On the same day that the immigration world was abuzz with news that the President would unveil his immigration reform plan next week, the administration filed a brief to preserve the unnecessary family separation caused by its cramped understanding of the Child Status Protection Act reflected in the Board of Immigration Appeals decision in Matter of Wang. The juxtaposition of the prospect of common sense immigration reform with the wholly unnecessary appeal of the U.S. Court of Appeals for the Ninth Circuit’s decision in Cuellar de Osorio v. Mayorkas provides significant doubt that the administration really understands the pain caused to American families by the immigration laws and the decisions that the administration takes on a daily basis that make those immigration laws worse than perhaps Congress even intended. When the administration is more restrictive then Congress, that is a sorry state of affairs.
Enough editorializing. We can write more about what a disastrous decision this was for the administration once emotions are less raw. For now, we will focus on what happens.
The administration has filed a petition for a writ of certiorari to the Supreme Court to review the decision of the 9th Circuit. A writ of certiorari is a statement from the Supreme Court that they will review a case. “I will review” is the basic Latin translation of certiorari. By petitioning for the writ, the government is asking the court to review a case. Review at the Supreme Court is discretionary, meaning that the Supreme Court does not review all cases in which certiorari is sought. In fact, the Supreme Court rejects the overwhelming majority of cert petitions filed each year. The Supreme Court grants only about 2% of all petitions for certiorari. That might be comforting, but the odds are improved when the petitioner is the Department of Justice, as it is here. In addition, other factors, such as the split between circuit courts to have reviewed the CSPA, and the national implications of the decision are factors that indicate that the government’s petition for a writ of certiorari in de Osorio are better than the 2% average.
The Supreme Court will vote on whether to hear the case. Four justices must vote in the affirmative to hear the case. It is difficult to say when the Supreme Court will rule on whether to grant certiorari. A good discussion of Supreme Court procedure can be found here. If the Supreme Court denies the petition for certiorari, the decision of the Ninth Circuit will stand. If the Supreme Court grants the petition, it will receive briefs from the parties and all sorts of other interested people and organizations. It will hold oral argument. It is unlikely that the Supreme Court will hold oral argument before October as the Court recesses from June to October. A decision would likely come about a year from now.
So, there remain two more opportunities to end this struggle. The first chance is whether the Supreme Court grants cert. The second is when, if it grants cert, it decides on the case.
There remains substantial hope. The lawyers handling this are some of the best in the business. Many other interested parties will weigh in. Benach Collopy will continue to be a part of this litigation and continue to advocate for sane immigration laws. Also, cert is rarely granted. The government still has an uphill road to follow. This is a setback and not a defeat.