BIA: Illegal Alien Adult with Pending ‘Special Immigrant Juvenile’ Claim Is Subject to Detention

On June 2, the Board of Immigration Appeals (BIA) — the administrative tribunal that reviews immigration decisions — held that a 20-year-old Salvadoran national who entered illegally in November 2022 at the age of 17, was designated as an “unaccompanied alien child” (UAC) and transferred by DHS to the Office of Refugee Resettlement (ORR), placed with his brother and then mother, and who has an approved Special Immigrant Juvenile (SIJ) petition but hasn’t adjusted his status is subject to mandatory detention. Expect the usual outrage to follow as advocates demand that this adult continue to be treated as a child.

The case is Matter of N-A-G-C-, and some background is required to understand the BIA’s opinion.

“Unaccompanied Alien Children”

Section 462 of the Homeland Security Act of 2002 (HSA), which created the Department of Homeland Security, defined an “unaccompanied alien child” as:

a child who — (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom — (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.

That definition is now codified at 6 U.S.C. § 279(g).

The HSA stripped DHS of jurisdiction over housing and releasing the UACs it encountered, transferring that authority to ORR, an office within the U.S. Department of Health and Human Services (HHS), which to that point had only provided services to adult and family refugees and asylees.

Initially, few UACs were affected by the switch. According to the Congressional Research Service (CRS), the number of UACs encountered by DHS who were referred to ORR in the early 2000s “averaged 6,700 annually and ranged from a low of about 4,800 in FY 2003 to a peak of about 8,200 in FY 2007”.

That changed quickly after a Democrat-controlled Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).

Section 235 of the TVPRA divided UACs into two separate groups: (1) those from “contiguous” countries (Canada and Mexico); and (2) minor nationals of “non-contiguous” countries (everywhere else, including El Salvador).

Under that provision, contiguous UACs could be sent home if they hadn’t been trafficked and didn’t have a credible fear of return.

DHS, however, had to transfer the UACs it encountered from non-contiguous countries to the care and custody of ORR within 72 hours, usually to be placed into formal removal proceedings (UACs aren’t amenable to expedited removal), even if they hadn’t been trafficked and had no fear of return.

ORR was then directed under the TVPRA to place most of those children with “sponsors” in the United States, usually their own parents or a close relative (many of whom had paid the smugglers who brought the kids here).

Not surprisingly, the number of UACs from non-contiguous countries encountered by DHS soared, as parents (and more importantly smugglers) realized that section 235 of the TVPRA all but guaranteed that any child who got here illegally would be released into this country to rejoin his or her family.

While smugglers had exploited that TVPRA loophole to bring UACs to the United States prior to Biden, they feasted on it once he arrived, largely because ORR was directed to slash the number of days kids spent in custody before placement with a sponsor (like N-A-G-C-‘s brother) from 89 days in FY 2019 to 27 days by FY 2023.

CBP encountered more than 77,000 UACs from non-contiguous countries at the Southwest border in FY 2024 (the fiscal year N-A-G-C- was apprehended), a “good” year by Biden administration standards given nearly 109,000 non-contiguous UACs were encountered there in FY 2023, after DHS had already referred more than 128,000 UACs to ORR in FY 2022.

More directly, N-A-G-C- was one of 7,578 Salvadoran UACs apprehended by Border Patrol at the U.S.-Mexico line two fiscal years ago. By contrast, agents apprehended just 201 Salvadoran UACs there, total, in the 12 months ending April 30, 2026, under Trump II.

“Special Immigrant Juvenile” Status

The Federal Bar Association (FBA) describes SIJ status as “a path to lawful permanent residence and U.S. citizenship for certain abused, abandoned, and neglected children”, and that was Congress’s intent when it created the program in 1990.

“In effect”, the FBA continues, SIJ “allows a juvenile court dependent to ‘self-petition’ for lawful permanent residence, acknowledging that the child lacks the traditional family relationships that immigration law typically requires for children to derive immigration status in the United States.”

To be granted an SIJ visa, aliens must show they are under the age of 21, unmarried, and possess “a valid juvenile court order issued by a state court in the United States” that is based on a finding that the alien is a dependent of the state or the court, cannot be reunited with his or her parent or parents because of “abuse, abandonment, neglect, or” some similar “basis under state law”, and that it is not in the alien’s “best interests” to return to his or her home country.

In this instance, a Maryland state court must have found that N-A-G-C-‘s mother (who is residing in the United States) was a fit parent, as it awarded custody to her, but as the foregoing reveals, an SIJ petition can be based on a state juvenile court order finding that either parent is unfit — not necessarily both.

According to USCIS data, the agency received fewer than 16,700 petitions between FY 2010 and FY 2014, nearly 96,000 between FY 2015 and FY 2019, and almost 126,500 between FY 2020 and FY 2023.

In FY 2024 alone (the last full fiscal year of the Biden administration), USCIS received nearly 68,000 SIJ petitions, and granted (due to backlogs in prior years) nearly 71,000.

More than 78,000 more petitions arrived at the agency in FY 2025, a year in which approvals dropped to just over 61,000.

SIJ Adjustment of Status

The problem is that there’s a difference between having an approved SIJ visa petition and the beneficiary being allowed to remain here permanently.

To be granted lawful permanent resident status (i.e., a “green card”), aliens with approved SIJ petitions must file applications for adjustment of status under section 245 of the Immigration and Nationality Act (INA), and under subsection (a) of that provision, those applicants must both he “eligible to receive an immigrant visa” and that visa must be “immediately available to” them at the time of adjustment.

But as the BIA explained in its recent opinion in Matter of Cahuec Tzalam:

Visa availability for aliens classified as special immigrant juveniles is governed by section 203(b)(4) of the INA ... which sets aside 7.1% of the worldwide allotment of immigrant visas annually for fourth preference employment-based immigrants, including most categories of special immigrants.

At present, according to the State Department’s Visa Bulletin, visas are currently available to aliens in that category who filed their visa petitions before July 15, 2022.

It’s not clear when N-A-G-C- filed his SIJ visa petition, but given he didn’t enter illegally until November 2022 — and that visa numbers are subject to “retrogression”, meaning the date can sometimes be moved back — he has a while to wait before he can apply to adjust.

Matter of N-A-G-C-

Which brings me to the BIA’s opinion.

In April 2023, Biden’s DHS served N-A-G-C- with a Notice to Appear (“NTA”, the charging document in removal proceedings, akin to a statement of charges in a criminal case), charging him with removability under section 212(a)(6)(A)(i) of the INA as an alien present without admission or parole (a standard charge for illegal entrants).

As noted, he had been transferred to ORR after he was apprehended at the border, but in September 2025, he was arrested by DHS and brought before an immigration judge (IJ), where he requested a bond hearing.

As I have explained at length in the past, DHS under Trump II revised prior practices and determined that aliens present without admission (including and especially illegal entrants) are subject to mandatory detention under section 235(b)(2)(A) of the INA, which bars “applicants for admission” from release from DHS custody.

Thereafter, in its September 2025 opinion in Matter of Yajure Hurtado, the BIA concluded that DHS’s take on that statute was correct, and barred IJs from releasing aliens who had entered illegally and were charged under section 212(a)(6)(A)(i) of the INA.

Notwithstanding that precedential BIA opinion, N-A-G-C- requested release from DHS custody, and the IJ ordered him released in October on a $4,000 bond.

As the BIA explained, the IJ concluded Matter of Yajure Hurtado “did not control because the respondent [N-A-G-C-] had previously been designated a UAC upon entering the United States in 2022 at the age of 17, and has an approved Form I-360 petition as” an SIJ.

DHS appealed, and the Board concluded Matter of Yajure Hurtado barred N-A-G-C-‘s release, as “neither a previous designation as a UAC nor an approved SIJ petition gives an Immigration Judge authority to redetermine the custody status of an alien who has not been admitted to the United States”.

As noted, N-A-G-C- is now 20 and therefore hasn’t fallen under the definition of “unaccompanied alien child” in 6 U.S.C. § 279(g) since he turned 18 in July 2023, “more than 2 years before he was detained by DHS and requested custody redetermination before the Immigration Judge”.

“Moreover”, the BIA concluded, “an approved SIJ petition does not alter the statutory framework governing custody redetermination before an” IJ, notwithstanding the fact that section 245(h)(2)(A) of the INA provides that illegal entry does not bar an IJ from adjusting status for an alien with an approved SIJ petition (most other aliens must have been “admitted or paroled” to receive adjustment).

“[T]hat limited adjustment provision”, the Board explained, “does not constitute an admission or actual parole under section 212(d)(5) of the INA”, nor does it “otherwise alter an alien’s classification as an applicant for admission”, the class of aliens subject to mandatory detention under section 235(b)(2)(A) of the INA.

“While the respondent’s approved SIJ petition may bear on potential eligibility for adjustment of status, it does not confer authority on an Immigration Judge to redetermine custody,” the BIA held.

Cue the Backlash

Matter of N-A-G-C- is just the latest in a series of BIA opinions — including the aforementioned Matter of Cahuec Tzalam, Matter of Z-R-C-N-, and Matter of Pinzon Rozo (which I analyzed back in March) in which the government has argued and the Board agreed that an approved SIJ petition or potential SIJ status alone doesn’t entitle adult aliens who came under the age of 18 to special consideration — particularly given how many UACs came under Biden.

Speaking of Biden, in March 2022, USCIS “announced a deferred action policy for individuals with approved” SIJ classification (complete with an opportunity for work authorization) who didn’t “have an immigrant visa immediately available to adjust status to lawful permanent resident” — essentially allowing them to live and work here until visas were available to them.

Trump II rescinded that policy (following court action on an earlier rescission) effective May 10, 2026, and USCIS “will no longer automatically conduct deferred action determinations for SIJs who cannot apply for adjustment of status solely because an immigrant visa is not immediately available” for SIJ petitions filed after that date, while aliens with deferred action can continue to seek to extend it under the old policy.

That said, the agency is clear that it “may terminate a grant of deferred action, through the issuance of a Notice to Appear or Notice of Termination, and revoke any associated employment authorization prior to the end of the validity period”, in the exercise of its discretion.

As noted, N-A-G-C- was issued a Notice to Appear by Biden’s DHS more than three years ago, in April 2023, though it’s not clear whether he ever requested deferred action.

Finally, USCIS issued a report last July on what it described as “significant abuses in” the SIJ program, including that: “more than half of SIJ petitioners filing in FY 2024 were over age 18”; “many came from countries identified as posing national security concerns, demonstrating the lax screening and vetting and anti-fraud policies of the Biden Administration”; and “some SIJ petitioners engaged in age and identity fraud”.

In addition, that report “also identified 853 known or suspected gang members who filed SIJ petitions, most of which were approved”, including 600 MS-13 gang members, more than 500 of whose petitions were approved.

Despite these facts, many immigrants’ advocates are deeply unhappy with the BIA, including one who tweeted the following after the Board issued its opinion in Matter of N-A-G-C-:

The Best of Intentions Masking the Worst of Abuses

Proponents of TVPRA and SIJ contend they have the very best of intentions — protecting vulnerable migrant children. Experience, however, has revealed that those schemes have, all too often, led to worse abuses than the harm they purported to address.

Trump II is attempting to mitigate what it terms as “vulnerabilities in the integrity of the SIJ program”, including use of the special immigrant juvenile process by adult aliens seeking release from custody and indefinite unlawful stays in the United States. For now, the BIA is staying out of the administration’s way as it works to achieve that goal. We’ll see whether Article III courts do the same.