A loss for immigrants

Getting older should not be a reason to be punished, especially for those waiting for the slow immigration bureaucracy to take action—even if the U.S. Supreme Court thinks otherwise.

The question is whether undocumented minors who are applying for immigrant visas can keep their spot on waiting lists when they become adults, or whether upon turning 21, they lose their place and must go to the back of the line and start over again.

To answer this question, Congress created the Child Status Protection Act in 2002, establishing five preferential categories that would be transferred automatically. That way, minors turning 21 would switch categories, keeping the start date of the application that the parents began. Lawmakers understood how unfair it was to punish these minors for delays of five, 10 or more years.

For the Board of Immigration Appeals (BIA), the law contains ambiguities, which it decided to resolve in the strictest way, leaving one category instead of five. A federal appeals court rejected this interpretation of the law. Nevertheless, the high court said yesterday that the BIA, as a federal agency, had the right to resolve ambiguities in a law however it saw fit.

In an opinion by Justice Sonia Sotomayor, the court’s minority said that the law is clear and that those ambiguities do not exist in the statute.

In this case, the BIA’s stringent interpretation won, not because its point of view is right—but because the justices protect the board’s decision, no matter what it is. The board just needs to declare that a law lacks clarity and decide what it wants.

The 5-4 decision is a blow to a law whose intention was to protect undocumented minors, and whose reach is now five times smaller. This is an unfair punishment for youths who now must go to the back of the line and start over, despite having waited for their documents for years.

This is an inappropriate penalty, because the delay is bureaucratic. Now, the bureaucracy itself is the one that decides to limit its interpretation and sends them back to the beginning, to start from zero, as if the process had been up to these minors.