Immigration and Customs Enforcement (“ICE”) has the power to deport, but it also has the power to issue bonds and parole immigrants into the United States. Many guidelines have been made regarding ICE’s power of “prosecutorial discretion,” indicating which humanitarian considerations should be taken into account, and how. Minors are one consideration, but there are no guidelines for children eligible for special immigrant juvenile status (“SIJS”). The consequences are devastating.
Juveniles under the age of 18 are taken into the custody of the Office of Refugee Resettlement and released to an adult caregiver, but juveniles between the age of 18 and 21 are treated like adults– like criminals in adult detention facilities.
Under the federal regulations defining SIJS, the U.S. government considers anyone under the age of 21 to be a child. In many States, individuals under the age of 21 are considered minors, and can be placed in the care of an adult who makes medical, educational, and legal decisions on their behalf.
Minors under the age of 21 who have been abandoned, neglected or abused by either one or both parents are classified as “special immigrant juveniles” and they are eligible for their green card. But what happens when they come into the U.S. and are detained by DHS near the border? Quite simply, ICE deports these abandoned, abused, and neglected children. The lack of a specific and comprehensive prosecutorial discretion policy for these juveniles is inexcusable.
Let us look at the examples of two of our clients, who are currently at immediate risk of being deported because of ICE’s inhumane actions. Let us call them “Ana” and “Jose” to protect their confidentiality.
Ana’s story. Ana is a 19-year old citizen of El Salvador, who was abandoned by both parents when she was only one year old. She was raised her whole life by her grandmother, who does not work and depends entirely on the charity of family members in the United States. Her grandfather was killed when she was two years old, right next door to her.
Recently, Ana witnessed a man being killed in front of their home. Because she was a crime witness, gang members told her that she had to join them, or she would be killed because of what she witnessed. One day a man attempted to rape her. Because of Ana’s terrifying situation and lack of support, she fled El Salvador for the safety of our shores.
Because she has no parents, she was left even more vulnerable to the threats of gang members. She had no adult to protect her, or to give her guidance in the greatest time of need in her life.
Because of erroneous decisions by the asylum office and an immigration judge, her credible fear interview to determine whether she would be able to apply for asylum was denied.
But this should not matter. She should never have had to been detained for weeks to wait for an asylum interview. She should have been paroled immediately into the United States to be able to pursue her green card through special immigrant juvenile status.
On November 15, 2013, I filed an Application for a Stay of her Removal with the San Francisco Enforcement and Removal (“ERO”) Field Office, because Ana is an abandoned and neglected child who is eligible for her green card based on special immigrant juvenile status. Ana’s deportation officer told her that her deportation is scheduled for this Saturday.
Jose’s story. Jose is a 18-year old citizen of El Salvador. Growing up, he was abused by his violent and alcoholic father. His father beat him and his mother for years, severely, and always came home intoxicated. His home life was torturous.
Recently, members of the biggest gang in El Salvador, MS-13, tried to recruit Jose into their gang. Jose refused, telling them that he was dedicated to good things and to God’s work, and he did not like doing bad things to good people. As a result, three gang members beat him with their hands and feet, took him by the neck, and tried to strangle him. The gangs did not finish what they started because a witness drove by and they did not want to be caught.
Jose went to the doctor to treat the bruises all over his body. He stopped going to school and did not leave his house for days, until he escaped El Salvador.
However, when he came to the United States, he did not pass his credible fear interview because the asylum officer did not believe that the government of El Salvador would acquiesce to his torture–despite the government’s well-documented connections with MS-13 and the U.S. government’s recognition of MS-13 as an “international criminal organization.” An Immigration Judge erroneously affirmed the asylum officer’s decision by in essence requiring Jose to meet the burden of proof for a full-blown asylum hearing.
On November 14, 2013, we filed an Application for a Stay of Removal for Jose at the San Antonio Field Office, because he is eligible for special immigrant juvenile status if he is released. There has not yet been a decision on his application, and he is at immediate risk of deportation just like Ana.
Congress made SIJS into law in order to protect young persons such as Jose and Ana. Congress also made the SIJS law to empower them, to give them a chance to become Americans despite having broken immigration laws in the past.
How does it go? “Give us your tired, your poor, your huddled masses, but deport your abused, abandoned, and neglected children?” No, there is something fundamentally wrong with this. This is an urgent message to ICE: Please, don’t deport our abused and abandoned juveniles.
There should be a specific screening and prosecutorial discretion policy for individuals under the age of 21 to determine if there is a possibility they could obtain lawful permanent residency through SIJS. If there is a positive screening decision, the individual should be paroled into the U.S. for the opportunity to pursue SIJS.