Monday, June 24, 2013

Supremes Grant Cert in Non-Criminal, Non-Preemption Immigration Case

Although lost in the shuffle of the big affirmative action decision this morning, the Supreme Court granted certiorari today in Mayorkas v. Cuellar de Osorio, an immigration case from the Ninth Circuit.  The case involves whether people who are children when a visa petition is filed, but grow older and stop being children by the time the visa becomes available, should be treated as children or as adults for the purposes of being beneficiaries of sponsored immigrants.

As decsribed on, the issues in the case are:

(1) Whether Section 1153(h)(3) of the Immigration and Nationality Act– which provides rules for determining whether particular aliens qualify as “children” so that they can obtain visas or adjustments of their immigration status as derivative beneficiaries of sponsored family member immigrants (also known as “primary beneficiaries”) – unambiguously grants relief to all aliens who qualify as “child” derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and

(2) whether the Board of Immigration Appeals reasonably interpreted Section 1153(h)(3).

Judge Mary Murguia wrote the en banc decision for the Ninth Circuit, with a dissent by Judge Milan Smith.

This is one of a few immigration cases that the Court has taken recently that does not involve removal based on a criminal coniction, such as Moncrieffe v. Holder and Chaidez v. United States, or a federal preemption case like Arizona v. United States.


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