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Certification, Backlogs and Visa Retrogression: Advocating for SIJ beneficiaries to remain in the US to adjust status

We have heard from many of you over the past several months that it has become increasingly difficult to obtain a continuance in immigration court for your Special Immigrant Juvenile (SIJ) clients.  Several factors have contributed to the challenge, such as the Attorney General’s ruling in Matter of L-A-B-R- and Matter of Castro Tum, DHS attorneys’ inability to exercise discretion due to agency directives, long wait times for adjudication of SIJ I-360 applications, and the retrogression of SIJ (EB-4) visa availability for children from Guatemala, Honduras, El Salvador, and Mexico.  In some instances, attorneys have reported that Immigration Judges (IJ) are issuing orders of removal for children with pending state court proceedings, pending SIJ applications or that are waiting for EB-4 visa availability.

Deporting SIJ eligible children is unjust and unlawful because both the federal government and state government have afforded special protections to these children.  Specifically, both the state court judge and the USCIS adjudicator have ordered, or likely will order, protective measures for the child affirming that returning them to their home countries and to the parent(s) who have mistreated them would not be in their best interest.  At the core of the legal argument is the INA regulation setting forth the standard for granting a continuance: good cause.  Amidst all of the case law, there is very little precedent regarding special immigrant juvenile status.  Perhaps because it should be clear that there is good cause not to deport a child with SIJ status.  We encourage all Texas UC Champions to put forth creative arguments on behalf of your SIJ client when seeking a continuance in immigration court in light of the absence of binding precedent:

  • Emphasize the unique nature of SIJ cases and the vulnerabilities of those eligible for the visa:
    • Congress has determined that the state court judge is uniquely qualified to determine issues of best interest for the child. See 8 USC 1101(a)(27)(J).
    • SIJ status was created to protect children from removal to their home country if it would not be in their best interest and creates several exemptions to inadmissibility that highlight the need to remain in the United States to seek adjustment of status.  See Osorio-Martinez v. Att’y Gen.,893 F.3d 153, 167, 172 (3d Cir. 2018); Garcia v. Holder, 659 F.3d 1261, 1271 (9th Cir. 2011).
  • Use Matter of Castro Tum to your advantage by quoting the Attorney General in footnote 13, stating that “continuances are a superior alternative to administrative closure for cases
    involving particularly vulnerable respondents,” and citing children’s cases as an example because they allow the IJ to “monitor the relief process while ensuring that the case does not get lost.”
  • Use helpful 5th Circuit case law upholding good cause for continuances for pending I-130 applications and 1-485 applications caught in retrogression after filing.  See Wu v. Holder, 571 F.3d 467 (5th Cir. 2009) and Masih v. Mukasey, 539 F. 3d 370 (5th Cir. 2008) affirming binding nature of Matter of Ho, 15 I&N De. 692, 694 (BIA 1976).
  • Distinguish SIJ cases from the negative case law regarding the speculative nature of visa retrogression and highlighting the unique position of SIJ status holders having been paroled  for purposes of INA § 245(a) by operation of statute. See INA § 245(h)(1).
  • Review CLINIC’s very comprehensive guide to seeking a continuance for SIJ eligible clients on pages 20-24 of their practice advisory on Matter of L-A-B-R-
  • Ask to be placed on a status docket, or for a status docket to be implemented in your jurisdiction, in light of the Attorney General’s recommendations in Matter of Castro Tum and many successful status dockets throughout the country.

This legal update is intended for lawyers and is not a substitute for independent legal advice supplied by a lawyer familiar with a client’s case. The cases cited herein do not constitute an exhaustive search of relevant case law in all jurisdictions. If you are a lawyer who represents unaccompanied children in Texas and have a question about your asylum case, or other children’s immigration matters, please reach out to us for technical assistance: http://www.cilacademy.org/request-assistance/

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