Noncitizen Minors in Removal Proceedings: Defenses to Consider
Strategies for young noncitizens facing immigration court proceedings.
When a person under age 18 is placed into removal proceedings by Immigration and Customs Enforcement (ICE), he or she can typically apply for any form of deportation relief for which he or she is eligible. A list of the most common defenses is found at “Possible Defenses to Deportation of an Undocumented Alien.” While all the defenses that are available to adults are also available to minors in removal proceedings, this article will discuss a few additional defenses that may be available to minors.
Minors May Be Eligible for Special Immigrant Juvenile Status
A legal remedy called "special Immigrant Juvenile Status (SIJS)" may be granted to minors who have been legally committed to either the U.S. Department of Health and Human Services or a state agency or department (such as the department of social services or child services department) or have been declared court dependents by a U.S. State’s juvenile or family court.
In order to qualify for SIJS, the state court must find and enter an official order that it is not in the child’s best interest to return to his or her home country and that the child cannot be reunited with a parent because of abuse, abandonment, neglect, or a related reason under state law.
Once the state court enters the order, the child will need to file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant with U.S. Citizenship and Immigration Services (USCIS). In order to file this application, the applicant must be under age 21 and unmarried. If approved, the child can then apply for permanent residence (also known as a “green card”).
In order to adjust to permanent resident, the child must also establish that he or she is admissible to the United States. For more on the inadmissibility grounds that many immigrants face when applying for a green card, see “Inadmissibility: When the U.S. Can Keep You Out.” Certain inadmissibility grounds do not apply to green card applicants who have SIJS, such as those who entered the U.S. without inspection, overstayed a visa, do not have a passport, or who are likely to need welfare or other public benefits. In addition, most other disqualifying grounds may be waived by filing Form I-601, Application for Waiver of Grounds of Inadmissibility. Consult an experienced immigration attorney to help navigate this complicated process.
Typically, the Immigration Judge will continue (or postpone) the removal proceedings until USCIS has made a decision on the I-360 SIJS application. Once USCIS has approved the I-360 petition, the applicant can request the termination of removal proceedings and apply for a green card with USCIS, or adjust status in court before the Immigration Judge. Most Immigration Courts are very backlogged, meaning it takes a very long time to be scheduled for a final hearing. Adjusting status before USCIS is typically the quickest way for the child to complete the case and receive lawful permanent residency.
Deferred Action for Childhood Arrivals
A relatively recent form of relief is what’s known as Deferred Action for Childhood Arrivals (DACA). DACA was designed to allow young immigrant noncitizens who were brought to theU.S.as minors to apply for temporary permission to live and work in the United States. As of early 2013, DACA is granted for a two-year period, which can later be renewed. To learn more about which minors are eligible for DACA, see “Who Qualifies for Deferred Action as an Immigrant Student or Graduate.”
If you have never been in removal proceedings, you must be at least 15 years old to apply for DACA. However, if you are currently in removal proceedings (or have a final order of removal or a voluntary departure order), there is no minimum age requirement to qualify for DACA. You can submit Form I-821D, Consideration of Deferred Action for Childhood Arrivals, and Form I-765, Application for Employment Authorization to apply for this form of relief.
If your DACA application is approved, you can ask the Immigration Judge to administratively close your proceedings. This means that your case will be taken off the active docket and you will not face removal hearings until your DACA status expires and your case is “recalendared.”
Minors May Request Prosecutorial Discretion
Minors who are not eligible for DACA may be eligible for prosecutorial discretion. Typically, this remedy means that ICE will agree to administratively close a case that it considers low priority. Prosecutorial discretion is not an official immigration status and does not in and of itself lead to employment authorization or lawful permanent residency.
Factors that ICE considers when deciding whether or not to exercise prosecutorial discretion include the person's: length of time in the U.S., age, family ties in the U.S., education in the U.S., and humanitarian considerations. Factors that can weigh against an individual include criminal records and egregious violations of immigration law.
For further information on prosecutorial discretion, see “Which Undocumented Persons Are Helped by Prosecutorial Discretion.”
Special Procedures for Unaccompanied Minors Applying for Asylum
Unaccompanied minors in removal proceedings are eligible for special procedures when applying for asylum. For a detailed discussion on this, please see “Special Procedures for Minors in Removal Proceedings.”