Imagine you are an immigrant child who has experienced abuse, abandonment, or neglect by at least one or both of your parents. You have managed to navigate a complex U.S. immigration system, appearing for hearings, and applying for a special status designed for children in your exact situation. Imagine one agency of the government approves your application and sets you on a path to a green card. You should be safe, right?
Think again. Take for example, N.P.G., a child whose initials I am using to protect his privacy. N.P.G. applied for Special Immigrant Juvenile (SIJ) status, a form of relief designed to protect abused, abandoned, or neglected immigrant children. He was unlawfully removed by the government in violation of a federal court preliminary injunction (J.L. v. Cuccinelli, 341 F.Supp.3d 1048, 1071 (N.D. Cal. 2018). While in Guatemala after his wrongful removal, gang members attacked him on several occasions. After lawyers filed a lawsuit on his behalf, N.P.G. was returned to the U.S. by federal court order. The U.S. government approved his SIJ petition immediately upon his return pursuant to the J.L. settlement. Despite the government’s approval for humanitarian relief, ICE argued they could deport N.P.G. yet again because although he was eligible to obtain a green card, there was not a green card immediately available for him, and he would need to wait a while. N.P.G.’s attorneys from Public Counsel, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and the Federal Public Defender’s Office had to file a habeas lawsuit to prevent a second removal. The court agreed and held that “an immigrant granted SIJ status is likely required to remain in the United States to maintain that status.” Garcia v. Barr, 2020 U.S. Dist. LEXIS 41444 (N.D. 2020). But for the habeas lawsuit, the government would have unlawfully removed N.P.G. a second time, making a mockery of his status as a class member in federal litigation, and his SIJ status approval.
Long journeys and long waits for stability for immigrant youth
In 2014, children and families surged across the southern border in search for protection and a better life. Many children traveled on their own without a parent or legal guardian. In response to the crisis, the American Bar Association started the Children’s Immigration Law Academy (CILA), a project of the Commission on Immigration. CILA’s mission is to increase the capacity of legal service providers and pro bono attorneys to ensure that all children have representation in immigration court. CILA celebrated its fifth anniversary last fall. While 2020 proved to be a challenging year, we are proud of what CILA accomplished and the work of children’s advocates in Texas and across the nation.
Children designated as unaccompanied, with exceptions for those from Mexico, are protected from swift deportation without a hearing (called expedited removal) and instead can have their cases heard by an immigration judge. Once apprehended, they are referred to the Office of Refugee Resettlement, part of the Department of Health and Human Services, and remain in custody while a vetted sponsor is located, usually a parent or close family member. Most children are released within 60 days to live with their sponsor while their immigration case unfolds. Even for children, there is no right to appointed counsel in immigration court. To fight for an opportunity to remain in the United States, they must rely on referrals to nonprofit organizations in the city or town where they are reunified with their sponsor or hire a private attorney to represent them.
The need for holistic, trauma-informed representation for children has never been more critical. The last four years have demonstrated that immigration law is highly politicized, and partisan priorities can cause significant shifts even for migrants eligible for humanitarian forms of immigration relief. Although there is an asylum system to examine claims for protection from noncitizens, that system has become so backlogged and restricted that the likelihood of success is extremely low.
Many children and families seeking protection via asylum in the United States are from Central America. However, while we wait for the current Administration to restore and expand the asylum system to better protect people from countries like Honduras, El Salvador, and Guatemala, there is another form of relief in need of attention.
Special Immigrant Juvenile (SIJ) status is a form of humanitarian-based immigration relief for children who have been abused, abandoned, or neglected by at least one parent, are under the jurisdiction of a state juvenile court, and for whom such court has determined that it would not be in the child’s best interest to return to their home country. Although statutorily enacted in 1990, more children than ever are seeking SIJ status in recent years. From 2015 to 2019, 95,901 SIJ petitions were filed, a 475 percent increase over the previous five-year period.
Although most children who are designated unaccompanied are in removal proceedings, meaning they are at risk of deportation, a grant of SIJ status does not automatically grant protection from removal. SIJ status is a precursor to Lawful Permanent Residence (a “green card”), but the SIJ classification is subject to the immigration quota system. Each year, a certain number of visas are available for children with approved SIJ applications to go ahead and apply for their green cards. Even as almost 100,000 children sought SIJ status in a five-year period, only 9,940 green cards are available to Special Immigrants each year. But that is not all. Each country has a 7 percent visa (green card) cap, meaning each country is afforded about 696 visas per year. Although there is some flexibility within the statute to allow for additional visas if there are unused visas in other categories, and SIJ visas average more than 50 percent of those used each year in its category (the “Employment-Based Fourth Preference” or “EB-4” category), there is still a growing backlog, particularly for children from Central America’s Northern Triangle. Children with approved petitions from El Salvador, Guatemala, Honduras, and Mexico must wait, potentially for years, before they can secure relief from deportation.
We must return to the protective purpose of SIJ Status
Congressional intent for SIJ beneficiaries is clear. A child or young adult lacking sufficient care and support in their home country should not be deported. SIJ status creates a pathway to permanency through a green card, and children in line with approved petitions should not be punished by a backlog of cases.
The ABA recommends that Congress exempt SIJ beneficiaries from numerical visa limitations, or in the alternative, increase the annual number of SIJ visas available to qualified applicants. The ABA recognizes that the impact is especially harsh for those applicants that are in removal proceedings because they are at risk of deportation to unsafe conditions in their home country. Exempting SIJ visas from numerical limitations or increasing the annual quota for Special Immigrant Juveniles would create a permanent solution so that applicants are not stuck in limbo. Until that becomes a reality, however, there are other solutions to protect SIJ beneficiaries.
A grant of deferred action for SIJ beneficiaries which provides affirmative protection from removal;
The ability to apply for employment authorization upon approval of the SIJ petition; and
Guidance by the Executive Office for Immigration Review that allows immigration judges to continue, administratively close, or terminate cases for SIJ beneficiaries.
These protections are outlined in a policy resolution the ABA House of Delegates adopted this week at its 2021 ABA Midyear Meeting.
You may have heard of deferred action, which was made popular by the DACA, or the Deferred Action for Childhood Arrivals program. Deferred action is an administrative tool that deprioritizes certain cases for removal. Abused spouses of U.S. citizens or green-card holders who file successful Violence Against Women Act petitions have received deferred action since 1997 when a green card is not immediately available to them. Victims of serious crime who help law enforcement and are deemed eligible for a U visa are similarly protected with deferred action while they wait in the years-long queue for an available visa. It is a common tool used by the Department of Homeland Security, and the protection can be extended to protect SIJ beneficiaries through policy, regulation, or executive action. Why is it not used to shield children from deportation who have shown they are waiting for a green card for which they are eligible?
A grant of deferred action opens the possibility of employment authorization if the grantee can show an economic necessity, but all SIJ beneficiaries should have an independent path to employment authorization while they wait for visa availability. VAWA beneficiaries and U visa applicants have such a path due to similar backlogs. Congress should acknowledge the hardship to SIJ beneficiaries as it has done for other categories of individuals eligible for humanitarian relief.
Finally, the Executive Office for Immigration Review, an agency within the Department of Justice, has restricted the administrative tools once available to immigration judges. Guidance allowing immigration judges the discretion and independence to use docket management tools like continuances, administrative closure, and termination would ensure that no SIJ beneficiary is removed while they wait for their turn in line for a green card.
Children like N.P.G. who have been approved for status by one agency of the Department of Homeland Security (USCIS) merit protection from deportation by ICE, another DHS agency, while they wait for their visa to become available. A state juvenile court has determined they have suffered parental mistreatment and that it would not be in their best interest to return to their home country. The government should issue policy granting deferred action to youth in their situation until more permanent solutions are put in place.
About the Author
Dalia Castillo-Granados is the Director of the Children’s Immigration Law Academy, a project of the American Bar Association’s Commission on Immigration. Prior to working at CILA, Dalia was a Senior Attorney at Kids in Need of Defense, a Staff Attorney at Tahirih Justice Center, a Clinical Supervising Attorney at the University of Houston’s Immigration Clinic, and began her public interest career as a Greenberg Traurig, LLP Equal Justice Works Fellow with Catholic Charities’ Cabrini Center in Houston. During law school, Dalia was active in the Immigration Clinic and interned at US Citizenship and Immigration Services, Catholic Charities, and was a Public Interest Law Fellow at Boat People SOS. She was previously the chair of the State Bar of Texas’ Immigration Law Task Force. She is currently the chair of the Executive Committee of the Houston Immigration Legal Services Collaborative, a Board Member of the Houston Association of Women Attorneys, and the President of Latino Giving Houston, a giving circle devoted to promoting philanthropy in Houston’s Latino community.
Dalia is a native Houstonian. She graduated from the University of Houston Bauer College of Business and Honors College. She went on to obtain her law degree from the University of Houston Law Center. She and her husband are proud parents to sophomores in college, Anthony, and Alex.