Judge Finds "Tolling" Regulations for SIJ Petitions Violates Law in Casa Libre v. Mayorkas

CHRCL, Aug. 8, 2023 via stakeholder email: "In March 2022, the Center for Human Rights and Constitutional Law--with the Central American Resource Center (CARECEN) (Los Angeles and Washington DC), Legal Services for Children, La Raza Centro Legal, Inc., and the Coalition for Humane Immigrant Rights (CHIRLA)--challenged the processing times for Special Immigrant Juvenile (SIJ) petitions in Casa Libre v. Mayorkas (Central District of California No. 22-01510). Special Immigrant Juveniles are minors (under 21) living in the US who cannot be reunited with their families because they have been found by a state court to be abused, abandoned, or neglected.

The applicable statute (8 U.S.C.§ 1232(d)(2)) requires that the government adjudicate SIJ petitions within 180 days. The government routinely violates the six-month rule by resort to its "tolling" regulations. USCIS "tolls" the 180 day adjudication period when it issues requests for missing required initial evidence, Requests for Evidence ("RFEs"), or Notices of Intent to Deny ("NOIDs"). The congressionally set 180-day deadline is suspended, or "tolled," as of the date the request and resumes when USCIS receives the requested additional evidence.

On May 25, 2023, the Court granted Plaintiffs' motion for class certification, certifying a nationwide class of all SIJ petitioners except those residing in the State of Washington. SIJ petitioners in the state of Washington are protected by an injunction issued in the related case Galvez v. Cissna, No. 2:19-cv-00321-RSL (W.D. Wash. filed Mar. 5, 2019). That inunction was affirmed by the Ninth Circuit Court of Appeals in Galvez v. Jaddou, 52 F.4th 821 (9th Cir. 2022). 

On July 31, 2023, in response to the parties' cross-motions for summary judgment, the Court issued an Order finding that USCIS's tolling provisions violate 8 U.S.C.§ 1232(d)(2) and the Administrative Procedures Act (APA). The Court found that the tolling provisions are not "in accordance with" the 180-day statutory deadline set forth at 8 U.S.C.§ 1232(d)(2), as Congress issued a "plain directive" instructing that "USCIS adjudicate SIJ petitions not later that 180 days after the date on which the application is filed," and included "no mechanism for tolling." Based on these findings. the Court concluded that the tolling regulations "violate 8 U.S.C.§ 1232(d)(2) to the extent they allow USCIS in particular instances to extend the deadline for adjudicating SIJ petitions beyond the statutorily mandated 180-day deadline." The Court refused to issue an injunction however the Plaintiffs believe that a declaratory judgment that the Court will soon issue will have the same impact as an injunction.

This ruling by the Court is a step forward in ensuring that vulnerable immigrant youth have their SIJ visa applications adjudicated rapidly within the 180-day deadline set by Congress. Since March 7, 2022, the day we filed the lawsuit, USCIS agreed to grant work permits to SIJ petitioners with approved petitions. The Court's Order should therefore speed up the issuance of work permits to thousands of SIJ petitioners and reduce the number of young immigrants working in underground jobs for unscrupulous employers violating state and federal labor laws."