Final Approval of Settlement Affecting Gang Allegations Against Unaccompanied Minors
The U.S. District Court for the Northern District of California recently granted final approval of a class-wide settlement in Saravia v. Barr, No. 17–cv–03615–VC (N.D. Cal. Jan. 19, 2021). The settlement sets forth policies and procedures that the Department of Homeland Security, or DHS, the Office of Refugee Resettlement, or ORR, and the Executive Office for Immigration Review, or EOIR, must follow when it seeks to re-arrest class members based on gang allegations, and it requires that the government provide such class members with hearings after their re-arrest.
The ACLU Foundation of Northern California filed suit in 2017 alleging that ORR was re-arresting unaccompanied children and placing them in secure facilities based on unsubstantiated allegations of gang affiliation made by Immigration and Customs Enforcement, or ICE. The children on whose behalf the suit was filed were re-arrested after having been released from ORR custody to their parents. The children were moved to secure facilities far from their families’ homes and were transported without notice to their parents or attorneys. In addition, they were not given the opportunity to challenge the allegations made against them.
The district court granted the plaintiffs’ motion for class certification and a preliminary injunction in November 2017. The court ordered the government to provide each of the detained children with a hearing within seven days of their arrest. Over 35 children were granted “Saravia” hearings under this order and over 30 of them were released because the government was not able to provide sufficient justification for their detention. The preliminary injunction was upheld by the U.S. Court of Appeals for the Ninth Circuit in October 2018. The plaintiffs’ motion for preliminary approval of a proposed class settlement was granted on Oct. 16, 2020.
The final settlement also includes provisions for a subclass of Saravia class members who applied for Special Immigrant Juvenile Status, or SIJS, asylum, U-visas, and T-visas (or related adjustment applications) before the age of 21 but were denied such benefits based on gang allegations. The settlement includes new procedures that U.S. Citizenship and Immigration Services, or USCIS, must follow when adjudicating the applications of subclass members. For subclass members whose applications have already been denied based on gang allegations, the settlement would require USCIS to re-adjudicate those applications under the new procedures. The government will send final notices of the settlement to class members and minors potentially affected by the settlement. Full copies of the settlement are available here.
In addition, the final settlement prompted USCIS to issue new guidance on SIJS in the USCIS Policy Manual on March 18, 2021. The new guidance relates to both USCIS’s consent function in the SIJS adjudication process and its ability to revoke an approved SIJS petition. USCIS consents to a person’s SIJS classification when it reviews the required juvenile court order and other supporting evidence and determines that the petition for SIJS is bona fide. The guidance states that:
- USCIS will not withhold its consent in a request for SIJS classification based in whole or in part on the fact that the state court did not consider or sufficiently consider evidence of the petitioner’s gang affiliation when deciding whether to issue an SIJS predicate order or in making its determination that it was not in the best interest of the child to return to his or her home country
- USCIS will not use its consent authority to reweigh the evidence that the juvenile court considered when it issued the predicate order
- USCIS will not revoke a petition for SIJS classification based in whole or in part on the fact that the state court’s best interest determination was not made with consideration of the petitioner’s gang affiliation. See Volume 6: Immigrants, Part J, Special Immigrant Juveniles [6 USCIS-PM J].
This new guidance provides needed protections to youth seeking SIJS and is an important step toward implementing the Saravia settlement agreement.