Seeking Asylum with an Immigration Court
Seeking asylum in the current immigration court system can be a very long process. In addition to the delays, the chances of success can vary drastically depending on jurisdiction and the facts that exist in the case. Seeking asylum is a human right protected by international agreements under the United Nations 1967 Protocol (Asylum in the United States, Am. Immigr. Council (2024)). This agreement defines refugees as those are who are unable or unwilling to return to their home country. Additionally, they cannot obtain protection in their country due to past persecution or a well-founded fear of being persecuted in the future on account of “race, religion, nationality, membership in a particular social group, or political opinion” (id., citing U.N. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 152). The United States is a signatory to this protocol and, as such, has a legal duty to allow refugees to seek asylum here. Congress used this language when it passed the Refugee Act of 1980 (Pub. L. No. 96-212, 94 Stat. 102).
Our immigration court system is the venue that hears many of the recent arrivals to the United States. This court system faces severe backlogs. From 2012 to 2024, the backlog went from about 325,000 to more than 3,500,000 cases (Immigration: Immigration Court Quick Facts, Transactional Recs. Access Clearinghouse (last visited June 13, 2024)). Despite our agreements to provide asylum, the United States has failed to pass extensive immigration reforms for more than 20 years (Historical Overview of Immigration Policy, Ctr. for Immigr. Studs. (last visited June 13, 2024)). The number of individuals granted asylum in fiscal year 2022 was 36,615 (Asylum in the United States, supra, at 6). This includes both those in immigration court (a defensive process) and those assigned to a local asylum office (an affirmative process) (id.). The grant rate of asylum cases in immigration courts generally hovers below 50 percent, and in some years, it is much lower (Immigration: Asylum Decisions, Transactional Recs. Access Clearinghouse (last visited June 13, 2024)). In 2024 alone, immigration courts have recorded receiving 1,305,443 cases (Immigration: Immigration Court Quick Facts, supra). The courts completed 517,675 in that same period (id.). Immigration courts have a recorded backlog of 3,596,317 cases, with 1,278,654 waiting to have an asylum hearing (id.).
Alternative Humanitarian Options
Given these difficulties with our current asylum process, it is no surprise that many seek alternative options. Other humanitarian options in our immigration system do exist and may provide a better route to relief than asylum. Still, even for those who qualify, the wait to receive the immigration benefit can last years. The lack of availability of U Visas, for example, leads to at least a four- or five-year wait for a possible resolution and work authorization (Tirzah Christopher, A Visa Program Created to Help Law Enforcement Puts Immigrant Victims at Risk Instead, NPR (Aug. 12, 2023)). Even after approval, which grants the applicant a four-year work authorization card, the applicant must wait another three years before seeking to adjust status and apply for a green card with the U.S. Citizenship and Immigration Services (USCIS) (Green Card for a Victim of a Crime (U Nonimmigrant), U.S. Citizenship & Immigr. Servs. (last visited June 13, 2024)).
Other options may include seeking protection under the Violence Against Women Act (VAWA), which, despite its name, applies equally to men. Congress passed this legislation in 1994 to protect the spouses and parents of U.S. citizens or residents who are subject to abuse at the hands of a relative with legal status. This form of relief has limited reach as it applies only to immediate relatives of a U.S. citizen or permanent resident (Green Card for VAWA Self-Petitioner, U.S. Citizenship & Immigr. Servs. (last visited June 13, 2024)). Also, VAWA does not help immigrant youth who are neither married nor a derivative beneficiary of this relief.
Special Immigrant Juvenile Status
For immigrant youth, one form of humanitarian relief stands out among the rest: Special Immigrant Juvenile Status (SIJS), available to immigrant youth who have been subjected to abuse, neglect, or abandonment by one or both parents (Special Immigrant Juveniles, U.S. Citizenship & Immigr. Servs. (last visited June 13, 2024)). To seek this relief, the minor must be under the age of 21, living in the United States, and unmarried. The minor also must have a valid juvenile court order issued by a state court in the United States, which, in the words of the USCIS website, finds that:
- You are dependent on the court, or in the custody of a state agency or department or an individual or entity appointed by the court;
- You cannot be reunified with one or both of your parents because of any of the following:
- Abuse;
- Abandonment;
- Neglect; or
- A similar basis under state law; and
- It is not in your best interests to return to the country of nationality or last habitual residence of you or your parents.
Id.
This intersection of state law and immigration law presents unique challenges, the biggest of which is the variety of different ways one could obtain the required predicate order from a state court. Courts across the United States approach child welfare cases differently. In some states, such as New York, the family court has provided a template for making these SIJS findings (Forms - Family Court Forms, NYCOURTS.GOV (last visited June 13, 2024)). This is meant to streamline and simplify the process; however, many states do not provide such a form.
Another challenge can be related to a state’s age of majority (when a minor is considered to have become an adult). The age of majority varies throughout the United States, though typically, it is between the ages of 18 and 21 (Elissa Suh, The Age of Majority (and the UTMA Account Distribution Age) in Every State, Policygenius (Dec. 1, 2021)). SIJS and other immigration benefits available to youth define eligibility to include someone under the age of 21 (8 CFR § 204.11(B)(1)). Despite this, a minor’s eligibility for SIJS can be determined by where he or she resides.
Starting the SIJS Process in Mississippi
In Mississippi, where I practice, the age of majority is 21, creating the largest possible window for establishing eligibility. There are two courts that can make the needed findings. The first venue, Youth Court, generally serves children who (1) are delinquent, (2) are in need of supervision, or (3) have been removed from their homes and placed into foster homes after abuse, neglect, or abandonment has been alleged against one or both parents. Youth Courts are special courts authorized by statute in the state of Mississippi (see Miss. Code Ann. § 43-21-107 (2008); see also In re T.L.C., 566 So. 2d 691, 696 (Miss. 1990)).
Children who face abuse, neglect, or abandonment by one or both parents but for whatever reason do not end up in Youth Court can bring an affirmative action in Chancery Court. Chancery Court is an equity court where chancellors are given broad discretion (Kate Margolis, A Brief History of Mississippi’s Chancery Court, Cap. Area Bar Ass’n. (May 2012); see also About the Courts, State of Miss. Judiciary Admin. Off. of Cts. (last visited June 13, 2024)). Chancery Courts have jurisdiction over “disputes in matters involving equity; domestic matters including adoptions, custody disputes and divorces; guardianships; sanity hearings; wills; and challenges to constitutionality of state laws. Land records are filed in Chancery Court” (About the Courts, supra). The most straightforward method for obtaining a predicate order for SIJS in Chancery Court is through filing a custody petition. The custody petition generally will allege that a minor child has been in the custody of their parent, relative, or other adult for at least six months and that it is in the best interests of the minor to remain in the custody of the petitioner. For SIJS, special language, mentioned above, must be present in the final order and, therefore, must be alleged in the initiating petition. Due to the special language in the petition and order, questions often arise in these proceedings regarding the minor’s and the petitioner’s immigration statuses. Many chancellors and Youth Court judges are hesitant to adjudicate what can appear to be an immigration-related finding. However, it is important to remember that a predicate order is a normal state court order and not an immigration holding. In all cases before the state family courts, we are seeking what is in the best interests of the minor.
To determine what is in the best interests of the minor in any custody case in Mississippi, the court must consider the “Albright factors,” named after Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). This case provides several factors to consider when determining what is in the best interests of the minor child, including the child’s age, health, and sex; continuing care of the child prior to separation; parenting skills; stability of the home environment; emotional ties of the parent and child; the home, school, and community environment of the child; moral fitness; capacity to provide child care and employment responsibilities; and the child’s preference (if age 12 or older). Fortunately, most minors seeking to establish their eligibility for SIJS are in a better situation than the one they found themselves in before coming to the United States. Often, the custody matter can also help the minor to obtain identification, such as a passport, and make it easier for the parent or guardian to enroll the minor in school. This is because most countries require both parents to agree to obtain a passport. When one parent is absent and unavailable to sign the paperwork, a custody order granting the guardian or parent full legal and physical custody will help alleviate this issue (Apply for a Child Under 16, U.S. Dep’t of State, Bureau of Consular Affs. (last visited June 13, 2024)).
Once a predicate order is obtained in state court, the minor can file Form I-360 (I-360, Petition for Amerasian, Widow(er), or Special Immigrant, U.S. Citizenship & Immigr. Servs. (last visited June 13, 2024)). Form I-360 is also used for other types of relief, such as for Amerasians, widow(er)s of a U.S. citizen, VAWA applicants, religious workers, and Afghan or Iraqi nationals who worked as government translators, to name a few. The relevant section of the form is simple to fill out. The required evidence includes Form I-360, a G-28 Entry of Appearance form (if the petitioner is represented), an identification document such as a passport or birth certificate, and a copy of the state court order. This form must be filed before the minor turns 21 years old. USCIS recently implemented a process for minors who will turn 21 within two weeks of the filing of the I-360 to file it in person at a local USCIS field office (Provision Allowing Special Immigrant Juveniles to File Form I-360 in Person Before Their 21st Birthday, U.S. Citizenship & Immigr. Servs. (last visited June 13, 2024)). This was intended to avoid situations where the application is not properly filed before the minor ages out. For instance, a Form I-360 may be rejected if the edition date is incorrect, a signature is missing, or a required part is missing.
Once this form has been approved, the minor will likely be granted what is called deferred action (see Policy Alert: Special Immigrant Juvenile Classification and Deferred Action, U.S. Citizenship & Immigr. Servs. (March 7, 2022)). This prevents any removal actions against the minor for a specified period of time, generally four years for SIJS approvals. This also makes the minor eligible for work authorization during that deferred action period. SIJS-approved minors are eligible to adjust their status and obtain permanent residency in the United States. Unfortunately, there is a backlog of available visas, and the minor will end up waiting about four to five years for this benefit.
Representing Children: A Higher Calling
Despite the challenges and difficulties, representing a child is one of the most important callings an attorney can have. Whether it is through seeking asylum with the immigration court or SIJS, zealous advocacy is required on the child’s behalf. For resources and information relating to asylum or SIJS, practitioners should explore the offerings from the ABA Commission on Immigration and the American Immigration Lawyers Association (AILA) or ask a local AILA chapter member for information.
