Supreme Court: At 21, Some Children Must Start Visa Process Over In an unusual majority, the Supreme Court's liberal and conservative justices have decided that immigrant children who turn 21 while their parents' immigration application is pending must start over.
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Supreme Court: At 21, Some Children Must Start Visa Process Over

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Supreme Court: At 21, Some Children Must Start Visa Process Over

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Supreme Court: At 21, Some Children Must Start Visa Process Over

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AUDIE CORNISH, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.

MELISSA BLOCK, HOST:

And I'm Melissa Block. Immigrant families often have to wait years to win legal entry into the US. Today, the Supreme Court said the children in those families may have to go to the back of the line when they become adults. The court's decision came on a five to four vote, with the majority itself split into two camps. NPR legal affairs correspondent Nina Totenberg reports on the fractured ruling.

NINA TOTENBERG, BYLINE: Under the Immigration Act, citizens and lawful permanent residents may petition to have their family members get visas and green cards. In most cases, people emigrating with a minor child stand in line with their children, but even after approval the process of getting a visa can take a long time - as much as decades. And if the minor child turns 21 during that time, the child can age out of his or her place in line, meaning that they have to start all over from scratch. 12 years ago Congress sought to fix this problem by allowing some of these children to keep their places in line. The question before the Supreme Court was, which of these over-21 adults gets to preserve their places in the queue? The Board of Immigration Appeals interpreted the law in the narrowest way, allowing only the unmarried children of US citizens and lawful permanent residents to hold onto their places in line.

Today, the US Supreme Court, conceding that the law is ambiguous, deferred to the board on the matter. Justice Elena Kagan, writing for a three-justice plurality, said that whatever Congress might have meant, it failed to speak clearly. While the opening provision of the law seems to make a broad statement of allowing minors who turn 21 to keep their places in line, a separate subsection of the law appears to contradict that. In such a circumstance, she said, the court should defer to the expertise of the board. The voting lineup of the justices crossed ideological lines with conservatives and liberals in both the majority and dissent. To understand how the immigration system works, you need to understand one key fact. When US citizens and lawful permanent residents petition to have their close relatives allowed into the country, those applications are often granted within a period of months. But the relatives cannot enter the US until they obtain visas. And obtaining a visa can take years and years.

This presents a problem for some adult relatives, and especially for their children. Under today's Supreme Court decision, most of the children lose their place in line when they turn 21, meaning they go to the end of the line. The only adults allowed to keep their places are the unmarried adult children of lawful permanent residents. Almost everyone else who ages out loses their place - the married sons and daughters of US citizens and their children, the sisters and brothers of those US citizens and their children. They all lose their places in line when they turn 21. The government does not track the numbers of affected people with precision, but estimates that the Supreme Court's decision will continue to push back visa dates for tens of thousands of people.

MARK FLEMING: So that is a significant number of families that have been not only waiting a very long time to be reunited with their children here in America, but are going to have to wait even longer now as a result of this decision.

TOTENBERG: That's Mark Fleming who represented the losing side in today's case. He says the wait for his clients can be decades. For example, for people coming in as married sons and daughters of US citizens, the wait is 11 years after their entry is approved. For brothers and sisters, the wait is 13 years. And the wait varies depending on what country the relatives are coming form. The wait for brothers and sisters seeking immigration visas from the Philippines, for instance, is 23 years. All of this, of course, can be fixed by Congress, and in fact the immigration overhaul passed by the Senate last year did include such a fix. But the house has refused to take up an immigration bill, putting this provision along with all the others in limbo. Nina Totenberg, NPR News, Washington.

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