Abused, Abandoned, Neglected, and Still Not Protected: the Need for an Expansion of Juvenile Immigrants' Rights in Nebraska
| Publication year | 2021 |
| Citation | Vol. 100 |
100 Nebraska L. Rev. 270. Abused, Abandoned, Neglected, and Still Not Protected: The Need for an Expansion of Juvenile Immigrants' Rights in Nebraska
Abused, Abandoned, Neglected, and Still Not Protected: The Need for an Expansion of Juvenile Immigrants' Rights in Nebraska
Jayden Barth
Comment [*]
TABLE OF CONTENTS
I. Introduction .......................................... 271
II. Background ........................................... 273
A. Overview of the Special Immigrant Juvenile Status Process ........................................... 273
B. History of Special Immigrant Juvenile Status ...... 274
C. Role of State Courts in Special Immigrant Juvenile Status Proceedings ................................ 276
D. Treatment of Special Immigrant Juvenile Status in Other States ...................................... 278
1. States Making It Harder for Juveniles Seeking SIJS .......................................... 278
2. States Making It Easier for Juveniles Seeking SIJS .......................................... 281
III. Analysis .............................................. 285
A. Nebraska Jurisdiction and Authority Clarification. . 285
B. Nebraska's Trend Toward Jurisdiction Expansion . . 286
C. Federal Special Immigrant Juvenile Status Eligibility ......................................... 288
D. Why Juveniles Should Be Protected Until Twenty-One ............................................... 290
IV. Conclusion ............................................ 293
1
I. INTRODUCTION
At a young age, Jose witnessed several murders and numerous dead bodies lying in the streets and experienced familial violence on multiple occasions while living in his home country of Guatemala. [1] Jose recalls his uncles-his own blood relatives-abusing several members of his family. [2] In fact, one of the brutal beatings included his grandmother, whom his uncles beat into hospitalization. [3] Jose also details vivid dreams and recollections of his father abusing his mother in front of him. [4] As a result of this trauma, Jose now suffers from post-traumatic stress disorder. [5] His brother, Luis, bears eerily similar memories of his family and home country, including memories of direct abuse by both his mother and father. [6]
Because of this abuse by family members and the lack of safety in Guatemala, Jose and Luis traveled undocumented with their mother to the United States sometime in 2001 or 2002, eventually settling in Grand Island, Nebraska. [7] However, soon after their arrival, their mother was deported back to Guatemala after being arrested. [8] At the time of their mother's deportation, Jose and Luis both lived else-where-in a group home and a foster home, respectively. [9] At this point, the boys were without their family, but at least they were safe compared with their living situation in Guatemala. [10]
Sadly, Jose and Luis's story is similar to that of many undocumented juveniles living in the United States. [11] This may be because
2the number of undocumented juveniles crossing the border into the United States each year is staggeringly high. [12] In fact, there are over one million undocumented juveniles estimated to be living in the United States. [13] This number is likely to increase during the Biden administration, as President Biden is looking to "modernize" the immigration system. [14] In January 2021, the month of President Biden's inauguration, border agents encountered over double the number of migrants at the border than in January 2020. [15] By March 2021, immigration agencies reported that "[t]he number of migrant children in custody along the border has tripled." [16]
Given the extremely high number of undocumented juveniles in the country at any given moment, the pathways that allow for documentation and eventual citizenship are gravely important to understand. Special Immigrant Juvenile Status (SIJS) is just one option available to immigrant children who have been abused, abandoned, or neglected, as a pathway to permanent legal resident status in the United States. [17] Since SIJS is highly dependent on state courts and
3statutes, [18] states must provide for the most efficient and effective ways for juveniles to navigate through SIJS proceedings to better protect immigrant children in the United States.
This Comment considers SIJS and calls for the expansion of protections for immigrant juveniles living in the State of Nebraska. Part II will examine the process for obtaining SIJS, the history of the federal SIJS statutes, the relationship between state courts and federal courts during the process, and the application of SIJS statutes in various states. Part III of this Comment will discuss Nebraska's solidification of authority for courts to make SIJS findings and argue that Nebraska, which is already trending toward expanding certain protections for juveniles, should expand jurisdiction for SIJS proceedings until juveniles reach the age of twenty-one.
II. BACKGROUND
A. Overview of the Special Immigrant Juvenile Status Process
The federal statute containing SIJS is 8 U.S.C. § 1101(a)(27)(J), while the implementing regulation is 8 C.F.R. § 204.11. [19] The implementing regulation indicates general eligibility requirements for juveniles applying for SIJS. The requirements include that a juvenile:
(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 the state law governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the court; (4) Has been deemed eligible by the juvenile court for long-term foster care; (5) Continues to be dependent upon the juvenile court and eligible for long-term foster care, such declaration, dependency or eligibility not having been vacated, terminated, or otherwise ended; and (6) Has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court in which it has been determined that it would not be in the alien's best interest to be returned to the country of nationality or last habitual residence of the beneficiary or his or her parent or parents. [20]
Therefore, if the juvenile is under twenty-one and is dependent on a juvenile court, the juvenile may file a petition for SIJS, and a state court must then subject the juvenile to judicial proceedings as the next step of the process. [21]
4The judicial proceedings require a state court judge to make a set of findings. These findings are indicated by the language of the SIJS statute, which provides that a special immigrant juvenile is:
[A]n 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. [22]
In short, the requirements in this step of the SIJS process include dependency on a juvenile court; nonviability of reunification due to abuse, abandonment, or neglect by at least one parent; and that it be against the child's best interests to return to their home country. [23] If a state court judge determines these requirements are fulfilled, then the judge will include them in the state's predicate order. [24]
After a juvenile meets the general eligibility requirements, has been subject to judicial proceedings by an authorized juvenile court, and has received the required predicate order from a state court judge, a juvenile's case will then be heard by U.S. Citizenship and Immigration Services (USCIS). [25] USCIS will then make the final determination of whether a juvenile will receive SIJS.
B. History of Special Immigrant Juvenile Status
Congress enacted the first federal SIJS statutes in 1990. [26] Since enactment, the statutes and implementing regulation have been amended twice. [27] Originally, the statute required a state court to find the child dependent on the court, eligible for long-term foster care, and
5for it to be against the child's best interests to return to their home country. [28]
The first amendment of the SIJS statutes occurred in 1997. The amendment's primary purpose was to prevent juveniles from taking advantage of this seemingly "easier" pathway to citizenship. [29] This amendment introduced the abused, abandoned, or neglected requirement into the equation, narrowing the pool of juveniles eligible for SIJS. [30] The second amendment to SIJS, enacted in 2008, broadened the applicability of SIJS, increasing the number of eligible immigrant juveniles. [31] This 2008 amendment discarded the requirement that a juvenile be eligible for long-term foster care. [32] The...
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