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As ideas for immigration reform take shape, there is one thing that the administration could do without lifting a finger that would help thousands of immigrants.  This benefit would actually require the government to refrain from doing something.  If the government decides not to appeal the decision of the U.S. Court of Appeals  for the 9th Circuit in Cuellar de Osorio v. Mayorkas, the Court’s decision would stand and thousands of young immigrants would be able to apply to adjust their status after waiting years for that opportunity.

As we discussed before, in September 2012, the U.S. Court of Appeals for the 9th Circuit held that the Board of Immigration Appeals had misinterpreted the Child Status Protection Act (CSPA) in a way that excluded thousands of young immigrants from eligibility for immediate residence.  The issue arose in cases where a child was included as a derivative of an immigrant petition filed on behalf of their parent.  Due to backlogs, that child often aged-out of eligibility by turning 21 before the parent received her green card.  In that case, many parents, subsequent to receiving their residence, filed I-130 immigrant petitions on behalf of their children.  However, those children were sent to the back of the line of the unmarried sons and daughters of permanent residents, despite having already waited for years with their parents.  The CSPA attempted to remedy this by allowing these derivative children to recapture their old priority dates when their parents or an employer later sponsored them.  In Matter of Wang, the Board unnecessarily limited the class of derivative beneficiaries who could recapture their priority dates, basically undermining the congressional fix in the CSPA.  Now the 9th Circuit has joined the 5th Circuit in rejecting Matter of Wang and the government must decide how it will react to these rulings.

So far, their reaction is not encouraging.  The government filed and the 9th Circuit granted an unopposed motion to stay the mandate, which holds up the effectiveness of the de Osorio ruling.  The mandate has been stayed until December 26, 2012.  At the same time, the government filed a request to extend its time to file a Petition for a Writ of Certiorari to the Supreme Court, which is a request that the Supreme Court hear the case.  Their petition to the Supreme Court would also be due on December 26, 2012.  However, yesterday, the government filed another request to stay the mandate until January 25, 2013 to give the government more time to consider whether to file a cert. petition to the Supreme Court.  We expect that the court will grant this motion as well.  So, by January 25, 2013, we will know whether the case is over or whether it will go on.

The administration does not need to seek review.  It is hard to see what the compelling government interest is in demanding that these aged-out beneficiaries continue to wait.  An analysis of the backlogs revealed that certain Mexican nationals might need to wait over 100 years for a visa under the Matter of Wang interpretation.  By deciding to let the de Osorio decision stand, the government will demonstrate that it is firmly on the side of keeping families together, rational  immigration policy and that it is abandoning its practice of fighting to win for winning’s sake, regardless of the social costs.  As the administration begins the process of reviewing our immigration laws, it must look closely at the litigation positions it takes and ask whether those positions are consistent with humane and compassionate immigration policy.  Appealing de Osorio is not and the administration should leave the decision alone.

Many of the same factors that drive support for DREAMers can equally be said about those who would benefit from de Osorio.  de Osorio beneficiaries applied for residence, but due to processing delays and backlogs, did nothing more than grow up.  They did what they were supposed to do.  Their families have now received residence and they have been left behind.  Despite Congressional intent to help these beneficiaries, an interpretation by the BIA left them out in the cold.   The Obama administration now has a chance to fix this and give effect to the original intent of Congress to help these immigrants and to help keep families together.

The government has just over a month to decide whether to appeal de Osorio to the Supreme Court.  What it chooses to do will say a lot about the truth behind the rhetoric.