| Special Immigrant Juvenile Status:
An Ideal Path to Permanency for Vulnerable Undocumented Abused,
Neglected or Abandoned Youth
Christopher Nugent, Senior Pro Bono Counsel, Community
Services Team, Holland and Knight, LLP
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Article Despite its enactment 18
years ago in the Immigration Act of 1990, Special Immigrant
Juvenile Status (SIJS)—which enables vulnerable abused,
abandoned or neglected undocumented youth to obtain lawful
permanent residence ("green cards")—remains a relatively
unknown, seemingly complex and unfortunately underutilized
creature of law. Countless children in the child welfare system
ultimately "age out" of eligibility for this relief because no
legal authority identified them as SIJS candidates and referred
them to competent counsel to pursue SIJS and permanent
residence. (On an annual basis, the Department of Homeland
Security US Citizenship and Immigration Services (DHS USCIS)
adjudicates only 500 or so applications for permanent residence
based on underlying SIJS eligibility.) Individuals who age out
of eligibility become part of this country’s undocumented
immigrant underclass, currently estimated at 12 million people.
This underclass lacks any ability to regularize or legalize
their immigration status in the US, given the restrictiveness of
current immigration law, which was compounded by the lack of
action on comprehensive immigration reform by the 110th
Congress. It is incumbent upon and imperative for all
stakeholders in the child welfare system to proactively and
positively integrate considerations of a child's eligibility for
SIJS into their case management and adjudications.
Codified as the Immigration and Nationality Act (INA) S.
101(a)(27)(J), 8 USC.S 1101(a)27)(J), SIJS is a hybrid of
federal and state laws; it is composed of several tiers. First,
assuming a child is not in DHS or Office of Refugee Resettlement
(ORR) custody, a state court with appropriate custodial
jurisdiction over the child including family, juvenile or even
probate must make a predicate order finding. It may find that 1)
the child is dependent on the court or a state agency; 2) the
child (whether in the US or a foreign country) is eligible for
long-term foster care due to abuse, neglect or abandonment; and
3) it would not be in the child's best interests to be returned
to his or her home country. If in DHS or ORR actual or
constructive custody—including refugee foster care—the child may
also need to seek consent from DHS to seek a state court
best-interest order for SIJS purposes.
However, the state of the law regarding consent is in flux given
Perez-Olano-Gonzalez, CV 05-03604 (C. California January 8,
2008). This class-action lawsuit provides for a permanent
injunction enjoining DHS from requiring DHS consent to obtain
state court best-interest orders for children in federal
custody, assuming that the state court order does not alter or
usurp federal custody over the child (through actions such as
ordering the child's placement in foster care or a
guardianship). DHS has appealed this decision to the court of
appeals for the ninth circuit.
Once the state court makes what immigration practitioners refer
to as this "best-interest order," the child is now eligible to
file for SIJS with DHS using an I-360 petition; for an
adjustment of status to permanent residence using an I-485 form;
and for employment authorization using the I-765 form (all
available at www.uscis.gov under forms). It is notable that if
granted permanent residence through SIJS, the child is
permanently barred from immigrating his or her parents- even
after he or she naturalizes and becomes a US citizen. See INA §
101(a)(27)(J)(iii)(II). Children granted permanent residence
through SIJS are not eligible for any federal welfare benefits
other than emergency Medicaid for five years and matching foster
care funding under Title IV-E of the Social Security Act. Given
the lack of Title IV-E matching funds, there has been a
significant understandable but unfair disincentive for states to
take undocumented children into their child welfare systems,
despite their prima facie eligibility based on abuse, neglect
and abandonment. Fortunately, for purposes of SIJS, children are
eligible when a best-interest order is issued by a court in the
context of a guardianship with an adult under court
supervision—a scenario which triggers no state expenditure.
For purposes of the best-interest order, it is notable that DHS
gives the order full faith and credit and will not attempt to
second-guess the state court, assuming that the order has
requisite specificity and underlying substantiating evidence.
See Memorandum, William R. Yates, Associate Director for Field
Operations,
Memorandum #3—Field Guidance on Special Immigrant Juvenile
Status Petitions (May 27, 2004). Additionally, DHS does not
require that states demonstrate compliance with the Vienna
Convention on Consular Relations which requires that the parent
or guardian in the child's country of origin has been notified
of the proceeding. Id.
DHS further is cognizant that the term "long-term foster care"
is no longer operative in state statutes per The Child Abuse
Prevention and Treatment Act (CAPTA) but still seeks the use of
such magic language for SIJS purposes as a matter of course.
Some states, including Illinois, have accordingly modified their
(CAPTA) statutes to explain how their language under CAPTA is
consistent for DHS requirements.
For SIJS and related permanent residency purposes, stakeholders
should be aware of the following:
- Children over age 18 are ineligible for benefits unless
the state specifically provides for continued jurisdiction
over the child until age 21.
- Children with juvenile delinquency offenses or adult
convictions involving narcotics or other crimes might be
ineligible for benefits.
- Children who have continued drug addiction or alcoholism
are ineligible for benefits.
- Children who are HIV positive cannot adjust their status
to permanent resident absent a parent, spouse or child to whom
they can show extreme hardship who is a US citizen or
permanent resident.
- Children with previous removal or deportation orders have
difficulty adjusting their status to permanent residence,
absent returning to their home country and seeking a waiver if
eligible.
- Children with psychological difficulties posing threat to
themselves or others can be required to provide psychological
evidence for purposes of a waiver from the Center for Disease
Control.
The most effective means to ascertain immigration status is
by providing the child with a protected space to feel free to
disclose information without the risk of reprisals. This can be
accomplished by immediate referrals to competent immigration
counsel with expertise in SIJS, professionals who will not only
protect the attorney-client privilege but also prevent the legal
record of proceedings from containing inaccuracies or
misstatements. For a reputable agency in your area, please
consult
the U.S. Department of Justice list of free legal service
providers.
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