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State Court Process for Special Immigrant Juveniles: Filing for Custody or Guardianship

a refugee homeless child standing in a dark room with sad expression

In a recent blog post, we gave an overview of Special Immigrant Juvenile Status (SIJS), a federal immigration law that creates a path to lawful permanent resident (“green card”) status for abused, abandoned, and neglected children. Under federal and Maryland law, a “child” for purposes of SIJS is an unmarried individual under the age of 21. If a child is within six months of turning 21 when the process is started, it is important to file a petition for expedited hearing so the court may schedule the hearing and make the necessary SIJ findings before the child “ages out” of eligibility.

The law exists to protect vulnerable children from deportation to a country where they might be alone and even more vulnerable. But in order to prevent abuse of the SIJS option by individuals who don’t meet the criteria for Special Immigrant Juvenile Status, a child who seeks this status must first be declared dependent on a state juvenile court.

What Does it Mean to Be Dependent on a Juvenile Court?

Dependency on a juvenile court means that a state court such as a family court has jurisdiction over a petition regarding the applicant child’s needs. For example, a child is “dependent” on a juvenile court if they have been deemed a Child in Need of Assistance (CINA), Child in Need of Supervision (CHINS), or if they are involved in a juvenile delinquency or guardianship matter, or perhaps an adoption or custody case.

Additionally, and because of the neglect, abuse, or abandonment, or some similar basis, in order for a child to be deemed eligible for SIJS, the court must also find that reunification with one or both parents is not viable. The abuse, neglect, or abandonment may have occurred in the United States or elsewhere.

Furthermore, for a child to be eligible for SIJS, it also must not be in the best interests of the child to return to their country of national origin or the country in which they last habitually resided.

How Do Courts Decide It’s Not in a Child’s Best Interest to Return?

Evidence in support of this factor might include testimony, affidavits, court records or police reports from the foreign country, foreign medical records, a foreign home study, or country reports. Obviously, the child’s personal circumstances, as well as broader factors, come into play in this fact-specific determination.

For example, if the child has no adult who is willing or able to care for them in the home country, that would strongly suggest that it is not in the child’s best interests to return there. Similarly, if a child has a medical condition requiring treatment that would be difficult or impossible to get in the country of nationality, it would probably be in the child’s best interests to remain in the United States, where the treatment is available.

Evidence might also show that if the child returns to the home country, they would be returning to an environment of abuse or neglect, or perhaps that they would be forced to work and would be unable to continue their education. For many children, particularly those in Central America, a history of threats or injuries by gang members would make it dangerous for them to return.

It must be proven by a “preponderance of the evidence” that it would not be in the child’s best interest to return to their country of nationality or last habitual residence. Put more simply, the attorney representing the child needs to prove that it would be more likely than not that the child would be better off in the United States.

How Does the SIJS Process Work in State Court?

In order to apply for SIJS, a child has to have a “predicate order” from the state court showing that they are eligible for SIJS. The predicate order establishes the factual basis for the petition for Special Immigrant Juvenile Status, showing that the child meets the eligibility requirements. Sometimes the child is already “in the system” through foster care or a juvenile matter; sometimes a petition must be filed with the court.

In Maryland, a parent or third party may file a Complaint for Custody and Motion for Special Immigrant Juvenile Status. Alternatively, the child and all their living parents could consent to a guardianship and file a Petition for Guardianship and Motion Special Immigrant Juvenile Status. If both parents of a child are deceased, the adult assisting the child will need to file copies of their death certificates with a certified translation.

Establishing a factual basis for a predicate order for an SIJS petition can, unfortunately, require a lot of documentation that may be difficult to come by, including birth certificates, death certificates, as well as consents and declarations. Documentation is an essential part of laying the foundation for a successful petition. If you have questions about getting a predicate order for an SIJS petition in Maryland state court, please contact our law office to schedule a consultation.