Saturday, March 16, 2019
From Latham & Watkins:
On behalf of their clients, the Legal Aid Society and Latham & Watkins praised a decision rendered today by United States District Judge John Koeltl on litigation brought last June which preserves a vital humanitarian program – Special Immigrant Juvenile Status (SIJS) – utilized by thousands of abused, abandoned, or neglected children in New York State and others nationwide.
The lawsuit, filed as a class action by five young adults who applied for but were denied SIJS by the U.S. Citizenship and Immigration Services’ (USCIS), challenged a 2018 policy change in which USCIS unilaterally reinterpreted the law in a manner that effectively precluded minors between the ages of 18 and up to 21 from qualifying for SIJS.
The agency’s unannounced policy change, which impacted thousands of immigrant youth across the country, was first reported in April 2018. The Plaintiffs are represented by The Legal Aid Society and Latham & Watkins.
“This sweeping decision leaves no doubt that USCIS deliberately violated the rights of the most vulnerable, young immigrants – those who were abused, neglected, or abandoned by their parents,” said Beth Krause, Supervising Attorney in the Immigration Law Unit at The Legal Aid Society. “We are relieved that the federal courts have once again been willing to rein in the arbitrary and capricious policies of the Trump Administration.”
“It is our duty as lawyers to protect those who are most in need. Congress created the Special Immigrant Juvenile Status program in 1990 to protect a particularly vulnerable group – young immigrants who have been abused, neglected or abandoned by a parent. We are pleased with the court decision to uphold the program on a classwide basis,” said Latham & Watkins partner Robert Malionek, who filed the class action with the Legal Aid Society and argued the cross-motions for summary judgment. “Our class, made up of thousands of abused, abandoned, or neglected young immigrants, once again have a path to citizenship.”
Specifically, the lawsuit challenged USCIS’s new position that New York State Family Courts are not “juvenile courts” for young people aged 18 to up to 21, and are therefore not authorized to issue the orders that must support SIJS applications. This policy change ran counter to a decade of practice. Plaintiffs successfully argued that the agency’s new policy violates the federal Administrative Procedures Act (APA) because it contradicts the statute that created SIJS and misinterprets New York law.
Since 2008, SIJS has served as a legal pathway for unaccompanied minors under the age of 21, who have been abused, abandoned, or neglected by one or both parents, to obtain lawful permanent residency and a pathway to citizenship. However, under the Trump Administration’s policy change, individuals who are over 18, but not yet 21, no longer qualify for SIJS, despite there being no change in the law or regulations related to SIJS. This is a sharp departure from a decade of consistent policy, where SIJS applications filed by young immigrants between 18 to up to 21 years of age who were placed under guardianship by New York Family Courts were consistently, and properly, granted.
For a young person in New York to apply for SIJS, a New York Family Court must first determine that the applicant was abused, abandoned, neglected or subjected to similar maltreatment under New York State law, that the applicant cannot reunite with one or both parents, and that it’s not in the applicant’s best interest to be returned to the applicant’s country of birth. The court must also declare that the applicant is dependent on the court or place the applicant in the custody of a caretaker. This order is then submitted to USCIS as part of the SIJS application.
Without any prior announcement, USCIS narrowed its interpretation of the law starting in 2017, ultimately documenting its new policy in February 2018. The policy change provided that in cases where applicants are over 18, they no longer qualify, incorrectly reasoning that the state court’s authority ends at 18. This new policy had the practical effect of depriving immigrant youth of the opportunity to regularize their immigration status, and caused tremendous uncertainty, anxiety and other harm to children who have, by definition, already suffered emotional trauma. As the US District Court for the Southern District of New York recognized, the agency’s new position had no basis in law.