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A New York federal judge has issued a significant memorandum and a ruling that prevents the Immigration and Naturalization Service from using delays in the agency as an excuse for refusing to act on a child’s visa application. The decision sets a precedent for juveniles whose cases have been delayed in the wake of Sept. 11, but immigration advocates suggest that it could have even wider significance. Pierre v. McElroy and the U.S. INS, No. 01 Civ. 10784. (S.D.N.Y.). The case concerned Vinette Pierre, who came to the United States from the West Indies island of St. Lucia when she was 17 to get an abortion. When she was unable to get an abortion and kept the baby, her family ostracized her. Pierre applied for a special immigrant juvenile visa, which the INS may grant to abused, neglected or abandoned children under age 21 after a family court judge has determined that they are wards of the state. Pierre passed that hurdle two years ago, but the INS had not acted on her visa request by the time her eligibility was to expire. If the INS did not act by Oct. 19 when Pierre turned 21, she would have “aged out” of eligibility. When this was imminent, attorneys Eric O’Malley and Najma Rana in Dechert’s New York office took the case pro bono. Federal Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York ruled that under a special provision in the post-Sept. 11 PATRIOT Act, Congress extended deadlines for immigrants whose petitions were likely to be affected by the attacks, and required the INS to adjudicate those petitions. Dechart attorney O’Malley said the ruling is “important because there might be untold people who don’t have access to pro bono law firm willing to go to federal court.” Arthur Helton, a member of the American Bar Association’s Immigration Pro Bono Project, said the ruling is significant because it is a “decision by a federal judge in the face of a long-recognized tradition of deference to immigration officials.” The INS, which declined comment, has subsequently ruled in Pierre’s favor. But the agency is seeking to quash the memorandum on the grounds that the case is moot and the judge lacks jurisdiction.

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