In regulating the ways in which families make decisions about living together, the values underlying immigration law and family law often are not aligned such that outcomes can be strikingly discordant. For example, in its most recent foray into this intersection of family law and immigration law, the U.S. Supreme Court ruled that U.S. citizen Sandra Muñoz was not entitled to even a hearing at which her husband might explain that the government was wrong to believe his tattoos indicated gang affiliations, making him inadmissible. In the majority’s view, “a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.” The majority noted that, “[t]o be sure, Congress can use its authority over immigration to prioritize the unity of the immigrant family . . . . [b]ut the Constitution does not require this result[.]” When Congress in the immigration context does “show special solicitude to noncitizen spouses, such solicitude is ‘a matter of legislative grace rather than fundamental right.’” In other words, where Congress has not extended its grace, the Court finds the Constitution amenable to immigration laws that operate without regard to family integrity. As Justice Sotomayor noted in dissent, the majority’s decision means that, at least as a constitutional matter, “Muñoz’s right to marry, live with, and raise children alongside her husband entitles her to nothing when the Government excludes him from the country.”
Despite the harsh realities that face families, like Muñoz’s, that are separated by immigration law, public misperceptions about the ease of immigration abound. A major share of legal migration is directly attributable to a family relationship and family relationships do play a prominent, if erratic, role in U.S. immigration law determinations of who is eligible to enter and remain in the United States. At the same time, however, even close family relationships with U.S. citizens or other persons allowed to reside in the United States do not always provide reliable avenues for legal migration.
This article explores just one of the many ways in which the disconnects between immigration law and family law lead to particularly harsh results for children. It traces attempts to ameliorate those effects through special immigrant juvenile status (SIJS), with a focus on the development of the unique federal and state allocation of decision-making that it employs. Before turning to this, in Part I, a quick explanation of immigration law’s principal avenues for family immigration sets a baseline. Part II then turns to the creation of SIJS in 1990 as a response, at least partially, to immigration law’s general failure to account for immigrant children who are not accompanied by a parent. For over 34 years, this statute’s unique hybrid state and federal structure has established a framework for federal and state systems to engage in determining the fate of immigrant children. Part III considers the recent inclusion of SIJS in the new Restatement of the Law, Children and the Law, which provides evidence that SIJS has journeyed into the mainstream from its early days on the fringe.
I. Frameworks for Family-Sponsored Immigration
The most common route to lawful permanent immigration status in the United States is through statutory provisions that empower U.S. citizens and lawful permanent residents (LPRs) to petition for certain family members to migrate to the United States and become LPRs. This system allows individuals with authorized immigration status in the United States, namely U.S. citizens and LPRs, to serve as “petitioners” for “beneficiaries.” If the principal beneficiary has a spouse or children, the spouse or children often may become “derivative” beneficiaries and migrate along with the principal beneficiary. This means that family relationships play a prominent role beyond direct family-sponsored immigration in areas such as employment-based immigration, where the number of derivative visas for family members is greater than the number issued to sponsored employees.
Priorities are assigned to petitions based on the relationship between the petitioner and the beneficiary, creating a category for “immediate relatives” and four distinct “family-sponsored preference” categories, with U.S. citizens generally having more and better options for sponsorship than LPRs. For example, U.S. citizens may petition for their “immediate relatives,” which include their spouses, unmarried children under age 21, and parents. The immigration or citizenship status of the petitioner and the family relationship between the petitioner and the beneficiary serve to define the four “preference” categories:
- First Preference: unmarried sons and daughters of U.S. citizens.
- Second Preference: spouses and the unmarried sons and daughters of LPRs.
- Third Preference: married sons and daughters of U.S. citizens.
- Fourth Preference: brothers and sisters of U.S. citizens who are age 21 or older.
Unlike the immediate relative category, which has no numerical limitation, each of these categories is subject to annual quotas, which results in backlogs when demand is higher than the available annual allocation. Visa availability is further limited by “per country” caps, which restrict the number from any individual country without consideration of population or demand for visas across different countries, creating backlogs that can extend for decades. For example, according to the January 2025 Visa Bulletin issued by the Department of State, visas are now available for the married sons and daughters of U.S. citizens (third preference category) from Mexico who applied in November 2000.
Despite this framework being centered on family relationships, it is important to note that not all family relationships are recognized. Traditional and parent-centered notions of family predominate. First, functional relationships are not recognized and formal, legally documented relationships are required. Unmarried partners and relatives who might provide care and support are not considered family for immigration purposes. The focus on traditional, nuclear-family relationships “negates other prevalent family configurations which make up functional families, such as single-parent households, grandparent-grandchild households, same-sex couples, polygamous marriages, and extended family configurations. . . .” Through this dated and culturally restrictive construction of family, immigration law advances “a false construct of human society, cultural constructions, and racial and ethnic prejudices.”
Further, through its complex statutory definition of “child,” U.S. immigration law includes requirements beyond biological ties and age limits, including distinctions that are highly disfavored in family law contexts. For example, in establishing whether a child is a “child” for immigration purposes, U.S. immigration law still gives great weight to whether a child is “born in wedlock” or whether a child born out of wedlock has been “legitimated.” Children who are legally adopted can be recognized as children for immigration law purposes, but only if the adoption was finalized prior to age 16 and, in some situations, accompanied by at least two years of residence in the legal custody of an adoptive parent. Even further, the gender of the potential petitioning parent also matters, as mothers are treated more favorably than fathers. These limits mean that children legally recognized for family law purposes might not be recognized for immigration purposes. This prohibition on equitable recognition of relationships or interests can frustrate the reunification of extended families or even parent-child relationships that fall outside narrow, traditional conceptions of the nuclear family.
Immigration law empowers parents in some contexts to extend lawful status to their children, but children cannot reciprocate and largely remain objects. This asymmetric system means that a familial relationship can be consequential only where the holder of lawful immigration status is a parent but not when the person with lawful status is the child. Immigration law, in some instances, does advance family integrity, but only when parents are positioned to align their children’s status with their own lawful status, and not vice versa, thus devaluing children’s citizenship or other lawful immigration status. When a U.S. citizen child is unable to assist a parent in obtaining lawful status, the result is often that the child leaves the country along with the parent who is denied the ability to remain. Immigration law fails to acknowledge that “[t]here are times when children must possess their own rights to protect themselves because their parents do not have the political power to act in their best interests.”
II. Children Apart from Parents and SIJS
When children are separated from their parents, a parent-centered immigration law scheme that conceptualizes children as passive objects following their parents is of limited utility. Ken Borelli, a social worker in Santa Clara County, California, who was the principal author of the initial SIJS law in 1990, had struggled to find ways to help immigrant children who were in foster care take advantage of a legal residency amnesty program enacted via the Immigration Reform & Control Act of 1986. These children had been removed from parental care and placed in foster care, were not in the custody of parents through whom the children might seek legal status, and could not qualify independently. As Borelli noted, “a whole subcategory of children in the child welfare system nationwide didn’t have parents to file for them. Many children in foster care at the time lost out on this window of opportunity to file for amnesty.”
A. The Roots of SIJS
Borelli led the effort for federal legislation that ultimately created SIJS. It provided a pathway to lawful permanent resident status for youth who could obtain a state court order finding that they were “dependent on a juvenile court,” they were “eligible for long-term foster care,” and it was not in their “best interest to be returned” to their country of origin. This statute, even after several amendments, remains the only statute in U.S. immigration law that attaches any legal significance to the best interests of a child. As Borelli noted, “when the bill was written it was purely a piece of child welfare legislation.” At times, especially as regards the terminology used, the California child welfare system roots of special immigrant juvenile status show, and do not always mesh well with either child protection systems in other jurisdictions or federal immigration law.
One challenge to implementing SIJS has been the puzzling inclusion of SIJS in a provision of the Immigration and Nationality Act concerning limits on employment-based immigration. Because of this placement, the number of children who can be provided lawful permanent residence as special immigrant juveniles is subject to an annual cap. Such a limitation is perhaps appropriate for employment visas, but it is entirely unfitting for humanitarian relief for children. The original statute also was passed without a corresponding waiver of the ground of inadmissibility (then called an exclusion ground) for anyone likely to become a public charge. Until this oversight was addressed with a technical amendment, any child who met the definition of a special immigrant juvenile was by definition not admissible on public charge grounds. From the beginning, communication and engagement between immigration law experts and family law experts has been challenging.
More substantively, however, the child protection roots of this scheme are evident in the creation of a unique hybrid system of state and federal decision-making that requires determinations from state child protection systems and courts as predicates for federal immigration relief. This design reflects the drafters’ focus on children who were already involved with domestic state courts that were tasked with determining their care and custody. It also responded to the reality that immigration officials had no expertise in child protection matters and that immigration matters had never provided occasion for immigration officials to make judgments regarding the best interests of a child. The inclusion of a state role is among the strengths of the bill, even as it has been the biggest challenge in implementing it.
B. Jurisdiction—An Initial and Persistent Challenge
Many issues related to SIJS have required advocacy and litigation, but the parameters and appropriateness of a role for state courts in the scheme to adjudicate federal immigration relief have been prominent. The federal immigration system incorporates the determinations made by state “juvenile court[s],” which now are defined in federal regulations as any “court located in the United States that has jurisdiction under State law to make judicial determinations about the dependency and/or custody and care of juveniles.” The “title and the type of court that may meet the definition of a juvenile court varies from state to state. Examples of state courts that may meet this definition include: juvenile, family, dependency, orphans, guardianship, probate, and youthful offender courts.” From the perspective of the immigration adjudicators, it is the nature of the court and its jurisdiction to make decisions regarding care and custody under state law, not the court’s label, that is important.
State courts have sometimes pushed back. Some state court judges were reluctant to characterize themselves as a “juvenile court” judge, especially if that term had defined meaning in their jurisdiction. The term “juvenile court” in the SIJ statute was consistent with California law, which uses the term broadly for child dependency and other proceedings, but some states use terms such as “family court” or “probate court” and/or use “juvenile court” more narrowly. Despite federal regulatory explanation of what the federal government intends the term to mean, for some judges it has been difficult to conclude that they fall within the federal definition if the title assigned to them by state law is different.
More broadly, some state courts demonstrate a reluctance to accept jurisdiction to make determinations they perceived as federal immigration decisions that were beyond their state mandate authority. Yet, in making the requisite determinations, “the state court does not make any immigration decision and does not make any finding that is not inherent in the normal course of making decisions about the custody and care of a child.” The state court’s task is to make the required child protection findings as part of an underlying case involving the dependency, care, or custody of a child, and the state court “does not have jurisdiction to grant or deny applications for immigration relief. That responsibility remains squarely in the hands of the federal government.”
The number of SIJ applicants in early years was relatively low, in part due to low awareness among advocates and in part due to the dearth of attorneys whose practices crossed between immigration law and family law. Lawyers representing migrant children who were separated from parents generally were found in cities and locations with high immigrant populations. This meant that in areas with repeat appearances by attorneys before judges who saw such petitions with some frequency, SIJS became more familiar.
The contested issue of jurisdiction spread to other jurisdictions and courts as the use of SIJS has proliferated and became more complex. For example, in one early development, the language of the SIJ statute was interpreted to reach beyond children in formal foster care placements. A first expansion occurred when an Immigration and Naturalization Service opinion ruled that “acceptance of jurisdiction over the custody of a child by a juvenile court . . . makes the child dependent upon the juvenile court, whether the child is placed by the court in foster care or, as here, in a guardianship situation.” This opening to guardianships, as opposed to formal foster care placements, expanded eligibility and increased the possibility of seeking SIJS in courts beyond those handling foster care–related dockets. In 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 amended portions of the Immigration and Nationality Act pertaining to SIJS to affirm the SIJS eligibility of children placed in guardianships.
C. SIJS Expands Its Footprint
The availability of SIJS via guardianships made it a meaningful form of relief for children who arrived in the United States unaccompanied. As the numbers of SIJ applicants soared, they also expanded into jurisdictions where SIJS was new to both lawyers and judges. The challenges of establishing state court jurisdiction now arose for family court judges in states and localities that were less familiar with migrant populations and less likely to see multiple petitions. Even today, in many jurisdictions a special immigrant juvenile petition might still present issues of first impression for judges who may never see another.
Despite misunderstandings and setbacks at the trial court level, in terms of establishing jurisdiction for state judges, every state appellate court that has “reviewed the issue has found or assumed that lower state courts making decisions about the care and custody of children have jurisdiction to issue the SIJ findings.” Some states and municipalities now have statutes or rules that require child protection officials to pursue SIJS for eligible children they encounter. Other jurisdictions have policies that accomplish the same thing. Some jurisdictions have ruled that state courts not only have authority to make SIJS findings, but also have an obligation to do so. Even where a jurisdiction was hesitant to mandate that a state court make SIJ rulings, an appellate court found that the “[trial] court has authority to make SIJ findings if doing so serves a child’s best interests.” And “[r]arely, if ever, will it not be in the best interests of a child to pursue immigration relief when it is available.”
It is important to remember that a state court’s role related to SIJ petitions is based on state law, not any jurisdiction conferred on state courts by the federal government. A state court’s SIJ determination flows from inquiries and findings that state courts make in determining outcomes and interests for children before them in custody, guardianship, abuse or neglect, and related state law matters. State court authority to make special immigrant juvenile determinations flows from state law mandates to promote the child’s best interests, not from any federal mandate or commandeering.
Despite the success of advocates in affirming the appropriateness of a state court role related to immigration relief, challenges and pushback persist. Not all parties have resources to appeal, and trial court decisions in family and juvenile courts are not commonly reported. The scope of erroneous denial at the trial court level remains unknown. And even with a highly successful record of winning appeals related to state court jurisdiction, the issue has not yet been litigated in each state, meaning that appellate litigation has been a lift much heavier than invoking binding precedent. For example, only recently did the Supreme Court of Pennsylvania decide as a matter of first impression in the state that “a child who is the subject of custody proceedings that result in sole custody being awarded to the parent presently in the United States may seek SIJ determinations in that custody proceeding.”
III. SIJS and the Restatement of the Law, Children and the Law
The completion of the Restatement of the Law, Children and the Law, provides a new tool to advocates for youth seeking SIJS. On May 22, 2024,
The American Law Institute’s membership voted . . . to approve Restatement of the Law, Children and the Law. . . . Launched in 2015, this Restatement covers issues such as parental rights and state intervention in cases of abuse and neglect; the rights of students and the limits of state authority in public schools; the rights and special protections of youth in both the juvenile and criminal justice systems, from police contact to dispositions and sentencing; and children as legal persons, covering free-speech rights and the authority of minors to consent to certain medical decisions, among other things.
“Among other things” includes SIJS. This inclusion is important because the Restatement now serves as a thorough guide for advocacy and research for migrant children seeking SIJS. The inclusion of SIJS in the Restatement signals a mainstreaming and normalization of advocacy in state family courts for migrant children.
The American Law Institute’s Restatements of the Law are inherently conservative documents. They seek to restate the law, rather than reform or rewrite it. As such, Restatements “are primarily addressed to courts and aim at clear formulations of common law and its statutory elements, and reflect the law as it presently stands or might appropriately be stated by a court.” On some fronts, this mission of restating the law as it stands risks reinforcing laws and practices that might be ripe for change. For example, the “Restatement of Children and the Law embraces a strong parental rights framework for families ensnared in the family regulation system” even as “the family regulation system and the marginalized families it most impacts are generally not the focus of parental rights debates.” Restatements are often not the first and best tools of those seeking reform.
But in the context of a law that has faced skepticism from courts, it is significant that it is now black letter law that “[i]n a state-court proceeding about the care and custody of a child, the court has the authority to make determinations relevant to the federal Special Immigrant Juvenile Status classification.” This Restatement, not of federal law but of state law regarding children, gives firm footing that has been elusive in some courts. It helps that the Comment and Reporters’ Notes provide extensive support for this black letter assertion from which advocates can draw, but the simple fact of inclusion provides long-awaited mainstreaming and ratification of decades of effort. It will serve as an authoritative foundation for advocacy in places where SIJS is still novel.
Conclusion
SIJS is an imperfect response to the many problems that immigration law addresses, and to the many problems that it creates. In application, it has far outstripped its humble origins, even as subsequent statutory amendments have clarified and ratified the appropriateness of the extended reach of SIJS. In providing relief to so many migrant youth, the success of SIJS has led to one of its biggest implementation problems as backlogs in visa availability persist and expand. The numerical limitations placed on this humanitarian form of immigration relief highlight the need for expertise in both family law and immigration law in crafting measures to protect this vulnerable population. The mainstreaming of SIJS means that such dual expertise, once rare, is increasingly common. In refining existing law or creating new approaches, the pool of talent and expertise related to representing migrant children is now much broader and deeper than it was when SIJS was first created, encompassing both family law and immigration law perspectives. This bodes well for advocacy for migrant children, whether in applying SIJS or in designing future statutory responses.
The mainstreaming of SIJS, epitomized by its inclusion in the Restatement, perhaps will make demagoguery of migrant children more difficult and help lessen the tremendous barriers to immigration reform that have plagued attempts at legislative reform. As a new administration takes office, the solidification of SIJS reflected in the Restatement might serve as a bulwark in state courts against some of the uglier attempts to demonize migrants, including children, through federal immigration enforcement. SIJS’s place in the Restatement ratifies its place in the mainstream, as just another means to pursue better care and opportunities for children. This normalization of migrant children moves them closer to being seen first as the children in need that they are rather than immigrant outsiders as some would attempt to make them.
