Happenings

I don’t have time to write this. Immigration lawyers like me around the country don’t have time. For those of us representing immigrant families who have arrived in the US in the last 8 to 10 years seeking asylum from violence and persecution, with those families still fighting their cases in immigration court, what we have is an obligation to keep families here at all costs and prevent deportation.

​On April 3, 2022, the Department of Homeland Security (DHS) published guidance to the attorneys representing DHS. The guidance instructs DHS attorneys to use Prosecutorial Discretion to dismiss thousands of cases, mostly asylum cases, in immigration court, prioritizing for dismissal immigrants who crossed the border before November 1, 2020, and who are not a threat to national security or public safety.

The Biden Administration wants to decrease the “backlog” of cases to make room in the system for people who may enter in the next few months. The American Immigration Lawyers Association recently estimated that there are about 700,000 low or non-priority cases in the current immigration court “backlog.”

Sounds good on the face of it, but the devil is in the details. Here’s the problem – the Biden administration has decided that it is better to dismiss or terminate the low priority cases and leave immigrants in the US WITHOUT work permits or social security numbers. In other words, they will stay here, but become part of the underground economy.

People who have had work permits for 6-8 years while they wait for a decision in their asylum or other immigration court case will lose work permits. When an immigrant loses their work permit, they also lose access to a driver’s license, their ability to pay taxes, register their children for college and complete the FAFSA for student loan eligibility. They will be vulnerable to unscrupulous employers, consumer fraud, and criminals who see them as defenseless without “papers.”

What makes this decision to take away work permits even more unconscionable is that there is a ready-made solution that worked just fine during the Obama Administration. It is called Administrative Closure.

An immigrant whose case is administratively closed continues to have their case in the immigration court, but with no future hearing date. The case is removed from the court’s active workload. The TRAC research center of Syracuse University calculated 69,355 immigration court cases closed using Administrative Closure as a form of Prosecutorial Discretion between 2012 and 2017. To no one’s surprise, the program ended with the Trump Administration.

In December 2021, DHS Secretary Alejandro Mayorkas stated that he did not favor Administrative Closure. He wanted cases dismissed outright so that they would be permanently off the court’s docket. Mayorkas has no authority over the immigration courts; they are part of the Department of Justice. DHS does have to maintain and store the files for Administratively Closed cases, but it is hard to imagine this creates any significant hardship.

So, when DHS’s Principal Legal Advisor (OPLA) Chief Kerry Doyle published guidance strongly favoring dismissal instead of Administrative Closure, she was following her boss’s lead. In an engagement webinar with immigration attorneys on April 5, 2022, she commented that the problem of work permits is “not in our lane.”

Apparently, the top priority for President Biden’s DHS team is to close cases at all costs. The Biden administration seems more concerned about counting beans, decreasing the official “backlog” of 700,000 cases, than the real cost in human terms.

It would have been easy for the Biden administration to explain to press outlets and the public that administratively closed cases do not count as part of the immigration court “backlog” since they are not active cases. It would have been easy to avoid telling immigrants they must hide in the shadows again and can’t renew a work permit or have a social security number.

Now, the Biden administration wants me to be a part of their “solution.” They want me to encourage my clients not to object when the government asks to dismiss the case (DHS retains the right to dismiss cases even against the request of the immigrant, and it may come to that).

Now, I must explain the pros and cons of dismissal to my clients, or at least try to explain. Dismissal will save them from the immediate threat of deportation, but it does not grant them any status. They will lose their work permits and go into the shadows with the other approximately 11 million undocumented immigrants in the US. It will be hard for them to see this as anything other than a significant step backwards.

Welcome to America.

Justin Mixon is an immigration and family law attorney in Jenkintown, PA. ​

by Ian Garvin

Congratulations to our client Carlos on becoming a Legal Permanent Resident or LPR! This is the legal term for someone with a green card. We are so proud of Carlos and the patience, resilience, and hard work that have gotten him to this point. Carlos's case was truly a labor of love that encompassed multiple nonprofit organizations, lawyers, social workers, and the ongoing support of friends and family in order to get to this point.

Carlos arrived in the US in 2016 as an unaccompanied child, fleeing danger in his home country of Honduras. Carlos was processed through the immigration system as an unaccompanied minor and sent to a youth shelter run by the Office of Refugee Resettlement, before being released to live with a relative in Philadelphia, where he would pursue his immigration case. Our Executive Director Rachel Rutter began representing Carlos in late 2016 through the Immigrant Youth Advocacy Project at HIAS Pennsylvania.

Carlos qualified for a special type of humanitarian immigration status called Special Immigrant Juvenile Status or SIJS -- but there was a catch. Carlos was just weeks away from turning 18 and permanently aging out of this special immigration option for youth. In order to qualify for SIJS, Carlos would need a family court order (like a custody or dependency order) making certain special findings before he turned 18. Thankfully, Jean Strout, a wonderful and accomplished attorney and youth advocate from the Support Center for Child Advocates, stepped up to help Carlos get the court order he needed just in the nick of time. Through SCCA, Carlos also had the support of a social worker, who helped him enroll in school, obtain medical care, and more. 

Thanks to Jean's hard work obtaining that court order, Carlos was able to apply for SIJS in March 2017. The SIJS process takes years to complete. After applying, the government often requests more evidence. In Carlos's case, the government requested more evidence and even issued a Notice of Intent to Deny (NOID) the case, even though Carlos had a strong SIJS case. Ultimately, however, Carlos was able to fight the NOID, and his SIJS case was finally approved in December 2018 -- nearly two years after he applied! ​

However, Carlos's wait did not end there. After a child has approved SIJS, they still do not have any lawful immigration status, as confusing as that may sound. Rather, all that an approved SIJS gives the child is the opportunity to apply for a green card down the road, when it is finally their turn to apply. Whose turn it is to apply is determined through a confusing system called the USCIS visa bulletin.

There is a long backlog of SIJS cases for Central American children, meaning that many kids wait as long as three or four years just to apply for their green card after obtaining SIJS. In the meantime, SIJS kids are stuck in limbo, undocumented, and do not have the ability to work legally or obtain a social security number. 

Project Libertad has had clients in this situation turn 18 before obtaining their green card and end up being detained by ICE in spite of their approved SIJS. In some areas of the US, it is common for immigration judges to order deportation for these children with approved SIJS, simply because a green card is not yet available for them. It is unconscionable that our inefficient and inhumane immigration system allows this to happen. 

When Rachel left HIAS PA to launch the Immigrant Children's Defense Project at Project Libertad in February 2020,  she brought Carlos's case with her. Carlos remained in SIJS purgatory. While Carlos awaited his turn to apply for his green card, he dealt patiently and graciously with the various struggles he faced as a result of the SIJS limbo. In October 2020 -- four years after his arrival in the United States -- his turn came, and Carlos applied for his green card. Finally, in August 2021, Carlos's green card was approved! 

Thank you, Carlos, for the honor of representing you and watching you handle all of the challenges with grace as you grew from a teenager to a hard-working, caring, and compassionate adult. We can't wait to see what the future holds for you! ​

The brutal police killing of 13-year-old Adam Toledo in Chicago has us reflecting on how much more likely our students are to experience violence than their US Citizen peers, simply because of where they were born and the color of their skin.
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Immigrant children are much more likely to experience school violence than their non-immigrant peers (Peguero 2008). Newcomers in particular face a heightened risk: first-generation immigrant students are the most likely of all students to feel unsafe at school (Peguero 2008). One study found that immigrant students are “significantly more likely to experience one or more forms of bullying than their U.S.-born counterparts, even after controlling for a number of demographic variables” (Maynard 2016). That same study found that immigrant students are more likely to report being bullied based on “racial/ethnic differences” than their non-immigrant peers (Maynard 2016). Specifically, immigrant children are more likely to report instances of being “kicked, hit, or pushed,” “bullied due to race,” “bullied due to religion,” “bullied by computer/email,” and “bullied by cell phone,” when compared to US-born children (Terzis 2018). 

The experiences of students who participate Project Libertad’s newcomer after-school programs demonstrate how this anti-immigrant dynamic plays out as school violence locally. Project Libertad’s students, some as young as fifth grade, report physical violence, threats, and intimidation perpetrated against them by other youth because of their race and immigration status. Project Libertad students also report discrimination based on language. Spanish-speaking students report other students bullying them with comments like, “This is America, so speak English!” or “Build the wall!” Both teachers and students report “fight clubs,” in which large groups of students bully and physically attack other vulnerable students.

The violence doesn’t end with bullying —  Immigrant youth are more likely to face violence and discrimination from police, School Resource Officers (“SROs”), and school security guards than their US-born peers. School security staff may unfairly discriminate against newcomer students due to cultural differences and implicit racial biases. 

Meant to protect the campus from potential threats, SROs are not supposed to be involved in disciplining students unless an incident rises to the level of a criminal matter (ILRC 2018). However, schools with SROs are likely to have a greater level of law enforcement involvement and arrests of students than schools without SROs (ILRC 2018). Students in policed schools are criminalized for behaviors that may annoy adults but are a typical part of adolescent development; this dynamic can mean that a perceived school rule violation ends up being treated as a crime (ACLU 2017). 

SROs and security guards lack proper training regarding the unique challenges and cultural backgrounds of newcomer students (ACLU 2017). There is no uniform training for SROs on how to work with youth and de-escalate school disruptions. Nor is there specialized training for working with immigrant youth, who face unique challenges (ACLU 2017). For example, newcomer students often have extensive trauma histories and frequently come from countries where the police are corrupt and untrustworthy, leading them to distrust SROs and school security guards. Prior trauma may lead students to act out disruptively, and a punitive response may escalate the situation further. It is common for trauma victims to experience more difficulty in punitive settings. SROs and security guards who do not understand the cultural and trauma histories of newcomer students may unfairly criminalize or stereotype them. Additionally, newcomer students may fear interacting with security staff, even when they themselves are victims of school violence. These conditions further marginalize vulnerable children, leading to even more violence against them.

Racial bias also frames these interactions between police, security staff, and immigrant students. Students of color are more likely to be viewed by SROs and guards as acting criminally and more likely to be charged and arrested than their white peers (ACLU 2017). Consistently, there is no evidence that racial disparities in discipline are the consequence of “differences in rates or types of misbehavior” by students of color and white students (ACLU 2017). Ultimately, SROs and security guards may be more likely to see criminal conduct in what others might consider normal teenage or adolescent behavior, and they are more likely to unjustly criminalize the actions of immigrant youth based on implicit racial biases. 
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Furthermore, as the Trump administration placed an increased emphasis on deporting alleged gang members or associates, new concerns about SROs and their relationship with local law enforcement arose with respect to surveillance of students and information sharing around gang investigations. For example, newcomer students may be wrongfully accused of gang affiliation because of their race, who they talk to at school, or even because of the clothing they wear (ILRC 2018). This unfair stereotyping and criminalization further marginalizes immigrant children and leads to even more violence against them, because they are unable to trust school security staff with their concerns about school violence.

The result of all this is an intensifying criminalization of immigrant students, which can have far-reaching consequences for immigrant youth. When SROs get involved in school discipline, youth may end up being arrested or charged for behavior that otherwise would have been handled by school staff. Even a simple arrest can negatively impact an immigrant child: the arrest will become part of the youth’s record whether or not they are ultimately charged. If the youth is charged in delinquency or criminal proceedings and is adjudicated or convicted of an offense, this will negatively impact their ability to apply for immigration status, and may even completely bar them from obtaining immigration status or cause them to lose their current legal status and be deported. Thus, what may have started out as self-defense or as a minor incident in school (or no incident at all), may lead to dire consequences for immigrant youth, even though it could have been handled without the involvement of law enforcement (ILRC 2018). This risk of deportation makes immigrant students even less likely to report instances of school violence and will lead to even more school violence as a result. 

In its worst iterations, this phenomenon of police criminalizing youth of color leads to physical violence against students, as documented by the ACLU (ACLU 2017).  Additionally, SROs often wrongfully charge students with crimes for defending themselves against their aggressors, treating both victim and aggressor as criminals, as in Ana’s case (ACLU 2017).  

In the wake of Adam Toledo's tragic murder, Project Libertad remains committed to pursuing racial justice and equality for the students and families we work with, and we stand in solidarity with the family and loved ones of Adam Toledo in demanding justice for his murder.