Special Immigrant Juvenile Status

• Author: Elizabeth Anne Campbell; Rachel DeLia Settlage; Veronica Thronson
• Pages: 69-85

I. Introduction

In 1990, through an amendment to the Immigration and Nationality Act

(INA), Congress created the classication of Special Immigrant Juvenile

Status (SIJS) to provide immigration relief for certain undocumented chil-

dren, in particular those who were abandoned, abused, or neglected in foster

care, guardianship, or adoption situations.

1

Through subsequent amend-

ments and case law, this form of relief has become available more broadly

for undocumented children in a variety of settings in which state courts are

involved in making determinations of custody, such as juvenile delinquency

proceedings and the placement of unaccompanied minors.

The process of achieving SIJS involves a unique blend of responsibili-

ties among state and federal systems, which requires working in both child

welfare and immigration settings. This creates challenges for advocates and

adjudicators, who are often unfamiliar with one of these legal areas and

with this form of relief. Cross-jurisdictional complexities aside, SIJS also is

an anomaly, as it is the only form of immigration relief that expressly turns

on the best interests of the child.

1. See Immigration and Nationality Act (INA) § 101(a)(27)(J), 8 U.S.C. § 1101(a)

(27)(J) (2012).

69

Chapter 5

Special Immigrant Juvenile Status

Settlage_ImmRelief_20140717_09-11_Final.indd 69 7/17/14 9:12 AM

II. Jurisdiction: State Courts and Federal Agencies

The process of qualifying for SIJS generally begins in state court. In order for

a child2 present in the United States to establish eligibility for SIJS, a state

juvenile court must rst make certain factual ndings. These preliminary

state juvenile court ndings are necessary for the ling of an SIJS applica-

tion with U.S. Citizenship and Immigration Services (USCIS); however, the

ultimate decision of whether to grant immigration relief in the form of SIJS

rests with USCIS, not with a state court.3

A. The Role of the Sta te Juvenile Cour t

For SIJS purposes, a “juvenile court” is dened as any “court located in the

United States having jurisdiction under State law to make judicial determi-

nations about custody and care of juveniles.”

4

The actual name of the court

used under the state system is unimportant, as it is the functional role of

the court in determining the care and custody of children that determines

whether a state court is a “juvenile court” for SIJS purposes. Any court, how-

ever denominated, that makes guardianship decisions or decisions about

the custody and care of a child is a “juvenile court” under immigration

law.5 Thus, in many jurisdictions a probate or family court will qualify as

a “juvenile court” for federal immigration purposes. For state courts that

have not previously encountered SIJS petitions, often a critical rst step in

an SIJS case is educating the court about the fact that it is a juvenile court

2. An unmarried person may qualify as a child for immigration purposes until age

21 under most circumstances. See id. § 1101(b)(1).

3. See In re D.A.M., 2012 Minn. App. LEXIS 1158 (Minn. Ct. App. Dec. 10, 2012)

(stating that “these ndings by the state court do not bestow any immigration sta-

tus on SIJ applicants”).

4. 8 C.F.R. § 204.11(a) (2013). The SIJS regulation notes as an eligibility criterion

that the applicant must be “under twenty-one years of age.” 8 C.F.R. § 204.11(c)

(2013). Note that even though eligibility for immigration purposes extends to age

21, state laws rarely permit state court systems to take initial jurisdiction over mat-

ters of care and custody for individuals over age 18.

5. Angie Junck, Special Immigrant Juvenile Status: Relief for Neglected, Abused, and

Abandoned Undocumented Children, 63 J.  F. C. 48, 54 (2012) (noting that

“[w]hether a court is a ‘juvenile court’ under the federal denition is not determined

by the label that the state gives to the court, but rather by the court’s function”).

ChApter 570

Settlage_ImmRelief_20140717_09-11_Final.indd 70 7/17/14 9:12 AM