The Essential Role of State Courts in Special Immigrant Juvenile Cases

• Year: 2024
• Citation: Vol. 93 No. 5 Pg. 28
• Pages: 28
• Date: 01 October 2024

The Essential Role of State Courts in Special Immigrant Juvenile Cases No. 93 J. Kan. Bar Assn 5, 28 (2024) Kansas Bar Journal October, 2024

role of courts in SU cases

By Kathleen Irish and Rekha Sharma-Crawford

"We owe our children — the most vulnerable citizens in any society — a life free from violence and fear." — Nelson Mandela

Introduction

Protecting children has always been at the core of the American legal system. While state courts have built-in guardrails to ensure that the needs of children are addressed, these guardrails sometimes fail to recognize how immigration considerations also fall within the state courts purview. Immigration matters often intersect and impact state issues in ways that are not always readily contemplated. Where non-citizen children need care and protection, often the work of the state court, if done mindful of immigration requirements, can have a profound and lasting effect on the ultimate well-being of these children. To this end, federal and state systems must work in tandem to safeguard fundamental principles that promote the welfare of all children.

Immigration law is frequently seen as irrelevant or inapplicable to a family law practice — part of the domain of the federal government and with no place in a Kansas courtroom. Yet immigration law is inextricably linked to all things state. Immigrants and noncitizens alike can avail themselves of our court system. They can marry, divorce, file suit, be sued, be arrested, be convicted or acquitted, adopt, and be adopted. Sometimes their immigration status is central to their state court action, and sometimes it's irrelevant. But nowhere is it more interconnected than with Special Immigrant Juveniles. Special Immigrant Juvenile Status (SIJS) is a federal law that relies on state courts to make initial factual findings about children in their courtrooms to then be used by the children in their immigration petitions. There is no federal immigration case for an SIJS eligible child without a predicate order from a state Juvenile court. The state court is tasked with identifying and highlighting the child's factual situation during some other state court proceeding. If the court finds certain facts to be present, and memorializes those findings a court order, the child can then go on to seek immigration protection from the federal government.

All SIJS cases begin in a state courtroom — whether that be a guardianship proceeding in probate court, CINC action in Juvenile court, or a paternity action in civil court. For any child in need of stability for their living situation and immigration status, SIJS is the lifeline that can give them both. Without the cooperation and involvement of the many state courts across Kansas and the United States, SIJS as a federal benefit would cease to exist.

Mateo and Maya: A Case Study^[1]

Mateo was born to unwed parents in a small rural village in Guatemala. Surrounded by poverty and violence, his father beat his mother and drank heavily. His mother struggled to protect her son. She tried to leave his father many times, but he always found her. When Mateo was Just a toddler, she made the only choice she thought she had, and fled to the United States in search of safety for her and her son.

Once in the United States, Mateo and his mother made their way to a small rural town in Kansas with other Central American migrants. His mother found work at a meat processing plant there and enrolled Mateo in school. Shortly after moving to Kansas, she met a man through her work and together they had a daughter, Maya, born in Kansas. Together Mateo and Maya grew up in Kansas, close siblings who depended on each other and shared a special bond.

Over the years, Maya's father became more and more abusive towards their mother. He would hit her in front of the children and verbally and emotionally abuse them. She wasn't strong enough to leave him, but when they were teenagers, she sent her children to live with an aunt of hers in Kansas City so they could at least be safe away from him. The move was traumatic for the children — life in Kansas City was very different from their small town.

Their aunt quickly realized she would need legal guardianship of the children to enroll them in school, add them to her health insurance, or travel with them. And although Maya was born in the United States, Mateo was not and was still undocumented, despite having lived in the United States since he was a toddler. As a result, Mateo falls in the gap where SIJS does its work.

Congress' Long History of Special Protections for Certain Immigrant Children

Special Immigrant Juvenile Status (SIJS), as it exists today, is a form of immigration relief for undocumented youth who cannot reunify with one or both of their parents due to abuse, abandonment, neglect, or a similar basis under state law and for whom it is not in their best interest to return to their home country.^[2] It has undergone few transformations in its history, but it is important to understand where it started and how it came to exist as it does today, so that we can best utilize it to protect all the children it was designed and created to protect.

Our modern U.S. immigration laws have a long and storied history that is well beyond the scope of this article. It is important to note, however, that immigration laws have been created over different periods of time and directed at varying nationalities, domestic needs, humanitarian crises, national disasters, etc. Children were not historically differentiated from adults in most immigration laws. Over time, however, lawmakers began to identify and recognize children as their own unique humanitarian group in need of their own humanitarian immigration protections. To that end, SIJS was created by Congress some thirty-four years ago. Lawmakers were coming to realize that immigrant children face unique risks and have unique vulnerabilities that required separate and specific legislation to address. They created the SIJS program in 1990 as part of the Immigration Act of 1990, which was an overhaul and reimagining of the Immigration and Nationality Act (INA) first created in 1952.^[3]

In its initial inception, the SIJS law protected undocumented Juveniles who had been declared dependent upon a Juvenile court, who were placed in long-term foster care, and whose return to their home country would act contrary to their best interests.^[4] Each of these findings must have been memorialized in a court order issued by a state Juvenile court. In essence, the original version of the law protected only children placed in state foster care systems for extended periods of time but did not specify why the children had to have been placed in foster care. The legislation had broad support and passed without controversy.^[5]

In the Miscellaneous and Technical Immigration and Nationality Amendments of 1991, the INA was amended to allow SIJS children a more direct path to permanent residency as an important part of their protections.^[6]

In 1994, the statute was amended to somewhat increase the population of children eligible for protection. It added the phrase, "or whom such a court has legally committed to, or placed under the custody of, and agency or department of a State.. ."^[7] Essentially this meant that children who were still under the care of a state agency, even if not specifically in foster care, could benefit from SIJS protections.

Then in 1997, the program was restricted, along with most other immigration laws at the time, to prevent abuse by unintended beneficiaries.^[8] The wording was changed to focus on the reasons a child was taken into state custody and to limit what reasons would allow the child to benefit from SIJS protections. SIJS protection was limited to children who were declared dependent upon the court because of abuse, neglect, abandonment, or a similar basis under state law.^[9] The law also required the express consent of the federal government in allowing the state court order to be used for immigration purposes and prohibited state courts from determining the custody status of children already in the custody of the federal government.^[10]

As the program expanded and applications increased, Congress became concerned that as part of the adjudication process, federal immigration authorities were routinely contacting the abusive parents of SIJS applicants, as a way to verify' the claims of abuse. To prevent further harm to the children, Congress in 2005 yet again amended the SIJS laws to prevent this damaging practice.^[11] These amendments thus solely empowered the state court, who had the requisite expertise in child welfare matters, to make the necessary factual determinations upon which SIJS applications are grounded.^[12]

This brings us to the most recent (and final) amendment to the SIJS laws and to the current version of the statute as it exists today. Congress passed the William Wilberforce Trafficking Victim Protection Reauthorization Act of 2008 (TVPRA) which made significant changes to both the substantive and procedural requirements for SIJS eligibility.^[13]These amendments to the SIJS program were designed to provide an even more robust and stable law to ensure that this vulnerable population received as many protections as possible to allow them to remain safe and thrive in the United States. Among the significant changes made to the law via the TVPRA are the following:

• It removed the "long-term foster care" language and replaced it with a requirement that the state court find that, "reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law."

o This change expanded eligibility to children who had been abused or abandoned by only one parent, but still resided with the other non-offending parent. This allowed children to remain with a safe and capable parent...