RAICES Bulletin: USCIS Rescinds Policy to Automatically Consider Deferred Action to SIJs
TL;DR U.S. Citizenship and Immigration Services (USCIS) has officially rescinded a Biden-era policy that provided automatic consideration for deferred action to Special Immigrant Juveniles (SIJs) awaiting available immigrant visas. Moving forward, deferred action will no longer be a standard expectation but a discretionary benefit granted only in specific circumstances.
WHAT TO KNOW
Issue: USCIS has rescinded a Biden-era policy that provided automatic consideration for deferred action to Special Immigrant Juveniles (SIJs) whose immigrant visas are not yet available. Under the new policy, effective 30 days from publication, the agency will only grant deferred action on a discretionary, case-by-case basis in "compelling cases" based on the "totality of the circumstances."
Rationale: The agency stated that automatic consideration was inconsistent with general policies regarding prosecutorial discretion. USCIS further justified the change by citing a July report that found some SIJ petitioners had criminal arrests or ties to gangs and terrorism, arguing the previous policy failed to consider basic background and security information. Additionally, the agency noted that requiring biometrics-based background checks for all SIJs would impose significant administrative costs.
RAICES Impact: RAICES legal teams may face a higher evidentiary burden. Rather than relying on an automatic process, attorneys will have to consider building comprehensive, individualized cases to establish "compelling circumstances" for every SIJ client where deferred action is sought. Existing clients should no longer be expecting automatic consideration for deferred action.
Community Impact: This policy change leaves thousands of young people who have survived abuse, neglect, or abandonment in a state of legal limbo. Without automatic deferred action, these individuals will lack access to legal work authorization, increasing their risk of trafficking and exploitation due to lack of reliable income; financial instability while waiting years for an available immigrant visa; and loss of safety and stability in their communities, as deferred action is no longer intended to provide long-term relief from removal.
Related Legal Battles: The new policy was issued following a November stay by a New York federal court in the case A.C.R. et al. v. Noem, which found the government had previously failed to consider "reliance interests" when attempting to end the 2022 policy. Legal counsel for the plaintiffs in that case are currently reviewing the legality of this new policy.
Broader Immigration Strategy: Practitioners must adjust their strategy for SIJ cases by integrating discretionary arguments early in the process: Non-citizens whose SIJ petitions are granted can still apply for deferred action, but it must be requested and argued as a "compelling case". While those who already have deferred action will generally retain it, practitioners must be vigilant for "notices to appear" or "notices of termination," as the agency may still terminate status on a case-by-case basis. Petitions lodged before the 30-day effective date will still be subject to the 2022 automatic consideration policy.
