Understanding Special Immigrant Juvenile Status
An Advocates Call to Action

January 16, 2010

Lisa Mendel-Hirsa

Introduction

Undocumented Unaccompanied Children in New York State

There are few groups in the United States more vulnerable than undocumented and unaccompanied immigrant children.1  The circumstances of their arrival in the U.S. include fleeing dangers and natural disasters in their home countries, separation from family members, abuse, neglect, abandonment and being the victims of crimes such as human trafficking and child labor.  Once they are here the difficulties they face include poverty, language problems, lack of access to health care and health insurance and other public benefits. Without parents or other relatives to protect them and look out for their best interests, many of them are in foster care. Without lawful immigration status they face the constant threat of deportation or removal to their home countries. Even if they are able to remain in the U.S., as long as they have no immigration status they cannot qualify for student loans or work legally and are constantly vulnerable to exploitation. 2

There are a significant number of undocumented and unaccompanied immigrant children in New York State. According to The Legal Aid Society, many of the approximately 15,000 young people who enter New York’s foster care system each year due to abuse, neglect or abandonment by a parent or guardian have no immigration status.3  Fortunately there is a legal remedy available to them.  Many are eligible to apply for an immigration classification known as Special Immigrant Juvenile Status “SIJS”.  Once a petition for SIJS is approved, the petitioner is immediately eligible to apply for lawful permanent residence. The process to obtain SIJS however, is a complex mix of state and federal law and unless a child applies for SIJS before turning 21, what is probably their only chance to remain in the U.S. permanently and lawfully, will be lost forever.

Since 2007, New York State child welfare officials have issued two Administrative Directives on the urgency of identifying and referring children in the foster care system to legal service providers with expertise in immigration law to determine eligibility for SIJS.  In 2008, the Office of Children and Family Services issued an Administrative Directive to child welfare supervisors, child protective services supervisors and directors of voluntary agencies instructing them to assist in assessing children in foster care for eligibility for Special Immigrant Juvenile Status. 4  The directive underscores the urgency of identifying undocumented immigrant children and of informing them of the availability of SIJS.  It urges child welfare workers to refer children for assistance within the timeframe needed to establish SIJS to prevent them from  aging out of the system without having acquired the status.  The second memorandum is from the Commissioner of the Administration for Children’s Services (ACS), dated January 2007. It also urges continued assistance from directors of foster care agencies in identifying those children eligible for SIJS.5  The memo states that eligible foster care children are entitled to the benefits of the SIJS statute and deserve the rights associated with it.

The ACS memo states that since most applicants need assistance in obtaining identity documents such as birth certificates, passports and proof of age, it is essential that child welfare workers begin seeking these documents as soon as they become aware that an individual may be eligible for SIJS.

Since knowledge of both the child welfare system and immigration law is required, the memo encourages the earliest possible identification and referral for legal assistance.  The memo also highlights a crucial point: that each case be scrutinized carefully because the filing of an application for SIJS will alert the U.S. Citizenship and Immigration Service (US CIS) of a child’s unlawful presence in the U.S.  If the child has ever been arrested or  convicted of any crime, an expert in the complex area of the intersection between immigration law and criminal law should be consulted immediately. Many crimes that are not deemed serious under state law have dire immigration consequences. The Immigrant Defense Project is an excellent resource for this purpose. www.immigrantdefenseproject.org

Since 2008 Federal funds are available to reimburse states for state foster care funds expended on behalf of assisting Special Immigrant Juveniles apply for SIJS, although these funds are subject to the availability of appropriations.6  There are state funds available to cover the costs associated with the SIJS application process. Application fees, legal fees, and fees for medical examination, passport and birth certificate can be reimbursed by New York State. The Office of Children and Family Services 2008 Administrative Directive provides detailed claiming instructions.7 

Eligibility for Special Immigrant Juvenile Status

In 1990 Congress created Special Immigrant Juvenile Status as a remedy in Immigration Law for children in Juvenile Court proceedings who could not be returned to their parents.8  In 1997 Congress amended the requirements for SIJ status to include Juvenile Court findings that the child is dependent on the court due to abuse, abandonment and/or neglect.9  Until 2008, the most comprehensive guidance from the US CIS about SIJ cases was a memorandum providing detailed instructions about filing for SIJ status.10

In 2008 Congress enacted a new statute, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, (TVPRA 2008).11  Among  other positive changes, the statute expands the definition of Special Immigrant Juvenile so that more children can qualify for the status, provides greater protections from aging out, removes additional grounds of inadmissibility to lawful permanent residence 12, and requires the US CIS to process the cases within 180 days for those undocumented youth who qualify for SIJS. A new memorandum was issued by the US CIS in March 2009 providing instructions pertaining to TVPRA 2008.13

In order to demonstrate eligibility for SIJS status, one must be an immigrant present in the United States:

1. Who is under age 21 at the time the SIJ petition is filed;14
2. Who is unmarried;
3. Who has been declared dependent on a Juvenile Court located in the United States (in New York State this is family court); or whom a Juvenile Court has legally committed to or placed under the custody of, an agency or department of a state, or an individual or entity appointed by a state or Juvenile Court located in the United States 15, and whose reunification with one or both16 of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law 17
4. For whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence.18

Before TVPRA 2008 petitioners would “age out” of eligibility for SIJS if the US CIS did not adjudicate their cases before they turned 21.  As of December 23, 2008, if petitioners are under 21 at the time their petition for SIJS is filed the US CIS cannot deny them SIJS regardless of their age at the time the Service adjudicates their petition.19  This new provision also protects those petitioners whose applications were pending at the time TVPRA 2008 was enacted.

Another positive change TVPRA 2008 made to the SIJS process is that the US CIS is now required to adjudicate petitions within 180 days of the filing of the petition.20  The March 2009 US CIS Memo instructing officers about TVPRA 2008 and its affect on adjudicating SIJS petitions reminds officers that in order to assist in expeditious adjudications, they can waive interviews for SIJ petitioners under 14 years of age, or when it is determined that an interview is unnecessary.21  It further reminds officers that in cases where interviews are conducted, the focus should be on eligibility for adjustment of status and not on matters handled by the Juvenile Court pertaining to abuse, neglect or abandonment. It is not permissible for officers to raise issues for further inquiry that have already been settled under state law by juvenile or family court judges. Some advocates have experienced this in certain US CIS offices around the country and this problem was reported to US CIS during a national teleconference collaboration session on November 10, 2009.22

Children in immigration custody also benefit from changes made by TVPRA 2008. Previously those individuals had to obtain “specific consent” from the Department of Homeland Security in order to apply for Special Immigrant Juvenile Status.23  Under TVPRA 2008 specific consent has been transferred to the Department of Health and Human Services.24  This transfer is significant because the Department of Homeland Security’s policies and practices regarding specific consent have been “convoluted, inconsistent, and detrimental to the legal rights of these unaccompanied alien children”.25

Applying for Special Immigrant Juvenile Status

Two applications are required: an I-360 petition to be qualified as a Special Immigrant Juvenile and the I-485 Application for adjustment of Status to Lawful Permanent Residence.  Since an approved SIJS Petitioner is immediately eligible to adjust status to lawful permanent residence, the Service strongly encourages the two applications to be filed together to avoid delays.  During the pendency of the Adjustment of Status application, the applicant is eligible to receive work authorization. Those who adjust status as the result of an approved SIJS petition have all the benefits of lawful permanent residence except that they cannot give an immigration benefit to their natural or prior adoptive parents.26

Among the items required for the I-360 petition is the court order from the Juvenile Court judge. The court order must establish the child’s dependency on the Juvenile Court or his or her being committed or placed under the custody of, an agency or department of a state, or an individual or entity appointed by a state or Juvenile Court.27  It is preferable though not essential for the order to also establish the requirements that (a) it would not be in the child’s best interest to be returned to his or her (or parent’s) previous country of nationality or country of last habitual residence and that (b) reunification one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law.28  The US CIS has a strong preference that the Juvenile Court incorporate a finding regarding return to the child’s home country into the order, but it does recognize that the requirement can be satisfied  through a determination made by an administrative proceeding.29

Conclusion

The opportunity to apply for Special Immigrant Juvenile Status has a substantial impact on an eligible undocumented child’s life. If the petition is approved and the child becomes a lawful permanent resident, his or her future will be far more   stable and hopeful as he or she will have access to financial aid for college, be able to work legally, be eligible for some public benefits, and be able to apply for US citizenship five years after becoming a permanent resident. It is up to child welfare and immigrant rights advocates to work together in identifying and referring the members of this vulnerable population for screening to determine eligibility for SIJS and then to help them apply for before they age out of eligibility.

Footnotes

1  Throughout the article I use the term “child” or “children” to describe the population eligible for Special Immigrant Juvenile Status. The Immigration and Nationality Act (INA) definition of child is an unmarried person under 21 years of age. INA 101(b)(1).
2  New York State Office of Children and Family Services Administrative Directive, Special Immigrant Juvenile Status, 08-OCFS-ADM-05, (August 19, 2008).
3  Fleet, Katherine, Special Immigrant Juvenile Status, The Legal Aid Society.
4  See Supra note 2.
5  Administration for Children’s Services Memorandum, (ACS Memo) Special Immigrant Juvenile Status, (January 26, 2007).
6  “Deborah Lee, Manoj Govindaiah, Angela Morrison and David Thronson Update on Legal Relief Options for Unaccompanied Alien children Following the Enactment of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008”, American Immigration Lawyers Association (AILA) Practice Advisory (February 19, 2009) at 14.
7  See Supra note 2 at 9.
8  Immigration Act of 1990 (P.L.101-649), 104 Stat. 4978 (1990).
9  Immigration and Nationality Act, (Pub. L. No. 105-119, § 113), 111 Stat. 2440, 2460 (1997)
10  Citizenship and Immigration Services, William R. Yates, Associate Director for Operations, Memorandum #3 – Field Guidance on Special Immigrant Juvenile Status Petitions, HQADN 70/23, (May 27, 2004).
11  Pub. L. 110-457, 122 Stat. 5044 (2008).
12  TVPRA 2008 added four new exemptions to inadmissibility grounds for adjustment of status for those with SIJS classification. They are INA §212(a)(6)(A) (aliens present without inspection); INA §212(a)( 6)(C) (misrepresentation); INA §212(a)(6)(D)(stowaways), and INA §212(a)(9)(B)(aliens unlawfully present). Those with SIJS classification are now exempted from a total of seven grounds of inadmissibility. The other three (which pre-date TVPRA 2008) are INA §212(a)(4)(public charge); INA §212(a)(5)(A)(labor certification), and INA §212(a)(7)(A)(documentation requirements).
13  Citizenship and Immigration Services, Donald Neufeld, Acting Associate Director, Domestic Operations, Pearl Chang, Acting Chief, Office of Policy and Strategy, Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Provisions, (March 24, 2009).
14  Section 235(d) of TVPRA amends the eligibility requirements for SIJ status at section 101(a)(27)(J) of the Immigration and Nationality Act (INA).  Prior to TVPRA 2008, an applicant had to be under 21 at the time the US CIS adjudicated the petition, which caused applicants to age out and become ineligible due to lengthy processing times
15  Added by TVPRA 2008(emphasis added).
16  TVPRA 2008 permits a juvenile court to consider family reunification with one or both of the child’s parents. TVPRA § 235 (d)(1). Family reunification need only be “not viable” with one parent, not both parents. See Supra Note 6 at 3 (emphasis added).
17  Added by TVPRA 2008. See Id. (emphasis added). The AILA Practice Advisory notes that the additional language “similar basis under state law” and the fact that reunification need only be not viable with one parent instead of both means that more vulnerable and mistreated children will be able to qualify for Special Immigrant Juvenile Status.
18  INA § 101(a)(27)(J).
19  TVPRA §235(d)(6).
20  TVPRA §235(d)(2).
21  8 C.F.R. 245.6.
22  US Citizenship and Immigration Service, Office of Public Engagement Collaboration Session on Special Immigrant Juvenile Issues and TVPRA, (November 10, 2009).
23  See Supra note 10 at 5.
24  See TVPRA § 235(d)(1)
25  See Supra note 6 at 4.
26  See Supra note 10. See also INA §101(a)(27)(J)(iii)(II).
27  See Supra note 10 at 4.
28  See Id.
29  See Supra note 10, 3-5(details the evidence required to submit with the petition and application for adjustment of status).