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Surprise: Unaccompanied children crossing border may have right to stay

Surprise: Unaccompanied children crossing border may have right to stay

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.

CNN reports, Little-known law allows abused immigrant children to stay in the U.S.:

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 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.


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Count on it. They are ours now.

And Brobama is doing his level best to amke sure they are distributed 100% nationally.

Enjoy them. And their little friends that they bring with them.

    AZ_Langer in reply to pjm. | July 2, 2014 at 2:06 am

    Poetic justice would be Nancy and other politicians who see this as an “opportunity” picking up a few of those “little friends” while they’re visiting the holding facilities.

    aperture in reply to pjm. | July 3, 2014 at 2:38 pm

    When there is a scabies outbreak in a medical facility, every person there and everyone in their household has to follow the strictest cleaning & washing procedures to minimize the risk.

    I disagree with this idea that “any parent would do the same.” i.e. abandon their child into the hands of a coyote. It’s tremendously selfish/thoughtless for a parent to send a child somewhere uninvited and say “you take care of him.” Especially when they are carriers of lice, skin disease, you name it, with no cash in their pockets.

    Since they are going through the complex legal process of figuring out where the families are, every parent we can determine who abandoned their child should be recorded as “derelict” and never allowed access to the country under any “family reunification” loophole. The compassion that was baked into our immigration laws is being used against us & our families. Who is paying for all this extra processing, plane transfers, bus transfers, food, medical exams, lawyers, etc etc?

    MarlaHughes in reply to pjm. | July 4, 2014 at 5:00 pm

    IMO the reason for moving UACs from Texas to California is because the California courts are more liberal than Texas’ regarding illegals. If those UACs have to go through the state courts first, it only makes sense to try to funnel them away from the stricter states, even if they have to shuffle them halfway across the US.

Spiny Norman | July 1, 2014 at 7:18 pm

The Cloward-Piven strategy in action. Again.

Elian Gonzalez could not be reached for comment.

But of course they are abused abandoned and neglected. Otherwise they wouldn’t be here.

Has this type of status been discussed in the local newspapers to our south? Are the local governments, or US citizens, giving seminars on the subject?

Just asking.

Planting seeds in the spring anticipating a fresh new crop of democrat voters at harvest time.

Midwest Rhino | July 1, 2014 at 8:38 pm

Knowing now, that Obama and his whole administration, lie openly to America and Congress always … we should really be asking … does Obama want to destroy America, or just weaken us to the point we beg for government intervention?

He acts like president to the anti-American forces of the world, as he surrenders our global footings, opens the floodgates for diseased and indigent foreign aliens, detests all values of Christian traditional America, and praises Mao or Chavez or Castro. He liked his Marxist professors best.

This is complete nonsense. Any one of these minors that does not come through a border checkpoint is NOT under the jurisdiction of the United States, which is the benchmark status for any rights or access pursuant to the Fourteenth Amendment. If the border patrol allows them entry at the border checkpoints, then that is where the problem is being created.

Every child who jumped the border is subject to being sent back to Mexico, which is the country they entered from. It does not matter if they are Mexican – we cannot discriminate against ethnic groups by putting a disadvantage on one group and not on another. What Mexico does with them is Mexico’s business – they are allowing this flood of people to move through their country.

A CFR is a policy for government employees – it cannot grant substantive rights to individuals that are not in statute. The policy is ultra vires, though I doubt that any of the current group of thugs in DC actually cares. But let’s not kid ourselves about law and what is legal.

As far as state judges trumping and/or administering immigration policy, someone should check with Governor Brewer about how that works (or doesn’t work). State courts cannot grant substantive rights that conflict with areas of the law in which federal jurisdiction has pre-empted it.

Eric Holder proved this when he went after Arizona.

This entire mess is deliberate and can be ended with a stroke of that pen jugears threatened us with.

    Hi Platypus,
    Anybody who is physically present in the United States is under the jurisdiction of the United States. If not, they would have no rights at all, other than “natural rights.” Further, it would mean that the US Customs and Immigration Service would also have no authority to detain or deport them(USCIS would lack jurisdiction over the person to act).

    The law is implemented through INA 101(a)(27)(J), codified in 8 USC 1101(a)(27)(J). The CFR is merely the regulations for how to work the Trafficking Victims Protection and Reauthorization Act of 2008. (TVPRA 2008)

    The State Judges are not trumping immigration policy – SIJS requires that a State Judge, in administering Child Protective Services, make certain findings PRIOR to the child’s application for SIJS:

    1.) Child is under 21 (Name and Birth Date of the Child)

    2.) Child is:
    a.1.) Dependent upon the Court (a ward of the state and not married); or
    a.2.) Committed to the custody of a state agency or an individual or entity (aka foster care or placement with non-parent relative or “fictive kin” relationship).

    b.) The state Court MUST make a finding that reunification with one or both parents is not viable for the child due to abuse, neglect, abandonment or similar grounds under state law.

    c.) The state Court MUST make a finding that it would not be in the Child’s best interest to return to his or her country of nationality (or last residence).

    After the application for SIJS is made, USCIS inherits all of those “findings of fact” by the State Judge, and then USCIS must make a finding that:

    The child has not engaged in certain forms of criminal conduct (or is not otherwise eligible for a waiver for engaging in said conduct) and the child meets other statutory requirements for “admissibility.”

    The state Court IS NOT granting substantive rights. It has to make SPECIFIC FINDINGS which become part of the SIJS record upon application. These Children are already subject to the CPS Court the instant they enter into the County in which that court sits so long as no other CPS Court already has jurisdiction over them.

    It can’t be ended without Congressional action to change the statutory requirements that were broadened by the TVPRA in 2008. The Democrats won’t let that happen, because they just see tens of thousands of “new voters” who will get Lawful Permanent Residency followed by Citizenship without regard to the societal damage which will occur in the interim. Obama’s pen won’t do it unless he pens and Order sending the National Guard or the Army to the Border with orders to SHOOT any individual crossing without passing through a checkpoint.

    Milhouse in reply to platypus. | July 1, 2014 at 11:21 pm

    Any one of these minors that does not come through a border checkpoint is NOT under the jurisdiction of the United States,

    Good grief. More nonsense from platypus. Where on earth did you get such a stupid idea?

    A CFR is a policy for government employees – it cannot grant substantive rights to individuals that are not in statute.

    Wrong. The Code of Federal Regulations is law, every bit as much as a statute. 8 CFR 204.11 implements 8 U.S.C. 1101(a)(27)(J)

    pjm in reply to platypus. | July 2, 2014 at 1:31 am

    “Any one of these minors that does not come through a border checkpoint is NOT under the jurisdiction of the United States”

    Bull. If they are IN the USA, they are subject to the laws here. Period.

    “Every child who jumped the border is subject to being sent back to Mexico…”

    How so ? You just said they are NOT ‘under the jurisdiction’. right ?

    platypus in reply to platypus. | July 2, 2014 at 12:33 pm

    Apparently I have annoyed several commenters with my assertions. I apologize for offending them.

    Allow me to respond to the easiest grumping first.

    CFR are not substantive law. Your “proof” that it is states exactly what I said – that it is the statute that is substantive law. CFR is a regulation of … wait for it … a federal agency.

    Subject to the jurisdiction of the United States does not flow inexorably from physical presence in the country. If it does, then there would be no need to plead jurisdiction in federal district court beyond alleging that a person is on US soil. By that understanding, the feds have total jurisdiction over every square inch of every state. Why would any state operate a court system if the feds have jurisdiction because whatever happens there is within the country?

    Regarding Mr. Skinner’s well-stated argument, I have little to say in response; however, my comment was not really intended to trigger a legal argument.

    Having said that, I wish to point out that there are numerous authorities (high mucky mucks in the legal profession) who contend that the jurisprudence regarding the Fourteenth Amendment is seriously flawed in that it takes an assumptive and expansive view of the amendment’s substantive effects. In other words, I ain’t alone and I ain’t crazy (at least in this area).

    I would suggest reviewing Dred Scott v. Sandford, an opinion that has been unfairly trashed IMHO. It’s core premise was that the jurisdiction of the federal courts was limited to citizens. The Fourteenth Amendment extended/created jurisdiction for ‘person’ which effectively over-ruled Dred Scott.

    If the Fourteenth’s ‘jurisdiction thereof’ is universal based on physical location, then those two words are surplussage in the amendment. This is a violation of basic statutory construction principles and therefore cannot be right.

      Hi again Platypus,

      There is a concept called “jurisdiction.” It is not merely geographic, but also by topic. That is Certain Courts have the power to hear certain cases. Further that the Federal Government has control over certain topics, and the State has control over certain topics, and sometimes both can hear the same topic, called “concurrent jurisdiction,” depending on the choice of he complaining party. Here , immigration is exclusively federal, while CPS s exclusively State. They overlap geographically, but not by topic. Criminal law is similar, in that it is almost exclusively state-law based, but the Feds can separately bring some charges when Federal laws are broken.

      The 14th has been overly broadly interpreted, without question. Unfortunately we are currently constrained by what we have in interpretation, not what we should have. In fact, much of the Constitution has been over-broadly applied in ways to usurp States powers, when the original intent was only to restrain the Federal government.

      As for Federal jurisdiction, it is universal based on geographic location in the US, but it ALSO sometimes reaches beyond geographic borders for certain specific reasons (usually for criminal acts committed on foreign soil). Also, while the language might be surplus in legislative construction, sometimes in Constitutional constructin you add specific language in order to prevent any future confusion about a another body’s authority to modify or interpret that language.

        platypus in reply to Chuck Skinner. | July 3, 2014 at 12:11 am

        I appreciate your effort to increase my knowledge. I will say that I was hypothetically describing the situation if some of the other commenters were correct – if on American dirt then under fed jurisdiction.

        I find that to be an absurd notion but I don’t think this thread/website should be spoiled by me clearly stating what’s on my mind. Having said that, you are of course correct except for the one point that Bill Clinton recognized and everybody seems to be missing. That point is that a law governing abandoned children cannot be used to initiate a general dependency proceeding just because it is politically convenient. These children, rightly or wrongly, were legally taken into the temporary custody of the border patrol pending investigation to determine their legal custodians (which is rarely a legal issue to be determined). Distance of the actual legal custodians (usually parents) from the children is irrelevant. Another point to consider is the Hague Convention on Abducted Children, to which the US is a signatory.

        All of this weighed heavily on Bill Clinton’s decision to send Elian home. All of it should weigh just as heavily here. And the fact that jurisprudence got it wrong up to this point doesn’t mean I am wrong to state what I argue has always been the proper meaning of the 14th, any more than Galileo got it wrong because he was the only one saying so.

        This mess is a political one, not a legal one. The state (government in general) cannot override Troxel v Granville just because some bureaucrat thinks a better life could be had for the kids. Government has an obligation to ascertain the factual basis for initiating any custody action no matter which court it chooses.

        If I appear to be overly sensitive, it’s because on this subject I am. Nobody has any rights just because they are standing on American dirt. What they do have is natural rights that the govt cannot abridge, according to the Bill of Rights. They may have some statutory rights as well but those can be taken away.

        I do not accept that the border patrol or ICE in general can administratively make substantive decisions to treat a group of children the same. In other words, they cannot just say “You 40 children over there are going to be transported 1200 miles to another facility.” The main reason is because group status treatment without a particularized individual basis to be in the group is akin to collective punishment. It’s a denial of due process. Plus I doubt they have the statutory authority to be willy nilly moving people around without legal consent of each child which requires a temp guardian since the kids have no standing without one.

        And on and on we go. The best thing is to send them back to Mexico or their country of origin. Perfectly legal and cheaper than any of this liberal feelgood crap they are trying to sell to us peon citizens.

Here is how this will work:

hundreds of already illegals will claim these children are members of their family. But of course, the illegal has no visible means of support so the taxpayer will have to pay the illegal to take care of these kids. The kids that have been already sent to “family”; how is ICE certifying that these are really relatives of these kids?

Then these kids will be put in our schools. And guess what? Our schools are not allowed to ask for their birth records, or their immunization records. So that means that our kids, vaccinated against the diseases, diseases we have pretty much eradicated, will have to all get booster shots to prevent getting measles, whooping cough, TB, etc. The cost of these shots now fall on the parents of American children, or the state where they live.

Add to that the fact that the taxpayer is going to pick up the tab for these kids to be educated. Here is the dirty little secret; if these kids are 10, they go into 5th grade, if they are 14, they will be placed in a freshman class at a high school, in spite of the fact that they have had little, or no, previous education. Schools will be required to hire ESL teachers, tutors, what ever is necessary to try to bring these kids up to state/federal standards. Would anyone like to guess how much that will cost? Meanwhile, test scores will crater, and in some states, schools could lose accreditation.

On top of that, this new batch of illegals are bringing swine flu, scabies, measles, whooping cough, denge and other diseases we have not had to worry about in the U.S.
Already our Border Patrol agents have tested positive for scabies and TB.

These kids are not our responsibility. They are the responsibility of their home nations.

So they get to stay if there are relatives? – they get reunited

and they get to stay if there are no relatives? –

    Yep. That’s about the size of it. If they have relatives, they get placed with the relatives when CPS makes a determination that they have no parents and no other person has the authority to make decisions for them. The children are “abandoned” by their “parents” and thus subject to CPS Temporary Managing Conservatorship while CPS tries to place the children with that family.

    If they have no relatives, they get put into the foster care system until relatives can be identified. Being both “present” and “alone” means they’re “abandoned” and gets them CPS review for someone to be appointed their Temporary Managing Conservator (the State) to make their decisions for these children.

Prepárate para los nuevos estándares esenciales comunes

(Get ready for the new Common Core standards.)

Immigration reform begins with addressing the humanitarian crisis in Central and South American nations. It begins in America where the state “plans” the abortion/murder over one million Americans annually.

We know the cause of the humanitarian crisis in America. Do we know the cause of the crisis in other nations which motivates a mass exodus of native people?

    Uncle Samuel in reply to n.n. | July 2, 2014 at 6:27 am

    The primary cause of humanitarian problems in these countries is leaders* like Obama.

    *Communism, corruption, creating chaos, poverty, oppression, oligarchy.

Maybe it’s time to ‘go nuclear’ on Central America to put an end to this nonsense. Did anyone ever think something like this would happen in your lifetime?

Don’t invest in gold or silver … invest in lead.

Fox is reporting that the private security firms hired by Obama to “protect” the refugee camps have informed medical staff that they will be arrested if they discuss the disease situation with anyone.

This is a public health nightmare that is being covered up by Obama.

All part of the ‘fundamental transformation of America’ he ran on.

And for the next 2 and a half years, it will be more of the same. He doesn’t have to ever run for election again. He purely doesn’t care.

God help us all.

Turns out, we do need immigration reform: We need to abolish these idiotic laws that allow illegals to stay.

Obama should be in prison.

If people truly cared about those immigrants they would put them on navy mercy class hospital ships and care for them while transporting them back to central America

Uncle Samuel | July 2, 2014 at 6:29 am

MANY of these aliens are non-Hispanics – Islamists from every part of the globe.

The laws prohibiting them from coming are irrelevant, but the laws permitting them to stay establish a “right.” Good stuff this “laws” thing.

Midwest Rhino | July 2, 2014 at 10:26 am

Isn’t Obama asking for power to quickly return these kids (and others) to their families back in their own country?

Could Republicans quickly propose a bill, that would overturn/preempt past law? It would be far cheaper to deliver them all back to their home town, than keep them here. And after they paid $3000-$20,000 to get here, the word would get out quickly “don’t waste your money, they’ll just ship you back home”.

Current law I believe, prevents that quick return. But Obama demands Congress “act” … so they should act and make illegal immigration a round trip ticket, not a lifetime entitlement. Of course for Obama, “act” means grant amnesty, sooner or later. Obama should “act” and do his job of enforcing the law.

    platypus in reply to Midwest Rhino. | July 3, 2014 at 12:16 am

    If they came in by airplane, they’d be on the next flight back. They would never get out of the airport.

    Why is that not done here?

    Because the government WANTS this crisis. Simple as that.

NavyMustang | July 3, 2014 at 8:10 am

“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…”

NOW I understand. These damn immigration lawyers found their loophole and broadcast the word through their contacts to all of Mexico and Central America.

“Bring your kids to the border! When they get their green cards, then the ENTIRE family can come to the Holy Glory Land! It will be great!”

These children are accompanied. Unfortunately, by coyotes, by smugglers, by human traffickers, by all sorts of other scum of the earth. But they are accompanied. Just not at the moment they are discovered by our border police.

This is the first thing that we can do – those of us who despite having pens and phones cannot get the national guard to the border immediately – do away with this phrase “unaccompanied minors.” Stop putting it in headlines.

They are “badly parented children,” they are children in “the temporary custody of coyotes.” I’m sure some phrase can be put together that addresses the facts of their arrivals, so people understand it is the irresponsible behavior of their parents that started all this. Nothing to do with our perfectly fine immigration system, which decent people follow every day. Imagine parents in the U.S. sending their children on the road to points unknown because they live in gang-infested neighborhoods.

It’s this sympathy cloak that is obscuring how the children arrived and makes anyone who doesn’t do a Pelosi meet-and-greet a bad person who doesn’t care about children.

Bad adults on both sides of the border, using children as pawns for their agendas.

A_Nonny_Mouse | July 5, 2014 at 2:54 pm

This is a “Children’s Crusade”.

Against US.

And if it succeeds, there will be another 30 million impoverished refugees right behind them.

The book “The Camp of the Saints” was written with reference to Europe, but it’s being carried out here, at the southern border of the USA.

The ‘fundamental transformation of America’ . . . there’s only one payout here. In upcoming presidential elections (15 years plus) it ensures votes to the Democrats. These children will be forever thankful to Obama and his team for giving them a USA life – transforming America into a socialist’s dream. It’s pure political strategy not ‘doing for the children’. Anytime a politician pulls at your heartstrings you know it’s for a vote.
Just like every time Obama uses the word ‘folks’ – be prepared to be seduced.

Somebody stop them – NOW!