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Raise Your Hand If You Understand Immigration Law: Take Two

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Back in February, I wrote about the complexity of immigration law, and described how a federal court conflated immigration provisions in an important case. Now it turns out that immigration law stumps even the Supreme Court. The Court's recent decision in Scialabba v. Cuellar de Osorio is marred by errors that may well have affected its outcome.

Cuellar dealt with the typical stuff of family-based immigrant visa petitions. A family member files a visa petition to request that the government recognize a relationship that allows a relative to apply for a green card. Depending on factors like the type of family relationship and the relative's age, the waiting time between filing a visa petition and a green card application can range from months to decades. Why the potentially long wait? Because the government caps the number of people who may immigrate each year in certain family petition categories.

A U.S. citizen's child, for example, immediately qualifies to file for a green card when her parent submits a visa petition. There is no cap, and thus no wait. In contrast, because the demand for sibling visas far exceeds supply, a U.S. citizen's sister might wait two decades after a petition is filed before she becomes eligible to apply for a green card.

The question in Cuellar was whether a child may hold the spot in line established by a previous visa petition even after turning 21, the age of majority in immigration law. This is called "aging out," and it invalidates categories of petitions available only to children. What if a different or newly qualified family member is able to file a petition for the aged-out adult? Should the government treat the petition as filed on the same date as the earlier one? For most categories of visa petitions, the Court's answer is no. In other words, the family must start the process all over again.

Unfortunately, the Court stumbled to this answer under the weight of legal misunderstandings. In what initially appears to be a cosmetic mistake, Justice Elena Kagan insists on using the terms "petitioner" and "sponsor" interchangeably. Unfortunately, however, these words have distinct meanings in the context of immigrant visa applications. No family visa "petitioner" becomes a "sponsor" until her relative (the "beneficiary") has finished her wait in line. Only once the wait is over, and the relative applies for a green card, is the petitioner called on to pledge financial support--thus "sponsoring" her relative.

Justice Kagan's logic in the Court's opinion, as well as Chief Justice John Roberts' reasoning in his concurrence, reveals that the use of incorrect terminology is a symptom of serious substantive confusion. Both Justices assume (in Roberts' words) that preserving one's place in line "requires, at a minimum, that the beneficiary have his own sponsor, who demonstrates that he is eligible to act as a sponsor, and who commits to providing financial support for the beneficiary." But this is incorrect. The beneficiary initially requires only a "petitioner," whether wealthy or destitute, to file a visa petition on her behalf. Sponsorship comes later.

Justice Kagan commits several other legal errors. In holding that beneficiaries may not switch petitioners after aging out, she harshly critiques the dissenting Justices' opinions to the contrary. "Were their theory correct," she chides, those "aliens" could hold their place in line "for years or even decades while waiting for a relative to file a new petition." And then comes her unfortunate misstatement: "As far as we know, immigration law nowhere else allows an alien to keep" her spot in line "untethered to any existing valid petition."

This is plainly wrong. A federal court noted in 2012 that beneficiaries from certain countries may hold spots established by petitions filed prior to 1977. Had Justice Kagan realized that the dissenters' position is not exceptional, she might not have been so dismissive. The 2012 opinion complains that the "case exemplifies why the immigration law of the United States is inexcusably complicated and in need of immediate revision." No matter. It's our law, and we are stuck with it for the foreseeable future.

Cuellar begs the following question: If Justices Kagan and Roberts got so much wrong in their written opinions, what other, unstated misunderstandings affected their analyses? Justice Kagan characterizes those who voluntarily read the immigration law in Cuellar as "masochists." Her distaste may explain her mistakes. But we desperately need federal judges to read and interpret immigration law correctly, even if they find the exercise masochistic. While hacking through the underbrush, every judge must bear in mind that the misery of immigration law is intertwined with much deeper human suffering.