Stipulation Reached in Case for Abused, Abandoned or Neglected Immigrant Children | CLINIC

Stipulation Reached in Case for Abused, Abandoned or Neglected Immigrant Children

By Martin Gauto

On March 4, 2015, the Center for Human Rights and Constitutional Law (CHRCL) and Public Counsel (both based in Los Angeles) reached an important agreement with the DHS that allows certain applicants for Special Immigrant Juvenile Status (SIJS) and SIJS-based adjustment of status to request that the USCIS reopen their cases. Perez-Olano v. Holder, Case No. CV 05-3604 (C.D. Cal. 2005).  SIJS is an immigration benefit that allows children who have been the victims of abuse, abandonment or neglect to become lawful permanent residents.

Perez-Olano v. Holder was a class action lawsuit filed on behalf of immigrant children whose applications for SIJS or SIJS-based adjustment of status were denied because they either turned 21 or ceased to have a valid state court dependency order while their applications were pending.

This stipulation brings DHS into compliance with the 2010 settlement agreement reached in Perez-Olano v. Holder.  That 2010 settlement agreement created a crucial “age-out” exception that allows immigrant children found to be abused, abandoned or neglected to adjust their status to lawful permanent residence even when they turned 18 and aged out of a valid state court dependency order.  Having a valid state court dependency order is normally required.

DHS has not been consistently honoring this “age-out” provision of the Perez-Olano settlement agreement, and immigrant children were being denied adjustment of status solelybecause they turned 18 and no longer had a valid state court dependency order.

Under the terms of this new stipulation, DHS agrees to comply with the following policies:

  • USCIS will not deny, revoke, or terminate an immigrant child's application for SIJS or adjustment of status if, at the time of filing the application: (1) the minor is or was under 21 years of age, unmarried, and otherwise eligible for SIJS status, and (2) the minor is the subject of a valid state court dependency order or was the subject of a valid dependency order that was previously terminated based on age prior to the filing of the application for SIJS or SIJS-based adjustment of status.
  • Class members whose SIJS applications were previously wrongfully denied, revoked or terminated will not have to pay any additional fees for re-opening and re-adjudication of their previously denied applications.
  • Upon reopening these cases, USCIS will approve those applications for SIJS classification or SIJS-based adjustment of status that are approvable on the basis of the existing record: that is, without the class members' submitting further evidence or information. If the reopened applications are not approvable on the basis of the existing record, USCIS must notify applicants that their applications have been reopened and request such additional evidence or information as the agency deems necessary.
  • USCIS will forward notice of the agreement to its list of community-based organizations and stakeholders. USCIS must distribute the agreement and a policy memorandum to DHS officers, agents and employees who adjudicate applications for SIJS classification or SIJS-based adjustment of status, and instruct them to adjudicate pending and future applications for SIJS classification and SIJS-based adjustment of status in accordance with the agreement.

These policies apply to denied SIJS petitions or SIJS-based applications for adjustment of status that were filed on or after May 13, 2005.  Applicants or their lawyers have until June 15, 2018, to request that USCIS reopen the case.