§ 9.4 Immigration Options when There Is Abuse in the Home, Home Country, or Elsewhere

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 9.4 IMMIGRATION OPTIONS WHEN THERE IS ABUSE IN THE HOME, HOME COUNTRY, OR ELSEWHERE

If there is abuse in the child's family or the child has directly suffered abuse, a number of different immigration options are available for which the child could be eligible. Most importantly, if the attorney is representing the child in dependency or delinquency proceedings, the child must be screened for abuse, abandonment, or neglect by either parent, as any of these would make the child eligible for special immigrant juvenile status. See § 9.4-2 to § 9.4-2(d). Additionally, the child could be eligible to immigrate through the Violence Against Women Act (VAWA) (see § 9.4-3, § 10.4-1), a U or a T visa (see § 9.4-4, § 10.4-2 to § 10.4-3(b)), or asylum (see § 9.4-5, § 10.4-4).

NOTE: VAWA expired amid political disagreements in early 2019. See Am Bar Ass'n, Violence Against Women Act Reauthorization Threatened (May 16, 2019), < www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/may2019/vawa_update >. However, the expiration affects only the grant programs; the parts of VAWA discussed in this chapter remain effective.

§ 9.4-1 Detention

As a preliminary note, children without legal status are subject to being detained. If immigration authorities apprehend a child, the juvenile must be released to a parent, legal guardian, or adult relative not in immigration custody, unless "a determination is made" that detention is required to secure the juvenile's appearance or ensure the juvenile's safety or the safety of others. 8 CFR § 1236.3(b)(1). However, if no suitable placement is available, the child will be housed in one of the many detention facilities for unaccompanied minors, run by the Office of Refugee Resettlement of the U.S. Department of Health and Human Services. See < www.acf.hhs.gov/programs/orr >.

§ 9.4-2 Special Immigrant Juvenile Status

The special immigrant juvenile visa was created in 1990 for "unaccompanied minors who have been found eligible by state courts . . . due to abuse, neglect or abandonment . . . [for whom] return to their home country would not be in their best interest." F.L. v. Thompson, 293 F Supp 2d 86, 89 (DDC 2003); see Immigration Act of 1990, Pub L 101-649, § 153, 104 Stat 4978, 5005. The law that describes who may be deemed a special immigrant juvenile and its corresponding regulations are in 8 USC § 1101(a)(27)(J) and 8 CFR § 204.11.

§ 9.4-2(a) Eligibility Requirements for Classification as a Special Immigrant Juvenile

A special immigrant juvenile (SIJ) is defined in the INA as

an immigrant who is present in the United States—
(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;
(ii) 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 the alien's or parent's previous country of nationality or country of last habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that—
(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and
(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under [the INA.]

8 USC § 1101(a)(27)(J).

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (Pub L 110-457, § 235(d)(1), 122 Stat 5044, 5079), amended this section of the INA and eliminated the requirement that a juvenile court find that the child is "eligible . . . for long-term foster care," which the regulations interpreted as meaning that family reunification was no longer an option under 8 CFR § 204.11(c)(4)-(5) (2007).

This law is further defined by the regulations in 8 CFR § 204.11(c), which provide that a noncitizen is eligible for classification as an SIJ if the alien

(1) Is under twenty-one years of age;
(2) Is unmarried;
(3) Has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while the alien was in the United States and under the

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