Saturday, November 23, 2013
Nancy Morawetz: Last Minute "Policy Guidance" on the Child Status Protection Act on the Eve of Oral Argument in Mayorkas v. Cuellar de Osorio
After more than a decade of silence, the government has issued policy guidance on the Child Status Protection Act, 8 U.S.C. 1153(h)(3) (CSPA). The guidance addresses the very provision the Supreme Court will be addressing in Mayorkas v Cuellar de Osorio, scheduled for argument on December 10. It was issued mere days before the Solicitor General is due to file the reply brief for the U.S. government.
It is hard to believe that this is a coincidence. The guidance's main purpose seems to be to respond to some hard blows landed by the Respondents in their brief, which was filed October 28.
Cuellar addresses provisions of the CSPA that allow derivative beneficiaries to retain a priority date after having “aged out” even when they are not able to adjust as “children” under the CSPA. The government has argued that the priority date provision has very limited effect and serves to allow selected beneficiaries to move from one benefit to another without filing a new petition or paying a fee. But as Respondents showed in their brief, the government has never applied the provision in that way. Instead, it has required beneficiaries to file new petitions and pay new fees. Now the government is trying to change the facts as a post-hoc justification for the government’s limited implementation of the CSPA. The new policy, issued three weeks before the Supreme Court argument, states that those who fit the government’s narrow “automatic conversion” category do not have to file a petition or pay a fee.
The government also claims that, while the Fifth Circuit--in a decision by a conservative panel--ruled against it in 2011, the government has apparently viewed itself as not required to obey that decision because a district court in California ruled the other way in a nationwide class action and the Ninth Circuit's mandate reversing that judgment has been stayed.
Expect the Solictor General to reference this suspiciously well-timed new agency document in its reply brief next week.
Professor Nancy Morawetz is an immigration law and policy expert at NYU School of Law.