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THE CHILDREN BANNED FROM NEVERLAND: THE CHILD STATUS PROTECTION ACT POST SCIALABBA V. CUELLAR DE OSORIO

On December 28, 1992, Zhuomin Wang's U.S. citizen sister filed a family visa petition for him, including Zhuomin Wang's wife and three children who all resided in China.1 One of Mr. Wang's children, a daughter named Xiuyi Wang, was ten years old at the time of the petition.2 It was not until February 2005 that visas became available for Chinese nationals who were beneficiaries of a sibling family-based petition with a filing date of 1992.3 By this time, Xiuyi was twenty-two years old and no longer qualified as a child who could be included for immigration benefits on the 1992 petition.4 Mr. Wang was admitted to the United States as a lawful permanent resident on October 3, 2005 and then filed a separate petition for his daughter Xiuyi with the request to recapture the 1992 priority date that was denied, separating Mr. Wang from his daughter.5Antonio was born in 1987 in Mexico.6 His family moved to Chicago, Illinois when he was five years old, in 1993, and in 1995, his U.S. citizen uncle petitioned for the family under the F4 category.7 Unfortunately, in September 2008, at age twenty-one, he no longer qualified as a child in the immigration petition.8 Antonio's parents obtained lawful permanent status in 2010.9 Antonio studied in community college and then graduated from the University of Illinois in Chicago in 2012, but was crushed by the fact that he could not obtain work authorization upon graduation.10 Antonio's parents filed a new petition on his behalf, requesting to recapture the 1995 priority date, which was denied.11 Now, given the backlogs for visas for Mexican nationals, Antonio will likely never receive a visa.12Immigrants like Xiuyi and Antonio, through no fault of their own, lost the opportunity to obtain a family-based visa before reaching twenty-one years of age despite years of waiting and despite the fact that their closest family members had been granted lawful permanent residency. U.S. Department of State reports demonstrate the exorbitant waiting periods for immigrants in family preference categories.13 There are roughly 4.3 million people waiting for family-based visas as of November 2014.14 For Mexico, it would take approximately 115.5 years to clear the current backlog for those in the F2B category.15The Child Status Protection Act of 2001 (CSPA)16 intended to protect child beneficiaries and respond to the family separation caused by immigration visa delays.17 However, following the passage of the CSPA, the Board of Immigration Appeals (BIA) interpreted the statute to apply CSPA benefits to only a narrow category of immigrants, excluding immigrants like Xiuyi and Antonio.18In Scialabba v. Cuellar de Osorio, the U.S. Supreme Court analyzed 8 U.S.C. § 1153(h)(3) to decide which children of principal beneficiaries (also called "derivatives") of family-based petitions may be protected under the Child Status Protection Act provision at 8 U.S.C. § 1153(h)(3).19 Under the two-step Chevron framework that governs the judicial review of administrative agency decisions, the Court's plurality concluded under the first step that the statute was ambiguous,20 and under the second step, that the BIA reasonably interpreted the statute to exclude all but one category of beneficiaries from CSPA protection.21 The plurality and dissenting Justices' approach in deferring to agency interpretation only when statutory provisions are irreconcilable22 best serves legislative economy.However, in this case, it was the dissent that correctly applied that principle: it found the provisions at 8 U.S.C. § 1153(h)(3) to be harmonious given the purpose of the CSPA to afford protection to all aged-out derivatives.23 Accordingly, the Court should have held that the CSPA was intended to protect all aged-out beneficiaries, including those like Xiuyi and Antonio.Parts I and II of this Note lay out the immigration law and procedural background to Scialabba v. Cuellar de Osorio, including a discussion of the three decisions of U. …