Department of Homeland Security (DHS) Secretary Alejandro Mayorkas has revised the Special Immigrant Juvenile (SIJ) program in ways that effectively transform it into another version of Deferred Action for Childhood Arrivals (DACA). Combined, the new regulation and policy disregard congressional intent and will allow hundreds of thousands of illegal aliens to immediately obtain work permits and will further fuel the surge of unaccompanied alien children (UACs) being smuggled across the southern border.
Congress created the SIJ classification in 1990 to provide a pathway to legal status for certain alien children in the U.S. foster care system who required judicial intervention to protect the minor from parental abuse, abandonment, or neglect. But as my colleague Jessica Vaughan put it, “the [implementing] rules were written with loopholes that you can drive a truck through.” The Obama administration realized that illegal alien minors were increasingly targeting the SIJ program solely for the purpose of obtaining lawful immigration status and not due to abuse, neglect, or abandonment by the parents, and proposed a rule in 2011 to curb such abuses.
The Trump administration reopened the comment period in 2019 and finished the final rule in October 2020, but the White House’s Office of Information and Regulatory Affairs (OIRA) failed to conclude review (government lingo for "approve") before President Biden’s inauguration. In a February 1, 2021, post, I urged the Biden administration to finalize that SIJ rule.
Instead, the Biden administration finalized a very different SIJ rule that will encourage immigration fraud. For starters, U.S. Citizenship and Immigration Services (USCIS) “may consent to a grant of SIJ classification when the petitioner has provided evidence of court-ordered relief from parental abuse, neglect, abandonment, or a similar basis under state law, as well as evidence of the factual basis for a juvenile court’s determination.” The Trump-era rule also redefined “consent” because the previous definition was repeatedly being struck down by the courts, but the Biden administration’s expansive definition appears designed to maximize the number of SIJ designations sought by UACs.
My colleague David North already covered two additional regulatory changes that will encourage immigration fraud. First, the SIJ rule includes an “age out” provision that violates the statutory requirement that the alien be under the age of 21 to be eligible for SIJ status. Instead, USCIS will grant SIJ status regardless of the alien’s age at the time of adjudication as long as the petition was submitted before the alien turns 21. More problematically from an integrity standpoint, the rule prohibits the accused parent from participating in the proceedings to refute an allegation of abuse or abandonment. This ensures an incomplete evidentiary docket and the courts and USCIS will just take the illegal alien at his or her word, despite the obvious incentive to lie or stretch the truth in order to obtain an individualized amnesty.
Alongside the regulation, USCIS also announced a new SIJ policy granting deferred action and a work permit to illegal aliens granted SIJ but who do not have an employment-based 4th preference green card immediately available. When I ran the USCIS policy office, I rejected this exact same policy proposal from career staff because this amnesty lite will become a lucrative carrot that will fuel a significant increase in SIJ filings of dubious merit. While SIJs can obtain green cards, they are numerically capped and SIJ is not a lawful immigration status, meaning the alien is still removable. But if you give an illegal alien a work permit (and Social Security number and driver’s license) that’s game over, and removal will likely never occur. This is exactly what happened with the U visa program for crime victims. There is a statutory cap of 10,000 U visas per year but there are now hundreds of thousands of illegal aliens in the queue after USCIS created a waitlist that includes deferred action and a work permit. As Jessica Vaughan observed, “in practice, there are legitimate concerns that the program is vulnerable to fraud, improperly promoted by advocates, and exploited as an avenue to obtain legal status.”
The combined regulatory and policy changes just announced for SIJs come from the same playbook as the U visa exploitation and DACA. Under the guise of a sympathetic name (juvenile), SIJ is going to become the next illegal alien work permit program that will make it easier to repay the coyotes and cartels who smuggle UACs across the border.