When Daniel1 was six years old, his mother came to the United States from El Salvador and left him in her sister’s care. She sent for Daniel the following year, but Daniel and an older relative were stopped in Mexico and sent back. Because there had been no contact with his father for years, Daniel lived with his aunt and her family for the next six years. During that time, his aunt and cousin often hit Daniel and at times denied him food. Eventually, Daniel started sleeping at a local church rather than face his relatives. When Daniel’s mother learned of the mistreatment, she sent for Daniel. Daniel reunited with his mother in the U.S. and began to thrive.
Once in the U.S., Daniel sought and was granted Special Immigrant Juvenile Status (SIJS), a classification under federal law that allowed him to seek a “green card,” that is, adjustment of his status to lawful permanent residence. Though these designations and determinations are made by the federal government, the first step in Daniel’s process toward authorized immigration status was in a state family court.
This article describes the role of state courts and legal practitioners in a young person’s journey toward gaining SIJS.
Like Daniel, thousands of children and youth arrive in the U.S. each year unaccompanied by a parent or legal guardian.2 The number has increased dramatically in recent years. Almost 59,700 unaccompanied children arrived in federal fiscal year 2016; about 17,500 traveled to the U.S. from El Salvador, and over 41,000 came from Guatemala, Honduras and Mexico combined.3 These numbers could approach the “surge” of unaccompanied children entering through the southwestern border in 2014, when over 67,000 children arrived from those four countries.
Some children and youth travel to the U.S. to escape abuse and other mistreatment in their homes. Many are fleeing rampant gang and cartel violence in their communities. Extreme poverty and government corruption or instability also motivate youth to attempt to enter the U.S. for protection, reconnection with parents or other relatives, education, and other opportunities.4
Children and youth who arrive in the U.S. without a parent or legal guardian lack authorized immigration status. These youth are not able to work legally, be eligible for federal benefits including federal financial aid, access many state or local benefits, or enjoy a sense of stability and certainty about their lives. Some of these youth may be able, like Daniel, to adjust their status through forms of humanitarian immigration relief.
One form of humanitarian relief is SIJS. SIJS is available to eligible children who have been abused, neglected, or abandoned by a parent or legal guardian, and is available to children within and outside the child welfare system. Unlike all other forms of immigration relief, the state court plays a role in the SIJS process.
- State court judges who hear family law, dependency, delinquency, or many other types of cases may be presented with requests for orders with SIJS findings either within traditional matters heard by those courts or for SIJS separately.
- Attorneys who practice in state court may seek those orders on behalf of adult or minor clients.
- Court clerks may be called upon to arrange interpreter services for court hearings or issue notice of proceedings to individuals in foreign countries.
- Everyone involved can benefit from an understanding of the purpose of SIJS, relevant court procedures, and how state courts play a critical role in vulnerable children’s access to this form of humanitarian relief.
Overview of SIJS
SIJS does not automatically grant citizenship or lawful permanent residence (LPR), which could eventually lead to citizenship. SIJS provides eligible abused, neglected, or abandoned immigrant youth access to a path to lawful permanent residence. And state courts do not decide whether a youth is an SIJ or make any other immigration determinations. Federal decision makers approve or deny applications seeking SIJ classification and determine if the youth can remain in the U.S.5
Available since 1990, SIJS is governed by the Immigration and Nationality Act § 101(a)(27)(J).6 The relevant legal eligibility requirements were updated in the Trafficking
Victims Protection Reauthorization Act of 2008 (TVPRA) (see eligibility section below).7 How petitions or motions seeking orders with SIJS findings enter court, the process to follow once there, and how determinations about final orders are made are matters of state and local law and procedure.
The state court considers requests for an order with certain findings, known as an SIJS “predicate order.” If granted by a state court judge, this predicate order is included in the youth’s SIJS application that she submits to U.S. Citizenship and Immigration Services (USCIS), the federal agency that determines eligibility for immigration benefits.
Without this preliminary state court order, a child cannot seek SIJS from USCIS. State courts make these critical threshold determinations because of their responsibility to protect children under their jurisdiction and their expertise—expertise recognized by Congress when it delegated this role to state courts—in making decisions about the welfare and best interests of children.
- Some state court judges may struggle with how to handle these cases involving immigrant children, thinking it is a federal issue. But state courts are not being asked to decide if the immigrant child or youth should be granted lawful status in the U.S.—that is an issue for the federal government to determine. State courts are being asked to provide factual findings about a vulnerable child in the predicate order.
- Judges and attorneys who want to know more about SIJS can turn to the relevant federal law.8 Proposed federal regulations updated to reflect the TVPRA statutory changes were released in 2011, but have not yet become final.9 As a result, parts of the federal regulations still refer to earlier versions of the SIJS law and conflict with current law; judges and attorneys should avoid following the regulations that reflect pre-TVPRA requirements, as such practice may lead to confusion and error.
Immigrant youth eligible for SIJS are unmarried noncitizens under age 21 who are under the jurisdiction of a state juvenile court, for whom the court has made the following findings:
- The child has been declared dependent by a juvenile court or the court has placed the child in the custody of a state agency, individual, or entity appointed by a state or juvenile court;
- The child’s reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law; and
- The child’s best interest would not be served by being returned to his or her parents’ country of nationality or last habitual residence.10
The terms of SIJS eligibility were updated in 2008 by the TVPRA. Notable changes to the state court process include eliminating the requirement that the court find the child “eligible for long-term foster care.” Now a child need not have been in foster care or the child welfare system at all to be eligible for designation as an SIJ. Additionally, the court may find the child’s reunification with one or both parents is not viable. The child may have been abused, neglected, or abandoned by one parent and be living with the other parent and be eligible for SIJS.
Under TVPRA changes, judges have more bases available for the SIJS findings. With the option of either finding the child dependent on the court or placing the child in the custody of an individual, agency, or entity, judges are able to make this finding in a wide range of cases, not just in child welfare cases, where the child is already considered “dependent” on the court. Now judges are able to make the finding in, for example:
- a delinquency case where a youth is committed to the care and custody of the probation department, even if he continues living at home;
- as part of a case seeking a restraining order, particularly where custody to the nonoffending parent is included in the order; and
- in any matter where custody or guardianship is awarded to a relative or other third party caregiver.
How an SIJS Matter May Move through State Court
State courts have varying jurisdictional requirements, rules, and procedures, and in how they define abuse, neglect, and abandonment. These differences make it hard to describe a “typical” SIJS state court matter.11 However, a child seeking an SIJS order (or the adult filing on the child’s behalf) and the court considering that request may proceed through the following stages.
Federal law directs that the first step in the SIJS process occur in state “juvenile courts.” A “juvenile court” for SIJS purposes is defined by federal regulations as “a court located in the United States having jurisdiction under State law to make judicial decisions about the custody and care of juveniles.”12 There are often multiple appropriate courts in a jurisdiction to consider these requests, such as family, domestic relations, probate, guardianship, dependency (or child welfare), delinquency, and adoption courts.13 In areas without courts designated for child care and custody matters, the appropriate court may be one of general jurisdiction.
A request for an SIJS predicate order is generated through an action in state court. Often, it follows or accompanies a custody or guardianship petition or may be raised during a pending dependency or delinquency matter. But many other avenues to the child coming under court jurisdiction exist. Additionally, some jurisdictions allow declaratory judgments to be used to obtain the predicate order.
By whatever method a child comes under the court’s jurisdiction, the petition or motion for SIJS findings likely will include supportive documents. For example, the petitioner may submit a memorandum of points and authorities; a proposed SIJS order; the child’s birth certificate; affidavits or declarations by the child, parent, and/or caregiver; and more.14 (See “Hearings” section below for more on supporting materials and evidence.)
- Practitioners filing requests for a SIJS predicate order should be familiar with state court practice and rules of jurisdiction. Questions of whether or which court can hear the matter may lead to delays and setbacks that could derail the youth’s timeline for applying to USCIS for SIJ classification.
- A petitioner requesting an SIJS order may move to proceed in forma pauperis and have all filing and other fees waived. Most unaccompanied children entering the U.S. have fled severe poverty, and due to their age and/or inability to work here, have little to no funds. Their parents or caregivers also may face challenges to earning a steady income and will seek fee waivers.
Notice and Service
Opposing parties to the matter (usually one or both parents) should be served with the motion for SIJS findings and the petition for the underlying matter (if one exists) according to state practice. If a parent lives outside the U.S., attempts at international service should be made. Serving parents who have allegedly abandoned their child or who live in remote areas may be particularly challenging. Alternate forms of service such as posting or publication may be requested for serving those parents or when more traditional forms of service have failed.
Difficulties completing service may create anxiety for a youth and/or adult petitioner since they are working against a firm deadline. While USCIS will accept SIJS applications any time before the youth turns 21, state courts commonly lose jurisdiction over youth when they turn 18 and are no longer minors. Children and youth must secure the SIJS predicate order before the state court no longer has jurisdiction to do so under state law.15
- Though it may be uncommon among other cases on the court’s docket, in SIJS matters, the only evidence about the location or address (or lack of information about location or address) of the opposing parent(s) may be the word of the child or petitioners. Scant information may be available, especially when the child has not been in that parent’s care for some time or when geography or strained relationships challenge regular communication.
- Attorneys who seek to use alternative methods of service or expedited hearings on the SIJS petition should be prepared to explain why the matter is so urgent. Judges know age restrictions relevant to their courts, but may be unfamiliar with the consequences of the child “aging out” of the court’s jurisdiction without receiving the SIJS predicate order.
- All parties deserve to have their cases fairly considered and resolved promptly. Judges should note that parties seeking SIJS predicate orders are functioning under the added stress of securing the order before the youth’s window to accessing humanitarian immigration relief closes.
Courts will often require one or several hearings on the request for SIJS findings. Some courts combine the hearing on any underlying case (e.g., custody) and the motion for SIJS findings. Other courts hold separate hearings. Because of the time constraints described above, the party or youth seeking an SIJS predicate order may seek an expedited or emergency hearing on their request.
A hearing on an SIJS petition or motion may proceed like any other within the court’s purview, or may differ because of the age of the child, the facts being shared, or for other reasons. When English is not the child or adult petitioner’s primary language, court staff should ask before the hearing whether an interpreter will be needed.
The court is being asked to issue an order with certain findings, so evidence to support those findings will be presented. As noted in the “Jurisdiction” section above, some evidence may be presented in written form, such as: child’s birth certificate; marriage certificate; death certificate; statements by the child or parent or other caregiver; educational records from the child’s country of nationality or from the U.S.; medical and/or mental health records from the foreign country or the U.S.; other records reflecting the abuse, neglect, or abandonment that occurred either in the country of nationality or in the U.S.; statements of relatives or friends in the country of nationality who witnessed the abuse, neglect, or abandonment or other dynamics of the family relationship, conditions of the country of nationality, or circumstances.16
Additionally, testimony may be offered under direct examination. The nonabusing parent may share the child’s background and the nature of the abuse, neglect, or abandonment by the other parent, as may caregivers or others familiar with the family or child’s situation. Depending on her age and development, the child may testify, although children and youth who have suffered trauma may have even more difficulty than other children recounting those experiences or even a clear sequence of events during live testimony.17
- Attorneys should flag cases requiring translation services as early as possible. Court staff should note that not all children arriving from Central America primarily speak Spanish; many speak indigenous languages and do not understand Spanish well. Especially if few interpreters for the child or adult petitioner’s language are available in the jurisdiction, arrangements with the live interpreter or for use of a telephone interpreting service should be made promptly.
- In some cases, the only evidence presented may be testimony or sworn statements of the child and/or caregiver. Especially for children who traveled to the U.S. alone, documentary evidence may be nearly impossible to access. Judges will need to make decisions as they would in other matters: based on the information provided and credibility of witnesses, with an understanding of the limits to availability of certain evidence in SIJS cases.
The SIJS Order
State court orders that are part of successful SIJS applications include more than template language pulled from the federal law on SIJS. In addition to making the requested findings, the court can provide brief, illustrative facts that reflect its informed decisions about the child in the case before the court.18
Dependency or custody finding
Generally the SIJS order stands apart from other orders that are relevant to the underlying case, if one exists. In the SIJS order, the court need only note that it has found the child to be dependent on the court or that it has granted, at a certain point, custody (or some other form of legal caregiving, such as guardianship or adoption) to a particular person, state agency, or entity.
Reunification not viable with one or both parents
There is no federal definition of “abuse, neglect, or abandonment” that renders reunification with a parent not viable, and state definitions vary. State courts are to use their own statutory, regulatory, or other definitions or understandings of these terms or any “similar basis under state law.”19 (A “similar basis” may include other terms that are used regarding harm to children or the effect of the parent’s death on the child, if not considered abandonment under state law, among other possibilities.) And the abuse, neglect, or abandonment that prevents reunification with a parent may have occurred in the child’s country of nationality, in the U.S., or in another country.
As noted earlier, one change made by the TVPRA of 2008 was to clarify that the requirement for SIJS eligibility is a finding that reunification with one or both parents is not viable. As a result, a child living with a parent but unable to reunify with the other because of abuse, neglect, or abandonment by her other parent is eligible for SIJS.20 The nonoffending parent may seek a custody order as part of a divorce or separation, to prevent an abusive parent from trying to take the child, to more easily make medical or educational decisions for the child, or for many other reasons.21 Regarding the SIJS order, the focus is whether reunification with the other parent is possible.
The order should include brief factual findings about why reunification with the parent(s) is not viable.
Best interest finding
The final part of an SIJS order is the finding that the child’s best interest would not be served by returning to her country of nationality, or that of her parents. Although not all judges routinely make best interest determinations (e.g., those not serving in family, domestic relations, or dependency courts may be less familiar with the process), any state court judge can draw on existing state guidelines and resources for assessing a child’s best interest.
The most critical information to draw on, of course, is the evidence presented in support of the request for the SIJS order—the testimony, affidavits or other written statements, records regarding the family’s situation in the foreign country or in the U.S. (marriage certificates, death certificates, police records, court records, medical records, etc.), records regarding the child’s education, physical and mental health, and more.
The state court need not be an expert on the conditions of the child’s country of nationality. To determine what is in a child’s best interest, the court need only consider and balance the information available. Evidence of that country’s stability and prevalence of unrest, levels of violence, educational or employment opportunities, or other factors may be presented in written reports or elicited through testimony or statements of individuals who have lived there. Some petitioners may present home studies from the country of nationality and/or home studies from the U.S. The court can consider the opportunities the child has in the U.S. in terms of safety versus likelihood of harm, connections with nonoffending parents or caregivers, relationships with friends and other sources of support, medical and mental health well-being, educational opportunities, economic opportunities, other resources and opportunities, and other factors.
- USCIS states that SIJS predicate orders should not include boilerplate language that reflects federal law or all details of the case. SIJS orders that provide brief, factual statements supporting the findings are most appropriate.22
- Attorneys should tailor pleadings seeking an SIJS predicate order to the particular child and circumstances of the case.
Judges, attorneys, and state court professionals are critical to protecting immigrant children. The SIJS predicate order is a necessary first step in a child or youth’s path toward accessing humanitarian relief and adjusting status to lawful permanent residence.
The relief and adjustment of status determinations are immigration decisions made by the federal government. State courts play the early role of determining whether the child has suffered abuse, neglect, or abandonment, among other findings, and what serves the child’s best interests. Though those determinations come effortlessly to judges in certain state courts, others less familiar with child protection matters may benefit from court-driven and other resources. Standardized court procedures, common SIJS petitions and orders, and familiarity with practices in other jurisdictions can aid judges, attorneys, and court staff involved in these cases, to the service of vulnerable children in their courts.
Cristina Ritchie Cooper is senior counsel with the ABA Center on Children and the Law. As co-director of the Center’s Immigration Project, she provides guidance for attorneys representing immigrant children and parents in the dependency system, and shares promising practices for dependency courts and child welfare agencies working with immigrant families. Cristina also works on issues affecting older youth in foster care, permanency barriers, and the Children’s Bureau’s Capacity Building Center for Courts. Before joining the ABA, Cristina represented children and youth in dependency cases in the Bronx, NY, and youth in protection order and family law matters in Washington, DC.
This article was developed with the Pelican Center for Children and Families, which administers the Louisiana Court Improvement Program under a subgrant agreement with the Louisiana Supreme Court.
Helping Youth Access Immigration Relief
Several states have recognized and addressed the limitations that their existing rules of jurisdiction place on many immigrant youth who hope to access immigration relief in the state through SIJ classification. For example:
- In 2014, Maryland extended state equity court jurisdiction to include custody or guardianship of youth under age 21 (rather than 18) pursuant to a motion for an SIJS predicate order. Md. House Bill No. 315 (Maryland Acts 2014, c. 96, § 1), codified at Md. Code, Fam. Law § 1-201(a) & (b)(10).
- In 2015, California enacted a bill authorizing state probate courts to appoint legal guardians for youth 18-20 years of age or to extend existing guardianships past age 18 in connection with a petition seeking SIJ findings. Cal. Assembly Bill No. 900 (Stats. 2015, ch. 694), codified in relevant part at Cal. Prob. § 1510.1.
- In a 2016 case, the Massachusetts Supreme Judicial Court held that “the Probate and Family Court has jurisdiction, under its broad equity power, over youth between the ages of 18 and 21 for the specific purpose of making the special findings necessary to apply for SIJ status pursuant to the [Immigration and Nationality Act].” Recinos v. Escobar, 46 N.E.3d 60, 65 (Mass. 2016).
- Additionally, since 2008 in New York, a guardian may be appointed for a person up to age 21, with the consent of that person if he or she is over 18. N.Y. Fam. Ct. Act § 661(a).
ABA Policies on Special Immigrant Juvenile Status
Recent ABA policy resolutions support undocumented children’s access to Special Immigrant Juvenile Status (SIJS) and other forms of immigration relief.
Resolution 301. In February 2017, the ABA House of Delegates adopted Resolution 301, which supports preserving and developing laws, regulations, policies and procedures that protect or increase due process and other safeguards for immigrant and asylum-seeking children.
Among its provisions on procedures and protections affecting unaccompanied immigrant children, Resolution 301 urges Congress and the Administration to:
- preserve the availability of and current statutory framework for SIJS, which prescribes distinct roles for state courts and federal decision makers;
- increase the number of SIJ visas allotted to qualified applicants each year, because existing limits prevent all qualified children and youth from accessing the protections and benefits of a visa; and
- protect unaccompanied alien children’s sponsors from being subject to immigration enforcement actions. Reuniting unaccompanied children safely with their parents, relatives, and other “sponsors” serves children’s best interest and promotes their well-being, rather than prolonged periods in detention. Widespread immigration enforcement actions through the reunification process against parents and other sponsors will deter those adults from coming forward to take care of their children.
Resolution 113. In February 2015, the ABA House of Delegates adopted Resolution 113, which focused on the state court’s role in SIJS cases. The resolution urges:
- training state court judges and staff how to effectively and timely hear and adjudicate petitions or motions on behalf of immigrant children, including for the purpose of making SIJS predicate findings;
- implementing specialized state court calendars to hear and adjudicate SIJS matters, including creating expedited processes for youth aged 16 and older, given the firm age deadline in federal immigration laws;
- appointing counsel for unaccompanied children at government expense at all proceedings necessary to obtain SIJS and other remedies; and
- providing meaningful opportunities for children to consult with counsel before immigration courts conduct any hearings involving taking pleadings or presenting evidence.
Resources & Tools
The following resources offer more information about the SIJS state court process:
ABA Immigrant Children’s Advocacy Network. A collaborative project involving several ABA entities that provides resources and training to the field to respond to the legal needs of immigrant children and families.
ABA Child Welfare and Immigration Project. A project housed at the ABA Center on Children and the Law focusing on the intersection between immigration and child welfare law.
ABA Children’s Immigration Law Academy is the ABA’s new, expert, legal resource center in Houston, Texas. CILA serves both legal service providers and pro bono attorneys who are representing unaccompanied children in immigration-related proceedings in Texas. CILA provides free trainings, technical assistance and an online platform for sharing and accessing immigration legal resources related to unaccompanied minors. In addition, CILA staff host working groups on SIJS and children’s asylum cases.
Immigration and Legal Resource Center. This California-based immigrant legal services provider provides a wealth of SIJS information and tools useful for practitioners nationwide.
Kids in Need of Defense (KIND) provides pro bono attorneys to represent unaccompanied immigrant refugee children in their deportation proceedings, as well as legal screenings and Know Your Rights presentations.
Safe Passage Project provides many resources, including sample SIJS pleadings.
U.S. Citizenship and Immigration Services is the federal agency within the U.S. Department of Homeland Security that determines eligibility for immigration benefits, including SIJS.
1. Daniel’s name has been changed to protect his privacy.
2. An “unaccompanied child” is a youth under 18 who lacks lawful immigration status in the U.S. and who has no parent or legal guardian in the U.S. or no parent or legal guardian available to provide care and physical custody. 6 U.S.C. § 279(g). Designation of a child as “unaccompanied” is made by the Department of Homeland Security’s Customs and Border Protection at the time they detain the child at the border. Many unaccompanied children are later reunited with parents or other relatives in the U.S.
3. U.S. Department of Homeland Security, Customs and Border Protection. United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016.
4. For information about the paths of unaccompanied children once they arrive in the U.S., see, e.g., Lutheran Immigration and Refugee Services. At the Crossroads for Unaccompanied Migrant Children: Policy, Practice & Protection, 2015, 13-21; FAQ: Protecting Unaccompanied Children from Trafficking or Other Harm (updated January 2016).
5. Most commonly, decisions about SIJS and Lawful Permanent Residence (LPR) are made by the Department of Homeland Security’s U.S. Citizenship and Immigration Services. However, if a child is already in removal (deportation) proceedings, then an immigration court may rule on LPR applications.
6. Codified at 8 U.S.C. § 1101(a)(27)(J).
7. See The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2208, Pub. Law 110-457 § 235(d).
8. See Immigration and Nationality Act
§ 101(a)(27)(J) as amended by TVPRA of 2008 § 235(d); 8 U.S.C. § 1101(a)(27)(J).
9. See 8 C.F.R. § 204.11.
10. 8 U.S.C. § 1101(a)(27)(J).
11. Again, given the variety of courts and procedures across the country, not all these steps must be followed in a consistent way for a request for the SIJS predicate order to succeed.
12. 8 C.F.R. § 204.11(a).
13. Some states have made procedures for SIJS matters consistent across jurisdictions within the state. For example, California legislation (SB 873 of 2014) clarified which California courts have jurisdiction to hear requests for SIJS findings and those courts’ related roles and responsibilities. The state developed a standard court order for SIJS-related findings; template forms to request SIJS findings from different courts; and a uniform court procedure to be followed in probate court guardianship cases. For links to those resources, see ABA Center on Children and the Law, California Quick Guide on Child Welfare and Immigration Law, at 6. Other states have limited which type of courts may hear SIJS matters.
14. Generally, documents in a language other than English will be accompanied by a translation.
15. Under the settlement agreement in Perez-Olano v. Holder, No. CV 05-3604 (C.D. Cal. 2010), the child need not be under juvenile court jurisdiction when she files her SIJS application with USCIS if the juvenile court jurisdiction terminated due to the child’s age and the youth is under 21 at the time of filing with USCIS.
16. This is not an exhaustive list of evidence that may be offered to support a request for a SIJS order, nor must all these forms of evidence be presented before a court will grant an SIJS order. These forms of evidence are offered as examples.
17. For more on the effects of trauma on children, see UCLA-Duke University National Center for Child Traumatic Stress. The 12 Core Concepts: Concepts for Understanding Traumatic Stress Responses in Children and Families, 2012; Kraemer, Talia & Eliza Patten, “Establishing a Trauma-Informed Lawyer-Client Relationship (Part One).” ABA Child Law Practice, October 2014.
19. 8 U.S.C. § 1101(a)(27)(J)(i).
20. See USCIS Policy Manual, Vol. 6, Part J, Ch. 2, Section A.1, 2016. <>
21. For a state-specific guide on this type of case, see Immigrant Legal Resource Center, Frequently Asked Questions in 1-Parent Special Immigrant Juvenile Status Cases in California Family Courts, (in consultation with the Judicial Council of California), April 2016.
22. See, e.g., USCIS Policy Manual, Vol. 6, Part J, Ch. 3, Section A.2, 2016.