Monday, July 7, 2014

Petition for Rehearing Filed in Scialabba v. Cuellar de Osorio: Decision Based on Fundamental Mistake

The Respondents in Scialabba v. Cuellar de Osorio who were unsuccessful in convincing the Supreme Court to reject the Board of Immigration Appeals' interpretation of the Immigration and Nationality Act's provisions addressing family visas for "aged out" children have filed a Petition for Rehearing based on a mistaken understanding of the law by the Court. 

The "Grounds for Rehearing" are outlined as follows:

"The plurality’s decision in this case was based on a mistake that cuts to the heart of its analysis.

The plurality acknowledged that if an aged-out child could retain his original priority date without automatic conversion then the BIA “would have been required to” make priority date retention available to “every aged-out beneficiary of a family preference petition.” Slip op. 21; see also id. at 22 (identifying this as an “independent reason[]” “to overturn the Board’s judgment”). According to the plurality, however, “context compels” the conclusion that priority date retention and automatic conversion “work in tandem.” Id. at 29. In particular, the plurality pointed to its belief that, “[a]s far as we know, immigration law nowhere else allows an alien to keep in his pocket a priority date untethered to any existing valid petition.” Id. at 30.

Respondents’ merits brief, however, cited a major statutory provision that allows exactly that. The Western Hemisphere Savings Clause permits an alien formerly classified as a Western Hemisphere immigrant to retain his “previously established” priority date for use with “[a]ny petition” later filed on his behalf. Immigrant and Nationality Act Amendments of 1976, Pub. L. No. 94-571, § 9(b), 90 Stat. 2703, 2707 (emphasis added), cited and quoted in Resp. Br. 45; see also U.S. Department of State, 9 Foreign Affairs Manual, ch. 42.53 n.4.1 (a Western Hemisphere immigrant “retains” his priority date and “may use that priority date for the purpose of any preference petition subsequently filed in his or her behalf.” (emphasis added)). Such an alien may, in other words, “keep in his pocket a priority date untethered to any existing valid petition.” Slip op. 30.

The Western Hemisphere Savings Clause grants exactly the sort of “open-ended, free-floating entitlement” that the plurality believed did not exist. Slip op. 30 & n.16. To this day, Western Hemisphere immigrants may rely on the provision to retain priority dates obtained prior to January 1, 1977—nearly 40 years ago. See 9 Foreign Affairs Manual, ch. 42.53 & n.4.1.

This provision is, moreover, no minor feature of immigration law: When enacting the Clause, Congress knew that it was granting priority date retention to approximately 300,000 visa applicants. See H.R. Rep. No. 94-1553, at 6 (1976). And, as noted, the government continues to administer the benefit today. See 9 Foreign Affairs Manual, ch. 42.53 & n.4.1.

Because the Western Hemisphere Savings Clause calls the plurality’s analysis into question, Respondents respectfully submit that rehearing is warranted."


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