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Tomorrow, December 10, 2013, the Supreme Court will hear oral arguments in Mayorkas v. Cuellar de Osorio, reviewing the 9th circuit decision that reversed the Board of Immigration Appeals’ decision in Matter of Wang that rejected the applicability of the Child Status Protection Act (CSPA) to a large number of immigrants.  If the Supreme Court upholds the decision of the 9th Circuit, many aged-out young adults will be immediately eligible to apply for residence.  If the Supreme Court reverses the 9th Circuit, the BIA’s interpretation will stand and young adults who aged-out while their families’ petitions were stuck in the immigration backlogs will continue to wait for alternative paths to residence.

At the heart of the dispute is a common question in U.S. immigration law- how much deference does a court owe to an agency’s interpretation of matters within its expertise.  In a seminal 1984 case, Chevron v. Natural Resources Defense Council, the Supreme Court held that the answer to that question requires a two part analysis.  First, the court must determine whether Congress spoke clearly in the statute.  If Congress spoke clearly, the court must look to whether the agency faithfully implemented the statute’s directive.  The second part of the analysis comes into play if the court determine that Congress did not speak clearly and left the details of the matter to the expertise of the agency.  Where Congress spoke ambiguously, courts should defer to the agency’s special expertise so long as their interpretation was reasonable.  As a practical matter, if a court finds that Congress’ directive in a piece of legislation was ambiguous, it will likely uphold the agency’s interpretation.  Thus, in this case, the Court must decide whether the Child Status Protection Act was clear in how these aged-out young people should be treated.  If the court decides that Congress was pellucid in the language of the statute, it is likely that the court will reject the BIA’s interpretation and uphold the 9th Circuit’s decision.  In addition to the 9th Circuit, one other court, the 5th Circuit, has also rejected the BIA’s formulation.

Cuellar de Osorio’s lawyers will be arguing that Congress spoke with particular clarity when it passed the Child Status Protection Act and intended for all aged-out derivative beneficiaries of their parent’s immigrant petitions to be able to reclaim their original filing date rather than going back to the “end of the line” after turning 21.  They are supported by a brief filed by several Senators who explain to the Court that their intention in passing the legislation was to help as many aged-out children as possible.  The government seeks to muddy the waters and state that Congress was not clear and that the court should defer to the government.  The government warns of major disruption to the way visas are distributed if the Court rejects its interpretation.

Tomorrow, lawyers for the government and for the immigrants affected will get their chance to argue the case before the Supreme Court.  A decision will likely come in the spring of 2014.