May 6, 2020

Milbank Secures Preliminary Injunction Protecting Immigrant Children from Unlawful USCIS Policy


Milbank LLP is pleased to announce that a pro bono team has secured a major victory on behalf of a class of immigrant children in California who were unlawfully denied Special Immigrant Juvenile Status (“SIJS”) by the United States Citizenship and Immigration Services (“USCIS”) and were at risk of removal from the US. On May 1, the US District Court for the Northern District of California granted a preliminary injunction against the USCIS’s application of the “reunification authority requirement” to SIJS petitions, in a decision that will impact immigrant children in foster care across California who have sought refuge from parental abuse, neglect, abandonment or similar circumstances.

Under longstanding federal law, SIJS is available to immigrants who are unmarried and under the age of 21; declared dependent on a US state juvenile court; cannot viably be reunified with one or both parents due to abuse, neglect, abandonment or a similar basis; and who receive a determination in administrative or judicial proceedings that returning to their previous country of nationality would not be in their best interest. Immigrant children who meet these criteria and receive the special immigration classification from USCIS may be able to adjust their immigration status to become lawful permanent residents and have a pathway to US citizenship.

Between 2015 and 2018, the group of 18-to-20-year-old immigrant juveniles in foster care represented by Milbank were all declared dependent on a California juvenile court. They had endured abuse, neglect or abandonment and received a determination from the court that reunification with their parents was not viable and returning to their home country was not in their best interest, cementing their eligibility for SIJS.

However, USCIS denied, indicated intent to deny, or failed to adjudicate the juveniles’ SIJS applications, and months later in February 2018, issued new guidance stating that state courts must have the authority to return a child to the custody of their parents in order to find that reunification is not viable. USCIS took the position that the courts that issued the class members’ SIJ findings did not have this authority because the clients were over the age of 18 at the time they received their juvenile court orders. In effect, USCIS’s adoption of the “reunification authority requirement” made 18-to-20-year-olds in California, including the plaintiffs in this case, ineligible for SIJS, despite no such restriction under the federal SIJS law. USCIS stopped enforcing the reunification authority requirement in October 2019, though no reasoned explanation was provided for its implementation or subsequent abandonment.

Milbank filed a lawsuit on behalf of five named plaintiffs and a class of similarly situated individuals, arguing that that the reunification authority requirement was arbitrary and capricious because: (1) it contravenes federal and state law; (2) the defendants failed to provide a reasoned explanation for the new requirement; and (3) the defendants failed to follow required notice and comment procedures. Milbank also argued that despite the USCIS’s voluntary abandonment of the reunification authority requirement, the case was not rendered moot and that the USCIS could still pursue removal proceedings against the plaintiffs and other similarly-situated immigrant juveniles in the absence of an injunction.

In granting the preliminary injunction, the Court found that Milbank had successfully demonstrated likelihood of success on the merits on behalf of the plaintiffs, and statewide preliminary injunctive relief was necessary to prevent irreparable harm. The Court noted USCIS’s violation of federal law in SIJS proceedings across the US, stating that, “In this case, as with the other similar cases across this country, the Court finds that USCIS’s decision to impose the reunification authority requirement is inconsistent with the plain text of the SIJ statute.”

As a result of this victory, USCIS is enjoined from denying SIJS on the basis of the reunification authority requirement and cannot initiate removal proceedings against any SIJS petitioner declared a dependent by a California juvenile court.

The Milbank pro bono team was led by senior consulting partner Linda Dakin-Grimm with partner Thomas Kreller, assisted by associates Andrew Lichtenberg, Katherine Kelly Fell, Ashley Satterlee and Cara O’Connor. Ms. Fell delivered argument to the court telephonically in an April 7 hearing on the preliminary injunction motion.

Mr. Kreller said: “Special Immigrant Juvenile Status is incredibly important for immigrant children in California and across the country who, after years of trauma, deserve an opportunity to become citizens of the country in which they have sought refuge. We are proud to be a part of this important case and hope to see the expeditious approval of these juveniles’ SIJS petitions.”

Ms. Fell added: “This preliminary injunction is crucial to protecting a vulnerable population that has been targeted by unlawful policies. We are thrilled with the outcome of this case and are eager to continue our zealous advocacy on behalf of immigrant children across the country.”