On Tuesday, Nov. 28, 2023 the U.S. Supreme Court heard oral argument in the case of Wilkinson v. Garland. Issue: Whether an agency determination that a given set of established facts does not rise to the...
On Nov. 17, 2023 the AAO reversed an EB-2 National Interest Waiver denial by the Texas Service Center, saying: "The Petitioner has met the requisite three prongs set forth in the Dhanasar analytical...
ICE, Aug. 15, 2023
"This Directive provides guidance to U.S. Immigration and Customs Enforcement (ICE) personnel about Red Notices published by the International Criminal Police Organization (INTERPOL...
Georgianna Pisano Goetz, Nov. 24, 2023
"The Department of Homeland Security has been pushing inconsistent arguments about the meaning of parole under the Cuban Adjustment Act of 1966, needlessly...
USCIS, Nov. 16, 2023
"Today, the Department of Homeland Security (DHS), through the U.S. Citizenship and Immigration Services (USCIS), and the Department of Labor (DOL) published a temporary final...
CHRCL, Oct. 31, 2022 - "U.S. DISTRICT COURT FOR CENTRAL DISTRICT OF CALIFORNIA ISSUES ORDER IN CASA LIBRE V. MAYORKAS (NO. 22-01510) RE CLAIMS FOR TIMELY ADJUDICATION OF SIJ PETITIONS AND PROMPT ISSUANCE OF WORK PERMITS
On March 7, 2022, on behalf of several abused, abandoned, and neglected immigrant youth applicants for Special Immigrant Juvenile (SIJ) status, and various immigrants’ rights groups,1 the Center for Human Rights and Constitutional Law (CHRCL), with additional counsel,2 filed an action for injunctive and declaratory relief challenging the Secretary of U.S. Department of Homeland Security (DHS) Alejandro Mayorkas, the Director of U.S. Citizenship and Immigration Services Ur M. Jaddou, and U.S. Citizenship and Immigration Services (USCIS) (collectively Defendants) (1) violation of the 8 U.S.C. § 1232(D)(2) which requires that SIJ petitions be decided within six months, and (2) refusal to permit SIJ applicants to seek employment authorization documents (EADs) upon filing prima facie approvable SIJ applications as a violation of equal protection inasmuch as victims of trafficking are granted the right to apply for work permits upon the filing of prima facie approvable T visa petitions.
On March 7, 2022, after advance discussions with the Government and the same day the Complaint was filed, USCIS issued a “Policy Alert” advising that USCIS will, in its “discretion” and on a “case-by-case” basis, grant deferred action status (DAS) to youth with approved SIJ petitions, and allow them to apply for work permits. USCIS, Policy Alert (March 7, 2022), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220307-SIJAndDeferredAction.pdf. This “Policy Alert” was issued in order to blunt the Plaintiffs’ claims seeking the issuance of prompt work permits and in response to advocacy by a wide range of groups representing SIJ petitioners. This was an improvement in policy since previously immigrant youth, even with approved SIJ petitions, had to wait several years before they could apply for permanent resident status and employment authorization.
Yet the following day, March 8, 2022, USCIS issued final regulations obviously developed well before the Casa Libre litigation was filed, maintaining the pre-Alert policy of only allowing SIJ petitioners to file applications for employment authorization years after their SIJ petitions are approved and they become eligible to file applications for permanent resident status. This made fairly clear that the more liberal Policy Alert issued a day earlier was disseminated in order to blunt the litigation’s challenge to the long delay in permitting SIJ petitioners to seek employment authorization.
To address the newly issued Policy Alert, and certain aspects of the final regulations issued the following day, on April 22, 2022, Plaintiffs filed a First Amended Complaint (FAC). Link. The FAC challenged Defendants failure to adjudicate SIJ petitions within six months as a violation of the 180-day mandate set forth in 8 U.S.C. §1232(d)(2). Plaintiffs also challenged the final regulations’ requirement that if after a SIJ petition is filed Defendants for any reason request that the SIJ petitioner submit additional evidence, any time limitation imposed by 8 U.S.C. §1232(d)(2) “will be suspended as of the date of request ... [and] will resume at the ... point where it stopped when USCIS receives the requested evidence or response ...” SIJ Regulations, FR at 13112. The FAC argued that nothing in the text of 8 U.S.C. §1232(d)(2) supports Defendants’ new “start-stop” rules.
Despite the new Policy Alert which now allows most SIJ applicants to seek work permits once their SIJ petitions are approved if they are granted deferred action status (which most are), the FAC argued that as a matter of equal protection, SIJ petitioners should be permitted to file employment authorization requests upon the filing of bona fide approvable petitions, as Defendants permit Trafficking Act T visa applicants to do. See 8 CFR 274a.12(c)(14).
On May 10, 2022, Defendants filed a Motion to Dismiss all claims. On October 26, 2022, the Court issued an Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss. Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss the First Amended Complaint at 12, Casa Libre v. Mayorkas, No. 22-01510 (C.D. Cal. Oct. 26, 2022). Link. As discussed below, the Court refused to dismiss Plaintiffs’ statutory delay claims, but did dismiss their equal protection claim. If the Court’s position becomes the policy by way of summary judgment or settlement, the vast majority of SIJ petitioners should be permitted to apply for work permits within six to eight months after filing their SIJ petitions.
The constitutional claim asserts that USCIS provides T-1 visa petitioners pre-approval work permits as a matter of practice while such provision of work permits is denied to youth with pending SIJ petitions and that there is no rational basis for the differential treatment between these types of visa petitioners. The Court held that the equal protection claim fails “because (1) SIJ petitioners and T-1 applicants are not similarly situated; and (2) even if they are, Defendants have a rational basis for allowing T-1 applicants to apply for work permits while their applications are pending but not allowing SIJ petitioners to do the same.” The Court found that “[t]he different purposes and types of individuals that the SIJ program and T-1 nonimmigrant program serve provide a rational basis to distinguish between employment-authorization eligibility.” Id. at 15.
The Court refused to dismiss the claim on the 180-day adjudication timeframe. First, the Court found that “the individual Plaintiffs have standing to pursue [the delay] component of the claim,” and “as a result, the Court need not consider whether the organizational Plaintiffs also have standing.” Id. at 18. The Court concluded that “at least one individual Plaintiff has standing to pursue the direct-violation aspect of the second claim,” and “[g]iven that at least one individual Plaintiff satisfies the constitutional standing requirement, and that this case is a putative class action, the Court will not engage in any finer parsing out of the claim as to particular individuals.” Id. at 20. These conclusions led the Court to determine that it has subject matter jurisdiction over the direct-violation portion of the statutory claim. While the Court “stops short of determining whether it has subject-matter jurisdiction as to [the stop-start rule] component of the claim,” it determined that the entire claim, consisting of both the direct-violation component and the stop-start rule component, is viable. Id. at 22.
Casa Libre was filed as a class action with the proposed class including tens of thousands of young immigrants who have applied for SIJ status. A class certification motion was filed before Defendants filed their motion to dismiss. After Defendants filed their motion to dismiss, the Court ordered that the motion to certify the class be resolved after it dealt with the motion to dismiss. In its Order granting in part and denying in part Defendants’ motion to dismiss, the Court advised that it will set a deadline for moving for class certification at the “appropriate” time.
The Court granted Plaintiffs to November 9, 2022, to file a Second Amended Complaint to address the dismissed equal protection claim. At present, we do not see any viable way to amend the complaint to overcome the Court’s decision that SIJ and T visa applicants are not similarly situated, though we welcome timely comments and input from interested advocates. Plaintiffs will have the option to appeal this decision once the merits of all claims have been fully adjudicated by the lower court. On the other hand, if Plaintiffs prevail on their delay claim and Defendants are required to adjudicate SIJ petitions within six months of filing, and under the March 7, 2022, “Policy Alert” Defendants grant most SIJ petitioners the right to promptly apply for work permits, immigrant youth seeking SIJ status will be permitted to apply for employment authorization almost as quickly as they would if Defendants were required to allow them to apply upon the filing of prima facie approvable SIJ petitions. In short, by prevailing on their delay claim, Plaintiffs will have achieved very close to what they sought in their equal protection claim.
Regarding Plaintiffs delay claim which the Court refused to dismiss, Plaintiffs’ counsel will shortly meet and confer and explore several options including a possible settlement of this issue (if Defendants are now willing to adjudicate all SIJ petitions within six months), possible promulgation of discovery requests, or the filing of a motion for summary judgment.
Please email us if you are representing SIJ petitioners who have not received decisions within six months of the filing of SIJ petitions or if a client's SIJ petition was approved but the client was not promptly granted deferred action status and the right to apply for employment authorization. Also please email us if you have any comments or guidance regarding our right to file an amended Complaint on the dismissed equal protection claim. Please forward emails to Peter Schey email@example.com and Taylor Koehler firstname.lastname@example.org
1.The organizational plaintiffs include Casa Libre/Freedom House, Los Angeles, CA; Central American Resource Center (CARECEN-Washington DC); Clergy and Laity United for Economic Justice (CLUE), Los Angeles Ca; Coalition for Humane Immigrant Rights (CHIRLA), Los Angeles, CA; Salvadoran American Leadership & Educational Fund (SALEF) Los Angeles, CA; La Raza Centro Legal, Inc., San Francisco, CA; and El Rescate, Los Angeles, CA.
2.Co-counsel include lawyers with the Coalition for Humane Immigrant Rights (CHIRLA); Central American Resource Center (CARECEN-LA); Central American Resource Center (CARECEN-Washington DC); Legal Services for Children, San Francisco, CA; La Raza Centro Legal, Inc. San Francisco, CA; Alex Holguin, Los Angeles, CA; The Aguirre Law Firm, APC, Los Angeles, CA; Law Offices of Martinez, Nguyen & Magna, Industry, CA; and Jim Tom Haynes, Haynes Novick Immigration, Washington, DC."