Immigrant Children Sent to Back of Line if Visas Not Approved Before Age 21

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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USCISDespite some spending years waiting in line for visas allowing them to lawfully emigrate to the United States, immigrant children must go to the back of the line upon reaching the age of 21. So says a 5-4 majority of the Supreme Court, in a decision that is sure to be the subject of endless debate. A bloc of justices straddling both sides of the aisle ruled that federal law does not allow children to retain their place in line, except under very limited circumstances.

The decision is handed down during a particularly volatile period in immigration history. Reports of children flowing over the southern border, fear of disease and talks of “de facto amnesty” have dominated the news cycle for several weeks. The recent decision in Scialabba v. de Osorio is unrelated to the general immigration debate currently raging, but will likely become part of the greater conversation.

Child’s Petition Converted to Adult Petition at Age 21

The de Osorio ruling involves Rosalina Cuellar de Osorio, an immigrant from El Salvador who was in line for a visa. Waiting with her was her then-13-year-old son. After years on the list, her son turned 21 and was deemed to be no longer qualified to remain with his mother in line, as he was no longer an eligible child. The 9th Circuit Court of Appeals upheld a challenge to the INS ruling. The Supreme Court overturned the 9th Circuit with its most recent opinion.

Justice Elena Kagan wrote the majority opinion, interpreting the law to specifically state that immigration officials must convert a child’s petition to an adult petition upon reaching the age of 21. The ruling could have a broad impact on those families currently in line for green cards, as the process takes years. More and more children will age-out with every passing day.

Dissenters Argue Law Could Be Interpreted Differently

Writing a dissenting opinion, Justice Sonia Sotomayor said the law was broad enough to allow for an interpretation allowing all aged-out children to retain their spot in line. Senators John McCain (R-Ariz.), Orrin Hatch (R-Utah), Chuck Schumer, (D-NY) and Diane Feinstein (D-Calif.) submitted a joint brief arguing against the government’s position as well.

While the issue ruled upon by the Supreme Court is part of the general immigration reform debate currently raging in Congress, it is unlikely the issue will be addressed any time soon, as President Obama has delayed the proposed immigration reform legislation indefinitely, ostensibly to bring both sides of the aisle together to support a comprehensive reform package.

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