Supreme Court Rules against “Aged Out” Immigrant Children

Washington, D.C. – In a decision closely watched by immigration attorneys and advocates alike, the U.S. Supreme Court ruled today that immigrant children who turn 21 while they wait to be issued a family-based visa will have to get in the back of the line and start the lengthy process over again.

With the 5-4 decision, the Supreme Court sided with the Obama administration which insisted the country’s immigration laws only offer relief to a minute fraction young immigrants who have “aged out” of the system, Reuters reported.

The case before the high-court, Mayorkas v. Cuellar de Osorio, revolved around a Salvadoran woman, Rosalina Cuellar de Osorio, who was granted a family-based visa because her mother was a U.S. citizen. When she immigrated, Cuellar de Osorio was allowed to bring her 13 year-old son because he was minor and applied for a visa on his behalf. Cuellar de Osorio was granted her visa in 2005 but her son, who had recently turned 21, was not. After waiting several years, for her son’s visa, she was informed her son would have to start the visa process over again.

The number of some family-based visas issued each year from a specific country are capped so many immigrants wait years just to obtain a visa.

Cuellar de Osorio appealed the decision with U.S. Court of Appeals for the 9th Circuit arguing that the Child Protection Status Act was meant to prevent immigrants like her son from having to reset the visa process once they turn 21. The Board of Immigration Appeals said that particular law only applied to certain minor immigrants specifically those who are children or spouses of permanent legal residents, not U.S. citizens.

Today’s decision from the U.S. Supreme Court affirms the BIA decision, stating that the Child Protection Status Act is narrow and only applies to immigrants whose relatives are legal permanent residents.

Dissenting Justice Sonya Sotomayor argued the law should be interpreted to allow all “aged-out” immigrants to keep their priority date even though they have turned 21.

Catholic Legal Immigration Network, an immigration advocacy group explained to the Minneapolis Star that children of immigrants who “age out” of the process have to wait up to an additional nine years to be granted a visa while allowing them to keep their place in line would allow delay visa for other immigrants for  few months.

The challenges Cuellar de Osorio and her son faced are not unusual; thousands of immigrants age out of the visa system every year and are forced to start over again. This can be very frustrating and explains why some many bypass the legal system of immigration.

Immigrating is not supposed to be easy, but the process can be less arduous for those willing to retain an immigration attorney and follow the proper legal channels to obtain their visa, work permit or green card. This will allow an immigrant to live and work in the U.S. without threat of deportation.