is intended action. fightingthrough chance judicial, to be heard.” future legislative, or administrative One possibility, albeit an unlikely one, is that the Supreme serveagree as the hub of the theircase educational, research, Court tocould to re-hear on the basis that the advocacy remedy the imbalance previous decisionand wasactivism based ontoa mistake. Specifically, theand crux of deficienciesdecision of the erroneously current legal system. Having an the plurality’s assumes that “immigration independent physical base tohas criticala priority as law nowhere […] allows an alien keepbecome in his pocket when in less fact, the universitiesto and schools increasingly even date untethered any law existing valid petition,” 19 are Western Hemisphere Savings Clause grants exactly this sort of entitlement. 20 This argument was recently made by the respondents in De Osorio upon filing a petition for rehearing in Naming and Launching a New Discourse of Critical Legal Scholarship, 2 21 July HARV .2014. LATINO L. REV . 1 (1997).

See also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcritvisas per year); (2) Second Preference: and unmarried minor children biennial-conferences/ (last visited July 5,spouses 2013) (providing a list of the previous of LPRs (2A) and and providing unmarrieddirect adult links sons and daughters of LPRs (2B)for (114,200 conferences, to view symposia articles some total this category); (3) Third Preference:year’s married andcorresponding daughters of years for (found by following the respective linksons to its U.S. citizens (23,400); (4) Fourth Preference: brothers and sisters of adult U.S. webpage). citizens (65,000). LatCrit INA §§ has 203(a)(1)-(4). Additionally, developed a substantial body of scholarship from 13 Li other v. Renaud, 654 F.3d 376, 380inter (2d Cir. several stand-alone symposia: alia2011). the South-North Exchange, the 14 Gerald Ninth Rejects and Matter of Wang; Finds CSPA Applies Study Space Seipp, Series, the Circuit International Comparative Colloquia. LatCrit LATC39 RIT : LATINA & RLELEASES ATINO CRITICAL 1901 (Oct. LEGAL 8, 2012). THEORY, to All Derivatives, 89: NO. INTERPRETER Symposia, LATCRIT INC.,15 De http://latcrit.org/content/publications/latcrit-symposium/ Osorio v. Mayorkas, 695 F.3d 1003, 1012 (9th Cir. 2012), (last reversed visited by July Scialabba 5, 2014). v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). 16 These 6 Khalidinclude v. Holder, Professors 655 F.3d Marc-Tizoc 363, 275 González, (5th Cir.Andrea 2011), Freeman, abrogatedand by César Scialabba Cuahtémoc v. CuellarGarcía de Osorio, Hernández. 134 S. Ct. See2191 About (2014). LatCrit, supra note 3 (listing See Austin Fragomen, Jr., Careen Shannon, Daniel Montalvo, the 17professors onT.the LatCrit Board of Directors andand their respective law MMIGR. LEGIS . HANDBOOK § 6:17 (April 2012). Ischools). 18 Cuellar 7 Campo de Sano, Osorio, LATC 134 RITS. : L Ct. ATINA at 2191. AND LATINO CRITICAL LEGAL THEORY, INC,19http://www.latcrit.org/content/campo-sano/ Id. at * 30. (last visited July 5, 2014). 20Id. 8 See 9 Foreign Affairs Manual, ch. 42.53 & n. 4.1. 21Id. 9 See Respondents’ Petition for Rehearing at 1-2, Scialabba v. Cuellar de

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A second possibilityI. is Ithat NTRODUCTION Congress could redraft the CSPA to clarify that all “aged out” derivative beneficiaries are entitled to priority On date Juneretention. 9, 2014, aIndivided fact, this Supreme was part Court of the issued comprehensive its decision 22 split however immigration in Scialabba v. reform Cuellarbill de passed Osorio, by resolving the Senate, a circuit over the prospects construction of immigration legislation remain unclear as oflaws. this2 statutory of our nation’s complex immigration 23 Theheld current impasse over comprehensive immigration The plurality that most children who are listed as derivative writing. on their parents’ family-based immigrant reform also 3complicates any prospect of remedying the petitions, Supreme beneficiaries but who turn twenty-one years old24and “age out” while waiting for Court decision through legislation. option is that may their be reversed visasAtofinal become available, willthe notcurrent be able rule to retain original or adjust status along withagreed their through dates administrative action.4 The plurality in 5 De Osorio priority and immigrate parents. Rather, they of will need to start anew by that a narrow reading INA § 203(h) was the not process compelled by the having parents new immigrant petition they statute, their but rather thatfile its ameaning was ambiguous andonce therefore become permanent residents. subject lawful to administrative deference. 25 Therefore, the BIA may 26 change reverse position in Matter ofof“aged Wang. Thecourse ruling and impacts the its futures of thousands out” Moreover, and since threatens the BIA acts behalf of of the families Attorney and General, children the on separation the the AttorneyofGeneral may push back against Matter of Wang deportation children who have lived in the United States and for 6 These “aged 27 children sometimes wait adopt of a broader interpretation of INAout” § 203(h). most their lives. decades PartforI provides a visa toan become overview available of theonly family-based to lose their immigration place in line scheme, uponthe turning quotatwenty-one system, and years the old. concept of “priority dates.” The article Congress then addresses has already the crisis acted facing to children help avoid who “age the out” harsh of consequences visa eligibility caused and Congress’s by government response in backlogs enactingon the“aged CSPA.out” An children. examination In of 2002, the Congress legislative enacted history the behind Child CSPA Status reveals Protection that it Act was motivated (“CSPA” or by “the Congress’s Act”), concern amending over the both Immigration the separationand of families resulting from lengthy visa-category backlogs and adjudicative delays. Part II traces the BIA’s controversial ruling in Matter of Wang, and the ensuing split between the Second, Fifth, 2 Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). and3 Ninth circuits over the isproper scope of who CSPAhasprotection for A “principal beneficiary” an individual a qualifying relationship with a U.S. citizen or Lawful Permanent Resident (‘LPR’) aged-out derivative beneficiaries of various family-based visa

petitioner, who files a visa petition on behalf of the principal beneficiary. Derivative beneficiaries, defined as the spouse or minor child of the principal beneficiary, may also be named in the principal beneficiary’s visa petition, and Osorio, 134 S. (2014). are entitled to Ct. the2191 same preference status, and the same priority date, as the 22 S. 744, 113th DEP’T OF 1st STATE Sess. , F§OREIGN 2305(d)(5)(C) AFFAIRS(2013). MANUAL, 9 FAM 42.31 principal alien. US Congress, n. 2.23 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo, 4 See for THEImmigration MERRIAM -WReform EBSTER inD2014,” ICTIONARY (1994) . LEGIS (defining . HANDBOOK the word § 1:1 “Prospects IMMIGR immigrate (April 2014).as “to come into a country of which one is not a native for 24 Robertresidence”). Barnes, Court immigrants’ children to back theused permanent Forsends purposes of this adult article, the word mayofbe POST 2014), available at line, WASHINGTON interchangeably with the(June term,9,“consular processing.” 5 There are two different processes for obtaining an immigrant visa: http://www.washingtonpost.com/politic s/court-sendsimmigrantsadu ltconsular processing and adjustment of status. During consular processing, children-to-back-of-the-line/2014/06/09/62f1f656-f006-11e3-914capplicants apply for and process an immigrant visa at a U.S. Department of 1fbd0614e2d4_story.html. 25 See Cuellarabroad, de Osorio, 134often S. Ct.inattheir 2206home (noting that “we Adjustment hold only that State consulate most country. of §1153(h)(3) notwhich that ita requires – the Board’s decision so status is thepermits process– by person already in the U.S. has totheir distinguish out beneficiaries”). immigrationamong statusaged adjusted to that of a permanent resident. See Consular 26 Cyrus U.S. D. Mehta CITIZENSHIP and DavidAND A. Isaacson, IMMIGRATION Scialabba SERVICES v. Cuellar , available De Osorio: at Processing, Does (last Mehta-and-David-A-Isaacson, citing National Cable & Telecommunications updated Feb. 12, 2014). 6 See Brief Xfor Plaintiffs-Appellants by American Assn. v. Brand Internet Services, 545 U.S. 967 (2005) Immigration (finding that Lawyers where a Association and Catholic Legal Immigration Network, Inc., asthe Amicus Curiae, statute is ambiguous and entitled to Chevron deference, agency may at 11, De Osorio v. Mayorkas, F.3d (9th Cir. 2012) (No. 09-56786) reconsider its interpretation even695 after the 1003 courts have approved of it). 27 See id. (“AILA Amicus Brief”).

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categories. different from PartitsIIpredecessors, also briefly describes particularly andsince critiques it had the the Supreme benefit of Court’s two years decision of planning. in Scialabba v. Cuellar de Osorio. Part III reexamines Like the the CSPA shift in the conference wake of scheduling, the Supremeother Courtchanges ruling in have De taken Osorio.place This within section the concludes LatCritbyentity, discussing including the relative concerted strengths efforts to andcontinue weaknesses a process ofof institutionalization. potential judicial, In recent legislative, years, there and has administrative been a growing strategies focus on for how upholding to capitalize CSPAonprotection its critical for niche, all continue derivativecultivating child beneficiaries. the next generation of critical scholars, and ensure that the baton of outsider jurisprudence is passed along. Internally, the organization II. BACKGROUND has shifted, including a gradual changing of the guard in leadership, so to speak, as well as a The Child Status downsizing in A. administration. For Protection example, Act from 2008 to the present, the Board of Directors was intentionally downsized, with 28 In 2002, Congress enactedseats the Child Protection a growing number of Board being Status occupied by juniorAct. law 6 At its most fundamental level, the legislation was designed to professors. Another major development is LatCrit’s of a preserve family unity within the confines acquisition of the existing 29 Further, anThe examination the CSPA’s physical space for the organization. property, ofCampo Sano immigration framework. legislative history thatoritsmore proponents both chambers (Spanish for “Campreveals Healthy,” literally,in“Camp Sanity”), of is 7 Purchased 30 Congress concern not in only aboutFlorida. adjudicative delays,by a ten-acre expressed parcel of land located Central LatCrit the sole in concern 2011, recognized the space is in home Matterto ofThe Wang, Living butJustice also anCenter equal 8 The physical facilitythe serves and concern the over LatCrit “growing Community immigration Campus. backlogs […] caus[ing] visa 31 as be a unavailable means “to level thethe playing field andhis give LatCrit activists a to before child reached 21st birthday.” fighting chance to be heard.” 9 The space is intended Pub. No. 107-20, § 3, hub 116 Stat. (2002); see also INAresearch, § 203(h). to L. serve as the of 927 their educational, See 147 CONG EC. H2901-01 (June 6, 2001) (statement of Rep. advocacy and. Ractivism to remedy the imbalance and Jackson-Lee) (stating “We believe that this will reunite families. This is what deficiencies of the current legal system. Having an our immigration laws are all about, to unite families.”); see also id. (statement independent physical“These base injustices has become critical as of Rep. Gekas) (explaining were perpetrated in this particular set of circumstances by the wayare that even the original universities and law inadvertently schools increasingly less law was fashioned. What we do here today is adjust, through the use of common sense, a bad situation.”); see also 148 CONG. REC. H4989-01 (July 22, 2002) (statement of Rep. Sensenbrenner) (describing that “[b]ringing families Naming and Launching New Discoursesystem. of Critical 2 together is a prime goal ofaour immigration [The Legal CSPA]Scholarship, facilitates and H ARV . LATINO L. REV .of 1 (1997). hastens the reuniting legal immigrants' families.”). 30 See CONG. Biennial REC. H2901-01 (June 6, CRIT: (statement LATINA & of LATINO Rep. See also147LatCrit Conferences, LAT2001) C RITICAL LEGAL THEORY , I“some NC., http://latcrit.org/content/conferences/latcritJackson-Lee) (asserting that sons and daughters of citizens. . . have to biennial-conferences/ 5, 2013) (providing listINS of the stay on a waiting list (last fromvisited 2 to 13July years entirely because athe did previous not in a conferences, andprocess providing links toforview symposiaofarticles timely manner the direct applications adjustment status for on some their years (found by id. following the of respective year’s link (declaring to its corresponding behalf.”); see also (statement Rep. Sensenbrenner) “[i]f a U.S. webpage). citizen parent petitions for a green card for a child before that child turns 21, LatCrit substantialthe bodyadjustment of scholarship from but Additionally, the INS does not has get developed around to aprocessing of status several other stand-alone inter21, alia thefamily South-North application until after thesymposia: child turns the is out Exchange, of luck.”); the Id. Study Space the International and Comparative Colloquia. LatCrit (statement of Series, Rep. Smith) (explaining that “[c]hildren of citizens are penalized : LINS ATCRIT LATINA & Llength ATINO of CRITICAL LEGALyears THEORY Symposia, LATCRIT because it takes the an : unacceptable time – often – to, Iprocess NC., http://latcrit.org/content/publications/latcrit-symposium/ (last Out’ visited adjustment of status applications.”); Christina A. Pryor, ‘Aging of July 5, 2014). Analyzing Family Preference Visa Petitions Under the Child Immigration: 6 These include Marc-Tizoc L. REV . 2199, González, 2212 (2012). Andrea Freeman, and Status Protection Act,Professors 80 FORDHAM 31 147 CONG. RGarcía EC. S3275-01 (Apr.See 2, 2001) of Sen. César Cuahtémoc Hernández. About (statement LatCrit, supra noteFeinstein) 3 (listing (“[A]professors family [. . on .] may forcedBoard to leave child behind either because law the the the be LatCrit of that Directors and their respective INS was unable to adjudicate the application before the child's 21st birthday, schools). 7 Campogrowing Sano, Limmigration ATCRIT: LATINA AND L CRITICAL LEGAL THEORY, or because backlogs inATINO the immigration visa category Icaused NC, http://www.latcrit.org/content/campo-sano/ (last visited his July 5, 2014). the visa to be unavailable before the child reached 21st birthday.”); Id. ONG. REC. H2901-01 (June 6, 2001) (statement of Rep. Jackson-Lee) 147 8 C 9 Id. (“H.R. 1209 addresses the predicament of these immigrants.] [. . .] [I]nstead of 28 29

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The CSPA amended I. Ithe NTRODUCTION INA to permit an applicant for certain immigration benefits to retain classification as a child underOnthe June Act,9, even 2014,ifahe divided or she Supreme has reached Court the issued age its of decision twenty32 The CSPA amendments fallresolving under INA § 203(h), entitled one. in Scialabba v. Cuellar de Osorio, a circuit split over the “Rules for construction determining of whether certaincomplex aliens are children.” 33laws. 2 statutory our nation’s immigration The Among pluralityitsheld protective that most measures, childrenthe who CSPA are listed created as aderivative complex their that parents’ immigrant petitions, mathematical beneficiaries 3 on formula helpsfamily-based to allow applicants to maintain but whostatus turn twenty-one yearsinold and “age out” while for “child” despite delays adjudicating their visawaiting petitions. visas to become available, will not the be able to retain their The formula essentially subtracts number of days theoriginal alien’s 4 or alien’s adjust age status alongtime witha their priority and immigrate petition dates was pending from the at5 the visa 34 example, petition parents. Rather, theyForwill need towhere start an theapplicant’s process anew by becomes available. was pending 365 file daysa prior its approval, andonce she they was having their for parents new to immigrant petition twenty-one years old when a visa became available in her become lawful permanent residents. preference category, hertheage for of immigration is The ruling impacts futures thousands ofpurposes “aged out” determined to bethreatens 20 years old the CSPA children and the under separation of formula. families For andaliens the who “age out” of “child”who status despite CSPA’s mathematical deportation of children have lived the in the United States for “aged out” children formula, the lives. CSPA6 These provides protection in thesometimes form of wait an most of their decades for conversion” a visa to become to lose their the place in “automatic clause,available INA § only 203(h), to allow nowline upon turning twenty-one old. adult alien to convert her years application to an appropriate visa Congress has already acted to helpdateavoid the original harsh category while letting her retain the priority from the consequences government backlogsandonpriority “aged date out” visa petition. caused Whetherbyautomatic conversion children. In 2002, Congress thebeneficiaries Child Status Protection retention apply to “aged out” enacted derivative in all familyAct or “the Act”), amending the Immigration and based(“CSPA” visa categories is the subject of the recent legal battle before the Supreme Court and the focus of this article. B.

The Problem of Immigration Backlogs

Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). A “principal beneficiary” is an individual who has a qualifying relationship withanimating a U.S. citizen Lawful Resident (‘LPR’) A central force or behind thePermanent CSPA involves concerns petitioner, who files a visa petition on behalf the principal beneficiary. over the effect of immigration backlogs on of families and children. In Derivative as the two spousekinds or minor of the principal particular,beneficiaries, legislatorsdefined described of child backlogs: (1) the beneficiary, may also be named in the principal beneficiary’s visa petition, and administrative backlog due to an immigration agency’s lack of are entitled to the same preference status, and the same priority date, as the sufficientalien. resources workload; and (2) STATE , Fits OREIGN AFFAIRS M ANUAL , 9 the FAM more 42.31 principal US DEP’TtoOF handle n. 2. serious problem which has developed because the annual number 4 See THE MERRIAM -WEBSTER DICTIONARY (1994) (defining the word of statutorily available visas is less than the number of applicants immigrate “to come which one is a native 35 notIn order for to getting inas line each into yeara country to waitoffor a visa. permanent residence”). For purposes of this article, the word may be used interchangeably with the term, “consular processing.” 5 There are two different processes for obtaining an immigrant visa: being entitled to admission without numerical limitation, the U.S. citizens' consular processing and adjustment of status. During consular processing, sons and daughters in the of the visa line at of one of the INS backlog applicants apply for are andplaced process an back immigrant a U.S. Department of family-preference categories of immigrants.”) State consulate abroad, most often in their home country. Adjustment of 32 See Neufeld, Acting Associate status is Donald the process by which a person Director already of in Domestic the U.S.Operations, has their INS, AFM Update: Status resident. ProtectionSee ActConsular of 2002 immigration status Chapter adjusted 21.2(e) to that The of aChild permanent ITIZENSHIP AND at IMMIGRATION SERVICES, available at (CSPA) (AD07-04), 2008 WL 1963663, *1 (Apr. 30, 2008). Processing, U.S. C 33 INA § 203(h). time a visa becomes available reduced by the number of days in which the visa updated Feb. 12, 2014). 6 See Brief for Plaintiffs-Appellants by American Immigration Lawyers petition was pending. INA § 203(h)(1). 35 Immigration Backlogs Separating American NATIONAL Association and Catholic Legalare Immigration Network, Inc.,Families, as Amicus Curiae, IMMIGRATION FORUM , 2695 F.3d (Aug. 2012), at at 11, De Osorio v. Mayorkas, 1003 (9th Cir. 2012)available (No. 09-56786) http://immigrationforum.org/images/uploads/FamilyBack logBackgrounder.pdf. (“AILA Amicus Brief”). 2 3

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understand different from theits“aging predecessors, out” problem particularly fully, one sincemust it had examine the benefit our country’s of two yearsfamily-sponsored of planning. immigration scheme and the visa allocation Like the system. shift36 in conference scheduling, other changes have the current immigration U.S. citizen or takenUnder place within the LatCrit entity, system, includinga concerted efforts Lawful Permanent Resident (‘LPR’) may file In a Form petition to continue a process of institutionalization. recentI-130 years, there 37 This petition forms basisniche, for a on behalf an alienfocus relative. has been aof growing on how to capitalize on itsthe critical later filedcultivating visa application. may be filedscholars, in different continue the next Petitions generation of critical and family-based categories on such factors the ensure that the baton of depending outsider jurisprudence is passedasalong. relationship thebetween the beneficiary petitioner, the Internally, organization has shifted, and including a gradual beneficiary’s marital status, and theaspetitioner changing of age the and guard in leadership, so whether to speak, well as is a a lawful permanent resident or For U.S. example, citizen. Immediate downsizing in administration. from 2008relatives, to the defined asthe spouses, or unmarried children downsized, of U.S. citizens present, Board parents, of Directors was intentionally with under the age of twenty-one, the numeric a growing number of Board are seatsexempt being from occupied by juniorlimits law that apply 6to other permanent resident visas. 38 However, for adult professors. children Another of U.S. major citizens development and all qualifying is LatCrit’s relatives acquisition of LPRs,ofthe a The physical number of space annual for the immigrant organization. visas is The statutorily property, capped. Campo39 Sano chart illustrates theor various family-based preference (Spanishbelow for “Camp Healthy,” more literally, “Camp Sanity”), is categories by located the INA:in Central Florida. 7 Purchased by a ten-acre established parcel of land LatCrit in 2011, the space is home to The Living Justice Center and the LatCrit Community Campus. 8 The physical facility serves as a means “to level the playing field and give LatCrit activists a 9 The space is intended Visas fighting chance to be heard.” Preference Description category allocated per to serve as the hub of their educational, year research, advocacy and activism to remedy the imbalance and deficiencies of the Unmarried current legal adult system. Having First 23,400 anvisas independent physical has become Preference (F-1) sons andbase daughters of per critical year 40 as universities andU.S. law citizens schools and increasingly are even less their children Second F-2A: Spouses and 114,200 visas 41 Preference: unmarried minor per year Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HARV . LATINO L. REV . 1 (1997). See also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO 36 CRITICAL See LEGAL AILA TAmicus HEORY, Brief, INC., http://latcrit.org/content/conferences/latcritsupra note 7, at 11 (illustrating the circumstances biennial-conferences/ that cause (lastavisited child toJuly “age5,out”). 2013) (providing a list of the previous 37 See INAand § 203(a), 8 U.S.C. § 1153(a) preference allocation for conferences, providing direct links to(stating view the symposia articles for some family-sponsored years (found by immigrants). following the respective year’s link to its corresponding 38 INA §§ 203(a)(1), (b)(2)(A), 8 U.S.C. § 203(a)(1), (b)(2)(A) (2012). The INA webpage). defines a “child” LatCrit as an unmarried persona under the age of twenty-one. Once a Additionally, has developed substantial body of scholarship from child turns twenty-one, or she isinter no longer deemed an immediate relative several other stand-alonehesymposia: alia the South-North Exchange, the but rather a “son” or “daughter.” 8 U.S.C. and § 1101(a)(15)(T)(ii)(I) (2012). LatCrit Study Space Series, the International Comparative Colloquia. 39 See INA § RIT 203(a)(1)-(4), : LATCRIT: 8LU.S.C. ATINA §& 1153(a)(1)-(4) LATINO CRITICAL (2012) L(listing EGAL T number HEORY, Symposia, LATC Iof NCvisas ., http://latcrit.org/content/publications/latcrit-symposium/ (last visited allocated). July405,“[F-1 2014).immigrants] shall be allocated visas in a number not to exceed 6 These include Marc-Tizoc González, Andrea and 23,400, plus any visasProfessors not required for the [F-4 category.]” INAFreeman, § 203(a)(1), 8 César U.S.C. Cuahtémoc § 1153(a)(1) García (2012). Hernández. See About LatCrit, supra note 3 (listing See INA §§ 8 U.S.C. § 1153(a)(2)(A)-(B) (2012) (stating the 41professors on203(a)(2)(A)-(B), the LatCrit Board of Directors and their respective law “[F-2A and F-2B immigrants] shall be allocated visas in a number not to schools). 7 Campo Sano, CRIT : LATINA CRITICAL LEGAL THEORY exceed 114,200, plusLAT the number (if AND any)LATINO by which such worldwide level, Iexceeds NC, http://www.latcrit.org/content/campo-sano/ visited July 5, 2014). 226,000, plus any visas not required for(last the [F-1 category]; except that Id. than 77 percent of such visa numbers shall be allocated to [F-2A not 8 less 9 Id. immigrants].”)

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I. INTRODUCTION children of LPRs F-2B: Unmarried On June 9, 2014, a dividedsons Supreme and Court issued its decision adult in Scialabba v. Cuellar de Osorio, resolving a circuit split over the daughters of LPRs statutory our nation’s Thirdconstruction of Married sonscomplex and immigration 23,400 laws. visas2 The plurality held that most children are per listed as42derivative Preference (F-3) daughters of who U.S. year parents’ family-based immigrant petitions, beneficiaries 3 on their citizens but who turn twenty-one Brothers years old and “age waiting for Fourth andout” while 65,000 visas 43 original visas to become be able to retain their Preference (F-4) available, sisterswill of not adult U.S. per year priority dates and immigrate citizens 4 or adjust status 5 along with their parents. Rather, they will need to start the process anew by having file a new petition once they In their order parents for an applicant to immigrant determine whether a visa is become lawful permanent residents. available in her family-based preference category, she must The her ruling impacts thousands “aged U.S. out” compare priority date the withfutures the dateoflisted in the of monthly 44 children and threatens the separation of families and the Department of State Visa Bulletin. The “priority date” is the date deportation of children who have lived in the United States the petition is filed, which essentially holds the applicant’s place for in out” children sometimes most of their lives. 6 These line. The applicant’s visa is“aged available when her priority wait date decades a visa to becomethat available only todate lose istheir place in becomes for “current,” meaning her priority earlier than line upon turning twenty-one years old. that listed on the Visa Bulletin under the corresponding Congress has and already to help 45 avoid the harsh preference category countryacted of nationality. consequences caused by government on “aged out” Visa backlogs arise in part becausebacklogs of differences in supply children. In 2002, Congress enacted the Child Status Protection and demand within the visa allocation system. Specifically, each Act or “the Act”), amending the Immigration and year, (“CSPA” the number of available visas in family-based preference categories is vastly exceeded by the number of applicants. 46 2B)

(F-2A and F-

Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). “[F-3 A “principal immigrants] beneficiary” shall be allocated is an individual visas in awho number has not a to qualifying exceed relationship 23,400, plus any withvisas a U.S. not required citizen for or the Lawful [F-1,Permanent F-2A, and F-2B Resident categories].” (‘LPR’) petitioner, INA § 203(a)(3), who 8files U.S.C. a visa § 1153(a)(3) petition (2012). on behalf of the principal beneficiary. 43 “[F-4beneficiaries, immigrants] defined shall beasallocated visas a number exceed Derivative the spouse or in minor child ofnot thetoprincipal 65,000, plus may any also visasbenot required forprincipal the [F-1 and F-3 categories].” INA § beneficiary, named in the beneficiary’s visa petition, and 203(a)(4), 8 U.S.C. 1153(a)(4) (2012).status, and the same priority date, as the are entitled to the §same preference 44 David N. US Simmons, DEP’T OF Immigrating STATE , FOREIGN to the United AFFAIRSStates MANUAL Based , 9 FAM on Family 42.31 principal alien. Status, n. 2. 40 COLO. LAW. 45, 46 (June 2011). The Visa Bulletin is available in See Tand HE M ERRIAM -Wformats. EBSTER D ICTIONARY (1994) U.S. (defining word both4 print electronic See Visa Bulletin, Dep’tthe of State immigrate into of a country whichBulletin”], one is not available a native for [hereinafteras “to U.S.come Dept. State ofVisa at permanent residence”). For purposes of this article, the(providing word may archived, be used interchangeably with the bulletins); term, “consular processing.” current, and upcoming see also NATIONAL IMMIGRATION FORUM , 5 There areattwo processes for obtaining supra note 25, 2-3 different (explaining what priority dates arean andimmigrant describingvisa: the consular and adjustment of status. During consular processing, purpose ofprocessing the Visa Bulletin). 45 AILAapply Amicus supra note at 11-12. visa at a U.S. Department of applicants forBrief, and process an 7, immigrant 46 To arrive at the quota these numberAdjustment of immediate State consulate abroad, most for often in categories, their home the country. of relatives the previous year in is subtracted fromtheir the status is who the immigrated process by in which a personfiscal already the U.S. has total allocation of 480,000, andtothe number of unused employment-based visas immigration status adjusted that of a permanent resident. See Consular CITIZENSHIP ANDPryor, IMMIGRATION , available at is then added to that amount. See supra noteSERVICES 20, at 2205 (calculating Processing, U.S. (last immigration has not met the demand.”). updated Feb.system 12, 2014). 46 See 6 NATIONAL Brief for IMMIGRATION Plaintiffs-Appellants FORUM , supra by American note 25, Immigration at 3; see also Lawyers AILA Amicus Association Brief, andsupra Catholic noteLegal 4, at 14-15 Immigration (statingNetwork, that “[t]heInc., number as Amicus of F-2B Curiae, visas at available 11, De toOsorio Mexico v. Mayorkas, is 1,841. The 695number F.3d 1003 of (9th pending Cir. F-2B 2012) applicants (No. 09-56786) from (“AILA Mexico Amicus is 212,621. Brief”). The length of time it will take to clear up the current 2

42 3

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Accordingly, different fromapplicants its predecessors, in family-based particularly preference since itcategories had the benefit must wait, of twosometimes years of planning. indefinitely, for a visa in their category to become available. Like The the shift resultinis conference that families scheduling, are often kept otherapart changes for many have taken years. 47place within the LatCrit entity, including concerted efforts to continue a process of institutionalization. In recent years, there The Problem of VisaonEligibility has been C.a growing focus of on“Aging how toOut” capitalize its critical niche, continue cultivating the next generation of critical scholars, and A derivative beneficiary “ages out” and becomes ineligible for ensure that the baton of outsider jurisprudence is passed along. an immigration when she of age, Internally, the benefit organization hasreaches shifted,twenty-one includingyears a gradual and thus loses qualifying “child” status, changing of theherguard in leadership, so to before speak,her as application well as a is processedin oradministration. a visa becomes preference downsizing For available example, in fromher2008 to the 48 Prior enactment the CSPA indownsized, 2002, in order category. the present, Boardto ofthe Directors wasofintentionally with forgrowing a “child” derivative beneficiary to beoccupied grantedbya junior visa, law the a number of Board seats being 6 government needed to adjudicate her petition and grant professors. Another status major before development is LatCrit’s acquisition of a immigration she “aged out,” or turned twenty-one 49 Under thisorganization. regime, the child had to remain a “child” physical space for the The property, Campo Sano years of age. under immigration up to and including the “Camp date that the final (Spanish for “Camp law Healthy,” or more literally, Sanity”), is 50 Due 7 Purchased to adjudicative and limited visa by benefit wasparcel granted. a ten-acre of land located in Central delays Florida. availability, LatCrit in 2011, countless the space children is home who applied to The as Living dependents Justice ofCenter their The physical facility parents and the LatCrit lost eligibility Community and Campus. had to 8 switch into an adultserves visa as a means “to they level reached the playing and give LatCrit activists a category when theirfield 21st birthday, at which point 9 The space“child” is intended fightingwere chance be heard.” they noto longer considered dependents under immigration law. 51 Upon switching into an adult visa category, these to “aged out” as beneficiaries lost their place in line under the serve the hub also of their educational, research, quota advocacy system. 52 and activism to remedy the imbalance and deficiencies of the current legal system. Having an D. Legislative Concerns overbase the Effect Backlogscritical on “Aged independent physical has ofbecome asOut” Children universities and law schools increasingly are even less Due to current backlogs and anticipated demands, “aging out” carries a devastating price for children who are derivatives on a Naming and Launching a New Discourse of Critical Legal Scholarship, 2 parent’s visaL.petition. Generally, they must wait for their parent HARV . LATINO REV . 1 (1997).

See also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcritbacklog is approximately years 1,841). [. . a.] list Theofnumber of Fbiennial-conferences/ (last115.5 visited July(212,621 5, 2013)÷ (providing the previous 2B visas available to the Philippines is also The number of pending Fconferences, and providing direct links to 1,841. view symposia articles for some 2B applicants the Philippines is 52,823. year’s The length it will take to years (found from by following the respective link of to time its corresponding clear up the current backlog is approximately 28.7 years (52,823 ÷ 1,841)”). webpage). 47 NATIONAL LatCrit IMMIGRATION FORUM , asupra note 38, see also AILA Additionally, has developed substantial bodyatof2;scholarship from Amicus Brief, stand-alone supra note 7, at 14-15inter (“The number of F-2B visas availablethe to several other symposia: alia the South-North Exchange, Mexico is 1,841. The the number of pending applicants from Mexico is Study Space Series, International and F-2B Comparative Colloquia. LatCrit CRIT: of LATtime CRIT:it Lwill ATINA & toLATINO CRITICAL LEGALbacklog THEORYis, Symposia, 212,621. The LATlength take clear up the current Iapproximately NC., http://latcrit.org/content/publications/latcrit-symposium/ 115.5 years (212,621 ÷ 1,841). […] The number (last of F-2Bvisited visas July 5, 2014). available to the Philippines is also 1,841. The number of pending F-2B 6 Thesefrom include Professors Marc-Tizoc González, applicants the Philippines is 52,823. The length Andrea of time Freeman, it will takeand to César Cuahtémoc García Hernández. See About supra ÷note 3 (listing clear up the current backlog is approximately 28.7LatCrit, years (52,823 1,841)”). Seipp, supra at 1902. the 48professors on note the 17, LatCrit Board of Directors and their respective law 49 AUSTIN T. FRAGOMEN, JR., CAREEN SHANNON & DANIEL MONTALVO, schools). 7 Campo Sano, PROCEDURES LATCRIT H:ANDBOOK LATINA AND § 12:26 LATINO (May C 2014). RITICAL LEGAL THEORY, IMMIGRATION INC,50http://www.latcrit.org/content/campo-sano/ Id. (last visited July 5, 2014). 51Id. 8 Id. 52Id. 9 Seipp, supra note 17, at 1902.

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to become a lawful permanent I. INTRODUCTION resident so that their parent can file a new petition on their behalf in the F-2B category, accorded to adultOn sons June and9,daughters 2014, a divided of lawful Supreme permanent Court residents. issued its For decision many in “aged Scialabba out” derivative v. Cuellar beneficiaries de Osorio, who resolving lose their a circuit placesplit in line over and the statutory must waitconstruction for a new F-2B of ourpetition nation’sto complex be filed immigration on their behalf laws. by2 The plurality that most children who impossible are listed as their parents, held it becomes mathematically forderivative them to 3 on based 53 Many petitions, their parents’ immigrant aged out beneficiaries ever immigrate on these family-based new petitions. derivative but who turn beneficiaries twenty-onehave years already old and been “agewaiting out” while for decades waiting for a visas visatotobecome becomeavailable, availablewill in the not be category able toinretain which their theyoriginal “aged 4 or adjust 5 along out,” priority anddates unless and they immigrate can be credited withstatus the time that with they their have parents. been Rather, they for will aneed start will the have process by already waiting visa,to they to anew wait an 54 Given having their parents file for a new once they additional decade or more a visaimmigrant to become petition available. current lawful visa permanent wait times, the worldwide F-2B category is become residents. backlogged approximately seven yearsof according August The ruling impacts the futures thousandstoof the “aged out” 55 2014 Visa and Bulletin. children threatens the separation of families and the Senator ofDiane Feinstein illuminated consequences deportation children who have lived inthe thetragic United States for These when “aged she out”introduced children sometimes of “aging out” upon a version ofwait the most of their lives. 6families decades visa toin become CSPA to for the aSenate 2001: available only to lose their place in line upon turning twenty-one years old. Congress acted to for helpadmission avoid the harsh [A] family has whosealready child's application to the consequences caused United States has by beengovernment pending for backlogs years mayonbe “aged forced out” children. In 2002, Congress enacted Child the Status to leave that child behind eitherthe because INSProtection was Act unable (“CSPA”to oradjudicate “the Act”), amending the the application beforeImmigration the child's and 21st birthday, or because growing immigration backlogs in the immigration visa category caused the visa to be unavailable before the child reached his 21st birthday. 2 Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). 3 […] Situations like theseis leave both the who family the A “principal beneficiary” an individual hasand a qualifying relationship witha adifficult U.S. citizen or Lawful child in dilemma. […] Permanent EmigratingResident parents(‘LPR’) petitioner, files to a visa petition the principal mustwho decide either comeon tobehalf the ofUnited Statesbeneficiary. and Derivative as the minor child of the principal leavebeneficiaries, their childdefined behind, or spouse remainor in their country of beneficiary, may also be named in the principal beneficiary’s visa petition, and origin and lose out on their American dream in the are entitled to the same preference status, and the same priority date, as the United lawful permanent residents who 42.31 T OF For STATE , FOREIGN AFFAIRS M ANUAL, 9 FAM principal alien. States. US DEP’[…] n. 2. already live in the United States, their dilemma is 4 See THE MERRIAM -WEBSTER DICTIONARY (1994) (defining the word different. They must make the difficult choice of either immigrate as “to come intowho a country of which one is not a native for sending their child has “aged-out” of visa eligibility permanent residence”). For purposes of this article, the word may be used back to their country of origin, or have the child stay in interchangeably with the term, “consular processing.” 5 the in violation of our visa: There United are two States differentout-of-status, processes for obtaining an immigrant consular processing and of status. Duringtoconsular processing, immigration laws,adjustment and thus, vulnerable deportation. applicants apply for and process an immigrant visa at a U.S. Department of State consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the U.S. has their 53 AILA Amicus supra immigration status Brief, adjusted to note that 7,ofata16. permanent resident. See Consular 54 Id. Processing, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, available at 55 For Filipinos, the F-2B category is backlogged about 11 years. And for (last the estimated wait time for Mexicans in the F-2B category has come close to updated Feb. 12, 2014). See Brief Plaintiffs-Appellants American Immigration Lawyers 100 6years. AILA for Amicus Brief, supra note by 7, at 16. Under such circumstances, Association Catholic Legal Immigration Inc., who as Amicus it would be and mathematically unfeasible for a Network, Mexican child turns Curiae, 21 and at 11, De Osorio v. Mayorkas, 695 F.3d 1003 on (9thher Cir.behalf 2012) (No. whose LPR parent files an I-130 petition today09-56786) to ever (“AILA Amicus Brief”). immigrate or adjust status based on that petition. Id.

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different No law from should its predecessors, encourage this particularly course of since action.it56had the benefit of two years of planning. Like Senator theFeinstein’s shift in conference statement scheduling, highlights the other main changes legislative have taken concerns place behind withinthe theCSPA. LatCritInentity, enacting including the CSPA, concerted Congress efforts to sought continue to preserve a process family of institutionalization. unity in situationsInwhere recentchildren years, there “age has out” been of avisa growing eligibility. focus onMore how to importantly capitalize onfor its critical this article’s niche, continue discussion,cultivating her statement the next memorializes generation the of critical legislature’s scholars, concern and ensure over “aging that out” the situations baton of outsider caused by jurisprudence both adjudicative is passed delays along. and Internally, immigration thebacklogs organization withinhas the shifted, visa including allocationa gradual system. changing Legislativeof concerns the guardover in leadership, “aging out” so tosituations speak, as caused well as by a downsizing immigration inbacklogs administration. were raised For byexample, the CSPA’s from proponents 2008 to the in present, both the the Board House of Directors of Representatives was intentionally and downsized, Senate. with U.S. a Representative growing number Sheila of Board Jackson seatsLee beingstated occupied thatby the juniorCSPA law professors. “addresses 6 the predicament of […] immigrants” who have “aged major development is “are LatCrit’s acquisition a out” Another of immediate relative status and placed in the back ofofthe physical space for INS the organization. The property, Campo Sano line of one of the backlogged family-preference categories of 57 (Spanish for “Camp Healthy,” or more literally, “Camp Sanity”), is immigrants.” Purchased by As discussed Parts II andinIII of thisFlorida. article,7 the legislative a ten-acre parcel ofinland located Central LatCrit in 2011, space home toa The Justice Center intent behind thethe CSPA hasis become focalLiving point in the current physicalconversion” facility serves and the split LatCrit Campus. circuit overCommunity the applicability of8 The “automatic for as a means “to level beneficiaries. the playing field and give LatCrit activists a “aged out” derivative fighting chance to be heard.” 9 The space is intended E. How the Child Status Protection Act Works for Derivative to serve as the hub Beneficiaries of their educational, research, advocacy and activism to remedy the imbalance and deficiencies the current legalthesystem. Having an The CSPA ofseeks to address problem of derivative independent physical has becomebenefits critical due as to beneficiaries “aging out” base of immigration universities and and law adjudicative schools increasingly even lessways. immigration backlogs delays inare two basic First, the CSPA applies a complex mathematical formula to determine whether an applicant may retain status as a “child” for immigration purposes despite having turned 21 before a visa Naming and Launching a New Discourse of Critical Legal Scholarship, 2 58 If the mathematical formula determines that becomes available. HARV . LATINO L. REV . 1 (1997). CRIT: Lfor ATINA & LATINO also LatCrit Biennial theSee applicant does not retainConferences, status as L aAT“child” immigration CRITICAL Lthe EGALCSPA THEORY , INC., to http://latcrit.org/content/conferences/latcritpurposes, attempts preserve her place in the visa line biennial-conferences/ visited Julyher 5, 2013) (providing list of the previous by automatically (last converting petition to athe “appropriate” conferences, and providing direct links to view symposia articles for some category. This allows the applicant to retain the priority date of years (found by following the respective year’s link to its corresponding the original petition, rather than assigning her a new priority webpage). Additionally, LatCrit has developed a substantial body of scholarship from date. several other stand-alone symposia: inter alia the South-North Exchange, the

Series, Complex the International and Comparative 1.Study StepSpace #1: CSPA’s Mathematical Formula Colloquia. LatCrit

Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited The CSPA provides for the following mathematical formula to July 5, 2014). include aliens Professors Marc-Tizoc Freeman, help6 These prevent from losingGonzález, “child”Andrea status due and to César Cuahtémoc García Hernández. See About LatCrit, supra note 3 (listing the professors on the LatCrit Board of Directors and their respective law schools). 56 147 7 Campo CONG Sano, . REC.LS3275-01 ATCRIT: L(Apr. ATINA2,AND 2001) LATINO (statement CRITICAL of Sen. LEGAL Feinstein). THEORY, INC,57http://www.latcrit.org/content/campo-sano/ 147 CONG. REC. H2901-01 (June 6, 2001) (last (statement visited July of Rep. 5, 2014). Jackson8 Id. Lee). 58Id. 9 INA § 203(h)(1), 8 U.S.C. § 1153(h)(1) (2012).

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administrative delays in I. adjudicating INTRODUCTION their I-130 petitions. For derivative applicants seeking to adjust under a preference category, On June an applicant’s 9, 2014, a divided adjustedSupreme age under Court the issued CSPA,its ordecision “CSPA in age” Scialabba is determined v. Cuellar by taking de Osorio, her age resolving on the a circuit date a split visa becomes over the statutory available and construction subtracting of our the number nation’s of complex days that immigration the petition laws. was2 59 If the under 21 this formula, she The plurality held applicant that mostischildren whousing are listed as derivative pending. on their parents’ for family-based immigrant If the applicant’s petitions, satisfies the3 age requirement that visa. 60 beneficiaries CSPA but who ageturn is 21twenty-one or over, she years mustold look andto “age “Stepout” 2.” while waiting for visas to become available, will not be able to retain their original 4 or adjust status 5 along with their priority Calculating dates and“CSPA immigrate Age” parents. Rather, they will need to start the process anew by having their parents file a new Mathemati “[T]he age immigrant of the alienpetition on theonce datethey on become lawful permanent cal Formula which residents. an immigrant visa number becomes theforfutures of thousands of “aged for The ruling impacts available such alien […] reduced by […]out” the children and threatens separation of families and the Determining number the of days in the period during which deportation who have lived thepending. United 61States for CSPA Age of children applicable petition […]inwas childrenavailable sometimes most of their lives. 6 These Age on“aged date out” visa number = 22wait decades for a visa to become available onlypending to lose =their place in Sample Time I-130 petition 2 years line upon turning Application #1: twenty-one CSPAyears Age =old. [22 years] – [2 years] Congress has already acted (not to aged help out) avoid the harsh = 20 years consequences caused by backlogsavailable on “aged Agegovernment on date visa number = 22out” children. In 2002, Congress the Child Status Protection Sample Time enacted I-130 petition pending = 6 months Act (“CSPA” #2: or “the CSPA Act”), Age amending the [6 Immigration Application = [22 years]– months] 62 and = 21 years (aged out) 2 Scialabba Significantly, thedeCSPA allows an applicant to retain v. Cuellar Osorio,formula 134 S. Ct. 2191 (2014). 3 A status “principal beneficiary” is purposes an individual a not qualifying “child” for immigration wherewho she has would have relationship a U.S. or Lawful delay Permanent Resident (‘LPR’) “aged out” with but for the citizen administrative in adjudicating her petitioner, who files However, a visa petition behalf formula of the principal beneficiary. visa application. the onCSPA does not allow Derivative beneficiaries, defined as the spouse or minor child of the principal retention of where she “aged out” as resultand of beneficiary, may“child” also be status named in the principal beneficiary’s visa apetition, immigration backlogs associatedstatus, with and limited visapriority availability. To are entitled to the same preference the same date, as the DEP’Ttype OF Sof TATE , FOREIGNthe AFFAIRS 42.31 principal address alien. this US second backlog, CSPAMANUAL offers, 9aFAM different n. 2. ameliorative measure: the “automatic conversion” clause under 4 THE MERRIAM -WEBSTER DICTIONARY INA §See 203(h)(3), as discussed below in “Step(1994) #2.” (defining the word

immigrate as “to come into a country of which one is not a native for permanent residence”). For purposes of this article, the word may be used interchangeably with the term, “consular processing.” 5 There are two different processes for obtaining an immigrant visa: consular processing and adjustment of status. During consular processing, applicants apply for and process an immigrant visa at a U.S. Department of State consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the U.S. has their 59 INA § 203(h)(1), 8 U.S.C.to§ 1153(h)(1) (2012). immigration status adjusted that of a permanent resident. See Consular 60 INA § 203(h)(1), 8 U.S.C. § 1153(h)(1) AND IMMIGRATION (2012). SERVICES, available at Processing, U.S. CITIZENSHIP 61 INA §§ 203(h)(1)(A)-(B), 8 U.S.C. § 1153(h)(1)(A)-(B) (2012). (last to become available. The applicants were the same age when a visa became updated Feb. 12, 2014). 6 See and Brieftheforonly Plaintiffs-Appellants by American Immigration available, reason for the different outcomes under the Lawyers CSPA is Association Catholic Legal Immigration Network, Inc., longer as Amicus Curiae, that it tookand Sample Application #1’s petition significantly to process. at 11, De§ Osorio v. Mayorkas, 695 the F.3dformula 1003 (9th 2012) (No. 09-56786) See INA 203(h)(1) (setting forth for Cir. calculating an applicant’s (“AILA Amicus Brief”). age).

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2.different Step #2:from If the itsApplicant’s predecessors, “CSPA particularly age” Is 21 since or Above, it had Automatic the benefit ofConversion two years ofand planning. Priority Date Retention Like the shift in conference scheduling, other changes have takenIf place the within applicant’s the LatCrit adjustedentity, age is including 21 or concerted over, then efforts the to applicant continuehas a process “aged out.” of institutionalization. She will no longerInqualify recent as years, a “minor there has child” been based a growing on her relationship focus on howtotoher capitalize parents,onsoits she critical will have niche, to continue pursue status cultivating as anthe“adult next son generation or daughter” of critical of scholars, her parents. and ensure However, thatthe the CSPA’s baton of outsider automaticjurisprudence conversion isand passed retention along. Internally, provisions allow the her organization to switch to has a new shifted, category including while maintaining a gradual changing the same priority of the date guardfrom in the leadership, original so petition. to speak, as well as a downsizing Under INA in administration. § 203(h), the “automatic For example, conversion” from 2008 provision to the of present, the CSPA, the“the Board alien's of Directors petition shall was intentionally automatically downsized, be converted with to a thegrowing appropriate number category of Board and seats the alien beingshall occupied retainbythe junior original law 6 issued upon receipt of the original petition.” 63 Thus, if professors. priority date the son Another or daughter major has development a CSPA age is ofLatCrit’s 21 or older, acquisition his or her of case a physical will automatically space for be the switched organization. to a The petition property, in theCampo appropriate Sano (Spanish family-based for “Camp category, Healthy,” i.e., aor second-preference more literally, “Camp petition Sanity”), for an is Purchased by a adult ten-acre son or parcel daughter of land of located a permanent in Central resident Florida. or a 7first-preference 64 LatCrit in 2011, the spaceadult is home The Living Center petition for an unmarried son ortodaughter of a Justice U.S. citizen. 8 physical Additionally, theCommunity applicant Campus. is able toThe retain the facility priorityserves date and the LatCrit 65 and give LatCrit activists a as a meanswith “to the leveloriginal the playing field associated petition. 9 The space is intended Automatic conversion relatively straight-forward, for fighting chance to be heard.”seems instance, where the applicant is the direct beneficiary of a petition to the serve the hub of LPR their parent. educational, research, filed in F-2Aascategory by her In these cases, if the advocacy remedy the status, imbalance and can applicant “ages and out” activism and loses to“minor child” her case deficiencies of the current legal system. Having an sons convert to the appropriate F-2B category, for unmarried adult independent physical become as and daughters of LPRs. Thus,base therehas clearly exists critical an “appropriate universities andher lawpetition schools may increasingly are even less as category” to which automatically convert, provided under INA §203(h), the CSPA’s “automatic conversion” provision. However, a different and less clear situation arises where the Naming and Launching a New Discourse of Critical Legal Scholarship, 2 applicant is L. a derivative beneficiary 66 on her parent’s petition filed HARV . LATINO REV . 1 (1997). RIT: LATINA & LATINO LatCrit Biennial Conferences, by See the also parent’s mother, father, brother L orATC sister. The problem is C RITICAL THEORY, Iapplicant NC., http://latcrit.org/content/conferences/latcritthat onceLEGAL the derivative “ages out” and loses her “minor biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some years (found by following the respective year’s link to its corresponding 63 INA § 203(h)(3). webpage). 64 FRAGOMEN,LatCrit ET AL., has supra note 52. a substantial body of scholarship from Additionally, developed 65 Id.; see stand-alone also H.R. Rep. No. 107-45, atthe 2-3South-North (2001), reprinted in 2002 several other symposia: inter alia Exchange, the U.S.C.C.A.N. (stating that Child Status Protection Act Study Space 640, Series,641-642 the International andthe Comparative Colloquia. LatCrit CRIT : LATCRIT: L & Lan ATINO CRITICAL LEGALorTson HEORY provides that the determination ofATINA whether unmarried daughter of a, Symposia, LAT Icitizen NC., http://latcrit.org/content/publications/latcrit-symposium/ (lastwasvisited is a child is made using the age that the time the application filed); July 5, 2014). Johnny N. Williams, O FFICE OF THE EXECUTIVE ASSOCIATE COMMISSIONER, These Status includeProtection Professors Marc-Tizoc González, Andrea Freeman, and The6 Child Act, Memorandum Number 2, 1 (Feb. 14, 2003) César Cuahtémoc García Hernández. See LatCrit, supra note 3 (listing (stating that the provisions of the CSPA areAbout not retroactive). A “principal beneficiary” is an whotheir has respective a qualifying the 66professors on the LatCrit Board of individual Directors and law relationship with a U.S. citizen or LPR petitioner. Derivative beneficiaries are schools). 7 Campo Sano, LATCRIT LATINA beneficiaries, AND LATINO may CRITICAL LEGAL THEORY spouses or minor children of : principal also be named in the, INC, http://www.latcrit.org/content/campo-sano/ (last visited 5, 2014). principal beneficiary’s visa petition, and are entitled to theJuly same preference 8 Id.and the same priority date, as the principal alien. US DEP’T OF STATE , status, 9 Id. AFFAIRS MANUAL 9 FAM 42.31 n. 2 (1999). FOREIGN

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child” status, there isI. noINTRODUCTION “appropriate category” to which her petition can immediately convert. She can no longer be a derivative On June on her 9, 2014, parent’s a divided petition, Supreme nor does Court she issued qualifyits fordecision a visa in based Scialabba on her v. relationship Cuellar detoOsorio, the petitioner, resolvingasa one circuit cansplit see from over the statutory preference construction category chart of ourabove, nation’snocomplex visa category immigration exists laws. for2 The plurality held thatormost children who citizens are listed derivative grandchildren, nieces nephews of U.S. or as LPRs. Once onprincipal their parents’ family-based petitions, beneficiaries the parent, 3the beneficiary, becomes immigrant an LPR, the parent but twenty-one old son and or “age out” while waiting for can who file aturn petition for theyears “adult daughter.” The question visas to become not be to retaincan their original that has vexed available, courts is will whether theable applicant retain the 5 along adjustforstatus with their priority date datesfrom and the immigrate original4 or petition a petition subsequently parents. Rather, theyThe willcontroversy need to start the process by filed by the parent. surrounding this anew question having parentsoffile a new interpretation, immigrant petition once they involves their a question statutory specifically how become lawfulinterpreted permanent the residents. courts have automatic conversion and retention The of ruling impacts the futures of thousands of “aged out” language the CSPA. children and threatens the separation of families and the DECISION , THE ENSUING SPLIT, AND THEfor deportation of Schildren who have lived C inIRCUIT the United States III. THE BIA’ These UPREME “aged COURT out”BATTLE children sometimes wait most of their lives. 6 S decades for a visa to become available only to lose their place in line upon A. turning The BIA’s twenty-one Precedential yearsRuling old. in Matter of Wang Congress has already acted to help avoid the harsh consequences The CSPA, caused a statute by government created to facilitate backlogs and on “aged hasten out” the children. reunification In 2002, of immigrants Congress enacted with their the Child U.S. Status citizen Protection and LPR 67 has or been“the narrowly the Immigration BIA in Matterand of Act families, (“CSPA” Act”), interpreted amending bythe Wang to limit the applicability of the automatic conversion provision to a narrow subset of family-based visa petitions. 68 In Matter of Wang, a U.S. citizen filed a fourth preference (F2 Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). 3 4) petition on behalf of a brother 1992. The brother's and A “principal beneficiary” is aninindividual who has a wife qualifying relationship withwere a U.S. citizen or Lawful beneficiaries. Permanent Resident three children listed as derivative By the(‘LPR’) time petitioner, who immigrant files a visa was petition on behalf of the beneficiary. the principal admitted as an LPRprincipal in October 2005, Derivative defined as the or minor child of the the principal one of hisbeneficiaries, three children aged out.spouse In September 2006, brother beneficiary, may also be named in the principal beneficiary’s visa petition, and filed a second-preference (F-2B) petition on behalf of his now adult, are entitled to the same preference status, and the same priority date, as the unmarried daughter, that she be assigned priority OF STATE , FOREIGN AFFAIRS MANUAL, the 9 FAM 42.31 principal alien. US DEP’T requesting n. 2. of December 28, 1992 given to the F-4 visa petition that had date 4 See THE MERRIAM -WEBSTER DICTIONARY (1994) (defining the word been filed on his behalf by his U.S. citizen sister, the beneficiary’s immigrate as examining “to come into country of whichan one is not abeneficiary native for aunt. After the aissue of whether aged-out permanent residence”). For purposes of this article, the word may be used of an F-2B petition could retain the priority date from the earlier interchangeably with the term, “consular processing.” 69 F-45 petition, thetwo BIAdifferent denied processes the request. There are for obtaining an immigrant visa: consular and adjustment of status.byDuring consular Theprocessing BIA arrived at its conclusion examining theprocessing, CSPA’s 70 First, applicants for and process an immigrant visa at a U.S. Department of language,apply regulatory framework, and legislative history. State consulate most often in it their home country. Adjustment of with regard toabroad, the statute’s text, determined that the language status is the process by which a person already in the U.S. has their of the “automatic conversion” provision under INA § 203(h)(3) was immigration status adjusted to that of a permanent resident. See Consular ambiguous, holding that AND it “does not expressly which CITIZENSHIP IMMIGRATION SERVICES,state available at Processing, U.S. (last 67 148 ONG2014). . REC. H4989-91 (July 22, 2002) (statement of Rep. updated Feb.C12, 6 See Brief for Plaintiffs-Appellants by American Immigration Lawyers Sensbrenner). 68 Matterand of Wang, 25 I. & N.Immigration Dec. at 39. Network, Inc., as Amicus Curiae, Association Catholic Legal 69 Id. 38-39. v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012) (No. 09-56786) at 11, DeatOsorio 70 Id. at 33 n.7. (“AILA Amicus Brief”).

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dates.” 71 from its predecessors, particularly since it had the benefit different of two Second, years ofafter planning. finding ambiguity in the language of the “automatic Like theconversion” shift in conference provision,scheduling, INA § 203(h)(3), other changes the have BIA taken considered place the within usage the ofLatCrit “conversion” entity, including and “retention” concerted in efforts other to regulations continue in a process order toof determine institutionalization. the legislative In recent intentyears, behindthere the 72 The BIA reasoned that because has “automatic been a growing conversion” focusclause. on how to capitalize on its critical niche, the term cultivating “conversion” refers ofto critical a visa scholars, petition that continue theconsistently next generation and moves from category another in immigration regulations, ensure that one the baton of to outsider jurisprudence is passed along. the beneficiary that petition has transfers her classification does Internally, the of organization shifted, including a but gradual the as BIAwell asserted not need to new visa petition. 73 Moreover, changing of file the a guard in leadership, so to speak, as a that the concept of “retention” For of priority dates has2008 historically downsizing in administration. example, from to the been limited to visaof petitions the same downsized, family member, present, the Board Directorsfiled was by intentionally with whereas by relatives received theirbyown priority a growingpetitions numberfiled of Board seats being occupied junior law 6 when the beneficiary’s daughter “aged out” dates. 74 Therefore, professors. from Another her eligibility major fordevelopment derivative status is LatCrit’s on the F-4 acquisition petition, there of a was physical no family space preference for the organization. category thatThe her property, visa could Campo be converted Sano to (Spanish becauseforno“Camp visa category Healthy,” recognizes or more the literally, niece of “Camp a U.S. Sanity”), citizen. 75 is 7 Purchased by Also, the BIA found thatlocated becausein the new F-2B petition was filed a ten-acre parcel of land Central Florida. LatCrit in 2011,petitioner, the space her is home The Living Center by a different father,to allowing her Justice to retain the and the LatCrit priority date of Community the originalCampus. petition8 The filedphysical by herfacility aunt serves would 76 activists a as a means theusage playing fieldterm and “retention.” give LatCrit conflict with “to the level historic of the 9 is intended Third, the to BIA examinedThe thespace statute’s legislative history for fighting chance be heard.” clear evidence of congressional intent to expand historical use of to serve as theconversion” hub of their the terms “automatic and educational, “priority dateresearch, retention.” 77 The BIA, citing members of the House advocacy andstatements activism tofrom remedy the imbalance and of Representatives, that the legal CSPAsystem. was principally focused deficiencies observed of the current Having an on extensive administrative delayshasin become the processing independent physical base critical of as visa 78 Theincreasingly BIA contended petitions and applications. universities and law schools are eventhat less the legislative record of the CSPA does not provide “clear evidence” that it aimed to address waits due to visa allocation issues, such as long waits associated with priority dates. 79 The Board found that if Naming and Launching a New Discourse of Critical Legal Scholarship, 2 automatic and priority date retention for F-4 visas H ARV . LATINOconversion L. REV . 1 (1997). : LATINA & LATINO Seeallowed, also LatCrit Biennial Conferences, LATCRIT were the beneficiary would displace other applicants who C RITICAL THEORY , INC., inhttp://latcrit.org/content/conferences/latcrithad beenLEGAL waiting longer that category. 80 The BIA then biennial-conferences/ visited Julyconversion” 5, 2013) (providing a list of the concluded that the(last “automatic clause does notprevious apply conferences, and providing direct links to view symposia articles for some broadly to all “aged out” derivative beneficiaries, finding that years (found by following the respective year’s link to its corresponding “there is no indication in the statutory language or legislative webpage). Additionally, has developed substantialtobody of scholarship from history of the LatCrit CSPA that Congressa intended create a mechanism several other stand-alone symposia: inter alia the South-North Exchange, the Study Space Series, the International and Comparative Colloquia. LatCrit 71 Id. at L 33 AT(interpreting CRIT: LATCRIT INA : L§§ ATINA 203(h)(1)-(3)). & LATINO CRITICAL LEGAL THEORY, Symposia, INC.,72 Id.http://latcrit.org/content/publications/latcrit-symposium/ at 33-34. (last visited at 35. July735,Id.2014). 74 These 6 Id. include Professors Marc-Tizoc González, Andrea Freeman, and 75 Id. at 35-36. García Hernández. See About LatCrit, supra note 3 (listing César Cuahtémoc Id. at 34-36. the 76professors on the LatCrit Board of Directors and their respective law 77 Id. at 36-38. schools). 78 Campo 7 Id. at 36-38, Sano, citing LATCRIT 147 : LATINA CONG. AND REC.LATINO H2901 C(daily RITICAL ed.LEGAL June 6, THEORY 2001), INC, http://www.latcrit.org/content/campo-sano/ (last visited July 5, 2014). (statements of Reps. Sensenbrenner, Jackson-Lee, and Smith). 79Id. 8 Id. at 38. 80Id. 9 Id.

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to avoid the natural consequence I. INTRODUCTION of a child aging out of a visa category because of the length of the visa line.” 81 In its ruling, the BIA On acknowledged in aa footnote that it was disregarding prior June 9, 2014, divided Supreme Court issued its its decision cameover to the unpublished opinion in de Matter of resolving Garcia, 82a which in Scialabba v. Cuellar Osorio, circuit split opposite on aofsimilar set of facts. statutoryconclusion construction our nation’s complex immigration laws. 2 The The plurality held result that most who are decision listed as isderivative practical of thechildren Matter of Wang that the on their parents’ immigrant petitions, beneficiaries priority date3 established by thefamily-based earlier fourth-preference petition but who be turn twenty-one years old and second-preference “age out” while waiting for cannot applied to the later-filed petition, visas to the become available, able in to line retain their the original causing beneficiary to will lose not her be place within visa 5 along or adjustisstatus with their priority dates and Rather, immigrate allocation system. the 4applicant assigned a new priority parents. Rather, they will to start the process anew by date and is not credited with need the time she has spent waiting under 83 having their parents immigrant once they the earlier petition for afile visaa tonew become available.petition become lawful permanent residents. B. The In The ruling impacts theCircuits futuresWeigh of thousands of “aged out” children and threatens the separation of families and the A split ofamong circuit has in developed concerning deportation children whocircuits have lived the United States the for 6 Theseby“aged out” children sometimes wait scope of protection the CSPA for applicants who “aged most their lives.afforded decades for a visaastoderivative become available onlyand to lose place in out” of eligibility beneficiaries upontheir whose behalf linesecond-preference upon turning twenty-one old.filed. The Second Circuit 84 a petition years is later foundCongress the statute but ultimately came tothe the harsh same hasunambiguous already acted to help avoid 85 while on the Fifth and conclusion as the BIA in of Wang, consequences caused by Matter government backlogs “aged86 out” wholly rejected the BIA’s interpretation, adopting Ninth 87 circuits children. In 2002, Congress enacted the Child Status Protection 88 Specifically, the Fifth and a view favoringor family unification. Act (“CSPA” “the Act”), amending the Immigration Ninth circuits permitted aged-out derivative beneficiaries to retain the priority dates associated with their earlier F-4 petitions where a subsequent petition was filed on their behalf by permanent 2 Scialabba v.F-2B Cuellar de Osorio, 134 S. Ct. 2191 (2014). 3 resident parents. A “principal beneficiary” is an individual who has a qualifying relationship with a U.S. citizen or Lawful Permanent Resident (‘LPR’) petitioner, who files a visa petition on behalf of the principal beneficiary. Derivative beneficiaries, defined as the spouse or minor child of the principal beneficiary, may also be named in the principal beneficiary’s visa petition, and are entitled to the same preference status, and the same priority date, as the 81 Id. at 38. US DEP’T OF STATE , FOREIGN AFFAIRS MANUAL, 9 FAM 42.31 principal alien. n. 2.82 Matter of Garcia, 2006 WL 2183654 (BIA June 16, 2006). 83 AILA 4 See TAmicus HE MERRIAM Brief, -W supra EBSTER note 7, DICTIONARY at 3. (1994) (defining the word 84 Li, 654 385. into a country of which one is not a native for immigrate asF.3d “to atcome 85 Matterresidence”). of Wang, 25 For I. & purposes N. Dec. atof38-39. permanent this article, the word may be used 86 Khalid, 655with F.3dthe at 363. interchangeably term, “consular processing.” 87 De 5 There Osorio, are 695 twoF.3d different at 1003.processes for obtaining an immigrant visa: 88 All three circuitand courts applied a of two-part forth inprocessing, a seminal consular processing adjustment status.analysis During set consular Supreme Court decision, ChevronanU.S.A, Inc. v.visa Natural Resources Defense applicants apply for and process immigrant at a U.S. Department of Council, Inc., 467abroad, U.S. 837, 853often (1984). the reviewing determines State consulate most in First, their home country.court Adjustment of whetheris the on itsalready face based on traditional status thestatutory process language by whichis aclear person in the U.S. has rules their of statutory status construction. spoken directly theConsular precise immigration adjustedIf toCongress that of ahas permanent resident.toSee CITIZENSHIP ANDthere. IMMIGRATION SERVICES , the available at question at issue, analysis ends If, on the other hand, language Processing, U.S. the (last reasonable. Charles Wheeler, Automatic Conversion and Retention of Priority updated 12, 2014). Date for Feb. Aged-Out Derivatives: Circuit Courts Only Add to the Confusion, 6 See Brief LEGAL for IPlaintiffs-Appellants MMIGRATION NETWORK by ,American INC. (CLINIC), Immigration available Lawyers at CATHOLIC Association http://cliniclegal.org/sites/default/files/Automatic%20Conversion%20and%20R and Catholic Legal Immigration Network, Inc., as Amicus Curiae, at etention%20of%20Priority%20Date%20for%20Aged.pdf 11, De Osorio v. Mayorkas, 695 F.3d 1003 (9th Cir. (last 2012) visited (No. 09-56786) June 27, (“AILA 2014). Amicus Brief”).

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1.different The Second from Circuit its predecessors, particularly since it had the benefit of two years of planning. Like In thethe 2011 shift case, in Li conference v. Renaud, scheduling, the Second other Circuit changes foundhave the taken CSPA’splace “automatic within conversion” the LatCritclause entity,was including unambiguous concerted butefforts came 89 to the continue same ultimate a processconclusion of institutionalization. as the BIA inInMatter recentofyears, Wang.there The case concerned Cen, to who “aged out” of eligibility as a has been a growing focusDuo on how capitalize on its critical niche, derivativecultivating beneficiary the on next the F-2B petitionoffiled in 1994 on behalf continue generation critical scholars, and of his that mother, Feimeiof outsider Li, by jurisprudence Li’s father, who was along. Cen’s ensure the baton is passed 90 Because of visahasbacklogs, mother did not grandfather. the Internally, organization shifted, Cen’s including a gradual In 2008, receive a visa until 2005, Cen was changing of the guard in when leadership, so 26 to years speak,old. as 91well as a Cen’s mother, had become For a lawful permanent downsizing in who administration. example, from resident, 2008 to filed the a new F-2B her son and established the priority present, the petition Board offorDirectors was USCIS intentionally downsized, with date as 2008 rather ofthan 1994, thebeing priority date of original a growing number Board seats occupied by the junior law petition. 92 6 Li argued that her son’s 1994 petition should professors. “automatically Another major convert” development and that he is should LatCrit’s be allowed acquisition to retain of a physical the 1994 priority space for date. the93 organization. The property, Campo Sano As an theorcourt no ambiguity because (Spanish for initial “Campmatter, Healthy,” more found literally, “Camp Sanity”), is 7 Purchased Congress’s intent ofwas on in theCentral “preciseFlorida. question at issue”by – a ten-acre parcel landclear located LatCrit ina 2011, the space is homewho to The Justice whether derivative beneficiary agesLiving out of one Center family 8 The date physical facility serves and the LatCrit Community Campus. preference petition may retain the priority of that petition to as a for means “to levelfamily the playing field petition and givefiled LatCrit a use a different preference by aactivists different 94 Because 9 The the court found space clear is intended congressional intent, it fighting chance to be heard.” petitioner. did not need to defer to the BIA’s interpretation. 95 Next, the court based to its serve analysis the hub issue of of priority date retention on whether as ofthe their educational, research, or notadvocacy the family could “convertedand to [an] andpreference activism petition to remedy thebeimbalance 96 Focusing opinion narrowly, appropriate category.” deficiencies of the current its legal system. Havingthe ancourt concluded that an earlier family prioritycritical date could independent physical basepreference has become as not apply universities to a later and family petition made a less different lawpreference schools increasingly are by even petitioner. 97 Naming and Launching a New Discourse of Critical Legal Scholarship, 2 89 . Li, HARV LATINO 654 F.3d L. REV at .382 1 (1997). (“an alleged ambiguity in some part of the statutory : LATINA LATINO provision See also at LatCrit issue does Biennial not end Conferences, the inquiry. LATCRIT Even absent &“explicit[] C RITICAL LEGAL , INC., of http://latcrit.org/content/conferences/latcritarticulat[ion]” of allTHEORY components a statutory provision, [. . .] a reviewing biennial-conferences/ (last visited July 5,has 2013) (providing list of the previous court must still ask whether Congress spoken to “thea precise question at conferences, providing direct links to articles forcitation some issue” in theand case.”), citing Chevron, 467view U.S.symposia at 842 (internal years (found by following the respective year’s link to its corresponding omitted). 90 Li, 654 F.3d at 379. webpage). 91 Id. Additionally, LatCrit has developed a substantial body of scholarship from 92 If other USCIS had givensymposia: the petition a alia 1994the priority date, Cen would have several stand-alone inter South-North Exchange, the received a visaSeries, immediately. However, because the petitionColloquia. was given LatCrit a 2008 Study Space the International and Comparative RIT:Department LATCRIT: LATINA & L ATINO CRITICAL LEGAL HEORY, priority date, the of State estimates that based on Tcurrent Symposia, LATC INC., http://latcrit.org/content/publications/latcrit-symposium/ visited processing times Cen will have to wait until 2017 for a visa. Id. at(last 379-380. at 381. July935,Id.2014). 94 These 6 Id. at 382 include (footnote Professors omitted,Marc-Tizoc emphasis added). González, Andrea Freeman, and 95 Id. at 383. García Hernández. See About LatCrit, supra note 3 (listing César Cuahtémoc Id. at 384-85. the 96professors on the LatCrit Board of Directors and their respective law 97 Id. at 385; see also David Froman, De Osorio v. Mayorkas, 2012 U.S. schools). 7 Campo ATCRIT : LATINA AND 2012) LATINO(enCRITICAL LEGAL THEORY App. LEXIS Sano, 20177 L(9th Cir. Sept. 26, banc): Suggestions for, INC, http://www.latcrit.org/content/campo-sano/ visited July 5,Act 2014). Implementing Court's Ruling Upholding Child (last Status Protection Coverage 8 Id. for Over-Twenty-One Derivative Beneficiaries: An Emerging Perspective,” 2012 9 Id. ISSUES 6736, 6738-39 (Nov. 16, 2012). EMERGING

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I. INTRODUCTION 2. The Fifth Circuit On June 9, 2014, a divided Supreme Court issued its decision in Scialabba In 2011,v.the Cuellar FifthdeCircuit Osorio,inresolving Khalid v. a circuit Holdersplit stepped over the in, statutory adopting construction a position of favoring our nation’s a broad complex interpretation immigration oflaws. the2 The plurality held that most children who are as derivative automatic conversion provision and rejecting thelisted conclusions of the their parents’ to thefamily-based Fifth Circuit, immigrant Congresspetitions, plainly beneficiaries BIA and Li.3 98onAccording but made who automatic turn twenty-one conversion years and old priority and “age date out” retention while available waiting for to visas all petitions to become described available, in INA will§ 203(h)(2). not be able to retain their original 4 or vacated 5 along adjust status withbytheir priority In Khalid, dates and the immigrate Fifth Circuit a removal order the parents. Rather, they will to start the “aged processout” anew BIA against an alien, Mr. need Khalid, who had as by a having their parents file afourth-preference new immigrantpetition petitionfiled once derivative on his mother's by they her become lawful permanent residents. sister, and held that he was entitled to utilize the priority date of ruling impacts futures with of thousands of “aged out” the The original petition in the connection a subsequent second children threatens separation of families and the preference and petition filed on the his behalf by his mother. deportation of Second children who have lived Circuit in the rejected United States Like the Circuit, the Fifth Matter for of 6 These 99 Althoughwait “aged was out”ambiguous. children sometimes the most their that lives.INA Wang’sof notion § 203(h)(3) decades court agreed for a with visa to Wang become thatavailable the “automatic only to lose conversion their place clause” in under line upon INAturning § 203(h)(3) twenty-one does not years explicitly old. delineate which petitions qualify Congress for automatic has already conversion actedandto priority help avoid date retention, the harsh it consequences found that “read caused as a whole,” by government the statutebacklogs clarifies on the “aged meaning out” of 100 The children. the otherwise-ambiguous In 2002, Congress “automatic enacted the conversion Child Status clause.” Protection Fifth (“CSPA” Circuit orlooked at theamending interrelatedness between and the Act “the Act”), the Immigration “automatic conversion” clause of INA § 203(h)(3) and the CSPA’s other provisions, the CSPA’s age formula clause of INA § 203(h)(1) and2 Scialabba the “Petitions described” clause of INA 203(h)(2), suggesting v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). that3 Athe“principal three provisions fully operate read in beneficiary” cannot is an individual who unless has a qualifying relationshipFor with a U.S. the citizen or Lawful Permanent Resident under (‘LPR’) tandem. instance, benefits of priority date retention petitioner, who files a visa petition on INA behalf§ of203(h)(3), the principal the “automatic conversion” clause, are beneficiary. “explicitly Derivative beneficiaries, defined asoutcome” the spousefrom or minor child of theformula, principal conditioned on a particular CSPA’s age beneficiary, may also be named in the principal beneficiary’s visa petition, and 101 Therefore, INA § 203(h)(1) – that the alien’s “age” is at least 21. are entitled to the same preference status, and the same priority date, as the “[the ‘automatic conversion’ clause of INA § 203((h)(3)] 42.31 principal alien. US DEP’T OF STATE , FOREIGN AFFAIRS MANUAL, 9 FAM must n. 2. operate on this same set of petitions because the outcome that 4 See THE MERRIAM -WEBSTER DICTIONARY (1994) (defining the word triggers the [‘automatic conversion’ clause’s] benefits can occur immigrate “to come into a102country of which one is not a native for only if theasformula applies.” permanent residence”). For purposes of this article, the word may be used The Fifth Circuit held that interchangeably with the term, “consular processing.” 5 There are two different processes for obtaining an immigrant visa: consular adjustment of status. Duringofconsular processing, [i]n processing light ofandthe interrelated nature the three applicants apply for and process an immigrant visa at a U.S. Department of State consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the U.S. has their 98 Khalid, status 655 F.3d at 375; to Li,that 654 F.3d 376. immigration adjusted of a at permanent resident. See Consular 99 Khalid,U.S. 655 F.3d CITIZENSHIP at 370, quoting AND IMMIGRATION Matter of Wang, SERVICES 25 I. & , N. available Dec. at 33 at Processing, (last a statute] a 2014). creature not of definitional possibilities but of statutory updated Feb.is12, 6 See Brief for Plaintiffs-Appellants by American Immigration Lawyers context.”). 101 Id., citing INA § 203(h)(3) (“If the age of an alien determined under Association and Catholic Legal Immigration Network, Inc.,is as Amicus Curiae, paragraph (1) to bev.21Mayorkas, years of age older”). at 11, De Osorio 695orF.3d 1003 (9th Cir. 2012) (No. 09-56786) 102 Id. at 371.Brief”). (“AILA Amicus

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different provisions, from itsreading predecessors, the subsection particularly as since a whole it had confirms the benefit of two that yearsCongress of planning. intended [the “automatic conversion” Like clausethe of INA shift §in203(h)(3)] conference to apply scheduling, to any alien otherwho changes “aged have takenout” place under within [thethe CSPA’s LatCrit ageentity, adjustment including formula, concerted INA efforts § to continue 203(h)(1)] a process with of respect institutionalization. to the universe In recent of petitions years, there has been described a growing in [INA focus § on 203(h)(2), how to the capitalize ‘[p]etitions on its described’ critical niche, 103 continue clause]. cultivating the next generation of critical scholars, and ensure that the baton of outsider jurisprudence is passed along. After shattering this central of ambiguity on by Internally, the organization has point shifted, includingrelied a gradual the BIA inofMatter of Wang, the Khalid court the issue changing the guard in leadership, so to moved speak, onastowell as a of Congress’sinintent. The Court For referenced legislative historyto from downsizing administration. example, from 2008 the the Senate not was only intentionally a concern over adjudicative present, the that Boardrevealed of Directors downsized, with delays but number also anof equal for occupied “growingbyimmigration a growing Board concern seats being junior law 6 backlogs” relating to the non-availability of visas. 104 This evidence professors. directly Another undercut major thedevelopment BIA’s argument is LatCrit’s in Matter acquisition of Wang of that a physical Congress space was concerned for the organization. solely with adjudicative The property, delay.Campo Sano (Spanish Notably, for “Camp the Khalid Healthy,” court or more recognized literally,that “Camp the Sanity”), necessary is by a calculation ten-acre parcel of an of land alien’s located “CSPA in Central age” Florida. under 7 Purchased the complex LatCrit in 2011, the space is home The§ Living Justice Center mathematical formula described in to INA 203(h)(1) “cannot be The because physicalitfacility serves and Community Campus. madethe at LatCrit the moment the child ‘ages 8out,’” requires the In short, as a on means “to alevel playingavailable field andtogive a date which visathe becomes the LatCrit alien. 105activists 9 The is intended automatic conversation cannot bespace triggered until the principal’s fighting chance to be heard.” visa becomes available, since only then can the CSPA age to serve as the hub of their educational, research, adjustment formula be computed. Looking to guidance from the anddecision activismin toMatter remedy imbalance andfound BIA’s advocacy unpublished of the Garcia, the court deficiencies the current legalto system. Having that there would of be another category convert to at thatantime: has become critical as “the independent ‘appropriate physical category’ base for purposes of [the “automatic universities increasingly are applies even less conversion” clause,and INAlaw § schools 203(h)(3)] is that which to the ‘aged-out’ derivative vis-à-vis the principal beneficiary of the original petition.” 106 Additionally, the Khalid court found that the effect of the Li Naming and Launching a New Discourse of Critical Legal Scholarship, 2 decision wasL.toREV “exclude HARV . LATINO . 1 (1997).an entire class of derivative beneficiaries : LATINA by & Lsilent ATINO See the also ‘automatic LatCrit Biennial Conferences, LATCRIT from conversion’ clause’s benefits C RITICAL LEGAL , INC ., http://latcrit.org/content/conferences/latcritimplication basedTHEORY on the unwritten assumption that the petitioner biennial-conferences/ visitedand July held 5, 2013) (providing a list of the previous must remain the (last same” that it was “unlikely that conferences, and providing direct links to view symposia articles for some Congress would [make this exclusion]. Rather, one would expect years (found by following the respective year’s link to its corresponding any such exclusion to be express, since it would effectively operate webpage). Accordingly, the Fifth Circuit that from the Additionally, 107 LatCrit has developed a substantial body of held scholarship categorically.” several other stand-alone the South-North the petitioner was entitled symposia: to utilizeinter the alia priority date of anExchange, F-4 petition Study Space Series, InternationalF-2B and Comparative Colloquia. in connection with the a subsequent petition filed on his LatCrit behalf

Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited July 5, 2014). 6 These include Professors Marc-Tizoc González, Andrea Freeman, and 103 Id. at 371. García Hernández. See About LatCrit, supra note 3 (listing César Cuahtémoc Id. at 371-72, CONGof. RDirectors EC. S3275and (daily ed.respective Apr. 2, 2001) the 104 professors on thequoting LatCrit147 Board their law (statement schools). of Sen. Feinstein). 105Campo 7 Id. at 372. Sano, LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,106 http://www.latcrit.org/content/campo-sano/ Id. at 372, citing Matter of Garcia, 2006 (lastWL visited 2183654 July (BIA 5, 2014). July 16, 8 Id. 2006). 107 9 Id. Id. at 374.

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by his mother. 108 I. INTRODUCTION The Fifth Circuit concluded that Congress plainly made automatic On June conversion 9, 2014, aand divided priority Supreme date Court retention issuedavailable its decision to derivative in Scialabba v. beneficiaries Cuellar de Osorio, in all resolving family-based a circuit split preference over the 109 statutory categories.construction of our nation’s complex immigration laws. 2 The plurality held that most children who are listed as derivative on their parents’ family-based immigrant petitions, 3.beneficiaries The Ninth 3Circuit but who turn twenty-one years old and “age out” while waiting for visasOn to become available, will an notenbebanc able decision to retain by their September 26, 2012, theoriginal Ninth 4 or reversed 5 along adjust status withCircuit their priority dates and immigrate Circuit in De Osorio v. Mayorkas an earlier Ninth and held language of the CSPA parents. they that will the need plain to start the process anew by ruling 110 Rather, unambiguously grants file automatic conversion petition and priority date having their parents a new immigrant once they retentionlawful to aged-out derivative beneficiaries in all family visa become permanent residents. 111 categories. The ruling impacts the futures of thousands of “aged out” The and Ninththreatens Circuit intheDeseparation Osorio rebutted all conceivable children of families and the arguments concerning of a circuit deportation of children ambiguity: who have the livedexistence in the United Statessplit; for out” children sometimes wait the perceived of application to certain derivative most of their impracticability lives. 6 These “aged decades for a visa become available lose their and placethe in beneficiaries; the to requirement for a only new topetitioner; line upon turning twenty-one yearsorold. impracticable results.” 112 exception for “unreasonable Concerning this has last point, the acted court stated: Congress already to help avoid the harsh consequences caused by government backlogs on “aged out” Plainly, a change in policy announced by Status the statute’s children. In 2002, Congress enacted the Child Protection language cannot be impracticable just Immigration because it is and Act plain (“CSPA” or “the Act”), amending the a change or because it does not specify how exactly that change is to be implemented. […] A statute that requires an agency to change its existing practices does not 2 Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). 3 necessarily “lead to is an absurd or whoimpracticable A “principal beneficiary” individual has a qualifying relationship with a 113 U.S. citizen or Lawful Permanent Resident (‘LPR’) consequences.” petitioner, who files a visa petition on behalf of the principal beneficiary. Derivative defined as the childthat of theCongress principal The beneficiaries, court agreed with thespouse Fifthor minor Circuit beneficiary, may also be named in the principal beneficiary’s visa petition, and intended a greater benefit through this legislation than that are entitled to the same preference status, and the same priority date, as the “meager alien. benefit” to’T derivative F-2A beneficiaries forth42.31 in OF STATE , FOREIGN AFFAIRS MANUALset , 9 FAM principal US DEP n. 2. Matter of Wang and touted by the government. 114 The court 4 See THE MERRIAM -WEBSTER DICTIONARY (1994) (defining the word concluded that under the clear wording of the CSPA, priority-date immigrate “to come into a country of are which available one is nottoa native for retention asand automatic-conversion all visa permanent residence”). For purposes of this article, the word may be used 115 petitions identified in subsection (2). interchangeably with the term, “consular processing.” 5 The ruling processes signaled for tempered for aged-out ThereDe areOsorio two different obtaining hope an immigrant visa: consular processing and adjustment of status. Duringproved consularshort-lived, processing, derivative beneficiaries. However, that hope applicants for and process an immigrant visa a U.S. Department of since the apply government proceeded to request anatappeal of the Ninth State consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the U.S. has their immigration status adjusted to that of a permanent resident. See Consular 108 Id. at 375. Processing, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, available at 109 Id. at 373. (last note 14, at 1901-02. updated Feb. 12, 2014). 112See 6 De Osorio, Brief for 695 Plaintiffs-Appellants F.3d. at 1011-14. by American Immigration Lawyers 113 Id. at and 1014. Association Catholic Legal Immigration Network, Inc., as Amicus Curiae, 114 Id. 1015. v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012) (No. 09-56786) at 11, De atOsorio 115 Id. at 1015. (“AILA Amicus Brief”).

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Circuit decision different from itswith predecessors, the Supreme particularly Court. 116 since it had the benefit of two years of planning. C. Like The Supreme the shift Court in conference Resolves scheduling, the Circuit Split: otherAchanges Discussion have taken place and within Critique the LatCrit of Scialabba entity,v. including Cuellar deconcerted Osorio efforts to continue a process of institutionalization. In recent years, there 1.has Discussion been a growing focus on how to capitalize on its critical niche, continue cultivating the next generation of critical scholars, and ensure On that Junethe 9, 2014, baton aof deeply outsider divided jurisprudence Supreme is Court passed issued along. its 117 deferring to the decision Internally, in the Scialabba organization v. Cuellar has deshifted, Osorio,including a gradual BIA’s restrictive set forth so in Matter of Wang. changing of the interpretation guard in leadership, to speak, as wellJustice as a Elena Kagan,ininadministration. a plurality opinion by Justices Anthony M. downsizing For joined example, from 2008 to the Kennedy the andBoard Ruth ofBader Ginsberg, found INA §downsized, 203(h)(3) to be present, Directors was intentionally with ambiguous and thatof therefore, thebeing BIA’soccupied interpretation of law the a growing number Board seats by junior 6 provision was entitled to deference. 118 The other six Justices found professors. the Another language major of INAdevelopment § 203(h)(3)is clear LatCrit’s but came acquisition to opposite of a physical conclusions space regarding for the its organization. meaning. The Chiefproperty, Justice Campo Roberts Sano and (Spanish Justice Scalia for “Camp concurred Healthy,” in the or more judgment, literally, finding “Camp thatSanity”), the plain is 7 Purchased 119 On the by a language ten-acre ofparcel the of statute land located supported in Central the BIA’s Florida. decision. and Justice other LatCrit hand, in 2011, Justices the Alito spacefiled is home a dissenting to The opinion, Living 120 Justice Center 8 121 joined The physical facility by Justices serves Sotomayor filed aCommunity separate dissenting and the LatCrit Campus. opinion, Breyer as a means and Thomas “to level (Justice the playing Thomas field joining and give with LatCrit the exception activists of a 9 The space is intended a fighting footnote), chance all finding to be heard.” that the clear meaning supported the Ninth Circuit’s decision. Notably, none of the opinions mention the to briefs serve filed as by thea hub of their educational, amicus bipartisan group of former research, Senators who advocacy activism the passed. imbalance and were serving in and Congress whentotheremedy CSPA was deficiencies of the current legal system. Having an independent physical base has become critical as 2. Critique universities and law schools increasingly are even less Rather than applying a restrictive interpretation of the CSPA’s “automatic conversion” clause, the Supreme Court should have adopted the reasoning of the Fifth and Ninth circuit rulings – Naming and Launching a New Discourse of Critical Legal Scholarship, 2 also articulated in. 1Justice HARV . LATINO L. REV (1997). Sotomayor’s dissent – and come to a ATINA &apply LATINO See humane also LatCrit Biennial Conferences, LATCRIT: L more result: that priority date retention benefits to CRITICAL LEGAL THEORY, INC http://latcrit.org/content/conferences/latcritderivative beneficiaries of ., visa petitions in all five family biennial-conferences/ (last visited 5, 2013) of the previous preference categories, ratherJuly than to (providing derivativea list beneficiaries in conferences, and providing direct links to view symposia articles for some only one category. The Fifth and Ninth circuit decisions are years (found by following the respective year’s link to its corresponding attractive webpage). for a number of reasons. Additionally, developedthe a substantial body ofand scholarship from Like the LatCrit SecondhasCircuit, Fifth Circuit the Ninth several other inter South-North Exchange, the Circuit foundstand-alone the plainsymposia: language of alia the the CSPA unambiguous. Thus, Study Space Series, the International and Comparative Colloquia. LatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited Carl Shusterman, Child Status Protection Act (CSPA) Victory!, July1165,See 2014). 6 These include UPDATEProfessors (Sept. 27, Marc-Tizoc 2012), González, Andrea Freeman, and IMMIGRATION César http://blogs.ilw.com/carlshusterman/2012/09/child-status-protection-act-cspaCuahtémoc García Hernández. See About LatCrit, supra note 3 (listing the victory.html professors (explaining on the LatCrit the importance Board of of the Directors Court’sand ruling). their respective law 117 See 695 F.3d. at 2191. schools). 118Campo 7 Id. at 2203. Sano, LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,119 http://www.latcrit.org/content/campo-sano/ Id. at 2214. (last visited July 5, 2014). 120 8 Id. Id. at 2216. 121 9 Id. Id.

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all three circuits agreeI. that INTRODUCTION deference to the BIA in Matter of Wang is inappropriate. The Ninth Circuit reaffirmed the Fifth Circuit’s On June determination 9, 2014, athat divided under Supreme the clear Court wording issued of its thedecision CSPA, in priority Scialabba date v. retention Cuellar and de Osorio, automatic resolving conversion a circuit aresplit available over the to statutory “aged out” construction derivative of ourbeneficiaries nation’s complex in immigration all family-based laws. 2 122 Both Ninthwho circuits’ decisions are more The plurality held the thatFifth mostand children are listed as derivative categories. on their parents’ family-based recent than3 the rulings by the BIA and immigrant the Second petitions, Circuit. beneficiaries but who turnthe twenty-one years old and “age out”consolidated while waiting for Additionally, Ninth Circuit’s decision covers cases visas to become will as notsuch be able retain their including a classavailable, action and thetodecision has original broader 4 or adjust 1235 As status along anwith en their banc priority dates and prior immigrate application than individual decisions. parents. ruling, the Rather, Ninth they Circuitwill decision need carries to start greater the process weight and anewforce by having of persuasion. their parents file a new immigrant petition once they become Thelawful Fifthpermanent and Ninthresidents. circuit rulings are also in line with Congress’s The ruling intent impacts in enacting the the futures CSPA of to thousands preserve of family “agedunity. out” children Unlike theand holdings threatens in Matter theof separation Wang and Li, of which families forceand families the deportation to separate of or children live apart who for have years, lived the inFifth the and United Ninth States circuit for 6 These “aged sometimes wait most cases of represent their lives. a breakthrough for out” tens children of thousands “aged-out” decades a visa towho become to as losea their in sons andfor daughters have available waited foronly years parentplace sought line upon turning twenty-one a visa in the United States. years old. Congress acted to helprulings avoidarethe harsh In addition,has the already Khalid and De Osorio appealing consequences caused byand government backlogs “aged ofout” in their logic, simplicity, focus on reading the on language the children. 2002, Congress enacted the Child Statusclauses, Protection CSPA “as In a whole” without having to read out certain rely Act (“CSPA” “the Act”), Immigration and on prior agencyorpractices, createamending exceptions,the or imply congressional intent when none was specifically stated. Together, the Fifth and Ninth circuit cases provide clear, well-reasoned and highly persuasive for the rights of countless derivative 2 Scialabba support v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). 3 beneficiaries who waited for isyears to immigrate to the United A “principal beneficiary” an individual who has a qualifying relationship a their U.S. place citizen inorline Lawful States only with to lose upon Permanent turning 21.Resident (‘LPR’) petitioner, whoif files visa petition on behalf of the principal Even the a Supreme Court had chosen not to beneficiary. adopt the Derivative as the circuits, spouse or itminor child of the principal reasoningbeneficiaries, of the Fifthdefined and Ninth should have still come beneficiary, may also be named in the principal beneficiary’s visa petition, and to the same conclusion as these courts just by looking at the plain are entitled to the same preference status, and the same priority date, as the meaningalien. of US the DEP CSPA provision. The ’T OF S“automatic TATE , FOREIGNconversion” AFFAIRS MANUAL , 9 FAM 42.31 principal n. 2. CSPA’s “automatic conversion” clause provides: 4 See THE MERRIAM -WEBSTER DICTIONARY (1994) (defining the word immigrate “to ofcome into ais country of which one the is not a native If theasage an alien determined [under CSPA age for permanent residence”). For purposes of this article, the word may be used adjustment formula] to be 21 years of age or older for the interchangeably with the term, “consular processing.” 124 5 purposes (d) 125],anthe alien’s visa: [INA § 203(a)(2)(A) There are oftwo different processes forand obtaining immigrant consular processing and be adjustment of status. During consular petition shall automatically converted to processing, the applicants apply for category and processand an immigrant visashall at a U.S. Department appropriate the alien retain the of State consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the U.S. has their immigration status adjusted to that of a permanent resident. See Consular 122 De Osorio, CITIZENSHIP F.3d at 1015-16. AND IMMIGRATION SERVICES , available at Processing, U.S. 695 123 Froman, supra note 99. (last 125 INA § 12, 203(d) (“A spouse or child […] shall, if not otherwise entitled to updated Feb. 2014). See Briefstatus for Plaintiffs-Appellants American an 6immigrant and the immediate by issuance of a Immigration visa under [aLawyers familyAssociation and Catholic Legal Immigration Network, as Amicus based, employment-based, or diversity category], be Inc., entitled to theCuriae, same at 11, De Mayorkas, 695consideration F.3d 1003 (9th Cir. 2012) 09-56786) status, andOsorio the v. same order of provided in (No. the respective (“AILA Amicus Brief”). subsection, if accompanying or following to join, the spouse or parent.”).

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different original from priority its predecessors, date issued particularly upon receipt since of itthe hadoriginal the benefit 126planning. of two petition. years of Like the shift in conference scheduling, other changes have other words, automatic conversion priorityefforts date taken In place within the LatCrit entity, includingand concerted retention whereof the following circumstances met: an to continueapply a process institutionalization. In recentare years, there alien’s “CSPA age” is twenty-one or capitalize above, and “ages out” of has been a growing focus on how to on she its critical niche, eligibility cultivating for a visa “for of [INA §§ 203(a)(2)(A) and (d)],” continue the purposes next generation of critical scholars, and referringthat to principal the F-2A category (spouses or ensure the batonbeneficiaries of outsiderinjurisprudence is passed along. children of LPRs) and derivative in all family-based Internally, the organization has beneficiaries shifted, including a gradual visa categories. “automatic conversion” changing of theGiven guardthat in the leadership, so to speak, asclause well itself as a references INA § 203(a)(2)(d), which sets out the INA’s downsizing in administration. For example, from 2008definition to the for derivative status, it clearly to allow “aged with out” present, the Board of Directors wasintended intentionally downsized, derivative availseats themselves of the same protections a growing beneficiaries number of to Board being occupied by junior law 6 undisputedly accorded to “aged out” F-2A principal beneficiaries. professors. Another development LatCrit’s acquisition of a Justice major Sotomayor, joined byisJustices Breyer and Thomas, physical space the organization. property, summed up thisforargument succinctly The in the openingCampo lines ofSano her (Spanish for “Camp Healthy,” or more literally, “Camp Sanity”), is dissent: a ten-acre parcel of land located in Central Florida. 7 Purchased by LatCrit in 2011,thetheworkings space is home The Living Justice Center Although of ourto Nation's immigration 8 The physical facility of serves and the LatCrit Campus. system areCommunity often complex, the narrow question as a statutory means “tointerpretation level the playing activists a at field the and heartgive of LatCrit this case is The space is intended fighting chance to be heard.” straightforward. Which 9 aged-out children are entitled to retain their priority dates: derivative beneficiaries of visa to serve inas all the five hub family-preference of their educational, research, petitions categories, or advocacy beneficiaries and activismof to remedyinthe and derivative petitions onlyimbalance one category? deficiencies of theof current legal system. Having an The initial clause [INA § 203](h)(3) provides a clear independent physical base may has retain becometheir critical as answer: Aged-out children priority universities law meet schools increasingly are evenmust less dates so long and as they a single condition—they be “determined [. . .] to be 21 years of age or older for purposes of” derivative beneficiary status.” Because all five categories of aged-out children satisfy this condition, Naming and Launching a New Discourse of Critical Legal Scholarship, 2 are entitled relief. 127 HARV .all LATINO L. REV . 1to (1997).

See also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO CIV. RITICAL LEGAL HT HEORY , I“A NCGED ., http://latcrit.org/content/conferences/latcritOPE FOR OUT” DERIVATIVE BENEFICIARIES FINDING biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some Is there any hope for most “aged out” derivative beneficiaries years (found by following the respective year’s link to its corresponding in the The following is a webpage). aftermath of Cuellar de Osorio? Additionally, has developed a substantial body of scholarship from discussion of LatCrit the relative strengths and weaknesses of potential several other stand-aloneand symposia: inter alia thestrategies South-Northfor Exchange, the judicial, legislative, administrative upholding Study Space Series,forthe and Comparative Colloquia. LatCrit CSPA protection all International derivative child beneficiaries. Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited A. Judicial Remedy July 5, 2014). 6 These include Professors Marc-Tizoc González, Andrea Freeman, and CésarOne Cuahtémoc Garcíaalbeit Hernández. See About LatCrit, suprathe noteSupreme 3 (listing possibility, an improbable one, is that the professors on the of Directors and their Court will agree to LatCrit rehear Board the case. According to a respective petition law for schools). 7 Campo Sano, LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC, http://www.latcrit.org/content/campo-sano/ (last visited July 5, 2014). 126 8 Id. INA § 203(h)(3). 127 9 Id. Cuellar de Osorio, 134 S. Ct. at 2216-17.

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rehearing filed by the I. respondents INTRODUCTION in Cuellar de Osorio in July 2014, “[t]he plurality decision […] was based on a mistake that 128 Specifically, the respondents cuts On to the Juneheart 9, 2014, of its a divided analysis.” Supreme Court issued its decision argue that v.the plurality incorrectly assumed “context in Scialabba Cuellar de Osorio, resolving a circuitthat split over the compels” conclusionofthat retention and automatic statutory the construction our priority nation’sdate complex immigration laws. 2 The respondents alsoas point to the The plurality heldinthat most 129 children who are listed derivative conversion “work tandem.” 3 on their that, parents’ immigrant petitions, plurality’s assumption “[a]sfamily-based far as we know, immigration law beneficiaries but who turn twenty-one yearstoold andin“age while waitingdate for nowhere else allows an alien keep his out” pocket a priority 130 However, the visas to become available, will not able to retain their original untethered to any existing validbe petition.” 5 along with their respondents’ brief cited4 or a adjust major status statutory provision that priority datesmerit and immigrate 131 particular, parents. Rather,that theykind will ofneed to start theInprocess anew the by allows exactly entitlement. Western their Hemisphere Clause allows petition an alienonce formerly having parents Savings file a new immigrant they categorized as permanent a Westernresidents. Hemisphere immigrant to retain her become lawful “previously established” date for with “[a]ny petition” The ruling impactspriority the futures of use thousands of “aged out” later filed and on herthreatens behalf. 132 the separation of families and the children Despite ofthechildren merits who of respondents’ the petition deportation have lived argument, in the United States for 6 These “aged out” children wait a rehearing unlikely to succeed. Although the sometimes Supreme Court most of theiris lives. decades for aa visa to become available onlyalready to loseheard, their it place in may reverse decision in a case that it has rarely 133 line upon turning twenty-one years old. does. Congress has already acted to help avoid the harsh Remedy consequences caused B.byLegislative government backlogs on “aged out” children. In 2002, Congress enacted the Child Status Protection second option that Congress the problem Act A(“CSPA” or “theis Act”), amendingmay theresolve Immigration and facing “aged out” derivatives by redrafting the CSPA statute. New legislation would make it clear that “aged out” derivative beneficiaries in Cuellar all categories are entitled to priority date retention 2 Scialabba v. de Osorio, 134 S. Ct. 2191 (2014). 3 protections. In fact, the comprehensive immigration reform bill, S. A “principal beneficiary” is an individual who has a qualifying relationship a U.S. citizen or Lawful Permanent Resident (‘LPR’) 744, passedwith by the Senate already included a measure to clearly petitioner, who files visa petition on the principal beneficiary. extend “age out” a protections to behalf all of derivative beneficiaries. Derivative beneficiaries, defined as the spouse or minor child of the principal Unfortunately, it is unclear whether Congress will ultimately pass beneficiary, may also be named in the principal beneficiary’s visa petition, and this piece of legislation, as S. 744 is currently stalled in the House are entitled to the same preference status, and the same priority date, as the principal alien. US DEP’T OF STATE , FOREIGN AFFAIRS MANUAL, 9 FAM 42.31 n. 2. 128 See 4 See T Respondents’ HE MERRIAM Petition -WEBSTER for Rehearing DICTIONARYat (1994) 1-2, Scialabba (defining v. Cuellar the word de immigrate Osorio, 134 as S. Ct. “to 2191 come(U.S. into2014). a country of which one is not a native for 129 Id., citing Cuellar For de Osorio, 134 of S. Ct. 2194. the word may be used permanent residence”). purposes thisatarticle, 130 Id., citing with Cuellar Osorio, 134 S. processing.” Ct at 2212. interchangeably thede term, “consular 131There 5 Id. are two different processes for obtaining an immigrant visa: 132 Id.,processing citing Immigrant and Nationality Act Amendments of 1976, Pub. L. consular and adjustment of status. During consular processing, No. 94-571,apply § 9(b), Stat. 2703, an 2707 (emphasisvisa added), cited Department and quoted in applicants for90and process immigrant at a U.S. of Resp. Br. 45; see abroad, also U.S. Department State, 9 Foreign Affairs Manual, ch. State consulate most often in oftheir home country. Adjustment of 42.53 n.4.1 (a Western Hemisphere “retains” datetheir and status is the process by which a immigrant person already in his the priority U.S. has “may use that priority dateto for of any preference petition immigration status adjusted thatthe of purpose a permanent resident. See Consular CITIZENSHIP AND IMMIGRATION SERVICES , available at subsequentlyU.S. filed in his or her behalf.”). Processing, 133 Cases have only occasionally been reheard and their original decision (last applied); City12, of 2014). New Orleans v. Warner, 176 U.S. 385 (1899) (reversed updated Feb. 6 SeeCourt Briefoverlooked for Plaintiffs-Appellants Immigration Lawyers because a central fact inby theAmerican case); Whitney v. California, 274 Association and Catholic Legal Immigration Network, Inc., assince Amicus Curiae, U.S. 357 (1927) (originally dismissed for lack of jurisdiction Court was at 11, De Osorio 695 F.3d 1003 (9thcase Cir. 2012) (No. preserved 09-56786) previously unable v.toMayorkas, find records documenting contained (“AILA question). Amicus Brief”). federal

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of Representatives. different from its predecessors, Moreover, particularly the stalemate since over it had comprehensive the benefit immigration of two years ofreform planning. may hamper efforts to make changes through piece-meal Like the legislation. shift in conference scheduling, other changes have taken place within the LatCrit entity, including concerted efforts to continue a process C. ofAdministrative institutionalization. Remedy In recent years, there has been a growing focus on how to capitalize on its critical niche, continue If legislative cultivating reform the next fails, generation a remedy by of the critical executive scholars, branch, and ensure either through that thethe baton BIA ofor outsider the Attorney jurisprudence General, is may passed become along. the Internally, best hope for themany organization “aged out”has derivatives. shifted, The including executive a gradual branch changing may remedy of the the guard problem in leadership, in two possible so to ways: speak, the as well BIA as may a downsizing reconsider itsin position administration. and reverse Foritsexample, position in from Matter 2008of to Wang, the present, or the Attorney the Board General of Directors may recognize was intentionally that Matterdownsized, of Wang iswith not a desirable growingasnumber a policy matter. of Board seats being occupied by junior law 6 professors. Fortunately, the Supreme Court provided for some latitude to major branch development is LatCrit’s acquisition of to a allowAnother the executive to reconsider its position. According physical space for the organization. property, Campo Sano Justice Kagan’s plurality opinion, theThe Court has only held “that (Spanish for “Camp Healthy,” or more “Camp Sanity”), is [INA §203](h)(3) permits – not that literally, it requires – the Board’s 134 Where by a ten-acre of land located Central Florida. 7 Purchased decision to parcel so distinguish among in aged out beneficiaries.” LatCrit a statutein is2011, ambiguous, the space theisSupreme home to Court The Living has made Justice clear Center that 8 The physical facility serves and the agency the LatCrit may Community reconsider itsCampus. interpretation even if the Court has as a means “to level the playing field&and give LatCrit activists a already approved it. National Cable Telecommunications Assn. is intended fighting to be Services, heard.” 9 The v. Brandchance X Internet 545 space U.S. 967 (2005). As the holding in Cuellar de Osorio rests on the assumption that the language of serve as the hub ofit their educational, research, INA §to203(h)(3) is ambiguous, appears that the BIA could still advocacy andinactivism remedy the imbalance and reverse its position Matter oftoWang. deficiencies the current legalitssystem. The BIA hasof already reversed positionHaving severalantimes physical baseof has become critical as (BIA before.independent For example, in Matter Silva,16 I & N Dec. 26 and lawitsschools are even[Matter less of 1976),universities the BIA reversed earlierincreasingly contrary holdings Francis and Matter of Arias-Uribe, 13 I & N Dec. 696 (BIA 1971)] in order to allow INA § 212(c) relief for LPRs in deportation proceedings who had not previous departed and returned. Naming and Launching a New Discourse of Critical Legal Scholarship, 2 Attorney General may disagree with Matter HARV .Alternatively, LATINO L. REV . the 1 (1997). LATINA & LATINO alsoand LatCrit LATCRIT: of of See Wang act toBiennial broadenConferences, the interpretation INA 203(h)(3). C RITICAL EGAL THEORY INC., http://latcrit.org/content/conferences/latcritThe INA Lindicates that, “determination and ruling by the Attorney biennial-conferences/ (lastto visited July 5, 2013)of(providing a list the previous General with respect all questions law shall beofcontrolling.” conferences, and providing direct links to view symposia articles for some INA § 103(a)(1). In other words, Attorney General Eric H. Holder – years (found by following the respective year’s link to its corresponding on whose behalf the BIA ultimately acts – has the power to webpage). Additionally, LatCrit has developed a substantial scholarship from remedy the harshness of Matter of Wangbody andof adopt a more several other stand-alone inter alia the South-North Exchange, the humane approach for symposia: “aged out” derivative beneficiaries who have Study Space the back International Comparative Colloquia. LatCrit been forced Series, to the of theandvisa quota line. A broader Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, interpretation of INA § 203(h)(3) would also be consistent with the INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited Obama administration’s recent administrative reform measures, July 5, 2014). 6 These include Professors waiver Marc-Tizoc González, Andrea Freeman, such as the provisional rule and Deferred Action and for 135 See About LatCrit, supra note 3 (listing César Cuahtémoc García Hernández. Childhood Arrivals (“DACA”). the professors on the LatCrit Board of Directors and their respective law schools). 7 Campo Sano, LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,134 http://www.latcrit.org/content/campo-sano/ Cuellar de Osorio, 134 S. Ct. at 2207. (last visited July 5, 2014). 135 8 Id.The provisional unlawful presence waiver process allows individuals, Id. need a waiver of inadmissibility for unlawful presence, to apply for a who9 only

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I. INTRODUCTION V. CONCLUSION On June 9, 2014, a divided Supreme Court issued its decision In conclusion, thedeSupreme Court decision Cuellar de in Scialabba v. Cuellar Osorio, resolving a circuitinsplit over the Osorio a tremendous setback for immigration many “agedlaws. out”2 statutorysignifies construction of our nation’s complex The plurality held that most listed as of derivative derivative beneficiaries, their children families, who and are proponents a more 3 on their parents’ beneficiaries humane immigration system. family-based However, inimmigrant the wakepetitions, of the but who turn yearsremain old andsome “age prospects out” whilefor waiting for Supreme Courttwenty-one ruling, there a better visas to become will notthrough be able judicial, to retain legislative, their original outcome in the available, future, either or priority dates and immigrate 4 or adjust status 5 along with their administrative action. parents. Rather, they ofwill to startwould the uphold processtraditional anew by A broader reading INAneed § 203(h)(3) having their parents and file family a new unity, immigrant notions of fairness while petition offeringonce hopethey to become lawful permanentchild residents. thousands of derivative beneficiaries who, due to devastating The ruling impacts lose the futures of “aged immigration backlogs, their of visathousands eligibility and out” face 136 children and the separation families and the separation fromthreatens their families when theyof turn twenty-one. Absent comprehensive reform, ameliorative measures deportation of childrenimmigration who have lived in the United States for 6 These “agedthe out” sometimes wait by theofexecutive branch may offer bestchildren chance of hope for these most their lives. decades for a visa beneficiaries. to become available only to lose their place in over-21 derivative line upon turning twenty-one years old. Congress has already acted to help avoid the harsh consequences caused by government backlogs on “aged out” children. In 2002, Congress enacted the Child Status Protection Act (“CSPA” or “the Act”), amending the Immigration and

Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). A “principal beneficiary” is an individual who has a qualifying relationship with a U.S. citizen or Lawful Permanent Resident (‘LPR’) petitioner, who files a visa petition on behalf of the principal beneficiary. Derivative beneficiaries, defined as the spouse or minor child of the principal beneficiary, may also be named in the principal beneficiary’s visa petition, and are entitled to the same preference status, and the same priority date, as the principal alien. US DEP’T OF STATE , FOREIGN AFFAIRS MANUAL, 9 FAM 42.31 n. 2. 4 See THE MERRIAM -WEBSTER DICTIONARY (1994) (defining the word immigrate as “to come into a country of which one is not a native for permanent residence”). For purposes of this article, the word may be used interchangeably with the term, “consular processing.” 5 There are two different processes for obtaining an immigrant visa: consular processing and adjustment of status. During consular processing, applicants apply for and process an immigrant visa at a U.S. Department of State consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the U.S. has their waiver in thestatus United States and before depart for their immigrant visa immigration adjusted to that of athey permanent resident. See Consular CITIZENSHIP IMMIGRATION SERVICES , available at interviews atU.S. a U.S. embassy orAND consulate abroad. See “Provisional Unlawful Processing, (last presence-waivers. Deferred action is a use of prosecutorial discretion to defer updated 12, 2014). removal Feb. action against an individual for a certain period of time. See 6 See Briefoffor Plaintiffs-Appellants by American Immigration Consideration Deferred Action for Childhood Arrivals (DACA),Lawyers USCIS, Association Catholic Legal Immigration Network, Inc., as Amicus Curiae, available atand http://www.uscis.gov/humanitarian/consideration-deferred-actionat 11, De Osorio v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012) (No. 09-56786) childhood-arrivals-daca. 136 See AILABrief”). Amicus Brief, supra note 7, at 11. (“AILA Amicus 2 3

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different from its predecessors, VI. APPENDIX particularly since it had the benefit of two years of planning. VI. APPENDIX HowLike CSPA the Treats shift in“Aged conference Out”scheduling, Derivativeother Beneficiaries changes have in Vol. 47:4 Finding Hope for “Aged Out” Beneficiaries 1347 taken Different place Family-Based within the LatCrit Categories entity, in including Various concerted Jurisdictions efforts How CSPA Treats “Aged Out” Derivative Beneficiaries in to continueFamily-Based a process of institutionalization. In recent years, there VI. APPENDIX in Various Different Categories Jurisdictions on how toAutomatic capitalize onconversion its critical niche, Facts has been a growing focusAdjuste and Practical How cultivating CSPA Treats “Aged Out” Derivative Beneficiaries in under continue the next generation of critical scholars, and d Age priority date retention consequen Facts Adjuste Automatic conversion and Practical Different Family-Based Categories in Various Jurisdictions ensure that the baton of outsider jurisprudence is passed along. under Matter of Wang es under d Age priority date retention under consequen Internally, the organization has shifted, including a gradual CSPA Matter of under Matter ofconversion Wang es under Facts Adjuste Automatic and Practical changing of the guard CSPA ind Age leadership, so to speak, as well as a Wang. Wh Matter of priority date retention under consequenc downsizing in administration. example, from 2008 to the es under will visa under ForMatter of Wang Wang. Wh CSPA was intentionally downsized, with Matter available of present, the Board of Directors will visa Wang. a growing numberand of Board occupied by will junior 2A John, a native 22 - 1seats = being John’s father needlaw to file a When Based available will visa be 6 professors. rivative citizen of Germany, is 19 21 (aged new petition on John’s behalf, since current 2A John, a native and 22 - 1 = John’s father will need to file a Based available? Another major is acquisition of child a out) is no longer aneed minor andBased F-2B years he adevelopment backlogs, v rivative citizenoldofwhen Germany, is 19 2122 (aged newLatCrit’s petition on John’s behalf, current F-2A John, a becomes native and - 1 = John John’s father will to file a since on physical space for the organization. The property, Campo Sano can no longer be a derivative. John incipal derivative beneficiary on an wait time derivative of he Germany, is a19 out) 21 (aged new John’sa behalf, Johnpetition is no on longer minorsince child current and backlogs, v F-2B years citizen old when becomes (Spanish for (spouse “Camp Healthy,” “Camp Sanity”), is John F-2B visa John is longer a minor child and  years old when he becomes backlogs, visatimeis will convert to the category and estimate F-2A petition or a out) or more canliterally, nonolonger be aF-2B derivative. incipal derivative beneficiary on an wait 7 Purchased can no longer be a derivative. John principal derivative beneficiary on an wait time by a ten-acre parcel of land located in Central Florida. will be able to retain the priority minor child of LPRs) filed by years, butis will convert to the F-2B category and estimate F-2A visa petition (spouse or will convert tothe the original F-2B category and 2010 F-2A visa in petition (spouse or estimateJohn is 8 is LatCrit 2011, the space is home to The Living Justice Center John’s father, an LPR, on date from October will be able to retain the priority years, but minor minor child child of LPRs) filed by will8 be able to retain the priority years, but of LPRs) filed by physical facility serves and themother. LatCrit Community Campus. behalf offather, his The Fpetition filedoriginal by John’s fatherJohn on is credited w John’sJohn’s an an LPR, dateThe from original October John isder father, LPR,onon date from thethe October 2010 2010 as a means “to level the playing field and give LatCrit activists a 2A visa petition is filed in behalf of his mother. the 3 years behalf behalf of hisofmother. The F-Fpetition filed filedby by John’s on credited w his mother. The petition John’s fatherfather on credited with F-2 9 The space is intended fighting chance beinheard.” October 2010. The petition has 2A visa petition istofiled in behalf hishis mother. the 3 years 2A visa petition is filed behalfofof mother. the he 3already years pri October petition has already is approved in2010. October 2011, waited. Vi October 2010. TheThe petition has already isvisa approved in October 2011, waited. available Visa to serve as the hub of their educational, research, and a number becomes is approved in October 2011, waited. Vii and a visa numberand becomes available in advocacy activism to remedy the imbalance and in February available about 5 yei and a available visa number in becomes February about 5 available years, 137 when deficiencies of the current legal system. Having an 2013, John is 22 2018, available about when 5der ye 2013, 137 inwhen February John is 22 2018, when independent base has become critical as years old. is 27 yearswhen old. John is John 27 2013, 137 John is physical 22 2018, when F-2 years old. years old. years old. universities and law schools increasingly are even less John is 27 pri F-4 a nativeand and 22 22 –– 11 = = Jane is no longer considered a is 4 Jane, Jane, a native Jane is no longer considered a Jane Jane years old. i derivative citizen of Germany, is1010 21 21 (aged minor child, so she can’tcan’t adjust credited citizen of Germany, minor child, so she adjust not not credite 4rivative Jane, a native is and 22 –(aged 1 = status Jane is no longer considered a Jane i F-2B years old when she becomes out)  at the same time as her with the 12 out) F-2B years old when she becomes status at the same time as her with the 12 rivative citizen of Germany, is 10 21 (aged minor child, so she can’t adjust not credite Naming and Launching a New Discourse of Critical Legal Scholarship, 2 principal the derivative beneficiary on mother as a derivative F-4 years that she incipal the derivative beneficiary on mother as a derivative F-4 years that HARVwhen . mother’s LATINO RF-4 EV . 1 (1997). F-2B years her old sheL. becomes status at the asnow her has already with the 12 visa out) beneficiary. But same since atime visa is AT C RIT : L ATINA & L ATINO See also LatCrit Biennial Conferences, L visa her mother’s F-4 beneficiary. But since a visa is now has already petition beneficiary filed by on her available for a her mother, once her been waiting incipal the derivative mother as derivative F-4 years that CRITICAL LEGAL U.S. citizen sister, mother is anfor LPR, can a file an Funder the F-4 petition filed by THEORY her , INC., http://latcrit.org/content/conferences/latcritavailable hershe mother, once been waiti visa her mother’s mother’s F-4 beneficiary. But since visa is her now has already biennial-conferences/ (last visited July 5, 2013) (providing a list of theadult previous petition. her aunt, in April 2001. The 2B petition (for unmarried mother’s U.S. citizen sister, mother is an LPR, she can file an Funder the petitionconferences, filed and by providing her available for herarticles mother, once her been waiti view symposia some petition is approved in April direct links to sons/daughters of LPRs) on for behalf of Given the 8her aunt, in April 2001. The 2B petition (for unmarried adult petition. mother’s U.S. citizen sister, mother islink anJane’s LPR, she can file an year F- backlog under the years (found year’s to itsmother corresponding 2002, and a by visafollowing number the respective her daughter. becomes petition is in approved in April sons/daughters LPRs) onadult behalf Given the webpage). her aunt, Aprilavailable 2001. Thein 2B petition (foranof unmarried petition. becomes an LPR and files F-2B petition for inof the F-2B Additionally, LatCrit has developed a substantial body of scholarship from 2002, and a visa number her daughter. Jane’s mother becomes year backl petition is approved April sons/daughters of LPRs) on behalfcategory, of Given the February 2013, in when Jane her daughter in 2013. Under Matter a several other alia the South-North Exchange, the visa becomes available in symposia: inter of an LPR and will files an petition for willin thebackl F-2B 22 years old. stand-alone Wang, Jane not beF-2B able to not 2002, isStudy and a visa number her daughter. Jane’s mother becomes year Space Series, the International and Comparative Colloquia. LatCrit the and earlier priority dateMatter befor available February 2013, when Jane her daughter in2001 2013. Under category, a becomes available inCRIT: LATINA &retain an LPR files an F-2B petition in the F-2B L ATINO C RITICAL L EGAL T HEORY , for Symposia, LATCRIT: LAT but rather will be will givennot a new 2013 Janevisa untilwill n is 22 years old. of Wang, Jane be able to February when Jane her daughter in 2013. Matter category, a INC., 2013, http://latcrit.org/content/publications/latcrit-symposium/ (lastUnder visited priority date. 138 2021, when retain theJane earlier priority date be July 5,old. 2014). is 22 years of Wang, will2001 not be able to visaavailabl will n 6 These include Professors Marc-Tizoc González, Andrea Freeman, and but rather will be given a new 2013 for Jane u retain the earlier 2001 priority date be availabl César Cuahtémoc García Hernández. See About LatCrit, supra note 3 (listing 138 137 See U.S. Dept. of State Visa Bulletin,priority 2021, when supra notedate. 47will (describing the Visa but rather be given a new 2013 for Jane u the professors on the LatCrit Board of Directors and their respective law petition process). 138 priority date. 2021, when schools). 138 Under Matter of Wang, Jane cannot avail herself of the automatic

Campo Sano, LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,137 http://www.latcrit.org/content/campo-sano/ See U.S. Dept. of State Visa Bulletin, supra (last note visited 47 (describing July 5, 2014). the Visa 8 Id. process). petition 137 See U.S. Dept. of State Visa Bulletin, supra note 47 (describing the Visa 138 9 Id.Under Matter of Wang, Jane cannot avail herself of the automatic petition process). 7

138

Under Matter of Wang, Jane cannot avail herself of the automatic

l enc l enc f fhen be hen e? be d on e? d on visa visa s8 s8 F-2A with rivative  s he with 2B dy s he incipal isa dy in isa ears, inF-4 n ears, rivative  72B n F-2A 7incipal derivative is F-2B ed is principal 12 ed t she 12 F-4 dy t she derivative ing F-2B dy F-4 principal ing F-4 8log 8B log a B not a le not ntil le n ntil n

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I.

INTRODUCTION

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Jane is 30 years old. the meantime, she must w in German and will be unable to j her mother the U.S.

On June 9, 2014, a divided Supreme Court issued its decision in Scialabba v. Cuellar de Osorio, resolving a circuit split over the statutory construction of our nation’s complex immigration laws. 2 The plurality held that most children who are listed as derivative beneficiaries 3 on their parents’ family-based immigrant petitions, but who turn twenty-one years old and “age out” while waiting for visas to become available, will not be able to retain their original priority dates and immigrate 4 or adjust status 5 along with their 1348 47 JO HN M ARS HALL L. REV . 1348 Vol. 47:4 parents. Rather, they will need to start the process anew by having their parents file a new immigrant petition once they Jane is 30 become lawful permanent residents. years old. In The ruling impacts the futures of thousands of “aged out” the children and threatens the separation of families and the meantime, deportation of children who have lived in the United States for she must wait in Germany most of their lives. 6 These “aged out” children sometimes wait and will be decades a visa to become available in unable to join Second for Circuit: Fifth Circuit:only to lose their placeNinth Circuit: line upon turning twenty-one years old. her mother in Same as under Same as under Matter of Same as under Ma the U.S. Congress has already acted to help avoid the harsh Matter of Wang. Visa Wang. Visa converts to F-2B Wang. Visa converts to consequences caused category by government backlogsoriginal on “aged out” and he retains o converts to F-2B and he retains category children. In 2002, Congress enacted the Child Status Protection category and he retains 2010 priority date. 2010 priority date. Act (“CSPA” or “the Act”), amending the Immigration and original 2010 priority date.

Same as under Jane is credited with the 12 Jane is credited with v. Cuellar years de Osorio, 134 she S. Ct.has 2191 already (2014). been years that she has alread Matter 2 Scialabba of Wang. that Circuit:beneficiary” FifthisCircuit: Ninth Circuit: 3 Second A “principal an individual who qualifying Automatic waiting and retains theof has 2001aSame waiting and Matter retains Same conversion as Same or as Lawful under Matter as under of the relationship with under a U.S. citizen Permanent Resident (‘LPR’) not recognized for priority date. A visa number is priority date. A visa  petitioner, Matter of Wang. Visa Wang. Visa onconverts Wang. Visa converts to F-2B num who files a visa petition behalf oftotheF-2B principal beneficiary. converts beneficiaries, to F-2B defined categoryas and he retains original category and he retains original to h Jane.Derivative immediately available to her and immediately available the spouse or minor child of the principal category and he retains 2010 priority date. 2010 priority date. she can join her mom in the U.S. she can join her mom in the beneficiary, may also be named in the principal beneficiary’s visa petition, and original 2010 priority are entitled to the same preference status, and the same priority date, as the date. principal alien. US DEP’T OF STATE , FOREIGN AFFAIRS MANUAL, 9 FAM 42.31 Jane is credited with the 12 Jane is credited with the 12 n. 2. Same as under  Matter ofHE M Wang. years that she has already been years she has already been 4 See T ERRIAM -WEBSTER DICTIONARY (1994) (defining that the word Automatic asconversion and retains the one 2001 waiting and for retains the 2001 immigrate “to come waiting into a country of which is not a native not recognized for priority date. A visa number is priority date. A permanent residence”). For purposes of this article, the word may be used visa number is Jane. immediately available to her and immediately available to her and interchangeably with the term, “consular processing.” she can processes join her mom in the U.S. an she can join visa: her mom in the U.S. 5 There are two different for obtaining immigrant consular processing and adjustment of status. During consular processing, applicants apply for and process an immigrant visa at a U.S. Department of State consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the U.S. has their immigration status adjusted to that of a permanent resident. See Consular Processing, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, available at (last conversion and updated Feb. 12,retention 2014). language under (h)(3) of CSPA because at the time See out, Briefthere for was Plaintiffs-Appellants by American Immigration she 6aged no “appropriate category” in which she could Lawyers convert, Association andcategory Catholic exists Legal for Immigration Network, Inc., Amicus Curiae, since no visa adult nieces/nephews of as U.S. citizens. See at 11, De 695 atF.3d 1003(determining (9th Cir. 2012) (No. Matter of Osorio Wang, v. 25 Mayorkas, I. & N. Dec 38-39 there not09-56786) to be a (“AILA Amicus Brief”). category). appropriate conversion conversion and retention language under (h)(3) of CSPA because at the time she aged out, there was no “appropriate category” in which she could convert, since no visa category exists for adult nieces/nephews of U.S. citizens. See Matter of Wang, 25 I. & N. Dec at 38-39 (determining there not to be a appropriate conversion category).