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Case Name Costello v. Chertoff IM-CA-0059
Docket / Court 8:08-cv-00688-JVS-SH ( C.D. Cal. )
State/Territory California
Case Type(s) Immigration
Case Summary
On July 16, 2008, the plaintiffs, US citizens who have filed a visa petition for a child in accordance to the Child Status Protection Act (CSPA) but were denied or deferred due to significant delay, brought suit against the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration ... read more >
On July 16, 2008, the plaintiffs, US citizens who have filed a visa petition for a child in accordance to the Child Status Protection Act (CSPA) but were denied or deferred due to significant delay, brought suit against the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) in the U.S. District Court for the Central District of California. The plaintiffs, represented by private counsel, filed under the Administrative Procedures Act (APA) and Immigration and Nationality Act (INA), seeking declaratory and injunctive relief ordering USCIS officials to approve the immigrant visas in accordance with CSPA. Under the INA, children "age-out" at 21 years old, meaning they are no longer able to obtain immigrant visas with their family. CSPA provides relief to individuals who have applied for visas for a child that subsequently aged out before USCIS acted on the application by "freezing" the child's age on the date of application.

The plaintiffs sought certification of two subclasses: (1) those denied a visa application for their child when he or she aged out, even though the child's age should have been frozen under CSPA, and (2) those facing separation from their children as a result of USCIS failing to act on the child's visa application. On July 16, 2009, the U.S. District Court for the Central District of California (Judge James V. Selna) certified both subclasses. 258 F.R.D. 600 (C.D. Cal. 2009).

On September 9, 2009, the defendants moved for summary judgment, claiming that the statute was ambiguous under the Board of Immigration Appeals (BIA) decision in Matter of Wang, in which the BIA held that an aged-out child was barred from obtaining an immigrant visa through his or her parent. 25 I. & N. Dec. 28 (BIA 2009). On November 18, 2009, Judge Selna granted the defendants' motion for summary judgment. 2009 WL 4030516 (C.D. Cal.). The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit. The case was consolidated with de Osorio v. Scharfen (5:08-cv-840), in which the U.S. District Court for the Central District of California (Judge Selna) also granted summary judgment for the defendants under similar facts. The docket sheet and District Court order from the de Osorio case are included below, but the remaining case documents are currently under seal.

On November 18, 2009, the U.S. Court of Appeals for the Ninth Circuit (Judge Richard C. Tallman) affirmed the decision of the District Court. de Osorio v. Myorkas, 656 F.3d 954 (9th Cir. 2009). The plaintiffs subsequently petitioned for rehearing en banc, which was granted on April 10, 2012. On September 26, 2012, the U.S. Court of Appeals for the Ninth Circuit (Judge Mary H. Murguia) reversed the District Court's grant of summary judgment, and remanded for rehearing in accordance with the plaintiffs’ interpretation of CSPA. de Osorio v. Myorkas, 695 F.3d 1003 (9th Cir. 2012). On December 19, 2012, the Court of Appeals (Judge Mary H. Murguia) granted the defendants' motion to stay the mandate upon a petition to the U.S. Supreme Court. The defendants filed that petition on January 25, 2013, and it was granted on June 4, 2013.

The Catholic Legal Immigration Network, Immigration Advocacy Organizations, and current and former members of Congress filed amicus briefs before the Supreme Court heard the case on December 10, 2013 in Scialabba v. Cuellar de Osorio, 134 S.Ct. 2191 (2014). The Court decided in favor of the defendants, reasoning that as the CSPA does not speak unambiguously to the exact situation at issue, it must defer to the BIA’s reasonable interpretation of the statute. Justice Kagan delivered the opinion of the Court on June 9, 2014, joined by Justices Ginsberg and Kennedy. Chief Justice Roberts filed a concurring opinion, which Justice Scalia joined, differentiating which part of the statute is ambiguous. Justices Alito, Sotomayor, Breyer, and Thomas dissented. The Court reversed and remanded to the 9th Circuit to reinstate the original summary judgment verdict in favor of the defendants.

This case is now closed.

Dan Osher - 03/18/2013
Allison Hight - 02/20/2016


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Equal Protection
General
Juveniles
Timeliness of case assignment
Immigration
Constitutional rights
Status/Classification
Visas - criteria
Visas - procedures
Plaintiff Type
Private Plaintiff
Causes of Action Mandamus, 28 U.S.C. § 1361
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Defendant(s) Department of Homeland Security
Plaintiff Description US citizens who claim that their child's immigrant visa application was improperly denied for "aging out" (the child reached 21 years of age before the application was acted upon), in violation of the Child Status Protection Act.
Indexed Lawyer Organizations None on record
Class action status sought Yes
Class action status granted Yes
Prevailing Party Defendant
Public Int. Lawyer No
Nature of Relief None
Source of Relief Litigation
Form of Settlement None on record
Order Duration not on record
Case Closing Year 2014
Case Ongoing No
Additional Resources
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Case Studies Threats to the Future of the Immigration Class Action
Washington University Journal of Law and Policy
By: Jill E. Family (Widener University School of Law)
Citation: 27 Wash. U. J.L. & Pol'y 71 (2008)
[ Detail ] [ External Link ]

Docket(s)
8:08-cv-688 (C.D. Cal.) 12/19/2012
IM-CA-0059-9000 PDF | Detail
PACER [Public Access to Court Electronic Records]
5:08-cv-00840 (C.D. Cal.) 12/19/2012
IM-CA-0059-9001 PDF | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Declaratory, Mandamus, and Injunctive Relief 06/20/2008
IM-CA-0059-0001 PDF | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum in Support of Motion for Certification of Class Action 07/11/2008
IM-CA-0059-0007 PDF | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Civil Minutes - General [Denying Motions to Amend Class Definition and to Certify Class, and Staying Action] 08/25/2008 (C.D. Cal.)
IM-CA-0059-0003 PDF | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion to Certify Class 07/16/2009 (258 F.R.D. 600) (C.D. Cal.)
IM-CA-0059-0004 PDF | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Defendants' Motion for Summary Judgment 09/09/2009
IM-CA-0059-0008 PDF | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order re Cross-Motions for Summary Judgment 10/09/2009 (663 F.Supp.2d 913) (C.D. Cal.)
IM-CA-0059-0010 PDF | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Denying Plaintiffs' and Granting Defendants' Motion for Summary Judgment 11/10/2009 (2009 WL 4030516) (C.D. Cal.)
IM-CA-0059-0005 PDF | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Granting Defendants' Motion for Summary Judgment 11/18/2009 (C.D. Cal.)
IM-CA-0059-0006 PDF | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion [9th Cir.] 09/02/2011 (656 F.3d 954)
IM-CA-0059-0009 PDF | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion [9th Cir., en banc] 09/26/2012 (695 F.3d 1003)
IM-CA-0059-0002 PDF | WESTLAW| LEXIS | Detail
Document Source: U.S. Court of Appeals website
Opinion 06/09/2014 (134 S.Ct. 2191)
IM-CA-0059-0011 PDF | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Alito, Samuel A. Jr. (Third Circuit, SCOTUS)
IM-CA-0059-0011
Hillman, Stephen J. (C.D. Cal.) [Magistrate]
IM-CA-0059-9000 | IM-CA-0059-9001
Ikuta, Sandra Segal (Ninth Circuit)
IM-CA-0059-0009
Kagan, Elena (SCOTUS)
IM-CA-0059-0011
Murguia, Mary Helen (D. Ariz., Ninth Circuit)
IM-CA-0059-0002
Roberts, John Glover Jr. (D.C. Circuit, SCOTUS)
IM-CA-0059-0011
Rymer, Pamela Ann (Ninth Circuit, C.D. Cal.)
IM-CA-0059-0009
Selna, James V. (C.D. Cal.)
IM-CA-0059-0003 | IM-CA-0059-0004 | IM-CA-0059-0005 | IM-CA-0059-0006 | IM-CA-0059-0010 | IM-CA-0059-9000 | IM-CA-0059-9001
Smith, Milan Dale Jr. (Ninth Circuit)
IM-CA-0059-0002
Sotomayor, Sonia (Second Circuit, S.D.N.Y., SCOTUS)
IM-CA-0059-0011
Tallman, Richard C. (Ninth Circuit, FISCR)
IM-CA-0059-0009
Monitors/Masters None on record
Plaintiff's Lawyers Johnson, Jeremiah (California)
IM-CA-0059-0001 | IM-CA-0059-0007
Komanapalli, Joyce A. (California)
IM-CA-0059-0001 | IM-CA-0059-0007
Miller, Nancy Ellen (California)
IM-CA-0059-0001 | IM-CA-0059-0007 | IM-CA-0059-9000
Nelson, Aaron D. (District of Columbia)
IM-CA-0059-9001
Reeves, Robert L (California)
IM-CA-0059-0001 | IM-CA-0059-0007 | IM-CA-0059-9000
Shusterman, Carl (California)
IM-CA-0059-9001
Defendant's Lawyers Stevens, Elizabeth Jones (District of Columbia)
IM-CA-0059-0008 | IM-CA-0059-9000
West, Tony (District of Columbia)
IM-CA-0059-0008
Westwater, Gisela Ann (District of Columbia)
IM-CA-0059-0008 | IM-CA-0059-9000 | IM-CA-0059-9001
Other Lawyers Prokop, Amy Carole (California)
IM-CA-0059-9000 | IM-CA-0059-9001

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