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Supreme Court upholds 'back of the line' policy for some visa applicants

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Washington

Children of immigrants who "age out" while waiting with their parents for a visa to be admitted to the U.S. will have to start over again in a new line when they turn 21, the U.S. Supreme Court ruled Monday.

In a split ruling in which five justices agreed with the outcome but for different legal reasons, the court said the 9th U.S. Circuit Court of Appeals was wrong when it found in favor of Rosalina Cuellar de Osorio, a Salvadoran immigrant who was in line for a visa along with her son.

The son was 13 when they began the wait. When he turned 21 and his mother was still in line, the federal government said he was no longer eligible under his mother's application and that he would have to apply separately, going to the back of the line for adults seeking visas.

In her majority opinion, Justice Elena Kagan said the Bureau of Immigration Appeals was right to find that the Cuellar family didn't qualify for a form of relief from the immigration law that allows a tiny percentage of people who "age out" to avoid restarting the process.

In 2002, Congress passed the Child Status Protection Act, allowing some young adults to stay in the same line after they turn 21. Appeals courts have split over whether that law applies to all young adults or only certain categories, such as children of green card holders. Kagan's ruling will affect several thousand young adults who turn 21 each year before their applications are processed, the federal government estimates.

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The Catholic Legal Immigration Network, whose affiliates nationwide help immigrants in various legal situations, had argued in an "amicus" or friend-of-the-court brief that the interpretation used by the Bureau of Immigration Appeals would increase the wait time for aged-out young adults by more than nine years on average.

Several members of Congress who had backed the 2002 bill also submitted a brief arguing that the exception ought to apply broadly to all aged-out children.

But Kagan likened the situation to what would happen if the parent as primary applicant died before being approved. The child who would have been entitled to a visa along with his parent would not get credit for the time the parent had waited, she observed.

"Whatever Congress meant in enacting [the law], it failed to speak clearly," Kagan wrote. "Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme," the immigration appeals board chose a reasonable interpretation, she said.

Justices Anthony Kennedy and Ruth Bader Ginsburg joined Kagan's opinion. Chief Justice John Roberts and Justice Antonin Scalia wrote a separate opinion that concurred with Kagan's outcome but following different legal reasoning. Justice Sonia Sotomayor wrote a lengthy dissent, joined by Justice Stephen Breyer and Clarence Thomas. Justice Samuel Alito had a separate dissent.

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