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January 01, 2012

Legally Permanent Youth Facing Deportation as Adults Receive Protections

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

A legally permanent young adult who faced deportation for committing crimes as an adult was entitled to special protections based on his special immigrant juvenile status (SIJS), which was sought when he was a child. Although the young adult did not meet the legal residence time requirement to seek cancellation of removal, his SIJS-based parole provided an alternative way for him to meet the “admitted in any status” requirement to cancel the removal.

Garcia v. Holder, 659 F.3d 1261 (9th Cir. 2011).

A Mexican-born child entered the United States when he was eight years old in 1992. He had experienced a traumatic childhood in Mexico. His father was incarcerated for murdering his mother and he had suffered a brain injury. Soon after entering the U.S., a petition was filed on the child’s behalf alleging severe physical abuse.

The court found the child was dependent and placed him in foster care in California. In 1994, the court also ordered the child welfare agency to apply for special immigrant juvenile status (SIJS) as a permanent resident for the child since it was not in his best interests to return to Mexico. Immigration authorities eventually approved the SIJS petition and gave him legal permanent resident (LPR) status in 2000.

The boy stayed in foster care until he emancipated at age 20 in 2004. In 2005, he was arrested twice for theft. He was found guilty both times and was sentenced to probation and jail time. Based on these crimes, the Department of Homeland Security (DHS) issued a notice to appear, charging that the young man could be removed based on his criminal convictions. The young man admitted the allegations, conceded removability, and requested cancellation of removal.

A legally permanent resident may seek cancellation of removal if (1) he has been “lawfully admitted for permanent residence for not less than five years”; (2) he “has resided in the United States continuously for seven years after having been admitted to any status”; and (3) he “has not been convicted of any aggravated felony.”

DHS did not support cancelling removal since the young man had not lived in the U.S. continuously for seven years. It argued that that the seven years began when the young man received LPR status in 2000. Although the juvenile dependency court ordered the child welfare agency to file for SIJS status in 1994, the petition was not actually approved until 2000. The young man was convicted for his second crime in January 2006, so had not yet met the seven-year requirement.

The young man claimed he met the seven-year requirement on two grounds. First he claimed he was deemed paroled into the U.S. when his SIJS petition was filed in 1994 more than seven years before his second conviction. He claimed that counted as an admission “in any status” under the SIJS statute. He also claimed that his “admission” for permanent resident status could be imputed as of the date he became a ward of California. The court rejected these arguments. The Bureau of Indian Affairs (BIA) affirmed and the young man was removed to Mexico. The young man appealed the BIA’s decision.

The United States Court of Appeals for the Ninth Circuit reversed. The court found that Congress did not expressly bar SIJS-based parolees from being considered to have been “admitted in any status.” Instead, it found that SIJS-based parole qualified as an alternative way for aliens to meet the “admitted in any status” requirement to cancel

In reaching its decision, the court noted the unique characteristics of SIJS-parolees, including the special eligibility requirements and benefits that they receive. The court found that Congress intended to assist this narrow group of abused and neglected children to stay safely in the U.S. and to provide them with special protections to avoid having them abruptly sent home without due process.

The Ninth Circuit followed principles established in its 2006 decision, Garcia-Quintero v. Gonzales, 455 F.3d 1006. In that case, the court found that an alien’s acceptance into the Family Unity Program (FUP) made him “admitted in any status” for purposes of cancellation of removal. The program provided the alien benefits that were only available to a narrow group, including protection from deportation and authorization to work. It also helped families stay together.

The court found SIJS parolees were similarly situated to FUP participants and qualify as having been “admitted in any status” for cancellation of removal purposes.