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Is enforcement rush violating special immigrant juveniles' rights?

If there's one problem with rushing, it's that you might skip things. In the case of rushing through legal processes, the problem is that certain issues may not get their full hearing. That's a real problem when those issues relate to due process or others of our treasured values -- or when the people needing a full, fair hearing are especially vulnerable.

We may be seeing some rushing taking place right now, thanks to the Trump Administration's urgent policy cracking down on unauthorized immigrants. According to four El Salvadoran moms who fled violence in Central America with their children, the U.S. Citizenship and Immigration Services is trying to deport kids who have already been granted special immigrant status.

Deporting vulnerable children -- those who have been granted status as special immigrant juveniles, or SIJs -- violates their rights, the mothers argue. Moreover, they assert, it violates the settlement agreement in Perez-Olano v. Holder. That settlement, originally set down in 2010, was the result of a class action lawsuit against the Obama Administration for failing to implement the protections of the SIJ status as put into law by Congress in 1990.

The four El Salvadoran children in this case came to the U.S. with their mothers in 2015, each arriving in Texas and being settled for detention at the Berks County Residential Center in Pennsylvania. Last year, they applied for and were SIJ granted status.

This special status is granted only to children under 21 who have been abused, neglected or abandoned in their home countries. Once a child is granted SIJ status, he or she can apply immediately for a green card. That will be granted once an EB-4 visa becomes available, and SIJs can stay in the U.S. legally while they apply. Furthermore, SIJ status allows kids to rescind and reopen a removal order.

USCIS: SIJ status doesn't protect you if we're cracking down

The children qualified for SIJ status and it was granted. They applied to have their removal orders rescinded, but all four received rejection letters in February. What was the rationale for their rejection?

According to the Courthouse News Service, the USCIS told them that Perez-Olano v. Holder only applies to ordinary removal proceedings, "as opposed to the expedited removal proceedings at issue." In other words, since the Trump Administration's policy is to crack down on all unauthorized immigrants, special immigrant status doesn't apply anymore.

The mothers have now sued the Trump Administration for refusing to comply with the 2010 settlement agreement. Their attorney calls the Trump Administration's rationale a farce.

"In defiance of common sense, clear congressional intent, applicable case law, and even a mere scintilla of human decency," reads the lawsuit, "defendants, without justification and or authorization, continue to illegally and indefinitely detain SIJ children up to and until the point at which defendants can ship the children back 'home' -- places defendants previously determined would not be in the children's best interest to be returned to."

"These abhorrent, illegal practices," require a temporary restraining order to be issued on an emergency basis, the families argue. Such an order could temporarily halt the march of the Trump Administration's policy nationwide until a permanent decision could be reached by the courts.

How many SIJ children could be affected by this order?

The four El Salvadoran children are among those most in need of America's protection because they came in among the wave of immigrants fleeing violence in Central America and they have already been granted status as SIJs.

They are not alone. Last year, 15,101 petitions for SIJ status were approved. This year, according to the lawsuit, "at last count, 8,674 applications were still awaiting a decision."

"This is a new era," said Attorney General Jeff Sessions last week. "This is the Trump era."

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  • American Immigration Lawyers Association
  • State Bar of California | California Board of Legal Specialization
  • Avvo
  • Orange County Bar Association
  • Irvine Chamber