Young Immigrants: Special Relief for the Most Vulnerable

One of the most vulnerable segments of society is undocumented, abused children removed from the home and placed in the care and custody of the State. Many have been the targets of gang violence or exploitation by organized crime. In addition to the threat of arrest, detention, and deportation, undocumented minors are unable to obtain lawful employment and/or attend college.

The U.S. Congress established relief under federal law to allow immigrant children to obtain Lawful Permanent Resident (LPR) status or a “green card,” and a path to citizenship after 5 years. The Immigration and Nationality Act (INA)1 contains special provisions for undocumented, unaccompanied minor children through Special Immigrant Juvenile Status (SIJS). Most children eligible for SIJS are foster children in the custody of the Department of Social Services, and were abandoned by parents or whose parents have been deported and with whom reunification is not possible.

Special Immigrant Juvenile Status is a way for a dependent of a juvenile court to become a permanent resident of the United States (i.e., get a “Green Card”). If the juvenile applies for this status and is successful, s/he may remain in the U.S., work legally, qualify for in-state tuition at college, and in five years apply for U.S. citizenship. However, should the application ultimately be denied, the child might also be deported.
The William Wilberforce Trafficking Victims Protec­tion Reauthorization Act of 20082 contains the procedures for SIJS relief. Its eligibility requirements are a follows:
1. The foreign-born child must be declared dependent in a juvenile court located in the U.S. and placed under the custody of an agency or department of a state, an individual or entity appointed by a state, or juvenile court, and
2. It must be established that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect or abandonment, or a similar basis found under state law, and
3. For whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to their or their parents’ previous country of nationality, or country of last habitual residence.3
In 2010, the law was amended with new provisions, mandating USCIS to process SIJS petitions within 180 days of filing and expanding the exemptions of inadmissibility grounds. Under these exemptions, the SIJS applicant is no longer barred from relief because of some likelihood of becoming a public charge, lack of valid immigration documents, fraud or misrepresentation.
In order to qualify for SIJS, the child must be under the age of 21 at the time of filing, unmarried and present (domiciled) in the United States. No child can be denied SIJS because of age as long as s/he was a child (under age 21) when s/he properly applied for SIJS, regardless of the individual’s age at the time of adjudication. Hence, a special immigrant juvenile will be deemed to have made lawful entry into the United States regardless of how s/he actually entered the country.
A legal conflict existed between provision of New York State Family Law and Im­migration Law applicable to SIJS. The first law limited jurisdiction for guardianship and special findings determination to children up to age eighteen, while the other allowed for SIJS eligibility until the applicant turned 21. However, young people eligible either for guardianship, special findings, or SIJS who were unaware of this law until after turning 18 simply missed out on their sole opportunity to legalize their status and normalize their life. In these cases, the only mechanism by which they could be brought under Family Court jurisdiction would through a guardianship petition of a relative or family friend who stepped forward to care for them.
A recent amendment to Section 661 of the Family Court Act resolves the question of whether youths over the age of eighteen are eligible to have a guardian appointed for them. Both Surrogate’s Courts and Family Courts now have jurisdiction to appoint guardians for youths up to age 21.
When the child has a criminal record, looking at the nature of the offense and its adjudication is essential for weighing the impact on the child’s eligibility for relief. While most juvenile delinquency and youthful offender adjudications are not considered convictions for purposes of immigration law, such adjudications still could be used in a discretionary waiver phase of SIJS approval. Hence, juvenile delinquency determinations are negative factors which must be mitigated by positive equities.
Some juvenile adjudications do bar the child from relief, such as for controlled substance and firearms offenses. Since some discretionary waivers are available for such issues, it would be very advisable to have the cases reviewed by an Immigration attorney. Special Immigrant Juvenile Status applicants may be inadmissible if they are tried and/ or convicted as an adult.
The child, a caseworker or an attorney can complete the application for SIJS for submission to USCIS, including proof of age, custody, and an order from a dependency court that the child is eligible for foster care due to abuse, neglect or abandonment. Along with the SIJS Form I-360 (Petition for Special Immigrant), additional applications must be filed in order to adjust status and obtain authorization to work while the petitioner await the interview for changing status to lawful permanent residence. This process includes a criminal check by fingerprinting and a medical exam.
If the child was apprehended by immigration while entering the U.S. s/he is placed in removal proceedings. If the minor appears eligible for SIJS, that petition should be filed as soon as possible. Many judges will not terminate or administratively close the case until the I-360 Petition for Special Immigrant has been approved, while other judges may be willing to terminate or administratively close the case once the attorney has filed the I-360, or received an I-360 filing receipt.
If the child placed in removal proceedings fails to appear at a hearing, he may have an outstanding order for removal/ deportation issued against him, meaning deportation can occur at any time. A motion to reopen the proceeding is necessary if the child has a final outstanding removal order from the immigration court. USCIS cannot adjudicate an application for legal relief (such as SIJS) unless the case is reopened by an Immigration Judge.
While the scope of this article doesn’t allow for an analysis of other forms of relief available to minors under immigration laws, the practitioner is advised to be particularly aware of, and weigh, possibility of assistance under various Visa forms and statutes. 4
There are legal consequences to consider when opting for SIJS relief since this remedy may be more or less favorable, depending on the specific circumstances of each case. A child granted SIJS cannot later petition for his or her biological or prior adoptive parents. SIJS creates an immediate path to LPR status, in contrast to asylum, U or T visas. Undocumented children who are being adopted may also apply for SIJS as a faster track to legal status since acquisition of legal status by adoption has become complicated with the acceptance of Hague Convention guidelines for adoptions. SIJS applications must be adjudicated within six months by USCIS, but other processing times may be much longer and uncertain. SIJS is an efficient and predictable process (going by USCIS standards) as compared to other discretionary immigration relief.
Finally, it is very important to note that by failing to make a timely and appropriate application for SIJS, a child is exposed to deportation and this, in turn, may prohibit the juvenile from being able to establish legal residency in the future.
Miriam Chocron an immigration practitioner serves as Vice-Chair of the NCBA Immigration Law Committee.
1. The Immigration And Nationality Act (INA), §101(a)(27)(J), codified at 8 USC 1101(a)(27)(J).
2. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (VPRA), P.L. 110-457.
3. See INA §101(a)(27)(J), and TVPRA §235(d)(1).
4. The U Visa (for crime victims), INA §101(a)(15)(U); T Visa (for trafficking victims), INA § 101(a)(15)(T); protection under the Violence Against Women Act (VAWA); asylum (with special provisions for unaccompanied alien children), INA §208(b)(2)(E); and family-based immigration petitions.