Immigration Law

Scialabba v. Cuellar de Osorio - Post-Decision SCOTUScast

SCOTUScast 6-17-14 featuring Margaret Stock
Margaret D. Stock June 17, 2014

Margaret StockOn June 9, 2014, the Supreme Court issued its decision in Scialabba v. Cuellar de Osorio (formerly Mayorkas v. Cuellar de Osorio). This case involved two questions: (1) Whether Section 1153(h)(3) of the Immigration and Nationality Act– which provides rules for determining whether particular aliens qualify as “children” so that they can obtain visas or adjustments of their immigration status as derivative beneficiaries of sponsored family member immigrants (also known as “primary beneficiaries”) – unambiguously grants relief to all aliens who qualify as “child” derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and (2) whether the Board of Immigration Appeals (BIA) reasonably interpreted Section 1153(h)(3).

Although the District Court deferred to the BIA’s determination that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion under §1153(h)(3), the en banc Ninth Circuit reversed, holding that the provision unambiguously entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention.

By a fractured vote of 5-4, the Supreme Court reversed the Ninth Circuit. Justice Kagan announced the judgment of the Court and delivered an opinion joined by Justices Kennedy and Breyer, concluding that the BIA’s textually reasonable construction of §1153(h)(3)’s ambiguous language was entitled to deference. The Chief Justice, joined by Justice Scalia, agreed that the BIA’s interpretation was reasonable, but not because an agency has authority to resolve direct conflicts within a statute. The BIA’s reasonable interpretation of §1153(h)(3) was simply consistent with the ordinary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration system. Justice Alito dissented. Justice Sotomayor dissented joined by Justice Breyer in full and Justice Thomas except as to footnote 3.

To discuss the case, we have Margaret Stock, who is an attorney with the Anchorage office of Cascadia Cross Border Law.

Border Searches, National Security, and the Reasonable Expectation of Digital Privacy - Podcast

Criminal Law & Procedure Practice Group Podcast
Brian Hauss, Andrew J.P. Levy, Christian Corrigan September 25, 2013

Border Searches, National Security, and the Reasonable Expectation of Digital Privacy - PodcastIn United States v. Cotterman, the Ninth Circuit held en banc that government officials must have "reasonable suspicion" before conducting forensic searches of laptops at the U.S. border. The court's ruling is a dramatic departure from the general rule permitting suspicionless border searches in the interests of national security. Is the Ninth Circuit correct that computer searches should be held to heightened scrutiny because they "implicate substantial personal privacy interests?” Is it true that "[a] person's digital life ought not be hijacked simply by crossing a border?” Or does the Cotterman decision pose a threat to effective protection of the nation from harm? Was Judge Consuelo M. Callahan correct in her partial dissent that "a port of entry is not a traveler’s home ... even if a traveler chooses to carry a home’s worth of personal information across it?” Our experts will debate these questions, and more.


  • Brian Hauss, Legal Fellow, ACLU Speech, Privacy and Technology Project
  • Andrew J.P. Levy, Former Deputy General Counsel, Department of Homeland Security
  • Moderator: Christian Corrigan, Director of Publications, The Federalist Society

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