Having lost class actions around the country challenging its illegal refusal to grant SIJS to older juveniles, the government pivoted to another attack on immigrant children seeking to escape unfit families and remain safely in the United States: the government has taken the position that such children are subject to deportation even after USCIS has granted them SIJS.
In Joshua M. v. Barr, the government is attempting to deport a young man whose SIJS application was approved. Both of Joshua’s parents abandoned him when he was a baby, and other relatives had left him to fend for himself by the time he was 15. At age 16, Joshua fled his country to escape a gang that had physically attacked and permanently injured him. Based on evidence establishing these facts, a New York family court placed Joshua under the guardianship of his uncle; made findings of abuse, neglect, and abandonment against his parents; and determined that it would not be in his best interest to be returned to his home country. These findings supported his successful application for SIJS.
Like thousands of other SIJS grantees, however, Joshua could not immediately apply for lawful permanent residency (i.e., a green card). Instead, he had to wait on a long line – often more than three years – for the visa he needed to open the door to a green card. That is because he comes from the Northern Triangle of Central America (composed of Honduras, Guatemala, and El Salvador). For many years, the transnational gangs that control this region have driven out young people who resist conscription. Children such as Joshua, who lack the protection of fit parents, are especially vulnerable to such violence. Along with thousands of others escaping violence, many of these young people flee to the United States, resulting in a shortage of visas available to applicants from these countries.
Despite evidentiary findings in every case that a SIJS grantee cannot be safely returned to his or her home country, the government has taken the position that it can deport grantees to whom a visa is not immediately available. This position endangers thousands of at-risk children around the country. In response, several prominent immigration advocacy organizations asked the firm to file an amicus (friend-of-the-court) brief on their behalf in Joshua’s case.
The brief argued that by attempting to deport Joshua, the government contravened the purpose of the SIJS statute. SIJS was designed to provide a pathway to permanent residency for immigrant children who lack parental protection. Congress never intended a Special Immigrant Juvenile to be subject to deportation simply because no visa is immediately available. SIJS is worthless to a grantee who is deported to proven dangerous conditions while awaiting the opportunity to apply for a green card. Moreover, the law requires the government to follow specific procedures before revoking SIJS, including giving the juvenile notice and an opportunity to object. Bypassing these procedures violates due process.
In February 2020, a federal district court in Virginia asserted jurisdiction despite vigorous objections from the government and held that Joshua had proven a likelihood of success on the merits and a serious risk irreparable harm. The court therefore stayed Joshua’s removal while it continues to consider the arguments of the parties and amici. The ultimate decision in this case could ensure – or undermine – the safety of thousands of immigrant children.