Tuesday, November 22, 2005

Special Immigrant Juvenile Litigation

Center for Human Rights and Constitutional Law
256 S. Occidental Blvd.
Los Angeles, CA 90057
Telephone:  (213) 388-8693 Facsimile:  (213) 386-9484


To:        Advocates for immigrant and refugee youth
From:    Peter A. Schey, Carlos Holguin>Date:     November 22, 2005
Re:        Urgent request for information about clients who have “aged-out” of SIJ eligibility or who are in danger of doing so.
       
We write to request your help in identifying minors who applied for Special Immigrant Juvenile (SIJ) status, but aged-out of eligibility for such relief (either because they turned 21 or because their State court dependency order expired) or who face the prospect of aging out within the next 2-3 months. We’re interested in such cases whether or not the minors are or were in removal proceedings.

Javier Perez-Olano, et al., v. Department of Homeland Security, No. CV 05-3604 DDP (C.D. Cal.), was recently filed as a nation-wide class action on behalf of immigrant youth who are or were in the past dependents of state courts because they have been abused, abandoned, or neglected, and who applied for classification as “special immigrant juveniles.” The litigation challenges the following:

•    Although nowhere authorized by statute, CIS has promulgated two regulations, 8 C.F.R. 204.11(c)(5) and 205.1(a)(3)(iv)(C), providing that no statutorily eligible minor may be granted SIJ status unless he or she continues to be dependent on a state court at the time the SIJ petition or adjustment of status is decided. If the SIJ petition is granted, the CIS will automatically revoke that status when the youth ceases to be a dependent of a state court. State courts often terminate jurisdiction over dependent minors upon a juvenile’s attaining 18 years of age, or sometimes one year later. If CIS refuses to adjudicate a statutorily eligible youth’s petition for SIJ status and application for adjustment of status by the time the dependency order terminates, the minor “ages-out” of the benefit Congress sought to confer on him or her as an abused, abandoned, or neglected youth.
   
•     Pursuant to 8 C.F.R. ? 1003.47, IJs are precluded from adjudicating an application for adjustment of status filed by a SIJ until and unless the DHS completes a security investigation. In promulgating this rule the EOIR opined that “these investigations and examinations can be completed in a timely fashion so as to permit the adjudication of adjustment and other applications before the immigration judges without delay.” 70 Fed. Reg 4743, 4753 (January 31, 2005). In practice, however, the DHS takes many months to complete a security check for a SIJ—even if the CIS earlier received and adjudicated a youth’s petition for SIJ status. The predictable result: statutorily eligible youth age-out (either by reaching 21 or because their State court dependency orders expire) and are forever barred from receiving the benefits Congress sought to confer on them.

•    Finally, some minors age-out simply because they turn 21 before the CIS adjudicates their SIJ or adjustment applications. Delays in adjudicating applications may be caused by any number of reasons, including background checks. It is unclear that the statute requires that an application be adjudicated before the applicant’s 21st birthday.

In an effort to evade judicial review of these regulations and practices, the CIS very quickly granted lawful permanent residence to all three of the Perez-Olano named plaintiffs and is now arguing that the entire case should be dismissed as moot.

We are requesting that advocates who know of clients who have aged-out of SIJ status or who are in danger of aging-out within the next 2-3 months contact the Center as soon as possible so that we may discuss bringing the client’s circumstances to the attention of the federal court by way of a declaration or by joining as a named plaintiff. If you know of any such individuals, please contact us via email to [email protected] and [email protected] Please briefly explain the case you wish to bring to our attention. Please contact us whether or not you’re still in touch with a minor who aged out.

If you have a client who aged out or one who may soon age out, we think there is a reasonable possibility that we can assist the minor through this litigation.
Thank you.

bh

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