Supreme Court rules underage visa seekers now can ‘age out’

Justices say some relatives must go to end of line at 21

WASHINGTON — Foreign-born grandchildren, nieces and nephews of American citizens and permanent residents lose their place in line for a U.S. visa if they turn 21before the process is complete, the Supreme Court ruled Monday.

Rejecting pleas of immigrant rights advocates seeking to keep extended families together, the high court’s majority by a 5-4 vote decided these “more distant” relatives “age out” when they turn 21, losing the preferential treatment they were afforded as children, according to a decision by Justice Elena Kagan.

Theruling is a setback for thousands of would-be immigrants who have sometimes waited years or decades to join their families in this country.

“This means for tens of thousands of immigrant families, a parent will be separated from her kids,” said Carl Shusterman, a Los Angeles immigration lawyer who sued on behalf of recent immigrants forced to leave their now-adult kids when moving to the U.S.

But immigration officials said the decision brought fairness to others who have been waiting in the same line for a visa.

Since there are a limited number of visas from each country, moving one person to the back of the line moves another forward, they said.

The Immigration and Nationality Act says U.S. citizens and lawful permanent residents may apply for a visa for “immediate relatives,” including parents and siblings. They are referred to as “principal beneficiaries.” These would-be immigrants may also seek a visa for their children.

But the process often takes years, and the law has been unclear on what happens if such children reach 21 before receiving a visa.

The Board of Immigration Appeals in 2008 decided the visa preference was limited to immediate relatives and did not extend to “secondary beneficiaries” who are no longer children.

Immigrant rights lawyers in California sued and argued Congress did not intend to break apart families. They cited as proof the Child Status Protection Act passed in 2002.

The lawyers won a 6-5 ruling in their favor from the 9th U.S. Circuit Court of Appeals in San Francisco.

Its judges said the former minor children should keep their place in line for a visa.

But after agreeing to hear the Obama administration’s appeal, the Supreme Court upheld the government’s reading of the law.

Kagan agreed that although the children of permanent residents would lose their place in line, the immediate child of a U.S. citizen retains his or her priority for a visa.

“If an alien was young when a U.S. citizen sponsored his entry, then Peter-Pan like, he remains young throughout the immigration process,” she wrote.

But the same is not true of the secondary beneficiaries because the lawas written seems to send them to the back of the line, she wrote. Once these “children have turned 21, they can longer ride on their parents’ coattails,” she wrote in the case of Scialabba v. de Osorio.

Justices Anthony M. Kennedy and Ruth Bader Ginsburg agreed with her. Chief Justice John G. Roberts Jr. and Justice Antonin Scalia also agreed on the outcome, but joined in a separate opinion.