Menu
Special Immigrant Juvenile Status – State Court Procedure
Undocumented immigrant children in the United States constitute a particularly vulnerable population. When these children are sexually or physically abused, abandoned, or neglected, such that it is not safe for them to remain in the custody of their parents, they face an exceedingly dire situation one which leaves few avenues for relief and scarce legal remedies available to them. Depending on a variety of factors, children may be eligible for asylum, relief from deportation for children who are victims of human trafficking, U-Visa for victims of crime, and various family-sponsored immigration visas. In addition, the Immigration Act of 1990 established a means through which undocumented children who have been abused, abandoned or neglected by one or both parents to remain lawfully in the U.S. when it is not in the best interests of the child to return to his country of citizenship. Children are able to apply for Special Immigrant Juvenile Status (SIJS) which enables them to obtain a green card and legally live, attend school, and work in the U.S.
In order to obtain status as a special immigrant juvenile, there are basically two steps to the process, the first of which involves a state court order placing the child or minor in the custody of the court or other state agency. Once a court order has been obtained and the child has been declared a ward of the state, the minor is then eligible to apply to the United States Citizenship and Immigration Services (USCIS) for lawful permanent residency.
State court procedure
Before a child can apply to the SIJS program, a state court—usually a juvenile or family court, depending on the state—must issue an order that contains certain findings. Namely, the state court in the United States must:
- Declare the child a dependent of the court, or is legally committed to, or placed under the custody of, an individual or entity appointed by a State or juvenile court located in the United States;
- Make a determination that the child's reunification with one or both of parents is not viable due to abuse, abandonment, or neglect, or similar basis found under state law; and
- Find that it is not in the child's best interest to be returned to his or his parents' country of nationality.
In order for a child to be declared a dependent of the state, there must be evidence of apparent abuse (physical, sexual, or emotional), neglect, or abandonment by a parent. Child Protective Services will generally investigate the situation, and during an initial hearing, a judge will examine the evidence presented and determine whether or not a child should remain at home. The judge may consider medical records, the child's testimony, and, in certain situations, out-of-court statements made by the child to professionals, such as teachers, nurses, or mental health care professionals.
If the court determines that family reunification is not possible because of threat of abuse or because the parents are unwilling or unable to care for the child, the minor will be considered eligible for long-term foster care or placed in the care of an individual or entity appointed by the Court. The law provides that a child who is eligible for long-term foster care is normally expected to remain in foster care until reaching the age of majority. Even if a child is subsequently adopted or placed in the care of a guardian, he or she will continue to be considered eligible for long-term foster care for purposes of the SIJS application.
In addition to the above findings, a court order must also include a provision that establishes that it is not in the child's best interests to return to his or her home country. In making such a determination, the courts may take into consideration such factors as 1) the reason for the child coming to the United States; 2) whether there is family in his or her home country willing and able to care for the child; 3) threat of abuse in the child's home country if he or she returns; and 4) the situation of the parents or other caregivers.
SIJS proceedings can be complex and are often sensitive in nature, demanding the involved participation of legal professionals as well as medical experts, mental health care providers, and social workers. With years of significant legal experience, Maryland immigration attorney Van Doan provides effective representation for minor immigrant children who have been the victims of abuse, abandonment, or neglect. Contact us to learn more.
Categories: Immigration Law
