“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judges Amul Thapar and Joan Larsen upheld the deportation of an immigrant who received “Special Immigrant Juvenile” status when he entered the US as an unaccompanied minor, but was deported without receiving the procedural protections that such status is supposed to bring because of an abrupt change in policy by the Trump Administration.  The June 2020 case is Cuellar Garcia v. Barr.

Luis Eduardo Cuellar Garcia fled to the United States by himself to escape “rampant crime and violence” and gang warfare in his native El Salvador at the age of seventeen. He was designated as an “unaccompanied alien child” and, after a Texas juvenile court found that he should not be returned to El Salvador because he was receiving “insufficient parental protection” from gang attacks, was designated a “Special Immigrant Juvenile.” When this occurred in 2016-17, such status meant that he could file an asylum application with US Citizenship and Immigration Services (USCIS), which uses a “less adversarial” process that is more sensitive to the situation of minors who have been subject to abuse and violence. USCIS policy also then extended these protections to individuals after they have turned 18.

Cuellar Garcia accordingly applied for asylum with USCIS in August 2017, after his nineteenth birthday, and an interview was scheduled for November. The government nevertheless sought Cuellar Garcia’s removal through an immigration court, but the immigration judge declined jurisdiction over him in October 2017, since his asylum application was then properly pending before USCIS.

Without notice, the government applied a “new, unwritten and informal” policy to Cuellar-Garcia, and argued that he must adjudicate his asylum claim in immigration court, rather than with USCIS. Based on the new policy adopted under the Trump Administration, the government asked that the immigration judge reconsider his decision to decline jurisdiction over Cuellar-Garcia. The immigration judge promptly did so, denied the asylum claim, and deported Cuellar Garcia in June 2019.

Cuellar Garcia had sought to stay and contest the deportation order against him.  His request for a stay was denied, as was his petition for review in a 2-1 decision by Judges Thapar and Larsen in June 2020. Judge Thapar summarily ruled against Cuellar Garcia’s claim that he should have received Special Immigrant Juvenile protections with USCIS, peremptorily holding that an immigrant like him must “be an ‘unaccompanied alien child’ when he applies for asylum,” which was not the case here.

Judge Gilbert Merritt strongly dissented. After recounting the facts above, most of which were ignored by the majority, Merritt pointed out that a previous Sixth Circuit decision had ruled that USCIS retains jurisdiction even after a juvenile turns eighteen, and that Cuellar Garcia had “reasonably relied” on his Special Immigrant Juvenile status in filing with USCIS. In fact, Merritt noted, less than two months after Cuellar Garcia’s deportation, a Maryland federal court had “enjoined the new government policy that usurped, without notice, the rights of unaccompanied alien children filing an asylum application after turning 18, and ordered that the previous policy be maintained” as the court considers the case, which is still pending.

Merritt concluded that Cuellar Garcia was “entitled to relief under the law and policy governing unaccompanied alien children that was in effect” when he “filed his asylum application “with USCIS. “The post-hoc deprivation by the government to strip” him of the status on which he relied and to “deny him the protections of that status,” Gilbert went on, was “arbitrary and capricious and should not be condoned by the courts.”

Merritt maintained that Cuellar Garcia should be paroled back to the US to have his asylum application reviewed. As a result of the decision by Thapar and Larsen, however, he will remain deported in El Salvador and the Sixth Circuit has effectively “condoned” the actions by the Trump Administration.