February 25, 2019
A federal judge roasted government lawyers Monday over the Trump administration’s undermining of a nearly 40-year-old program meant to protect young immigrants abused, abandoned or neglected in their birth countries.
“The policy manual does not set out what is claimed to be the new policy, at all,” U.S. District Judge John Koeltl said this morning in a hearing that stretched more than three hours.
Created by Congress in 1990, the Special Immigrant Juvenile program has sought to provide minors facing danger in their birth countries with a path to legal permanent residency and citizenship.
Until early last year, all qualifying immigrants under the age of 21 could apply through their state courts for what is known as SIJ status.
That was until U.S. Citizenship and Immigration Services changed its definition of what qualifies as a juvenile court, effectively eliminating relief in the Empire State for immigrants between the ages of 18 and 21.
“Whether it’s Family Court or Surrogates Court, it can’t be met in New York,” Latham and Watkins attorney Robert Malionek told a federal judge this morning.
In June, Malionek filed a lawsuit on behalf of four young immigrants representing a class of hundreds of others barred from the SIJ program.
Though their names have been shielded from court records, the plaintiffs include a Dominican girl abandoned by her parents, a Haitian abused by her family members and hospitalized for depression, and Jamaican taken care of by her grandmother who was killed in a random act of violence.
“The Family Court has appointed a guardian on each plaintiff’s behalf and found that it would not be in each plaintiff’s best interest to be returned to his or her country of origin,” the 54-page complaint states.
Malionek insisted on anonymity for his young immigrants for fear of retaliation from Trump-era officials.
“Inflamed in part by President Trump’s anti-immigration rhetoric, undocumented immigrants are at risk of retaliation merely by publicly acknowledging their status,” a memo in the case states.
Under the government’s new guidelines, none of these 20-year-olds can turn to New York courts for relief, and the federal government explicitly claims that they can be sent to unfit parents back home.
“What sense does that make?” a flabbergasted Judge Koeltl asked a government attorney.
Koeltl also voiced alarm that changes came without a notice in the Federal Register, the U.S. government’s official journal for agency rules, proposed rules, and public notices.
As attorney Malionek put it: “that just shows why their new policy is arbitrary to begin with.
Together with attorneys from the Legal Aid Society, Malionek is seeking an injunction blocking the changes as violating the Administrative Procedure Act, a law preventing arbitrary and capricious government actions.
Assistant U.S. Attorney Tomoko Onozawa denied that the reinterpretation of “juvenile court” amounted to a policy change.
“We submit there is no such secret policy,” Onozawa said.
Demonstrating little patience for such hairsplitting, Koeltl noted that the agency had changed its handling of these cases in 2018.
“You can call it whatever you want,” he said.
Their case is being heard in tandem with that of Jefferson Randolfo Flores Zabaleta, who said he fears gang violence if sent back to Guatemala.
Defying a state court’s determination granting SIJ status for Zabaleta, immigration officials overruled that ruling based on unproven allegations that he is affiliated with MS-13, a gang frequently invoked by the Trump administration as an object of fear.
Zabaleta’s attorney Angelo Guisado called the evidence of his client’s alleged affiliation thin and irrelevant to the SIJ program’s chief concern: the minor’s best interest.
“Congress made a very specific decision to defer to the state court with regard to the best interest decision,” Guisado said.
Today’s proceedings, which ended without a ruling, sparked massive interest from immigration advocates, who filled both the courtroom and an overflow room. The nonprofit groups Make the Road New York, the Center for Constitutional Rights, Seton Hall Law School Center for Social Justice and Legal Aid Society all have supported the young immigrants.
Supporters of the petitioners include the New York Attorney General’s Office and more than a dozen members of Congress, including Reps. Nydia Velazquez and Zoe Lofgreen, of New York and California, respectively.