THE CHILD STATUS PROTECTION ACT (CSPA) and The new Supreme Court Decision in the Osorio case.

By Shawn Sedaghat

Imagine if you will that you have a brother who has become a Naturalized citizen of the U.S. and has filed a petition to also bring you and your lovely family here as Lawful Permanent Residents. Imagine now for a moment that the waiting time for this type of visa is, on average, over 13 years and by the time you are eligible to finally receive your immigrant status in the United States, one of  your children has passed the age of 21 – after which he or she can no longer immigrate as a “child” of yours under the same petition that your brother filed for you some 13 years before, and that he has “aged-out”.

Understanding the legal system and the fact that 21 is the cut off age for immigration as a dependent child, you then decide to file for your son or daughter yourself, now that you are a proud permanent resident of the United States.  After doing a little research, you realize that the waiting period for such a petition, where a permanent resident parent files for a son or daughter who is over 21 years of age, is anywhere between 3 years and 6 or 7 years on average depending on some quota you cannot comprehend. Naturally, but incorrectly,  you assume that all that waiting that your child did as part of your case should count towards the new petition you are now filing.

Also assume that much to your chagrin, the good officer at the immigration service does not buy into your analogy and the case meanders its way to the Board of Immigration Appeals (BIA). There your arguments that the Child Status Protection Act ( CSPA ) does in essence and spirit give the beneficiary, here your son or daughter , the benefit of the period they waited along with their parents, is not successful.

Well, the fighting sort that you are, you decide to take this case to the 9th. Circuit court of appeals and are happy as a clam when you find out that the good judges there agree with your take on what is fair, but  your joy is soon tempered when the government sees fit to take this case to the Supreme court. Now, tell me how you would feel if the Supreme Court decided in a 5-4 decision that since the statue is not quite clear on this issue, they must defer to the interpretation of the agency that adjudicates the case, namely the BIA, and rules against you.

Well that is pretty much what happened here my friends. Junior must wait in line like all the other people and all those years of waiting, and the fact that now your family is ripped apart does not matter. Sometimes we do throw out the child with the bath water. Here it seems that the common sense approach gave way to strict adherence to the law. CSPA allows those whose cases were delayed as a result of government action or inaction to deduct that wasted period from their actual age in order to perhaps still qualify as beneficiaries, but CSPA does not help in a fact pattern described here, where the delay was due to no fault of the government.

Here is a link to the Supreme Court Decision:

Supreme Court Decides Scialabba v. Cuellar de Osorio