Immigration Law

Plaintiffs Laud Court Order That Will Prohibit DHS From Unlawfully Denying Migrant Youth Humanitarian Status

The Legal Aid Society and Latham & Watkins LLP, Apr. 10, 2019

"The Legal Aid Society and Latham & Watkins LLP lauded a Federal Court order in R.F.M. et al. v. Nielsen, et al., that will ensure that class members’ applications for Special Immigrant Juvenile Status (SIJS)—a vital humanitarian program—are properly adjudicated. SIJS offers thousands of abused, abandoned, or neglected children in New York State and others nationwide a path to citizenship.

“This order is a huge step for our clients and others who were unlawfully and arbitrarily denied vital humanitarian status,” said Beth Krause, Supervising Attorney of the Immigrant Youth Project at The Legal Aid Society. “Immigrant youth who reside in New York State and who survived abuse, abandonment, or neglect will now be put on a path towards securing a green card. We laud the Court for recognizing and correcting the Federal government’s unlawful action on this issue.”

“We filed this lawsuit last year with the simple goal of enforcing the law on behalf of the most vulnerable of populations. Today, we are thrilled to have achieved that goal in full. Immigrant youth who have been mistreated or abandoned by a parent can now obtain the immigration status to which they are entitled. The US District Court agreed with us that the government’s action was unlawful and that the group deserves class status to obtain the relief they deserve,” said Latham & Watkins partner Robert Malionek.

The lawsuit, filed as a class action by five young adults who applied for but were denied SIJS by the U.S. Citizenship and Immigration Services’ (USCIS), challenged a 2018 policy change in which USCIS unilaterally reinterpreted the law in a manner that effectively precluded young people in New York between the ages of 18 and 21 from qualifying for SIJS.

The agency’s unannounced policy change, which impacted thousands of immigrant youth across the country, was first reported in April 2018. The Plaintiffs are represented by The Legal Aid Society and Latham & Watkins, LLP.

The court found that the agency’s unannounced policy change was unlawful, that USCIS improperly denied class members’ SIJS applications, and that class members are therefore eligible for reconsideration of their applications consistent with the court’s order. The applications of thousands of young people in New York may be affected.

SIJS Lawsuit Background

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 and a pathway to citizenship. 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 young immigrants between 18 to up to 21 years of age who were placed under guardianship by New York Family Courts were consistently, and properly, granted.

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, that the applicant cannot reunite with one or both parents, and that it’s not in the applicant’s best interest to be returned to the applicant’s country of birth. 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 narrowed its interpretation of the law starting in 2017, ultimately documenting its new policy in February 2018, which was first reported in The New York Times. The policy change provided that in cases where applicants are 18 or over, they no longer qualify, incorrectly reasoning that the state court’s authority ends at 18. This new policy had the practical effect of depriving immigrant youth of the opportunity to regularize their immigration status, and caused tremendous uncertainty, anxiety and other harm to children who have, by definition, already suffered emotional trauma. As the US District Court for the Southern District of New York recognized, the agency’s new position had no basis in law.

The lawsuit, filed as a class action by five young adults who applied for but were denied SIJS by the U.S. Citizenship and Immigration Services’ (USCIS), challenged USCIS’s new position. Plaintiffs successfully argued that the agency’s new policy violates the federal Administrative Procedures Act (APA) because it contradicts the statute that created SIJS and misinterprets New York law."