SPECIAL IMMIGRANT JUVENILES: IN THE COURTS AND BEYOND A S H L E Y F O R E T D E E S : A S H L E A F D E E S. C O M

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1 SPECIAL IMMIGRANT JUVENILES: IN THE COURTS AND BEYOND A S H L E Y F O R E T D E E S : A S H L E A F D E E S. C O M

2 UNACCOMPANIED MINORS AMERICAN IMMIGRATION LAWYES ASSOCIATION: ISSUE PACKET, PROTECTING UNACCOMPANIED CHILDREN Approximately 6,200 children reach the U.S. every year, unaccompanied by a parent or guardian Some may be asylum seekers, others may be forced into sweatshop labor or sexual servitude Some then find themselves in Removal Proceedings alone before the Immigration Court in New Orleans Limited options for an unaccompanied minor include political asylum or status as a SPECIAL IMMIGRANT JUVENILE

3 ONE OPTION FOR CHILDREN: BACKGROUND TO POLITICAL ASYLUM Understanding why a child may seek Special Immigrant Status, it is first important to understand why that child may NOT choose to seek political asylum An asylee is a person who meets the definition of refugee under INA 101(a)(42) [see in this chapter sections II.A & B (p.536), supra], but who is either physically present in the U.S. or is at a land border or port of entry of the U.S. at the time he or she seeks refuge. A refugee is defined as any person outside his or her country of nationality (or in the case of a person having no nationality, his or her last habitual residence) who, because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion, is unable or unwilling to return to that country, and is unable or unwilling to avail him- or herself of the protection of that country The definition also includes forced abortion, involuntary sterilization or other coercive population control programs as constituting political opinion persecution.

4 ARRIVING REFUGEES Upon arrival, a foreign national seeking political asylum as a refugee from his/her own country, must be given a Credible Fear Interview The officer will grant a positive or negative result after the interview and issue a Notice to Appear in Court Normally, many refugees are then eligible to be released with a reasonable bond or upon their own recognizance

5 ASYLEE GROUPS Race, Religion, Nationality, Membership in a particular social group Political opinion

6 WHEN POLITICAL ASYLUM IS NOT AN OPTION If a minor does not qualify for political asylum based on one of these grounds, he/she may be limited to seeking to be declared a Special Immigrant Juvenile Although the child may be in danger and in need of humanitarian protection in the United States, proving political asylum, locating an attorney and gathering documents to support the case may be an impossible task for some children Other children, although in danger, do have the knowledge or ability to properly explain why they fear returning to their home country

7 SPECIAL IMMIGRANT JUVENILE: DEFINITION Pursuant to Homeland Security Act of 2002, the ORR, Office of Refugee Resettlement, within U.S. Department of Health and Human Services directs immigration functions related to the care of unaccompanied alien children The Department of Homeland Security officials have been given the right to adjudicate immigration benefits under the section. See: PL , 116 Stat (Nov ) See also: HAS 462(a), 6 U.S.C. 279(a); HAS 462(c), 6 U.S.C. 279(c)

8 THE ROLE OF THE COURTS Many times the first step will be to seek an order from a court with jurisdiction over the minor that states that the child has been: Declared dependent on the court; maybe by virtue of the fact that he child is simply a minor child living with in the jurisdiction of the court Has been declared to be either abused, neglected or abandoned Whose reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis found under state law

9 SPECIAL IMMIGRANT JUVENILES The basics: Normally, a minor immigrant child will have entered without inspection (EWI) by U.S. Customs and Border Protection If a child is in the United States, he/she may be eligible to apply with the Department of Homeland Security, through USCIS as a Special Immigrant Juvenile and thereby qualify to become a lawful permanent resident (green card holder) Special Immigrant Juvenile (SIJ) status is a humanitarian-based immigration classification that may allow for these children to immediately apply for lawful permanent resident status

10 WHO DOES IT COVER: A child who has been declared dependent by a juvenile court in the United States, or who has been placed by such court in custody of a state agency or other individual or entity, AND Whose reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis found under state law Many children present in the United States without legal immigration status may be in need of humanitarian protection because they have been abused, abandoned or neglected by a parent

11 THE ROLE OF THE COURT Juvenile Courts may issues orders, outlining that the child has been abandoned, neglected or abused and that reunification with one or both parents is not viable and that it is in the child s best interest not to be returned to their home country A child cannot apply to USCIS for SIJ status without a court order from a court (normally Juvenile) that has jurisdiction over the child

12 THE ROLE OF THE COURTS Providing an Order does not grant any kind of lawful status to the child, it only allows the child to then apply for a lawful status through USCIS The role of the court is to make factual findings based on state law about abuse, neglect or abandonment; family reunification and best interests of the child A court may issue an order that has jurisdiction under state law to make judicial determinations about the custody and care of children

13 ORDERS: Types of Petitions that are commonly used in order to establish that the child qualifies as a Special Immigrant Juvenile VOLUNTARY TRANSFER OF CUSTODY PETITION FOR ELIGIBILITY FOR SPECIAL IMMIGRANT STATUS OTHER EXAMPLES

14 THE ROLE OF USCIS USCIS: United States Citizenship and Immigration Services is the agency under the Department of Homeland Security that adjudicates visas within the United States. Once an Order has been entered, the child may file form I-360, Petition for Special Immigrant Juvenile The child is then also eligible to concurrently file an I-485 Application for Adjustment of Status (which is the petition to seek lawful permanent resident status (i.e. be issued a green card while remaining in the U.S.)

15 A LAWFUL PERMANENT RESIDENT: WHAT DOES THAT MEAN? Lawful Permanent Residency, proven by possession of a Green Card LPR Status is normally obtained through a familybased option or a business-based option Lawful Permanent Resident status allows the person to live and work in the United States on a permanent basis Maintenance of LPR Status Abandonment of status