A Milbank pro bono team authored an amicus brief on behalf of 12 non-profit immigration services groups in support of a class action brought to protect immigrant children from the US Citizenship and Immigration Services’ (USCIS) improper denial of Special Immigration Juvenile Status (SIJS) and potential removal from the US. The case impacts hundreds of young immigrants across the state of California who are seeking refuge from parental abuse, abandonment, neglect, or similar circumstances.
The Milbank team submitted the amicus brief to the US District Court for the Northern District of California, arguing that the putative class of 18- to 20-year-old immigrant juveniles in California would be irreparably harmed if the Court did not issue a preliminary injunction protecting the children during the pendency of the litigation. On October 24, 2018, the Court ruled in favor of the plaintiffs and proposed class, granting the preliminary injunction on a California-wide basis—covering young immigrants throughout the state who were at risk of being denied SIJS and potentially removed from the US.
Under longstanding federal law, immigrant children are eligible for SIJS if they are under 21 years old when they apply to USCIS for SIJS, and a state court judge has determined that they are unable to reunify with one or both of their parents due to abuse, neglect, abandonment, or a similar reason; that return to their country of origin is not in their best interest; and that they meet certain other criteria. Factual findings regarding satisfaction of these SIJS criteria must be made by state courts—in California, the California probate and family courts—before SIJS applications are filed with USCIS. SIJS puts immigrant children on a pathway to lawful permanent residency, and, ultimately, citizenship.
The class action challenges USCIS’s recent adoption of a new requirement not found in the federal SIJS statute that has the effect of making 18- to 20-year-olds in California ineligible for SIJS. Specifically, USCIS has taken the position that California’s probate courts do not have the authority to reunite 18- to 20-year-olds with their parents, and thus do not have the authority to make the factual finding that reunification of 18- to 20-year-olds with their parents is not viable. As the Court described it, “the instant action seeks to curb USCIS’s adoption of a dubious legal theory to justify a blanket policy of denying SIJ petitions for immigrant juveniles between the ages of 18 – 20.”
The amici, represented by Milbank, argued that USCIS’s implementation of this erroneous SIJS requirement would cause irreparable harm if not enjoined during the pendency of the litigation. Some of the types of harm include (1) removal to the immigrants’ countries of origin against their best interests, as already determined by a California state court; (2) deprivation of educational opportunities; and (3) severe psychological trauma. Drawing on their work representing many of these immigrant juveniles, the amici—which include every major non-profit SIJS service provider in the state of California—described some of the dangers vulnerable members of the putative class faced in the absence of an injunction, including physical violence from family members and gangs. At oral argument, the Court thanked the amici for their contribution.
In granting the preliminary injunction, the Court enjoined USCIS from denying SIJS on the ground that a California probate court does not have jurisdiction to reunite an 18- to 20-year-old immigrant with his or her parents, and enjoined the Government from initiating removal proceedings against or removing any SIJS petitioner whose SIJS petition was denied on that basis. The Court ruled that “California-wide preliminary injunctive relief is necessary to preserve the status quo and to prevent irreparable harm for all Plaintiffs and the putative class.” The Court ordered the plaintiffs to move for class certification within 28 days.
The amici include Asian Americans Advancing Justice – Los Angeles, Bet Tzedek, Central American Resource Center (CARECEN) of Los Angeles, CARECEN of Northern California, Casa Cornelia Law Center, Centro Legal de la Raza, Community Legal Services in East Palo Alto, Immigrant Defenders Law Center, Immigration Center for Women and Children, Kids in Need of Defense, Legal Services for Children, UC Immigrant Legal Services Center, and Young Center for Immigrant Children’s Rights.
The Milbank team responsible for this important representation consisted of partner Thomas Kreller, consulting partner Linda Dakin-Grimm and associates Andrew Lichtenberg, Matthew DeFrancesco, Mandy Stupart, Anya Andreeva, Sohee Rho, Ashley Satterlee, and Yigal Gross. Many members of the Milbank team have represented individual SIJS petitioners who now are lawful permanent residents of the US.
Says Mr. Lichtenberg, “It is incredibly gratifying to be part of this important win for a vulnerable population, particularly because I have seen first-hand in prior cases the transformative impact SIJS can have for immigrant children.”
