“Any Day They Could Deport Me”: Immigrant Children in Legal Purgatory

“We’ve all come looking for the American dream, right?” asks 14-year-old Stefany—one of 44,000 child immigrants trapped in the Special Immigrant Juvenile Status backlog.

As the House of Representatives passed the historic Build Back Better Act with protections from deportation for millions of undocumented immigrants, immigrant children are noticeably left behind. The bill would create a parole program and the ability to seek work permits for immigrants who have lived in the United States for a decade or more, but unprotected are the many immigrant children who have arrived within the last 10 years.

One such child is Fernando, a New York foster youth, who worries about aging out of care with no protection from deportation, no way to legally work and no ability to support himself. Although he has been granted Special Immigrant Juvenile Status (SIJS), a humanitarian immigration protection Congress created for children in 1990, he is stuck in a legal limbo. Because of how Congress wrote the law, children approved for SIJS from El Salvador, Guatemala, Honduras and Mexico face a growing backlog, waiting years to start the process of applying for a green card.

There are more than 44,000 child immigrants like Fernando trapped in the SIJS backlog. This is twice as many children as prior estimates of the size of the backlog, because U.S. Citizenship and Immigration Services (USCIS) would not release data about SIJS applications until we sued under the Freedom of Information Act.

On Dec. 2, 2021, we published a report, “‘Any Day They Could Deport Me’: Over 44,000 Immigrant Children Trapped in the SIJS Backlog,” based on this newly released data and firsthand interviews of impacted children, quantifying the harms of the SIJS backlog and calling on Congress and the Biden administration to protect these children.

As immigration lawyers who represent children, we have long been troubled by the devastating impact of the SIJS backlog. Congress created SIJS in 1990 as a pathway to permanency and safety for children who have been abused, abandoned and neglected. One of the drafters of the law was even a child welfare worker, which might be why the law requires a state court decision that it is in “the best interests” of the child to stay in the U.S.

Yet, tens of thousands of vulnerable children granted SIJS are prevented for years from accessing SIJS’s real benefit: lawful permanent residence. This is because SIJS children are treated as “special workers” in the green card visa system, which is bound by country-specific limits on the number of visas available.

When granted SIJS, my clients ask: What does this mean for my life? Can I work legally?(No) Am I safe from deportation?(No) Can I get financial aid for college?(No). The backlog strips SIJS of its intent, stability and permanency for youth. Let’s #EndSIJSBacklog! @EndSIJSBacklog https://t.co/U62Kle1noJ

— Rachel Davidson (@rayraydson) May 21, 2021

The SIJS backlog began in 2016, when USCIS started barring SIJS children from Honduras, El Salvador, Guatemala, Mexico and India from immediately applying for green cards. Each month, wait times vary depending on the vagaries of larger immigration trends. Today, children from India are no longer subject to the backlog, but we found that children from El Salvador, Honduras and Guatemala must wait an average of four years to receive green cards after first applying for SIJS.

This four-year wait can wreak havoc on a child’s life. We’ve learned this through interviews of impacted youth conducted by youth leaders of the End SIJS Backlog coalition, a group of child advocates pushing Congress members and the administration to act on this issue. Children in the SIJS backlog are forced to make difficult decisions to survive, dropping out of school, working for exploitative employers and struggling with hunger and homelessness. Some children have even been deported as they waited.

All of this has real mental health consequences. Chris, who came to the U.S. at age 16 fleeing abuse and is currently in the SIJS backlog, worries daily about deportation, saying he doesn’t feel safe leaving home.

Children from El Salvador, Honduras and Guatemala must wait an average of four years to receive green cards after first applying for Special Immigrant Juvenile Status. … [They] are forced to make difficult decisions to survive.

And it’s no wonder that SIJS children are scared. Using USCIS data, our report documents how the years long wait may subject children to all manner of harmful political whims. Our report details one such disturbing trend during the Trump administration: Children seeking SIJS faced a steep rise receiving a “Notice of Intent to Deny,” a formal USCIS letter which might proceed a denial of an immigration application, increasing eight-fold from 2016 to 2018 (from 2 percent of all SIJS applications to 16 percent).

At the same time, USCIS began increasingly forcing child applicants to send in additional information, growing from only 2 percent of 2016 SIJS applicants receiving a formal “Request for Evidence” to more than one-third of 2018 SIJS cases. These RFEs and NOIDs were the precursor to the carte-blanche denial under Trump of SIJS petitions for certain children who were over 18 when they started SIJS process.

The SIJS backlog defies logic. Putting children in a legal purgatory for years, vulnerable to deportation, potential exploitation and instability is contrary to SIJS’s purpose of protecting vulnerable children. Congress has the power to end the backlog now by amending immigration laws to exempt SIJS children from the per-county and world-wide employment-based visa limitations. This would bring SIJS in line with other humanitarian classes of immigrants, like asylees.

As Congress and the Biden administration push for immigration protections, SIJS children have been left out. Stephany, who came to the U.S. at age 14 and spent years in the SIJS backlog, told us her message for members of Congress about the backlog: “I would tell them that they shouldn’t take their time because in the end these are the dreams of human beings and in the end we are all the same. … We’ve all come looking for the American dream, right?”

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