Supreme Court: Immigrant Children Lose Place In Line At Age 21

The Justices ruled that young people who turn 21 while waiting for visas must start the process over from scratch. Michel Martin learns more from Muzaffar Chishti, of the Migration Policy Institute.

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MICHEL MARTIN, HOST:

Now we'd like to take a closer look at a Supreme Court ruling in an immigration case that was delivered on Monday by a 5 to 4 vote that scrambled the ideological lines that we are used to seeing in these close decisions, the justices ruled that many young people who turned 21 while waiting for visas lose their spot online and have to start the process over from the beginning. Here to tell us more about this is Muzaffar Chisti, the director of the Migration Policy Institute's office at New York University School of Law, and he's with us from New York. Welcome. Thanks so much for joining us.

MUZAFFAR CHISTI: So glad to be with you.

MARTIN: So to understand this ruling, it's important to know that citizens and permanent residents can petition for their family members receive visas. I think a lot of people know that. But after this ruling - what happens now? Who gets to keep their spot on line and who has to start over?

CHISTI: Legislative citizens and permanent residents of the U.S. can sponsor qualified relatives for a green card or permanent residence. And when they sponsor that relative, the spouse and the minor kids of that person piggyback on that visa with the same date in the queue as the person that your sponsored for. The Supreme Court, yesterday said that if in the process waiting for you to get your number, the child turns 21, that person is no longer a child and therefore can no longer piggyback on the visa. And they have to be - migrate - pardon the pun here - to a different category, and in that category, once to go back to the line of that category. So just increases the waiting time for people who thought they were going to get their green card early by a few years.

MARTIN: How long can this visa process take? What's the difference between those two lines, as it were?

CHISTI: Well, someone who - most of the people we talk about in the context of the Supreme Court decision are now adult, unmarried kids or permanent residents, though a waiting line for most countries today for that is about seven years. If you're from the Philippines, it's about 11 years. But if you're from Mexico, it's about 20 years. So it depends on the country of your birth.

MARTIN: What - I noted at the beginning, that the five to four decision - people are accustomed to these very narrow decisions. But what was noteworthy in this case is that we're used to seeing the conservatives lined up on one side, the liberals lining up on a different side - that was very much not the case here. And I just wondered if you could - I know it's a complicated issue, but can you help us kind of understand...

CHISTI: Exactly.

MARTIN: ...why that might have been?

CHISTI: That's the delicious thing about reading Supreme Court decisions or watching the Supreme Court. This was a not a momentous decision on a very important, high-profile constitutional issue. This was strict interpretation of a statute. And Justice Kagan, in her opinion, said that look this statute is not clear - it's ambiguous. And whenever you have an ambiguous statute, what you should do is give deference to the agency which has expertise in the matter. That, in this case, happened to be the Board of Immigration Appeals, which had held that you must go back to the end of the line when you become over 21. And so they gave -this is more a case about deference to the interpretation of an agency decision as against a fundamental constitutional issue in our immigration law.

MARTIN: And speaking for the dissenters, that was Justice , Sonia Sotomayor.

CHISTI: Exactly. And she said...

MARTIN: And she said what?

CHISTI: ...And she said this is not ambiguous. This is unambiguous. And when the reading of her statute is unambiguous, then you must read the way you see it.

MARTIN: And she felt that the intent of Congress was clear, in her - She felt the intent of Congress was clear, as I read in the decision. How many people do we think will be affected by this? And if you don't mind - if you can, what gave rise to this to begin with? Who were the complainants, in this case?

CHISTI: Well, there were a set of plaintiffs in this case, and they all - cases got lumped. This is a case of a woman from Salvador who was sponsored by her father, and she arrived here as a married son and daughter. And she had a 13-year-old child when she was sponsored. And they arrived here. By the time she got her green card, which she, I think, got in 2005, he had turned more than 21. She applied on a different category for which he is now eligible, but the agency said, we'll grant you the application, but the priority date is a new one - the current date. And that kept him waiting for so many years. And there are about three or four similar cases all bundled together for this opinion.

MARTIN: What is the effect of this now, do you think? Do we know how many people are affected by this?

CHISTI: We don't know. No one knows exact numbers. But it's in thousands, if not in hundreds of thousands because the backlog for number of these categories has been so long, the people have been sort of waiting and cooking in their priority lines. And therefore, you know, those who got off the 21 - they automatically were affected by this. I think the interesting here is that the four members of the Senate who were part of the writing of the law in 2002, which changed the definition of how you age out - they said that Congress really did not intend what the vote of them Christian appeals held, and basically Justice Kagan said if you meant to say differently, you should just written it much more clearly.

MARTIN: To that end - we have about a minute left. Is there a congressional solution possible? Is a legislation solution in the offing here?

CHISTI: Yes. Since this case has been cooking for some time, there was a fix for the statute really in the big immigration bill that Senate passed last year. That would also remedy the situation. As you know, Senate passed the bill, and there's no house action. So there's no law to change it. But that's the hope in the future.

MARTIN: Muzaffar Chisti is the director of Migration Policy - The Migration Policy Institute's office at New York University School of Law, and he was kind enough to join us in our bureau in New York. Professor Chisti, thanks so much was for speaking with us.

CHISTI: Thanks for having me.

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