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Opinion: On immigration case, Supreme Court should rule for families and fairness

Imagine having to choose between your family and your future.  That’s what at stake as the Supreme Court weighs Mayorkas v. Cuellar de Osorio, a case that could impact foreign nationals waiting to legally enter the country.  In 1998, Rosalina Cuellar de Osorio applied for a visa to leave El Salvador and join her mother in the U.S.  De Osorio and her 13-year-old son were approved for a visa in about a month.

But in our byzantine immigration system, being approved for a visa and receiving a visa are often two different things.  Due to government backlogs, de Osorio’s visa did not become available until 2005.  By then de Osorio’s son had turned 21, and immigration authorities said that he had to go to the back of the line and start the visa process all over again.  De Osorio sued, and her case has reached the high court.

Upon examination, the U.S. government’s case flies in the face of established immigration policy, common sense, and compassion.  Moreover, it contradicts the lawmaking authority of Congress.

Our immigration system is built upon the cornerstone of family unity.  Visas are allotted in professional and family categories, with the underlying principle that families should be allowed to stay together.  It seems the height of unfairness that young adults like de Osorio’s son should lose the opportunity to emigrate with their parents because of our slow-moving immigration system.  Consider that the government is currently processing visas from Mexico from 1993, and from the Philippines from 1990.

Besides, lawmakers have already acted to help children who “age out” of their visa applications.  In 2002, Congress passed the Child Status Protection Act (CSPA), which allows children who become adults while awaiting their visas to keep their place in line, and to convert their visas into adult applications.  This was bipartisan legislation that was signed into law by then-President George W. Bush.  In fact, a group of lawmakers who were serving in Congress at the time the law was passed – including Senators John McCain (R-Ariz.), Orrin Hatch (R-Utah), Charles Schumer (R-N.Y) and Dianne Feinstein (D-Calif.) – have submitted a brief to the Supreme Court arguing against the government in this case.

The government says that the only young adults who should be allowed to keep their place in line after “aging out” of the visa process are those sponsored by green card holders.  However, it is illogical to suggest that Congress would favor relatives of green card holders over relatives of American citizens.  As the Mexican American Legal Defense and Educational Fund notes, the government’s narrow interpretation of the CSPA would tear families apart – which is against the spirit of the law.

The government maintains that applying the CSPA broadly would lead to too many young adults entering the U.S. ahead of others waiting in line.  But when asked by Justice Stephen Breyer how many young adults would potentially be affected by this case, the government’s attorney admitted that she didn’t know.  She said the government “can’t quantify exactly” but has “reason to think that the number is quite large.”  So the government cannot say how many young people are likely to be affected by their interpretation of the CSPA, yet they are seeking to restrict that number anyway.

To be clear, this case is about legal immigration.  No one is seeking any special treatment or change to existing law (The Senate immigration bill that is currently stalled in Congress also contains a provision addressing the “aging out” problem).  It seems hypocritical for the government to be making life harder for people like de Osorio who play by the rules and wait years or sometimes decades for their chance to come to the U.S.

It is inconsistent for the Obama administration to be pro-immigration reform on one hand, while forcing parents to choose between emigrating and leaving their child behind on the other.  The Supreme Court should support fairness and families by ruling for de Osorio.

Opinion: On immigration case, Supreme Court should rule for families and fairness raul reyes nbc final news NBC Latino News

NBC Latino contributor Raul Reyes is an attorney and a member of the USA Today Board of Contributors. 

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