The Supreme Court on Monday waded into a complicated dispute over a law aimed at keeping immigrant families together in a case that underscores the occasionally tense relationship between immigration proponents and the Obama administration as Congress debates immigration reform.
The justices said Monday they will hear an appeal from the Obama administration arguing that children who have become adults during their parents' years-long wait to become legal permanent residents of the United States should go to the back of the line in their own wait for visas. Under U.S. immigration law, children 21 and older cannot immigrate under their parents' applications for green cards, even if the parents' application took decades to process.
An immigration spokesman declined to comment on the case Monday. The Obama administration has argued in the past that the thousands of green card applicants who lost their place in line for U.S. residency when they turned 21 do not merit priority status when they file their own visa applications.
Immigration advocates said it is hypocritical of the Obama administration to tell Congress that the nation's immigration laws are too tough and need to be rewritten, while at the same time insisting on conservative interpretations of those laws when processing family visa applications. President Barack Obama has vowed to help immigrants obtain legal status while also deporting record numbers of immigrants.
"Our lawsuit is only people who are doing it the legal way, so why do they have to be tough on separating families?" said Carl Shusterman, one of the lawyers representing the immigrants in the case. "These people have stood in line with their parents. These are people who followed all the legal protocols."
In 2002, Congress attempted to help these families by passing the Child Status Protection Act, which directed immigration officials to preserve the original date of application of a minor who turned 21 while the parents' application was pending. But immigration officials argue the law is ambiguous and giving these families priority status will likely delay other visa applications.
Immigration proponents hope Congress will once again step in to help these families. A provision in the immigration bill crafted by a bipartisan group of lawmakers and being mulled by the Senate would favor children who turn 21 during their parents' wait to win approval to live in the United States.
The Obama administration is appealing a 2012 ruling from the 9th U.S. Circuit Court of Appeals, which determined the United States Citizen and Immigration Services was wrongly forcing many adult children to file new applications for residency, putting their application at the bottom of the pile. The court said immigration must instead consider the original application date while processing the application for residency.
Immigration advocates said it will be devastating for their cause if the Supreme Court does not uphold the lower court's ruling. In some cases, children living illegally in the United States can wait decades for a parents' visa application to be processed and then are thrust into deportation proceedings if they turn 21 during that time.
That's what happened to Prerna Lal, co-founder of DreamActivist, a group fighting the Obama administration policy. Lal, who was brought from Fiji to the United States as a child without legal status, aged out of an immigrant petition filed by her U.S. citizen grandmother back in 2001. While other relatives were able to receive their green cards under that application, Lal was placed in removal proceedings because of her age.
"Why are they fighting this at the same time that they are trying to pass immigration reform? It doesn't make sense," said Lal, 28, of Washington, D.C. Lal is in the U.S. illegally and a visa petition on her behalf could take decades to be granted.
In some cases, parents in other countries who apply for visas for themselves and their children are forced to decide against moving to the United States or leaving their children behind because of the policy, Shusterman, the immigrants' attorney, said.
"Probably these kids will be separated from their parents for the rest of their lives," he said.