SIJS Clients Face in Removal Proceedings

Introduction 

1. Overview of SIJS and Its Purpose

Special Immigrant Juvenile Status (SIJS) is a form of immigration relief available to certain undocumented minors who have been abused, neglected, or abandoned by one or both parents. Enacted as part of the Immigration and Nationality Act (INA), SIJS provides a pathway to lawful permanent residency (a green card) for eligible children.

Due to their vulnerable status, SIJS beneficiaries are intended to be protected from removal from the United States. However, despite their eligibility for protection, many SIJS clients find themselves facing removal proceedings. This often results from factors such as delays in adjudication, criminal charges, or challenges in meeting the strict requirements for maintaining SIJS eligibility.

2. Challenges SIJS Clients Face in Removal Proceedings

Defending SIJS clients in removal proceedings requires a nuanced understanding of both immigration law and the particular vulnerabilities faced by minors. Immigration judges (IJs) and the Department of Homeland Security (DHS) may challenge the SIJS petitioner’s eligibility, scrutinize their family court orders, or question whether the petitioner continues to meet the criteria for relief.

Moreover, even after receiving SIJS approval, youth may still face removal if they encounter law enforcement or are re-detained due to unresolved or new allegations. This complex landscape requires attorneys to be proactive, strategic, and thoroughly prepared to challenge both procedural and substantive issues at every stage of the removal process.

3. Importance of a Strategic Approach

An effective defense strategy for SIJS clients must include:

• Challenging NTAs and removability allegations early on to preserve the client’s status.
• Presenting compelling humanitarian arguments to counter the government’s case.
• Filing motions and appeals promptly and accurately, especially when an IJ orders removal despite valid SIJS status.
• Mitigating detention risks and addressing vulnerabilities associated with the youth’s status.

By strategically addressing each phase of the removal proceedings, attorneys can maximize the chances of their clients remaining in the United States. Even when removal seems likely, ensuring that the record is well-developed is crucial for preserving issues for appeal and potential judicial review.

4. Brief Outline of the Content Covered

This comprehensive guide will cover strategies at each critical juncture of removal defense for SIJS clients, including:

• Pre-hearing strategies, such as responding to the NTA and challenging jurisdiction.
• Evidentiary challenges during the removal hearing, including the exclusion of unreliable evidence.
• Post-removal order actions, including motions to reopen and appeal tactics.
• Addressing detention issues that disproportionately affect SIJS youth.
• Mitigating risks associated with expedited removal, particularly for clients with incomplete or contested SIJS applications.

1. Legal Background of SIJS
2. Definition and Eligibility Criteria

Special Immigrant Juvenile Status (SIJS) is an immigration classification that provides a pathway to lawful permanent residency (a green card) for undocumented minors who have been abused, neglected, or abandoned by one or both parents. SIJS was established under the Immigration and Nationality Act (INA) § 101(a)(27)(J) and is intended to protect vulnerable youth by allowing them to remain safely in the United States.

1. Statutory Requirements:

To qualify for SIJS, the following conditions must be met:

• The applicant must be under 21 years old and unmarried.
• A juvenile court must find that the applicant:
  • Has been abused, neglected, or abandoned by one or both parents.
  • Cannot be reunified with one or both parents due to this maltreatment.
  • It is not in the minor’s best interest to return to their country of nationality or last habitual residence.

2. State Court Orders:

A critical step in the SIJS process is obtaining a predicate order from a state juvenile, family, or probate court. This order must include findings related to abuse, neglect, abandonment, non-reunification with one or both parents, and the best interests determination.

3. USCIS Petition and Adjudication:

After receiving the state court order, the minor must file Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant) with U.S. Citizenship and Immigration Services (USCIS). USCIS will evaluate whether the SIJS eligibility criteria are met, including verifying the bona fides of the juvenile court findings.

1. Federal Protections Afforded to SIJS Holders

SIJS holders enjoy specific protections under U.S. immigration law, including:

• Exemption from Certain Grounds of Inadmissibility: Some grounds, such as public charge or unlawful presence, may not apply to SIJS recipients.
• Adjustment of Status Eligibility: Once SIJS is approved, the individual can apply for a green card through Form I-485.
• Protection from Deportation: SIJS provides relief from removal proceedings, assuming the individual remains eligible and compliant with immigration requirements.

Limitations of SIJS:

• No Ability to Petition for Parents: A child granted SIJS cannot use this status to sponsor their parents for immigration benefits.
• Age-Out Risks: If a child turns 21 before the SIJS petition is adjudicated, their case may be in jeopardy unless legal protections are invoked.

1. Common Triggers for Removal Proceedings for SIJS Clients

Despite their SIJS status, clients may still face removal under the following circumstances:

1. Delayed Adjudication:

• SIJS applicants may be placed in removal proceedings before their petitions are approved. Due to USCIS backlogs, many minors “age out” while waiting for adjudication, which can complicate their defense.

2. Criminal Charges:

• Even minor criminal infractions can trigger removal proceedings. Courts often scrutinize whether criminal behavior conflicts with the best interests findings made in family court.

3. Age-Out Concerns:

• If an SIJS applicant turns 21 before the I-360 is approved, they may lose eligibility unless protected by the “sought to acquire” provisions or other legal safeguards.

4. Procedural and Filing Errors:

• Mistakes in the family court order or inconsistencies in the narrative provided to USCIS and the immigration court can lead to removal.
• Examples include:
  • Missing or vague abuse findings.
  • Lack of evidence that reunification is not viable.

5. Encounters with Law Enforcement or ICE:

• Even after obtaining SIJS, undocumented youth may be re-detained if ICE is not aware of their adjusted status or if the status has not been fully processed.

1. Legal Precedents Impacting SIJS Cases

Several landmark cases have shaped how SIJS defenses are structured:

• Matter of A-O-C-, 24 I&N Dec. 953 (BIA 2009): Emphasizes the need for clear state court findings on abuse and neglect.
• Pereira v. Sessions, 138 S. Ct. 2105 (2018): Discusses the consequences of defective NTAs, particularly when they lack time and place details, potentially impacting jurisdiction.

1. Challenges in Maintaining SIJS Status

Even after SIJS approval, clients may still be at risk for removal if:

• They are convicted of crimes post-approval.
• Their adjustment of status application is denied.
• They fail to comply with immigration check-ins or court dates.

Key Defense Strategy:

Attorneys must proactively address these risks by:

• Ensuring that SIJS petitions are properly documented and timely filed.
• Keeping clients informed about the need to maintain lawful behavior post-approval.
• Monitoring ongoing immigration status and assisting with adjustment applications.

 

Conclusion of the Legal Background Section:

Understanding the legal framework and common issues surrounding SIJS is essential for building a robust defense strategy. By leveraging the protections afforded by SIJS and addressing common triggers for removal, attorneys can better advocate for their young clients. In the following sections, we will explore practical defense strategies during removal proceedings, focusing on responding to NTAs and challenging the government’s evidence of removability.

III. Pre-Hearing Strategies: Responding to the Notice to Appear (NTA) 

1. Examining the Validity of the NTA

The Notice to Appear (NTA) is the charging document issued by the Department of Homeland Security (DHS) to initiate removal proceedings against an individual. The NTA must specify the grounds for removal and provide essential information, including the time and place of the hearing.

1. Legal Requirements for a Valid NTA:

According to the Immigration and Nationality Act (INA) § 239(a)(1), a valid NTA must include:

• The nature of the proceedings.
• The legal authority under which the proceedings are conducted.
• The acts or conduct alleged to be in violation of the law.
• The charges against the individual.
• The time and place of the hearing.

Key Case:

• Pereira v. Sessions, 138 S. Ct. 2105 (2018): The Supreme Court ruled that an NTA that does not specify the time or place of the hearing is defective and does not trigger the “stop-time” rule for cancellation of removal.

Practice Tip:

• Carefully scrutinize every NTA for defects, especially missing time and place details. If the NTA lacks this information, file a Motion to Terminate Proceedings based on lack of jurisdiction.

2. Motions to Terminate Based on Defective NTAs:

If the NTA is defective, attorneys should file a motion to terminate the proceedings. Arguments should include:

• The defective NTA fails to vest jurisdiction with the immigration court.
• Cite Pereira v. Sessions and subsequent BIA decisions, such as Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), which confirm that NTAs lacking time and place are jurisdictionally flawed.

1. Drafting the Pleadings
2. Admitting or Denying Allegations:

During the Master Calendar Hearing (MCH), attorneys must plead to the allegations and charges in the NTA. This step is crucial for setting the tone of the defense.

Best Practices:

• Admit only verifiable facts: Only admit allegations that are clearly accurate and beneficial to the client’s case.
• Deny vague or unsupported claims: Challenge any ambiguous or legally insufficient allegations.
• Request clarification when necessary: If allegations are vague, ask the court to require the government to clarify or substantiate the charges.

2. Strategic Considerations:

• Timing Matters: In some instances, delaying admissions may be beneficial to allow time for gathering evidence or pursuing collateral relief (e.g., state court orders for SIJS).
• Reservation of Rights: Always state that admitting factual allegations does not concede legal conclusions (e.g., inadmissibility or deportability).

Example Pleading Statement:
“Respondent admits factual allegations 1 and 2, denies allegations 3 through 5, and reserves the right to challenge any legal conclusions drawn from these allegations.”

1. Addressing Jurisdictional Challenges
2. Jurisdiction Under INA and Regulations:

Jurisdiction vests with the immigration court only upon the filing of a valid NTA with the court. A defective NTA can prevent proper jurisdiction from being established.

2. Filing a Motion to Dismiss for Lack of Jurisdiction:

If the NTA fails to specify the time and place, file a motion arguing:

• The NTA is facially deficient under Pereira v. Sessions.
• Jurisdiction did not vest because the regulatory requirements under 8 C.F.R. § 1003.14(a) were not met.

Supporting Case Law:

• Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018): The BIA initially ruled that a subsequent notice of hearing could cure a defective NTA. However, this position has been inconsistently applied, leading to ongoing legal debates.

3. Preserving Arguments for Appeal:

Even if the immigration judge (IJ) denies the motion to terminate, it is crucial to:

• Object on the Record: Clearly state the basis of the objection during the hearing.
• Preserve Issues: Articulate that the defective NTA remains jurisdictionally flawed despite subsequent notices.

1. Developing a Record of Inadequate Notice
2. Documenting Lack of Proper Notice:

SIJS clients often face difficulties in understanding complex legal notices due to language barriers or lack of representation. When arguing that notice was inadequate, provide:

• Evidence of the client’s limited English proficiency.
• Proof that the NTA or subsequent hearing notices were not properly served or understood.

2. Impact of Inadequate Notice:

• Under Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), if the government fails to establish proper service, the removal order may be invalidated.
• Use affidavits, expert testimony, and documentation of the client’s challenges in receiving or comprehending the NTA.

1. Additional Pre-Hearing Motions
2. Motion to Suppress Evidence:

If the NTA was issued following an unlawful arrest or coercion, file a Motion to Suppress on the grounds of Fourth Amendment violations. Demonstrate:

• Lack of reasonable suspicion or probable cause for the arrest.
• Evidence obtained through coercion or unlawful interrogation.

Case Reference:

• INS v. Lopez-Mendoza, 468 U.S. 1032 (1984): Although the exclusionary rule generally does not apply in removal proceedings, exceptions exist for egregious violations.

2. Motion to Change Venue:

SIJS clients often relocate due to foster care placements or state court jurisdiction changes. File a motion to change venue if:

• The client’s new location significantly affects their ability to attend hearings.
• There are humanitarian grounds for changing to a more accessible court.

1. Ensuring Compliance with SIJS Protection:
2. Presenting Evidence of SIJS Status:

Provide documentation such as:

• The I-360 approval notice.
• The state court order with findings of abuse, neglect, or abandonment.
• Any pending applications for adjustment of status (I-485).

2. Motion to Administratively Close or Terminate:

If the SIJS petition is approved or pending, argue for administrative closure or termination based on humanitarian factors and statutory protections. Reference:

• Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012): IJs have the discretion to close cases for administrative efficiency and fairness.

1. Building a Strong Factual Record:

Document every interaction with DHS, including:

• Copies of NTAs and hearing notices.
• Correspondence regarding hearing dates and location changes.
• Any motions filed and rulings received.

Practice Tip:
Keep a comprehensive, chronological file to track procedural errors or inconsistencies. This will be invaluable for appeals or motions to reopen.

Conclusion of the Pre-Hearing Strategies Section:

By meticulously scrutinizing NTAs, strategically drafting pleadings, and preserving jurisdictional arguments, attorneys can significantly improve the chances of defending SIJS clients against removal. Ensuring that the record clearly reflects any procedural deficiencies will also set the stage for potential appellate relief.

1. Contesting Evidence of Removability 
2. Challenging the Government’s Burden of Proof

In removal proceedings, the Department of Homeland Security (DHS) bears the burden of proving by clear and convincing evidence that the respondent is removable. For SIJS clients, this means DHS must establish both the factual allegations and the legal grounds for removal.

1. Legal Standard for Removability:

• The burden shifts depending on the client’s status:
  • If the client entered without inspection (EWI), DHS must prove alienage and unlawful entry.
  • If the client entered with a visa but overstayed, DHS must prove that the individual violated the terms of admission.
• The government must also provide reliable and admissible evidence to support the removal charge.

2. Key Defense Strategy:

• Demand Strict Adherence to Standards: Challenge any evidence that fails to meet the clear and convincing threshold.
• Object to Generalized or Assumptive Evidence: For instance, if DHS presents vague or incomplete records, argue they fail to meet the evidentiary standard.

1. Evidentiary Issues in Removal Proceedings

Immigration courts do not follow the Federal Rules of Evidence strictly, but fundamental due process requires that evidence be reliable and fundamentally fair.

1. Hearsay and Documentary Evidence:

• Immigration judges often allow hearsay evidence, but not all hearsay is automatically reliable. Challenge:
  • Secondhand Statements: Particularly from absent witnesses or law enforcement officers.
  • Documents from Foreign Governments: Unless properly authenticated, these documents should not be admitted.

Case Example:

• Matter of Velasquez, 19 I&N Dec. 377 (BIA 1986): Hearsay is admissible only if it is probative and its use is fundamentally fair.

2. Inadmissibility of Coerced Statements:

• Statements obtained through coercion or duress violate due process. To suppress coerced statements, argue:
  • Violation of Constitutional Rights: Citing INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) when egregious violations occur.
  • Lack of Voluntariness: Demonstrate that the client was pressured, threatened, or lacked legal representation when making the statement.

3. Improperly Obtained Evidence:

• Challenge evidence gathered without a proper warrant or through unconstitutional searches.
• File a Motion to Suppress to exclude such evidence, especially if it directly led to the client’s identification or apprehension.

Practice Tip:
Secure written declarations from the client detailing how evidence was obtained, emphasizing coercion or unlawful search if applicable.

1. Contesting Identity and Alienage Evidence
2. Challenging the Proof of Alienage:

DHS often submits:

• I-213 forms (Record of Deportable/Inadmissible Alien).
• Biometric and biographical information from immigration databases.

Defense Strategies:

• Challenge the Accuracy: Errors in names, dates, or places of birth can render the evidence unreliable.
• Object to Hearsay Elements: I-213 forms often contain hearsay statements from officers or third parties.
• Demand Authentication: If the document is not properly certified or lacks official seals, object to its admission.

Key Precedent:

• Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988): Establishes that I-213 forms are admissible unless shown to be inaccurate or obtained unlawfully.

2. Contesting Inadmissibility and Deportability:

• Challenge the alleged inadmissibility under INA § 212(a) if the facts do not clearly support the charge.
• For deportability under INA § 237(a), argue that DHS has not shown a violation of status or criminal conviction.

1. Excluding Evidence Obtained During Unlawful Detention
2. Fourth Amendment Violations:

• Although Fourth Amendment protections are limited in immigration contexts, egregious violations may still result in suppression.
• Prove that:
  • The arrest lacked probable cause.
  • There was racial profiling or other unconstitutional behavior.

2. Statements Made During Custodial Interrogation:

• Argue that Miranda rights were not provided, especially when statements were made in ICE custody.
• If the client was a minor, highlight the additional obligation to ensure understanding of rights.

1. Utilizing Expert Testimony to Counter DHS Claims
2. Mental Health Experts:

• Particularly relevant if the client has a history of trauma, abuse, or PTSD.
• Use expert reports to:
  • Challenge the voluntariness of statements made under stress or coercion.
  • Demonstrate that trauma may have impacted the client’s recollection or statements.

2. Forensic Document Examiners:

• If DHS presents questionable documents (e.g., foreign birth certificates), forensic experts can challenge the document’s authenticity or origin.

3. Social Workers or Child Advocates:

• In SIJS cases, social workers can explain the context of the client’s situation, especially if allegations of misconduct arise from misunderstandings related to cultural norms or trauma responses.

1. Arguing the Lack of Criminal Grounds for Removal

SIJS clients may be accused of criminal conduct that DHS claims renders them removable. However, many juvenile offenses do not equate to adult criminal convictions under immigration law.

1. Juvenile Adjudications vs. Criminal Convictions:

• Under Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), juvenile delinquency proceedings are not “convictions” under the INA.
• Assert that juvenile records should not be used as evidence of inadmissibility or deportability.

2. Minor Offenses and Petty Offense Exceptions:

• Argue that minor infractions do not meet the criteria for Crimes Involving Moral Turpitude (CIMTs) or aggravated felonies.
• Utilize the Petty Offense Exception under INA § 212(a)(2)(A)(ii)(II) if the sentence did not exceed six months and the maximum penalty was not more than one year.

1. Developing the Record with Favorable Evidence
2. Positive Equities:

• Submit evidence of:
  • Good moral character: School attendance, community service, and positive character references.
  • Rehabilitation: Proof of counseling or rehabilitation for minor infractions.

2. Humanitarian Considerations:

• Documentation showing ongoing abuse, trauma, or neglect if returned to the country of origin.
• Social service records, letters from counselors, and affidavits from guardians.

3. Protecting the Record for Appeal:

• If the IJ admits questionable evidence over objection, make a proffer on the record outlining:
  • Why the evidence should have been excluded.
  • The potential prejudice to the client’s case.
• Clearly state that the objection is preserved for appeal.

Conclusion of the Evidentiary Challenge Section:

Vigorously contesting DHS evidence is essential to safeguarding the rights of SIJS clients. By challenging unreliable, uncorroborated, or improperly obtained evidence, attorneys can significantly weaken the government’s case. Whether addressing defective documents or coerced statements, preserving these challenges on the record is crucial for potential appellate review.

1. Strategies After Removability is Established (2,000 words)
2. Arguing for Relief from Removal

Once an immigration judge (IJ) determines that removability has been established, the focus shifts to seeking relief to prevent deportation. For SIJS clients, several potential relief avenues exist, including adjustment of status and humanitarian protections.

1. Adjustment of Status under SIJS (INA § 245(h))

Eligibility Criteria for SIJS-Based Adjustment:

• The client must have an approved I-360 petition.
• The client must be inadmissible under non-waivable grounds.
• The client must file Form I-485 and demonstrate that adjustment is warranted as a matter of discretion.

Key Points to Emphasize:

• Humanitarian Grounds: Emphasize the abuse, neglect, or abandonment the client endured.
• Good Moral Character: Submit evidence of positive behavior and community integration.
• Unwaivable Grounds of Inadmissibility:
  • Criminal offenses (e.g., aggravated felonies).
  • National security grounds.

Practice Tip: If there is a concern about inadmissibility, file Form I-601 (Application for Waiver of Grounds of Inadmissibility) concurrently, especially if the grounds involve health-related issues or unlawful presence.

2. Asylum, Withholding of Removal, and Protection under CAT

When SIJS clients cannot adjust status, other forms of protection may be pursued:

1. Asylum (INA § 208):

• Prove the client has a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.
• Argue that deportation to the client’s home country would expose them to abuse or harm, often stemming from the very circumstances that led to SIJS eligibility.

1. Withholding of Removal (INA § 241(b)(3)):

• Higher standard than asylum: More likely than not to face persecution if deported.
• Use the same factual basis as the asylum claim but demonstrate the higher likelihood.

1. Protection under the Convention Against Torture (CAT):

• Prove that the client will more likely than not face torture by the government or with governmental acquiescence.
• Key Evidence:
  • Reports from human rights organizations.
  • Testimonies from family members or experts familiar with conditions in the home country.

Strategy: If the SIJS client’s case includes a history of abuse from parents or guardians, argue that returning the client to the home country would expose them to continued harm, especially if the family unit remains dysfunctional.

1. Humanitarian Considerations
2. Presenting a Strong Humanitarian Case:

• SIJS clients are inherently vulnerable, having been adjudicated as victims of abuse, neglect, or abandonment.
• Present evidence that removal would:
  • Disrupt educational progress.
  • Sever community ties and support networks.
  • Expose the youth to renewed trauma or harm.

2. Gathering Humanitarian Evidence:

• Affidavits from Guardians and Social Workers: Describing the youth’s rehabilitation and social integration.
• Medical and Psychological Reports: Addressing trauma, PTSD, or mental health challenges.
• Community Support Letters: From teachers, mentors, and social service providers.

Practice Tip: Cite Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) to support arguments that domestic violence and abuse can form the basis of asylum claims, particularly when SIJS stems from familial abuse.

1. Crafting Arguments for Prosecutorial Discretion
2. Administrative Closure or Termination:

• Request that the IJ or DHS exercise discretion to close or terminate proceedings, particularly if the client:
  • Has a pending I-360 or I-485 application.
  • Demonstrates strong humanitarian factors.
  • Has compelling evidence of community ties.

2. Deferred Action:

• SIJS clients, particularly those with approved petitions but pending adjustments, may seek deferred action to postpone removal.
• Emphasize that the client is not an enforcement priority and that removal would contradict humanitarian principles.

3. Stays of Removal:

• If the IJ orders removal despite compelling arguments, file for a stay of removal while appealing or pursuing other forms of relief.
• Present strong documentation showing that the client meets the criteria for humanitarian protection and has a viable path to lawful status.

1. Preservation of Issues for Appeal

When an IJ orders removal despite the evidence and arguments presented, preserving the record for appeal is essential.

1. Objecting During Proceedings:

• Clearly state all objections to the IJ’s rulings on the record, especially concerning:
  • Admissibility of evidence.
  • Misinterpretation of SIJS protections.
  • Failure to consider humanitarian evidence adequately.

2. Submitting Detailed Written Motions:

• File motions to reconsider or reopen if new evidence or legal grounds emerge after the IJ’s decision.
• Include comprehensive legal arguments and cite relevant precedents.

3. Proffer of Excluded Evidence:

• If the IJ excludes evidence, make a proffer to ensure the appellate court is aware of what was presented and why it was deemed essential.

Practice Tip: Follow the guidance from Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) for filing ineffective assistance of counsel claims, particularly if the prior attorney failed to adequately argue SIJS protections.

1. Appeals to the Board of Immigration Appeals (BIA)
2. Crafting the Notice of Appeal:

• File within 30 days of the IJ’s decision.
• Clearly specify errors in the IJ’s findings or application of the law.

2. Preparing the Appellate Brief:

• Articulate legal errors, factual misunderstandings, or the IJ’s failure to properly weigh humanitarian factors.
• Use strong legal citations to challenge the IJ’s reasoning, focusing on:
  • Misapplication of SIJS eligibility.
  • Errors in assessing the weight of evidence.
  • Procedural irregularities during the hearing.

Case Example:

• Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018): Highlights the importance of articulating clear claims on appeal, including the precise errors made by the IJ.

1. Judicial Review in Federal Court

If the BIA denies the appeal, the next step is to petition for review with the Federal Circuit Court of Appeals.

1. Procedural Steps:

• File a petition for review within 30 days of the BIA decision.
• Request a stay of removal from the circuit court to prevent deportation during the appeal process.

2. Substantive Arguments:

• Due Process Violations: Assert that the IJ failed to follow statutory requirements or violated procedural fairness.
• Legal Misinterpretation: Argue that the IJ or BIA misapplied laws related to SIJS and humanitarian relief.

1. Requesting Reopening or Reconsideration of the Case

If new evidence emerges, file a Motion to Reopen:

• Include new, material evidence not available during the initial hearing.
• File within 90 days of the final order, unless the motion is based on changed country conditions.

For cases involving legal errors, file a Motion to Reconsider within 30 days, highlighting errors of law or fact.

Conclusion of the Strategies After Removability is Established Section:

Successfully defending an SIJS client after removability has been established requires a multifaceted approach, including seeking all available forms of relief, arguing humanitarian factors, and preserving the record for appeal. Careful planning and thorough presentation of evidence are essential to maximizing the client’s chances of remaining in the United States.

1. Post-Removal Order Strategies 
2. Filing Motions to Reopen or Reconsider

Once an immigration judge (IJ) orders removal, it is crucial to act swiftly to protect the SIJS client’s rights. Two primary post-order motions are available:

1. Motion to Reopen (8 C.F.R. § 1003.23(b))

A Motion to Reopen is appropriate when new facts or evidence have emerged that were not available at the time of the original hearing.

1. Legal Standards:

• Must demonstrate that the new evidence is material and was not available or discoverable at the original hearing.
• Must be filed within 90 days of the final removal order unless an exception applies.

1. Exceptions to the 90-Day Deadline:

• Changed Country Conditions: If conditions in the home country have significantly worsened, such as increased violence or persecution.
• In Absentia Orders: If the client did not appear for the hearing due to lack of proper notice or exceptional circumstances (e.g., illness or detention).
• SIJS-Related Evidence: When the family court order or I-360 approval comes after the removal order, demonstrating that the client is now eligible for adjustment.

1. Strategic Tips:

• Include New Evidence: Affidavits, medical records, or updated state court findings related to SIJS.
• Argue Ineffective Assistance of Counsel: If previous counsel failed to file necessary documents or pursue SIJS relief, cite Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) and demonstrate compliance with the procedural requirements.
• Prepare for Oppositional Arguments: DHS may argue the evidence could have been discovered earlier. Clearly explain why it was unavailable or unreasonably withheld.

2. Motion to Reconsider (8 C.F.R. § 1003.2(b))

A Motion to Reconsider is based on the claim that the IJ or BIA made a legal or factual error in their decision.

1. Legal Standards:

• Must be filed within 30 days of the final removal order.
• Should clearly identify errors of law or fact.
• Should include pertinent authority and legal arguments that demonstrate the IJ’s or BIA’s mistake.

1. Common Grounds for Reconsideration:

• Incorrect Legal Interpretation: Misapplication of SIJS regulations or case law.
• Failure to Consider Evidence: Demonstrating that the judge overlooked critical documents or testimonies.
• Change in Controlling Law: If a recent court decision impacts the client’s eligibility for relief.

1. Key Considerations:

• Avoid Repetitive Arguments: The motion must raise new legal points or newly clarified facts.
• Comprehensive Briefing: Include a detailed analysis of how the legal standard was misapplied, citing relevant BIA or circuit court precedents.

1. Appealing to the Board of Immigration Appeals (BIA)

If the IJ denies the motion to reopen or reconsider, the next step is appealing to the BIA.

1. Filing Requirements:

• Must file the appeal within 30 days of the IJ’s decision.
• Submit Form EOIR-26 and pay the filing fee or request a fee waiver.
• Include a statement of errors and specify the grounds for the appeal.

Practice Tip:
Argue that the IJ abused discretion by not considering new evidence or misinterpreting the law. Emphasize procedural errors that impacted the fairness of the original proceedings.

2. Stay of Removal Pending Appeal:

• Filing an appeal does not automatically stay removal. File a motion for stay of removal concurrently to prevent deportation during the appeal process.

1. Judicial Review in Federal Court

If the BIA denies relief, the next recourse is filing a petition for review with the Federal Circuit Court of Appeals.

1. Basis for Federal Review:

• Federal courts have jurisdiction to review final orders of removal for legal or constitutional errors.
• Arguments may include:
  • Due Process Violations: Failure to provide a fair hearing.
  • Misinterpretation of SIJS Law: Errors in interpreting eligibility or adjustment provisions.
  • Procedural Irregularities: Denial of the opportunity to present evidence or inadequate notice.

Practice Tip:
Highlight constitutional claims, as purely discretionary decisions by the IJ or BIA are often beyond judicial review.

2. Filing a Petition for Review:

• Must file within 30 days of the BIA decision.
• Include a motion for stay of removal if the client has not been deported.

Supporting Case:

• Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999): Establishes limitations on judicial review of discretionary decisions but allows review for legal errors.

1. Motions to Stay Removal
2. Circumstances Warranting a Stay:

• Ongoing appeals or motions.
• Medical or humanitarian grounds.
• Unresolved SIJS petitions or pending I-485 applications.

2. Filing the Motion:

• Clearly outline the irreparable harm the client would face if removed.
• Demonstrate likelihood of success on the merits of the appeal.
• Provide supporting documents, such as affidavits from family, medical professionals, or community advocates.

Strategy:
Use humanitarian arguments tailored to SIJS clients, such as the potential for renewed abuse or abandonment if returned to their home country.

1. Temporary Protected Status (TPS) and Deferred Action

In cases where relief from removal is not immediately available, consider other temporary protections:

1. Temporary Protected Status (TPS):

• If the client’s home country is designated for TPS due to conflict or disaster, apply for protection under INA § 244.
• TPS can provide temporary relief from removal and eligibility for work authorization.

2. Deferred Action:

• Request deferred action from DHS based on humanitarian concerns or compelling circumstances.
• Use SIJS findings to demonstrate the youth’s vulnerability and positive equities.

1. Post-Removal Legal Options
2. Reopening from Abroad:

• Even if deported, a motion to reopen can be filed if:
  • The removal order violated due process.
  • New evidence of SIJS approval or adjustment eligibility arises.

2. Consular Processing:

• If removed, consider pursuing a visa through consular processing, especially if the client now has an approved I-360 and a visa number is available.

3. Humanitarian Reentry:

• If removed despite eligibility for relief, file a humanitarian parole request to allow reentry into the U.S. on humanitarian grounds.

1. Rehabilitation and Reentry Planning

For clients who may eventually return to the U.S., help them prepare by:

• Securing identification and essential documents before removal.
• Advising them to maintain contact with legal counsel and family in the U.S.
• Assisting with reentry planning if eligible for relief after removal.

 

Conclusion of the Post-Removal Order Strategies Section:

Navigating the post-removal landscape for SIJS clients requires persistence, strategic motion practice, and a keen awareness of evolving legal standards. Whether filing motions to reopen, appealing to higher courts, or seeking temporary relief through TPS or deferred action, attorneys must remain vigilant in protecting their clients’ rights. By leveraging every available legal tool, it is possible to mitigate the harsh consequences of a removal order and preserve the possibility of legal reentry.

VII. Detention Issues Facing SIJS Youth (1,200 words)

1. Legal Standards for Detaining Juveniles

Detention of SIJS youth poses significant legal and humanitarian challenges. Although Special Immigrant Juvenile Status (SIJS) is designed to protect vulnerable minors, many SIJS clients still face detention by Immigration and Customs Enforcement (ICE) or the Office of Refugee Resettlement (ORR).

1. Legal Framework Governing Juvenile Detention:
2. Flores Settlement Agreement (1997):
   The Flores Agreement sets the legal standards for the detention, treatment, and release of minors in immigration custody. Key provisions include:

• Prompt Release: Minors should be released to a parent, legal guardian, or other qualified adult as quickly as possible.
• Least Restrictive Setting: If detention is necessary, it must be in the least restrictive setting appropriate for the minor’s age and needs.
• Safe and Sanitary Conditions: Facilities must meet basic standards of care, including healthcare and educational opportunities.

1. Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008:
   This act provides additional protections for unaccompanied minors:

• Transfer to ORR custody within 72 hours of apprehension.
• Placement in licensed child care facilities rather than adult detention centers.

1. Homeland Security Act of 2002:
   This law mandates that unaccompanied minors be placed under the care of ORR rather than ICE, ensuring a more child-focused approach.
2. Post-SIJS Approval Detention Issues:

Even after obtaining SIJS, youth may still face detention if:

• Their adjustment of status application is pending.
• They encounter law enforcement for minor infractions.
• ICE is unaware of their approved SIJS status.

1. Bond Hearings and Release Strategies
2. Right to a Bond Hearing:

• Under Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), juveniles in removal proceedings generally have the right to request a bond hearing before an immigration judge.

1. Proving Eligibility for Release:
   To secure release, demonstrate that the client:

• Poses no danger to the community.
• Is not a flight risk.
• Has strong family or community ties.

1. Presenting Supporting Evidence:

• Letters from guardians, teachers, and community members.
• School attendance records.
• Evidence of rehabilitation if the client has a minor criminal record.

Practice Tip:
Include a detailed release plan that outlines where the youth will reside, who will supervise them, and how they will comply with court obligations.

2. Challenging Prolonged Detention:

If an SIJS youth has been detained for an extended period, file a habeas corpus petition arguing that:

• The prolonged detention violates due process.
• The youth’s mental and physical health are adversely impacted by detention.

Key Case:

• Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015): Established that prolonged detention without a bond hearing is unconstitutional, though the Supreme Court later limited this holding in Jennings v. Rodriguez, 138 S. Ct. 830 (2018).

1. Conditions of Detention and Advocacy
2. Ensuring Proper Conditions:

• File complaints with the Office of Civil Rights and Civil Liberties (CRCL) if conditions violate the Flores Agreement.
• Document instances of:
  • Unsanitary or unsafe conditions.
  • Denial of medical care or mental health services.
  • Inadequate educational opportunities.

2. Mental Health Concerns:

SIJS youth often have significant trauma histories, making detention particularly harmful. Raise the following points:

• Psychological Impact: Detention exacerbates symptoms of PTSD and anxiety.
• Mental Health Services: Request access to therapy and counseling as part of the youth’s detention plan.

Practice Tip:
Seek support from child welfare advocates and non-profit organizations specializing in immigrant youth. Their involvement can strengthen arguments for release and better conditions.

1. Alternative to Detention (ATD) Programs

When detention is deemed necessary, advocate for placement in an Alternative to Detention (ATD) program rather than a secure facility. Options include:

• Foster Care or Group Homes: Especially suitable for younger SIJS clients.
• Community-Based Supervision: Managed by non-profit organizations or local social services.
• Electronic Monitoring: When release on personal recognizance is not viable.

Strategy:
File a motion requesting ATD placement by emphasizing:

• The youth’s non-violent history.
• Positive community support.
• The potential for harm in a detention setting.

1. Filing Motions for Release Due to Humanitarian Concerns
2. Humanitarian Parole:

• If ICE refuses to release the youth, file a Form I-131 (Application for Travel Document) requesting humanitarian parole.
• Argue that continued detention exacerbates health issues or poses safety risks.

2. Post-Release Support Plans:

To bolster the parole application, develop a detailed plan that includes:

• Stable housing arrangements.
• Supervisory commitments from family or sponsors.
• Counseling and community integration programs.

1. Risk of Re-Detention After Release

Even after release, SIJS youth may face re-detention if:

• They fail to attend court hearings.
• They are arrested for minor offenses.
• Their SIJS status is not properly communicated to ICE or law enforcement.

1. Mitigating Re-Detention Risk:

• Maintain Up-to-Date Records: Always carry copies of SIJS approval and pending applications.
• Legal Support Hotline: Ensure the client has access to legal assistance if confronted by ICE.
• Education on Rights: Teach clients to assert their rights respectfully if approached by immigration officials.

2. Community and Legal Advocacy:

• Coordinate with local immigrant rights organizations to monitor ICE activities and respond to potential re-detentions.
• Encourage the youth to participate in community education programs that reinforce compliance with immigration requirements.

1. Advocating for Policy Reforms
2. Litigation and Class Actions:

• Join ongoing lawsuits challenging juvenile detention practices, such as those addressing the application of Flores or TVPRA standards.
• Support amicus briefs that highlight the unique vulnerabilities of SIJS youth.

2. Legislative Advocacy:

• Push for policies that:
  • Limit juvenile detention to truly exceptional cases.
  • Prioritize community placement over incarceration.
  • Enhance due process protections during bond hearings.

1. Leveraging Public Support and Media Attention

Cases involving detained SIJS youth often garner significant public sympathy. Use this to:

• Pressure ICE for release through public campaigns.
• Partner with advocacy groups to generate media attention highlighting the injustice of detaining vulnerable minors.
• Document the client’s story (with consent) to humanize the case and rally community support.

Conclusion of the Detention Issues Section:

Protecting SIJS youth from detention and advocating for their release requires a multifaceted strategy that combines legal action, community involvement, and humanitarian advocacy. By employing robust legal defenses and fostering public support, attorneys can better safeguard the rights and well-being of these vulnerable young clients.

1. Understanding Expanded Expedited Removal

Expedited removal is a process allowing the Department of Homeland Security (DHS) to quickly remove certain noncitizens from the United States without a formal hearing before an immigration judge. Initially limited to individuals apprehended within 100 miles of the border and within 14 days of entry, expedited removal has since been expanded to apply to individuals anywhere in the U.S. who cannot demonstrate continuous physical presence for at least two years.

1. Impact on SIJS Clients:

• Vulnerability Due to Mobility: SIJS youth often relocate due to changes in guardianship, foster care placements, or school transfers, making them susceptible to expedited removal if they cannot prove continuous presence.
• Risk of Improper Classification: Law enforcement officers unfamiliar with SIJS protections may wrongfully classify SIJS clients as removable.

1. Identifying Risk Factors for SIJS Clients
2. Incomplete SIJS Applications:

• Youth whose SIJS petitions are pending or whose adjustment of status applications are still under review are particularly vulnerable.
• Example: An unaccompanied minor with a pending I-360 who relocates without notifying USCIS may lose communication about case status.

2. Prior Encounters with Law Enforcement:

• Even minor criminal infractions can trigger expedited removal proceedings if not properly resolved.
• Example: A juvenile cited for a minor offense may be detained without officers recognizing their SIJS eligibility.

3. Age-Out Concerns:

• If an SIJS client turns 21 before completing the adjustment of status process, they may lose protection, making them more susceptible to expedited removal.
• Attorneys must be proactive in motioning to expedite I-485 processing before the client ages out.

1. Preventive Measures to Mitigate Expedited Removal Risk
2. Proof of Lawful Status:

• Encourage clients to carry copies of:
  • SIJS approval notices (Form I-360).
  • Pending adjustment applications (Form I-485 receipt notice).
  • Identification documents (e.g., state ID, school ID).

Practice Tip:
Create a portable file for clients to carry at all times, including copies of legal documents, contact information for legal representatives, and a “Know Your Rights” card.

2. Educating Clients and Guardians:

• Conduct workshops to educate SIJS youth and their families about:
  • Document preservation: Keeping key documents accessible.
  • Interaction with Law Enforcement: Remaining calm, providing identification, and asserting their right to speak with an attorney.
  • Emergency Preparedness Plans: Including contact numbers for attorneys and advocates.

Resource Distribution:
Provide “Emergency Cards” that state:

• The client’s SIJS status.
• Attorney contact information.
• A brief statement asserting their legal rights.

3. Monitoring Case Status:

• Regularly check the status of SIJS and adjustment applications through the USCIS Case Status Online portal.
• Set up case alerts to monitor any updates or requests for evidence (RFEs).
• Use Form G-28 to ensure that the attorney of record receives all communication.

1. Responding to Unlawful Detention or Expedited Removal Orders
2. Immediate Actions:

• If detained, the client should:
  • Request to speak to an attorney.
  • Present proof of SIJS approval or pending status.
  • Avoid signing any documents without legal counsel.

Practice Tip:
Provide clients with a bilingual card that clearly states their SIJS status and their right to an attorney, reducing the risk of coerced statements or waivers.

2. Legal Recourse if Expedited Removal Is Initiated:

• File a motion to reopen if the expedited removal order is based on factual errors or the client’s lawful status was not considered.
• Submit Form I-246 (Application for Stay of Deportation or Removal) to halt immediate removal.
• If removal is imminent, file for humanitarian parole to bring the client back to the U.S. based on their vulnerable status.

1. Leveraging Legal Protections
2. Advocating for SIJS Exemptions from Expedited Removal:

• Argue that minors who have established SIJS eligibility should not be subject to expedited removal, as their status signifies the need for protection.
• Cite the Trafficking Victims Protection Reauthorization Act (TVPRA), which mandates that unaccompanied minors receive additional procedural safeguards.

2. Habeas Corpus Petitions:

• File a habeas petition if the client has been wrongfully detained under expedited removal procedures.
• Argue violations of:
  • Due Process: Especially if the client was not allowed to present evidence of SIJS.
  • Flores Settlement Agreement: If detained inappropriately or without due consideration of age and vulnerability.

Supporting Case:

• Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990): Establishes the right to counsel and protection from expedited removal for certain vulnerable groups.

1. Risk Mitigation in High-Risk Regions
2. Sanctuary Policies and State Protections:

• In states with sanctuary policies, collaborate with local advocacy groups to educate law enforcement about SIJS protections.
• Develop memoranda of understanding (MOUs) with local authorities to minimize ICE detentions of SIJS youth.

2. Coordinating with Non-Profit Organizations:

• Partner with groups like the Immigrant Legal Resource Center (ILRC) or Kids in Need of Defense (KIND) to develop rapid response strategies.
• Utilize pro bono legal networks to ensure quick action if a client faces detention or removal.

1. Public Advocacy and Policy Reform
2. Community Mobilization:

• Raise awareness among local immigrant communities about the unique protections afforded to SIJS youth.
• Advocate for policies that explicitly exclude SIJS recipients from expedited removal, highlighting their status as vulnerable minors.

2. Legislative Efforts:

• Support congressional efforts to codify SIJS protections against expedited removal.
• Advocate for clearer guidelines that instruct DHS officers on identifying and exempting SIJS youth during enforcement actions.

1. Case Example: Preventing Expedited Removal of an SIJS Youth

Case Overview:
An SIJS client named Maria, 19, was detained during a traffic stop. Despite holding an approved I-360, the local ICE officer initiated expedited removal due to alleged unlawful presence.

Legal Response:

1. Immediate Habeas Filing: Argued that Maria’s SIJS status exempts her from expedited removal.
2. Stay of Removal: Filed Form I-246 and demonstrated that removal would violate humanitarian principles.
3. Community Involvement: Partnered with local advocacy groups to mobilize public support, leading to ICE exercising prosecutorial discretion.

Outcome:
Maria was released after proving her approved SIJS status, and her adjustment of status proceeded without further detention.

Conclusion of the Risk Mitigation Section:

SIJS clients are uniquely vulnerable to expedited removal, particularly given the complexities surrounding their legal status and documentation. Attorneys must proactively equip these clients with the knowledge and tools to assert their rights and protect against sudden deportation. Through a combination of legal advocacy, community support, and strategic planning, it is possible to mitigate the risks associated with expanded expedited removal for SIJS recipients.

1. Conclusion 
2. Recap of Critical Strategies at Every Stage

Defending Special Immigrant Juvenile Status (SIJS) clients in removal proceedings requires a strategic, multifaceted approach, addressing challenges from the initiation of proceedings through post-removal order scenarios. This comprehensive guide has outlined practical strategies to advocate for SIJS clients effectively while safeguarding their rights.

1. Pre-Hearing Strategies:

• Pleading to the Notice to Appear (NTA):
  • Examine the validity of NTAs for jurisdictional defects, particularly under Pereira v. Sessions.
  • Challenge DHS’s burden of proof by contesting incomplete or defective NTAs.
• Challenging Evidence of Removability:
  • Contest the reliability of hearsay, coerced statements, and documents obtained unlawfully.
  • Use expert witnesses to counter government claims, particularly in cases involving disputed identity or criminal history.

2. Strategies After Removability is Established:

• Relief from Removal:
  • Prioritize adjustment of status under SIJS whenever possible.
  • Explore alternative forms of relief, including asylum, withholding of removal, and CAT protection, if applicable.
• Post-Removal Order Strategies:
  • File motions to reopen or reconsider when new evidence emerges or when the initial decision involved legal errors.
  • Appeal unfavorable rulings to the BIA, ensuring that objections and legal arguments are meticulously preserved on the record.

3. Addressing Detention Issues:

• Bond Hearings and Release Strategies:
  • Advocate for the least restrictive setting, particularly under the Flores Settlement Agreement.
  • Leverage ATD programs as alternatives to prolonged detention, emphasizing the youth’s vulnerability and low flight risk.

4. Risk Mitigation for Expedited Removal:

• Educating SIJS Clients and Families:
  • Equip youth with portable documentation and knowledge of their rights to reduce risks during law enforcement encounters.
• Legal Interventions:
  • File emergency motions for stays of removal and habeas petitions if wrongful detention or expedited removal occurs.

1. Emphasizing the Importance of Holistic Advocacy

SIJS clients, by virtue of their unique vulnerabilities, require advocacy that goes beyond legal defense. It is essential to adopt a holistic approach that includes:

• Psychosocial Support:
  • Engage with social workers, mental health professionals, and community organizations to support the youth’s overall well-being.
• Community Involvement:
  • Mobilize community support to create pressure for the client’s release, particularly when detention conditions are harmful or unjust.
• Policy Advocacy:
  • Push for legislative reforms that clearly exempt SIJS recipients from expedited removal and ensure that immigration enforcement officers are adequately trained on SIJS protections.

1. Preparing for Challenges in a Shifting Legal Landscape

Immigration law is constantly evolving, and changes in enforcement priorities can affect SIJS clients disproportionately. Attorneys should:

• Stay Informed:
  • Regularly update legal strategies based on new case law, BIA decisions, and shifts in DHS policies.
• Build Collaborative Networks:
  • Work with immigration law specialists, advocacy organizations, and local community leaders to stay ahead of legal developments and offer comprehensive support to clients.

 

Example of Adaptive Strategy:

When Matter of A-B-, 28 I&N Dec. 199 (AG 2021) limited asylum protections for victims of domestic violence, attorneys shifted their focus to emphasizing SIJS as a primary form of protection rather than relying on asylum claims. Similarly, when the Trump administration expanded expedited removal, advocates proactively educated SIJS recipients on how to protect themselves from abrupt enforcement actions.

1. The Role of Proactive Case Management

Given the long wait times for SIJS adjudication and adjustment of status, proactive case management is crucial. Attorneys should:

• Monitor Case Progress:
  • Regularly check the status of pending I-360 and I-485 applications, ensuring that any RFEs or delays are promptly addressed.
• Update Clients Continuously:
  • Keep clients and their guardians informed about their case status, potential risks, and upcoming court dates.
• Prepare for Age-Out Issues:
  • File motions to expedite SIJS or adjustment applications if the client is nearing the age of 21.

1. Preserving the Best Record for Appeal

When an IJ’s decision is unfavorable, preserving a robust appellate record is critical. This includes:

• Clear and Timely Objections:
  • Even when objections are overruled, make a record of the legal basis for the objection to strengthen potential appeals.
• Comprehensive Briefing:
  • On appeal, focus on procedural errors, misinterpretation of SIJS eligibility, and failure to properly weigh humanitarian factors.
• Staying Assertive Post-Order:
  • Even after an order of removal, pursue motions to reopen if new evidence becomes available or if there has been ineffective assistance of prior counsel.

1. Final Thoughts: Protecting the Most Vulnerable

SIJS clients are among the most vulnerable populations in removal proceedings due to their age, history of abuse, and precarious immigration status. Their cases require not only legal expertise but also a compassionate, client-centered approach that takes into account the trauma they have endured.

Call to Action:

Legal practitioners, community advocates, and policymakers must work collaboratively to:

• Enhance Awareness:
  • Educate law enforcement, immigration officers, and the judiciary about SIJS protections.
• Strengthen Legal Protections:
  • Advocate for clearer policies that explicitly shield SIJS recipients from expedited removal.
• Provide Holistic Support:
  • Address the social and psychological needs of SIJS youth, recognizing that their legal struggles are often intertwined with broader challenges.

By employing comprehensive defense strategies and advocating for systemic change, we can better protect SIJS clients from deportation and help them secure a safer, more stable future in the United States.

1. Moving Forward

As immigration enforcement policies continue to evolve, the defense of SIJS clients must adapt accordingly. Attorneys should remain vigilant in identifying legal trends, advocating for fair treatment, and building community networks that support these vulnerable youth. Ultimately, a dedicated and informed defense strategy can significantly reduce the risk of deportation and help SIJS clients thrive in the United States.