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Noncitizen Minors in Removal Proceedings

If you or someone you know currently has noncitizen minors in removal proceedings, the immigration attorneys at Pozo Goldstein, LLP, are here to help.

Immigrants to the United States who are under the age of 18 – minors – are subject to removal proceedings by the Immigration and Customs Enforcement (ICE) just as are adults. The difference, however, is that these minors have a few more defense options available to them in addition to the typical methods that would be employed for an adult in the same situation.

All of the types of defenses that are options for adults who are undergoing a removal proceeding will be available to minors, as will be a few more. No matter which option is used on behalf of the minor who is currently at risk of being deported through a removal proceeding, a New York immigration lawyer from our firm should be contacted for help.

Special Immigrant Juvenile Status

For minors who have been legally committed to the U.S. Department of Health and Human Services or a state agency / department (for example, the department of social services), a legal remedy known as Special Immigrant Juvenile Status (SIJS) can be granted. The same status can be applied to minors who have been declared court dependents by the U.S. State’s juvenile or family court.

Qualifying for SIJS entails having the state court find and enter an official order stating that it would not be in the child’s best interest to return to his or her home country. It must be proven that the child cannot be reunited with his or her parent because of an extenuating circumstance such as parental abuse, neglect, abandonment or another reason of a similar nature.

In order to complete the process of declaring SIJS, the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant must be filed with the U.S. Citizenship and Immigration Services (USCIS). Only applicants who are under the age of 21 and are not married can file this form. If the application is approved, the minor can then apply for a green card for permanent residence.

Special Immigrant Juvenile Status is a viable means of defense for a minor who is facing a removal proceeding because the immigration judge might postpone the removal proceeding until the USCIS has ruled on a decision regarding the I-360 SIJS application that was filed. As soon as the applicant’s petition has been approved, a formal request for the termination of the removal proceeding can be made.

Deferred Action for Childhood Arrivals

Deferred Action for Childhood Arrivals, also referred to as DACA, is one of the newer forms of relief that can be used on behalf of minors who are facing deportation through a removal proceeding. In the early period of 2013, it was declared that DACA could be granted for a period of up to two years, and can be renewed upon its expiration.

The intent behind DACA’s design is to allow for young immigrants who are noncitizens but currently living in the U.S. as minors to apply for temporary permission to live and / or work in the country. As defined by the USCIS, persons who are eligible to apply for DACA are those who meet the following criteria:

  • Had not yet reached the age of 31 as of June 15, 2012
  • Had not yet reached the age of 16 at the time that he or she entered the U.S. to live
  • Have continuously resided in the U.S. since June 15, 2007 and up until the date upon which he or she applied for DACA
  • Can prove that he or she was physically present in the U.S. on June 15, 2007 as well as at the time that he or she applied for deferred action
  • Can prove that he or she is either in school currently (excluding any emergency absences), has graduated from an accredited high school, has obtained a GED certificate, or has been honorably discharged as a veteran of the Coast Guard or Armed Forces of the United States
  • Entered the U.S. without inspection before June 15, 2012; or entered with inspection, but Temporary Protected Status expired on or before June 15, 2012
  • Have not been convicted of a felony or a significant misdemeanor
  • Do not present any sort of threat to U.S. national security or public safety
  • To participate in the DACA program, you must submit a Form I-821D, Consideration of Deferred Action for Childhood Arrivals, as well as a Form I-765, Application for Employment Authorization. If your applications are approved, the immigration judge can be asked to administratively close your removal proceeding. At this time, your case will be taken off the active docket and you will not have to worry about facing another removal hearing until the time that your DACA status expires, at which time your case will be re-submitted to the calendar.

    Prosecutorial Discretion

    Not all minors will be eligible for DACA status, but this does not mean that they do not have other options available to them. In fact, prosecutorial discretion if often an alternative that is used for minors who do not qualify for DACA.

    Prosecutorial discretion typically means that the ICE agrees to administratively close a removal proceeding that it considers as a low priority. As such, prosecutorial discretion is not an official immigration status, nor can it lead to employment authorization or lawful permanent residence when used on its own.

    As the ICE considers whether or not to implement prosecutorial discretion it will consider a number of different factors, including:

  • Length of time the minor has been in the U.S.
  • The minor’s family ties in the U.S.
  • The minor’s current educational status in the U.S.
  • Humanitarian considerations
  • Flagrant violations of immigration law, as well as a criminal record can work against a minor’s ability to benefit from prosecutorial discretion.

    Pozo Goldstein, LLP is here to help!

    If you’re facing deportation through a removal proceeding in the U.S., then you cannot afford to involve an immigration attorney from our firm in your case. Only with the help of a legal professional do you stand a chance of avoiding the deportation that is currently threatening your ability to remain in the U.S. At Pozo Goldstein, LLP we are here to help both minors and adults who wish to continue their residency in the country. Our deportation defense attorneys have more than 90 years of combined experience, all of which can be used toward building an effective defense on your behalf. Contact a New York City immigration attorney from our office today.

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