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
2

_______________

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]

Tucker Law Group

1801 Market Street

Suite 2500

Philadelphia, PA 19103

Anthony C. Vale

Pepper Hamilton LLP

3000 Two Logan Square
3

18th and Arch Streets

Philadelphia, PA 19013

Counsel for Appellants

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.
4

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 

(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 
5

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 

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 OsorioMartinez 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

 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. 
6

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

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 twentyfive 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 subjectmatter jurisdiction. Castro, 835 F.3d at 425. 

 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).
7

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 jurisdictionstripping violated the Suspension Clause of the Constitution. 

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 
8

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 

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 

 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.
9

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

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 
10

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.

 

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 

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 
11

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 

 

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 

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).
12

jurisdiction-stripping provision as applied to SIJ designees.

7

 

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 

 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 

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”).
13

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 

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;
14

(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 

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
15

reenters the United States without being admitted, he or she is 

then inadmissible for 10 years. Id. § 1182(a)(9)(C)(i), (ii).

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.)). 
16

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 . . . 

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 
17

child claims he or she “suffer[ed] legal wrong because of 

agency action,” to the federal courts. 5 U.S.C. § 702; Yeboah, 

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 

 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)).
18

Petitioners acquired SIJ status, they were “deemed . . . to have 

been paroled into the United States.” 8 U.S.C. § 1255(h)(1). 

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 
19

and whether the Petitioner is the same person referred to in that 

order.” Castro, 835 F.3d at 431 (citation omitted). Yet 

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 AntiDiscrimination 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 
20

after the orders issued,” i.e., whether the Government can

circumvent the processes required by statute and regulation to

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 AntiDiscrimination 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.
21

B. Constitutional Basis for Jurisdiction 

Because we conclude that the INA strips the federal 

courts of jurisdiction to review Petitioners’ challenge to their

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 twostep analysis that the Supreme Court announced in

Boumediene v. Bush, 553 U.S. 723 (2008). We first determine 

 9 In a recent concurrence, Justice Thomas argued that 

the Suspension Clause should be unavailable to alienpetitioners 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).
22

“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.” 

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). 

 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. 
23

In Castro, we determined that the Suspension Clause 

was not violated where aliens, apprehended within hours of 

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 jurisdictionstripping 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 
24

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” 

in Landon can be read to mean “initial entry,”11 we decided 

 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 
25

that aliens “apprehended within hours of surreptitiously 

entering 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. VerdugoUrquidez, 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 

 

distinction between those aliens who have come to our shores 

seeking admission, such as petitioner, and those who are within 

the United States after an entry, irrespective of its legality.” 

(emphasis added) (quoting Leng May Ma v. Barber, 357 U.S. 

185, 187 (1958)).
26

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 

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,” VerdugoUrquidez, 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’ 
27

connection to the United States is consistent with the exercise 

of Congress’s plenary power.

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, 
28

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 

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 
29

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, 

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 

 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”). 
30

(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 

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. 
31

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 
32

 

term elsewhere in the INA, see, e.g., 8 U.S.C. 

§ 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. 
33

U.S.C. § 1255(h)(1), but Congress also enlarged the chance 

that Petitioners would be successful in their applications for 

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
34

(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 

(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 I212), https://www.cbp.gov/travel/international-visitors/

admission-forms/form-i-212-application-permission-reapplyadmission-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 
35

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 

 

Deportation or Removal (Form I-212), at 15, 

https://www.uscis.gov/sites/default/files/files/form/i212instr.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.
36

process rights attach to statutory rights.’” 353 F.3d 228, 239 

(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. 
37

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 GonzalezMorales, 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 

 

Customs and Border Prot. et al., Implementing the President’s 

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 
38

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 

 

(either with or without prejudice), or dismissed,” or upon 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). 
39

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. 
40

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.
41

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. 
42

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). 
43

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 wideranging 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 
44

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).
45

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).
46

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 
47

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 subjectmatter 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.
48

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).
49

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 
50

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 wellbeing,” 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.”