Little known law could allow many of the unaccompanied children to remain in the U.S. legally if they are “abandoned”
Special Immigrant Juvenile Status.
If you haven’t heard of it before now, you probably will as tens of thousands of unaccompanied minors flood across the border, having been “abandoned” by their parents in Central America.
A Legal Insurrection reader tipped us off to what could be a coming legal onslaught to give these children a right to stay in the U.S. permanently:
“Special Immigrant Juvenile Status is something that we attorneys on the border have been getting CLE training in for a while, but largely it has not been well known outside of CPS attorney work.
With the invasion now taking place, it is going to explode. No parents means that any immigrant child under 18 can apply for a Green Card as soon as they are deemed “abandoned” by their parents for 6 months by the court system. There are some other minor rules, but that is the big one….
The bill renewal was the Trafficking Victims Protection Reauthorization Act of 2008. It modified and exempted application of certain rules which would normally result in inadmissibility…. Also, it set up an “expedited” review schedule that USCIS is REQUIRED to adjudicate SIJ petitions within 180 days of filing, and that interviews may be WAIVED for SIJ petitioners under 14 years of age or when it is determined that an interview is unnecessary.
Further, per the Violence Against Women Act of 2005, a SIJ petitioner may not be required to contact an individual who allegedly abused, abandoned or neglected the Juvenile.
What nobody is talking about (or maybe nobody has realized yet) is that this is going to flood the child welfare courts FIRST, before they get to the USCIS (certain findings of fact which can only be made by the state are prerequisites to SIJS applications) with a sudden influx of “abandoned” children, and put a strain on the CPS system like nothing that has ever been seen.”
SIJS regulations are part of 8 CFR 204.11
Special Immigrant Juvenile Status (SIJS) allows for children to obtain federal legal status in the U.S. if a state court deems they cannot be reunited with the parents and have suffered either abuse, abandonment, neglect or other similar offenses under state law. Children must also be unmarried, and it must be determined that it’s not in the child’s best interest to return to their country. SIJS is not the same as refugee or asylum status, which both bear very different legal tests.
Rebeca Salmon is an immigration attorney and the executive director of Access to Law, an organization that provides low-cost legal services. Salmon says that applying for this immigration benefit is difficult because you have to prove your case at the state and federal level.
“Not every kid that applies gets to stay. Not every kid who enters can even apply. You have to be abandoned, abused and neglected. You have to be without your parents. There are minimum requirements, but then there’s also the rigorous process of immigration, so not every kid gets to stay,” Salmon said.
Tens of thousands of unaccompanied minors have arrived to the United States this year, mainly from Central America. But Salmon says very few can actually qualify for this immigration benefit.
“If that’s the only message you get out through this, please make sure that’s clear. If you send your kids here or kids come on their own, you’re fleeing something in your country, every case is different and every case is difficult,” Salmon said.
It’s worth reiterating that SIJS must first be granted through a state court before the federal government can provide any immigration benefit as a result. State courts cannot grant immigration status. Obtaining SIJS through a state court does not guarantee any immigration benefit will follow, only that a child is able to petition United States Citizenship and Immigration Services for legal permanent residency status.
Here’s how Vox.com explains the problem of why these kids may not be sent back to their countries of origin:
The problem: Asylum isn’t the only kind of legal status that child migrants are currently eligible for. Many of them would be eligible for Special Immigrant Juvenile Status — a special status, which allows a very rapid path to a green card, for children who can’t be returned to their families because of “abuse, abandonment, or neglect.”
So if the government wanted to block every option for legal status child migrants have, they’d have to change the way Special Immigrant Juvenile Status is given out.
The problem: Setting federal standards for “abuse, abandonment or neglect” is difficult, because that ruling is made by a judge in family court — which is operated by state governments.
Short of pressuring border states to influence judges’ rulings, the only thing the federal government could do would be for Congress to repeal the law it passed in 2008, which expanded Special Immigrant Juvenile Status to anyone who can’t be reunited with parents, and go back to the old standard of qualifying for “long-term foster care.”
Children who pass all legal tests at both the state and federal level and are granted legal permanent residency status are then eligible for benefits like foster care. Factor in the more than 50,000 kids flooding across the border unaccompanied and it’s hard to imagine how this does not become a huge problem, and quickly.
According to Fox News Latino, Despite White House Claims, Up To 80% Of Migrant Children Can Legally Stay In Country :
Before the criteria for SIJ visas were broadened, children who qualified for them were, for instance, one whose parents were both deceased.
But now, Johnson said, a child who in their native homeland has one deceased parent, an uninvolved or estranged parent, or an abusive or neglectful one can qualify for the visa.
In fact, some immigration experts argue that even the very act of sending a child across the border alone with a smuggler – even if it’s out of a parent’s well-intentioned concern and desperation – could form a legal basis for a court argument that the parent acted with neglect by putting the minor in an unsafe situation. And, by extension, a court can be asked to consider the neglect as a basis for giving that minor an SIJ visa.
Of course there’s no way of knowing exactly how the U.S. government plans to respond to the child immigrant influx, but it’s clear there is a legal remedy that could ultimately create a new class of legal permanent residents who are also wards of the state. Legal permanent residents are not able to petition for family members who are not a spouse, child or child of a spouse.
Additionally, as a condition of SIJS, parents are unable to receive sponsorship from their children while their children remain in SIJS status. Should this new class of legal permanent resident holders naturalize, they’d be able to sponsor parental units at some point in the future.
Consequently, as this Texas-based immigration expert points out, the message being sent to our southern neighbors is exactly what we are trying to avoid:
“It’s a subversion of the [original] legislation,” Krikorian said. “The point of this is not that anyone gets a visa who is not living with both parents.”
And the situation – unless Congress acts immediately – will only get worse, Krikorian said.
“The flow we’re seeing now,” Krikorian added, “is the result of earlier people allowed to stay and messaging more broadly that minors in the United States are, in effect, exempt from immigration law.”
So before you think those tens of thousands of kids will just be sent home, think again.