71 Am. U. L. Rev. 1779 (2022).
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Abstract
The immigration legal system has codified and perpetuated racial violence in many ways, yet the experiences of young people of color in this system have yet to be deeply examined. This Article surfaces the distinct and varied racialized harms that children experience in the immigration system through the example of Special Immigrant Juveniles. Special Immigrant Juvenile Status (SIJS) is the only immigration status created for and limited to children. A child—defined in immigration law as someone who is under twenty-one years of age and unmarried—is eligible to seek SIJS with U.S. Citizenship and Immigration Services (USCIS) if a state court has found that the child has been abandoned, abused, or neglected by a parent and it is not in their best interests to return to their country of origin. USCIS’s approval of a child’s SIJS petition does not provide an absolute protection from deportation on its own, but it creates a pathway to apply for a work permit and lawful permanent resident (LPR) status—often referred to as a “green card.” These benefits have the potential to create more security in the young person’s life. On their pathway to LPR status, immigrant youth seeking SIJS experience precarity in their lives and racialized harms within the immigration system.
In Part I, this Article examines how racism has been implicated in immigration law and legal systems and how immigrant children are impacted by racism, even though this has been understudied. In Part II, this Article focuses on three features of the SIJS legal framework to understand how the law’s design and implementation has resulted in racialized harms: the consent function, the SIJS backlog, and the process by which SIJS children seek LPR status. Part III offers specific prescriptions as interim steps to address the racialized harms and challenges special immigrant juveniles face. Ultimately, this Article calls for a racial justice analysis of the immigration legal system as it applies to children.
* For helpful insights and conversations at various stages of this project, thanks to Sherley Cruz, Gregory Chen, Lindsay M. Harris, Kristen Jackson, Elizabeth Keyes, Randi Mandelbaum, Rachel Prandini, Nina Rabin, Sarah Rogerson, Ragini Shah, Anita Sinha, and Lorilei Williams.
** Dalia Castillo-Granados, Director, ABA Children’s Immigration Law Academy (CILA).
*** Rachel Leya Davidson, Managing Attorney for Policy & Special Projects, The Door.
**** Laila L. Hlass, Professor of Practice, Tulane University Law School.
***** Rebecca Scholtz, Senior Staff Attorney, National Immigration Project of the National Lawyers Guild.