Under the new interpretation, the United States Citizenship and Immigration Services said that applicants in New York who were over 18, but not yet 21, when they began the application process no longer qualify.
“Nothing in the federal statutes has changed; only the interpretation has changed,” Beth Krause, the supervising attorney for the Immigrant Youth Project at The Legal Aid Society of New York, said. “And now, U.S.C.I.S. is interpreting this in a way to cut out a very large portion of kids who, until the past couple of weeks, had gotten these grants under the same facts.”
“It’s a bad faith argument,” said Rebecca McBride, a lawyer at Atlas: DIY, a nonprofit organization helping immigrant youth in Brooklyn, who represents several people with special immigrant status.
The immigration agency declined to explain the change, saying in an email response, “A petitioner must submit a court order issued by a juvenile court that contains specific determinations made under relevant state law.” It referred to a policy manual rewritten in October 2016.
Consider the case of J., a shy young man, now 22, from Burkina Faso. He went to family court in New York in late 2016 when he was 20, and the court granted him an order that enabled him to apply to the immigration agency. He received two requests for more information before being denied because of his age several weeks ago.
“At the moment of application, if they had this issue about 18 years old, why would they allow me to continue this if that’s what they thought?” J. said, in French, with his lawyer at The Door. “Why would they let this whole family court thing happen? Why would they allow this to advance to this point and now decide?”
He and other young immigrants interviewed asked to be identified only by their first initial or first name because of fear of repercussions from the government.
J.’s lawyer at The Door is appealing the denial.
Y., another client of The Door, came to the United States in August 2016, and at the end of that year, when she was 20, obtained a special findings order from the New York family court. She said she had also been threatened with rape by a gang in Honduras because she was a lesbian. That would seem, her lawyer said, to make it “in the best interests of the child” not to send her back — another part of the law.
Y. was denied, but her younger brother, A., who had come to the United States in 2015 and also applied when he was over 18, was approved in January 2017.
“The government wants to pick and choose who is and isn’t a child, but in fact it’s a matter of law,” Ms. Stotland said.
Legal organizations say they first started seeing signs that the government was holding up the special immigrant applications in the later years of the Obama administration, but the trend became more pronounced in the spring of 2017, when the agency started asking for more information about applications.
Romain, 23, was 4 years old when his parents were murdered in Congo, in the house where he was sleeping. His uncle took him to Burkina Faso, and 14 years later sent him to the United States to study. Then the uncle cut all ties with him, Romain says, leaving him in New York, alone, broke and homeless.
Romain came on a student visa, but without money to pay for college, it lapsed. He landed in a homeless shelter for boys.
In 2015, when Romain was 20, he applied for special immigrant status with the help of Ms. McBride at Atlas: DIY. A family court in Brooklyn found that he fit the criteria that year, but upon further review, the federal immigration agency caught a discrepancy they believed was fraud. Romain’s uncle had filled out his student visa application incorrectly, saying the young man’s parents were alive, so the application was initially denied.
That complicated the appeal process, but Ms. McBride and Romain persisted, finding sufficient evidence of his parents’ death, which the government eventually believed. But in Spring 2017, Ms. McBride said, the agency said that death was not akin to abandonment. And, finally, this winter, the agency added the over-18 stipulation to its notice of intent to deny Romain’s application. She submitted an appeal, and they are waiting.
“I am extremely frustrated, I’m confused,” Romain said, “but I am always thinking that if the interpretation of those rules can be changed today, the same interpretation can be changed tomorrow — for the better.”
For the last 10 years, cases like theirs have routinely been approved. But as the Trump administration tries to stop the flow of unaccompanied minors at the Mexico-United States border, it appears to be targeting the special immigrant status; President Trump often invokes fear that these immigrants could belong to MS-13, the transnational gang, and that they are committing fraud in their applications.
“They are looking for what he calls ‘loopholes,’ and what we call protections, and trying to close them,” said Wendy Young, the executive director of Kids In Need of Defense, a nonprofit organization that represents young immigrants who come to the country unaccompanied. “Under this administration, everybody is presenting a fraudulent claim, rather than, ‘Why is this child here and do they need protection?’”
So far, at least 81 applicants from the New York City area have been denied or were told they would soon be denied by the immigration agency, according to The Legal Aid Society of New York. In total, more than 1,000 young people across the state, not all of them from Central America, could be affected.
Although there are other states that follow a process similar to New York’s, including California, Massachusetts, Maryland and Washington, lawyers believe that New York has seen the most denials.
In the last week, The Legal Aid Society said, the immigration agency has also sent a handful of notices to New York-area clients saying they were going to revoke applications that had previously been approved.
“When do immigrants get to rely on decisions from U.S.C.I.S.?” asked Eve Stotland, the legal director for The Door, an organization that works with disadvantaged youth in New York. “What if the client is naturalized? You spin into a place of arbitrariness and absurdity, and a failure to follow the rule of law.”
Jonathan Withington, a spokesman for the agency, said: “U.S.C.I.S. has not issued any new guidance or policy directives regarding the adjudication of S.I.J. petitions. We remain committed to adjudicating each petition individually based on the merits of the case and safeguarding the integrity of our lawful immigration system.”
The federal law establishing Special Immigrant Juvenile status was first enacted as part of the Immigration Act of 1990 and then expanded in 2008. To obtain it, applicants must first have a ruling from their state’s juvenile court, finding that they have been abused, abandoned or neglected. A judge must also declare the young person dependent on the court, or appoint a caretaker. In the second part of the process, the applicant submits the judge’s order to the immigration agency.
The Trump administration seems to be narrowly reinterpreting the law, saying that in cases where applicants are over 18, they no longer qualify, because the state court’s authority ends at that age. According to its reasoning in one denial letter provided to The Times, “once a person attains the age of 18, the family courts lack jurisdiction over the person’s custody.”
Those over 18 can be appointed guardians, however, which the immigration agency now does not consider the same as custody. Lawyers say that’s semantics, since in state law, guardianship and custody have equal rights and responsibilities.