Special Immigrant Juvenile Status (SIJS) is a form of immigration relief for children who have appeared in state family court for reasons related to their care and welfare. If the state court finds that a child cannot be safely reunified with one or both parents because of abuse, neglect, abandonment, or something similar and that it would not be in the best interest of the child to be returned to their home country, then the child may apply to the United States Citizenship and Immigration Services (USCIS) for SIJS. If USCIS approves the SIJS petition, the child may seek lawful permanent residence (a “green card”) in the United States.
W.A.O. v. CUCCINELLI
In April 2019, Lowenstein Sandler filed W.A.O. v. Cuccinelli, a class action on behalf of more than 750 juvenile immigrants whose SIJS petitions USCIS had unlawfully refused to approve. USCIS had adopted a policy that effectively disqualified 18-to-21-year-old petitioners. But federal law sets the cutoff for SIJS eligibility at age 21, and 18-to-21-year-olds whose parents are not fit to care for them can receive protection from New Jersey family courts in a wide range of circumstances. USCIS had wrongly concluded that the New Jersey family courts lacked the power to order protection for youth older than 18. Based on this incorrect conclusion, USCIS determined that young people in this age group could not qualify for SIJS, and it therefore delayed, questioned, denied, or revoked the SIJS petitions of hundreds of young people.
Class counsel at the firm argued that the USCIS policy violated the federal Administrative Procedure Act both because it conflicted with the law and because USCIS adopted it without following the rules for federal policymaking. On July 3, 2019, the federal District Court for the District of New Jersey entered a preliminary injunction ordering USCIS to stop enforcing the policy, which had been in effect since early 2018.
In the intervening years, the firm monitored the government’s compliance with the preliminary injunction, reviewing files to ensure that no class member was denied SIJS on a basis that conflicted with the court’s orders. In the end, USCIS approved the SIJS petitions of 715 class members.
The parties have now entered into a final settlement. Under the settlement, USCIS will not enforce or rely on the challenged policy to delay or deny the SIJS applications of older youth. The government will also work with class members who are in deportation proceedings to ensure that they have a fair chance at avoiding deportation while they wait for the opportunity to get their green cards after having been granted SIJS. And the government will pay $500,000 in attorney’s fees, which the firm will donate to nonprofit organizations that provide free legal representation and advocacy services to young immigrants. The settlement will end the litigation.
The hundreds of class members whose SIJS petitions were approved can now enjoy the immigration protection they were always entitled to as they continue down the path toward achieving permanent residency.
PREVENTING THE DEPORTATION OF SPECIAL IMMIGRANT JUVENILES
A young person whose petition for SIJS is approved becomes eligible to apply for lawful permanent residency, and federal law exempts the child from many common bars to achieving this status. But thousands of young people with SIJS must wait years before applying for green cards because of limits on the number of visas available.
Historically, SIJS beneficiaries were safe from deportation while they waited to pursue a green card. During the wait (and often long afterward), most of them lived with the family members or agencies with whom a state court had placed them after finding that at least one of their parents had abused, abandoned, or neglected them and that it was not in their best interest to be sent back to their home countries.
In a series of cases around the country in the past few years, however, Immigration and Customs Enforcement (ICE) has prosecuted cases in immigration court, and sometimes actually executed deportation orders, against children whom USCIS had previously approved as Special Immigrant Juveniles based on such state court findings. In these cases, the children stand to lose the fragile stability they have gained.
When appeals of deportation orders against Special Immigrant Juveniles began to appear on the dockets of the federal courts, Lowenstein convened a group of leading nonprofit organizations that represent immigrant children to discuss strategic responses. The group decided on a two-pronged strategy.
First, the firm would file friend-of-the-court briefs on behalf of these organizations in every pending federal court case of which we were aware. We have so far filed six friend-of-the-court briefs in the United States Courts of Appeals for the Third, Sixth, and Tenth Circuits, and in the Eastern District of Virginia. In each case, the government agreed to hold the litigation in abeyance to allow the young person to pursue a green card and seek dismissal of the deportation proceedings. We have also filed a related brief in the Ninth Circuit to hold USCIS to the statutory deadline for adjudicating SIJS petitions; that appeal is pending.
Second, the group would advocate with the federal government to end deportation proceedings against young people with SIJS. We have made significant progress on this front. After the coalition sent a letter to and met with officials in the Department of Homeland Security, the critical agencies issued helpful guidance to the field offices. In May 2021, the Principal Legal Advisor, who oversees the prosecution of cases in immigration court, issued interim guidance advising government lawyers to exercise their discretion to dismiss deportation proceedings when “a child . . . appears prima facie eligible to pursue special immigrant juvenile status.” And in August, a directive from ICE announced that the agency “will exercise discretion to defer decisions” on executing deportation orders against young people with SIJS until USCIS makes a final decision on their green card applications. In response to these instructions, the government is now regularly joining motions to terminate deportation cases against Special Immigrant Juveniles. As a result, these young people can stay in the United States to become lawful permanent residents, just as Congress intended.
The government is now regularly joining motions to terminate deportation cases against Special Immigrant Juveniles. As a result, these young people can stay in the United States to become lawful permanent residents, just as Congress intended.