Judges Split 6-5 Over Meaning of Immigration Provision

Mary Murguia was one of three Latino judges in the majority on the pro-immigrant side.

Scott Graham

2012-09-26 03:02:32 PM

SAN FRANCISCO — When the U.S. Court of Appeals for the Ninth Circuit issues a 6-5 decision in an en banc case, the vote often splits along ideological lines. But in an immigration case decided Wednesday, ethnicity appeared to be more of a factor.

Three of the court's Latino judges helped form the six-member majority which ruled that the children of undocumented immigrants who are granted derivative visas can immigrate to the United States along with their parents, even if they turned 21 while waiting for their parents' visas to be processed.

Judge Mary Murguia wrote that the Board of Immigration Appeals' interpretation of the statute "conflicts with the plain language of the [Child Status Protection Act], and it is not entitled to deference."

Judge Milan Smith Jr. dissented, arguing that conflicting interpretations of the statute among two other federal circuits and within the Ninth Circuit underscore the ambiguous nature of the 2002 law. The Ninth Circuit, he said, should have deferred to the BIA.

The lineup for Smith's dissent spanned a broad ideological spectrum, from the libertarian Chief Judge Alex Kozinski to Judge William Fletcher, one of the most liberal members of the court. Also signing on were Judges M. Margaret McKeown and Johnnie Rawlinson.

Murguia's majority was all Democratic: Judges Harry Pregerson, Kim McLane Wardlaw, Raymond Fisher, Ronald Gould and Richard Paez. Murguia, Wardlaw and Paez all have at least one parent who was born in Mexico.

Cuellar de Osorio v. Mayorkas will affect immigration from all countries, but at oral argument Pregerson suggested the government's interpretation of the law especially disadvantaged Mexicans, who face a backlog of up to 20 years for their derivative visa petitions. When a government attorney chalked that up to "a glut from Mexico," Pregerson and Wardlaw took offense.

Murguia's opinion acknowledged the Second and Fifth circuits have disagreed about the meaning of the Child Status Protection Act, but said that does not establish ambiguity in the statute per se. Instead, Murguia ruled that the Fifth Circuit's interpretation was correct. She noted that just this year the U.S. Supreme Court found a workers' compensation statute unambiguous notwithstanding differing interpretations among three federal circuits.

In his dissent, Smith said the en banc majority reads the statute differently than not only the Second Circuit but also the three-judge panel that originally decided the case for the Ninth Circuit. While differing interpretations do not per se establish ambiguity, "I merely point out the common sense proposition that if the intent of Congress were truly clear, it would be surprising that so many courts misread the statute," he wrote.

"Nevertheless," he added, throwing a slab of red meat to appellate lawyers, "it is worth noting that there is currently a circuit split over whether the existence of a circuit split is evidence of statutory ambiguity."

Carl Shusterman of Los Angeles' Law Offices of Carl Shusterman and Nancy Miller of Pasadena's Reeves & Associates argued the case for the petitioners. Department of Justice attorney Gisela Westwater argued for the government.