T
he Special Immigrant Juvenile Status (“SIJ”) law permits undocumented children who have come under the jurisdiction of a juvenile court and meet other requirements to become lawful permanent residents. Congress created the statute as a humanitarian gesture to aid abused, abandoned, and neglected children, no matter their citizenship status, and the statute received bipartisan support both initially and during subsequent amendments that broadened the safeguards for such children.1
Who Is a Special Immigrant Juvenile? In relevant part, the SIJ law defines “Special Immigrant Juvenile” as: (J) an immigrant who is present in the United States — (i) who has been declared dependent on a juvenile court located in the United States or whom such a 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, and whose reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; [and] (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the child’s best interest to be returned to the child’s or parent’s previous country of nationality or country of last habitual residence. 8 U.S.C. § 1101(a)(27)(I). To qualify for Special Immigrant Juvenile Status, an applicant must be under the age of twenty-one at the time of filing with the United States Citizenship and Immigration Services (USCIS), unmarried, and under juvenile court jurisdiction.2 There are two parts to the SIJ process: state court and immigration petitions.
Part 1: State Court Proceedings
What Every Lawyer and Judge Needs to Know About Immigrant Children By Linda A. Brandmiller
14 San Antonio Lawyer® | sabar.org
The name of the court is not determinant. Rather, the role of the court is what matters for purposes of SIJ eligibility. The broad definition of “juvenile court” and the jurisdiction it may have under federal law includes children in dependency (child welfare), guardianship, family court/custody, as well as delinquency proceedings (alleged violations of the law by youth). A child may live with one parent and still qualify. Note, however, that neither parent will be eligible for legal status through the child at any point in the future, even after the child becomes a United States citizen. Under current law, though, the child can petition siblings after becoming a citizen, and then that sibling could presumably petition the parent after becoming a citizen. The relevant question for SIJ eligibility is whether a judge, under the applicable law of the state, has found abuse, abandonment, neglect, or some other similar finding. Examples of abuse, abandonment, neglect, or a similar basis under state law are case-specific but, without limitation, may include traveling 2,500 miles alone to come to the United States, not going to school in their home country, physical abuse, literal abandonment, death of a parent, or no parent on the birth certificate. Suit Affecting the Parent-Child Relationship. The state court order cannot be solely for the purpose of getting the child lawful immigration status, which is one reason why adoption creates such a problem.3 A suit affecting the parent-child relationship (SAPCR) is much better than a declaratory judgment under the Texas Civil Practice & Remedies Code
