February 01, 2016

State Courts’ Roles in Protecting Immigrant Children

Claire Chiamulera

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

With sharp increases in the numbers of unaccompanied immigrant children entering the United States, state courts play a critical role deciding which children are eligible for legal protection.

“Without the state court findings and assistance of state court attorneys and others to flag these cases, these children may not have the opportunity to apply to the U.S. Citizenship and Immigration Services…to see if they can legalize their status and have more stability here in the U.S.” said Angie Junck, supervising attorney, Immigrant Legal Resource Center, San Francisco. 

Junck presented at a recent ABA webinar to help state court judges and attorneys understand their role in Special Immigrant Juvenile Status (SIJS) cases. This article shares highlights.

What is known about immigrant children in the U.S.?

Nearly one-quarter (23.2%) of children in the U.S. are immigrants or the children of immigrants. 

  • Many of these children are citizens since they were born in the U.S. 

  • Other children lack legal status but have grown up in the U.S. and consider it home. These children often make their way into state courts in dependency or delinquency proceedings. They are vulnerable because they lack ties to their home countries, don’t speak the language of their home countries, and are unaware of their legal status.

  • Other children have arrived recently, fleeing violence, abuse, or other harms in their home countries. The recent “migrant surge” has drawn attention to these children. Many who are apprehended at the border remain in the U.S. because they have family members with whom they can be reunited in the U.S.

Who is an unaccompanied minor?

The federal definition is a child who:

  • Has no lawful immigration status within the U.S.

  • Has not turned 18 years old

  • Has no parent or legal guardian in the U.S., or no parent/legal guardian in the U.S. available to provide care and physical custody when they are apprehended. 6 U.S.C. Sec. 279(g)(2).

What are some characteristics of unaccompanied minors?

Demographic data for fiscal year 2014 reveal:

Unaccompanied minors primarily come from three countries: 

  • Guatemala (32%), 
  • El Salvador (29%), 
  • Honduras (34%).

The majority are male (66%), with females representing 34% last year (an increase over previous years). 

A growing number are young. In 2014, 27% were under 14 years.

Why do unaccompanied minors come to the U.S.?

The primary reasons are:

  • Increased violence in their home countries (gang violence, cartel violence, domestic violence)
  • Poverty
  • Desire to reunify with family members living in the U.S.

A “will to live” is a great motivator for many children who make the journey to the U.S., according to a report from the Women’s Refugee Commission. Many have seen great violence at home and are willing to take great risks and experience horrific conditions on their journeys rather than stay and suffer harm in their home countries.

What is SIJS?

SIJS provides legal protection for certain unaccompanied immigrant children who have been abused, neglected, abandoned or similarly harmed by one or both parents and it not in their best interests to return to the home country. If found eligible for SIJS by a state court, these children may apply to the federal government to legalize their immigrant status and become lawful permanent residents. 

How do unaccompanied minors obtain SIJS?

Immigration is generally a federal issue but Congress has directed state courts to make basic findings to determine if children are eligible for SIJS. 

SIJS is a two-step process:

  • Step one takes place in state juvenile courts. The state court makes findings regarding the child’s potential eligibility for SIJS. If the required factual findings can be made, the state court issues an order with those findings. 

  • Step two takes place in the federal U.S. Citizenship and Immigration Services (USCIS) or federal immigration courts. Once a state court order with the required findings is received:
    • An application for an SIJ visa (Form I-360) is filed with USCIS. 
    • An application for adjustment of status (green card)(Form I-485) is filed, either with USCIS or federal immigration court.

What are the criteria for SIJS eligibility?

Current eligibility requirements for children are:

  1. must be under 21 years of age.

  2. must be unmarried.

  3. must be declared dependent upon a juvenile court in the U.S. or a court must legally commit or place the youth under custody of a state agency, department, or individual entity. 

A juvenile court must also find:

  1. Reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis under state law; and 

  2. It is not in the child’s best interests to return to his country of nationality or last residence.

What are some examples of children found eligible for SIJS?

There are many “faces” of children who may qualify for SIJS under the federal definition. Examples include:

  • A child raised in the U.S. who enters the child welfare system and now lives with one parent, when the other parent’s reunification services have been terminated.

  • A child who arrived unaccompanied to the U.S. and is now living with the paternal uncle who has petitioned to be his guardian.

  • A child who has lived in the U.S. since age six, is adjudicated a ward of the court after a delinquency offense and placed on probation, and cannot reunify with his mother due to abandonment.

  • A child who arrived to the U.S. in December 2014 who was abused by her father in the home country and now lives safely with her mother, who has been granted sole legal custody.

 

Claire Chiamulera, editor, ABA Center on Children and the Law, Washington, DC.

The webinar, “Primer on the State Court’s role in Special Immigrant Juvenile Classification,” was hosted by the ABA Working Group on Unaccompanied Minor Immigrants and the ABA Judicial Division with support from the ABA Center on Children and the Law on October 27, 2015. 

Legal Protections for Immigrant Children

Immigrant children may qualify for different forms of relief based on the forms of violence they suffer.

Asylum: Claim for protection based on well-founded fear of persecution in the home country.

SIJS: Claim for protection following past or current parental abuse, neglect, or abandonment.

U-Visa: Claim for protection for a victim of crime in the U.S. who aids authorities in the investigation or prosecution of the crime.

T-Visa: Claim for protection from human trafficking for immigrant children forced into trafficking situations.

 

How State Court Judges Can Help

by Honorable Katherine E. Essrig, Circuit Court Judge, 13th Judicial Circuit, Tampa, FL

As a state court judge, you may be uncomfortable deciding federal matters and feel it is outside your role. Some steps to overcome this concern:

  • Understand your role. The state court’s role in cases involving unaccompanied immigrant children is limited to making findings about their eligibility for legal protection and their best interests. This function is well-within the state court’s normal role of providing equal justice for all and protecting vulnerable individuals. As state court judges, you’re being asked to examine issues you normally look at: safety, well-being, and permanency. It’s no different in the SIJS-eligible population than other groups you normally assist. The federal government relies on state courts to investigate and make determinations about what is best for the child.

  • Understand the federal government’s role. The USCIS or federal immigration courts adjudicate immigration status. They use the findings made by state courts about unaccompanied minors eligibility for legal protection and best interests to determine whether to grant SIJS.

  • Become knowledgeable about SIJS. A number of resources are available:
  • Ensure SIJS orders are complete. If you do find a child is eligible for SIJS and want to make an order, use care to ensure the order includes the required findings:
  1. The child must be under 21 years of age.
  2. The child must be unmarried.
  3. The child must be declared dependent upon a juvenile court in the U.S. or a court must legally commit or place the youth under custody of a state agency, department of individual entity. 
  4. Reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis under state law; and 
  5. It is not in the child’s best interests to return to his country of nationality or last residence.
  6. USCIS has indicated that the orders should not include boilerplate statutory language, but reflect the court’s factual findings that are the bases for the above findings.

 

  • Organize a workgroup. Jurisdictions with large numbers of unaccompanied minors can benefit by forming a workgroup to develop resources and perform outreach in the community. Consider creating flyers and websites listing resources (free/low-cost legal assistance, medical care, medical insurance, school information) to help immigrant children in the community.

 

SIJS Statutory History

1990: SIJS statute created to protect (1) an immigrant child who was declared dependent on a juvenile court and found eligible for long-term foster care, and (2) whose best interests would not be served by returning to the home country. 

1997: Congress amended the SIJS statute to require  that immigrant children be deemed eligible for long-term foster care due to abuse, neglect, or abandonment. The change ensured these children were proven to be abused, neglected, or abandoned.

2008: SIJS statute amended by the Trafficking Victims Protection Reauthorization Act (TVPRA), greatly expanding the group of children eligible for SIJS. Requirement that children be deemed eligible for long-term foster care was replaced to allow children who cannot be reunified with one or both parents due to abuse, neglect, abandonment or other similar basis under state law. This change recognized that abused, neglected, and abandoned children exist in many places and are not always in contact with state dependency courts.