Immigrant Children Sue Over Denial Of Youth Humanitarian Status

 Photo: Diego M. Radzinschi | ALM

Photo: Diego M. Radzinschi | ALM

Immigrant Children Sue Over Denial Of Youth Humanitarian Status

Lawsuit Challenges U.S. Citizenship and Immigration Services’ New Policy Regarding Special Immigrant Juvenile Status, Which Protects Abused, Abandoned, Or Neglected Children.

New Policy Potentially Impacts Thousands Of Pending Applications In New York State And Many More Nationwide.

Four young adults who were brought to the United States as children brought a federal class action today in the U.S. District Court for the Southern District of New York challenging the U.S. Citizenship and Immigration Services’ (USCIS) new eligibility interpretation for Special Immigrant Juvenile Status (SIJS). The agency’s unannounced policy change, which negatively impacts thousands of immigrant youth across the country, was first reported in April. The Plaintiffs are represented by The Legal Aid Society and Latham & Watkins.

The lawsuit challenges USCIS’ new policy that New York State Family Courts are not “juvenile courts” and are therefore not authorized to issue the orders the young immigrants need to support their applications for SIJS. The policy runs counter to a decade of practice. The lawsuit alleges that the agency’s new policy violates the federal Administrative Procedures Act (APA) because it contradicts the statute that created SIJS.

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. 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 children between 18 to 21 years of age who were placed under guardianship by New York Family Courts were consistently, and properly, granted.

“The USCIS interpretation adopted in January 2018 further marginalizes an already vulnerable population. It takes away fundamental humanitarian protections for abused, abandoned, and neglected children and young people seeking refuge in the United States. These actions are not only unlawful but inconsistent with our shared values. We look forward to addressing this injustice in court,” said Beth Krause, Supervising Attorney of the Immigration Law Unit at The Legal Aid Society.

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 and that the applicant cannot reunite with one or both parents. 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 recently narrowed its interpretation of the law, declaring that in cases where applicants are over 18, they no longer qualify, incorrectly reasoning that the state court’s authority ends at that age. The agency’s new position has no basis in law. Furthermore, this new policy has the practical effect of depriving immigrant youth who have been abandoned, abused, or neglected by a parent the chance to regularize their immigration status, thereby generating uncertainty and anxiety among children who have, by definition, already suffered emotional trauma.

“The unlawful denial of these SIJS applications is preventing thousands of deserving New Yorkers the opportunity to obtain regular immigration status and fully contribute to the cities and towns where they live, work, and go to school,” said Latham & Watkins partner Rob Malionek. “As we outline in the complaint, USCIS’s policy change is not only contrary to law, but is also having catastrophic effects on the Plaintiffs, the members of the Proposed Class, their families, and their communities. For example, the wrongful denial of one Plaintiff’s application prevented her from pursuing a college degree. We are committed to ensuring that the program is implemented lawfully and that these New Yorkers are afforded all the opportunities to which they are entitled.”

Litigation Background

The litigation’s key arguments include:

USCIS’ policy change is premised on erroneous interpretations of federal and New York State law. USCIS failed to justify and provide a reasoned explanation for its policy shift and has failed to explain why it has disregarded its own prior legal conclusions and policy guidance. USCIS’ policy change results in treating similarly-situated SIJS petitioners differently based on whether they were under or over 18 years-old at the time their Family Court orders were obtained, despite the Family Court’s retention of jurisdiction. USCIS’ abandonment of a decade of precedent of granting SIJS for 18 to 21 year-old applicants from New York without warning or explanation has resulted in real harm, including continued uncertainty for a vulnerable population, exclusion from access to higher education, health care, and employment. The lawsuit seeks a declaratory judgment that the USCIS determination was arbitrary and capricious in violation of the APA. Plaintiffs also seek a preliminary injunction barring USCIS from departing from their longstanding practice of recognizing New York Family Court as “juvenile courts” for applicants between 18 and 21 years-old when their Family Court orders were obtained and seeks to enjoin USCIS to process SIJS applications in accordance with longstanding prior policy and guidance. Plaintiffs also seek notice of any adverse action, including instituting removal proceedings, for petitioners whose SIJS applications were denied because the applicant was between 18 and 21 years old when the Family Court orders were issued.