Casa Libre/Freedom House v. Mayorkas

637 F.Supp.3d 805

CASA LIBRE/FREEDOM HOUSE et al., Plaintiffs, v. Alejandro MAYORKAS et al., Defendants.

Case No 2:22-cv-01510-ODW (JPRx)

United States District Court, C.D. California

Signed October 26, 2022

Peter A. Schey, Center for Human Rights and Constitutional Law, Los Angeles, CA, Alex Holguin, Dream Act Lawyer, Los Angeles, CA, Camila Lucero Alvarez, Lilit Melkonyan, Central American Resource Center, Los Angeles, CA, Daniel Bral, Los Angeles, CA, Maritza Roxana Agundez, Coalition for Humane Immigrant Rights, Los Angeles, CA, Silvia Aguirre, The Aguirre Law Firm APC, Los Angeles, CA, Carl J. Bergquist, Pro Hac Vice, Coalition for Humane Immigrant Rights, Ottawa Hills, OH, Claudia Quintana, Cynthia Julieta Henning, Stephany Gisel Arzaga, Legal Services for Children, San Francisco, CA, Marcos Pacheco, Stephen A. Rosenbaum, La Raza Centro Legal, Inc., San Francisco, CA, Cristel Stefany Martinez, Law Office of Martinez, Nguyen and Magana, City of Industry, CA, Genevieve Augustin, CARCEN, Washington, DC, Jim Tom Haynes, Pro Hac Vice, Haynes Novick Immigration, Washington, DC, Ruth Natalie Calvillo, Central American Resource Center, San Bernardino, CA, for Plaintiffs.

Katelyn Masetta-Alvarez, Sarah Tate Chambers, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS THE FIRST AMENDED COMPLAINT [41]

OTIS D. WRIGHT, II, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This is a putative class action challenging how the U.S. Department of Homeland Security ("DHS") and the U.S. Citizenship and Immigration Service ("USCIS") handle and process Special Immigrant Juvenile ("SIJ") applications. The Plaintiffs are six individuals who submitted applications for SIJ status and six organizations who provide legal and other assistance to such individuals, and the Defendants are Alejandro Mayorkas, Secretary of DHS; Ur M. Jaddou, Director of USCIS; and USCIS itself. Defendants now move to dismiss the First Amended Complaint pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(1) and 12(b)(6). (Mot. Dismiss ("Motion" or "Mot."), ECF No. 41.) Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion.

II. BACKGROUND

A. The SIJ Petition Process

In 1990, Congress created the SIJ classification to aid noncitizen children physically present in the United States who were declared dependent on state courts and were eligible for long-term foster care. Immigration Act of 1990, Pub. L. No. 101-649, § 153, 104 Stat. 4978 (1990). The purpose of the SIJ classification is to help alleviate "hardships experienced by some dependents of United States juvenile courts by providing qualified aliens with the opportunity to apply for special immigrant classification and lawful permanent resident status, with possibility of becoming citizens of the United States in the future." 58 Fed. Reg. 42843-01, 42844, 1993 WL 304167 (Aug. 12, 1993).

In 1998, Congress revised the SIJ definition to include juveniles eligible for long-term foster care "due to abuse, neglect, or abandonment." Dep'ts of Commerce, Justice, & State, the Judiciary, & Related Agencies Appropriations Act of 1998, H.R. 2267, PL 105-119, 105th Cong., at 22 (Nov. 26, 1997). More recently, in 2008, Congress passed the Trafficking Victims Protection Reauthorization Act 2008 ("TVPRA"), Pub. L. No. 110-457, § 235(d), 112 Stat. 5044 (2008), which replaced the foster care requirement with more expansive language permitting young immigrants to apply for SIJ status based on a state court's finding that "reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law." TVPRA § 235(d)(1)(A); Immigration & Nationality Act ("INA") § 101(a)(27)(J)(i), 8 U.S.C. § 1101(a)(27)(J)(i); see J.L. v. Cissna, 341 F. Supp. 3d 1048, 1055 (N.D. Cal. 2018). The TVPRA also amended the SIJ statute to require USCIS to adjudicate SIJ petitions within 180 days of filing. TVPRA § 235, 8 U.S.C. § 1232(d)(2).

SIJ status is available if (1) the juvenile immigrant has been declared dependent on a juvenile court or legally committed to the custody of an individual or entity; (2) reunification with one or both of the immigrant's parents is not viable due to abuse, neglect, or abandonment; (3) it has been determined in administrative or judicial proceedings that it would not be in the juvenile immigrant's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and (4) the Secretary of Homeland Security consents to the grant of special immigrant juvenile status. 8 U.S.C. § 1101(a)(27)(J). The petitioner must be under the age of twenty-one at the time they file their SIJ petition. 8 C.F.R. § 204.11(b)(1). As a result, some SIJ petitioners reach the age of majority before filing SIJ petitions or while their petitions are pending.

SIJ status provides a pathway to lawful permanent residency: once a noncitizen's SIJ petition is approved, the noncitizen may proceed to apply to adjust their status to that of a lawful permanent resident ("LPR"). 8 U.S.C. § 1255(a), (h).

The process for obtaining LPR status by way of SIJ status comprises five steps: (1) a state court must determine that it would not be in the juvenile immigrant's best interest to return to their or their parent's country of citizenship; (2) the immigrant files a Form I-360 petition for SIJ status with the USCIS; (3) either concurrent with or subsequent to filing the Form I-360 petition, the immigrant files an Adjustment of Status Application; (4) the USCIS determines the minor meets the requirements for SIJ status and approves their SIJ petition; and (5) the USCIS approves the immigrant's Adjustment of Status application. 8 C.F.R. § 204.11; USCIS Policy Manual, Vol. 7, Pt. F, Ch.7 - Special Immigrant Juveniles, 7 USCIS-PM F.7 (Jan. 16, 2020); Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.¹

For many SIJ petitioners seeking LPR status, completing this process takes a long time because a SIJ cannot file an Adjustment of Status application unless the appropriate immigration visa is available. 7 USCIS-PM F.7; (see First Am. Compl. ("FAC") ¶ 62, ECF No. 34.) The INA sets the maximum number of immigrant visas available each year, including numerical limitations for SIJs. See 8 U.S.C. § 1153(b)(4). When the demand is higher than the number of immigrant visas available for a given year, the government allocates the availability of immigrant visas according to a "priority date" USCIS provides the SIJ upon approval of a petition. The priority date is generally the date that the foreign national filed their SIJ petition. See USCIS, Visa Availability and Priority Dates.² Noncitizens, including SIJ petitioners, must wait for their priority dates to become "current" before they can apply for adjustment of status. Id.

In terms of visa availability, SIJ status recipients are subject to the fourth-preference employment-based (EB-4) category, which is allocated 7.1% of the 140,000 visas generally available for employment-based visas per year, or approximately 9,940 visas per year. 8 U.S.C. § 1153(b)(4). This total applies to all "special immigrants described in section 1101(a)(27) of this title," not just immigrants granted SIJ status. Id. Furthermore, under 8 U.S.C. § 1152(a)(2), the total number of special immigrant visas made available to natives of a given foreign country is capped at 7% of the total available number of special immigrant visas, meaning that each foreign country is allocated a maximum of 696 special immigrant visas per year. (See FAC ¶ 38.)

Until March 7, 2022, the day Plaintiffs filed their initial Complaint in this matter, Defendants did not permit SIJs to apply for employment authorization unless the SIJ first filed to adjust their status to that of a LPR. 8 C.F.R. § 274a.12(c)(9). The pertinent effect of this policy was that SIJs were often forced to wait months or years for their priority dates to become current before they could apply for authorization to work legally in the United States. Plaintiffs allege that as a result, SIJ petitioners are often forced "to go cold, hungry, or with unstable housing for many years, and to work in underground exploitative jobs in order to survive" during the time it takes to complete this process. (FAC ¶ 5.)

B. The Plaintiffs

The individual Plaintiffs bringing suit in this matter are:

• Rene Gabriel Flores Merino, twenty years old; SIJ petition filed November 23, 2020; SIJ status petition granted November 9, 2021. (FAC ¶¶ 44, 48.)

• Hildner Eduardo Coronado Ajtun, twenty years old; SIJ petition filed March 12, 2020; SIJ status petition granted January 5, 2021. (FAC ¶¶ 51, 55.)

• Carlos Abel Hernandez Arevalo, twenty years old; SIJ petition filed December 8, 2021; petition remains pending. (FAC ¶¶ 64, 68.)

• Axel Yafeth Mayorga Aguilera, twenty years old; SIJ petition filed August 29, 2019; SIJ status petition granted March 13, 2020. (FAC ¶¶ 58, 61.)

• Rene Isai Serrano Montes, twenty-one years old; SIJ petition filed August 30, 2021; application pending when FAC was filed; SIJ status petition approved June 2, 2022. (FAC ¶¶ 71, 73; Reply Ex. A ("Montes Case Status"), ECF No. 46-1; see also Mot. Class Certification Ex. 13 ("Montes Petition Receipt"), ECF No. 37-15.³)

• Pamela Alejandra Rivera Cambara; SIJ petition filed July 1, 2021; application remains pending.⁴ (FAC ¶ 78.)

Even after the petitions of Merino, Ajtun, and Aguilera were granted, and due to the aforementioned priority date requirement for filing for an adjustment of status, these Plaintiffs still had to wait months or years after receiving SIJ status before they could apply for an adjustment of status...