Lowenstein Sandler has filed a friend-of-the-court (amicus) brief in the U.S. District Court for the Eastern District of Virginia in the case of Joshua M. v. Barr. The brief challenges the federal government’s unlawful attempt to deport a youth holding Special Immigrant Juvenile Status (SIJS) as contrary to the law that created SIJS and a violation of the constitutional right to due process. The brief was submitted on behalf of eight nonprofit organizations that are at the forefront of legal and policy advocacy for immigrant children.

At stake in this case are substantial constitutional and statutory rights and the safety, not only of Joshua, but of thousands of other young people who hold SIJS and seek to reside in this country lawfully and permanently.

SIJS establishes protection, and a pathway to permanent residency, for a specific subset of at-risk immigrant children. That subset includes juveniles, like Joshua, who have been abused, neglected, or abandoned by one or both parents and for whom return to their home country would be contrary to their best interests. 

As for Joshua, he was abandoned by both of his parents and left to fend for himself in Honduras at 15 years old. At age 16, Joshua fled Honduras to escape a gang who physically attacked and permanently injured him. Based on evidence establishing these facts, a New York Family Court placed Joshua under the guardianship of his uncle; made findings of abuse, neglect, and abandonment against his parents; and found that it would not be in his best interest to return to Honduras. 

Joshua then applied for and received SIJS from U.S. Citizenship and Immigration Services (USCIS) because he met the necessary criteria for such protection: he had clearly experienced parental neglect, abuse, and abandonment, and returning to his home country would expose him to serious danger. He intends to apply for a green card to become a Lawful Permanent Resident (LPR) once the requisite visa becomes available.

SIJS confers critical benefits on those who hold it, including exemption from deportation on certain common grounds. Nevertheless, the federal government seeks to remove Joshua while he waits for the visa he needs before he can apply for LPR status. A backlog of visa applications means that thousands of young people must wait for years to receive their visas and apply for permanent residency. SIJS was designed to protect highly vulnerable individuals in this situation.

The amicus brief asserts that the government is acting unlawfully and in violation of due process by seeking to remove Joshua while he pursues an appeal of his removal order and awaits his visa so that he may apply to become an LPR.

By acting to deport Joshua, the government contravenes the purpose of the SIJS statute–to safeguard immigrant children who lack parental protection–and violates the federal law that explicitly exempts them from removal on the very ground the government asserts in Joshua’s case (that he entered the United States without inspection at a checkpoint). SIJS was designed to provide a pathway to permanent residency for juveniles like Joshua. But this status is worthless if these juveniles are subject to removal from the United States while awaiting the opportunity to apply for green cards, as Congress never intended a Special Immigrant Juvenile to be subject to removal simply because no visa is immediately available.

As importantly, the law requires the government to follow specific procedures before revoking SIJS, including giving the juvenile notice and an opportunity to object. Bypassing these procedures, the government plans to remove Joshua despite his status as a Special Immigrant Juvenile and without due process of law.

Finally, the brief notes that the government’s policy poses a fundamental threat to the status of thousands of other Special Immigrant Juveniles across the country, regardless of the protections Congress has enacted for their benefit. The government reports that 45,483 children have been granted SIJS since 2016, including a significant number from countries like Guatemala, El Salvador, and Honduras, where there is a several-years-long backlog in available visas. If the government were to prevail in Joshua’s case, his and their lives and well-being would be at serious risk–the very thing SIJS was meant to prevent.

The firm, through the Lowenstein Center for the Public Interest, filed on behalf of the following amici organizations:

  • Immigrant Justice Corps
  • Kids in Need of Defense (KIND)
  • Lawyers’ Committee for Civil Rights of the San Francisco Bay Area
  • New Jersey Consortium for Immigrant Children
  • Northwest Immigrant Rights Project
  • Political Asylum/Immigration Representation Project (PAIR)
  • Public Counsel
  • Young Center for Immigrant Children’s Rights

The Lowenstein team includes Catherine Weiss, Joseph A. Fischetti, and Jennifer A. Randolph.

A copy of the brief is available at this link.