Perez-Olano v. DHS Settlement

In May 2005, the Center for Human Right & Constitutional Law and the Los Angeles Center for Law and Justice initiated a nationwide class action challenging certain policies and practices of the Department of Homeland Security, and its subordinate agencies, U.S. Citizenship and Immigration Services (CIS) and U.S. Immigration and Customs Enforcement (ICE), that placed unlawful requirements blocking youth from seeking or obtaining lawful residence as SIJs. These policies blocked nearly 90 percent of youth in federal custody from accessing SIJ benefits.

On May 4, 2010, the Government agreed to settle the lawsuit, and on December 15, 2010, the United States District Court for the Central District of California gave its final approval to the settlement pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.

The settlement protects a class of immigrant youth defined as follows: “[A]liens, including, but not limited to, SIJ applicants, who, on or after May 13, 2005, apply or applied for SIJ status or SIJ-based adjustment of status based upon their alleged SIJ eligibility.”

The settlement confers rights on three sub-groups of actual or potential SIJ applicants:

1)            Youth required to obtain “specific consent” to invoke the jurisdiction of a state juvenile court.

The settlement provides that the federal government shall not require a youth in federal custody by reason of his or her immigration status to seek or obtain specific consent to a state court’s exercising jurisdiction over such minor except where the state court exercises jurisdiction to determine his or her custody status or placement.

The settlement further prescribes procedures the Department of Health and Human Services will follow in deciding requests for specific consent in those cases where such consent may still be required.

2)            Youth “aging-out” of SIJ eligibility.

Federal regulations provide that a SIJ must remain under 21, dependent upon a state juvenile court, and eligible for long-term foster care at the time CIS grants him or her lawful permanent residence.

Under the Settlement CIS may not deny SIJ applications or revoke SIJ classification on account of age, dependency status, or ineligibility for long-term foster care so long the applicant files for SIJ classification while he or she is still either a dependent of a juvenile court or under 21 years of age.

The settlement confers benefits retroactively to persons whose SIJ applications CIS denied on or after May 13, 2005, on the ground they were no longer dependent on state juvenile courts or eligible for long-term foster care. The Settlement provides that CIS will re-open their SIJ applications and adjudicate their eligibility for SIJ benefits under the same standards the agreement prescribes for future SIJ applicants.

3)            Youth ordered removed and denied adjudication of eligibility for SIJ-based adjustment of status.

Under current regulations, youth in removal proceedings who are classified as SIJs must apply to an immigration judge to adjust their status to that of a lawful permanent resident. Persons classified as SIJs more than 90 days after being ordered removed are barred from asking that their removal hearings be reopened—and thus receiving an adjudication of their eligibility for lawful permanent residence—unless ICE joins in moving to reopen.

Under the settlement ICE must join motions to reopen removal proceedings filed by youth granted SIJ status even if they have been under final order of removal for 90 days or more, provided only that such youth are prima facie eligible to adjust their status to that of a lawful permanent resident.