Immigration Law

SIJS Practice Advisory and More

The Legal Aid Society and Latham & Watkins, LLP, June 2019

"Since 2016, United States Citizenship and Immigration Services (USCIS) has denied the Special Immigrant Juvenile Status (SIJS) petitions of abused, abandoned, and neglected youth in New York who were between the ages of 18-21 years old at the time they applied for SIJS. USCIS claimed that the New York Family Court Special Findings Orders (SFOs) issued in these cases did not satisfy the requirements for SIJS. USCIS claimed that New York Family Courts did not have the jurisdiction to issue SFOs for youth between the ages of 18-21 years old because 1) the Family Courts did not have jurisdiction to make custody determinations and 2) the Family Courts must have authority to compel the reunification of a child with a parent when making a determination of whether reunification is viable. The Legal Aid Society, in partnership with Latham & Watkins, LLP, filed a federal class action law suit known as R.F.M. challenging this “Over-18 Denial Policy.”

On March 15, 2019, the Court issued an Opinion & Order in R.F.M. certifying the class and finding the Over-18 Denial Policy unlawful. R.F.M. v. Nielsen, No. 18-CV-5068, 2019 WL 1219425 (S.D.N.Y. Mar. 15, 2019). Specifically, the Court found that USCIS acted arbitrarily and capriciously when it implemented its Over-18 Denial Policy because the policy went beyond the scope of the federal SIJS statute and lacked a reasoned explanation. Opinion at 47-54. The Court also ruled that USCIS’ policy was arbitrary and capricious because it exceeded the scope of its consent function and did not provide adequate notice of the policy change as required under the Administrative Procedure Act (“APA”). Id. at 54-61. The Court also entered an Amended Judgment on May 31, 2019 which granted final declaratory and injunctive relief to R.F.M. Class Members. According to the government, there are over 6,600 members in the class.

“This order is a huge step for our clients and others who were unlawfully and arbitrarily denied vital humanitarian status,” Beth Krause, supervising attorney of the Immigrant Youth Project at The Legal Aid Society, said in a statement. “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.”

The Latham & Watkins pro bono team was led by partner Robert Malionek. “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,” Malionek said."