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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