Wendy Osorio Martinez v. Attorney General United States ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 17-2159
_______________
WENDY AMPARO OSORIO-MARTINEZ Individually and
on behalf of her minor child, D.S.R.-O., and all others
similarly situated; CARMEN ALEYDA LOBO MEJIA,
Individually and on behalf of her minor child, A.D.M.-L., and
all other similarly situated; MARIA DELMI MARTINEZ
NOLASCO, Individually, and on behalf of
her minor child, J.E.L.-M., and all others similarly situated;
JETHZABEL MARITZA AGUILAR MANCIA,
Individually, and on behalf of her minor child,
V.G.R.-A., and all others similarly situated,
Appellants
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA;
SECRETARY UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; ACTING DIRECTOR UNITED
STATES CITIZENSHIP AND IMMIGRATION SERVICES
PHILADELPHIA DISTRICT OFFICE; FIELD OFFICE
DIRECTOR BUREAU OF IMMIGRATION & CUSTOMS
ENFORCEMENT; DIRECTOR BERKS COUNTY
RESIDENTIAL CENTER; UNITED STATES OF
AMERICA; UNITED STATES DEPARTMENT OF
HOMELAND SECURITY
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 5-17-cv-01747)
Honorable Paul S. Diamond, U.S. District Judge
_______________
Argued: September 19, 2017
Before: AMBRO, KRAUSE, and SCIRICA, Circuit Judges.
(Opinion Filed: June 18, 2018)
Bridget Cambria
Jacquelyn M. Kline
Cambria & Kline
532 Walnut Street
Reading, PA 19601
Carol A. Donohoe
P.O. Box 12912
Reading, PA 19612
Jessica Rickabaugh [ARGUED]
Anthony C. Vale
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19013
Counsel for Appellants
2
Nancy Winkelman
Bruce P. Merenstein
Arleigh P. Helfer III
Schnader Harrison Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, Pa 19103
Counsel for Amicus Appellant
Chad A. Readler
Assistant Attorney General
William C. Preachey
Director Office of Immigration Litigation
Erez Reuveni
Senior Litigation Counsel
Vinita Adrapalliyal
Joseph A. Darrow [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, DC 20044
Counsel for Appellees
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
Petitioners, four children of Salvadoran and Honduran
origin and their mothers, appear before us for a second time to
challenge their expedited orders of removal. In Castro v.
United States Department of Homeland Security, 835 F.3d 422
3
(3d Cir. 2016), cert. denied, 137 S. Ct. 1581 (2017), we held
that we lacked jurisdiction to review their claims under the
Immigration and Nationality Act (INA) and that, while the
Suspension Clause of the Constitution would allow an
aggrieved party with sufficient ties to the United States to
challenge that lack of jurisdiction, the petitioners’ ties were
inadequate because their relationship to the United States
amounted only to presence in the country for a few hours
before their apprehension by immigration officers. Thus, we
affirmed the District Court’s dismissal of their petition.
Now, two years after their initial detention, Petitioners
raise what, at first glance, appear to be the same claims. But
upon inspection they differ in a critical respect: The children
now have been accorded Special Immigrant Juvenile (SIJ)
status—a protective classification designed by Congress to
safeguard abused, abandoned, or neglected alien children who
are able to meet its rigorous eligibility requirements. The
protections afforded to children with SIJ status include an array
of statutory and regulatory rights and safeguards, such as
eligibility for application of adjustment of status to that of
lawful permanent residents (LPR), exemption from various
grounds of inadmissibility, and robust procedural protections
to ensure their status is not revoked without good cause.
Because we conclude that the INA prohibits our review
just as it did in Castro, we are now confronted with a matter of
first impression among the Courts of Appeals: Does the
jurisdiction-stripping provision of the INA operate as an
unconstitutional suspension of the writ of habeas corpus as
applied to SIJ designees seeking judicial review of orders of
expedited removal? We conclude that it does. As we
explained in Castro, only aliens who have developed sufficient
4
connections to this country may invoke our Constitution’s
protections. By virtue of satisfying the eligibility criteria for
SIJ status and being accorded by Congress the statutory and
due process rights that derive from it, Petitioners here, unlike
the petitioners in Castro, meet that standard and therefore may
enforce their rights under the Suspension Clause. Accordingly,
we will reverse the District Court’s denial of Petitioners’
request for injunctive relief.1
I. Factual and Procedural Background
The eight Petitioners—Wendy Amparo Osorio-
Martinez and her three-year-old child D.S. R.-O., Carmen
Aleyda Lobo Mejia and her four-year-old child A.D. M.-L.,
Maria Delmi Martinez Nolasco and her seven-year-old child
J.E. L.-M., and Jethzabel Maritza Aguilar Mancia and her
sixteen-year-old child V.G. R.-A.—fled physical and sexual
violence perpetrated by gangs in their home countries of
Honduras and El Salvador. In September and October of 2015,
each family crossed into the United States from Mexico and
was apprehended by Customs and Border Patrol within four
miles of the border almost immediately thereafter. They were
initially detained in Texas and later moved to a detention center
in Leesport, Pennsylvania. After immigration officers
determined that Petitioners were inadmissible, they were each
ordered expeditiously removed under 8 U.S.C. § 1225(b)(1).
The families requested asylum due to their fear of gang-based
1
Although Petitioners include both the children and
their mothers, all the claims asserted pertain exclusively to the
children. See 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R.
§ 204.11(c)(1). As a result, our analysis relates only to the
children’s right to relief.
5
violence in their home countries, but their asylum requests
were denied by a Department of Homeland Security (DHS)
Asylum Officer and affirmed by an Immigration Judge (IJ).2
In late 2015, all eight Petitioners, along with twenty-
five additional families being held at the detention center,
sought habeas relief in the Eastern District of Pennsylvania,
challenging their final expedited removal orders and the
procedures underlying those orders. See Castro v. U.S. Dep’t
of Homeland Sec., 163 F. Supp. 3d 157 (E.D. Pa. 2016). In that
case, the families claimed that the Asylum Officers and IJs
violated their constitutional and statutory rights in the manner
that they conducted the “credible fear” interviews. See id. at
158. The District Court dismissed their claims, id. at 175, and
when they appealed we did not reach the merits because we
affirmed the District Court’s dismissal for lack of subject-
matter jurisdiction. Castro, 835 F.3d at 425.
The key questions in Castro were whether the INA, 8
U.S.C. § 1252(e)(2), stripped us of jurisdiction to review the
petitioners’ claims, and if so, whether such jurisdiction-
stripping violated the Suspension Clause of the Constitution.
2
It appears that their asylum requests were denied at the
“credible fear” screening stage based on their inability to
demonstrate a nexus between their persecution and their race,
religion, nationality, membership in a particular social group,
or political opinion as required for asylum eligibility, and not
a negative credibility finding as to their stated fear of physical
and sexual violence. 8 C.F.R. § 208.13; 8 U.S.C. § 1158; see
also Ndayshimiye v. Att’y Gen., 557 F.3d 124, 128-29 (3d Cir.
2009).
6
We concluded we did lack jurisdiction under the INA,
explaining that, under § 1252(e)(2)(B), we were only permitted
to review “whether an immigration officer issued that piece of
paper [i.e., the expedited removal order] and whether the
Petitioner is the same person referred to in that order.” Castro,
835 F.3d at 431, 434 (citations omitted). We also concluded
that “Petitioners [were] unable to invoke the Suspension
Clause” because, “as recent surreptitious entrants deemed to be
‘alien[s] seeking initial admission to the United States,’” they
lacked any constitutional rights regarding their applications for
admission. Id. at 448-49 (quoting Landon v. Plasencia, 459
U.S. 21, 32 (1982)).
That may have seemed the end of the road for the Castro
petitioners. While the Castro litigation was pending, however,
the four children here applied for SIJ status. To do so, they
first sought and obtained orders from the Berks County Court
of Common Pleas “finding that reunification with one or both
the parents was not viable due to abuse, neglect, or
abandonment, and that it would not be in the child’s best
interest to be returned to his or her country of origin.” App. 7-
8. Based on those orders, the children submitted petitions for
SIJ status to the United States Citizenship and Immigration
Services (USCIS). In late 2016, USCIS approved their
petitions and, with the consent of the Secretary of Homeland
Security, the children were formally granted SIJ status.
Among other benefits, SIJ status conferred on the
children eligibility and the right to apply for adjustment of
status to that of lawful permanent residents while within the
United States. See 8 U.S.C. § 1255(a), (h)(1). At the time they
filed those applications, however, visas necessary for their
7
adjustment of status had not yet come available.3 Thus, for
close to two years, the children have been wait-listed, retaining
their SIJ classification and awaiting adjustment of their status
to LPR. Notwithstanding these developments, however, DHS
continued to detain the children and their mothers and to seek
their expedited removal—removal to the very countries to
which USCIS and the Berks County Court of Common Pleas
both found, as part of the SIJ determination, it would not be in
the children’s best interest to return. The Government’s
decision to continue seeking removal is particularly
noteworthy because, as far as we are aware, until very recently
DHS has never attempted to remove SIJ-classified children
back to their countries of origin, much less on an expedited
basis.
In view of the children’s changed status, Petitioners
filed a new class action complaint seeking a writ of habeas
corpus or injunction to prevent the Government from executing
the expedited removal orders against them and to require their
release from immigration detention pursuant to those orders,
on the ground that their SIJ classification prohibited their
expedited removal and continued detention. Petitioners also
sought a declaration that their expedited removal violates due
process, and an emergency motion for a temporary restraining
order. In so doing, Petitioners claimed that their expedited
removal violates the Equal Protection and Due Process Clauses
3
Congress has set various limits on the number of visas
that may be made available, see 8 U.S.C. §§ 1151, 1153,
resulting in a waiting list when demand for visas exceeds
supply, see 8 C.F.R. § 245.1(g)(1). The Government
represents that the current waiting list for these SIJ designees
is backed up more than two years.
8
of the U.S. Constitution, the Immigration and Nationality Act
and its implementing regulations, the Foreign Affairs Reform
and Restructuring Act (which implements the Convention
Against Torture), and the Administrative Procedure Act. They
also asserted a Bivens action on the ground that their continued
detention violated their Fifth Amendment right not to be
illegally detained.4
The District Court initially granted Petitioners’ request
for a temporary restraining order. But the case was then
reassigned to a different judge who dissolved the TRO and
declined to issue a preliminary injunction, interpreting Castro
to mean that Petitioners could not succeed on the merits of their
claims because the District Court lacked subject-matter
jurisdiction to issue a writ of habeas corpus, enjoin Petitioners’
removal, or place them in standard removal proceedings. This
appeal followed.5
4
A Bivens action refers to “a private right of action for
damages . . . brought directly under the Constitution against
federal officials.” Vanderklok v. United States, 868 F.3d 189,
198 (3d Cir. 2017); see also Davis v. Passman, 442 U.S. 228,
248-49 (1979) (recognizing Bivens actions under the Fifth
Amendment’s due process clause).
5
In September 2017, after the District Court dissolved
the TRO and the parties completed briefing the case before us,
Petitioners were released from the detention center. Over the
Government’s objection, IJs held bond hearings for Petitioners
and determined that they should be released on “conditional
parole” under 8 U.S.C. § 1226(a)(2)(B), finding that it was
“simply inconceivable,” Petitioners’ 28(j) Letter 1 (Sept. 14,
2017), that Petitioners had been imprisoned for almost two
9
II. Standard of Review and Jurisdiction
“In reviewing the grant or denial of a preliminary
injunction, we employ a tripartite standard of review: findings
of fact are reviewed for clear error, legal conclusions are
reviewed de novo, and the decision to grant or deny an
injunction is reviewed for abuse of discretion.” Del. Strong
Families v. Att’y Gen. of Del., 793 F.3d 304, 308 (3d Cir. 2015)
(internal quotation marks omitted).
We “have jurisdiction to determine whether we have
jurisdiction,” Jarbough v. Att’y Gen., 483 F.3d 184, 188 n.3
(3d Cir. 2007), and the central question in this case is whether
the federal courts may exercise jurisdiction over Petitioners’
claims either under the INA or through invocation of the
Suspension Clause.6 We address these issues in turn.
years on a record “completely devoid of any reason, rational or
otherwise,” justifying their continued detention, see id. at 11,
25, 38, 47 (IJs’ Bond Memoranda). The Government appealed,
and the Board of Immigration Appeals (BIA) issued a stay. As
of the date this case was argued, however, Petitioners had not
been taken back into custody.
6
Petitioners’ release from physical detention prior to
oral argument in this matter does not affect our jurisdiction
because, although habeas relief is limited to those “in custody,”
28 U.S.C. § 2241(c), the “in custody” inquiry is made “at the
time the petition was filed,” Spencer v. Kemna, 523 U.S. 1, 7
(1998), and, in any event, the limitation “has not required that
a prisoner be physically confined” so long as the release is “not
unconditional,” Maleng v. Cook, 490 U.S. 488, 491 (1989).
Petitioners’ release also does not moot their claim because they
10
III. Discussion
The Government asserts that, for all intents and
purposes, this case is identical to Castro and our holding there
dictates the same outcome here. As we explain below, while
we agree with the Government that Castro forecloses our
jurisdiction under § 1252(e)(2), we conclude that Castro
supports a different result as to the constitutionality of that
jurisdiction-stripping provision as applied to SIJ designees. 7
can still point to “an actual injury traceable to the defendant[s]
and likely to be redressed by a favorable judicial decision,”
Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990), namely,
vacating the expedited orders of removal, see Chong v. Dist.
Dir., INS, 264 F.3d 378, 385 (3d Cir. 2001) (holding
deportation did not moot an alien’s habeas petition); Kamara
v. Att’y Gen., 420 F.3d 202, 215 n.11 (3d Cir. 2005) (noting
that “vacat[ing] the order of removal” may be an appropriate
remedy for a habeas petition); Zalawadia v. Ashcroft, 371 F.3d
292, 297 (5th Cir. 2004) (granting writ and vacating
deportation order because “an appropriate remedy is to vacate
or modify the underlying illegal judgment”). Indeed, we have
held that an “order of removal creates sufficient collateral
consequences to render [an alien’s] petition a live case or
controversy by preventing her from entering the United States”
for a fixed period of time in the future, Chong, 264 F.3d at 385,
and here, if removed pursuant to expedited removal orders,
Petitioners would be inadmissible for at least five years, 8
U.S.C. § 1182(a)(9)(A)(i).
7
While the Government asserts that SIJ classification
“does not itself alter Appellants’ legal status,” Gov’t Br. 6, this
argument is belied by the text of the INA, which explicitly
11
We will address, first, the question of our jurisdiction under the
INA; second, the constitutionality of § 1252(e)(2) under the
Suspension Clause as applied to Petitioners; and third, the
consequences of our analysis for Petitioners’ motion for a
preliminary injunction.
A. Statutory Basis for Jurisdiction
Petitioners’ challenge arises at the conflux of two
provisions of the INA. On the one hand, as we explained in
detail in Castro, Congress prescribed expedited removal
procedures to facilitate the speedy processing of certain
inadmissible aliens, limiting their access to federal courts
under § 1252(e)(2) and granting immigration officers virtually
unchecked authority to effect their removal. 835 F.3d at 425-
27. On the other hand, as Petitioners argue, for certain aliens
present in the country, including SIJ designees, Congress has
provided for special immigrant classifications, affording them
a status and statutory protections that may not be revoked
without specified process, including judicial review. See, e.g.,
8 U.S.C. §§ 1101(27)(J) as modified by Pub. L. No. 110-457,
§ 235, 112 Stat. 5044 (Trafficking Victims Protection
Reauthorization Act of 2008), 1255(h); 8 C.F.R. § 205.2.
Because the children have now attained this status, they
contend they are exempted from the application of
§ 1252(e)(2) and the courts retain statutory jurisdiction to
designates SIJ as a “status” that affords its designees a host of
legal rights and protections. See 8 U.S.C. § 1101(a)(27)(J)(iii)
(describing SIJ as a “status”); 8 C.F.R. § 204.11(b) (same); 8
U.S.C. § 1255(h) (listing rights); see also Yeboah v. U.S. Dep’t
of Justice, 345 F.3d 216, 221 (3d Cir. 2003) (describing SIJ as
a “special status to remain in the United States”).
12
review their expedited removal orders. We briefly review the
provisions of the INA relevant to expedited removal and to SIJ
status before explaining why Castro definitively resolved this
issue in the Government’s favor.
i. Expedited Removal of Inadmissible
Aliens
As a general matter, when an immigration officer
determines that an alien “is not clearly and beyond a doubt
entitled to be admitted” to the United States, the INA requires
that the alien be placed in standard removal proceedings. 8
U.S.C. § 1225(b)(2)(A); see also id. § 1229a (standard removal
proceedings). Those proceedings take place before an IJ and
provide the alien with a variety of procedural protections,
including the rights to present evidence, examine the evidence
against him, demand reconsideration or reopening of his case,
and appeal adverse decisions. Id. § 1229a(b)(4)(B), (c)(5),
(c)(6), (c)(7); see also Serrano-Alberto v. Att’y Gen., 859 F.3d
208, 211 (3d Cir. 2017) (“[A]liens in immigration proceedings
. . . are entitled to due process of law.”).
However, Congress has also provided for a separate
form of removal, known as “expedited removal,” which
permits the accelerated removal of aliens who, according to
immigration officers, meet a set of statutorily determined
criteria. 8 U.S.C. § 1225(b)(1). Those requirements include:
(1) that the alien be “arriving in the United States” or not have
been continuously present in the United States for two years;
(2) that the alien has “not been admitted or paroled” into the
United States; and (3) that the alien either lack valid
immigration documentation or have made a misrepresentation
in an attempt to attain immigration status. Id. Aside from an
13
asylum interview, such aliens are afforded no procedural
protections, let alone the various procedural safeguards of
standard removal proceedings. See id.
As relevant to Petitioners’ claims, expedited removal
also affects aliens in two other respects. First, the INA tightly
constrains judicial review of expedited removal orders,
stripping federal courts of jurisdiction to review such orders
except on three narrow grounds: (1) whether the petitioner is
an alien; (2) whether the petitioner was “ordered removed”
under the expedited removal provisions; and (3) whether the
petitioner can prove that she has been granted legal permanent
resident, refugee, or asylum status. Id. § 1252(e)(2).
Underscoring the limited scope of the second ground, the
statute specifies that the inquiry into whether a petitioner was
“ordered removed” may address only “whether such an order
in fact was issued and whether it relates to the petitioner.” Id.
§ 1252(e)(5). It also bars review of any claim “arising from or
relating to the implementation or operation of an order of
removal pursuant to [the expedited removal provision].” Id.
§ 1252(a)(2)(A)(i).
Second, expedited removal significantly restricts an
alien’s eligibility for future admission to the United States, as
“[a]ny alien who has been ordered removed under [the
expedited removal provisions] . . . and who again seeks
admission within 5 years of the date of such removal . . . is
inadmissible.” Id. § 1182(a)(9)(A)(i). And if that alien
reenters the United States without being admitted, he or she is
then inadmissible for 10 years. Id. § 1182(a)(9)(C)(i), (ii).
14
ii. Special Immigrant Juvenile
Classification
Congress established SIJ status in 1990 in order to
“protect abused, neglected or abandoned children who, with
their families, illegally entered the United States,” Yeboah v.
U.S. Dep’t of Justice, 345 F.3d 216, 221 (3d Cir. 2003); 8
U.S.C. § 1101(a)(27)(J), and it entrusted the review of SIJ
petitions to USCIS, a component of DHS. 6 USCIS Policy
Manual, pt. J, ch. 1 (Mar. 21, 2018).
Alien children may receive SIJ status only after
satisfying a set of rigorous, congressionally defined eligibility
criteria, including that a juvenile court find it would not be in
the child’s best interest to return to her country of last habitual
residence and that the child is dependent on the court or placed
in the custody of the state or someone appointed by the state.
8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(c). The child
must also receive approval from USCIS and the consent of the
Secretary of Homeland Security to obtain the status. 8 U.S.C.
§ 1101(a)(27)(J); Memorandum from Donald Neufeld, Acting
Assoc. Dir., Domestic Operations & Pearl Chang, Acting
Chief, Office of Policy & Strategy, USCIS, Trafficking Victims
Protection Reauthorization Act of 2008: Special Immigrant
Juvenile Status Provisions 3 (Mar. 24, 2009),
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memor
anda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf
[hereinafter USCIS Memorandum] (citing H.R. Rep. No. 105-
405, at 130 (1997) (Conf. Rep.)).
Once attained, SIJ classification conveys a host of
important benefits. For purposes of 8 U.S.C. § 1255(a), which
describes adjustment of status, SIJ designees are “deemed . . .
15
to have been paroled into the United States.” 8 U.S.C.
§ 1255(h)(1). Moreover, the INA automatically exempts SIJ
designees from a set of generally applicable grounds of
inadmissibility and provides that other grounds of
inadmissibility also may be waived at the Attorney General’s
discretion. 8 U.S.C. §§ 1255(h)(2), 1182(a). Of particular
note, the INA exempts SIJ designees from inadmissibility
based on the lack of “valid entry document[s],” id.
§ 1182(a)(7)(A)(i)(I)—the very ground on which the
Government alleges Petitioners are eligible for expedited
removal. App. 437 (citing 8 U.S.C. § 1225(b)(1)).
Additionally, Congress has granted SIJ designees various
forms of support within the United States, such as access to
federally funded educational programming and preferential
status when seeking employment-based visas. See id.
§§ 1232(d)(4)(A), 1153(b)(4).
Finally, SIJ status, once granted, may not be revoked
except “on notice,” 8 C.F.R. § 205.2, and upon the
Government’s compliance with a series of procedural
safeguards: The Secretary of Homeland Security must find
“good and sufficient cause” for revocation; the agency must
provide notice of intent to revoke; and the SIJ designee must
be given the opportunity to present evidence opposing
revocation. 8 U.S.C. § 1155; 8 C.F.R. § 205.2; see also 7
USCIS Policy Manual, pt. F, ch. 7 (Mar. 21, 2018).
The SIJ designee also has the right to appeal any adverse
ruling, initially to the Associate Commissioner for
Examinations, 8 C.F.R. § 205.2(d), and then to the extent the
child claims he or she “suffer[ed] legal wrong because of
agency action,” to the federal courts. 5 U.S.C. § 702; Yeboah,
16
345 F.3d at 220-21; M.B. v. Quarantillo, 301 F.3d 109, 111-14
(3d Cir. 2002).8
iii. Statutory Jurisdiction over Petitioners’
Claims
Petitioners argue that their SIJ status qualifies them for
the second exception to § 1252(e)(2)’s general bar on judicial
review: review of whether the alien was “ordered removed”
under the expedited removal provisions. 8 U.S.C.
§ 1252(e)(2)(B). That is, expedited removal only applies to
“aliens arriving in the United States and certain other aliens
who have been admitted or paroled,” id. § 1225(b)(1), but once
Petitioners acquired SIJ status, they were “deemed . . . to have
been paroled into the United States.” 8 U.S.C. § 1255(h)(1).
8
As our cases make clear, while discretionary decisions
of the Attorney General are not subject to judicial review,
federal courts may review under the Administrative Procedure
Act, 5 U.S.C. § 702, whether the agency has comported with
its own regulations and policies identifying the factors it must
consider and the process it must accord. Compare Quarantillo,
301 F.3d at 111-14 (judicial review may be permitted where
“an agency ‘announces and follows—by rule or by settled
course of adjudication—a general policy by which its exercise
of discretion will be governed,’” such that there is “some law
to apply” (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 32
(1996))) with Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196,
200 (3d Cir. 2006) (no judicial review for revocation based
merely on whether the Secretary of Homeland Security has
found “what he deems to be good and sufficient cause” because
that determination is entirely committed to agency discretion
(quoting 8 U.S.C. § 1155)).
17
Therefore, according to Petitioners, their expedited orders of
removal are unenforceable; they can no longer be considered
“ordered removed”; and there is no statutory bar under
§ 1252(e)(2) to judicial review and invalidation of the
expedited removal orders.
Castro forecloses this line of argument. There, the
petitioners likewise argued that we retained jurisdiction to
review whether they had been “ordered removed” because they
took issue with the validity of the order—in that case because
they claimed the asylum officer and the IJ conducted their
credible fear interviews in a manner that violated their
constitutional and statutory rights. Castro, 835 F.3d at 428,
430. We held that jurisdiction was precluded by § 1252(e)(5),
which provides:
In determining whether an alien has been ordered
removed under section 1225(b)(1) of this title
[the expedited removal provision], the court’s
inquiry shall be limited to whether such an order
in fact was issued and whether it relates to the
petitioner. There shall be no review of whether
the alien is actually inadmissible or entitled to
any relief from removal.
8 U.S.C. § 1252(e)(5). We held that the first sentence “clearly
evince[s] Congress’ intent to narrowly circumscribe judicial
review of issues relating to expedited removal orders,” and that
the second sentence further “clarifies the narrowness of the
inquiry under the first sentence, i.e., that review should only be
for whether an immigration officer issued that piece of paper
and whether the Petitioner is the same person referred to in that
order.” Castro, 835 F.3d at 431 (citation omitted). Yet
18
Petitioners here, as in Castro, seek review beyond those two
extraordinarily narrow grounds. They do not contest that the
order was issued or that it relates to them; rather, their claim is
that the order is being illegally applied to them. No fair reading
of Castro permits that inquiry.
Moreover, Castro indirectly confronted, and rejected,
an argument nearly identical to Petitioners’ parole argument
when it discounted the reasoning of American-Arab Anti-
Discrimination Committee v. Ashcroft, 272 F. Supp. 2d 650
(E.D. Mich. 2003). Castro, 835 F.3d at 432. Just as Petitioners
here argue that they are “paroled” and therefore exempted from
expedited removal by the terms of the statute, the petitioners in
American-Arab—a group of Lebanese citizens against whom
expedited removal proceedings had commenced—argued that
they were not “arriving aliens” and therefore were ineligible
for expedited removal. 272 F. Supp. 2d at 664. In that case,
the court agreed with the petitioners, focusing on the fact that
§ 1252(e)(5) directs the “ordered removed” inquiry to
“whether [the order] relates to the petitioner,” and then
concluding that review of whether the statute was “lawfully
applied is a review of the question of whether an order of
expedited removal has been entered against them and whether
the order ‘relates’ to the individual.” Id. at 663. But in Castro
we found that court’s “construction of the statute to be not just
unsupported, but also flatly contradicted by the plain language
of the statute itself.” 835 F.3d at 432.
In an attempt to distinguish Castro, Petitioners argue
that they “do not challenge the entry of their expedited removal
orders,” but rather take issue with “actions by the Government
after the orders issued,” i.e., whether the Government can
circumvent the processes required by statute and regulation to
19
achieve de facto revocation of Petitioners’ SIJ status by
effectuating their expedited removal. Pet’r Br. 25. But § 1252
not only strips the courts of the ability to review the orders
themselves, but also to review “any other cause or claim arising
from or relating to the implementation or operation of” such an
order. 8 U.S.C. § 1252(a)(2)(A)(i). “Relating to” is typically
construed as having a broad, expansive meaning, including in
the immigration context. Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 383 (1992) (“The ordinary meaning of these
words [‘relating to’] is a broad one.”); Aguilar v. U.S.
Immigration. & Customs Enf’t Div. of Dep’t of Homeland Sec.,
510 F.3d 1, 10 (1st Cir. 2007) (suggesting that, for purposes of
a different provision of § 1252, “relating to” could be used to
mean “to sweep within its scope claims with only a remote or
attenuated connection” to the underlying removal).
Furthermore, “arising from or relating to” must be interpreted
broadly because we are reading the phrase in the context of a
statutory scheme that is “aimed at protecting the Executive’s
discretion from the courts.” Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 486 (1999). With these
considerations in mind, Petitioners’ claims as to the effect of
their SIJ status on the enforceability of their expedited orders
of removal do “arise from” or “relate to” those orders.
In sum, Petitioners seek a judgment holding that the
orders are unenforceable, but as Castro and the plain language
of § 1252 make clear, these claims fall within the ambit of the
jurisdiction-stripping provision.
B. Constitutional Basis for Jurisdiction
Because we conclude that the INA strips the federal
courts of jurisdiction to review Petitioners’ challenge to their
20
expedited removal orders, we must confront a second question,
this one of constitutional dimension: Does the stripping of
federal court jurisdiction to hear the claims of these children
violate the Suspension Clause? In view of their SIJ status and
the significant connections to the United States that it entails,
we hold today that it does.9
The Suspension Clause forbids suspension of the writ
of habeas corpus “unless when in Cases of Rebellion or
Invasion the public Safety may require it.” U.S. Const. art. I,
§ 9, cl. 2. To determine whether a jurisdiction-stripping statute
violates the Clause, we proceed, as in Castro, through the two-
step analysis that the Supreme Court announced in
Boumediene v. Bush, 553 U.S. 723 (2008). We first determine
“whether a given habeas petitioner is prohibited from invoking
the Suspension Clause due to some attribute of the petitioner
or to the circumstances surrounding his arrest or detention.”
9
In a recent concurrence, Justice Thomas argued that
the Suspension Clause should be unavailable to alien-
petitioners who claimed a right to bail hearings and sought only
“declaratory and injunctive relief,” but did not invoke § 2254
or request release from custody. Jennings v. Rodriguez, 138 S.
Ct. 830, 858 (2018) (Thomas, J., concurring). That view has
not been adopted by a majority of the Court, but even assuming
it is correct, it would not preclude jurisdiction here because
Petitioners did seek habeas relief in their initial complaint, and,
to the extent they request a stay of their expedited removal
orders, that relief is ancillary to the primary relief they seek:
release from the detention and from the expedited removal
authorized by their orders of removal under § 1225(b)(1).
21
Castro, 835 F.3d at 445 (citing Boumediene, 553 U.S. at 739).10
Then, if the petitioner is not prohibited from invoking the
Suspension Clause, we “turn to the question whether the
substitute for habeas is adequate and effective to test the
legality of the petitioner’s detention (or removal).” Id. at 445
(citing Boumediene, 553 U.S. at 739).
In Castro, we determined that the Suspension Clause
was not violated where aliens, apprehended within hours of
10
At the first step of the inquiry, the Boumediene Court
considered three sets of factors to determine that detainees at
Guantanamo Bay may seek the writ: “(1) the citizenship and
status of the detainee and the adequacy of the process through
which that status determination was made; (2) the nature of the
sites where apprehension and then detention took place; and
(3) the practical obstacles inherent in resolving the prisoner’s
entitlement to the writ.” Boumediene, 553 U.S. at 766.
Although, following Castro, we do not assess all of these
factors here, we are confident that they would similarly lead us
to conclude that Petitioners may invoke the Suspension Clause.
Like the “status of the detainee[s]” at Guantanamo Bay,
Petitioners’ “status” as SIJ designees militates against denial
of the writ. Id. As to the second and third factors relevant to
determining the reach of the Suspension Clause, Petitioners
were not apprehended or detained outside United States
territory, see Johnson v. Eisentrager, 339 U.S. 763, 777
(1950), nor are there serious practical obstacles to permitting
habeas corpus proceedings besides the kind of “incremental
expenditure of resources” that the Supreme Court deemed not
dispositive to the question of granting the writ, Boumediene,
553 U.S. at 769.
22
entering the country, were denied review of their expedited
removal orders. Id. at 445-46. We explained that the
petitioners there could not overcome the INA’s jurisdiction-
stripping provisions based on “physical presence alone,” id. at
448, but we explicitly “le[ft] it to courts in the future to
evaluate the Suspension Clause rights of an alien whose
presence in the United States goes meaningfully beyond that of
Petitioners here,” id. at 448 n.30. Castro anticipated
circumstances like those with which we are presented today,
and it foreshadowed the outcome: Because SIJ status reflects
Petitioners’ significant ties to this country and Congress’s
determination that such aliens should be accorded important
statutory and procedural protections, Petitioners are entitled to
invoke the Suspension Clause and petition the federal courts
for a writ of habeas corpus. We further conclude that because
the expedited removal regime does not provide an adequate
substitute process, the INA’s jurisdiction-stripping provisions
effect an unconstitutional suspension of the writ as applied to
Petitioners. We address the Boumediene steps in sequence.
i. Boumediene Step One
We begin, as we did in Castro, by asking whether
Petitioners are “prohibited from invoking the Suspension
Clause due to some attribute of the petitioner[s] or to the
circumstances surrounding [their] arrest or detention.” Castro,
835 F.3d at 445 (citing Boumediene, 553 U.S. at 739). There,
we resolved the petitioners’ claims at the first step of the
Boumediene analysis based on the Supreme Court’s
“unequivocal[] conclu[sion] that ‘an alien seeking initial
admission to the United States requests a privilege and has no
constitutional rights regarding his application.’” Id. (quoting
Landon, 459 U.S. at 32). Recognizing that “initial admission”
23
in Landon can be read to mean “initial entry,”11 we decided that
aliens “apprehended within hours of surreptitiously entering
11
We noted in Castro that “‘initial admission’ in
Landon may simply be synonymous with ‘initial entry,’” such
that no meaning can be inferred from the fact that the Court
“did not categorize aliens based on whether they have entered
the country or not” but instead did so based “on whether the
aliens are ‘seeking initial admission to the United States.’”
Castro, 835 F.3d at 449 n.31 (emphasis omitted) (quoting
Landon, 459 U.S. at 32). This is clearly the correct reading,
and not merely because the Landon Court relied on United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950),
a case about entry, for the proposition that an “alien seeking
initial admission” has no constitutional rights, Landon, 459
U.S. at 32. More to the point, Landon was decided in 1982,
well before Congress passed the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Pub. L. No. 104-
208, 110 Stat. 3009 (1996) (IIRIRA), that, for the first time,
defined admission in terms of “lawful entry.” That Landon
intended its pre-IIRIRA references to “admission” as
references to entry of any kind, lawful or not, is reinforced by
the direct contrast the Court draws between an alien “seeking
admission” and an alien “already physically in the United
States” to explain the distinction between deportation and
exclusion proceedings. See Landon, 459 U.S. at 25.
Unsurprisingly, the pre-IIRIRA landscape is replete with
references to this binary, as well as interchangeable uses of
“admission” and “entry.” See, e.g., Sale v. Haitian Ctrs.
Council, Inc., 509 U.S. 155, 175 (1993) (“It is important to note
at the outset that our immigration laws have long made a
distinction between those aliens who have come to our shores
seeking admission, such as petitioner, and those who are within
24
the United States” are properly treated as aliens “seeking initial
admission” and that they therefore “cannot invoke the
Constitution, including the Suspension Clause, in an effort to
force judicial review beyond what Congress has already
granted them.” Id. at 445-46. But our reasoning in Castro
leads to the opposite conclusion here because, as SIJ designees,
Petitioners are readily distinguished from aliens “‘on the
threshold of entry’ who clearly lack constitutional due process
protections concerning their application for admission.” Id. at
444 (quoting Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206, 212 (1953)).
In Castro, we considered the Supreme Court’s
statement in Landon that “once an alien gains admission to our
country and begins to develop the ties that go with permanent
residence his constitutional status changes accordingly.” Id. at
448 (quoting Landon, 459 U.S. at 32 (emphasis added by
Castro)). And we also looked to United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990), where the Court maintained
that “aliens receive constitutional protections when they have
come within the territory of the United States and developed
substantial connections with this country.” Castro, 835 F.3d
at 448 (quoting Verdugo-Urquidez, 494 U.S. at 271 (emphasis
added by Castro)); see also Kwong Hai Chew v. Colding, 344
U.S. 590, 596 n.5 (1953) (“The alien, to whom the United
States has been traditionally hospitable, has been accorded a
generous and ascending scale of rights as he increases his
identity with our society.” (quoting Eisentrager, 339 U.S. at
770-71)). Noting these precedents and the Court’s consistent
the United States after an entry, irrespective of its legality.”
(emphasis added) (quoting Leng May Ma v. Barber, 357 U.S.
185, 187 (1958)).
25
emphasis on the relationship between alien and country, we
concluded that—although physical presence in the country for
any duration may be relevant—presence alone, particularly of
short duration, cannot be sufficient to establish that an alien is
entitled to constitutional protections, especially given
“Congress’ and the Executive’s plenary power over decisions
regarding the admission or exclusion of aliens”; consequently,
we rejected the petitioners’ attempts to use constitutional
protections to shield themselves from expedited removal. See
Castro, 835 F.3d at 448-50 & n.30.
In contrast, Petitioners here have developed the
“substantial connections with this country,” Verdugo-
Urquidez, 494 U.S. at 271, that “go with permanent residence,”
Landon, 459 U.S. at 32. That is because, as explained below,
(1) these children have satisfied rigorous eligibility criteria for
SIJ status, denoting them as wards of the state with obvious
implications for their relationship to the United States;
(2) Congress accorded these children a range of statutory and
procedural protections that establish a substantial legal
relationship with the United States; (3) with their eligibility for
application for permanent residence assured and their
applications awaiting only the availability of visas (a
development that is imminent by the Government’s
calculation) and the approval of the Attorney General, these
children have more than “beg[un] to develop the ties that go
with permanent residence,” Castro, 835 F.3d at 448 (quoting
Landon, 459 U.S. at 32); and (4) in contrast with the
circumstances in Castro, recognition of SIJ designees’
connection to the United States is consistent with the exercise
of Congress’s plenary power.
26
1. Eligibility Criteria
We begin with the requirements for SIJ status that
“show a congressional intent to assist a limited group of abused
children to remain safely in the country with a means to apply
for LPR status,” Garcia v. Holder, 659 F.3d 1261, 1271 (9th
Cir. 2011), and that, in effect, establish a successful applicant
as a ward of the United States with the approval of both state
and federal authorities, see Yeboah, 345 F.3d at 221; 8 U.S.C.
§ 1101(a)(27)(J); 8 C.F.R. § 204.11.
This understanding of SIJ status is reflected in the very
definition of a Special Immigrant Juvenile, i.e., a child “who
has been declared dependent on a juvenile court located in the
United States or whom such a court has legally committed to,
or placed under the custody of, an agency or department of a
State, or an individual or entity appointed by a State or juvenile
court located in the United States, and whose 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.” 8 U.S.C. § 1101(a)(27)(J)(i). It is also compelled not
only by the statute’s purpose and history, see Yeboah, 345 F.3d
at 221 (recognizing that Congress established SIJ status “to
protect abused, neglected, or abandoned children who, with
their families, illegally entered the United States”); see also
Conference Report on H.R. 2267, Sec. 113, Congressional
Record, House of Representatives, 143 Cong. Rec. H10809-01
(November 13, 1997) (observing that the statutory language
was modified “in order to limit the beneficiaries . . . to those
juveniles for whom it was created, namely abandoned,
neglected, or abused children”), but also by DHS’s own
characterization of SIJ status as a “classification to provide
humanitarian protection for abused, neglected, or abandoned
27
child immigrants eligible for long-term foster care,” 6 USCIS
Policy Manual, pt. J, ch. 1 (Mar. 21, 2018). And the SIJ
statute’s implementing regulations indicate that, to remain
eligible for adjustment of status pending visa availability, SIJ
designees must remain in the custody of the state court or state
agency to which they have been committed. See 8 C.F.R.
§ 204.11(c)(5) (noting that to be eligible for SIJ status, an alien
must “continue[] to be dependent upon the juvenile court and
eligible for long-term foster care” (emphasis added)); see also
Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54978-01,
54980 (proposed Sept. 6, 2011) (to be codified at 8 C.F.R pts.
204-05, 245) (noting that “dependency,” for purposes of SIJ
status, “encompasses dependency, commitment, or custody”).
Importantly, that close, dependency relationship with
the United States is also borne out by the statutory criteria for
SIJ eligibility. To qualify for SIJ status, applicants not only
must be physically present in the United States, unmarried, and
under the age of twenty-one, but also, before applying to
USCIS, they must obtain an order of dependency from a state
juvenile court. 8 U.S.C. § 1101(a)(27)(J)(i); 8 C.F.R.
§ 204.11(c). That order requires the state court to find: (1) that
the applicant is “dependent on a juvenile court . . . or placed
under the custody” of a state agency or someone appointed by
the state; (2) that “it would not be in the alien’s best interest to
be returned to the alien’s or parent’s previous country of
nationality or . . . habitual residence,”; and (3) 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.” 8 U.S.C. § 1101(a)(27)(J)(i), (ii); see
also 8 C.F.R. § 204.11(a), (c). Moreover, these determinations
must be “in accordance with state law governing such
declarations of dependency,” 8 C.F.R. § 204.11(c)(3), which,
28
depending on the state, may also entail specific residency
requirements, e.g., Pa. R. Civ. P. § 1915.2(a)(ii) (providing that
the dependency action must be brought in the child’s home
county or a county “which had been the child’s home county
within six months before commencement of the
proceeding”). 12 Petitioners themselves had resided in
Pennsylvania for more than six months before seeking their
state court dependency declarations. See Tr. of Oral Arg. 64:6-
9 (“The reason that they got SIJ status, they had to be here for
at least six months under Pennsylvania law to even go to seek
a predicate order for SIJ status through the state courts.”).
With that order in hand, applicants must then file an
application with USCIS, along with “sufficient evidence to
establish . . . eligibility” and the associated filing fee. 6 USCIS
Policy Manual, pt. J, ch. 4 (Mar. 21, 2018); see also USCIS,
Petition for Amerasian, Widow(er), or Special Immigrant
(Form I-360), https://www.uscis.gov/i-360. The Secretary of
Homeland Security must also consent to the grant of SIJ status,
which functions as “an acknowledgement that the request for
12
Aside from residency, states impose a variety of
requirements to establish dependency over and above those
required by the terms of the SIJ statute, reinforcing that an
order of dependency reflects an independent relationship
between the SIJ applicant and the state. See, e.g., In re Erick
M., 820 N.W.2d 639, 648 (Neb. 2012) (requiring a showing
that reunification with neither parent is feasible, rather than
reunification with either parent, as the SIJ statute requires);
O.I.C.L. v. Dep’t of Children & Families, 169 So. 3d 1244,
1249 (Fla. Dist. Ct. App. 2015) (requiring a showing that the
abuse was not “too remote in time”).
29
SIJ classification is bona fide”—that is, that the benefit is
“‘sought primarily . . . for the purpose of obtaining relief from
abuse or neglect or abandonment.’” USCIS Memorandum 3
(quoting H.R. Rep. No. 105-405, at 130); see also 8 U.S.C.
§ 1101(a)(27)(J).
All of these requirements attest to SIJ designees’
dependency and close ties with state and federal authorities, the
risk to their well-being in being removed to their countries of
origin, and a relationship to the United States that far exceeds
that of aliens “on the threshold of initial entry” or
“apprehended within hours of surreptitiously entering the
United States.”13 Castro, 835 F.3d at 444-45.
13
This is not to suggest that aliens must be accorded a
formal statutory designation and attendant benefits to lay claim
to “substantial connections” to this country, or indeed, that an
alien must have such connections to invoke the Suspension
Clause. See Nat’l Council of Resistance of Iran v. Dep’t of
State, 251 F.3d 192, 202 (D.C. Cir. 2001) (pointing out that
Verdugo-Urquidez did not state that “only” individuals who
have “substantial connections” are entitled to constitutional
protections and, in concluding that the appellant had developed
such connections, declining to undertake “as a general matter
. . . how ‘substantial’ an alien’s connections with this country
must be” to merit constitutional protections). We need not
address here what minimum requirements aliens must meet to
lay claim to constitutional protections. We hold merely that
SIJ designation and the relationship to the United States to
which it attests are more than sufficient.
30
2. Legal Relationship with the
United States
SIJ status also reflects the determination of Congress to
accord those abused, neglected, and abandoned children a legal
relationship with the United States and to ensure they are not
stripped of the opportunity to retain and deepen that
relationship without due process. See Garcia, 659 F.3d at 1271
(describing SIJ status as a “special recognition and opportunity
to make contacts in this country”).
That is, with the protections it afforded those with SIJ
status, Congress provided opportunities for this class of aliens
to strengthen their connections to the United States, pending a
determination on their applications for adjustment of status.
Not only are SIJ designees “deemed, for purposes of
[adjustment of status to lawful permanent resident under
§ 1255(a)], to have been paroled into the United States,”14 8
14
Much ink has been spilled in this case over one of the
underlying merits questions: whether “deemed, for purposes of
[§ 1255(a)], to have been paroled,” 8 U.S.C. § 1255(h)(1),
qualifies SIJ designees as “paroled” for any other purpose in
the INA. Specifically, Petitioners contend that because they
are “deemed . . . paroled” by virtue of their SIJ status, they are
now categorically exempt from expedited removal, which
applies only to “aliens arriving in the United States . . . who
have not been admitted or paroled.” Id. § 1225(b)(1). From
this perspective, reading “deemed” to diminish the word it
modifies would be inconsistent with its plain meaning of to
“judge” or to “classify,” Deem, Webster’s Third New
International Dictionary 589 (1964), and with the use of the
term elsewhere in the INA, see, e.g., 8 U.S.C.
31
U.S.C. § 1255(h)(1), but Congress also enlarged the chance
that Petitioners would be successful in their applications for
§ 1182(a)(9)(B)(ii); id. § 1226a(a)(7), and in case law, see,
e.g., Centurion v. Holder, 755 F.3d 115, 120 (2d Cir. 2014);
Othi v. Holder, 734 F.3d 259, 267 (4th Cir. 2013); Joubert v.
Barnhart, 396 F. Supp. 2d 1320, 1326 (S.D. Fla. 2005). The
Government, on the other hand, emphasizes that § 1255(h)(1)
accords parole “for purposes of [§ 1255(a)]” and argues that
the District Court was correct to conclude being “deemed . . .
paroled” is a “legal fiction created only to allow DHS to
determine whether an alien is eligible for an immigrant visa
under § 1255(a),” Gov’t Br. 24-25 (quoting Osorio-Martinez
et al. v. Att’y Gen., No. 5:17-cv-01747, at *10 (E.D. Pa. May
23, 2017)). From that perspective, Congress made a distinction
between those “deemed, for purposes of [§ 1255(a)], to have
been paroled” in 8 U.S.C. § 1255(h)(1) and those granted
“parole” under 8 U.S.C. § 1182(d)(5)(a), and, as the
Government would have it, intended to exempt only the latter
from expedited removal when it limited § 1225(b)(1) to those
“not . . . admitted or paroled.” The merits of these arguments,
however, are not what we must resolve today: For our
purposes, even assuming that SIJ designees are deemed
“paroled” for no other purpose than adjustment of status under
§ 1255(a), Congress expressly exempted only SIJ designees
and aliens who served honorably in active duty in the United
States military from § 1255(a)’s general requirement that
aliens be “admitted or paroled into the United States” before
applying for adjustment of status, id. §§ 1255(h)(1), 1255(g)—
a significant benefit that supports the substantial legal
relationship of SIJ designees with the United States and, hence,
their ability to invoke the Suspension Clause and obtain
judicial review.
32
adjustment by exempting them from a host of grounds that
would otherwise render them inadmissible—including being
found to be a “public charge,” lacking a “valid entry
document,” or having “misrepresented a material fact”—while
seeking admission into the United States, id. § 1182(a); see
also id. § 1255(h)(2)(A). Similarly, Congress conferred on SIJ
designees a variety of other statutory benefits that deepen the
ties of those permitted to remain in the United States while they
await that adjustment of status, such as access to federally
funded educational programming, see id. § 1232(d)(4)(A), and
preferential status when seeking employment-based visas, see
id. § 1153(b).
In addition, Congress also afforded these aliens a host
of procedural rights designed to sustain their relationship to the
United States and to ensure they would not be stripped of SIJ
protections without due process. SIJ status may be revoked
only for what the Secretary of Homeland Security deems “good
and sufficient cause.” 8 U.S.C. § 1155; 8 C.F.R. § 205.2; see
also 7 USCIS Policy Manual, pt. F, ch. 7 (Mar. 21, 2018).
Even then, revocation must be “on notice,” meaning that the
agency must provide the SIJ designee with “notice of intent”
to revoke, an “opportunity to offer evidence . . . in opposition
to the grounds alleged for revocation,” a “written notification
of the decision that explains the specific reasons for the
revocation,” and the option to file an appeal within the agency.
8 C.F.R. § 205.2. SIJ designees are also entitled to judicial
review to the extent they challenge actions not “committed to
agency discretion by law,” 5 U.S.C. § 701(a)(2), including the
agency’s application of the SIJ criteria and compliance with
specified procedures. See Quarantillo, 301 F.3d at 111-14
(judicial review available for denial of SIJ status based on 8
C.F.R. § 204.11(c) factors); Yeboah, 345 F.3d at 220, 222 n.5
33
(same); Ghaly v. INS, 48 F.3d 1426, 1436-37 (7th Cir. 1995)
(judicial review available for revocation of status under 8
C.F.R. § 205.2); cf. Jilin Pharm., 447 F.3d at 200 (no judicial
review for whether the Secretary of Homeland Security has
found “what he deems to be good and sufficient cause” because
it is committed to agency discretion under 8 U.S.C. § 1155).
Yet revocation of these statutory rights without cause,
notice, or judicial review is precisely the consequence of
expedited removal. Despite their SIJ classification, the
children, once removed, would be unable to adjust status
because doing so requires physical presence within the United
States, see 8 U.S.C. § 1255(a), and further, they would be
barred from reentry for at least five years, see id.
§ 1182(a)(9)(A)(i); 22 C.F.R. § 40.91(a). 15 Moreover,
15
The Government points out that 8 U.S.C.
§ 1182(a)(9)(A)(iii) allows the Director of USCIS to waive
Petitioners’ inadmissibility. But this is a small comfort indeed,
as the grant or denial of such a waiver is an unreviewable
discretionary decision, see 8 U.S.C. § 1252(a)(2)(B), has no
fixed timeline by which waiver applications must be processed,
USCIS, Application for Permission to Reapply for Admission
Into the United States After Deportation or Removal (Form I-
212), https://www.cbp.gov/travel/international-visitors/
admission-forms/form-i-212-application-permission-reapply-
admission-united-states-after (informing applicants that
review of a request to waive inadmissibility “can take up to six
months or longer”), costs applicants many hundreds of dollars
in fees, USCIS, Instructions for Application for Permission to
Re-apply for Admission Into the United States After
Deportation or Removal (Form I-212), at 15,
https://www.uscis.gov/sites/default/files/files/form/i-
34
Petitioners’ expedited removal would be based on a ground for
inadmissibility—lack of valid immigration documentation, see
8 U.S.C. § 1182(a)(7)(A)—from which Petitioners are
expressly exempted by virtue of their SIJ status, see id.
§ 1255(h)(2)(A). In short, expedited removal would render SIJ
status a nullity.
And beyond the direct repudiation of the statutory rights
of SIJ designees, expedited removal would also implicate
constitutional due process concerns. In Yeboah we observed
that in deciding whether to grant a juvenile alien consent to go
before a state juvenile court for a dependency hearing, as
required to obtain SIJ status, “[t]he INS Director’s discretion
is bound only by due process considerations.” 345 F.3d at 223.
We explained that, “[a]s a juvenile alien, [the petitioner] has
the right to have his request for a dependency hearing
considered in accordance with INS policy.” Id. (emphasis
added); see also Gao v. Jenifer, 185 F.3d 548, 557 (6th Cir.
1999) (SIJ status confers “a meaningful legal benefit”). More
generally, we recognized in Dia v. Ashcroft that “[t]he due
process afforded aliens stems from those statutory rights
granted by Congress and the principle that ‘[m]inimum due
process rights attach to statutory rights.’” 353 F.3d 228, 239
212instr.pdf (noting that filing fee for waiver of inadmissibility
is $930), and even in the case of approval would still only result
in relief after Petitioners waited in queue for available visas,
which the Government informs us are currently backlogged by
at least two years, Gov’t Br. 26. And perhaps most
importantly, there is no affirmative reason to believe such a
waiver would be granted at all.
35
(3d Cir. 2003) (quoting Marincas v. Lewis, 92 F.3d 195, 203
(3d Cir. 1996)).
Moreover, while the creation of statutory rights
associated with a given immigration status falls exclusively
within the purview of Congress, it bears mention that the
Executive to this point has consistently respected those rights
and allowed SIJ designees to remain in the United States
pending adjustment of status. Although the INA allows the
DHS to expeditiously remove certain aliens apprehended up to
two years after entering the United States and who were
encountered anywhere within United States territory, see 8
U.S.C. § 1225(b)(1), it apparently has not, until recently,
sought even standard removal, much less expedited removal,
of SIJ designees while their applications for adjustment of
status were pending, App. 284. 16 To the contrary, under
16
Notably, the agency has traditionally limited the
application of expedited removal to aliens “encountered within
14 days of entry without inspection and within 100 air miles of
any U.S. international land border.” Designating Aliens for
Expedited Removal, 69 Fed. Reg. 48877-01, 48879 (Aug. 11,
2004). The President has recently directed the Secretary of
DHS to “take appropriate action to apply” expedited removal
proceedings “to aliens designated under [8 U.S.C.
§ 1225(b)(1)(A)(iii)(II)],” Exec. Order No. 13,767, 82 Fed.
Reg. 8793 (Jan. 25, 2017), and, while it appears that SIJ
designees cannot lawfully be subjected to such proceedings in
any event for the reasons we explain here, even if they could,
the Secretary has not yet published any notice of a new policy.
See Memorandum from John Kelly, Sec’y of U.S. Dep’t of
Homeland Sec. to Kevin McAleenan, Acting Comm’r of U.S.
Customs and Border Prot. et al., Implementing the President’s
36
USCIS policy, if a “SIJ is in removal proceedings, the
immigration court must terminate [removal] proceedings
before USCIS can adjudicate the adjustment application.” 6
USCIS Policy Manual, pt. J, ch. 4 n.2 (Mar. 21, 2018).
Similarly, the BIA has made clear its conclusion that even mere
applicants for SIJ status—let alone children who have already
received SIJ status—should not be removed from the country,
as it has repeatedly held that “[a]bsent evidence of an alien’s
ineligibility for SIJ status, an Immigration Judge should, as a
general practice, continue proceedings to await adjudication of
a pending state dependency petition,” In re Adelina Gonzalez-
Morales, A206 453 127, 2015 WL 4873234, at *1 (BIA July
2, 2015); accord In re Johan Fuentes, A202 005 328, 2015 WL
4510742, at *1 (BIA June 19, 2015); In re Maria Georgina
Martinez-Mendoza, A206 732 194, 2015 WL 3896298, at *2
(BIA June 1, 2015). The Chief Immigration Judge has likewise
instructed IJs that “if an unaccompanied child is applying for
Special Immigrant Juvenile . . . status, the case must be
administratively closed or reset for that process to occur in the
appropriate state or juvenile court.” 17 Memorandum from
Border Security and Immigration Enforcement Improvements
Policies 7 (Feb. 20, 2017) (stating that DHS “will publish in
the Federal Register a new Notice Designating Aliens Subject
to Expedited Removal . . . , which may, to the extent I
determine is appropriate, depart” from current limitations).
17
We note that the Attorney General recently issued a
decision instructing IJs and the BIA that cases should be
“administratively closed” only where expressly authorized by
regulation or judicially approved settlement and explaining
that “[c]ases that should not go forward should be terminated
(either with or without prejudice), or dismissed,” or upon a
37
Brian M. O’Leary, Chief Immigration Judge, Exec. Office for
Immigration Review, U.S. Dep’t of Justice, to All Immigration
Judges, Docketing Practices Relating to Unaccompanied
Children Cases and Adults with Children Released on
Alternatives to Detention Cases in Light of the New Priorities
2 (Mar. 24, 2015) [hereinafter O’Leary Memorandum].
In sum, because Petitioners enjoy at least “minimum
due process rights” by virtue of their SIJ designation, this case
stands in stark contrast to the key precedents we relied on in
Castro—two Cold War-era decisions about aliens detained on
Ellis Island at the threshold of entry—to conclude that aliens
apprehended within hours of entering the country could not lay
claim to constitutional rights and could not invoke the
Suspension Clause. 835 F.3d at 444, 447-48 (citing Knauff,
338 U.S. at 544, and Mezei, 345 U.S. at 212). Instead, the facts
before us more resemble those in Khouzam v. Attorney
General, where we held that neither Mezei nor Knauff was
applicable for purposes of determining whether an alien
“detained immediately upon arrival without proper
documentation” was entitled to due process because the alien
“ha[d] already been granted statutory relief from removal.”
549 F.3d 235, 256 (3d Cir. 2008) (citations omitted). Here,
likewise, the children’s statutory rights and attendant
constitutional rights as SIJ designees bespeak a substantial
legal relationship between them and the United States—a
showing of good cause, handled by way of “continuance[] . . .
for a fixed but potentially renewable period of time.” Matter
of Castro-Tum, 27 I. & N. Dec. 271, 291 (Att’y Gen. 2018)
(quoting 8 C.F.R. § 1003.29).
38
relationship far more significant than what we considered upon
the petitioners’ initial entry in Castro.18
3. Relationship to Lawful
Permanent Resident Status
Because of the rights and benefits they have been
accorded, SIJ designees stand much closer to lawful permanent
residents than to aliens present in the United States for a few
hours before their apprehension. Indeed, Petitioners are a
hair’s breadth from being able to adjust their status, pending
only the availability of immigrant visas and the approval of the
18
We do not suggest that habeas relief is contingent on
a prior determination of the due process rights of a detainee.
See Gerald L. Neuman, The Habeas Corpus Suspension Clause
After Boumediene v. Bush, 110 Colum. L. Rev. 537, 574
(2010) (noting that in Boumediene, “the Supreme Court found
that the Guantanamo detainees were protected by the
Suspension Clause without first inquiring whether they had
rights under the Due Process Clause”). Nor must we precisely
ascertain the extent or nature of Petitioners’ statutory or due
process rights and the relationship between these rights and the
Suspension Clause. See Martin H. Redish & Colleen
McNamara, Habeas Corpus, Due Process and the Suspension
Clause: A Study in the Foundations of American
Constitutionalism, 96 Va. L. Rev. 1361, 1364 (2010) (“[T]he
relationship between the Suspension and Due Process Clauses
remains completely unsettled.”). While aliens who lack
constitutional rights of any kind are precluded from invoking
the Suspension Clause, those who enjoy the statutory and due
process rights that accompany SIJ status are not.
39
Attorney General.19 See 8 U.S.C. § 1255(a). This proximity
to LPR status is significant because the lawful permanent
resident is the quintessential example of an alien entitled to
“broad constitutional protections.” Castro, 835 F.3d at 447;
see also Kwong Hai Chew, 344 U.S. at 596 (“[A] lawful
permanent resident of the United States . . . physically present
there . . . may not be deprived of his life, liberty or property
without due process of law.”). And once immigrant visas
become available and Petitioners attain LPR status, there is no
question that they would be excepted from the INA’s
jurisdiction-stripping provision, such that any attempt to
enforce removal orders previously issued against them would
be subject to our review. 8 U.S.C. § 1252(e)(2)(C) (allowing
judicial review as to whether the petitioner is “an alien lawfully
admitted for permanent residence”); see also Memorandum
from William R. Yates, Assoc. Dir. for Operations, USCIS, to
Regional and District Directors, Memorandum #3 – Field
Guidance on Special Juvenile Status Petitions 2 (May 27,
2004) (“Juveniles who adjust status as a result of an SIJ
classification enjoy all benefits of lawful permanent
residence.” (emphasis added)).
To emphasize what it perceives as the gulf between a
lawful permanent resident and a SIJ designee, the Government
makes much of the fact that adjustment of status is a
discretionary determination, to which aliens are not entitled
merely by virtue of having obtained SIJ status or having filed
an adjustment application. In a similar vein, the Government
stresses that an alien who obtained SIJ classification may still
19
Although adjustment of status may be denied at the
discretion of the Attorney General, see 8 U.S.C. § 1255(a), the
Government has given no indication that would occur here.
40
be inadmissible. But for purposes of determining whether an
alien may lay claim to any constitutional protections regarding
their application for admission, these points are neither here
nor there. Nothing in our precedent suggests that the lack of
lawful permanent resident status, potential inadmissibility, or
the happenstance that visas are not currently available is
dispositive in assessing an alien’s entitlement to habeas review.
On the contrary, an undocumented alien who has continuously
lived in the country for “several years” is obviously not a
lawful resident and is potentially inadmissible, yet in Castro
we pointed out such an alien “could very well” succeed in a
constitutional attack on § 1252(e)(2). 835 F.3d at 433 n.13.
Here, Petitioners have exercised the rights accorded
them as SIJ designees and have had their LPR applications
pending for close to two years. 20 Assuming, as the
Government asserted at the time of briefing, that the waiting
list was then about two years long, Petitioners’ receipt of visas
is imminent. We consider these circumstances, including
Petitioners’ proximity to LPR status with its even fuller range
of rights, as further evidence of their meaningful and
substantial connection with the United States.
20
Although not the basis for our decision today, we note
that Petitioners have lived in the United States during this
period and at least some of that time has been outside of
detention in local communities. See supra note 5. In Castro
we explained that “physical presence is a factor courts should
consider” in assessing an alien’s constitutional rights, even
though in the case of an alien apprehended immediately upon
entering the country it may not be sufficient in establishing
such rights. 835 F.3d at 448 n.30.
41
4. The Plenary Power Doctrine
In Castro, where the petitioners were “on the threshold
of initial entry” and had no connection to the United States, we
held that deference to “Congress’ and the Executive’s plenary
power over decisions regarding the admission or exclusion of
aliens” compelled a judgment for the Government. Castro,
835 F.3d at 450. As we observed, “the power to expel or
exclude aliens [i]s a fundamental sovereign attribute exercised
by the Government’s political departments largely immune
from judicial control,” id. at 439 (quoting Fiallo v. Bell, 430
U.S. 787, 792 (1977)). But we also recognized that, while the
political branches’ plenary power over immigration is “by no
means . . . subject to judicial review in all contexts,” it is
“certain[ly]” subject to judicial review in some contexts
because that power “is [not] limitless in all respects.” Id. at
449 n.32. Rather, the plenary power “is subject to important
constitutional limitations,” Zadvydas, 533 U.S. at 695, and it is
the province of the courts to decide “whether Congress has
chosen a constitutionally permissible means of implementing
that power,” INS v. Chadha, 462 U.S. 919, 941 (1983).
With those limitations in mind, we were careful in
Castro to distinguish “aliens seeking initial admission to the
country” for whom Congress, in the exercise of its plenary
power, had foreclosed any claim to constitutional protection,
835 F.3d at 449 & n.32, and aliens who had developed
“substantial connections with this country” and therefore did
“receive constitutional protections,” including the right to
invoke habeas review under the Suspension Clause, id. at 448
(quoting Verdugo-Urquidez, 494 U.S. at 271) (emphasis
omitted).
42
In contrast to the petitioners in Castro, Petitioners in
this case fall squarely in the second category. As SIJ
designees, Petitioners have satisfied the SIJ eligibility criteria,
have been declared dependents of the State, have been
accorded an array of significant statutory rights and procedural
protections by Congress, have been “deemed paroled into the
United States” for purposes of adjustment of status, and are
eligible for that adjustment of status as soon as visas become
available off the wait list. See supra Section III.B.i.1-3. In
these circumstances, the plenary power of the political
departments does not preclude invocation of the Suspension
Clause. See Zadvydas, 533 U.S. at 695; Chadha, 462 U.S. at
941; Castro, 835 F.3d at 448. Indeed, if anything, it cuts the
other way: the rights and safeguards that Congress has
legislated for SIJ designees could be duly considered in
standard removal proceedings, but they would be eviscerated
by the expedited removal now sought by the Attorney General.
See supra Section III.B.i.2. Insulating expedited orders from
judicial review thus hardly accords respect to Congress’s wide-
ranging authority in the immigration realm.21
21
Nor, to the extent our respect for the political
branches’ power over immigration policy extends to the
Executive, does the Attorney General’s decision here to
proceed with expedited removal give rise to a concern under
the plenary power doctrine. Tellingly, before this point, the
Executive itself had consistently acknowledged the special
relationship of SIJ designees to the United States, by
instructing IJs that they “must terminate [removal] proceedings
before USCIS can adjudicate the adjustment application” of
SIJ applicants, 6 USCIS Policy Manual, pt. J, ch. 4 n.2 (Mar.
21, 2018), and that removal cases of children applying for SIJ
status “must be administratively closed or reset for that process
43
Instead, we recognize that the power to expel, exclude,
or deny lawful immigration status to aliens necessarily
encompasses the power to decline to do any of these. Thus,
while it remains true that “[o]ver no conceivable subject is the
legislative power of Congress more complete than it is over the
admission of aliens,” Kleindienst v. Mandel, 408 U.S. 753, 766
(1972) (quoting Lem Moon Sing v. United States, 158 U.S. 538,
547 (1895) (Harlan, J.)), that plenary power has been
marshalled here to protect Petitioners, not to deprive them of
process, and Petitioners therefore do not seek “to force judicial
review beyond what Congress has already granted them,”
Castro, 835 F.3d at 446, but rather to enforce the very rights
and review that Congress did grant.
to occur in the appropriate state or juvenile court,” O’Leary
Memorandum 2. Cf. supra note 17. Of course, where
Congress has committed immigration decisions to the
discretion of the Attorney General, “[j]udicial deference” to an
exercise of that discretion “is of special importance.” Negusie
v. Holder, 555 U.S. 511, 517 (2009). But where, as here,
Petitioners claim the Attorney General is now contravening
Congress’s mandate, they challenge “the extent of the Attorney
General’s authority under the [INA]” and “the extent of that
authority is not a matter of discretion.” Zadvydas, 533 U.S. at
688. Instead, the Attorney General must respect that the
“formulation of [immigration] policies is entrusted exclusively
to Congress,” and “[i]n the enforcement of these policies, the
Executive Branch of the Government must respect the
procedural safeguards of due process.” Kleindienst v. Mandel,
408 U.S. 753, 767 (1972).
44
For these reasons, Petitioners may not be denied the
privilege of habeas corpus, and we proceed to the next step of
our inquiry.
ii. Boumediene Step Two
At the second step of the Boumediene analysis, we
determine “whether the statute stripping jurisdiction . . . has
provided adequate substitute procedures for habeas corpus,”
for if it does there is no violation of the Suspension Clause.
Boumediene, 553 U.S. at 771. As we will explain, however,
here the statute does not provide “an ‘adequate and effective’
alternative to habeas review.” Khouzam, 549 F.3d at 246
(quoting Swain v. Pressley, 430 U.S. 372, 381 (1977)).
In Boumediene, the Supreme Court took care to explain
that habeas review is “most pressing” in the case of executive
detention, as opposed to where “relief is sought from a
sentence that resulted from the judgment of a court of record.”
Boumediene, 553 U.S. at 782-83. For the writ to be effective
in such a case, “[t]he habeas court must have sufficient
authority to conduct a meaningful review of both the cause for
detention and the Executive’s power to detain.” Id. at 783; see
also INS v. St. Cyr, 533 U.S. 289, 301 (2001) (“At its historical
core, the writ of habeas corpus has served as a means of
reviewing the legality of Executive detention, and it is in that
context that its protections have been strongest.”). More
specifically, the Court declared it “uncontroversial . . . that the
privilege of habeas corpus entitles the prisoner to a meaningful
opportunity to demonstrate that he is being held pursuant to
‘the erroneous application or interpretation’ of relevant
law.” Boumediene, 553 U.S. at 779 (quoting St. Cyr, 533 U.S.
at 302).
45
But the INA’s jurisdiction-stripping provisions do not
provide even this “uncontroversial” baseline of review.
Instead, § 1252(e)(2) permits habeas review of expedited
removal orders as to only three exceptionally narrow issues:
whether the petitioner (1) is an alien, (2) was “ordered
removed” (which we have interpreted to mean only “whether
an immigration officer issued that piece of paper [the removal
order] and whether the Petitioner is the same person referred to
in that order,” Castro, 835 F.3d at 431 (internal citation
omitted)), and (3) can prove his or her lawful status in the
country. 8 U.S.C. § 1252(e)(2). It also explicitly precludes
review of “whether the alien is actually inadmissible or entitled
to any relief from removal,” id. § 1252(e)(5), and of “any other
cause or claim arising from or relating to the implementation
or operation of” the removal order, id. § 1252(a)(2)(A)(i).
Together, these provisions prevent us from considering
“whether the expedited removal statute was lawfully applied to
petitioners,” Castro, 835 F.3d at 432 (quoting Am.-Arab, 272
F. Supp. 2d at 663), and thus preclude review of “the erroneous
application or interpretation of relevant law,” Boumediene, 553
U.S. at 779 (quoting St. Cyr, 533 U.S. at 302). That, however,
is the “uncontroversial” minimum demanded by the Great
Writ.22 Id.
22
Given the starkness of the jurisdiction-stripping
statute’s deficiency, we need not engage in an extended inquiry
here. We note, however, that even if it were a closer question,
other guidance in Boumediene would lead us to the same result.
As discussed by the Second Circuit in Luna v. Holder, 637 F.3d
85, 98-99 (2d Cir. 2011), where it considered whether statutory
motions to reopen—a process that allows Circuit Courts to
engage in de novo review of “questions of law and
constitutional claims”—constituted an acceptable substitute
46
Because we conclude both that Petitioners may invoke
the privilege of habeas corpus and that the INA does not
provide “adequate substitute procedures” in its absence,
Boumediene, 553 U.S. at 771, we hold that § 1252(e) violates
the Suspension Clause as applied to Petitioners and that the
District Court therefore retains jurisdiction to consider
Petitioners’ claims on remand.
C. Temporary Injunctive Relief
As a final matter, we consider the implications of our
holding for the District Court’s dissolution of the temporary
restraining order and denial of injunctive relief pending
resolution of Petitioners’ complaint. The District Court
concluded it lacked jurisdiction to issue a writ of habeas corpus
and enjoin Petitioners’ removal or to order them placed in
standard removal proceedings, reasoning that Petitioners could
not satisfy the standard for injunctive relief absent subject-
matter jurisdiction.
for habeas review, Boumediene counsels us to ask whether “the
purpose and effect of the [substitute] was to expedite
consideration of the [detainee’s] claims, not to delay or
frustrate it,” whether “the scope of the substitute procedure . . .
[is] ‘subject to manipulation’ by the Government,” whether the
“mechanism for review . . . ‘is wholly a discretionary one,’”
and whether “the entity substituting for a habeas court . . .
‘[has] adequate authority . . . to formulate and issue appropriate
orders for relief.’” Luna, 637 F.3d at 97 (quoting Boumediene,
553 U.S. at 775-91). For the reasons we have explained, here,
as in Luna, those considerations also favor Petitioners.
47
To obtain a preliminary injunction, the moving party
must show: (1) a likelihood of “succe[ss] on the merits,” (2) a
likelihood that the moving party will “suffer irreparable harm,”
(3) that the “balance of equities” weighs in the moving party’s
favor, and (4) that injunctive relief is in “the public interest.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
If the moving party has established the first two “most critical”
factors, Nken v. Holder, 556 U.S. 418, 434 (2009), the district
court then performs a “balancing of the factors” Reilly v. City
of Harrisburg, 858 F.3d 173, 180 n.5 (3d Cir. 2017), to
determine whether the prongs, “taken together, balance in
favor of granting the requested preliminary relief,” id. at 179.
Where the Government is the non-moving party in the
immigration context, the third and fourth factors generally
“merge” into one. Nken, 556 U.S. at 435.
Considering these factors here, we conclude the District
Court erred in dissolving the TRO and denying Petitioners’
motion for injunctive relief.23 The first factor, likelihood of
success on the merits of their underlying habeas petition, is
easily established given the incompatibility of expedited orders
23
We exercise our discretion in this circumstance to
address the District Court’s rulings on the merits, rather than
remand for the District Court to reconsider injunctive relief in
light of this opinion. Although we recognize that the Court
diligently sought to comport its rulings with Castro and did not
have the benefit of our holding today, there is no need to
remand where, as here, “the outcome is clear as a matter of
law,” Blackledge v. Blackledge, 866 F.3d 169, 182 (3d Cir.
2017) (citations omitted), and the interest of judicial economy
counsels against doing so, Reifer v. Westport Ins. Corp., 751
F.3d 129, 149 (3d Cir. 2014).
48
of removal with the statutory and constitutional rights of SIJ
designees. Congress granted SIJ designees a clear set of rights,
including eligibility to apply for adjustment to LPR status,
protection against having their SIJ status revoked without
statutorily prescribed process, and the due process rights that
automatically attach to statutory rights. See supra Section
III.B.i.1-2. Yet each of these rights and protections would be
summarily stripped from Petitioners upon execution of the
expedited orders of removal against them.
The second factor, irreparable harm, is also satisfied
given the finding in this case by a juvenile court “that
reunification with one or more of the child’s parents was not
viable due to abuse, neglect, or abandonment, and that it would
not be in the child’s best interest to be returned to his or her
country of origin.” App. 7-8. This conclusion is also bolstered
by the drastic legal consequences that expedited removal
would carry for Petitioners’ pending applications for
adjustment of status and future admissibility. See supra
Section III.B.i.2.
The third and fourth factors also weigh in favor of
Petitioners. We are aware of the “public interest in prompt
execution of removal orders” and the Supreme Court’s
admonition against characterizing the Government harm in
removal cases as “nothing more than one alien being permitted
to remain while an appeal is decided.” Nken, 556 U.S. at 435-
36 (citation omitted). But the fact that the Government has
not—until now—sought to remove SIJ applicants, much less
designees, undermines any urgency surrounding Petitioners’
removal. Instead, by approving Petitioners’ SIJ applications,
the Secretary of Homeland Security “acknowledge[d] . . . that
the SIJ benefit was . . . sought . . . for the purpose of obtaining
49
relief from abuse or neglect or abandonment” in the countries
to which Petitioners would be removed. USCIS Memorandum
3. And it is squarely in the public interest to enable individuals
to partake of statutory and constitutional rights and meaningful
judicial review where, as here, it is consistent with the process
prescribed by Congress. See California ex rel. Van De Kamp
v. Tahoe Reg’l Planning Agency, 766 F.2d 1319, 1325-26 (9th
Cir. 1985), amended 775 F.2d 998 (9th Cir. 1985) (affirming
injunction and allowing party to proceed without posting bond
where doing so “would effectively deny access to judicial
review”).
IV. Conclusion
For the foregoing reasons, we will reverse the District
Court’s denial of Petitioners’ request for injunctive relief and
remand for proceedings consistent with this opinion.24
24
While the relief we grant today is limited to minor
Petitioners, we note that in releasing one of the Petitioners and
his mother and observing that the record was “completely
devoid of any reason, rational or otherwise,” justifying their
continued detention for almost two years, Petitioners’ 28(j)
Letter 11, 25, 38, 47 (Sept. 14, 2017) (IJs Bond Memoranda),
the IJ pointed to his power to parole the mother under 8 C.F.R.
§ 1236.3(b)(2) to ensure the child’s “psychological well-
being,” id. at 2, as well as to 8 C.F.R. § 212.5(b)(3)(ii), which
provides that if a detained child cannot be released into the
custody of a non-detained relative, the child “may be released
with an accompanying relative who is in detention.”
50