Abstract

Excerpted From: Laila L. Hlass, Rachel Leya Davidson and Austin Kocher, The Double Exclusion of Immigrant Youth, 111 Georgetown Law Journal 1407 (June, 2023) (480 Footnotes) (Full Document)

Ariel is a nonbinary, immigrant youth who escaped escalating gender-based violence in El Salvador at age thirteen and fled to the United States. Ariel came to the United States hoping to reunite with their father and build a new life, but that future proved illusory. As an undocumented young person, Ariel had few resources, no ability to work legally, and no access to financial aid to attend college. As a Latina/o youth, Ariel was at higher risk of over-policing within their neighborhood in New York and in school, which only exacerbated fears of impending deportation.

Meanwhile, as Ariel's relationship with their father deteriorated, they moved into a homeless shelter for LGBTQ youth and connected with a youth advocacy organization, The Door. Through The Door, Ariel learned about Special Immigrant Juvenile Status (SIJS), an immigration benefit created to protect young people like them. To be eligible for SIJS, a state court must (1) find that Ariel had been abandoned, abused, or neglected by a parent, (2) find that it is not in Ariel's best interest to return to their country of origin, and (3) place Ariel under the dependency of the court or with a caretaker. Next, with that state court judgment, Ariel could petition the U.S. Citizen and Immigration Services (USCIS) to be recognized as a Special Immigrant Juvenile (SIJ). USCIS is required by law to adjudicate these petitions in 180 days. If USCIS approved Ariel's SIJS petition, Ariel could apply to become a lawful permanent resident (LPR) and apply for a work permit.

After some time on a waitlist, Ariel was provided an attorney to pursue SIJS. Because of the COVID-19 pandemic, the New York family court system was closed to the public. Based on an emergency medical need, Ariel's attorney requested an expedited hearing in family court despite its closure, less than three months before Ariel aged out of eligibility for protection. The New York family court issued findings in November of 2020 that allowed Ariel to submit a SIJS petition to USCIS, which they did, expecting to find a legal resolution that would allow them to move forward into adulthood. Ariel's application arrived at USCIS at a time when the agency's processing times routinely surpassed the statutorily required six-month limit--with impunity. Fortunately in Ariel's case, USCIS adjudicated the SIJS petition within the mandated six months. Unfortunately, Ariel was also one of the thousands of young people from El Salvador who had to wait for years for a visa to become available to apply for LPR status in what is known as the “SIJS backlog.” Therefore, instead of finding a resolution, Ariel entered a period of legal limbo that exacerbated their already precarious social existence, deferred their transition into adulthood, and prevented them from achieving full independence.

The stress of prolonged instability took a heavy toll on Ariel as they awaited a SIJS decision and visa availability in the SIJS backlog. Ariel reports having to take brutal jobs for little pay, including performing janitorial work in a school and using chemicals that burned their skin without being provided safety gear. They sometimes worked eighty-hour weeks during the summer when they did not have school commitments. Ariel was living in a homeless shelter but had to move out because of safety issues. Ariel found a friend's family to stay with, but their housing situation remains unstable, and Ariel reports struggling with loneliness and deteriorating mental health. Ariel had real cause to worry because the SIJS process has become increasingly politicized, with spikes of higher rates of denials, notices of intent to deny, and requests for more evidence in recent years--all of which prolong processing times and contribute to higher rates of denial.

When Ariel's SIJS petition was approved, they initially felt relief. That feeling didn't last, though, as Ariel has been left stagnant for more than two years. Like thousands of other immigrant youth in the SIJS backlog, Ariel is forced to wait until one of a limited number of visas allotted to SIJ youth becomes available. Under immigration law, SIJS children apply for LPR status by using visas from the employment-based visa system, as part of the “special workers” sub-category. From the start of the SIJS backlog in 2016, children from countries with historically higher migration to the United States (including Ariel's home country of El Salvador, as well as Guatemala, Honduras, and Mexico) have been forced to wait years, even after being approved for SIJS, before being allowed to apply for LPR status, leaving them vulnerable to various forms of legal, political, and physical harm that come with being undocumented. In addition to the historical role that racial geopolitics play in limiting lawful migration from Latin American countries, children from these countries are also predominantly racialized (and marginalized) within the United States as Black, Brown, and Indigenous, and more broadly as Latina/o. Their exclusion from eligibility to immediately seek LPR status is aligned with restrictionist U.S. immigration policy trends that work to target Latina/o immigrants and has been likened to a racial quota system because of the racialized impact. In March 2023, the Department of State changed how it interpreted the per-country limit on visa availability which addressed disparities based on nationality, but also forced all children into the years-long backlog. With all children from all nationalities now similarly situated in the backlog comes a universal five-plus year wait on being able to seek LPR.

Ariel checks the visa bulletin constantly, sometimes twice a week, to see if their priority date is current, allowing them to seek permanent residence. Each time, Ariel feels anxiety because the priority date does not move. Even worse, sometimes the date moves backward, through “retrogression.” The precarity produced by the SIJS process confounds the protective purpose of the SIJS law, preventing a transition to true permanency. After the March 2022 Biden Administration decision to make work authorization available to SIJS youth in the SIJS backlog through deferred action, Ariel was able to legally work. However, even after this win, Ariel still feels heightened fear and stress from being undocumented, which impacts their sleep, their overall sense of well-being, and their ability to be fully present at school. At the time of this writing, Ariel has been waiting for more than two years in the SIJS backlog and will likely remain suspended in uncertain legal status for three more years at this pivotal crossroads in their adolescence.

Ariel's experience is emblematic of what we have termed the “double exclusion” many immigrant youth face. They are not permitted to simply be children nor allowed to fully transition into an independent adulthood. A judge has determined that it is not in Ariel's best interest to return to El Salvador, so they remain in the United States; yet USCIS has not yet permitted Ariel to be permanently legally here, either. This has forced them to navigate multiple lines of double exclusions: in between physically present and legally present; in between El Salvador and the United States; in between childhood and adulthood; and in between application and adjudication. Although many scholars have viewed immigration controls through the lens of exclusion, we view SIJS youth as unique insofar as most navigate these regimes of exclusion at precisely the point in life (that is, the transition from childhood to adulthood) when the potentiality of their lives hangs in the balance. The objective duration of processing times for SIJS petitioners, which can be several months to several years, may not be exceptional when compared to other wait times for various immigrant and nonimmigrant visas. But we argue that the temporality of SIJS delays, a temporality that takes into account the sociopolitical context and effects of simple duration, illuminates the unique harms that SIJS youth experience at this unique point in life. Thus, our claims about double exclusion, illustrated through an analysis of USCIS data on SIJS processing, are grounded in and through the subjective experiences of immigrant youth who know the immigration system not as a set of data points but as a regime of deferrals and impediments to a full life.

In this Article, we theorize these double exclusions as part of a broader landscape of immigrant precarity. Whereas precariousness is a subjective condition of vulnerability, we adopt Judith Butler's description of precarity as a consequence of (bio)political power that ensures “certain populations suffer from failing social and economic networks of support and become differentially exposed to injury, violence, and death.” Butler's framework does not preclude the individualized, discretionary agency of actors within powerful institutions, nor does it depend on it. Precarity may be the result of explicit government design to harm populations, as well as more subtle bureaucratic violence through inaction, incompetence, and unwillingness to address inequities. Most importantly for this Article, precarity does not necessarily work in opposition to seemingly humanitarian efforts (such as SIJS). Rather, precarity is often inextricably bound up with humanitarianism, particularly when humanitarianism becomes co-opted by the state and deployed as part of a broader system of neoliberal governance. Viewed in this way, the SIJS program is ripe for critical inquiry precisely because it productively illustrates the tensions internal to the U.S. immigration system: it is a program that aims to protect the most vulnerable immigrant youth and yet, through its routine operations, it also polices the legal and temporal boundaries between inclusion and exclusion in often troubling ways.

Using an original data set including the 153,374 SIJS petitions filed in fiscal years 2010 to 2021 and 35,651 LPR applications based on approved SIJS filed in 2013 to 2021, this study presents the first systemic empirical investigation of children seeking SIJS and SIJS-based LPR status since the backlog began. We examine how the SIJS program may protract children's precarity at a pivotal crossroads in their lives. As an initial matter, SIJS petitioners' youthfulness, immigration status, race, class, gender, sexual orientation, language, and other factors work to ensure that they already have too few resources and are at risk of harm. Yet even after applying for SIJS, children may face harm as they are subjected to temporal processing delays, the SIJS backlog, disparities in access to quality representation, political whims, and aggressive immigration enforcement during a crucial and formative period of their young lives. This Article theorizes this situation that many SIJS youth find themselves in as a crisis of double exclusion--youth who are prevented from fully experiencing a protected childhood, but who are also stunted from successfully transitioning into adulthood due to barriers and delays in obtaining legal status through the SIJS program. By describing this double exclusion, we aim to make visible the often invisible precarity that SIJS youth face as marginalized youth, and typically people of color, whose precarity is, in turn, exacerbated by the government's (mis)management of the SIJS program.

Based upon our experiences as attorneys representing immigrant children and our analysis of USCIS SIJS petition and SIJS-based LPR application data sets, we posit that the law, policy, and practice of SIJS--the administrative governance of immigration agencies and courts, including its lack of transparency with its own data--have become a form of legal violence. Furthermore, we argue this legal violence contributes to the precarity of SIJS children's lives, whereby they are doubly excluded from a protected childhood and also prevented from transitioning into adulthood. Legal violence within immigration law has been described as the harmful effects of laws that derail immigrants' pathways to belonging and amplify and produce vulnerability. Legal violence as a lens can reveal contradictions in the formulation and implementation of immigration laws that purport to provide protection but actually result in harm. In the context of SIJS, this violence may take a temporal form, such as state jurisdictional age cutoffs to seek the underlying court order, USCIS delays in adjudicating the SIJS petition, wait times to apply for work authorization and LPR status due to visa caps, and delays in adjudicating LPR applications. It can also take the shape of capricious political agendas, such as intentional policy decisions made in secret that are designed to exclude immigrant youth from the protections created to shield them from harm.

This Article contributes to literature about immigrant children, the temporality of law, and legal violence. It does so by contextualizing individualized data of immigrant youth seeking SIJS and SIJS-based LPR status. We show that the precarity of these children, who may already be living precariously due to systemic oppression, becomes more entrenched as they proceed through the immigration system. This data reveals the historical and ongoing shortfalls of the SIJS program, as well as the lack of meaningful guardrails against the abuse of power by presidential administrations regarding the treatment of immigrant children, which add to immigrant children's vulnerability.

This Article proceeds in three Parts. First, we develop a framework for understanding precarity among immigrant youth and how administrative state action and inaction harm SIJS children, amounting to legal violence. As part of this description, we provide an extensive description of the SIJS process and barriers to seeking SIJS. In Part II, we build upon this theory of precarity, sharing key quantitative data that illustrate the central arguments of the Article. Using the data set, we lay bare how the Trump Administration in particular sought to undermine the SIJS process by instituting official and unofficial policies that dramatically increased delays and denial rates for SIJS petitioners. The unprecedented scale of rejections and delays, as well as the geographic unevenness of denial rates, coupled with the legal limbo of visa caps and the seeming unwillingness of USCIS to meet the statutory 180-day SIJS adjudication period, acutely illustrate the ways in which the U.S. immigration agency's own exclusion of immigrant children can be exacerbated under certain political conditions. In Part III, we conclude with theoretical and policy implications of the key findings. Ultimately, we call for action to improve the SIJS program and build power for immigrant children.

[. . .]

Child migration has steadily increased in the last decade, and alongside this increase, more abandoned, abused, and neglected children have sought protection to be classified as SIJs and obtain LPR status based off their approved SIJS petition. By examining 153,374 SIJS petitions filed between 2010 to 2021, and 35,651 SIJS-based LPR applications filed between 2013 to 2021, we have shown the existence of an “underside” of the SIJS program, specifically its “hidden and violent effects” on the lives of the children. Our analysis of SIJS and the underlying data in this Article shift focus from “what the law says about itself” to illuminating what the law actually does and how it operates. Dean Spade draws our attention to the notion that it is in fact in the reality of administrative law that we see how “administrative systems that classify people actually invent and produce meaning for the categories they administer, and that those categories manage both the population and the distribution of security and vulnerability.” In other words, our study shows how bureaucratic processes, which often maintain legitimacy through the perception of routinized value-neutral operations, actually function in inconsistent, even calamitous ways that shape the life trajectories of thousands of immigrant youth. Laws and legal reforms that are purportedly neutral or nondiscriminatory can, in fact, enact violence on entire populations.

That the SIJS law was created and amended to protect abused, abandoned, and neglected children should not insulate the law from critique because it does not make the law immune from causing harm. In fact, as we have demonstrated here, the SIJS process amplifies precarity in children's lives in a variety of ways. Moreover, the stated intent of the law does not dissociate the law from the racism of immigration law more broadly and the suffering it causes immigrant children. Stephany, who came to the United States at age fourteen and spent years waiting in the SIJS backlog, implores the government to act to address injustices in the law and to treat immigrant youth with the dignity they deserve: “[B]ecause in the end these are the dreams of human beings and in the end we are all the same ....” Removing the visa caps which have caused children to live in years-long legal purgatory is one critical step that Congress could take, but more fundamental changes-- changes that fully recognize the embeddedness of problems with the SIJS program within the broader U.S. immigration system--are needed to fully alleviate the barriers to lawful status that immigrant youth face. Ultimately, by revealing the underside of SIJS law and policy, we call for congressional, executive, and agency action to address the harms of the SIJS law and process and promote protection and empowerment for young people.

Clinical Professor of Law, Tulane University. © 2023, Laila L. Hlass, Rachel Leya Davidson & Austin Kocher.

Director, End SIJS Backlog Coalition, National Immigration Project.

Research Assistant Professor, Newhouse School of Public Communications and Transactional Records Access Clearinghouse (TRAC), Syracuse University.