SIJ Deferred Action Fight Reaches the Second Circuit

Young immigrants who already hold approved Special Immigrant Juvenile petitions asked the U.S. Court of Appeals for the Second Circuit on Oct. 19 to restore SIJ deferred action, the protection from deportation and path to a work permit that the Trump administration ended in 2025. Their argument is that a Brooklyn federal judge, after finding the policy change unlawful, granted relief to too narrow a slice of the youth it affected, while the government told the panel that new 2026 guidance makes the appeal moot, Courthouse News reported.

The stakes are concrete. Special Immigrant Juvenile status, created by Congress in 1990 for people under 21 who were abused, neglected or abandoned by a parent, leads to a green card. But approval of the petition, filed on Form I-360, does not mean a green card is available. SIJ youth draw on the EB-4 special immigrant category, and in the State Department’s October 2026 Visa Bulletin the EB-4 final action date for every listed country is Dec. 15, 2022, almost four years behind. Plaintiffs estimated in court that more than 150,000 SIJ recipients were waiting in that backlog as of March 2025, a figure cited in the district court’s November 2025 order.

Deferred action is what made that wait livable. Under a March 2022 USCIS policy, the agency automatically considered SIJ youth stuck in the backlog for deferred action, which in turn made them eligible to apply for employment authorization under 8 C.F.R. 274a.12(c)(14). USCIS rescinded that automatic consideration on June 6, 2025. Without it, a young person with an approved petition can be placed in removal proceedings, detained or deported while waiting for a visa that Congress set aside for exactly this group.

A partial win the youth say is not enough

In A.C.R. v. Noem, U.S. District Judge Eric Komitee ruled in November 2025 that the plaintiffs were likely to succeed in showing the rescission was arbitrary and capricious, finding that USCIS likely failed to weigh the reliance interests of the youth or consider reasonable alternatives. He stayed the rescission and barred removal of the nine named plaintiffs while the case continued. According to Courthouse News, the relief ultimately reached only people granted SIJ status between April and June 2025, the window in which USCIS began issuing approvals without the automatic deferred action review its own policy promised.

Catherine Weiss, arguing for the youth, told the panel that the district court wrongly abandoned the old standard for “tens of thousands” of young people who had started school and degree programs and worked lawfully in reliance on it, Courthouse News reported. Justice Department lawyer William Silvis said the new 2026 guidance makes the appeal moot and that any need for further relief was speculative. Judge Myrna Pérez questioned the district court’s narrow time frame, saying the status quo “was either the status quo or it wasn’t.” Judges Raymond Lohier and Barrington Parker completed the panel, which did not say when it would rule.

Why mootness is the real fight

The government’s mootness argument goes to the heart of how agencies respond to losses under the Administrative Procedure Act. A court that finds a policy change arbitrary typically sends the agency back to explain itself, and a new, better-reasoned policy can replace the one struck down. If the panel agrees that the 2026 guidance supersedes the 2025 rescission, the youth would likely have to challenge the new guidance on its own terms, which would restart the litigation clock for a population whose deferred action grants are expiring.

If the panel instead agrees with Pérez’s skepticism, the likely result is a remand directing the district court to reconsider who should be covered. Either way, the EB-4 backlog means the question will not resolve itself soon. With a final action date stuck in late 2022, a young person approved today may wait years for a green card, and whether that wait comes with a work permit and protection from removal now depends on how three judges read a changed policy.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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