Lowenstein Sandler has filed friend-of-the-court (amicus) briefs in the U.S. Court of Appeals for the Sixth Circuit and Tenth Circuit in the cases of J.L.P.P. v. William Barr and C.M.L. v. William Barr, respectively (both filed on petition for review from the Board of Immigration Appeals (BIA)). The briefs argue that the immigration courts violated federal law and infringed on these juveniles’ due process rights by ordering their removal even though they had been granted Special Immigrant Juvenile Status (SIJS).
SIJS establishes protection from removal and a pathway to permanent residency for immigrant children who a state court has found cannot reunify with one or both of their parents because of abuse, neglect, abandonment, or for some similar reason, and whose return to their country of origin would conflict with their best interests. Once United States Citizenship and Immigration Services (USCIS) approves a juvenile’s SIJS petition, the juvenile may rely on SIJS to apply to adjust status and obtain a green card, and federal law removes certain barriers that would otherwise block this process.
The briefs ask the circuit courts to vacate the removal orders and remand with instructions that the immigration courts grant continuances sufficient to allow the juveniles to apply to become lawful permanent residents (LPRs).
Lowenstein submitted the briefs on behalf of 14 organizations that represent immigrant children, supervise pro bono volunteers in representing immigrant children, provide best-interests guardian ad litem services to immigrant children, or support practitioners of immigration law.
The stakes in this case could not be higher: These appeals affect the safety of thousands of young people. Each petitioner, J.L.P.P. and C.M.L., is a case in point.
J.L.P.P. is a citizen and native of Guatemala, where her father abandoned and neglected her. At age 6, J.L.P.P. entered the United States as an unaccompanied minor. She was later released to her mother. Although USCIS has now granted J.L.P.P.’s SIJS petition, the immigration court refused to allow a continuance. It ordered her removed on the ground that she did not have valid entry documents‒even though federal law explicitly exempts from inadmissibility those SIJS beneficiaries, like J.L.P.P., who were charged with entering the United States without such documents.
C.M.L. is also a citizen and native of Guatemala. As a young child, he witnessed his father physically abuse his mother, and his parents separated when he was about 4 years old. In 2006, C.M.L. moved in with his grandparents in Guatemala. In December 2016, after his grandfather died, C.M.L., then 16, entered the United States. Although USCIS granted C.M.L.’s SIJS petition, the immigration court entered an order of removal, sustaining the government’s charge that he was present in the United States without admission, even though federal law also waives this ground of inadmissibility for SIJS beneficiaries.
Catherine Weiss, Chair of the Lowenstein Center for the Public Interest, explains: “The government is trying to undermine the purpose of SIJS by depriving qualified grantees of its benefits. Congress created SIJS to enable immigrant children to remain safely in the United States if a state court has found that they cannot be safely reunified with one or both parents and return to their home countries is not in their best interest. The government takes the position that they should be removed, despite such findings, if no visa is immediately available to them. The government thus advocates for the removal of children to established unsafe conditions solely because a numerical quota on visas requires them to wait in line before applying to adjust status.”
The text and legislative history of SIJS reflect an intent to permit SIJS beneficiaries to adjust their status and become LPRs. Congress granted SIJS beneficiaries the right to be treated, for the purpose of adjustment of status, as if they had been lawfully paroled into the country.
Weiss continues: “The government here defends the removal order entered against J.L.P.P. by arguing that she entered the United States without valid entry documents. The argument regarding C.M.L. is that he is present without admission or parole. Under the law, however, Special Immigrant Juveniles are not subject to these barriers to admission. SIJS protects juveniles from deportation even if they entered without travel documents and even if they crossed the border without inspection at an official checkpoint. Congress lifted these barriers to protect their safety and well-being and give them a chance to remain permanently in this country.”
The government is also violating petitioners’ and similarly situated juveniles’ right to due process by effectively revoking their SIJS status. Special Immigrant Juveniles are entitled to due process as a result of both the rigorous standards necessary to attain SIJS and the substantial protections that Congress accorded SIJS beneficiaries.
“Due process protections attach to the statutory rights Congress has accorded to SIJS-eligible youth,” states Joseph A. Fischetti, counsel at Lowenstein Sandler. “Beneficiaries have a constitutionally protected interest in retaining SIJS unless stripped of this status pursuant to proper procedures. It therefore violates due process to order the removal of a SIJS beneficiary without even the pretense of having revoked his or her status as a Special Immigrant Juvenile.”
Finally, the government’s policy poses a fundamental threat to the status of thousands of other Special Immigrant Juveniles across the country, regardless of the protections Congress has enacted for their benefit. USCIS has granted SIJS to 89,920 children since 2016, including many from Guatemala, Honduras, El Salvador, and Mexico‒all countries for which visa availability is backlogged. Thousands of SIJS grantees are in the same position as J.L.P.P. and C.M.L.: awaiting visa availability and the corresponding opportunity to seek adjustment of status. If the government prevails in its position that SIJS affords no protection from removal unless a visa is immediately available, countless lives will be at serious risk‒the very thing SIJS was meant to prevent.
The firm, through the Lowenstein Center for the Public Interest, filed on behalf of the following amici organizations:
- Catholic Legal Immigration Network, Inc. (CLINIC)
- Diocesan Migrant & Refugee Services, Inc.
- The Door
- Florence Immigrant & Refugee Rights Project
- Immigrant Justice Corps
- Kids In Need of Defense (KIND)
- Lawyers’ Committee for Civil Rights of the San Francisco Bay Area
- The Legal Aid Society
- New Jersey Consortium for Immigrant Children
- Northwest Immigrant Rights Project
- Political Asylum/Immigration Representation Project (PAIR)
- Public Counsel
- Safe Passage Project
- Young Center for Immigrant Children’s Rights
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