Between a Rock and a Hard Place

• Publication year: 2022

Between a Rock and a Hard Place

The Inconsistent Application of Special Immigrant Juvenile Status Under Federal Law

Maria Eijo de Tezanos Pinto and Kristine Artello ^*

Abstract: According to federal immigration law, minors who obtain a Special Immigrant Juvenile Status (SIJS) classification can obtain a green card. To be eligible for SIJS, the Immigration and Nationality Act requires, among other things, that the minor be under 21 years of age and that a state juvenile court determine that the minor cannot reunify with one or both parents due to abuse, neglect, abandonment, or a similar cause. Most states determine that minors age out of the juvenile court's jurisdiction at age 18. This discrepancy leads to an inconsistent application of federal law, because the eligibility for SIJS depends on the physical location of the child at the time of determination. A mechanism that would allow a more consistent application of federal immigration law is needed to avoid unfairness in the determination of SIJS between ages 18 and 21. Potential solutions are discussed.

Introduction

Under the auspices of humanitarian and practical considerations for vulnerable children, Congress enacted the Immigration Act of 1990 legislation to protect undocumented immigrant children who have been abused, neglected, or abandoned by a parent through the Special Immigrant Juvenile (SIJS) status. ¹ If immigrant minors are in the United States and have been abused, abandoned, or neglected by a parent, such minor may be eligible for SIJS classification, they may petition juvenile courts for protection under SIJS. If SIJS classification is granted, the minor may qualify for lawful permanent residence (also known as getting a green card). However, the legal quagmire of state juvenile courts and jurisdictions overlaid with administrative court delays and inconsistencies has resulted in juveniles not being able to employ this statute in the way Congress intended. In this article, the legal structure of SIJS and the gaps in the systems will be shown to expose how these vulnerable youths face not only locating a safe place but also legal limbo with little recourse. It is difficult to appreciate the barriers, so what follows is a composite case study to show the reality faced for SIJS petitioners and their caregivers.

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Case Study ²

Ernesto was born in Honduras to a single mother. Ernesto's mom abandoned him when he was only one year old, and he has not had any communication with her ever. Ernesto left Honduras because he was being harassed by a gang to join them. He was threatened with physical harm and possible death if he refused them. Escaping from this situation, Ernesto traveled to the southern border of the United States and entered without inspection, hoping to reunite with an uncle living in Virginia. Shortly after crossing the border, Ernesto was detained by U.S. authorities and placed in a shelter in Houston. He was released to his uncle and placed in removal proceedings. Ernesto's uncle wanted to take legal custody of the child and request SIJS for him so that Ernesto did not have to return to his home country and face the gang, who would probably try to kill him. Ernesto's uncle immediately contacted a lawyer and initiated the relevant legal proceedings for these purposes.

Although Ernesto had not lived in the area for jurisdictional purposes for more than six months, the judge followed the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act for the "vacuum jurisdiction." The judge determined that in a case like this where the six months of jurisdiction had not been met, and the child was from another country, absent a custody proceeding in the other country a Virginia court could exercise emergency jurisdiction. In fact, the judge did so. Ernesto's uncle felt relieved he could rescue his nephew from such a vulnerable situation. However, Ernesto was running out of time. He was 17 and was turning 18 in a couple of months. Although the court filings were made prior to his eighteenth birthday, by the time the hearing was held, he had turned 18. The judge was very aware of the July 2021 expansion of Virginia juvenile court jurisdiction ³ and interpreted it as giving the judge authority to adjudicate a family law issue up until the child is 21 years old. However, the court determined that the issue of custody was moot, and therefore did not hear testimony on the issue. The judge stated that the court could not enter an order providing a custody determination for someone over 18 years of age. The judge entered an order to confirm these findings related to a SIJS petition, that the petitioner had been abandoned and was a vulnerable youth. However, because SIJS eligibility requires that the youth either be declared dependent on the juvenile court or have been placed under some agency's authority or placed with an individual or entity, ⁴ United States Citizenship and Immigration Services (USCIS) denied Ernesto's petition for SIJS and he was ordered removed to Honduras.

Ernesto is not alone. Many youths in the United States face the same situation. Absent a custody order, USCIS will likely deny SIJS status when considering these children's I-360 SIJS petition. While USCIS has discretion to grant such a petition on humanitarian grounds, this discretion has not been exercised to keep youth in America in the experience of the authors. This article sets out the current status of SIJS classification, the current legal

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rulings, the continued jurisdiction issues, federal supremacy arguments, lack of transparency on data regarding these proceedings, and potential solutions for the problems that we see with the current SIJS processes.

Special Immigrant Juvenile Status: Legal Framework

To establish eligibility for SIJS classification, immigrant juveniles who are physically present in the United States must show, among other things, that they are unmarried and under 21 years of age. ⁵ But most importantly, they must show that they have been subject to a state juvenile court order determining that they cannot reunify with one or both of their parents due to abuse, neglect, abandonment, or a similar basis under state law. ⁶ For these purposes, INA § 101(a)(27)(J)(i) establishes that there are two possible scenarios: (1) the child must have been declared dependent upon the juvenile court, or (2) the juvenile court must have placed the child in the custody of a state agency or department, or an individual or entity appointed by the state or juvenile court. Furthermore, 8 C.F.R. § 204.11(c)(3) establishes that the juvenile court's dependency declaration or custodial placement must be made in accordance with state law governing such determinations. Additionally, INA § 101(a)(27)(J)(ii) requires that the record must contain a judicial or administrative determination that it is not in the children's best interest to return to their, or their parent's, country of nationality or last habitual residence.

The requirements for SIJS eligibility can also be found in the USCIS Policy Manual, in volume 6, part J. The Manual expounds on the requirements in three ways. First, USCIS requires that the minor must have sought the juvenile court order to obtain relief from abuse, neglect, abandonment, or a similar basis under state law and not primarily to obtain an immigration benefit. ⁷ Second, if the juvenile is in the custody of the Department of Health and Human Services (HHS), and seeks a juvenile court order that changes their custody status or placement, USCIS requires a written consent from HHS/Office of Refugee Resettlement (ORR). ⁸ Third, USCIS requires the minor to have a valid court order issued by a juvenile court and that the court order and/or supplemental evidence submitted establish that the court had competent jurisdiction to make judicial determinations about the minor's dependency and/or custody and care as a juvenile under the relevant state laws. ⁹

According to USCIS policies, juveniles need to meet all the requirements at both moments: at the time the SIJS petition is filed and at the time USCIS adjudicates the petition. ¹⁰ However, USCIS understands that the child does not need to be under the jurisdiction of the juvenile court that issued their order if the court's jurisdiction ended solely because the child was adopted or placed in a permanent guardianship, or because they aged out of the juvenile court's jurisdiction. ¹¹ In other words, the child can still file for SIJS with USCIS even after they become of age according to the relevant state law as

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long as they are still considered a minor according to the Act (i.e., if they are under 21 years of age).

USCIS Interpretation of the SIJS Provisions of the Act

USCIS has the sole authority to implement the SIJS provisions of the Act and regulation. ¹² USCIS policies regarding the implementation of the SIJS provisions of the Act and regulation have varied over time, sometimes in response to the outcome of litigation. For example, in California various claimants came together to argue that USCIS incorrectly imposed a new requirement on SIJS classification eligibility by not approving SIJS petitions for petitioners who were placed in guardianships under Cal. Prob. Code § 1510.1 when they were ages 18, 19, and 20. ¹³ USCIS had been denying SIJS petitions on the ground that the probate court did not have jurisdiction to "reunify" the petitioner with one or both parents. ¹⁴ The parties later reached a settlement, as a result of which USCIS changed its policy.

Consistent with the INA § 101(a)(27)(J)(i), USCIS interprets the definition of juvenile court at 8 C.F.R. § 204.11(a) to mean a court located in the United States having jurisdiction under state law to make judicial determinations about the dependency and/or custody and care of juveniles. However, USCIS holds that whether a state court order submitted to USCIS establishes a petitioner's eligibility for...